Shaik Reyaz

IN THE COURT OF JUDICIAL MAGISTRATE OF 1 ST CLASS, RAJAM

Present: Sri. ShaikReyaz, Judl.Magistrate of 1st Class, Ponduru. FAC. Judl. Magistrate of 1st Class, Rajam.

Wednesday, this the 21st day of February, 2018

Calendar Case No.272 of 2016

Between:

The A.P. State:Represented by the Sub-Inspector of Police, Regidi Amadalavalasa Police Station. … Complainant. And: Gollapalli Govinda, S/o. Guruvulu, aged 35 years, SC-Madiga by caste, Palligandredu Village, Gurla Mandal, Vizianagaram District.

...Accused

This case come up on 14-02-2018 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and Sri. K.

Krishna Rao, Legal Aid Counsel, for the accused and upon hearing both sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The then Sub Inspector of Police, R.A. Valasa Police Station, laid charge sheet against the accused for the offence punishable under section 457& 380 or 411 of Indian Penal Code in Cr.No.63/2016 of R.A. Valasa Police Station.

2.The brief averments of the charge sheet are that on 28.08.2016 at 15.30 hours, LW.1/M.V.Prasadarao lodged a written report, in which he stated that he is working as Mandal Education Officer, R.A. ValasaMandal andon the intervening night of 26/27.08.2016, some unknown culprits gained entrance into the MPUP

School, Jadapeta Village of R.A.ValasaMandal and committed theft of 152 kgs of

Midday meals rice and further gained entrance into MPUP School,

Nayuralavalasa Village, R.A.ValasaMandal and committed theft of 238 kgs of

Midday Meals Rice, fan and one Colour TV all worth of Rs.9,600/- and decamped with stolen swag. Based on the report lodged by LW.1/M.V.Prasadarao,

LW.12/the Sub Inspector of Police, R.A. Valasa Police Station, registered a case and investigated into.

During the course of investigation, LW.13/the Sub Inspector of Police, R.A.

Valasa Police Station, inspected the both scene of offences in presence of

LW.8/KovvadaBodappayya and LW.9/YagantiKaseyya drew rough sketch and got drafted scene observation and examined witness and recorded their statements.

2

After completion of the investigation charge sheet was laid against the accused.

Hence, this case.

3.This case was taken on file for the offence punishable u/Secs.457&380 or 411 of IPC.

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

5. Heard. The accused was examined under section 239 Code of Criminal

Procedure. Charge for the offence punishable under sections 457 and 380 or 411 of the Indian Penal Code were framed against the accused, read over and explained to him in Telugu, having understood the same, he denied the offence and claimed to be tried.

6. During the course of trial, in order to substantiate the case of the prosecution, it got examined P.Ws.1 to P.W.8, exhibited Exts.P1 to Exts.P.5 and M.Os.1 and 2.

7. After completion of prosecution side evidence, the accused was examined under section 313 of Code of Criminal Procedure. All the incriminating material available in the evidence of prosecution witnesses is explained to him in Telugu, having understood the same he denied the offence and reported no defence evidence.

8. Heard both sides.

9.The learned Asst. Public Prosecutor argued that the evidence of P.Ws 1 to 8 is consistent and corroborating with each other and their evidence categorically establish that the stolen property was recovered from the possession of the accused beyond all reasonable doubt and prayed to convict the accused.

10.On the other hand, the legal aid counsel for the accused argued that the evidence of prosecution witnesses is not consistent and corroborating with each other on material aspects and the investigating officer did not follow the procedure for arrest of accused and seizure of case property and no identification parade was conducted by the investigating officer through PWs.2&3, to identify the properties after they were recovered and it creates a doubt over the case of prosecution, even though, PW.3 identified the stolen property, there is no 3 evidence on record to show that the theft was committed by the accused only and all the circumstances from the evidence of prosecution witnesses create a reasonable doubt over the case of prosecution and hence the accused is entitled for benefit of doubt and prayed to acquit the accused.

11.Now the point for determination is :-

Whether the prosecution able to prove the guilt of the accused for the offence punishable under Sections 457 & 380 or 411 of Indian Penal Code beyond all reasonable doubt ?

P O I N T :-

12.It is the case of the prosecution that some unknown offenders committed theft of rice bags and TV and fan from the schools of PWs.2 & 3 and they gave complaint to their M.E.O/PW.1., on that, he gave complaint to police under Ex.P1 and on 03.11.2016, PW.7 arrested the accused and recovered the rice packets, M.Os 1 and 2 from his possession in the presence of PW 5 and one

Vajragada Laxmaiaha/L.W.11 under confession statement which was not marked and after completion of investigation he filed charge sheet in this case.

13.It is the case of defence that accused did not commit any offence and he was falsely implicated in this case and a false case was filed against him.

14.Now, to prove the offence punishable under Sections 380 and 457 of Indian Penal Code prosecution must prove that accused committed theft in a dwelling house or building and also committed lurking house trespass or house breaking in the night in order to commit an offence of theft from the school buildings of PW.s 2 and 3.

15.As can be seen from the entire evidence of P.Ws 1 to 5 there is no iota of evidence on record to show that anybody witnessed accused committing theft in the school buildings of PWs.2 & 3 or that accused has committed lurking trespass and housebreaking in the school in the night to commit an offence. The entire evidence of prosecution witnesses shows that they are deposing only about the recovery of stolen property from the police. So, when there is no piece of evidence on record to show that accused committed theft in the school buildings of PWs.2 & 3 and committed trespass in the night in the schools of PWs.2 & 3 to commit an offence, it cannot be said that accused 4 has committed any offence punishable under sections 380 and 457 of Indian

Penal Code. Hence, it is held that prosecution failed to prove the necessary ingredients for the offence punishable under sections 380 and 457 of Indian

Penal Code against the accused.

16.Now, as can be seen from the evidence of prosecution witnesses and the case of prosecution, it shows that prosecution is alleging that the accused committed offence under section 411 of Indian Penal Code as the stolen property under M.Os 1 and 2 and some rice bags is said to be recovered from his possession. To prove the offence punishable under section 411 of Indian

Penal Code, prosecution must prove that :

I.The property in question is the stolen property.

II.The stolen property was recovered from the possession of accused.

III.That accused had knowledge that the property recovered from him is stolen property.

17.As can be seen from the evidence of PWs 1 to 3,they had not stated about the recovery of the stolen properties from the possession of the accused. They had not deposed any overtact against the accused. As such, their evidence is not helpful for the prosecution to prove the offence punishable u/Sec.411 IPC.

PW.4 stated in his evidence that on 28.08.2016 he was summoned to the High

School situated in Nayurulavalasa and accordingly, at 4:00 pm, he went there and police observed the scene of offence under Ex.P2 observation report. He identified the locks of the school. But, it is not the stolen property. Thus, his evidence is also not useful to prove the offence punishable u/Sec.411 IPC against the accused.

18.PW.5 deposed in his evidence that on 03.11.2016 at about 3:00 pm, while he was at Tahsildar office, Garividi, police called him and

LW.11/VajragadaLaxmaiahand as such they went to police station and police took them to Railway Gate, and by that time one auto was coming from

Nellimarla towards Garividi and there were four rice bags in the said auto and accused was the driver of the auto. On enquiry, the accused informed that he was taking the rice from K.L.Puram village. On enquiry, the accused has informed something to the police, and as such police drafted a report and seized the rice bags and he signed on the confession report. Thus, a perusal of the evidence shows that he has not stated that accused has confessed the offence that he has committed the theft of the rice bags. He in his cross-examination stated that the confession was drafted at the police station. He stated that he 5 cannot say who scribed it and the bags seized were plastic bags. But, the stolen rice bags as per PWs.1 to 3 are gunny bags. Thus, it is clear that the confession report, which was not marked is not proved by PW.5 and further, there is also inconsistency in the nature of the bags.

19.PW.7 in his evidence stated that on 03.11.2016 on credible information he went to Garividi main road near railway-bridge by securing mediators. Then there on suspicion of the behavior of accused he questioned him, for which the accused confessed some of the offences of Garividi P.S along with this crime under the confession report. The said confession is not marked and the said evidence is not supported with the evidence of PW.5. Therefore, it is clear that the only evidence available to connect the accused with the offence is the evidence of PW.7, basing on which he arrested the accused. But, the sole evidence cannot be believed to prove the offence against the accused as he is the police official and as there is no evidence of an independent witness against the accused.

