Siripurapu Mani

1

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

PATHAPATNAM

Present : Sri K.Prakash Babu Judl. Magistrate of I Class, Kotabommali (FAC) Tekkali and (FAC) Pathapatnam

Friday, this the 20 th day of March, 2020

C.C.No.72/2018

BETWEEN :

The State Represented by the Sub Inspector of Police, Pathapatnam PS.

...Complainant

AND:

A1. Miryala Sanaysi s/o. Satyam, age 26 years, caste by Bagadi, Avalangi village, Hiramandalam mandal, Rider of motor cycle bearing no.AP30J 6002. A2. Thamada Purushottam s/o. Ramarao, age 44 years, caste Palli, Doctor Viswanadham quarters, Kotha veedhi, Palasa village & Mandal, registered owner of motor cycle bearing no.AP30J 6002.

...Accused

This case coming before me on 20-3-2020 for hearing in the presence of Sri.APP for the State and of Sri. S. Sambamurthy, Sri M.Narasimha raju, Counsels for the accused 1 and 2, upon perusing the material papers on record 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 State represented by the Sub-Inspector of Police

Pathapatnam Police Station has laid a charge sheet in Cr.No.50/2017 for the offence punishable Under Sections 304-A IPC and sec.182(i), 196(a), 180, 186 r/w 177 of MV Act against the accused.

2.The brief case of the prosecution as per charge sheet is as follows:-

LW1 is the defacto complainant/ son of the deceased. LW1 is resident fo Kaguwada village of Pathapatnam mandal. On 8-7-2017 at 2 4.30 pm, the father of LW1 Kanakala Paidi Naidu (herein referred to as deceased) age 70 years, went to Mahendra Tanaya river bank at

Booragam village river bed to attend nature calls and afterwards while his father was returning towards his village on foot the accused A1 rider of motor cycle bearing no.AP30J 6002 dashed his father on his back side at the function hall of Sri Seetharama picture palace in a rash and negligent manner, as a result of which his father fell on the road and sustained severe injury on his head and fracture injury on his ankle region. On seeing the road mishap LW4 informed the same and further they shifted deceased to government hospital, Pathapatnam and after observing the critical condition of deceased the medical officer advised him to shift to

RIMS hospital, Srikakulam for better treatment. On that they shifted him and admitted at RIMS, Srikakulam and while undergoing treatment the deceased succumbed to death on the same day at 10 pm.

Basing on the report of LW1, LW17 registered this case and investigated into. During the course of investigation, on 9-7-2017 LW17 visited the scene of offence, observed in the presence of Lws8 and 9, got drafted the scene observation report, drew rough sketh. On the same day,

LW17 visited the CHC, Pathapatnam, held inquest over the dead body of the deceased in the presence of Lws 8 to 12. During the inquest, LW17 examined Lws 1 to 4 and recorded their statements. On 11-7-2017 at 14.30 hours, LW1 approached to LW17 and submitted another report that came to know that the accused completely blind in right eye and partially blind in left eye and had no driving lisence. LW17 alter the section of law from 304-A to 304-II IPC of pathapatnam PS. As it is grave case LW15 who is in charge circle took up investigation and verified the investigation of LW17 and examined Lws 1 to 7 and recorded their statements and arrested the accused A1 on 11-7-2017 and A2 on 12-7-2017 and both are produced before the JMFC Pathapatnam and later they were released on self bail. As per the orders of the Court, to treat the case as non grave and file charge sheet u/sec. 304-A IPC. LW13 is MVI who inspected the crime vehicle AP30J 6002, issued accident inspection report by opining that the accident occurred not due to any mechanical defects of the crime vehicle.

LW14 is medical officer who held PM examination and issued PM certificate by opining that the cause of death is head injury and cardio 3 respiratory arrest. After receiving the MVI report and PM examination report, LW17 laid charge sheet.

3.This case was taken on file Under Section 304-A IPC and sec.182(i), 196(a), 180, 186 r/w 177 of MV Act against the accused A1 and

A2. On appearance of the accused, copies of case records as required u/s.207 Cr.P.C. has been supplied to them.

4.The accused were examined Under Section 251 Cr.P.C. for the offence punishable u/sec.304-A IPC and sec.182(i), 196(a), 180, 186 r/w 177 of MV Act. The quantum of accusation made against them was read over and explained to them in Telugu, for which the accused pleaded not guilty and claimed to be tried. Hence the matter was posted for trial.

5.In order to prove its case, the Prosecution got examined

PWs.1 to Pw.11 and got marked Exs.P-1 to Ex P-9.

6.After conclusion of prosecution evidence, the accused was examined under Section 313 Cr.P.C., explaining about the incriminating circumstances appearing against him in the prosecution evidence, for which, the accused denied the same and he reported no defence evidence.

7.Heard the Arguments on both sides. I have given my earnest consideration to the respective submissions of learned APP., for the State and counsel for the accused.

8.Now the point for determination is:

Whether the Prosecution has proved the guilt of the accused

for the offence punishable u/sec.304-A IPC and sec.182(i),

196(a), 180, 186 r/w 177 of MV Act ? If so, whether the accused

are liable for punishment of the same?

9. POINT 4

In order to establish its case, though the Prosecution has cited (17) witnesses and out of them, the prosecution has got examined

PWs.1 to Pw.11 and got marked Exs.P-1 to Ex P-9. Sri APP has given up

LW3 Maddili Hemalatha, LW6 Sahukari Ravikumar, LW7 Ganapathi

Venkati, LW10 Ganapathi Appanna, LW11 Thalada Naidu, LW12 Kalla

Ramulu.

10.The case of the prosecution is that on 8-7-2017 at 4.30 pm, the father of LW1 Kanakala Paidi Naidu (deceased) went to Mahendra

Tanaya river bank at Booragam village river bed to attend nature calls and afterwards while his father was returning towards his village on foot the accused A1 rider of motor cycle bearing no.AP30J 6002 dashed his father on his back side at the function hall of Sri Seetharama picture palace in a rash and negligent manner, as a result of which his father fell on the road and sustained severe injury on his head and fracture injury on his ankle region.

