Shaik Ziauddin

1

CALENDAR AND JUDGMENT

Calendar Case No.176/2017 tried by Judicial Magistrate of I Class, Palakonda, Srikakulam District. ------------------------------------------------------------------------------------------------------- Date of offencePrior to 12.06.2017 Report12.06.2017 Apprehension26.06.2018 Release on bailIssued notice u/S. 41-A of Cr.P.C Taken on file11.07.2017 Commencement of trial09.01.2019 Close of trial25.06.2019 Sentence or order28-06-2019

Explanation for the delay :This case is taken on file on 11.07.2017. Due to non production of prosecution witnesses trial commenced on 09.01.2019. P.Ws.1 to 4 were examined. Judgment

pronounced on 28.06.2019.

Name of the complainant:: The State Represented by Sub-Inspector of Police, Veeraghattam Police Station.

Crime No.:49/2017 Name of the accused::

1. Bevara Srinivasa Rao @ Srinu, S/o.late Appalaswamy, aged 31 years,

2. Bevara Ramesh, S/o.late Appalaswamy, aged 37 years,

3. Bevara Prameela, W/o.Ramesh, aged 33 years,

All are caste by T.Kapu, Vikrampuram Village of Komarada Mandal of Vizianagaram District. (Occupations of the accused are not mentioned in charge sheet) Offence : Sec.498-A of IPC : Husband or relative of husband of a woman subjecting her to cruelty. Sec. 3 & 4 of DP Act: Penalty for giving or taking dowry. Section 4 of D.P ActPenalty for demanding dowry

Finding:A.1 to A.3 are found not guilty.

Sentence:

In the result, the A1 to A3 are found not guilty for the offenses

punishable under Sections 498-A of Indian Penal Code and 3 and 4 of Dowry

Prohibition Act and they are acquitted under Section 248(1) of Code of

Criminal Procedure for the said offenses. The bail bonds of the accused shall

stand cancelled after lapse of appeal period. The accused executed bond for

an amount of Rs.5,000/- each by undertaking to appear before the Appellate

Court, if any appeal is preferred against them in compliance with Section

437(A) of Code of Criminal Procedure.

Sd/- Shaik Ziauddin

Judicial Magistrate of First Class,

Palakonda.

Copy submitted to the Hon’ble I Addl. District Judge, Srikakulam. Copy to the Superintendent of Police, Srikakulam.

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IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE,

PALAKONDA.

PRESENT: Sri. SHAIK ZIAUDDIN,

Judicial First Class Magistrate,

FRIDAY, This the Twenty eighth day of June,

TWO THOUSAND AND NINETEEN

(28.06.2019)

CALENDAR CASE No. 176/2017 CALENDAR CASE No. 176/2017

B e t w e e n :

State, rep. by the Sub-Inspector of Police, Veeraghattam Police Station.

... Complainant

A n d

1. Bevara Srinivasa Rao @ Srinu, S/o.late Appalaswamy, aged 31 years,

2. Bevara Ramesh, S/o.late Appalaswamy, aged 37 years,

3. Bevara Prameela, W/o.Ramesh, aged 33 years,

All are caste by T.Kapu, Vikrampuram Village of Komarada Mandal of Vizianagaram District.

... Accused.

This case is coming before me on 25-06-2019 for final hearing in the presence of Assistant Public Prosecutor, Advocate for prosecution and Sri K.Anand Kumar, Counsel for Accused and upon hearing on both sides and the matter having stood over for consideration till today, this court delivered the following:-

J U D G E M E N T

1.The accused A1 to A3 are arraigned before the Court for the offences punishable under Section.498-A of Indian Penal Code and Sections 3 and 4 of

Dowry Prohibition Act.

2.The brief averments of the prosecution case are as follows :-

The marriage of Bevara Mangamma (LW.1) was consummated with

A.1 at about 8 years back. At the time of the marriage, the parents of Bevara

Mangamma (LW.1) ie., Vana Simhanchalam, Vana Sanyasamma (LWs 2 and 3) gave an amount of Rs.1,00,000/- towards dowry to the accused A1. During their wedlock, Bevara Mangamma (LW.1) begot with one male son. After the birth of son, the accused A1 to A.3 looked well the Bevara Mangamma (LW.1) and thereafter on the instigation of accused A2 and A.3, A1 harassed Bevara Mangamma (LW.1) both mentally and physically for additional dowry and also A.2 and A.3 were brutally 3 harassed Bevara Mangamma (LW.1). Several times, on interference of elders ie.,

Vana Simhanchalam Naidu, Nerothu Jagannadham (LWs 4 and 5) some compromises have been made, but the accused did not heed their words and continued the harassment to Bevara Mangamma (LW.1) and finally about 1 year back, they necked out Bevara Mangamma (LW.1) from their house and did not take back so far.

Basing on the report of Bevara Mangamma (LW.1), B.Ramarao (LW.6)-Sub Inspector of Police, Veeraghattam P.S., registered a case in Crime

No.49/2017, U/Sec.498-A of Indian Penal Code and Sections.3 and 4 of Dowry

Prohibition Act on 12.06.2016 at 01.00 p.m. and he investigated into. During the course of investigation, B.Ramarao (LW.6)-S.I. of Police examined as many as witnesses and recorded their detailed statements in his part-II C.D., On 28.06.2016

S.I. of Police (LW.6-B.Ramarao) served notice u/Sec.41-A of Cr.P.C. to accused and obtained written explanation from the accused and after completion of investigation,

B.Ramarao (LW.6)- Sub-Inspector of Police, filed charge sheet against the accused for the offence under Section.498-A of Indian Penal Code and Sections 3 and 4 of

Dowry Prohibition Act. Hence, the charge sheet.

3.The case is taken cognizance by the Court for the offences punishable under Section.498-A of Indian Penal Code and Sections 3 and 4 of Dowry

Prohibition Act against the accused A1 to A3.

4.The Accused A1 to A3 were present before the Court, copies of the documents were furnished to them, as contemplated under Section 207 of Code of

Criminal Procedure and they were examined under Section.239 of Code of Criminal

Procedure. Charges for the offences under Section.498-A of Indian Penal Code and

Sections 3 and 4 of Dowry Prohibition Act have been framed against accused and read over and explained the contents of charges to them in Telugu in which they pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, P.Ws. 1 to 4 were examined and Exs.

P1 and P2 are marked. The evidence of Lw3 , Vana Sanyasamma was given up by the learned APP as her evidence is corroborative with PW2 and the evidence of LW 4 /Vana Simhachalam is closed as he died while pending of trial.

6.After closure of prosecution evidence, the accused A1 to A3 were examined under Section 313 of Code of Criminal Procedure. The incriminating material adduced by prosecution has been read over and explained to them in 4

Telugu, where they denied the same and reported no evidence in defence on their behalf. Ex.D1 was marked on their behalf.

7.Heard both sides.

8. The learned A.P.P argued that the evidence of prosecution witnesses P.Ws 1 to 4 establish that A1 harassed P.W1 by demanding additional dowry from her and sent her away from their house on the instigation of A2 and A3 and so their evidence clinchingly prove that A1 to A3 harassed P.W1 for additional dowry and that the prosecution proved its case beyond all reasonable doubt and prayed to convict the accused 1 to 3 for the offences alleged against them.

The learned counsel for accused argued that the evidence of

P.Ws 1 to 4 the prosecution witnesses is not consistent and corroborating with each other and as per the admissions of prosecution witnesses P.W1 voluntarily left A1 and went to her parents house and since then she never turned to A1 to lead conjugal life and no incident took place as deposed by P.W1 and so it creates a serious doubt over the case of prosecution and prosecution failed to establish that

A1 to A3 harassed P.W1 for any additional dowry beyond all reasonable doubt and prayed to acquit the accused for the offences alleged against them.

9. Now the point for determination is :-  Whether the prosecution proved the guilt of the accused for the offence punishable under Section.498-A of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act beyond all reasonable doubt?

P O I N T :-

10.To prove its case, prosecution examined P.Ws 1 to 3 and got marked Exs.P1 and P2.

11. P.W1 is the complainant and injured . PW2 is father of Pw1. Pw3 is an elder. Pw4 is investigation officer.

12. Ex.P1 is the Report of PW.1 given to Police. Ex.P2 is the First

Information Report.

13. It is the case of prosecution that P.W1 and A1 are wife and husband and A1 to A3 used to harass PW1 physically and mentally by demanding additional dowry from her and she raised dispute before elders but A1 to A3 did not hear their 5 words and A1 harassed PW1 at the instigation of A2 and A3 and PW1 gave complaint to police.

14.It is the case of defence that accused 1 to 3 did not commit any offense and P.W1 voluntarily left A1 and went to her parents house and since then she never turned to A1 to lead conjugal life and a false case was filed against them and they were falsely implicated in this case.

15.Now to prove the offense under Section 498–A of Indian Penal Code, the prosecution must prove :-

(i)A woman must be married, ii)she must be subjected to cruelty cruelty must be of the nature of any willful conduct as was likely to drive the woman to commit suicide or cause grave injury or danger to her life, limb or health either mental or physical and the harassment of such woman was with a view to coerce her to meet any unlawful demand for property or valuable security and the woman was subjected to such cruelty by husband or any relative of the husband.

And to prove the offences under sections 3 and 4 of Dowry Prohibition Act prosecution must prove that accused took dowry from P.W1 and also demanded

additional dowry from P.W1.

16.Admittedly there is no dispute with the respect to the relationship as wife and husband between A1 and P.W1. So, it is established by the prosecution that P.W1 is the wife of A1. Now, the prosecution must prove that P.W1 was subjected to cruelty by accused which is of such a nature as was likely to drive P.W1 to commit suicide or accused caused grave injury or danger to the life, limb or health of P.W1 with a view to coerce her to meet unlawful demand for any property or valuable security and accused demanded additional dowry from her.