20.Under section 25 of the Indian Evidence Act, 1872 no confession made by an accused to a police officer can be admitted in evidence against him. An exception to this is however provided by section 26, which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to section 26 and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the: crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact, which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. The embargo, on statements of the accused

before the police will not apply if all the above conditions are fulfilled. If an

accused charged with a theft of articles or receiving stolen articles, within the meaning of sec. 411 I.P.C. states to the police, 'I will show you the articles at the place where I have kept them' and the articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact i.e.

keeping of the articles by the accused at the place mentioned. The discovery of the fact deposed to in such acase is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. But, in this case, PWs.7&5 has not stated that accused stated that he will 6 show the stolen articles. Further the confession has not been marked. Thus, except the confessional statement under which the investigating officer alleged to have made recovery, there is no evidence on record to implicate the complexity of the accused. As per illustration (a) of Section 114 of Indian Evidence Act, a person who is in possession of stolen properties soon after the commission of offence or if a person retains any goods knowing them to be stolen unless he accounts for his possession, he shall be presumed that he committed theft of such property.

21.In order to sustain the charge under section 411 of IPC, with the aid of

Illustration (a) of Section 114 of Indian Evidence Act, the seizure of stolen property from the possession of the accused must be proved invariably. The evidence of one of the arrest mediator examined as PW.5 was found to be inconsistent with the evidence of PW.7 investigating officer, who recorded confession statement. But, under section 25 of Indian Evidence Act, it cannot be solely acted upon in view of the latches and irregularities, which were traced out during the cross-examination and in view of the inconsistency of the evidence of

PWs.5&7 who were present at the time of recording confession. Further, there is a time gap between the commission of the offence and the seizure of the property and as such the aid of Sec.114(a) cannot be taken into to prove the offence punishable u/Sec.411 IPC and further it raises a doubt with regard to the property seized whether it is a stolen property or not. Thus, when there are inconsistencies in the evidence of PWs.5 & 7 and also doubt about the confession, they cannot be looked into and as such the prosecution also failed to prove the necessary ingredients of Sec.411 IPC also. PW.6, SI deposed in his evidence about lodging of report by PW.1 and he registering it as Cr.No.63/2016 and conducting investigation in this case. PW.8, SI, deposed in his evidence about issuing PT warrant against the accused and filing charge sheet in this case.

22.Thus, as could be seen from the evidence available on record, this court is of the view that there is no iota of evidence to prove the ingredients of the offence punishable u/Sec.457 & 380 IPC and further to prove the offence punishable u/Sec.411 IPC also, there are inconsistencies in the evidence of

PWs.5 & 7, and the confession also is not proved and there is a time gap between the date of offence and confession, and as such it cannot be believed.

So, in the above circumstances, it creates a very serious doubt over their evidence and does not inspire confidence in the mind of the court and hence it is held that there is no ring of truth in their evidence and not trustworthy and as 7 such prosecution failed to prove beyond all reasonable doubt that MOs 1 and 2 were seized from the possession of accused and also he committed the theft or lurking trespass. So, when there is doubt in the case of prosecution, it is a settled principle of law that the benefit of doubt shall be extended to the accused and accordingly the benefit of doubt is extended to the accused and hence, accused is entitled for acquittal. Accordingly, the point is answered.

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

Sections 457 & 380 or 411 of IPC. Accordingly, he is acquitted under section 248(1) of Cr.P.C. Hence, he is ordered to be released forthwith, if he is not required in any other case. MOs. 1 & 2, which were given in interim custody to

PW.3 as per the orders of this Court shall be made absolute after expiry of appeal time. Unclaimed MO.3 lock & other unmarked property if any shall be destroyed after appeal time is over.

Accused is in jail and he shall be released forthwith if his detention is no required in any other case or crime.

Typed to dictation by the Stenographer on computer; corrected and

pronounced by me in Open Court, on this, the 21st day of February, 2018.

Judicial Magistrate of I Class

Ponduru (FAC) Judicial Magistrate of I Class, Rajam.

Appendix of Evidence Witnesses Examined For Prosecution: PW.1:M.V. Prasadarao, MEO, R.A.Valasa.

PW.2:D. Malleswrarao, H.M, Jadapeta.

PW.3:B. Tirupathirao, H.M, Nayaralavalasa.

PW.4:KovvadaBodiAppayya, V.R.A, Nayaralavalasa.

PW.5:GeddapuRaminaidu

PW.6:V. Ramesh

PW.7:S. Srinivas, SI of Police, Garividi PS.

PW.8:Y. Simhachalam, SI of Police, R.A.Valasa PS.

For Defence:None 8

Documents Marked

For Prosecution:

Ex.P1/14.12.2016 : Report dated 28.08.2016 Ex.P2/21.12.2016 : Scene observation report dated 28.08.2016. Ex.P3/22.02.2017 : Original FIR in Cr.No.63/2016, dt:28.03.2016. Ex.P4/22.02.2017 : Rough sketch of the scene of offence in Cr.No.63/2016,

dt:28.03.2016.

Ex.P5/22.02.2017 : Rough sketch of the scene of offence in MPUP School,

Nayaralavalasa Village, dt:28.03.2016.

For Defence: Nil

Material Objects: M.O.1/14.12.2016 : Videocon Color TV deposited vide (CP No.108/2016)

M.O.2/14.12.2016 : Ceiling fan deposited vide (CP No.108/2016)

M.O.3/21.12.2016 : Two locks vide (CP No.108/2016)

Judicial Magistrate of I Class

Ponduru (FAC) Judicial Magistrate of I Class, Rajam.

9

FORM NO.71 Calendar & Judgment (for use in cases where there is one accused person)

DISTRICT OF SRIKAKULAM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, RAJAM

DATE OF OFFENCE:21/10/2016REPORT OR 21/10/2016 COMPLAINT: APPREHENSIONOF09/11/2016RELEASE ON BAIL21/02/2018 ACCUSED:ACCUSED:

COMMENCEMENT OF14/12/2016CLOSE OF TRIAL:26/04/2017 TRIAL:

SENTENCE OR ORDER:21/02/2018

EXPLANATIONOFNon production of witness in time by the complainant.

DELAYAND

REMARKS:

JUDGMENT IN C.C:272 of 2016 Cr.No. 63/2016

COMPLAINANT:The A.P. State:Represented by the Sub-Inspector of Police, Regidi Amadalavalasa Police Station.

NAME,AGE,Gollapalli Govinda, S/o. Guruvulu, aged 35 years, SC-Madiga by caste, FATHER’SNAME,Palligandredu Village, Gurla Mandal, Vizianagaram District.

RELIGION, CALLING,

RESIDENCEAND

TALUK OF THE

ACCUSED:

OFFENCE:Under Sections 457, 380 and 411 of Indian Penal Code Sec.457of IPC: Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment of Indian Penal Code. Sec.380 of IPC: Theft in dwelling house, etc. of Indian Penal Code. Sec.411of IPC: Dishonestly receiving stolen property of Indian Penal Code. FINDING:Found not guilty

SENTENCE:In the result, accused is found not guilty for the offence punishable under Sections 457 & 380 or 411 of IPC. Accordingly, he is acquitted under section 248(1) of Cr.P.C. Hence, he is ordered to be released forthwith, if he is not required in any other case. MOs. 1 & 2, which were given in interim custody to PW.3 as per the orders of this Court shall be made absolute after expiry of appeal time. Unclaimed MO.3 lock & other unmarked property if any shall be destroyed after appeal time is over.

Accused is in jail and he shall be released forthwith if his detention is no required in any other case or crime.

DATE OF RECEIPT21/02/2018

FROMTHE

MAGISTRATE:

JUDL. MAGISTRATE OF 1ST CLASS RAJAM

To the Hon’ble 1 st Addl. District Judge, Srikakulam

Calendar Case No.272/2016 Date of Judgment:21/02/2018 Date of Dispatch of Calendar: Date of Receipt: Remarks of 1st ADJ, Srikakulam: Copy to the Superintendent of police, Srikakulam 10 11 12

1 CC.117 of 2016, dt:06.03.2018.

IN THE COURT OF JUDICIAL MAGISTRATE OF 1 ST CLASS, RAJAM

Present: Sri. Shaik Reyaz, Judl.Magistrate of 1st Class, Ponduru. FAC. Judl. Magistrate of 1st Class, Rajam.

Tuesday, the 06th day of March, 2018

Calendar Case No.117 of 2016

Between:

The State represented by the Proh. & Excise Inspector of Police, Proh. & Excise Station, Rajam.