11.At the outset, it is better to define section 304-A IPC:

304A. Causing Death By Negligence :­ -Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

12.In any given criminal case, it is the duty of the prosecution to prove the offence beyond all reasonable doubt. To substantiate, the same

PW1 and 2 are examined who are son and wife of the deceased are the hearsay evidences and they were informed by somebody that the deceased met with an accident. PW3 Maddila Lakshminarayana who is the eye witness to the accident deposed that while he was proceeding on his bike from Kaguvada to Pathapatnam one two wheeler bearing no.AP30J 6002 being driven by A1 hit the deceased by which he fall down and sustained crush injury to his right leg and severe bleeding to his forehead and he witnessed the accident and stated A1 drove the crime 5 vehicle in a speedy manner and later informed to PW4 over phone. In his cross examination he admitted that he cannot say the bearing number of his own vehicle. He saw the accused when he attending the court for adjournments and also admitted that he did not submitted any report to police about the alleged accident and also Ex.P1 does not contain his signature.

13.At the same time another eye witness PW4 Nalli

Jagadeswararao deposed that he is running chicken shop at Kaguvada near Santhoshimata temple. A1 came to his shop and went away by taking chicken from his shop. He also observed that the deceased

Paidinaidu proceeding from Pathapatnam to Kaguvada on walk and later he came to know that A1 hit the said Paidinaidu through his motorcycle. In his cross examination he came to know abou the alleged accident immediately after the accident and he did not given any report to police.

PW3 deposed in his evidence that he informed PW4 over phone but at the same time he deposed that PW4 and LW6 and 7 were present along with him at the time of alleged accident. PW4 deposed that he came to know about the accident. Therefore there is no corroboration in between PW3 and PW4. Except the evidence of PW3 there is no other evidence to say that the A1 drove his bike in a speedy manner.

14.The other witness i.e., PW5, 6 are the circumstantial evidence i.e., the mediators to the scene of offence. PW10 Inspector of police sent requisition to SP, Srikakulam seeking permission to convert section of law from 304-A to 304-II IPC and after obtaining the orders from

Superintendant of police, PW11 took up investigation. PW11 the investigation officer i.e., SI of police visited the scene of offence and prepared scene observation report in the presence of PW5 and 6. PW9 i/c. Inspector of police verified the investigation of PW11 and later on the direction of court it was treated as non grave offence and issued sec.41-A

CrPC notice to A1 and A2.

15.PW7 the motor vehicle inspector inspected the crime vehicle bearing no.AP30J 6002, found damages and opined that the accident not occurred due to any mechanical defects of said vehicle and issued Ex.P4 6

MVI report. The PW8 Dr. S. Ramamohanarao, RIMS, Srikakulam conducted PM examination over the dead body and issued PM certificate/

Ex.P5 duly opined that the deceased died due to cardio cerebral injury.

16.As discussed supra, the offence u/sec.304-A IPC defines causing death of a person is in a rash or negligent manner and there should be nexus between the Act of the accused and death of the deceased. Here in the present case on hand, no doubt the deceased died in a road accident. To corroborate the said facts was proved by Ex.P5 PM certificate, it was mentioned that the deceased died due to cardio cerebral injury i.e., due to head injury. It is clear from the evidence of inquest report

Ex.P3 as well as Ex.P5 Post mortem certificate, the deceased died due to head injury. So only the fact to be proved by the prosecution is whether the accused A1 is the driver of the crime vehicle at the relevant time of accident i.e., on 8-7-2017 at about 4.30 pm opposite to Seetharama

Picture Palace, Kaguvada village, Pathapatnam mandal. In the absence of any cogent evidence of the prosecution, the prosecution fails to prove that accused A1 is the driver at the time of accident. There is no cogent evidence to prove that the accused A1 is the driver at the relevant time of the accident.

17.The other question is whether the A2 is given his motor bike to A1. The prosecution could not able to file any registration certificate of the vehicle that stood in the name of A2 and A2 himself entrusted motorbike to A1. The absence of any evidence which is closure one cannot linked A2 to the offence.

18.In any given criminal case it is the duty of the prosecution to prove all the ingredients of the offence for which the accused charged.

Here in this present case on hand, the prosecution able to prove that there was a death and there is no evidence that deceased died in the road accident when motorcycle bearing no. AP30J 6002 dashed against him and ran away. In the absence of any link between the accused and incident, the court cannot act upon the evidence let in by the prosecution.

Therefore, the prosecution miserably failed to prove the nexus between the death of the deceased Kanakala Paidinaidu and the act of the 7 accused. Though the evidence of investigation officer that his evidence cannot be acted upon and cannot relied for a conviction.

19.For the foregoing reasons, the prosecution failed to bring the accused within the ring of the guilt that he driven the motorcycle bearing no. AP30J 6002 on the date of incident and causing the death of deceased with his rash and negligent Act for the offence punishable u/sec.

304-A IPC and sec.182(i), 196(a), 180, 186 r/w 177 of MV Act beyond all reasonable doubt. Therefore, the accused A1 and A2 are entitled for acquittal.

20.In the result, the accused A1 and A2 are found not guilty for the offence punishable Under Section 304-A IPC and sec.182(i), 196(a), 180, 186 r/w 177 of MV Act and accordingly they are acquitted of the said offence under section 255(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of 6(Six) months.

Typed to my dictation, corrected and pronounced by me in the open court on the 20th day of March, 2020.