17.Now, to prove the offense under section 498-A of Indian Penal Code, prosecution must establish that A1 to A3 subjected P.W1 to cruelty and the cruelty must be of the nature of any willful conduct as was likely to drive the woman to commit suicide or cause grave injury or danger to her life, limb or health either mental or physical and the harassment of such woman was with a view to coerce her to meet any unlawful demand for property or valuable security and the woman was subjected to such cruelty by husband or any relative of the husband.

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18. Now, the prosecution must prove that parents of P.W1 gave dowry to

A1 and A1 to A3 subjected P.W1 to cruelty and harassed her by demanding

additional dowry from her and sent her away from their house.

19. PW1 deposed that at about 7 years and 7 months ago her marriage was held with A1 , at the time of her marriage her parents gave dowry of Rs.1 lakh and sari samans worth of Rs.50,000/- to A1 , after the marriage she joined with A1 to lead conjugal life and they lived happily till the birth of their child , there after A1 to A3 started harassment to her both physically and mentally and to bring additional dowry of Rs.1.00 lakhs , then she expressed the inability of her parents , due to which they did not provide food and cloths and the accused used to beat her , then she informed the same to her parents , then they placed the matter before elders who are PW3 and others and they advised accused to look after PW1 well, then A1 took care about her for some time and thereafter again started harassment both physiclly and mentally and necked her out from their house, due to which she presented Ex P1 report to the police.

20. PW2 who is the father of PW1 deposed that at about 7 years and 7 months ago marriage of PW1 was held with A1 , at the time of marriage he gave dowry of Rs.1 lakh and sari samans worth of Rs.50,000/- to A1 , after the marriage she joined with A1 to lead conjugal life and they lived happily till the birth of their child , there after A1 to A3 started harassment to Pw1 both physically and mentally and to bring additional dowry of Rs.1.00 lakhs , then she expressed the inability of him , due to which they did not provide food and cloths and the accused used to beat her , then she informed the same to him , then he placed the matter before elders who are PW3 and others and they advised accused to look after PW1 well, then A1 took care about her for some time and thereafter again started harassment both physiclly and mentally and necked her out from their house, due to which Pw1 presented Ex P1 report to the police.

21. PW3 who is elder of the dispute between Pw1 and accused deposed that marriage of PW1 was held with A1 before elders , at the time of marriage her parents gave dowry of Rs.1 lakh to A1 on their demand , after the marriage she joined with A1 to lead conjugal life and they lived happily for 3 years and blessed with a child , there afeter A1 started harassment to Pw1 by demanding additional dowry on the instigation of A2 and A3 and beat her indisciminately , then she informed the same to him and Lw4 Vana Simhachalam , then they advised accused 7 to look after PW1 well, but A1 did not heed their words and A1 necked her out from his house, since then she has been residing along with her child at her parent's house. But during course of cross examination PW3 admitted that he was not present at the time , parents of Pw1 presented dowry to A1, and the dispute between Pw1 and A1 arose as , parents of Pw1 demanded him to come as illatum son in law , then A1 refused the same and after the marriage of PW1 with A1 , A1 and A2 living separately with their wives in separate houses, accused never demanded any additional dowry to Pw1 at any time and he advised both Pw1 and

A1 to live happily but Pw1 did not heed his words and in the absence of A1 , she voluntarily left the matrimonial home and went to her parent's house . It seems Pw3 deposed totally contrary to his own evidence. In these circumstances the evidence of Pw3 does not believable and trustworthy as during his chief examination he deposed that A1 to A3 harassed Pw1 both physically and mentally and demanded

additional dowry , but during course of cross examination he deposed that accused

never harassed Pw1 at any time and never demanded any additional dowry and

Pw1 did not heed his words. Thus , it is held that the evidence of Pw3 is no way useful to the case of prosecution to prove the guilt of the accused as alleged by the prosecution against accused.

22. As can be seen from the evidence of Pw4 who is a investigation officer and he deposed that , Pw1 presented a written report to him , basing on it , he registered it and examined and recorded detailed statements of witnesses and after completion of investigation he filed charge sheet. So on perusal of evidence of PW4 it is established that , he conducted investigation in this case and after completion of investigation filed charge sheet. So the prosecution proved through the evidence of

PW4 that he conducted investigation herein, but the evidence of Pw4 useful to the case of prosecution for limited extent only to prove that conducting of investigation.

23.So, as can be seen from the evidence of P.W1 and Ex P1 contents, it shows that A1 to A3 harassed P.W1 both physically and mentally by demanding

additional dowry and sent her away from their house and she raised dispute before

elders and they sent her along with accused and again accused started harassment to bring additional dowry . It is the case of accused that , they never demanded any

additional dowry to Pw1 and never harassed her both physically and mentally , when

Pw2 asked A1 to come as illetum son in law to his house , then A1 refused the same , then P.W1 presented a false case against accused in order to harass them. To prove the contention of Pw1 , there is no evidence on record except evidence of

Pw2. Admittedly Pw2 is father of Pw1, so he is interested witness in this case , the 8 contention of the prosecution is that the accused harassed Pw1 both physically and mentally at their house. To prove the same except the evidence of Pw1 there is no other evidence or material on record before the court. Moreover prosecution did not examine any neighbours of the houses of accused. Pw1 deposed during her chief examination that accused beat her indiscriminately. Further she admitted during her cross examination that her parents are not having capacity to pay dowry amount to

A1 at the time of marriage as her parents are not having landed properties. But in her chief examination and Ex P1 report, she stated her parents presented 1,00,000/- dowry to A1. It creates very serious doubt over the case of prosecution, as her parents are not having capacity to pay dowry amount, and the source of such amount also not mentioned by prosecution. Moreover Pw1 deposed that the accused beat her indiscriminately both physically and mentally, if really, accused had beaten her indiscriminately , she would have admitted in the hospital and got treatment, but on perusal of evidence of prosecution , there is no such material to prove that Pw1 got medical treatment , due to physical harassment and mental torture made by accused to Pw1. In the absence of any medical bills and medical certificates , the version of PW1 is not believable and trustworthy. Further PW1 stated in Ex P1 report that her parents presented Rs. .1,00,000/- to A1 , except this she did not state anything , but in her chief examination affidavit , she deposed that her parents presented Rs. .1,00,000/- and sarisamans worth of Rs. .50,000/- , it seems a serious doubt created in the mind of the court , that whether really, the parents of Pw1 presented sarisamans to A1 at the time of Marriage, she would have disclose the same in her Ex P1 report, but she did not disclose the same in her report. So the evidence of Pw1 is doubtful one. Moreover Pws1 and 2 deposed that they placed the dispute before elders, but as can be seen from the evidence of Pw3 who is said to be elder of the disputes between Pw1 and A1, he deposed totally contrary to the evidence of Pws1 and 2 as already discussion made supra, he did not support the case of prosecution, in these circumstances the evidence of Pw1s and 2 are not believable and trustworthy and they are also interested witnesses in this case.

24.Now, the prosecution must prove that A1 to A3 took dowry from P.W1 and also demanded additional dowry from P.W1, to prove the alleged offences under section 3 and 4 of Dowry Prohibition Act. P.W1 deposed that they gave Rs 1,00,000/- dowry, and Rs 50,000/- worth of saresaman to A1 at the time of marriage. P.W2 also deposed that same . Further PW1 stated in Ex P1 report that her parents presented

Rs. .1,00,000/- to A1 , except this she did not state anything , but in her chief examination affidavit , she deposed that her parents presented Rs. .1,00,000/- and 9 sarisamans worth of Rs. .50,000/- , it seems a serious doubt created in the mind of the court , that whether really, the parents of Pw1 presented sarisamans to A1 at the time of Marriage, she would have disclose the same in her Ex P1 report, but she did not disclose the same in her report. So the evidence of Pw1 is doubtful one. Further

Pw1 categorically admitted that her parents not having capacity to present the dowry as they are not having landed properties. Moreover the evidence of prosecution did not establish the source of 1,00,000/- to Pw2 to present the same to

A1 at the time of marriage. Further, no evidence was placed before the court to show that P.W2 sold any land to give dowry to A1. So, the evidence of P.Ws 1 and 2 that

P.W2 sold land to give dowry to A1 becomes doubtful. Further, no dowry and presentations list was filed before the court to show that any dowry was given to A1 and thereby it creates a very serious doubt over their evidence with respect to giving of dowry and presentations by P.W2 to accused and so their evidence is held to be doubtful and not trustworthy. So, when there is no categorical evidence on record to show that any dowry or presentations were given to accused by P.W2 and when no evidence was placed before the court to show that P.W2 sold any land to give dowry to A1 and when no dowry or presentations list was filed by the prosecution before the court, it creates a very serious doubt over their evidence with respect to giving of dowry and presentations to A1 at the time of marriage. Hence, it is held that prosecution failed to establish and prove that P.W2 gave any dowry or presentations to A1 at the time of marriage beyond all reasonable doubt. Moreover, there is no evidence on record to show that accused demanded any additional dowry from

P.W1. The evidence of P.W4 the Investigating Officer is not useful to the case of prosecution as he is not an eye witness to the alleged offences against the accused.

Though, Ex D1 was marked on behalf of defence in the evidence of P.W1. It is not useful to the case of defence as it is not a material contradiction which effects the root of the prosecution case. Hence, it is held that prosecution failed to establish that A1 to A3 have committed any offence under sections 3 and 4 of Dowry

Prohibition Act beyond all reasonable doubt.