… Complainant.

And:

Paradi Srinivasa Rao, S/o. Brahma, aged about 32 years, caste: Viswa Brahmin, R/o. Near Sita Lakshmi Cinema Hall, Rajam, Rajam Mandal, Srikakulam District.

…Accused

This case coming on 28.02.2018 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and Sri. A.

Satyanarayana, Advocate, for the accused and upon hearing both sides and having stood over for consideration on this day, this court delivered the following:

J U D G M E N T

1. The Inspector of Prohibition and Excise Station, Rajam, laid charge sheet against the accused for the offence punishable u/section 34(a) of AP Excise Act in Cr.No.64/2014-2015.

2.The brief averments of the charge sheet are that on 25.07.2014, at about 18.00 hours, on credible information, LW.3/the Sub Inspector of Police,

Santhakaviti Police Station,left Santhakaviti PS along with his staff on motor cycles and on reaching the King Jayaraj Dabha Hotel, GMR Care Hospital

Junction via Ponugutivalasa Junction, noticed one person tried to escape from the spot by leaving the blue colour polythene cover. On suspicious circumstance, theLW.3/the Sub Inspector of Police, Santhakaviti Police Station, caught him with the help of the staff at a distance of 30 meters and questioned him about his name, address, grounds for escaping and the contents in the cover. At first the accused did not speak anything. Later, he voluntarily disclosed his identity as noted above. Then LW.3/the Sub Inspector of Police, Santhakaviti Police Station verified the cover of him and found 3 bottles of Knockout High Punch Strong

Beer each containing 650ml., Beer and onebottle of Kalyani Black Label Strong

Beer containing 330ml, Beer. On questioning about the license and receipt for 2 CC.117 of 2016, dt:06.03.2018.

possession and selling the beer bottles, he voluntarily admitted that he used to purchase the beer bottles from Chowdary Wines, Dolapeta Junction and to sell the same at higher rates at his house for his personal gain and he further stated that he has no any license and permit for selling the beer bottles. Then LW.3/the

Sub Inspector of Police, Santhakaviti Police Station seized the above beer bottles and separated one beer bottle from the polythine cover of him as sample for the purpose of chemical analysis and sealed the sample bottle and affixed identification slip over it. Then the LW.3/the Sub Inspector of Police, Santhakaviti

Police Station searched for mediators but none could come forward for act as mediator. After explaining the reasons of his arrest, the LW.3/the Sub Inspector of

Police, Santhakaviti Police Station arrested the accused and seized the contraband under cover of an occurrence report drafted at the place of offence from 18.00 hours to 18.30 hours.LW.3/the Sub Inspector of Police, Santhakaviti

Police Station brought the accused along with case property to the Police

Station, Santhakaviti and registered the Occurrence Report as case in

Cr.No.80/2014 of Santhakaviti PS u/sec.34 (a) of AP Excise Act, 1968. The accused along with Original FIR and case documents has been produced before the Hon’ble Judicial Magistrate of First Class, Rajam for remand of the accused on 26.07.2014 and transmitted the case documents and the case property to the

Station House Officer, Proh. & Excise Station, Rajam, on 30.07.2014 for taking necessary action.

3.Basing on the occurrence report, LW.4/Proh. & Excise Sub Inspector,

Proh. & Excise Station, Rajam,he re-registered a case in Cr.No.64/2014-2015 for the offence punishable u/sec 34(a) of A.P. Excise Act. During the course of investigation LW.4/Proh. & Excise Sub Inspector, Proh. & Excise Station, Rajam, sent sample bottle to the Regional Proh &Excise Laboratory, Visakhapatnam for chemical analysis under the cover of letter of advise. The analyst after thorough analysis opined that the sample bottles contained Indian Liquor. On receipt of the analysis report he laid charge sheet against the accused. Hence, this case.

4.The case is taken cognizance u/Sec.190(1) (b) of Code of Criminal

Procedure for the offence punishable under Section 34 (a) of A.P. Excise Act.

5.On appearance of the accused, copies of documents were furnished to him as contemplated under Section 207 of Code of Criminal Procedure.

3 CC.117 of 2016, dt:06.03.2018.

6. Heard. The accused was examined under section 239 Code of Criminal

Procedure. Charge under section 34 (a) of A.P. Excise Act was framed against the accused, read over and explained to him in Telugu, having understood the same, he denied the offence and claimed to be tried.

7. During the course of trial, in order to substantiate the case of the prosecution, it got examined P.Ws.1 to P.Ws.3, exhibited Exts.P1 to Exts.P3 and M.O.1.

8. After completion of prosecution side evidence, the accused was examined under section 313 of Code of Criminal Procedure. All the incriminating material available in the evidence of prosecution witnesses is explained to him in Telugu, having understood the same he denied the offence and reported no defence evidence.

9. Heard both sides.

10.In view of the rival contentions now the points that require determination are:-

(i)Whether the accused was in possession of 3 bottles of Knockout High Punch Strong Beer each containing 650ml., Beer and one bottle of Kalyani Black Label Strong Beer containing 330ml, Beerfor purpose resale?

(ii)Whether the prosecution is able to bring home the guilt of the accused for the offence punishable under section 34(a) of A.P.Excise Act?

11. POINT No. (i):- In order to constitute an offence punishable under section 34(a) of A.P.Excise Act, the prosecution must establish that the accused was in possession of found 3 bottles of Knockout High Punch Strong Beer each containing 650ml., Beer and one bottle of Kalyani Black Label Strong Beer containing 330ml, Beerfor the purpose of resale, without having license.

12.In order to determine the culpability of the accused, the evidence available

before this court is the oral testimonies of P.Ws.1 to P.Ws.3, Exts.P.1 to Exts.P.3

and M.O.1. P.W.1 and P.W.2 are the excise officials who participated in the raids on the date of occurrence.

13.PW.1 deposed that on 25.07.2014, at about 6.00 pm., himself, LW.3/P.

Sureshbabu, the then Sub Inspector of Santhakaviti PS and another Constables started from their police station, in view of reliable information received by LW.3, on their jeep. When they reached near to GMR Care Hospital, they noticed 4 CC.117 of 2016, dt:06.03.2018.

accused who was in possession of blue colour polythin bag. On seeing the accused tried to fled away from that place by leaving the polythin bag. As such, they apprehended him and enquired him for escaping from that place by leaving the polythin bag. On enquiry the accused confessed that the said polythin bag which was left by him consisting of 3 full knockout beer bottles of large size and one Kalyani beer bottles small in size. The accused also informed that he purchased the liquor bottles at Chowdary wines, Dolapeta, in order to sell them at his house for higher price. Since, no independent witnesses were available,

LW.3 drafted the occurrence report. One sample bottle was separated for the purpose of chemical analysis and the rest of the liquor bottles were seized.

Thereafter, they have taken accused along with the property seized to police station.

14.PW.2 deposed that on 30.07.2014, at about 9.00 pm., he received case records along with the property from the station centry. Based on the copy of

Ex.P1, he re-registered and submitted to this court and copies to the concern authorities. Ex.P1 is the Original FIR in Cr.No.64/2014-15 of Proh. & Excise

Station, Rajam, dated 30.07.2014. During the course of investigation he sent the sample bottle of Knock out High Punch Strong beer to the regional Proh. &

Excise Station, Visakhapatnam for chemical analysis under the cover of letter of advise. MO.1 is the empty sample bottle of Knock Out High Punch Strong Beer deposited vide CP.No.109/2016. The analyst after thorough analysis opined that

MO.1 contained beer, he received the analysis report on 24.09.2014. Ex.P2 is the analysis report, dated 27.08.2014, issued by Regional Proh. & Excise

Laboratory, Visakhapatnam. After completion of the investigation he laid charge sheet against the accused.

15.PW.3 deposed that on 25.07.2014, at 6.00 pm., he along with his staff

PW.1 and LW.2 started from their police station on credible information and reached GMRV Care Hospital and noticed to accused who was in possession of blue colour polythin bag. On seeing them accused tried to flee away from that place by leaving the polythin bag as such, they all apprehended him and enquired for escaping. On enquiry accused confessed that the polythin bag is consist of 3 full Knock Out beer bottles of large size and one Kalyani Beer bottle small in size. The accused started that he purchased them from Chowdary wines, Dolapeta to sell them at higher price. As no one came to act as mediator.

He drafted the occurrence report. He separated one sample bottle for chemical analysis and seized remaining contraband. Thereafter, he brought accused and the seized contraband to police station and registered the case as a case in 5 CC.117 of 2016, dt:06.03.2018.