JUDL. MAGISTRATE OF FIRST CLASS

KOTABOMMALI

(FAC) Tekkali, (FAC) Pathapatnam

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

PW.1: Sri Kanakala JagadeeswararaoNil PW2: Smt Kanakala Parvathi PW3: Sri Maddili Laxminarayana PW4: Sri Nalli Jagadeeswararao PW5: Sri Ganapathi Rajaraonaidu PW6: Sri Jugula Sahu PW7: Sri K.V. Prakasharao PW8: Dr. Sadhu Ramamohanarao PW9: Sri J. Srinivasarao, Inspector of police PW10: Sri B.S.V.S. Prakash PW11: Sri M. Harikrishna, SI of police

EXHIBITS MARKED FOR PROSECUTION

8

Ex P1 :Report of PW1 dt.9-7-2017 Ex.P2: scene observation report .dt.01.03.2019 Ex.P3: Inquest report dt dt.9-7-2017 Ex.P4: MVI report dt.13-7-2017 Ex.P5: Post mortem report dt.08-03-2019 Ex.P6: First information report dt.9-7-2017 Ex.P7: Report of PW1 dt.11-7-2017 Ex.P8: Alter FIR dt.11-7-2017 Ex.P9: Rough sketch dt.9-7-2017

EXHIBITS MARKED FOR DEFENCE: NIL

MATERIAL OBJECTS MARKED: -NIL-

JUDL. MAGISTRATE OF FIRST CLASS

KOTABOMMALI

(FAC) Tekkali, (FAC)Pathapatnam 9

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

PATHAPATNAM

CALENDAR AND JUDGMENT

C.C.NO.72/2018

Date of offence:08.07.2017 Date of Complaint or report: 09.07.2017 Date of apprehension of accused:A.1 on 11.07.2017 A.2 on 12-07-2017 Date of release on bail:A.1 on 11.07.2017 A.2 on 12-07-2017 Date of commencement of trial:13-2-2019 Date of close of trial:22-4-2019 Date of sentence or order:20-03-2020 Name of the complaint:The State Represented by the Sub Inspector of Police, Pathapatnam P.S. (Cr.No. 50/2017). Name of the Father's AgeReligionVillage &Mandal AccusedName A1. Miryala SanyasiS/o. Satyam26 years0HinduAvalangi Village, Hiramandalam mandal A2. Thamada S/o. Rama 44 yearsHinduKotha Veedhi, Palasa PurushottamRaoVillage & mandal.

Offence : U/sec. 304-A IPC and sec.182(i), 196(a), 180, 186r/w 177 of MV Act

Finding: The accused 1 and 2 are found not guilty.

Sentence or Order: The accused A1 and A2 are found not guilty for the offence punishable Under Section 304-A IPC and sec.182(i), 196(a), 180, 186 r/w 177 of MV Act and accordingly they are acquitted of the said offence under section 255(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of 6(Six) months. The unmarked property if any shall be destroyed after lapse of appeal time.

Judicial Magistrate of I Class,

Kotabommali

(FAC)Tekkali, (FAC)Pathapatnam.

10

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

KOTABOMMALI,(FAC)TEKKALI, (FAC)PATHAPANTAM

CALENDAR AND JUDGMENT

C.C.NO.173/2017

Date of offence:24.02.2014 Date of Complaint or report: 24.02.2014 Date of apprehension of accused:A1 on 16-10-2017 A2 on 6-9-2018 Date of release on bail:A1 on 31-1-2018 A2 on 12-9-2018 Date of commencement of trial:12-11-2018 Date of close of trial:22-11-2019 Date of sentence or order:13-03-2020 Name of the complaint:The State Represented by the Sub Inspector of Police, Pathapatnam P.S. (Cr.No. 19/2014). Name of the AccusedFather's NameAgeReligionVillage &Mandal

1. Anupoju Srinivasa,S/o. Krishna 34 yearsHinduN/o. Seetharama Street Murthy AchariTaluk area, Pedda Bazar, Berhanpur, Ganjam District, Odisha State; R/o. Nagarampalli Street, Parlakhemundi town, Gajapathi District.

2. Gorasa Rajesh S/o. Rambabu26 yearsHinduPhoolbagh Colony, @RajuVizianagaram

A1.Santhosh AchariMani AchariNot HinduRahul street, Berhampur, mentionGanjam District, Odisha ed in thestate charg sheet A2. Khaja MusthafaAbdul RaheemNot HinduKhaza street, Berhampur, mentionGanjam District, Odisha ed in state. charge sheet

Offence : U/sec. 394 of IPC or 411 of IPC

Finding : The accused 1 and 2 are found not guilty.

Sentence or Order : The accused A1 and A2 are found not guilty for the offence punishable Under Section 411 IPC with which they were charged and accordingly they were acquitted of the same Under Section 248(1) Cr.P.C. The bail bonds of accused shall stands cancelled after lapse of 6(Six) months period.

The unmarked property if any shall be destroyed after lapse of appeal time.

11

Judicial Magistrate of I Class,

Kotabommali

(FAC)Tekkali, (FAC)Pathapatnam.

12

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

KOTABOMMALI

CALENDAR AND JUDGMENT

C.C.NO.216/2019

Date of offence:16.5.2019 Date of Complaint or report: 17.5.2019 Date of apprehension of accused:21.5.2019 Date of release on bail:21.5.2019 u/sec.41-A CrPC Date of commencement of trial:20-1-2020 Date of close of trial:10-2-2020 Date of sentence or order:10-2-2020 Explanation of delay:Due to non production of witnesses by the prosecution. Name of the complaint:The State Represented by the Sub Inspector of Police, Kotabommali P.S. (Cr.No. 119/2019). Name of the Father's AgeReligionVillage &Mandal AccusedName Devadi Babulu, s/o. Late Ramayya, age 69 years, SC by caste, Prakashnagar colony of Kotabommali village & mandal. Driver of Auto bearing no.AP30W 7478.

Offence : U/sec. 304-A IPC and sec.134(a)(b), 181 of MV Act

Finding: The accused is found not guilty.

Sentence or Order: Accordinglythe accused is found not guilty for the offence punishable Under Section 304-A IPC and sec.134(a)(b) and 181 of MV Act and accordingly he is acquitted of the said offence under section 255(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of 6(Six) months. The unmarked property if any shall be destroyed after lapse of appeal time.

Judicial Magistrate of I Class,

13

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

KOTABOMMALI.

Present:Sri.K.Prakash Babu,

Judl. Magistrate of I Class,Kotabommali.