25.Further, there is no categorical evidence on record except the interested evidence of P.Ws 1 and 2 to show that accused 1 to 3 demanded any

additional dowry from P.W1 and when their evidence is held to be not trustworthy

and when the evidence of P.Ws 1, 2 and 3 is contrary and conflicting with each other and when there is no corroboration in their evidence, it is held that there is no ring of truth in the evidence of P.Ws 1 to 3.

26. Now, on considering the entire evidence of prosecution, when P.W1 failed to establish that A1 to A3 harassed and demanded additional dowry from her and 10 that they sent her away from their house and that she raised dispute before elders against accused and that accused 1 to 3 took any dowry or demanded any dowry from P.W1 and when P.W1 failed to prove that A1 harassed her both physically and mentally , it cannot be said that accused have committed any offenses punishable under section 498-A of Indian Penal Code and when prosecution failed to prove that any dowry was given to A1 at the time of marriage and that A1 to A3 demanded any

additional dowry from P.W1, it is cannot be said that A1 to A.3 committed any

offences under sections 3 and 4 of Dowry Prohibition Act. Further,there is no categorical evidence to show that accused harassed P.W1 or subjected her to cruelty by demanding any additional dowry or harassed her demanding additional dowry, which subjected her to cruelty or mental agony. There is no whisper in the entire evidence of prosecution, to show that P.W1 has undergone any mental agony or cruelty due to the acts of accused and there is also no evidence on record to show that due to the harassment by accused, it induced P.W1 to commit suicide or has resulted in grave danger to her life, limb or health either mental or physical. So, when there is no such harassment meted out by P.W1 at the hands of accused as mentioned in the explanation to section 498-A of Indian Penal Code, it cannot be said that accused harassed P.W1 so as to attract the ingredients for the offense punishable under section 498-A of Indian Penal Code. Hence, in the above circumstances it is held that prosecution failed to establish the necessary ingredients for the offenses punishable Under Section 498-A of Indian Penal Code and sections 3 and 4 of Dowry Prohibition Act against accused 1 to 3 beyond all reasonable doubt. Hence, accused 1 to 3 are entitled for benefit of doubt and entitled for acquittal. Accordingly the point is answered.

27. In the result, the A1 to A3 are found not guilty for the offenses

punishable under Sections 498-A of Indian Penal Code and 3 and 4 of Dowry

Prohibition Act and they are acquitted under Section 248(1) of Code of

Criminal Procedure for the said offenses. The bail bonds of the accused shall

stand cancelled after lapse of appeal period. The accused executed bond for

an amount of Rs.5,000/- each by undertaking to appear before the Appellate

Court, if any appeal is preferred against them in compliance with Section

437(A) of Code of Criminal Procedure.

Typed to dictation by the Typist, corrected and pronounced by me in Open Court, on this the 28th day of June, 2019.

Sd/- Shaik Ziauddin

J.F.C.MAGISTRATE,

PALAKONDA.

11

Appendix of Evidence

Witnesses Examined

FOR PROSECUTION FOR DEFENCE

PW.1 : Bevara Mangamma. - - - None - - - PW.2 : Vana Simhanachalam. PW.3 : Neelirouthu Jagannadham. PW.4 : B.Ramarao, Investigation Officer.

Documents marked :-

For Prosecution :-

Ex.P1 /12.06.2017: Report of PW.1 given to Police. Ex.P2 /12.06.2017: First Information Report.

For Defence :

Ex.D1/ -- : Some relevant portion of Sec.161 Cr.P.C. Statement of PW.2.

Material Objects :- - - - Nil - - -

Sd/- Shaik Ziauddin

J.F.C.MAGISTRATE,

PALAKONDA.

1

CALENDAR AND JUDGMENT

Calendar Case No.09/2019 tried by Judicial Magistrate of I Class, Palakonda, Srikakulam District. --------------------------------------------------------------------------------------------- Date of offence29.12.2017

Report29.12.2017

Apprehension of Accused29.12.2017

Release on bail of accused41-A Cr.P.C notice

Commencement of trial07.05.2019

Close of trial 26.06.2019

Sentence or order27.06-2019

Explanation for the delay:there is no delay in disposal

Name of the complainant:: State represented by the Inspector of Police, Prohibition and Excise, Palakonda. Crime No.: 606/2017

Name of the accused::

1. Bandi Bujji, W/o. Late Mahesh , age 39 years, Relli by caste, R/o B.C Colony, Veeragattam Village and Mandal, Srikakulam district.

2. Neelapu Sundari, W/o. Ramana , age 38 years, Relli by caste, R/o B.C Colony, Veeragattam Village and Mandal, Srikakulam district. (Occupation of the accused is not mentioned in the charge sheet)

Offence: U/Ses 7(A) r/w 8(e)of APA Act: Illegal transportation of I.D. liquor

FindingA.1 and A.2 are found not guilty.

Sentence

In the result, A.1 and A.2 are found not guilty for the offense

punishable under Sections 7(A) read with 8(e) of Andhra Pradesh Prohibition

Act and they are acquitted under Section 248(1) of Code of Criminal Procedure

for the said offense. The MO.s 1 and 2 shall be destroyed after appeal time is

over. The bail bonds of the accused shall stand canceled . The accused

executed bond for an amount of Rs.5,000/- each by undertaking to appear

before the Appellate Court, if any appeal is preferred against them in

compliance with Section 437(A) of Code of Criminal Procedure.

Sd/- Shaik Ziauddin

Judicial Magistrate of First Class,

Palakonda.

Copy submitted to the Hon'ble I ADJ, Srikakulam.

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IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE

PALAKONDA

PRESENT: Sri. SHAIK ZIAUDDIN,

Judicial First Class Magistrate,

Thursday, the 27 th day of June,

TWO THOUSAND AND NINETHEEN

(27.06.2019)

CALENDAR CASE NO.09/2019 CALENDAR CASE NO.09/2019

B e t w e e n :

State :- Inspector of Police, Prohibition and Excise, Palakonda.

. . .Complainant

A n d

1. Bandi Bujji, W/o. Late Mahesh , age 39 years, Relli by caste, R/o B.C Colony, Veeragattam Village and Mandal, Srikakulam district.

2. Neelapu Sundari, W/o. Ramana , age 38 years, Relli by caste, R/o B.C Colony, Veeragattam Village and Mandal, Srikakulam district. . . . Accused

This case is coming before me on 26.06.2019 for final hearing in the presence of Assistant Public Prosecutor, Advocate for prosecution and of Sri U.Murali Mohan Rao , advocate for Accused and the matter having stood over for consideration till today, this court delivered the following:-

J U D G M E N T

1. The accused are arraigned before the court for the offence punishable under sections 7(A) read with 8(e) of Andhra Pradesh Prohibition Act.

2. The brief averments of the prosecution case are :-

On 29.12.2017 at 04.30 PM the Prohibition and Excise sub-

Inspector,Palakonda along with his staff conducted raid and proceeded to B.C

Colony of Veeragattam Village and found the above accused one behind another with possession of heavy black plastic can and rubber tube on their head and right hand , on seeing them they tried to escape , on that the sub-inspector detained them in the presence of mediator and on verification they found the can and tube in possession of accused is containing 40 liters of ID Arrack and on interrogation accused stated thier name and identity particulars and the Inspector deputed one

Constable P.Ramesh, to secure another mediator but in vain and he arrested the accused and seized the contraband from them and drawn samples for analysis purpose under the cover of occurrence report and returned to the Palakonda,

Prohibition and Excise, Police Station along with accused and the seized property 3 and basing on the occurrence report the Inspector of Prohibition and Excise,

Palakonda, registered a case in Crime Number 606/2017 Under Sections 7(A) read with 8(e) of Andhra Pradesh Prohibition Act and released the accused after issuing notices under section 41-A of Code of criminal procedure and sent the sample for analysis purpose and after receipt of Chemical analysis report and destruction of the remaining contraband, after taking proceedings from the Deputy Commissioner and completion of investigation the Inspector filed charge sheet in this case.

3.The case is taken cognizance for the offense punishable under

Sections 7(A) read with 8(e) of Andhra Pradesh Prohibition Act.

4.On appearance of the accused before the Court, copies of the documents were furnished to them as contemplated under Section 207 of Code of

Criminal Procedure and they were examined under Section 239 of Code of Criminal

Procedure and a charge has been framed against accused for the offence under sections 7(A) read with 8(e) of Andhra Pradesh Prohibition Act and read over and explained the contents of the charge in Telugu to the accused and they pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, P.Ws 1 to 3 were examined and Exs.P1 to P 5 and Mos.1 and 2 were marked. The evidence of L.Ws 2,3 and 6, P.Ramesh,

B.Kurminayakulu, T.V.R Murthy was given up by A.P.P as their evidence is corroborative with evidence of PWS 1 and 2.

6.After closure of prosecution evidence, the accused were called upon to explain the incriminating circumstances appearing against them from the prosecution evidence as contemplated under Section 313 of Code of Criminal

Procedure and accused denied the same and reported no evidence in defense.

7.Heard both sides. Now the point for determination is :-  Whether the prosecution proved the guilt of the accused for the offences punishable under Sections 7(A) read with 8(e) of Andhra Pradesh

Prohibition Act beyond all reasonable doubt?

P O I N T :-

8.To prove its case, prosecution examined P.Ws 1 to 3 and got marked

Exs.P1 to P.5 and MO.s 1 and 2.

4

9.P.W1 is the investigation officer. P.W2 is the prohibition and

Excise S.I , ESTF . PW3 is mediator.

10.Ex.P1 is Occurrence Report. Ex.P2 is the First Information Report.

Ex.P3 is the Chemical Analysis Report. Ex.P4 is the D.C. Proceedings. Ex P5 is signature of PW3 on occurance report . M.Os 1 and 2 are Two Sample Bottles.