Cr.No.80/2014 for the offence punishable u/sec. 34(a) of AP Excise Act and investigated into. Ex.P3 is the Original FIR. He arrested the accused and sent him for judicial custody on the next day i.e., 26.07.2014. On 30.07.2014 he handed over the case file to PW.2.

16.A careful scrutiny of the evidence of PWs.1 to 3 goes to show that PWs.1 & 3 along with another conducted raid and found beer bottles in hispossesion.

They has not followed the mandatory procedure u/Sec.100 Cr.P.C at the time of search of the accused. They has not secured any independent mediator present at the scene of offence though the scene of offence is a busy locality. They stated that no independent mediators are available, but it is not believable. They had not issued notices to the persons available at the scene of offence to act as mediators. Further the contraband seized is not in the prohibited quantity as a person can carry 6 beer bottles without license. The police officials has not examined from whom he purchased the bottles and where he is going to sell.

Further, the witnesses who are examined are only the police officials who are interested to secure conviction of the accused. There are no other witness examined by the prosecutionto prove that the accused illegally in possession of the contraband. Further, there are some inconsistencies in the cross- examination of PWs.1 &3. Thus, the evidence available on record shows that there is inconsistency in the evidence of PWs1 & 3 and further their evidence cannot be believed as they are only the police officials in the absence of independent witnesses and further Sec.100 Cr.P.C procedure is not followed by the investigating officer which is mandatory at the time of seizure,as such this court is of the view that the prosecution has failed to prove that the accused has was found in possession of the contraband without valid license and permit and as such the accused is entitled for an order of acquittal. Accordingly, point is answered.

17. Point No. (ii):-

In view of the discussion under Point No (i), it is held that the prosecution has failed to bring home the guilt of the accused for the offences punishable under section 34(a) of AP Excise Act.

18.In the result, the accused is found not guilty for the offence punishable under Section 34 (a) of A.P. Excise Act and accordingly he is acquitted under

Section 248(1) Code of Criminal Procedure. M.O.1 which is deposited vide

C.P.No.109/2016 shall be destroyed after the expiry of appeal time. The accused shall execute bond for an amount of Rs.5,000/- by undertaking to appear before 6 CC.117 of 2016, dt:06.03.2018.

the Appellate Court, if any appeal is preferred against him in compliance with

Section 437(A) of Code of Criminal Procedure.

Typed to my dictation, by the Stenographer, corrected and pronounced by me in open Court on this the 6th day of March, 2018.

JUDL. MAGISTRATE OF 1ST CLASS RAJAM

Appendix of Evidence Witnesses Examined For Prosecution: PW.1:G. Trinadha, the Head Constable of Proh. & Excise Station, Rajam. M. Srinivasarao, the Inspector of Police, Prohibition and Excise Station, PW.2:Rajam. P. Suresh Babu, the Sub Inspector of Police, CCS, Visakhapatnam. PW.3:

For Defence:None

Documents Marked For Prosecution: Ex.P1/16.01.2017:The Original First Information Report dated 30.07.2014 in Cr.No. 64/2014-2015. Ex.P2/16.01.2017:The analysis report, dated 27.08.2014. Ex.P3/20.02.2018:The Original FIR, dated 25.07.2014.

For defence: Nil Material Objects: M.O.1/16.01.2017 : Empty Sample bottle of Knock Out High Punch Strong Beer (deposited vide C.P.No.109/2016).

JUDL. MAGISTRATE OF 1ST CLASS RAJAM 7 CC.117 of 2016, dt:06.03.2018.

FORM NO.71

Calendar & Judgment (for use in cases where there is one accused person)

DISTRICT OF SRIKAKULAM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, RAJAM

DATE OF OFFENCE:25/07/2014REPORT OR 25/07/2014 COMPLAINT: APPREHENSION OF ACCUSED:26/07/2014RELEASEON28/07/20104 BAIL:

REMAND OF ACCUSED:26/07/2014

COMMENCEMENT OF TRIAL:31/10/2016CLOSEOF20/02/2018 TRIAL: SENTENCE OR ORDER:06/03/2018 EXPLANATION OF DELAY ANDNon production of the witness in time by the complainant. REMARKS: JUDGMENT IN C.C:117 of 2016 Cr.No. 64/2014-2015

COMPLAINANT:The State represented by the Proh. & Excise Inspector of Police, Proh. & Excise Station, Rajam.

NAME, AGE, FATHER’SParadi Srinivasa Rao, S/o. Brahma, aged about 32 years, caste: Viswa

NAME,RELIGION,

Brahmin, R/o. Near Sita Lakshmi Cinema Hall, Rajam, Rajam Mandal,

CALLING, RESIDENCE

Srikakulam District.

AND TALUK OF THE

ACCUSED: OFFENCE:34(a) of AP Excise Act Penalty for illegal import etc.,

FINDING:Found not guilty SENTENCE: In the result, the accused is found not guilty for the offence punishable under Section 34 (a) of A.P. Excise Act and accordingly he is acquitted under Section 248(1) Code of Criminal Procedure. M.O.1 which is deposited vide C.P.No.109/2016 shall be destroyed after the expiry of appeal time. The accused shall execute bond for an amount of Rs.5,000/- by undertaking to appear before the Appellate Court, if any appeal is preferred against him in compliance with Section 437(A) of Code of Criminal Procedure.

DATE OF RECEIPT FROM THE MAGISTRATE:06/03/2018

JUDL. MAGISTRATE OF 1ST CLASS RAJAM

To The Hon’ble 1 st Addl. District Judge, Srikakulam

Calendar Case No.117/2016 Date of Judgment:06/03/2018 Date of Dispatch of Calendar: Date of Receipt: Remarks of 1st ADJ, Srikakulam:

8 CC.117 of 2016, dt:06.03.2018.

1 CC.230 of 2016, dt:06.03.2018

IN THE COURT OF JUDICIAL MAGISTRATE OF 1 ST CLASS, RAJAM

Present: Sri. ShaikReyaz, Judl.Magistrate of 1st Class, Ponduru. FAC. Judl. Magistrate of 1st Class, Rajam.

Tuesday, the 06th day of March, 2018

Calendar Case No.230 of 2016

Between:

The State Represented by the Inspector of Police, Rajam Police Station. … Complainant. And: Cheekati Jagadeswararao, S/o. Trinadharao, aged 28 years, K. Velama by caste, R/o. Cheekatipeta Village, TherlamMandal, Vizianagaram District. …Accused This case coming on 28/02/2018 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and Sri. K.

Ramana Murthy, Advocate, for the accused and upon hearing both sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The then Inspector of Police, Rajam Police Station, laid charge sheet against the accused for the offence punishable under sections 292 of Indian

Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) - 1986 in Cr.No.186/2016 of Rajam Police Station.

2.The brief averments of the charge sheet are that on 17.09.2016 at about 04.00 pm., on credible information LW.3/R. Simhachalam, Head Constable of

Police, Rajam Police Station, conducted raid over the cell point of the accused in

NTR Complex, Rajam Town under the name and style of JyothiCell Care shop while the accused was exhibiting pornography videos to young guys. On seeing police, the two young guys fled away from cell point, on that LW.3/R.

Simhachalam, Head Constable of Police, Rajamcaught the accused, interrogated and on interrogation the accused voluntarily admitted that he has stored pornography videos in his computer system, exhibited to the customers who approached him which led to provoke sexual desires and thirst. On the orders of customers, the accused loadspornography videos into the mobile phones and other electronic devices by taking money from each one Rs.100/- for loading.

While on 17.09.2016 at 04.00 pm., while the accused was exhibiting pornography videos to the two young guys, he was nabbed by the police. Then LW.3/R.

Simhachalam, Head Constable of Police, Rajam, opened the system with the assistance of LW.1, found F drive containing XXX folder wherein he found nine

MP4 files, when opened one MP4 file, it was showing a title as Athina – Athinas, 2 CC.230 of 2016, dt:06.03.2018 the World’s Hottest, Porn stars, 21 SEXTURY, XBTZ Adult Site, The year of 2014, press pay entertainment limited file which is containing one pornography video, when playing w VLC media player, it is displayed video in which one male and female persons participated in sexual intercourse nakedly in various positions which is provoking sexual desires and thrust. Then LW.3 seized 1)

UMAY Company made CPU, 2) Ligitesh company made keyboard, 3) Frontech

Company Mouse, 4) Two speakers, 5) ACER company made monitor and arrested the accused under cover of occurrence report. Basing on the occurrence report, LW.3/R. Simhachala, Head Constable of Police, Rajam PS, registered a case and investigated into. After completion of the investigation, charge sheet was laid against the accused. Hence, this case.