Thursday, this the 28 th day of June, 2018.

C.C.No.16/2016

BETWEEN:

The State Represented by the Sub Inspector of Police, Kotabommali Police Station. …. Complainant.

AND:

Ayinampudi Appalaraju, s/o.Late Satyanarayanraju, age 48 years, Kshatriya by caste, D.no. 27/10/9/1, Arunodaya colony, Srinagar, Gajuwakam, Visakhapatnam,

Driver of Lorry NO. AP 31 X 5780. ….. Accused.

This case coming before me on this day for hearing in the presence of APP., for the state of Complainant and of Sri S.Sridhara raju, Advocate

for the accused and this court delivered the following:

JUDGEMENT

14

1.The State represented by the Sub Inspector of Police

Etcherla police Station has filed a Charge Sheet in Cr.No. 07/2016 against the accused for the offence punishable Under sections 304-A IPC and section 184 (B) of MV Act 1988.

3.The brief facts of the charge sheet are that:

The offence took place on 31.01.2015 at about 16.00 hours the deceased left from his work place at Santhabommali village for

Kothapeta and Kotabommali on his motor cycle on his personal works.

After completion of the works the deceased started from Kothapeta for

Santhabommali village on the same motor cycle, on the way of

Santhabommali at about 20.00 hours the deceased reached took place on tar road opposite to the house of Boyina Ramesh at Kotabommali, the marginally noted accused driver of lorry no. AP 31 X 5780 was coming opposite direction, drove the lorry in a rash and negligent manner and dashed against the motor cycle of the deceased. Due to which the deceased pushed and fell on the road, sustained deep injuries over head, face oozed blood from nose mouth and ears and went to the unconscious state. The deceased was shifted to RIMS hospital, Srikakulam.

Basing of the report of LW.1(Balaka Viswaswara rao) LW.19

Sri G.Narayanaswami, SI of Police) registered a case in Cr.no. 07/2016

Under Sections 304-A IPC and Section 184 (b) of MV ACt investigated into. During the course of investigation he examined the witnesses and collected the records and served the notice Under section 41-B Cr.P.C and he filed the charge sheet.

4.The case is taken on file and taken the cognizance of the offence under section 304-A IPC.

5.On 01.11.2016 copies of documents furnished Under

Section 207 Cr.P.C to the accused.

6.The accused examined are examined Under Section 251

Cr.P.C for the offences Under Section 304-A of IPC and the substance of 15 the accusation explained to him in telugu for which he pleaded not guilty and claimed to be tried.

7. In the open court it was examined and he admitted his guilt then court made enquiry in respect of voluntaries, his admission is voluntary one when questioned about quantum of sentence the counsel

for the accused raised that the accused is having wife and widow mother

and also his ribs were fractured in an accident. Today it is coming for hearing on sentence, the counsel filed two petitions along with medical report of the accused. Therefore his plea not accepted and separate vide orders were passed to the petitions filed by the petitioner/Accused.

8.After considering of mitigating in the circumstances, the accused is found guilty for the offence punishable Under section 304-A of

IPC and convict and for the same Under section 255(2) Cr.P.C and he is sentenced to under go simple imprisonment for a period of one year and further sentenced to pay a fine of Rs.5000/- in default of fine he shall under go the SI for 4 months as default sentence. The accused has got right of Appeal before the Hon’ble Prl., District & Sessions Court,

Srikakulam.

Dictated to the Acting Stenographer corrected and

pronounced by me in the open court, this the 28 th day of June-2018.

Judicial Magistrate of I Class,

Kotabommali

Appendix of Evidence

Witnesses examined

For Prosecution: For defence:

-NIL- -Nil- Exhibits marked

For Prosecution: For defence:

-NIL- -Nil-

Judicial Magistrate of I class,

Kotabommali.

16 17

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

KOTABOMMALI

CALENDAR AND JUDGMENT

C.C.NO.16/2016

Date of offence: 31.01.2015 Date of Complaint or report: 31.01.2015 Date of apprehension of accused: 41(B) Cr.P.C notice Date of release on bail:- Date of commencement of trial:-- Date of close of trial:-- Date of sentence or order:28.06.2018 Explanation of delay:Due to non production of witnesses by the prosecution. Name of the complaint:The State Represented by the Sub Inspector of Police, kotabommali P.S. (Cr.No.07/2016)

Name of the Father's Name AgeReligionVillage & Mandal Accused Ayinampudi Appalaraju, s/o.Late Satyanarayanraju, age 48 years, Kshatriya by caste, D.no. 27/10/9/1, Arunodaya colony, Srinagar, Gajuwakam, isakhapatnam, Driver of Lorry NO. AP 31 X 5780

Offence : Under Section 304-A IPC

Finding: The accused found guilty.

Sentence or Order: In the result the accused is found guilty for the offence punishable under Section 304-A of IPC and convict and for the same Under section 255(2) Cr.P.C and he is sentenced to under go simple imprisonment for a period of one year and further sentenced to pay a fine of Rs.5000/- in default of fine he shall under go the SI for 4 months as default sentence. The accused has got right of Appeal before the Hon’ble Prl., District & Sessions Court, Srikakulam.

Judicial Magistrate of I Class,

Kotabommali.

Copy to the accused.

IN THE COURT OF THE JUDICIAL MAGISTRATE OF IST CLASS,

ICHAPURAM.

Present:- Kum. S.Mani. Judl. Magistrate of Ist Class Ichapuram

Wednesday, the 18th day of April, 2018.

C.C No. 138/2013

Between:

The State rep. By the Sub Inspector of Police, Kaviti Police Station, Kaviti. Ichapuram. … Complainant. And:

Sharuk Mondal @ Swarup Narayan Mondal, S/o Viswanadh Mondal, Age 50 years, Chhotobainan Village, Raina P.S., Burdwan District, West Bengal State. Present Address : Kantali Village and Post, Goghat P.S. Hoghly District, West Bengal, Driver of Lorry WB 15 B 7762.