11.It is the case of the prosecution that on 29.12.2017 at 04.30 PM Pw1 along with his staff conducted raid and proceeded to B.C Colony of Veeragattam

Village and found the above accused one behind another with possession of heavy black plastic can and rubber tube on their head and right hand , on seeing them they tried to escape , on that he detained them in the presence of PW3 mediator and on verification they found the can and tube in possession of accused is containing 40 liters of ID Arrack and on interrogation accused stated thier names and identity particulars and the Inspector deputed one Constable to secure another mediator but in vain and he arrested the accused and seized the contraband from them and drawn samples for analysis purpose under the cover of Ex P1/ occurrence report and returned to the Palakonda, Prohibition and Excise, Police Station along with accused and the seized property and basing on the occurrence report PW1 registered a case Under Sections 7(A) read with 8(e) of Andhra Pradesh Prohibition

Act and released the accused after issuing notices sent the sample for analysis purpose and the remaining contraband after drawing samples was destroyed as per

Ex P4 proceedings and after receipt of Ex P3 analysis report P.W1 filed charge sheet in this case.

12.It is the case of defence that accused did not commit any offense and they were falsely implicated in this case for statistical purpose.

13.Now, to prove the offense under Sections 7 (A) read with 8 (e) of Andhra Pradesh Prohibition Act the prosecution must prove that P.Ws 1 to 3 and other staff found the accused in possession of ID Arrack, which is prohibited under the act.

14.At the outset, it is the case of prosecution that, on 29.12.2017 at 04.30

PM Pws1 and 2 along with his staff conducted raid and proceeded to B.C Colony of

Veeragattam Village and found the above accused one behind another with possession of heavy black plastic can and rubber tube on their head and right hand , on seeing them they tried to escape , on that he detained them in the presence of

PW3 mediator and on verification they found the can and tube in possession of accused is containing 40 liters of ID Arrack and on interrogation accused stated thier 5 names and identity particulars and the Inspector deputed one Constable to secure another mediator but in vain and he arrested the accused and seized the contraband from them and drawn samples for analysis purpose under the cover of Ex P1/ occurrence report . P.Ws 1 and 2 who are the Prohibition and Excise Sub

Inspectors deposed that on 29.12.2017 at 04.30 PM they and along with their staff conducted raid and proceeded to B.C Colony of Veeragattam Village and found the above accused one behind another with possession of heavy black plastic can and rubber tube on their head and right hand , on seeing them they tried to escape , on that they detained them in the presence of PW3 mediator and on verification they found the can and tube in possession of accused is containing 40 liters of ID Arrack and on interrogation accused stated their names and identity particulars and they deputed one Constable to secure another mediator but in vain and they arrested the accused and seized the contraband from them and drawn samples for analysis purpose under the cover of Ex P1/ occurrence report and released them on issuing notices under sections 41-A of Code of criminal Procedure Code and after completion of investigation and receipt of Ex P3 analysis report P.W1 filed charge sheet in this case after obtaining Ex. P.4 D.C. Proceedings for destruction of the seized property. Pw3 who is mediator of Ex P1 occurrence report, deposeed that on 29.12.2017 , excise police called him to the police station and obtained his signature on mediators report, but he does not know its contents, and police did not seize and arrest anyone in his presence. His signature was marked as exhibit P5 in

Ex P1 occurrence Report. It seems Pw3 did not support the version of the prosecution, thus , it is held that Pw1 did not secure any mediator and he only states stray statements as he secured PW3 and in his presence the accused were arrested and property was seized.

15.Now, to prove the offense Under Sections 7(A) read with 8(e) of

Andhra Pradesh Prohibition Act against accused, the evidence of P.Ws. 1 and 2 is relevant. As can be seen from the evidence of P.Ws.1 and 2, admittedly they are

Inspectors of Prohibition and Excise Department. So, Ex. P.1 which was recorded by Prohibition and Excise Inspector cannot be believed, to the extent of the confession said to be made by the accused, as a confession before a police officer is inadmissible in evidence. So, when P.Ws.1 and 2 are police officers their evidence has to be scrutinized with caution and see whether the arrest of accused and seizure of contraband from them was true and made as per the procedure prescribed under law.

16.In the cross examination of P.Ws 1 and 2 they admitted that the scene of offence is a busy locality and people are moving around near the scene of offence, but they did not call any persons to act as mediators. So, it shows it is a 6 busy locality, but they did not secure any persons to act as mediators. P.Ws 1 and 2 also deposed that they cannot tell the names of the persons whom they called to act as mediators. So, it shows that P.Ws 1 and 2 did not secure any mediators for the arrest of accused and seizure of contraband from them though available near the scene of offense. Further, no written summons were given to any persons to act as mediators as per P.Ws 1 and 2. So, the evidence of P.Ws 1 and 2 shows that they did not follow the procedure prescribed under Section 100 (4) Code of Criminal

Procedure, where in it mandates that “before making search the officer about to make it shall call upon two or more independent and respectable persons of the locality in which, the place is to be searched to attend and witness the search and may issue an order in writing to them” and 100(5) envisages that “the search shall be made in their presence and the list of things seized shall be prepared by the officer and signed by such witnesses” and Section 100(7) shows that “a copy of the list of things seized shall be given to the persons from whom the property is seized”.

But, the evidence of P.Ws 1 and 2 shows that the procedure prescribed under

Sections 100 (4), (5) and (7) was not followed by P.W1 while arresting the accused and seizing the contraband from them. Admittedly, the scene of offense is a busy locality and people are moving around at the scene of offence, but P.Ws. 1 and 2 did not issue any written summons to any witnesses to act as mediators for the seizure of contraband from accused, they made only a stray statement that they tried to secure mediators, and they also did not give any copy of the list of things seized to accused. So, under the above circumstances the evidence of P.Ws. 1 and 2 cannot be believed to be trustworthy as they failed to comply with the mandatory provisions

Under sections 100 (4), (5) and (7) of code of Criminal Procedure. So, when P.Ws 1 and 2 did not secure any mediators, though the scene of seizure is a busy locality, it creates a doubt over the evidence of P.Ws 1 and 2 who are police witnesses.

Hence, in the above circumstances it creates a reasonable doubt over the case of prosecution as to whether really P.Ws. 1 and 2, arrested the accused and seized the contraband from him, as they are only police officers and they did not secure any independent mediators, though available near the scene of offense.

17.Hence, it is held that the evidence of P.Ws.1 and 2 cannot be believed and accepted to be true as P.Ws 1 and 2 failed to follow the mandatory procedure prescribed under law for arrest of accused and seizure of contraband from them.

So, when the evidence of P.Ws. 1 and 2 is held to be not trustworthy, and when the alleged seizure of contraband from accused was not made according to the procedure prescribed under law, it creates a reasonable doubt over the case of prosecution and hence, it is held that prosecution failed to prove the necessary ingredients for the offence punishable Under Sections 7(A) read with 8(e) of Andhra

Pradesh Prohibition Act against accused beyond all reasonable doubt. Hence, 7 accused are entitled for benefit of doubt and liable to be acquitted. Accordingly, the point is answered.

18. In the result, A.1 and A.2 are found not guilty for the offense

punishable under Sections 7(A) read with 8(e) of Andhra Pradesh Prohibition

Act and they are acquitted under Section 248(1) of Code of Criminal Procedure

for the said offense. The MO.s 1 and 2 shall be destroyed after appeal time is

over. The bail bonds of the accused shall stand canceled . The accused

executed bond for an amount of Rs.5,000/- each by undertaking to appear

before the Appellate Court, if any appeal is preferred against them in

compliance with Section 437(A) of Code of Criminal Procedure.

Typed to dictation by the Typist on computer; corrected and th

pronounced by me in Open Court, on this, the 27th day of June, 2019.

J.F.C.MAGISTRATE,

Palakonda.

Appendix of Evidence

Witness Examined :

FOR PROSECUTION

P.W. 1 – J.Janardhan Rao/ sub inspector of Prohibition and Excise

P.W.2 – T.Raja Rao/ sub inspector of Prohibition and Excise

P.W.3 - B.Naidu.

FOR ACCUSED:: NIL

Documents marked :-

For Prosecution :-

Ex.P1:29.12.2017: Occurrence Report Ex.P2:29.12.2017: First Information report Ex.P3: 23.01.2018: Chemical Analysis report Ex.P4: 26.02.2018: D.C Proceedings Ex.P5: 29.12.2017: signature of PW3 on Ex P1/ occurrence Report “ M” Series :-

M.Os 1 and 2 : are two Sample bottles.

For Accused :-

- - - Nil - - -

J.F.C.MAGISTRATE,

Palakonda.