3.The case is taken on file for the offence punishable u/Sec.292 of the

Indian Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) – 1986.

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

5. Heard. The accused was examined under section 239 Code of Criminal

Procedure. Charges under sections 292 of Indian Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) - 1986 were framed against the accused, read over and explained to him in Telugu, having understood the same, he denied the offence and claimed to be tried.

6. In order to substantiate the contention of the prosecution, it got examined

P.Ws.1 to P.Ws.3, exhibited Exs.P1 and P2 and M.Os.1 to 5.

7.After completion of the prosecution evidence, the accused was examined under section 313 of Code of Criminal Procedure. All the incriminating material available in the testimonies prosecution witnesses is explained to the accused in

Telugu, having under stood the same he denied the same and reported no defence evidence.

8.Heard, the both sides.

3 CC.230 of 2016, dt:06.03.2018

9.In view of the rival contentions now the point for determination is:-

Whether the prosecution is able to establish that the accused loaded pornography videos into his computer and is displaying to the young guys and further loading them into the mobile phones and other electronic devices by taking money from each one Rs.100/- for loading?

10.Point No.(i):-

PW.1/K. Koteswararao, Police Constable of Rajam, Police Station, deposed that on 17.09.2016 at 4.00 pm., he along with LW.2/Y. Laxmanarao, the

Police Constable, Rajam Police Station and PW.2/P. Simhachalam, Head

Constable of Rajam Police Station, conducted raids on the cell point accusedlocated in NTR Complex, Rajam, under the style of Jyothi Cell

Careshop, as the accused was exhibiting pornography videos to young guys. On seeing police two young guys fled away. On that LW.3/ P. Simhachalam, Head

Constable of Rajam Police Station, caught hold the accused and interrogated.

On which, he voluntarily admitted that he stored pornography videos in his computer and exhibit to customers. The accused also loads pornography videos into the mobile phones and electronic devices by taking Rs.100/-. At the time of raid also he was exhibiting videos to two young guys. On that P:W.2/P.

Simhachalam, Head Constable of Rajam Police Station, opened the system with the help of him and found F drive containing XXX folder where in there are 9 MP 4 files. They opened one file and observed that it is of pornography. Then, PW.2 sized UMAY Company made CPU, LIGITISH made Key board, Frontich company mouse, two speakers and Acer company monitor, under the cover of occurrence report marked as Ex.P1 drafted by him. When PW.2/ P. Simhachalam, Head

Constable of Rajam Police Station, tried for mediators nobody came forward, as such, he arrested accused at .5.15 pm.

11.PW.2/P. Simhachalam, the Head Constable of Police, Gara Police Station, previously worked as Head Constable of Rajam Police Station deposed in his evidence that on 17.09.2016, at 4.00 pm., he along with PW.1 and LW.2/Y.

Laxmanarao, the Police Constable, Rajam Police Station, conducted raids on the cell point accused,located in NTR Complex, Rajam, under the style of Jyothi Cell

Careshop, as the accused was exhibiting pornography videos to two young guys.

On seeing police two young guys fled away. On that he caught hold the accused and interrogated. On which, he voluntarily admitted that he stored pornography videos in his computer and exhibit to customers. The accused also loads pornography videos into the mobile phones and electronic devices by taking

Rs.100/-. At the time of raid also he was exhibiting videos to young guys by provoking sexual desires. On that he opened the system with the help of his staff 4 CC.230 of 2016, dt:06.03.2018 and found F drive containing XXX folder where in there are 9 MP 4 files. They opened one file and observed that it is of pornography. Then, he seized UMAY

Company made CPU, LIGITISH made Key board, Frontich Company mouse, two speakers and Acer Company Monitor, under the cover of occurrence report marked as Ex.P1 drafted by PW.1. When he tried for mediators nobody came forward, as such, he arrested accused at 5.15 pm., MO.1 is the UMAY Company made CPU, MO.2 is the LIGITISH made Keyboard, MO.3 is the Frontich

Company Mouse, MO.4 is the two speakers and MO.5 is the Acer company

Monitor, he brought accused and property to police station and registered the case as Cr.No.186/2016, u/sec. 292 IPC and sec.4(a) r/w 06 of Indecent representation of Woman (Prohibition Act) at 05.15 pm., he sent Original FIR to court and copies to all concerned. He released the accused on station bail. He handed over the case property to accused under the order of the court, dated 11.11.2016. Thereafter, he handed over the case file to PW.3/S. Sankararao,

Inspector of Police, Rajam PS. PW.3/S. Sankararao, Inspector of Police, VR

Branch attached to Taskforce Excise at Visakhapatnam, previously worked as

Inspector of Police, Rajam Police Station deposed in his evidence that on 20.09.2016 he took case file from PW.2, verified the investigation on correct lines and file charge sheet in this case.

12.A careful scrutiny of the evidence of PWs.1 to 3 goes to show that PWs.1 &2 along with another conducted raid in the cell point of accused and found obscene videos in the computer. They has not followed the mandatory procedure u/Sec.100 Cr.P.C at the time of search of the shop. They has not secured any independent mediator present at the scene of offence though the scene of offence is a busy locality. They stated that two guys who were watching the videos fled away. They were not caught by the police officials to prove that they were being provoked by the accused to have sexual desire. Further, the witnesses who are examined are only the police officials who are interested to secure conviction of the accused. There are no other witnesses examined by the prosecution to prove that the accused loaded videos into mobile phones and other electronic devices. Further, there are some inconsistencies in the cross- examination of PWs.1 &2. The police officials has not examined any shop owner beside the shop of the accused. Thus, the evidence available on record shows that there is inconsistency in the evidence of PWs1 & 2 and further their evidence cannot be believed as they are only the police officials in the absence of independent witnesses and further Sec.100 Cr.P.C procedure is not followed by the investigating officer which is mandatory at the time of seizure, as such this court is of the view that the prosecution has failed to prove that the accused has 5 CC.230 of 2016, dt:06.03.2018 loaded pornography videos into his computer and is displaying to the young guys and further loading them into the mobile phones and other electronic devices by taking money from each one Rs.100/- for loading and as such the accused is entitled for an order of acquittal. Accordingly, point is answered.

In the result, the accused is found not guilty for the offence punishable under sections 292 of Indian Penal Code and section 4(a) r/w 6 of Indecent

Representation of Woman (Prohibition Act) – 1986, accordingly he is acquitted under Section 248(1) Code of Criminal Procedure. The accused shall execute bond for an amount of Rs.5,000/- by undertaking to appear before the Appellate

Court, if any appeal is preferred against him in compliance with Section 437(A) of

Code of Criminal Procedure. MOs.1 to .5 shall be retained with the accused after the expiry of appeal time.

Typed to my dictation, by the Stenographer, corrected and pronounced by me in open Court on this the 6th day of March, 2018.

JUDICIAL MAGISTRATE OF I CLASS

RAJAM

FAC JUDICIAL MAGISTRATE OF I CLASS

PONDURU.

Appendix of Evidence Witnesses Examined For Prosecution: PW.1:K. Koteswararao, Police Constable of Rajam PS. PW.2:P. Simhachalam, the Head Constable of Rajam PS. PW.3:S. Sankararao, Inspector of Police, VR Branch attached to Taskforce Excise at Visakhapatnam.

For Defence: None

Documents Marked

For Prosecution: Ex.P1/07.02.2018: The occurrence report dated 17.09.2016 Ex.P2/21.02.2018: Original FIR dated 17.09.2016.

Material Objects: MO.1/21.02.2018:UMAY company made CPU. MO.2/21.02.2018:LIGITISH made Keyboard. MO.3/21/02/2018:Frontech company mouse. MO.4/21.02.2018:Two speakers. MO.5/21.02.2018:Accer Company Monitor.

JUDICIAL MAGISTRATE OF I CLASS

RAJAM

FAC JUDICIAL MAGISTRATE OF I CLASS

PONDURU.