… Accused

This case is coming on 16-04-2018 for fi nal hearing

before me in the presence of Asst. Public Prosecutor for State and of

Sri. N.Viswanadhan, advocate for the accused and upon hearing both sides and having stood over till this day for consideration, this court delivered the following.

J U D G M E N T

1.The Sub-Inspector of Police, Kaviti Police Station, Kaviti, fi led charge sheet in Crime No. 37/2013, Under section 304-A and 338 of Indian Penal Code against accused .

2.The Brief facts of the prosecution case are :

On 28-05-2013 while L.W-1 (Muzuban Shate ) , D-1 (Hakim Shate @ Hakim Khan ) and D-2 (Bamapada Mondal) and the accused were started in the lorry bearing no WB 15 B 7762 with

Palmyra trees load at Gajapathinagaram village, Vizianagaram

District to go to West Bengal. On 29-05-2013 at about 4.00 am when they reached near Swagath Petrol bunk near R. Karapadu Junction on NH-16 road the accused drove the lorry in uncontrollable speed, dashed against the rear portion of the sugar bags laden stationary lorry bearing no AP 16 TY 1949. As a result, D-1 (Hakim Shate) and

D-2 (Bamapada Mondal) sustained fatal injuries and died in the cabin of the lorry and L.W-1 (Muzuban Shate ) sustained grievous injuries. L.W-1 (Muzuban Shate ) was shifted to the community

Contd..

//2//

Hospital, Ichapuram in NHAI ambulance, L.W-24 Sub-Inspector,

Kaviti Police station recorded the statement of L.W-1 (Muzuban

Shate ) and registered the F.I.R in Cr. No. 37/2013 , U/sec 304-A, 338 of IPC. During the course of investigation , L.W-24 Sub-

Inspector of police observed the scene of off ence in the presence of

L.W’s 9 (Kalla Ravi) and L.W 10 (Esuru Saradhi Reddy ) and got photographs and scene observation report, held inquest over the corpse of D-1 (Hakim Shate) in the presence of L.W’s 9 to 13 ( Kalla

Ravi, Esuru Saradhi Reddy, narthu Jagannadham, Shek Sherajuddin and Pollai Umamaheswara Rao) and L.W-23 (S.Koteswara Rao )

Head Constable held inquest over the dead body of D-2 (Bamapada

Mondal) in the presence of L.W’s 14 to 18 ( Asi Endrasenareddy,

NemalapuriManmadarao,PittaDevendrareddy,Pandava

Chandrasekhar, S.K.Khan) at community hospital, Ichapuram, subjected the dead bodies for autopsy and L.W-24 (M.Chinnamnaidu)

Sub-Inspector of police recorded the statements of L.W’s 1 to 7 ( Muzuban Shate , Govardan Bisai, Surjo Swai, Shek Alikhan ,

Mohamood Kamaruddin, Mahamood Naseer and Neerapodu Mondal) sent requisition to L.W-19 (N.Ramesh) Motor Vehicle Inspector and verifi ed the records of the vehicle and arrested the accused on 20- 06-2013 and recorded the statement of L.W-8 (Nisith Kumar

Tapaswi) and sent the accused for judicial remand.

After rending fi rst aid to L.W-1, L.W-1 (Muzuban Shate ) was referred to the MKCG Hospital, berhampur for further treatment and L.W-19 (N.Ramesh) M.V.Inspector issued the accident report of both vehicles opining that the accident was not occurred due to any mechanical defects. L.W-20 (Dr, P.Srinivas ) issued the

Postmortem certifi cates of D-1 (Hakim Shate) and D-2 (Bamapada

Mondal) opining that the deaths are due to cardiac respiratory arrest due to haemorrhagic shock and L.W21(Dr.S.A.Behara) issued

Contd..

//3// the preliminary wound certifi cate of L.W-1 (Muzuban Shate ) and

L.W-22 ( Dr. U.Kodandaramu ) issued the wound certifi cate of L.W-1 (Muzuban Shate ) opining that the injuries are simple and grievous in nature. after completion of investigation L.W-25 (P.Murali ) , Sub-

Inspector of police kaviti police station fi led charge sheet.

3.This case was taken on fi le for the off ence punishable

Under section 304-A and 338 of IPC .

4.On the appearance of accused , case copies were furnished to him U/sec 207 Cr.P.C and was examined U/sec 251

Cr.P.C by explaining the substance of accusation against him under section 304-A and 338 of Indian Penal Code Having under stood, he denied the same and claimed to be tried.

5.During the course of trial Prosecution cited 25 witnesses and examined L.W-2 ( Govardan Bisai), L.W-4 (Shek Alikhan), L.W-1 (Muzuban Shate @ Mujibar ), L.W -24 (M.Chinnamnaidu) and L.W-9 (

Kalla Ravi ) examined as P.W’s 1 to 5 Ex P1 to P11 were marked.

The remaining witnesses i.e. Surjo Swai (L.W-3), Mahamood kamaruddin (L.W-5), Mahamood Naseer (L.W6), Neerapodu Mondal (L.W-7), Nisitha Kumar Tapswi (L.W-8), Esuru Saradhi Reddy (L.W- 10), Narthu jagannadham (L.W-11), Shek Sherajuddin (L.W-12),

Pollai Umamheswara Rao (L.W-13), Asi Endrasenareddy (L.W-14),

Nemalapuri Manmadarao (L.W-15), Pitta Devendrareddy (L.W-16),

Pandava Chandrasekhar (L.W-17), S.K.Khan (L.W-18), N.Ramesh (L.W-19), Dr.P.Srinivas (L.W-20), Dr. S.A Behara (L.W-21), Dr.

U.Kodandaramu (L,W22), S.Koteswara Rao (L.W-23) and P.Murali (L.W-25) given up by the prosecution.

6.After completion of trial, accused examined U/Sec. 313 of Cr.P.C. and incriminating material was read over and explained to him in telugu for which he denied the off ence U/sec 338, 304-A of

IPC and reported no defence. and 5th to 9th lines of 161 Cr.P.C statement of P.W-1 is marked as D-1 in “D” series.