1

CALENDAR AND JUDGMENT

Calendar Case No.273/2016 tried by Judicial Magistrate of I Class, Palakonda, Srikakulam District. --------------------------------------------------------------------------------------------------- Date of offence27.06.2016 Report27.06.2016 Apprehension of Accused19.08.2016 Release on bail of accusedissued Notice u/s 41-A of Cr.P.C Commencement of trial26.02.2019 Close of trial25.06.2019 Sentence or order26.06.2019 Explanation for the delay:This case was taken on file on 18.07.2016. The matter is posted time to time for compromise. Trial commenced on 26.02.2019. P.Ws.1 to 8 were examined. Judgment pronounced on 26.06.2019. Name of the complainant:: The State represented by the Sub-Inspector of Police, Palakonda Police Station. Crime No. :90/2016

Name of the accused:

1. Rettangi Appalaswamy, S/o.late Surayya, 70 years,

2. Rettangi Rajarao, S/o.Appalaswamy, 36 years,

3. Retttangi Mohanarao, S/o.Appalaswamy, 30 years,

4. Rettangi Bangarayya, S/o.late Seethayya, 70 years,

5. Rettangi Papamma, W/o.Appalaswamy, 60 years,

6. Rettangi Appalanarasamma @ Aparna, W/o.Rajarao, 32 years,

7. Rettangi Saradhamba, D/o.Appalaswamy, 35 years,

8. Murapaka Durga Rao, S/o.late Ganapathi, 22 years,

All are caste by S.C.-Mala and residents of Malliveedu Singupuram village of Palakonda mandal. (Occupations of the accused are not mentioned in charge sheet) Offences:Sec. 341, 323, 506 r/w 34 of IPC U/s. 341 of IPC : Punishment for wrongful restraint. U/s. 323 of IPC: Punishment for voluntarily causing hurt. U/s. 506 of IPC : Punishment for criminal intimidation. U/s 34 of IPC : Acts done by several persons in furtherance of common intention. Finding:A.1 to A.8 are found not guilty. Sentence In the result, A.1 to A.8 are found not guilty for the offenses punishable under Sections 341,323,506 read with 34 of indian Penal Code and they are acquitted under Section 255(1) of Code of Criminal Procedure for the said offenses. The bail bonds of the accused shall stand cancelled after lapse of appeal period. The accused executed bond for an amount of Rs.5,000/- by undertaking to appear

before the Appellate Court, if any appeal is preferred against them in compliance

with Section 437(A) of Code of Criminal Procedure.

Sd/- Shaik Ziauddin

Judicial Magistrate of First Class,

Palakonda. Copy submitted to the Hon'ble I Additional District Judge, Srikakulam Copy to the Superintendent of Police, Srikakulam.

2

IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE,

PALAKONDA.

PRESENT: Sri. SHAIK ZIAUDDIN,

Judicial First Class Magistrate,

Palakonda.

Wednesday, the Twenty Sixth day of June,

TWO THOUSAND AND NINETEEN

(26.06.2019)

CALENDAR CASE No. 273/2018 CALENDAR CASE No. 273/2018

B e t w e e n :

State, rep. by the Sub-Inspector of Police, Palakonda Police Station.

... Complainant

A n d

1. Rettangi Appalaswamy, S/o.late Surayya, 70 years,

2. Rettangi Rajarao, S/o.Appalaswamy, 36 years,

3. Retttangi Mohanarao, S/o.Appalaswamy, 30 years,

4. Rettangi Bangarayya, S/o.late Seethayya, 70 years,

5. Rettangi Papamma, W/o.Appalaswamy, 60 years,

6. Rettangi Appalanarasamma @ Aparna, W/o.Rajarao, 32 years,

7. Rettangi Saradhamba, D/o.Appalaswamy, 35 years,

8. Murapaka Durga Rao, S/o.late Ganapathi, 22 years,

All are caste by S.C.-Mala and residents of Malliveedu Singupuram village of Palakonda mandal.

... Accused

This case is coming before me on 25-06-2019 for final hearing in the presence of Assistant Public Prosecutor, Advocate for prosecution and Sri Y.Raju, Advocatefor Accused and the matter having stood over for consideration till today, this court delivered the following:-

J U D G E M E N T

1.The accused A1 to A8 are arraigned before the Court for the offences punishable under Sections 341,323, 506 read with 34 of Indian Penal Code.

2.The brief averments of the prosecution case are as follows :-

One Batthina Ramayya (LW.1) and accused are bore grudge against each other since long time. While So, on 27.06.2016 at 5.00 p.m., while Batthina

Ramayya (LW.1) proceeding to his house on his TVS XL Moped and when he reached the house of A.1, there A.1 to A.8 were wrongfully restrained him and questioned that who are you to proceed on that way and beat him with hands and 3 torn away his shirt and kicked with legs and threatened with dire consequences.

Batthina Varahalu, Koppara Majjisetti and Borra Durgarao (LWs 2 to 4) were witnessed the offence directly. Basing on the report of Batthina Ramayya (LW.1),

M.Harikrishna (LW.8)-Probationary Sub Inspector of Police, Palakonda P.S., registered a case in Crime No.90/2016, u/Secs.337,506 r/w.34 of Indian Penal Code on 27.06.2016 at 09.00 p.m. and he investigated into. During the course of investigation, M.Harikrishna (LW.8)-S.I. of Police examined as many as witnesses and recorded their detailed statements in his part-II C.D., sent Batthina Ramayya to

Hospital for treatment. On 28.06.2016 S.I. of Police (LW.8-M.Harikrishna) visited the scene of offence, observed the scene of offence in the presence of Ranasthalam

Naram Naidu, Ranasthalam Lakshmi Naidu (LWs 5 and 6), prepared Scene observation report, drew rough sketch. On 09.07.2016 the S.I. of Police (LW.8-

M.Harikrisha issued notice u/Sec.41-A of Cr.P.C. to accused and on receipt of same, the accused were appeared before him on the same day and released them on self bail. and after completion of investigation, M.Harikrishna (LW.8)- Sub-Inspector of

Police filed charge sheet against the accused for the offence under Sections 341,323,506 r/w.34 of Indian Penal Code. Hence, the charge sheet.

3.The case is taken cognizance by the Court for the offences punishable under Sections 341,323,506 r/w.34 of Indian Penal Code against the accused A1 to

A8.

4.The Accused A1 to A8 were present before the Court, copies of the documents were furnished to them, as contemplated under Section 207 of Code of

Criminal Procedure and they were examined under Section 251 of Code of Criminal

Procedure. An accusation for the offenses under Sections 341,323,506 r/w.34 of

Indian Penal Code leveled against the accused A1 to A8 and read over and explained to them in Telugu in which they pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, P.Ws. 1 to 8 were examined and Exs.

P1 to P9 are marked.

6.After closure of prosecution evidence, the accused A1 to A8 were examined under Section 313 of Code of Criminal Procedure. The incriminating material adduced by prosecution has been read over and explained to them in

Telugu, where they denied the same and reported no evidence in defence on their behalf.

4

7.Heard both sides.

8. Now the point for determination is :-  Whether the prosecution proved the guilt of the accused for the offence punishable under Sections 341,323,506 read with 34 of Indian Penal Code beyond all reasonable doubt?

P O I N T :-

9.To prove its case, prosecution examined P.Ws 1 to 8 and got marked Exs.P1 and P9.

10. P.W1 is the complainant and injured. Pws 2 ,3 and 7 are eye witnesses. Pw4 and 5 are mediators of scene observation report. PW6 is medical officer and PW8 is investigation officer.

11.Ex.P1 is the Report of PW.1 given to Police. Ex.P2 is the Section. 161

Cr.P.C.Statement of PW.3. Ex.P3 is the Signature of PW.4 on Scene observation report. Ex.P4 is the Signature of PW.5 on Scene Observation report. Ex.P5 is the

Wound Certificate of PW.1 issued by PW.6. Ex.P6 is the Section.161

Cr.P.C.Statement of PW.7. Ex.P7 is the First Information Report. Ex.P8 is the

Rough sketch. Ex.P9 is the Scene Observation Report.

12. It is the case of prosecution that on 27.06.2016 at 5.00 p.m., while

PW1 proceeding to his house on his TVS XL Moped and when he reached the house of A.1, there A.1 to A.8 were wrongfully restrained him and questioned that who are you to proceed on that way and beat him with hands and torn his shirt and kicked with legs and threatened with dire consequences. Pws 2 to 4 were witnessed the offence directly. Then Pw1 presented Ex P1 report.

13.It is the case of defence that accused never committed any offence and a false case was filed against accused due to political disputes.

14.Now, to prove the offenses under sections 341,323,506 read with 34 of

Indian Penal Code, prosecution must prove that Accused 1 to 8 wrongfully restrained Pw1 and beat him and threatened him.

15.P.W 1 deposed that at about 3 years ago on the evening while he was returning from his official duties on his Tvs moped Vehicle when reached in front of 5 house of one Durgarao at 6 PM , A1 to A8 restrained him and beat him indiscriminately with hands and threatened him with dire consequences and Pws 2,3 and 7 witnessed the incident, due to which he sustained swelling injuries and previously some disputes are there in between him and accused and thereafter went to PS and presented Ex P1 report.

16. P.W 2 deposed that at about 3 years ago on the evening while PW2 was returning from his official duties on his Tvs moped Vehicle when reached in front of house of one Durgarao at 6 PM , A1 to A8 restrained him and beat him indiscriminately with hands and threatened him with dire consequences and he,

Pws 3 and 7 witnessed the incident, due to which he sustained swelling injuries and previously some disputes are there in between him and accused and thereafter PW1 presented Ex P1 report.

17. Pws 3 and 7 who are said to be direct eye witnesses of the incident , as can be seen from the evidence of Pws 3 and 7 , they deposed that they do not know anything about the facts of the case and police never examined them and they turned hostile to the case of prosecution . The learned App sought permission to cross examine them , but after obtaining permission he cross examined them , but nothing was elicited from their mouth , except marking of their 161 Cr.P.C statements. So on perusal of evidence of Pws 3 and 7 , their evidence do not support the case of prosecution.

18.Now, as can be seen from the evidence of P.Ws 4 and 5 who are said to be mediators of the scene observation report, they both deposed that on 28.6.2016 palakonda police called them to the police station and obtained their signatures on scene observation report , but they do not know its contents, in the meanwhile the larned App sought permission to declare them hostile and prays to permit him to cross examine them, but after obtaining permission from the court the learned APP has cross examined them , but nothing was elicited from their mouth as police observerd the scene of offence in their presence .

19.Pws 6 and 8 who are medical officer and investigation officer and their evidence is no way useful to the case of prosecution as they are not direct eye witnesses of the incident.