6 CC.230 of 2016, dt:06.03.2018

FORM NO.71 Calendar & Judgment (for use in cases where there is one accused person)

DISTRICT OF SRIKAKULAM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, RAJAM

DATE OF OFFENCE:17/09/2016REPORT OR 17/09/2016 COMPLAINT: APPREHENSIONOF---RELEASE ON BAIL:--- ACCUSED: REMAND OF ACCUSED:---

COMMENCEMENTOF19/07/2017CLOSE OF TRIAL:21/02/2018 TRIAL: SENTENCE OR ORDER:06/03/2018 EXPLANATION OF DELAYNon production of the witness in time by the complainant. AND REMARKS: JUDGMENT IN C.C:230 of 2016 Cr.No. 186/2016 COMPLAINANT:The State Represented by the Inspector of Police, Rajam Police Station.

NAME, AGE, FATHER’SCheekati Jagadeswararao, S/o. Trinadharao, aged 28 years, K. Velama by caste, NAME,RELIGION,R/o. Cheekatipeta Village, Therlam Mandal, Vizianagaram District.

CALLING,RESIDENCE

AND TALUK OF THE

ACCUSED: OFFENCE:under sections 292 of Indian Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) – 1986. Sec.292 of IPC:Evidence to officers of the Mint of Indian Penal Code. FINDING:Found not guilty SENTENCE:In the result, the accused is found not guilty for the offence punishable under sections 292 of Indian Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) – 1986, accordingly he is acquitted under Section 248(1) Code of Criminal Procedure. The accused shall execute bond for an amount of Rs.5,000/- by undertaking to appear before the Appellate Court, if any appeal is preferred against him in compliance with Section 437(A) of Code of Criminal Procedure. MOs.1 to .5 shall be retained with the accused after the expiry of appeal time.

DATE OF RECEIPT FROM06/03/2018 THE MAGISTRATE: JUDL. MAGISTRATE OF 1ST CLASS RAJAM To The Hon’ble 1 st Addl. District Judge, Srikakulam Calendar Case No.230/2016 Date of Judgment:06/03/2018 Date of Dispatch of Calendar: Date of Receipt: Remarks of 1st ADJ, Srikakulam: Copy to the Superintendent of police, Srikakulam

1 CC.229 of 2016, dt:06.03.2018

IN THE COURT OF JUDICIAL MAGISTRATE OF 1ST CLASS, RAJAM

Present: Sri. ShaikReyaz, Judl.Magistrate of 1st Class, Ponduru. FAC. Judl. Magistrate of 1st Class, Rajam.

Tuesday, the 06th day of March, 2018

Calendar Case No.229 of 2016

Between:

The State: Represented by the Inspector of Police, Rajam Police Station. … Complainant. And: Jillella Bhaskar alias Bhaskararao, S/o. Gurumurthy, aged 30 years, Telaga by caste, R/o. Kancharaveedhi, Rajam Town and Mandal, Srikakulam District. …Accused

This case coming on 28.02.2018 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and Sri. K.

Ramana Murthy,Advocate, for the accused and upon hearing both sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The then Inspector of Police, Rajam Police Station, laid charge sheet against the accused for the offences punishable under sections 292 of Indian

Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) - 1986 in Cr.No.187/2016 of Rajam Police Station.

2.The brief averments of the charge sheet are that on 17.09.2016 at about 04.00 pm., on credible information LW.3/B.V.Satyanarayana, Head Constable of

Rajam PS, conducted raids with assistance of LW.1/P. Srinivasarao, Constable of

Rajam PS and LW.2/D. Suribabu, Constable of Rajam PS on the mobile centre of accused who is running a cell phone point in NTR Complex, Rajam Town on the style of Vivek Cell Point while the accused was exhibiting pornography videos to young guys. On seeing police, the two young guys fled away from cell point, on that LW.3/B.V.Satyanarayana, Head Constable of Rajam PS, caught the accused, interrogated the accused, on interrogation the accused voluntarily admitted that he is storing pornography videos in his computer system, exhibited to the customers who approached him which led to provoke sexual desires and thirst. On the orders placed by the customers, the accused loaded pornography videos into the mobile phones and other electronic devices by taking money from each one Rs.100/- for loading. While on 17.09.2016 at 04.00 pm., while the accused was exhibiting pornography videos to the two young guys, he was 2 CC.229 of 2016, dt:06.03.2018 nabbed by the police. Then LW.3/B.V.Satyanarayana, Head Constable of Rajam

PS, opened the system with the assistance of LW.2, found F drive containing QQ movies, New folder (2), New folder wherein found Suresh folder containing name

as 12121212 and containing 29 video files, when opened 1st file, it was showing a

title as Bang Bros.com, Sexual content warning. Bango Bros.com presents. The video was displayed, in which one male and female person participated in sexual intercourse nakedly in various positions which is to be provoked sexual desires and thrust. Then LW.3/B.V.Satyanarayana, Head Constable of Rajam PS, seized

1) Frontech fusion Company mad CPU, 2) Samsung Company Monitor, 3) HCL

Company Keyboard, 4) LAP Care Mouse, 5) Two speakers and arrested the accused at 5.30 hrs., under cover of occurred report as none came forward to stand as mediators. Basing on the occurrence report, LW.3/B.V.Satyanarayana,

Head Constable of Rajam PS, registered a case and investigated into.After completion of the investigation, charge sheet was laid against the accused.

Hence, this case.

3.The case is taken on file for the offence punishable u/Sec.292 of Indian

Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) – 1986.

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

5. Heard. The accused was examined under section 239 Code of Criminal

Procedure. Charges under sections 292 of Indian Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) - 1986 were framed against the accused, read over and explained to him in Telugu, having understood the same, he denied the offence and claimed to be tried.

6. In order to substantiate the contention of the prosecution, it got examined

P.Ws.1 to P.Ws.3 and exhibited Ex.P1.

7.After completion of the prosecution evidence, the accused was examined under section 313 of Code of Criminal Procedure. All the incriminating material available in the testimonies prosecution witnesses is explained to the accused in

Telugu, having under stood the same he denied the same and reported no defence evidence.

3 CC.229 of 2016, dt:06.03.2018

8.Heard, the both sides.

9.In view of the rival contentions now the point for determination is:-

Whether the prosecution is able to establish that the accused loaded pornography videos into his computer and is displaying to the young guys and further loading them into the mobile phones and other electronic devices by taking money from each one Rs.100/- for loading?

10.Point No.(i):-

PW.1 deposed that on 17.09.2016 at 04.00 pm., he along with LW.2/D.

Suribabu,PoliceConstableofRajamPoliceStationand

PW.3/B.V.Satyanarayana, Head Constable of Rajam Police Station, conducted raids on the mobile centre of accused,located in NTR Complex, Rajam, under the style of Vivek Cell Point, as accused were exhibiting pornography videos to young guys. On seeing police two young guys fled away. On that PW.3 caught hold the accused and interrogated. On which, he voluntarily admitted that he stored pornography videos in his computer and exhibit to customers. The accused is also loading pornography videos into the mobile phones and electronic devices by taking Rs.100/-. At the time of raid also he was exhibiting videos to young guys. On that PW.3 opened the system with the help of LW.2 and found F drive containing QQ movies, New folder (2) and New folder wherein there is Suresh folder, containing name as 12121212 and containing 29 videos files. They opened one file name in Bang bros.Com and found it to be a pornography video. Then, PW.3 seized Frontech fusion CPU, Samsung

Company Monitor, HCL Company Keyboard, LAP Care mouse and two speakers under the cover of occurrence report marked as Ex.P1. Ex.P1 is drafted by LW.2.

When PW.3 tried for mediators nobody came forward, as such, he arrested the accused at .5.30 pm.

11.PW.2 deposed that on 20.09.2016, he took case file from

PW.3/B.V.Satyanarayana, Head Constable of Rajam Police Station, verified the investigation on correct lines and file charge sheet in this case. While PW.3 deposed that on 17.09.2016 at 4.00 pm., he along with PW.1 and another conducted raids on the Mobile Center of accused located at NTR complex,

Rajam under the style of Vivek Cell Point as the accused was exhibiting pornography videos to young guys. On seeing them two young guys fled away.

On that, he caught hold the accused and interrogated. On which, he voluntarily admitted that he stored pornography videos in his computer and exhibit to 4 CC.229 of 2016, dt:06.03.2018 customers. The accused is also loading videos into mobile phones in his electronic devises by taking Rs.100/-, at the time of raid also he was exhibiting videos to two young guys by provoking sexual desire. He opened the system with the help of LW.2 and found F drive containing QQ movies, new folder (2) and new folder wherein, there is Suresh Folder containing name as 12121212 and containing twenty video files. They opened one file name in bangbros.com and found it to be a pornography video and he seized MOs.1 to 5 under the cover of

Ex.P1. He tried to secure mediators. But, none came forward. As such, he went to police station along with accused and MO.s and registered the case as

Cr.No.187/2016 for the offence under sections 292 IPC and section 4(a) r/w 6 of

Indecent representation of Women (Prohibition Act,1986) and sent Original FIR to court and copies to the concerned. Ex.P3 is the First Information Report. He released accused on station bail. Thereafter, he handed over the case file to

PW.2 for further investigation in this case.