Contd..

//4//

7.Heard the arguments on both sides.:

8.Now the point for determination is :

a.Whether accused is the driver of the crime vehicle at the time of the accident. ?

b.Whether the accused drove the crime vehicle rashly or negligently and caused the accident. ?

c.Whether the deceased died due to the alleged accident and P.W-3 sustained injuries by the alleged accident.?

d.Whether the prosecution bring home the guilt of the accused for the off ence punishable Under section 304-A and 338 of

IPC. beyond all reasonable doubt.?

POINT :

9.P.W-1 Govardan Bisai, who is alleged to be the direct witness, deposed that on 29-05-2013 at 4.00 am the alleged accident was occurred in front of near petrol bunk of Balaram peta . Then himself and L.W-3 sitting in the front cabin of their lorry bearing no

AP 16 TY 1949 which is parked at left side of the road and on hearing the sound of the said lorry hit their lorry from the back side. There are four persons in the front cabin of lorry bearing no.

WB 15B 7762 then he was referred to hospital through 108 ambulance and dead bodies are left at the scene of off ence. Later police came and took the two dead bodies from the vehicle WB 15 B 7762.

P.W-1 in his cross examination testifi ed that he stated in his section 161 Cr.P.C statements that he and his lorry cleaner (L.W-

3) after the alleged accident observed the bearing No of the crime vehicle as WB 15 B 7762 and it was a loaded lorry and P.W-1 contradicted from his section 161 Cr.P.C statement that on 29-05- 2013 at 3.45 am they parked their lorry at left margin at swagat petrol bunk, Kaviti and went to attend natural calls to the nearby fi elds which is marked as Ex D-1 and further deposed that he stated

Contd..

//5// in his section 161 Cr.P.C statement that himself and L.W-3 are sitting in front cabin of their lorry bearing no. AP 16 TY 1949, packed at left side of the road and heard the sound of crime vehicle hit their lorry from backside, further in his chief examination he deposed that he know the persons who are died in the alleged accident but in his section 161 Cr.P.C statement he stated that after the alleged accident, he learnt that, the deceased is the second driver of the lorry bearing no. WB 15 B 7762 and the injured is driver of WB 15 B 7762. Hence, there is inconsistency in his 161

Crpc statements and his evidence before the court, further testifi ed that there are separate places for parking of the vehicles at NH-16 road and their vehicle is parked at the NH-16 road which is not the place allotted for parking of vehicles.

10.P.W-2 deposed that the deceased is his uncle and he received the dead body of deceased Hakim from CHC, Ichapuram and saw the crime vehicle at police station and inquest over the dead body of Hakim was conducted in his presence and inquest report is marked as Ex P-1. P.W-2 turned hostile and not supported the case of prosecution and 161 Cr.P.C statement of P.W-2 marked as

Ex P-2.

11.P.W-3 who is the complainant deposed that about 5 years back, fi ve members were travelling in a truck, loaded with palmirah trees and their lorry dashed the stationed lorry at 3 am and their lorry driver by name Bampada Mandal and another person by name

Hakim Shate were died and his two legs were broken in the alleged accident and one Mohur Khan who was traveling with him removed him from the vehicle, P.W-3 turned hostile. Hence his evidence is not much helpful to the case of prosecution and cross examined by the prosecution and his section 161 Cr.P.C statement were marked as Ex P-3 and in his cross examination he deposed that he know the accused, but he is not the driver of the said crime vehicle and

Contd..

//6// further admitted that on 29-05-2013 at about 4 am their lorry reached to swagath petrol bunk near karapadu village the lorry bearing number WB 15 B 7762 in which they were travelling driven by the driver i.e. accused in rash and negligent manner with heavy speed and dashed against the lorry bearing number AP 16 TY 1949 which was stopped at left side on the road and and testifi ed that he sustained bleeding injuries on his head , left shoulder, left elbow and fracuture and injury over left knee and in his cross examination by the learned defence counsel he testifi ed that the accused is not the driver of the crime vehicle and the driver of the said crime vehicle is the deceased Bompada Mandal.

12.P.W-4 investigating off icer deposed about recording the statements of P.W-3 at CHC, Ichapuram basing on which he registered FIR u/sec 304-A and 338 of IPC and recorded the statements of witnesses and visited the scene of off ence in presence of mediators and prepared the rough sketch of the scene of off ence and drafted scene observation report and took photographs of the scene of off ence and shifted the deceased 1 and 2 to CHC,

Ichapuram and sent requisition to MVI for inspection of crime vehicles bearing no WB 15 B 7762 and AP 16 TY 1949 and held inquest over the dead body of the Deceased 1 and 2 and examined the witnesses L.W’s 4 to 7 and arrested the accused. After receiving the postmortem certifi cate and MVI report he fi led the charge sheet.

FIR is marked as Ex P-4, inquest report of D1 is marked as Ex P-5, inquest report of D2 is marked as Ex P-6, wound certifi cate of P.W-3 is marked as Ex P-7, M.V.I. report is marked as Ex P-8, Photographs are marked as Ex P-9, Postmortem certifi cate of D1 is marked as P- 10, and postmortem certifi cate of D2 is marked as Ex P-11.

P.W-4 in his cross examination testifi ed that P.W-1 is not a direct witness to the alleged accident and stated in his 161 Cr.P.C statement that he came to know through one injured person that one

Contd..

//7// injured is the driver of the WB 15B 7762 and another deceased persons is the 2nd driver of WB 15B 7762.

13.P.W-5 , VRO deposed that he and L.W-10 were called by

P.W-4 to stood as mediator in this case and then went to the scene of off ence, at 12.30 pm where they observed two lorries in which one lorry hit the other halted lorry from back on NH-16 which is at a distance of 100mts from Karapadu junction and observed two dead bodies in the cabin of crime vehicle and further deposed that he do not know whether scene observation report was prepared by the police in their presence or not.