20. On perusal of entire evidence of prosecution there is only evidence of

Pws 1 and 2 on record to prove the guilt of the accused. During course of cross 6 examination, Pw2 deposed that ,the accused beat Pw1 on 23.12.2016 near RCM church and when accused also tried to attack on fathers of church , then he went there to rescue , but accused also beat him with a stick on his head , then he felt unconscious. But Pw1 did not depose that accused beat PW2 with a stick and he sustained injuries. So there is contradictions in the evidences between evidence of

Pws 1 and 2, as Pw1 never deposed that accused also beat PW2 with stick. So the evidence of PW2 is not believable and trustworthy. Thus ,it is held that the evidence of PW2 is no way useful to the case of prosecution as his evidence contradicting with the evidence of Pw1.

21 .Pw1 deposed during his chief examination , that the incident was occurred near the house of one Durga Rao, and Accused 1 to 8 beat him with hands and threatened him with dire consequences and Pws 2,3 and 7 witnessed the incident. But Pws 2,3 and 7 never supported the version of Pw1 , as they did not state as they witnessed the incident. During course of cross examination Pw1 admitted that there is a counter case is pending against this case , where in Pws 1 and 2 herein are accused in that and these accused are witnesses therein. Further he admitted that there are previous disputes are between him and accused . Pw1 during his cross examination admitted that Accused 1 to 3 and A5 and another one beat him , but he deposed in Ex P1 report and in his chief examination that A1 to A8 beat him indiscriminately. It seems it is contradictory to his own evidence, further he deposed that Accused no3 beat with a iron rod. He did not state the same in Ex P1 report and in his chief examination. It is totally contrary to his own evidence. In these circumstances the evidence of PW1 is not believable and trustworthy. So the evidence of Pw1 also do not establish the guilt of the accused.

22. Now, on considering the entire oral and documentary evidence of prosecution, it shows that their evidence is not consistent and corroborating with each other on material aspects and there is no ring of truth in their evidence and there are contradictions over the evidence of PW1 . The evidence of Pws 1 to 3 and 7 is totally contrary to contents of Ex P1 report and not corroborating with each other. Further there is no iota of evidence on record to show that Accused 1 to 8 wrongfully restrained Pw1 and beat him and threatened him . In these circumstances it cannot be said that accused has committed any offence punishable under section 341,323,506 read with 34 of Indian Penal Code. So, the entire oral and documentary evidence of prosecution creates a very serious doubt over the case of prosecution.

7

23.Hence, in view of the above discussion, it is held that prosecution failed to establish the necessary ingredients for the offenses punishable under sections 341,323,506 read with 34 of Indian Penal code against accused beyond all reasonable doubt. Hence, accused are entitled for acquittal. Accordingly, the point is answered.

24. In the result, A.1 to A.8 are found not guilty for the offenses

punishable under Sections 341,323,506 read with 34 of indian Penal Code and

they are acquitted under Section 255(1) of Code of Criminal Procedure for the

said offenses. The bail bonds of the accused shall stand cancelled after lapse

of appeal period. The accused executed bond for an amount of Rs.5,000/- by

undertaking to appear before the Appellate Court, if any appeal is preferred

against them in compliance with Section 437(A) of Code of Criminal

Procedure.

Typed to dictation by the Personal Assistant on computer; corrected and pronounced by me in Open Court, on this, the 26th day of June, 2019.

Sd/- Shaik Ziauddin

J.F.C.MAGISTRATE,

PALAKONDA.

Appendix of Evidence

Witnesses Examined

FOR PROSECUTION FOR DEFENCE

PW.1 /26.02.2019 : Batthina Ramayya - - - None - - - PW.2 /26.02.2019 : Batthina Varahalu PW.3 /25.03.2019 : Borra Durgarao PW.4 /26.03.2019 : Ranasthalam Naram Naidu PW.5 /26.03.2019 : Ranasthalam Laxmu Naidu PW.6 /22.05.2019 : Dr.Ch.Raghuram Murty PW.7 /22.05.2019 : Koppara Majji Setti PW.8 /11.06.2019 : M.Harikrishna.

Documents marked :-

For Prosecution :-

Ex.P1 /27.06.2016: Report of PW.1 given to Police. Ex.P2 /28.06.2016: Section. 161 Cr.P.C.Statement of PW.3. Ex.P3 /28.06.2016: Signature of PW.4 on Scene observation report. Ex.P4 /28.06.2016: Signature of PW.5 on Scene observation report. Ex.P5 /01.07.2016: Wound Certificate of PW.1 issued by PW.6. Ex.P6 /28.06.2016: Section.161 Cr.P.C.Statement of PW.7. Ex.P7 /27.06.2016: First Information Report.

8

Ex.P8 /28.06.2016: Rough sketch. Ex.P9 /28.06.2016: Scene Observation Report.

For Defence : - - - Nil - - -

Material Objects :- - - - Nil - -

Sd/- Shaik Ziauddin

J.F.C.MAGISTRATE,

PALAKONDA.

1

CALENDAR AND JUDGMENT

Calendar Case No.55/2019 tried by Judicial Magistrate of I Class, Palakonda, Srikakulam District. --------------------------------------------------------------------------------------------- Date of offence18.11.2017 Report18.11.2017 Apprehension of Accused18.11.2017 Release on bail of accusedIssued notice u/S.41-A of Cr.P.C. Commencement of trial18.06.2019 Close of trial25.06.2019 Sentence or order28.06.2019 Explanation for the delay:This case was taken on file on 22.03.2019. Trial is commenced on 18.06.2019. P.Ws.1 and 2 were examined. Judgment pronounced on 28.06.2019.

Name of the complainant:: State represented by the Prohibition & Excise Inspector, Palakonda Crime No.: 536/2017

Name of the accused:: Bommali Daveedu, S/o Surayya, aged 31 years, Relli by caste, resident of Relli street, Veeraghattam village and mandal. (Occupation of the accused is not mentioned in the charge sheet)

Offence: U/Ses 7(A) r/w 8(e)of APP Act: Illegal transportation of I.D. liquor

FindingAccused is found not guilty.

Sentence

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

under Section 7(A) read with 8(e) of Andhra Pradesh Prohibition Act and he is

acquitted under Section 248(1) of Code of Criminal Procedure for the said offence. The M.O. 1 shall be destroyed after appeal time is over. The accused executed bond

for an amount of Rs.5,000/- each 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.

Sd/- Shaik Ziauddin

Judicial Magistrate of First Class,

Palakonda.

Copy submitted to the Hon'ble I Addl. District Judge, Srikakulam 2

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,

PALAKONDA.

PRESENT: Sri. SHAIK ZIAUDDIN,

Judicial Magistrate of First Class, Palakonda,

FRIDAY, the Twenty Eighth day of JUNE,

TWO THOUSAND AND NINETEEN.

(28.06.2019)

CALENDAR CASE NO. 55/2019 CALENDAR CASE NO. 55/2019

B e t w e e n :

State represented by the Prohibition & Excise Inspector, Palakonda . . .Complainant.

A n d

Bommali Daveedu, S/o Surayya, aged 31 years, Relli by caste, resident of Relli street, Veeraghattam village and mandal.

. . . Accused

This case is coming before me on 25.06.2019 for final hearing in the presence of Assistant Public Prosecutor, Advocate for prosecution and of Sri U.

Murali Mohan Rao, advocate for Accused and the matter having stood over for consideration till today, this court delivered the following:-

J U D G M E N T

1. The accused is arraigned before the court for the offence punishable under sections 7(A) read with 8(e) of Andhra Pradesh Prohibition Act in

Crime No.536/2017 of Prohibition and Excise Station, Palakonda.

2. The brief averments of the prosecution case are :-

On 18.11.2017 at about 5.00 AM the Prohibition and Excise sub-

Inspector along with his staff conducted raid and proceeded near Cunvert in the middle of the road leading from Veeraghattam village to Athepuvalasa village of

Veeraghattam mandal and found accused in possession of 10 liters black plastic can and on seeing them he escaped away by putting down his can at a distance of 50 feet and on suspicion he verified the said can and they found the said black can is containing 10 liters of ID liquor. Then Prohibition and Excise sub inspector draw

I.D. liquor into one 180 ml glass bottle from the can as sample to send the same to chemical analysis seized and sealed the sample bottle and the plastic can after affixing the identification slips duly signed by the staff and the Sub-Inspector, under 3 the cover of occurrence report drafted at the scene of offence and brought the case record, seized property to the prohibition and excise Station, Palakonda and registered the above occurrence report as a case in Cr. No.536/2017 for the offence under Section 7 (A) R/w 8 (e) of APP Act. Since the date of offence sincere efforts made to arrest the accused but whereabouts of him was not known and after completion of investigation, L.W.6/T.V.R.Murthy, Proh. & Excise Inspector filed charge sheet. Hence, this charge sheet.

3.The case is taken cognizance for the offence punishable under

Sections 7(A) read with 8(e) of Andhra Pradesh Prohibition Act against accused.

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

Procedure.

5. The accused was examined under Section 239 of Code of Criminal

Procedure and charge against the accused has been framed for the offence under

Section 7(A) read with 8(e) of Andhra Pradesh Prohibition Act and read over and explained the contents of the charge in Telugu to the accused and he denied the same and claimed to be tried.

6.On behalf of the prosecution, P.Ws 1 and 2 were examined and Exs.P1 to P.4 and M.O.1 were marked. The evidence of L.Ws 1, 3, 4 and 6 (D. Mohan Rao, B. Kurminayakulu, T. Nagendra Babu, and T.V.R. Murthy) were given up by learned

Assistant Public Prosecutor in view of corroborative evidence with P.Ws.1 and 2.

7.After closure of prosecution evidence, accused was called upon to explain the incriminating circumstances appearing against him from the prosecution evidence as contemplated under Section 313 of Code of Criminal Procedure and accused denied the same and reported no evidence in defense.