12.A careful scrutiny of the evidence of PWs.1 to 3 goes to show that PWs.1 & 3 along with another conducted raid in the cell point of accused and found obscene videos in the computer. They has not followed the mandatory procedure u/Sec.100 Cr.P.C at the time of search of the shop. They has not secured any independent mediator present at the scene of offence though the scene of offence is a busy locality. They stated that two guys who were watching the videos fled away. They were not caught by the police officials to prove that they were being provoked by the accused to have sexual desire. Further, the witnesses who are examined are only the police officials who are interested to secure conviction of the accused. There are no other witness examined by the prosecutionto prove that the accused loaded videos into mobile phones and other electronic devices. Further, there are some inconsistencies in the cross- examination of PWs.1 &3. The police officials has not examined any shop owner beside the shop of the accused. Thus, the evidence available on record shows that there is inconsistency in the evidence of PWs1 &3 and further their evidence cannot be believed as they are only the police officials in the absence of independent witnesses and further Sec.100 Cr.P.C procedure is not followed by the investigating officer which is mandatory at the time of seizure,as such this court is of the view that the prosecution has failed to prove that the accused has loaded pornography videos into his computer and is displaying to the young guys and further loading them into the mobile phones and other electronic devices by taking money from each one Rs.100/- for loading and as such the accused is entitled for an order of acquittal. Accordingly, point is answered.

5 CC.229 of 2016, dt:06.03.2018

In the result, the accused is found not guilty for the offence punishable under sections 292 of Indian Penal Code and section 4(a) r/w 6 of Indecent

Representation of Woman (Prohibition Act) – 1986,accordingly he is acquitted under Section 248(1) Code of Criminal Procedure. The accused shall execute bond for an amount of Rs.5,000/- by undertaking to appear before the Appellate

Court, if any appeal is preferred against him in compliance with Section 437(A) of

Code of Criminal Procedure. MOs.1 to .5 shall be retained with the accused after the expiry of appeal time.

Typed to my dictation, by the Stenographer, corrected and pronounced by me in open Court on this the 6th day of March, 2018.

JUDICIAL MAGISTRATE OF I CLASS

PONDURU.

FAC. JUDICIAL MAGISTRATE OF I CLASS

RAJAM.

Appendix of Evidence Witnesses Examined For Prosecution: PW.1:P. Srinivasarao, Police Constable of Rajam PS. PW.2:S. Sankararao, Inspector of Police, VR Branch attached to Taskforce Excise at Visakhapatnam. PW.3:B.V.Satyanarayana, Head Constable, Polaki PS.

For Defence:None Documents Marked

For Prosecution: Ex.P1/07.02.2018: The occurrence report dated 17.09.2016 Ex.P2/21.02.2018: Original FIR dated 17.09.2016.

Material Objects: MO.1: Frontech Fusion CPU. MO.2: Samsung Company Monitor. MO.3 : HCL Company Keyboard. MO.4: LAP Company Mouse. MO.5: two speakers

JUDICIAL MAGISTRATE OF I CLASS

PONDURU.

FAC. JUDICIAL MAGISTRATE OF I CLASS

RAJAM 6 CC.229 of 2016, dt:06.03.2018

FORM NO.71 Calendar & Judgment (for use in cases where there is one accused person)

DISTRICT OF SRIKAKULAM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, RAJAM

DATE OF OFFENCE:17/09/2016REPORT OR 17/09/2016 COMPLAINT: APPREHENSIONOF---RELEASE ON BAIL:--- ACCUSED: REMAND OF ACCUSED:---

COMMENCEMENTOF19/07/2017CLOSE OF TRIAL:26/02/2018 TRIAL: SENTENCE OR ORDER:06/03/2018 EXPLANATION OF DELAYNon production of the witness in time by the complainant. AND REMARKS: JUDGMENT IN C.C:229 of 2016 Cr.No. 187/2016 COMPLAINANT:The State Represented by the Inspector of Police, Rajam Police Station.

NAME, AGE, FATHER’SJillella Bhaskar alias Bhaskararao, S/o. Gurumurthy, aged 30 years, Telaga by NAME,RELIGION,caste, R/o. Kancharaveedhi, Rajam Town and Mandal, Srikakulam District.

CALLING,RESIDENCE

AND TALUK OF THE

ACCUSED: OFFENCE:under sections 292 of Indian Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) – 1986. Sec.292 of IPC:Evidence to officers of the Mint of Indian Penal Code. FINDING:Found not guilty SENTENCE: In the result, the accused is found not guilty for the offence punishable under sections 292 of Indian Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) – 1986,accordingly he is acquitted under Section 248(1) Code of Criminal Procedure. The accused shall execute bond for an amount of Rs.5,000/- by undertaking to appear before the Appellate Court, if any appeal is preferred against him in compliance with Section 437(A) of Code of Criminal Procedure. MOs.1 to .5 shall be retained with the accused after the expiry of appeal time.

DATE OF RECEIPT FROM06/03/2018 THE MAGISTRATE: JUDL. MAGISTRATE OF 1ST CLASS RAJAM To The Hon’ble 1 st Addl. District Judge, Srikakulam Calendar Case No.229/2016 Date of Judgment:06/03/2018 Date of Dispatch of Calendar: Date of Receipt: Remarks of 1st ADJ, Srikakulam: Copy to the Superintendent of police, Srikakulam

1 CC.228 of 2016, dt:06.03.2018

IN THE COURT OF JUDICIAL MAGISTRATE OF 1 ST CLASS, RAJAM

Present: Sri. ShaikReyaz, Judl.Magistrate of 1st Class, Ponduru. FAC. Judl. Magistrate of 1st Class, Rajam.

Tuesday, this the 06th day of March, 2018

Calendar Case No.228 of 2016

Between:

The State Represented by the Inspector of Police, Rajam Police Station. … Complainant. And: Cheekati Trinadharao, S/o. Laxmanarao, aged 26 years, K. Velama by caste, R/o. Cheekatipeta Village, TherlamMandal, Vizianagaram District. …Accused

This case coming on 28/02/2018 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and Sri. K.

Ramana Murthy, Advocate, for the accused and upon hearing both sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The then Inspector of Police, Rajam Police Station, laid charge sheet against the accused for the offence punishable under sections 292 of Indian

Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) - 1986 in Cr.No.185/2016 of Rajam Police Station.

2.The brief averments of the charge sheet are that on 17.09.2016 at about 04.00 pm., on credible information LW.3/S. Sankararao, Inspector of

Police,Rajam PS, conducted raids with assistance of LW.2/V. Ramakrishna,

Constable of Rajam PS and LW.3/S. Sankararao, Inspector of Police, Rajam PS, on the mobile centre of accusedCheekatiTrinadhalocated in NTR Complex,

Rajam Town on the style of Srinivasa Cell Point while the accused was exhibiting pornography videos to young guys. On seeing police, the two young guys fled away from cell point, on that LW.3/S. Sankararao, Inspector of Police, Rajam PS, caught the accused, interrogated him, who on interrogation voluntarily admitted that he stored pornography videos in his computer system and exhibiting to the customers who approached him,which led to provoking sexual desires and thirst.

On the orders placed by the customers, the accused load pornography videos into the mobile phones and other electronic devices by taking money from each one Rs.100/- for loading. While on 17.09.2016 at 04.00 pm., while the accused was exhibiting pornography videos to the two young guys, he was nabbed by the police. Then LW.3/S. Sankararao, Inspector of Police, Rajam PS,opened the 2 CC.228 of 2016, dt:06.03.2018 system with the assistance of LW.1, found there are 10 drives in CPU in which one Down loaded folder was found which iscontaining one pornography videos folder in the name as Bad Teachers CDI-X videos.com. When it was playing with

VLC Media Player, it has displayed with the title of 3RD Films Presents Degrees

Bad Teachers in which one male and female person participated in sexual intercourse nakedly in various positions which is to be provoked sexual desires and thrust. Then LW.3/S. Sankararao, Inspector of Police, Rajam PS seized 1)

Dell Company made L.C.D Monitor, 2) Enter Company made Keyboard, 3)

Microsoft Mouse, 4) Zebronic CPU under cover of occurrence report as none came forward to stand as mediators and arrested the accused at his shop at 05.00 hrs., under the cover of occurrence report. Basing on the occurrence report, LW.3/S. Sankararao, Inspector of Police, Rajam PS, registered a case and investigated into. After completion of the investigation, charge sheet was laid against the accused. Hence, this case.