In his cross examination P.W-5 deposed that he do not remember whether the police recorded his 161 crpc statements and also do not remember in which case he stood as mediator and the scene of off ence is west of the NH-16 of Karapadu Junction.

14.On perusal of entire record, P.W’s 2 and 3 turned hostile and not supported the case of prosecution hence, their evidence is not much helpful to the case of prosecution and were cross examined by the prosecution after obtaining permission from the court. By the evidence of P.W-1 no where he stated that the accused is the driver of the crime vehicle and drove the crime vehicle rashly or negligently and caused the alleged accident and further in his 161 Cr.P.C statements he stated that himself and L.W-3 parked their lorry at left side of the road at swagath petrol bunk of Kaviti and went to attend natural calls to the nearby fi elds which is marked as

Ex D-1. Where as, in his evidence before the court he deposed that while he and L.W-3 were sitting in the front cabin of their lorry bearing no AP 16 TY 1949 and heard the sound of the lorry bearing no WB 15 B 7762 which hit the earlier vehicle from back side.

Hence, by the evidence of P.W-1 there is inconsistency in his 161

Crpc statements and his evidence before the court by which it shows that he is not an eye witness to the alleged accident as such he is

Contd..

//8// not a direct witness to the alleged accident which was also corroborated by PW-4 (I.O) and further he came to know about the alleged accident through one injured person further PW-3 categorically stated in his cross examination that accused is not the driver of the crime vehicle and the driver of the crime vehicle is deceased Bompada Mondal. As per Ex P-7 and by the evidence of

P.W-3, the injuries to PW-3 were not in dispute. As per Ex P-10 and

P-11, the death of deceased 1 and 2 were not in dispute, but there are no direct witnesses to show that accused is the driver of the crime vehicle at the time of the alleged accident and drove the crime vehicle rashly and negligently and caused the injuries to P.W-3 and caused death of Deceased 1 and 2. Hence, non of the witnesses examined by the prosecution disclosed that the accused is the driver of the crime vehicle and caused the alleged accident resulting in death of deceased 1 and 2 and injuries to P.W-3. Hence, in view of the above forgoing reasons prosecution failed to produce the suff icient material to prove that the accused is the driver of the crime vehicle and caused the alleged accident and there by committed an off ence u/sec 304-A and 338 of IPC. Hence, prosecution failed to prove the guilt of the accused beyond all the reasonable doubt.

15.In the result, the accused found not guilty for the off ence punishable under section 338 and 304-A of Indian Penal Code, and he is acquitted Under section 255(1) Cr.P.C and Bonds and bail bonds of the accused shall stands to be cancelled after expiry of appeal time.

Typed to my dictation, corrected and pronounced by me in open court this the 18th day of April, 2018.

Sd/- S.Mani

Judl. Magistrate of Ist Class

ICHAPURAM

Contd..

//9//

Appendix of evidence

Witnesses Examined.

For Prosecution :- P.W1: Govardan Bisai, dt. 11-08-2017 P.W2: Shek Alikhan, dt. 16-02-2018 P.W3: Muzuban Shate @ Majibar, dt. 28-02-2018 P.W4: M.Chinnam Naidu, Dt.14-03-2018 P.W5: Kalla Ravi, Dt.03-04-2018

For Defence: - -NIL -

Exhibits Marked

For Prosecution: - Ex.P1Inquest report, Ex.P2161 Cr.P.C statement of P.W-2 Ex.P3161 Cr.P.C statement of P.W-3 Ex.P4First Information Report Ex.P5Inquest report of D-1 Ex.P6Inquest report of D-2 Ex.P7Wound certifi cate of P.W-3 Ex.P8M.V,I Report Ex.P9Photographs four in number Ex.P10Postmortem certifi cate of D-1 Ex.P11Postmortem certifi cate of D-2.

For Defence: -

Ex. D-1. 5t h to 9t h lines of 161 Cr.P.C statement of P.W-1

Material objects

- NIL -

Sd/- S.Mani

Judl. Magistrate of Ist Class

ICHAPURAM

Contd..

CALENDAR AND JUDGMENT

Calendar Cases tried by the Judl. Magistrate of Ist Class, Ichapuram.

Date of Offence :29-05-2013

Date of Complaint or Report : 29-05-2013

Date of Appearance of accused :20-06-2013

Date of Release on Bail :20-06-2013

Date of Commencement of trial: 11-08-2017

Date of Close of trial: 03-04-2018

Date of Sentence of order: 18-04-2018

Explanation for delay: Due to non production of witnesses by the Prosecution. Name of the complainant: State represented by Sub-Inspector of Police, Kaviti Police station , Kaviti

Calendar and Judgment in C.C.No. 138/2013 on the file of Judl. Magistrate of I Class Court, Ichapuram.

Name and address of the Accused :

Sharuk Mondal @ Swarup Narayan Mandal, S/o Viswanadh Mondal, Age 50 years, Chhotobainan Village, Raina P.S., Burdwan District, West Bengal State. Present Address : Kantali Village and Post, Goghat P.S. Hoghly District, West Bengal, Driver of Lorry WB 15 B 7762.

Offence:- Causing death by rash or negligent act is an offence U/sec. 304-A of Indian Penal Code Causing grievous hurt by act endangering life of personal safety of others is an offence U/sec 338 of Indian Penal Code.

Finding:- Not guilty.

Sentence of order:- In the result, the accused found not guilty for the off ence punishable under section 338 and 304-A of Indian Penal Code, and he is acquitted Under section 255(1) Cr.P.C and Bonds and bail bonds of the accused shall stands to be cancelled after expiry of appeal time.

Sd/- S.Mani

Judl. Magistrate of I st Class, Ichapuram Copy to The Hon'ble Ist Addl. District and Sessions

Judge's court, Srikakulam.

Contd..

//True Copy //

Judl. Magistrate of I st Class, Ichapuram

Contd.. Contd..

IN THE COURT OF THE JUDICIAL MAGISTRATE OF IST CLASS,

ICHAPURAM.