8.Heard both sides. Now the point for determination is :-  Whether the prosecution proved the guilt of the accused for the offence punishable under Sections 7(A) read with 8(e) of Andhra Pradesh Prohibition

Act beyond all reasonable doubt?

P O I N T :-

9.To prove its case, prosecution examined P.Ws 1 and 2 and got marked

Exs.P1 to P.4 and M.O. 1.

10.P.W1 is the Investigating officer. P.W2 is the Proh & Excise

Constable.

4

11. Ex.P1 is Occurrence Report. Ex.P2 is First Information Report. Ex.P3. is the Chemical Analysis Report. Ex.P4 is the D.C. Proceedings. M.O. 1 is Sample bottle.

12.It is the case of the prosecution that on 18.11.2017 at about 5.00 a.m.,

While P.W. 1 along with other staff conducted raid near Cunvert in the middle of the road leading from Veeraghattam village to Athepuvalasa village of Veeraghattam mandal and they found the accused in possession of 10 liters black plastic can and on seeing them he escaped away by putting down his can at a distance of 50 feet and on suspicion they detained and on verification they found the can in possession of accused is containing 10 liters of ID Arrack and they tried to secure mediators but in vain and they seized the said contraband and drawn samples for analysis purpose and registered a case and the remaining contraband after drawing sample was destroyed as per Ex P4 proceedings and after receipt of Ex P3 analysis report the

Inspector of Prohibition and Excise 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 for statistical purpose.

14.Now to prove the offence under Sections 7(A) read with 8(e) of Andhra

Pradesh Prohibition Act the prosecution must prove that P.W. 1 and his other staff found the accused in possession of ID Arrack, which is prohibited under the act.

15.At the outset, it is the case of prosecution that, P.W. 1 and their staff conducted raid near Cunvert in the middle of the road leading from Veeraghattam village to Athepuvalasa village of Veeraghattam mandal and saw the accused in possession of 10 liters of ID Arrack in a black plastic can and they detained accused and they seized the property under Ex.P.1 report. P.W.1 who is the sub- inspector of Prohibition and Excise, Palakonda deposed that on 18.11.2017 he accompanied along with other staff and conducted raid and when they reached there and found the accused while in possession of black plastic can, on seeing them he tried to escape from there and he ran away by leaving black plastic can and upon enquiry, the can containing of ID Arrack 10 liters of ID liquor and then he sent

L.w.1/D. Mohan Rao, HC to secure mediators but in vain and then he seized the said ID liquor and lifted 180 ml into separate sample bottle, seized the contraband under the cover of occurrence report. Basing on Ex.P.1/occurrence report, he registered a case in Cr. No.536/2017 for the offence under Section 7(A) r/w 8 (e) of

APP Act and issued original First Information Report and then he sent the sample to the chemical examiner for analysis purpose and on receipt of analysis report, destruction orders proceedings and after completion of investigation, L.W.6/TVR

Murthy, Proh. And Excise Inspector, Palakonda filed charge sheet.

5

16.Now to prove the offence Under Sections 7(A) read with 8(e) of Andhra

Pradesh Prohibition Act, the evidence of P.Ws. 1 and 2 is relevant. As can seen from the evidence of P.Ws.1 and 2, admittedly they are Sub-Inspector of Prohibition and Excise Department. So, Ex.P.1 which was recorded by Prohibition and Excise sub-inspector cannot be believed to the extent of the confession said to be made by accused, as a confession before a police officer is inadmissible in evidence. So, when P.Ws.1 and 2 are police officers their evidence has to be scrutinized with caution and see whether the arrest of accused and seizure of contraband from him was true and made as per the procedure prescribed under law.

17.In his cross examination P.W.1 admitted that the scene of offence is near Cunvert in the middle of the road leading from Veeraghattam village to

Athepuvalasa village of Veeraghattam mandal and they did not secure any local mediators for the arrest of accused and seizure of contraband from him. Further no written summons were given to any mediators to act as mediators. So the evidence of P.Ws. 1 and 2 shows that they did not follow the procedure prescribed under

Section 100 (4) Code of Criminal Procedure, where in it mandates that “before making search the officer about to make it shall call upon two or more independent and respectable persons of the locality in which, the place is to be searched to attend and witness the search and may issue an order in writing to them” and 100(5) envisages that “the search shall be made in their presence and the list of things seized shall be prepared by the officer and signed by such witnesses” and Section 100(7) shows that “a copy of the list of things seized shall be given to the persons from whom the property is seized”. So the evidence of P.Ws. 1 and 2 shows that the procedure prescribed under Sections 100 (4), (5) and (7) was not followed by the sub-inspector while arresting the accused and seizing the contraband from him.

Admittedly the scene of offence is very near to Cunvert in the middle of the road leading from Veeraghattam village to Athepuvalasa village of Veeraghattam mandal, but P.W.1 did not issue any written summons to any witnesses to act as mediators for the seizure of contraband from accused, he made only stray statement that he tried to secure mediators, but his evidence shows that he did not issue any written summons to any persons to act as mediators. So under the above circumstances the evidence of P.Ws. 1 and 2 cannot be believed to be trustworthy as they failed to comply with the mandatory provisions Under sections 100 (4) (5) and (7) of code of

Criminal Procedure. So, when PW.1 did not secure any mediators, though the scene of seizure is very near to Kuddapalli village, it creates a suspicion over the evidence of PWs 1 and 2 who are police witnesses. Hence, in the above circumstances it creates a reasonable doubt over the case of prosecution as to whether really P.W.

1 , arrested the accused and seized the contraband from him, as they are only police officers and they did not secure any independent mediators, though available 6 near the scene of offence. So, the said circumstance also creates a doubt over the case of prosecution.

18.Hence it is held that the evidence of P.Ws.1 and 2 cannot be believed and accepted to be true as PW.1 the sub-inspector of police, Palakonda failed to follow the mandatory procedure prescribed under law for arrest of accused and seizure of contraband from him. So, when the evidence of P.Ws. 1 and 2 is held to be not trustworthy, and when the alleged seizure of contraband from accused was not made according to the procedure prescribed under law, it creates a reasonable doubt over the case of prosecution and hence, it is held that prosecution failed to prove the guilt of the accused for the offence Under Sections 7(A) read with 8(e) of

Andhra Pradesh Prohibition Act beyond all reasonable doubt. Hence, accused is entitled for benefit of doubt and liable to be acquitted. Accordingly the point is answered.

19. In the result, accused is found not guilty for the offence

punishable under Section 7(A) read with 8(e) of Andhra Pradesh Prohibition

Act and he is acquitted under Section 248(1) of Code of Criminal Procedure

for the said offence. The M.O. 1 shall be destroyed after appeal time is over.

The accused executed bond for an amount of Rs.5,000/- each 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.

Typed to dictation by the Typist on computer; corrected and th

pronounced by me in Open Court, on this, the 28th day of June, 2019.

Sd/- Shaik Ziauddin

Judicial Magistrate of I Class,

Palakonda.

Appendix of evidence

Witness examined

FOR PROSECUTION:

P.W1 – Ch.S.L.P. Kumar, Proh. & Excise Sub Inspector, Palakonda P.W2 – P. Appala Raju, Proh. & Excise Constable, Srikakulam.

FOR ACCUSED:

- - - None - - -

Documents marked :-

For Prosecution :-

Ex.P1:18.11.2017: Occurrence Report Ex.P2:18.11.2017: First Information report Ex.P3: 06.12.2017: Chemical Analysis report Ex.P4: 29.01.2018: D.C Proceedings 7

For Accused :-

- - - Nil - - - “ M” Series :-

M.O 1 : Sample bottle.

Sd/- Shaik Ziauddin

Judicial Magistrate of I Class,

Palakonda.

1

CALENDAR AND JUDGMENT

Calendar Case No.52/2019 tried by Judicial Magistrate of I Class, Palakonda, Srikakulam District. --------------------------------------------------------------------------------------------- Date of offence30.11.2018 Report30.11.2018 Apprehension of Accused30.11.2018 Release on bail of accused41-A Cr.P.C notice Taken on file27-03-2019 Commencement of trial29-05-2019 Close of trial18-06-2019 Sentence or order25-06-2019 Explanation for the delay:There is no delay in disposal.

Name of the complainant: State :- Sub Inspector of Police, Vangara Police Station.

Crime No.:62/2018

Name of the accused:

Boddana Parayya, S/o. Gurayya, Age 52 years, Caste by BC-Kurakula Veedhi, Koppara village, Vangara mandal, Srikakulam District. (Occupation of the accused is not mentioned in the charge sheet)

OffenceSec.34 (a) of APE Act.

Whoever possess liquor without license intending to sell for public on profit shall be punishable under section 34 (a) of AP Excise Act.

FindingAccused is found not guilty.

Sentence

In the result, accused is found not guilty for the offence

punishable under Section 34(A) of Andhra Pradesh Excise Act and he is

acquitted under Section 248(1) of Code of Criminal Procedure for the said

offence. The Mos. 1 and 2 shall be destroyed after appeal time is over. The bail

bonds of the accused shall stand cancelled after lapse of appeal period. The

accused executed 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.

Sd/- Shaik Ziauddin

Judicial Magistrate of First Class,

Palakonda.

Copy submitted to the Hon'ble I Additional District Judge, Srikakulam.

2

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,

PALAKONDA.

PRESENT: Sri. SHAIK ZIAUDDIN,

Judicial Magistrate of First Class, Palakonda,

TUESDAY, the Twenty Fifth day of JUNE,

TWO THOUSAND AND NINETEEN

(25.06.2019)

CALENDAR CASE NO. 52/2019 CALENDAR CASE NO. 52/2019

B e t w e e n :

State :- Sub Inspector of Police, Vangara Police Station.