3.The case is taken on file for the offence punishable u/Sec.292 of Indian

Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) – 1986.

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

5. Heard. The accused was examined under section 239 Code of Criminal

Procedure. Charges under sections 292 of Indian Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) - 1986 were framed against the accused, read over and explained to him in Telugu, having understood the same, he denied the offence and claimed to be tried.

6. In order to substantiate the contention of the prosecution, it got examined

P.W.1 and P.W.2, exhibited Exs.P1 and P2 and M.Os.1 to 4.

7.After completion of the prosecution evidence, the accused was examined under section 313 of Code of Criminal Procedure. All the incriminating material available in the testimonies prosecution witnesses is explained to the accused in

Telugu, having under stood the same he denied the same and reported no defence evidence.

8.Heard, the both sides.

3 CC.228 of 2016, dt:06.03.2018

9.In view of the rival contentions now the point for determination is:-

Whether the prosecution is able to establish that the accused loaded pornography videos into his computer and is displaying to the young guys and further loading them into the mobile phones and other electronic devices by taking money from each one Rs.100/- for loading?

10.Point No.(i):-

PW.1 deposed that on 17.09.2016 at 4.00 pm., he along with LW.2/V.

Ramakrishna, Police Constable of Rajam Police Station and LW.3/S.

Sankararao, Inspector of Police, Rajam Police Station, conducted raids on the mobile centreof the accusedlocated in NTR Complex, Rajam, under the style of

Srinivasa Cell Point, as the accused was exhibiting pornography videos to young guys. On seeing police two young guys fled away. On that PW.2, Inspector of

Police, Rajam Police Station, caught hold the accused and interrogated. On which, he voluntarily admitted that he stored pornography videos in his computer and exhibit to customers. He also stated that the accused also loads pornography videos into the mobile phones and electronic devices by taking

Rs.100/-. At the time of raid also he was exhibiting videos to young guys. On verifying the computer they found one folder containing videos name as Bad

Teachers, CDI X Videos. As such they seized the Keyboard, Microsoft Mouse and Zebronic CPU under the cover of occurrence report marked as Ex.P1. He stated that when PW.2 tried for mediators nobody came forward, as such, he arrested the accused at 5.00 pm., PW.2 deposed in his evidence on the same lines as that of PW.1. andas such, he arrested accused at 5.00 pm., and brought the accused to the police station and registered the case in Cr.No.185/2016 u/sec.292 IPC and Sec.4(a) r/w 6 of Indecent representation of Woman (Prohibition Act) at 05.15 pm., he sent Original FIR to court and copies to all concerned. He also arrested the accused and released him on station bail.

11.A careful scrutiny of the evidence of PWs.1 & 2 goes to show that PWs.1 & 2 along with another conducted raid in the cell point of accused and found obscene videos in the computer. They has not followed the mandatory procedure u/Sec.100 Cr.P.C at the time of search of the shop. They has not secured any independent mediator present at the scene of offence though the scene of offence is a busy locality. They stated that two guys who were watching the videos fled away. They were not caught by the police officials to prove that they were being provoked by the accused to have sexual desire. Further, the witnesses who are examined are only the police officials who are interested to secure conviction of the accused. There are no other witness examined by the 4 CC.228 of 2016, dt:06.03.2018 prosecution to prove that the accused loaded videos into mobile phones and other electronic devices. Further, there are some inconsistencies in the cross- examination of PWs.1 & 2. The police officials has not examined any shop owner beside the shop of the accused. Thus, the evidence available on record shows that there is inconsistency in the evidence of PWs1 & 2 and further their evidence cannot be believed as they are only the police officials in the absence of independent witnesses and further Sec.100 Cr.P.C procedure is not followed by the investigating officer which is mandatory at the time of seizure, as such this court is of the view that the prosecution has failed to prove that the accused has loaded pornography videos into his computer and is displaying to the young guys and further loading them into the mobile phones and other electronic devices by taking money from each one Rs.100/- for loading and as such the accused is entitled for an order of acquittal. Accordingly, point is answered.

12.In the result, the accused is found not guilty for the offence punishable under sections 292 of Indian Penal Code and section 4(a) r/w 6 of Indecent

Representation of Woman (Prohibition Act) – 1986, accordingly he is acquitted under Section 248(1) Code of Criminal Procedure. The accused shall execute bond for an amount of Rs.5,000/- by undertaking to appear before the Appellate

Court, if any appeal is preferred against him in compliance with Section 437(A) of

Code of Criminal Procedure. MOs.1 to .4 shall be retained with the accused after the expiry of appeal time.

Typed to my dictation, by the Stenographer, corrected and pronounced by me in open Court on this the 6th day of March, 2018.

JUDICIAL MAGISTRATE OF I CLASS

RAJAM

FAC JUDICIAL MAGISTRATE OF I CLASS

PONDURU.

Appendix of Evidence Witnesses Examined For Prosecution: PW.1:K. Ramakrishna, Police Constable of Rajam PS.

PW.2:S. Sankararao, Inspector of Police, VR Branch attached to Taskforce Excise at Visakhapatnam.

For Defence: None 5 CC.228 of 2016, dt:06.03.2018

Documents Marked

For Prosecution: Ex.P1/07.02.2018: The occurrence report dated 17.09.2016 Ex.P2/21.02.2018: Original FIR dated 17.09.2016.

For Defence: Nil

Material Objects:

MO.1/21.02.2018:Dell Company made LCD Monitor.

MO.2/21.02.2018:Enter Company Keyboard.

MO.3/21.02.2018:Microsoft Mouse.

MO.4/21.02.2018:Zebronic CPU

JUDICIAL MAGISTRATE OF I CLASS

RAJAM

FAC JUDICIAL MAGISTRATE OF I CLASS

PONDURU.

6 CC.228 of 2016, dt:06.03.2018

FORM NO.71 Calendar & Judgment (for use in cases where there is one accused person)

DISTRICT OF SRIKAKULAM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, RAJAM

DATE OF OFFENCE:17/09/2016REPORT OR 17/09/2016 COMPLAINT: APPREHENSIONOF---RELEASE ON BAIL:--- ACCUSED:

REMAND OF ACCUSED:---

COMMENCEMENT OF19/07/2017CLOSE OF TRIAL:21/02/2018 TRIAL: SENTENCE OR ORDER:06/03/2018 EXPLANATION OF DELAYNon production of the witness in time by the complainant. AND REMARKS: JUDGMENT IN C.C:228 of 2016 Cr.No. 185/2016 COMPLAINANT:The State Represented by the Inspector of Police, Rajam Police Station.

NAME, AGE, FATHER’SCheekati Trinadharao, S/o. Laxmanarao, aged 26 years, K. Velama by

NAME,RELIGION,

caste, R/o. Cheekatipeta Village, TherlamMandal, Vizianagaram District.

CALLING,RESIDENCE

AND TALUK OF THE

ACCUSED: OFFENCE:under sections 292 of Indian Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) – 1986. Sec.292 of IPC:Evidence to officers of the Mint of Indian Penal Code. FINDING:Found not guilty SENTENCE: In the result, the accused is found not guilty for the offence punishable under sections 292 of Indian Penal Code and section 4(a) r/w 6 of Indecent Representation of Woman (Prohibition Act) – 1986, accordingly he is acquitted under Section 248(1) Code of Criminal Procedure. The accused shall execute bond for an amount of Rs.5,000/- by undertaking to appear before the Appellate Court, if any appeal is preferred against him in compliance with Section 437(A) of Code of Criminal Procedure. MOs.1 to .4 shall be retained with the accused after the expiry of appeal time.

DATE OF RECEIPT FROM06/03/2018 THE MAGISTRATE: JUDL. MAGISTRATE OF 1ST CLASS RAJAM To The Hon’ble 1 st Addl. District Judge, Srikakulam

Calendar Case No.228/2016 Date of Judgment:06/03/2018 Date of Dispatch of Calendar: Date of Receipt: Remarks of 1st ADJ, Srikakulam:

Copy to the Superintendent of police, Srikakulam