. . .Complainant

A n d

Boddana Parayya, S/o. Gurayya, Age 52 years, Caste by BC-Kurakula Veedhi, Koppara village, Vangara mandal, Srikakulam District. . . . Accused

This case is coming before me on 18.06.2019 for final hearing in the presence of Assistant Public Prosecutor, Advocate for prosecution and of Sri

Y.Laxmunaidu, advocate for Accused and the matter having stood over for consideration till today, this court delivered the following:-

J U D G M E N T

1.The accused is arraigned before the court for the offence under sections 34 (A) of Andhra Pradesh Excise Act.

2.The brief averments of the prosecution case are :-

On 30.11.2018 at about 04:00 p.m. the sub inspector of police,

Vangara police station, along with his staff conducted raid and proceeded to towards

Koppara Village of Vangara and found the accused with one gunny bag, on seeing them accused tried to conceal something and on suspicion they questioned the accused and on verification they found 12 liquor bottles i.e. 10 bottles of Double kick fine whisky -180ml, 2 Bottles of King fisher strong premium beer – 650ml and on interrogation the accused revealed his name and identity particulars and stated he has no license for possession of the said liquor bottles and he tried to secure mediators but in vain and he seized the contraband from the accused and drawn a sample for analysis purpose under the cover of occurrence report and returned to 3 the police station along with accused and the seized property and basing on the occurrence report, he registered a case in Crime Number 62/2018 Under Section 34(A) of Andhra Pradesh Excise Act and the accused was released on giving self bond after issuing a Notice under 41-A and after receipt of Chemical analysis report and after completion of investigation, B.Appa Rao, Sub inspector of Police, Vangara

Police Station filed charge sheet in this case.

3.The case is taken cognizance for the offence punishable under

Sections 34(A) of Andhra Pradesh Excise Act.

4.On appearance of the accused before the Court, copies of the documents were furnished to him as contemplated under Section 207 of Code of

Criminal Procedure.

5.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.

6.On behalf of the prosecution, P.Ws 1 and 2 were examined and

Exs.P1 to P3 and M.Os.1 and 2 were marked. The evidence of L.Ws.1, 3 and 5 Sri

B.Vijay Kumar, Police Constable, Vangara, Sri K.Sai, Police Constable, Vangara, Sri

B.Appa Rao,Sub – Inspector of Police, Vangara, were given up by learned Assistant

Public Prosecutor in view of corroborative evidence with P.Ws.1 and 2.

7.After closure of prosecution evidence, the accused was called upon to explain the incriminating circumstances appearing against him from the prosecution evidence as contemplated under Section 313 of Code of Criminal Procedure and accused denied the same and reported no evidence in defense.

8.Heard both sides.

9. Now the point for determination is :-  Whether the prosecution proved the guilt of the accused for the offence punishable under Sections 34(A) of Andhra Pradesh Excise Act beyond reasonable doubt?

P O I N T :-

10.To prove its case, prosecution examined P.Ws 1 and 2 and got marked

Exs.P1 to P.3 and M.Os. 1 and 2.

4

11.P.W.1 is the Police Constable, P.W2 is the Head Constable. Ex.P1 is

Occurrence Report. Ex.P2 is First Information Report. Ex.P3. is the Chemical

Analysis Report. M.Os 1 and 2 are sample bottle.

12.It is the case of the prosecution that on 30.11.2018 at about 04:00 p.m.

the sub inspector of police, Vangara police station, along with his staff conducted raid and proceeded to towards Koppara village,, Vangara and found the accused with gunny bag, on seeing them accused tried to conceal something and on suspicion they questioned the accused and on verification they found 12 liquor bottles i.e. 10 bottles of Double kick fine whisky -180ml, 2 Bottles of King fisher strong premium beer – 650ml and on interrogation the accused revealed his name and identity particulars and stated he has no license for possession of the said liquor bottles and he tried to secure mediators but in vain and he seized the contraband from the accused and drawn a sample for analysis purpose under the cover of occurrence report and returned to the police station along with accused and the seized property and basing on Ex P1 report, he registered a case and the accused was released on giving self bond after issuing a Notice under 41-A and after receipt of ExP3 filed present case.

13.It is the case of defence that accused did not commit any offence and he was falsely implicated in this case for statistical purpose.

14.Now to prove the offence under Section 34(A) of Andhra Pradesh

Excise Act the prosecution must prove that P.Ws. 1 and 2 found the accused in possession of IML bottles without any license which is prohibited under the act.

15.At the outset, it is the case of prosecution that, P.W.2 and their staff conducted raid at the shop of the accused i.e. at Koppara village, Vangara and saw the accused in possession of IMl. Liquor bottles without any license and they seized the property. P.Ws.1 and 2 who are the police Head Constable and constable,

Vangara Police Station deposed that on 30.11.2018 at about 04:00 p.m. the sub inspector of police, Vangara police station, along with his staff conducted raid and proceeded to towards Koppara village, Vangara and found the accused with gunny bag, on seeing them accused tried to conceal something and on suspicion they questioned the accused and on verification they found 12 liquor bottles i.e. 10 bottles of Double kick fine whisky -180ml, 2 Bottles of King fisher strong premium beer – 650ml and on interrogation the accused revealed his name and identity particulars and stated he has no license for possession of the said liquor bottles and he tried to secure mediators but in vain and he seized the contraband from the 5 accused and drawn a sample for analysis purpose under the cover of occurrence report and returned to the police station along with accused and the seized property and basing on Ex P1 report, he registered a case and the accused was released on giving self bond after issuing a Notice under 41-A and after receipt of ExP3 filed present case.

16.Now to prove the offence Under Section 34 (a) of Andhra Pradesh

Excise Act, the evidence of P.Ws. 1 and 2 is relevant. As can be seen from the evidence of P.Ws. 1 and 2, admittedly they are Constable and Head constable of

Police, Vangara. So, Ex.P.1 which was recorded by P.W.2 who is a police head constable cannot be believed, as a confession before a police officer is inadmissible in evidence. So when P.Ws. 1 and 2 are police officers their evidence has to be scrutinized with caution and see whether the seizure of contraband from him was made by P.W.2 as per the procedure prescribed under law.

17. In their cross examination P.Ws. 1 and 2 admitted that the scene of offence is a busy locality and they did not secure any local mediators for the arrest of accused and seizure of contraband from him and P.Ws.1 and 2 deposed that no written summons were given to any mediators to act as mediators. So the evidence of P.Ws. 1 and 2 shows that P.W.2 did not follow the procedure prescribed under

Section 100 (4) Code of Criminal Procedure, where in it mandates that “before making search the officer about to make it shall call upon two or more independent and respectable persons of the locality in which the place is to be searched to attend and witness the search and may issue an order in writing to them” and 100(5) Code of Criminal Procedure envisages that “the search shall be made in their presence and the list of things seized shall be prepared by the officer and signed by such witnesses” and Section 100(7) Code of Criminal Procedure shows that “a copy of the list of things seized shall be given to the persons from whom the property is seized”. So the evidence of P.Ws. 1 and 2 shows that the procedure prescribed under Sections 100 (4), (5) and (7) Code of Criminal Procedure was not followed by

P.W.2 while seizing the contraband from him. Admittedly the scene of offence is a busy locality, but P.W.2 did not issue any written summons to any witnesses to act as mediators for the seizure of contraband from accused, he made only stray statement that he tried to secure mediators, but his evidence shows that he did not issue any written summons to any mediators to act as mediators. So under the above circumstances the evidence of P.Ws. 1 and 2 cannot be believed to be trustworthy as they failed to comply with the mandatory provisions Under sections 100 (4) .(5) and (7) of code of Criminal Procedure. Hence it creates a reasonable doubt over the case of prosecution as to whether really P.W.2 arrested the accused 6 and seized the contraband from him, as they are only police officers and when P.W.2 did not secure any independent mediators, though available near the scene of offence.

18.Hence it is held that the evidence of P.Ws.1 and 2 cannot be believed and accepted to be true as P.W.2 failed to follow the mandatory procedure prescribed under law for arrest of accused and seizure of contraband from him. So, when the evidence of P.Ws. 1 and 2 is held to be not trustworthy, and when the alleged seizure of contraband from accused was not made according to the procedure prescribed under law, it creates a reasonable doubt over the case of prosecution and hence, it is held that prosecution failed to prove the guilt of the accused for the offence Under Section 34(a) of Andhra Pradesh Excise Act beyond all reasonable doubt. Hence, accused is entitled for acquittal. Accordingly the point is answered.

19. In the result, accused is found not guilty for the offence

punishable under Section 34(A) of Andhra Pradesh Excise Act and he is

acquitted under Section 248(1) of Code of Criminal Procedure for the said

offence. The Mos. 1 and 2 shall be destroyed after appeal time is over. The bail

bonds of the accused shall stand cancelled after lapse of appeal period. The

accused executed 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.

Typed to dictation by the Typist on computer; corrected and

pronounced by me in Open Court, on this, the 25th day of June, 2019.

Sd/- Shaik Ziauddin

Judl. Magistrate of I Class, Palakonda.

Appendix of Evidence

Witness Examined:

FOR PROSECUTION

PW. 1 : Sri D.Hari Babu, Constable Vangara Police Station

PW.2: Sri M.Ramu, Head Constable Vangara Police Station.

FOR ACCUSED

- - - None - - -

Documents marked :-

7

For Prosecution :-

Ex.P1 : Occurrence Report dt.30.11.2018

Ex.P2 : First Information report dt.30.11.2018

Ex.P3 : Chemical Analysis report dt.30.01.2019 “ M” Series :-

M.Os.1 and 2 : Two Sample bottles

For Accused :-

- - - Nil - - -

Sd/- Shaik Ziauddin

Judl. Magistrate of I Class, Palakonda.