Present:- Kum. S. Mani,

Judicial Magistrate of Ist Class,

Ichapuram

Monday, the 23rd day of April, 2018.

C.C No. 2/2018

Between:

The State rep. By the Proh. & Excise Inspector, Ichapuram. … Complainant. And:

Panapana Desayya, S/o late Rajayya, Age 47 years, R/o Kottakojjiria (v) in Kaviti Mandalam, Srikakulam Dist.

… Accused

This case is coming on 20-04-2018 for fi nal hearing

before me in the presence of Asst. Public Prosecutor for State and of

Sri. B.Jaggarao advocate for the accused and upon hearing both sides and having stood over till this day for consideration, this court delivered the following.

J U D G M E N T

1.Accused produced before me for the off ence punishable

U/sec. 34(a) of A.P. Excise Act. 1968. by the Inspector of Proh. and

Excise, Ichapuram.

2. The succinct summary of the case of the prosecution as per the charge sheet is as follows :-

On 24-05-2017 at about 8.35 am L.W-4 conducted patrolling along with his staff by names viz., K.Vaikuntarao(L.W-1),

K.Ramesh (L.W-2) and A.Thammaraju (L.W3) in the limits of

Kottakojjiria village in Kaviti Mandal found the accused in possession of one plastic hand bag containing 3 MC Dowel No-1

Luxury whisky bottles 180ml each and 7 off icers choice reserve whiskey bottles 180ml each without bills or licence then tried for mediators but in vain. and verifi ed the bonafi dies of the accused. On interrogation, accused revealed with regard to the aforesaid contraband.

Contd..

//2//

Then L.W-4 seized and sealed the contraband and drawn one bottle from each brand for chemical analysis and aff ixed identity slips duly signed by Excise off icials. Under the cover of the occurrence report L.W-4 arrested the accused .

Basing on the occurrence report, L.W-4 registered FIR as

Cr. No. 41/2017 for the off ence U/Sec. 34(a) of A.P. Excise Act. and he issued notice to the accused U/Sec. 41-A of Cr.P.C. After completion of entire investigation, L.W-5 fi led charge sheet. Hence, the charge sheet.

3.After appearance of Accused, case copies were furnished to him and was examined U/sec. 239 Cr.P.C. A charge U/Sec. 34(a) of A.P.Excise Act. has been framed and read over and explained to him in Telugu for which he pleaded not guilty and claimed for trial.

4.In the trial aff orded by both parties, prosecution cited 5 witnesses. Examined P.W’s 1 and 2 i.e. P. Johnprasad (L.W-4) examined as P.W-1 and K.Mallikarjuna Rao (L.W-5) examined as P.W-

2. and Ex.P1 to P4 are marked. M.O’s 1 and 2 are marked. The remaining witnesses i.e. K.Vaikuntarao(L.W-1), K.Ramesh (L.W-2) and A.Thammaraju (L.W3) were given up by the prosecution.

5.After completion of trial, Accused examined U/Sec. 313 of

Cr.P.C. and Incriminating material was read over and explained to him in telugu for which he denied and reported no defence. No

Exhibits were marked in “D” series.

6.Heard both sides.

7.Now the Point for determination is :-

Whether the prosecution has proved the guilt of the accused for the charge framed U/Sec. 34(a) of AP.Excise Act beyond all reasonable doubt ?

As per Section 34(a) of A.P. Excise Act . 1968 :- “ Whoever, in contravention of this Act or of any rule, notifi cation or order made, issued or passed there under or of any license or permit granted or issued under this Act :

Contd..

//3//

(a).Imports, exports, transports, manufactures, collects or possesses or sells any intoxicant- Shall on conviction be punished

i).where the intoxicant involved in the off ence is less than such quantity as may be notifi ed in this behalf with imprisonment for a term which shall not be less than six months but which may extend upto three years and with fi ne which shall not be less than rupees fi ve thousand but which may extend upto rupees twenty thousand; ii).Where the intoxicant involved in the off ence is not less than the quantity notifi ed as aforesaid with imprisonment for a term which shall not be less than ( three years) and which may extend upto fi ve years and with fi ne which shall not be less than rupees ten thousand but which may extend upto rupees one lakh.

8.In order to prove its case, the prosecution examined two witness ie. P.W-1 and 2 as per the evidence of P.W-1 P.Johnprasad , deposed that on 24-05-2017 at about 8.35 am during the Patrolling conducted by him along with L.W’s-1 to 3, in the limits of

Kottakojjiria village of kaviti mandal they found the accused in possession of one hand bag containing 3 MC Dowel No-1 Luxury whisky bottles 180ml each and 7 off icers choice reserve whiskey bottles 180ml each without bills or licence. P.W-1 sent L.W-1 to secure mediators from Kottakojjiria village but in vain. On interrogation the accused revealed his particulars as Panapana

Desayya, S/o late Rajayya, age 47 years . P.W-1 further deposed that on his dictation L.W-3 drafted the occurrence report, under the cover of occurrence report he arrested the accused by informing him about the off ence committed by him is contravention of provision of the section 34(a) of A.P.Excise Act. 1968, and drawn one bottle from each brand as sample for chemical analysis and aff ixed identity slips duly signed by him and L.W’s-1 to 3 and obtained the Signature of

Contd..

//4// the accused on it. On issuance of 41-A Cr.P.C they released the accused and returned to the excise station with property and registered F.I.R in Cr. No. 41/2017 , U/sec 34(a) of A.P.Excise Act.

and L.W-5 send the samples to chemical analysis. Occurrence report is marked as Ex P-1, Registered F.I.R is marked as Ex P-2, drawn sample are marked as M.O’s 1 and 2.

During the course of cross examination P.W-1 deposed that on the day they detected only this case and he do not know to whom L.W-1 called to stood as mediators and no written summons were issued to secure mediators and he have not mentioned the colour of plastic bag and batchnumber and manufacturing number of the seized contraband in Ex P-1 report

9.P.W-2 K. Mallikarjuna Rao deposed that he verifi ed the investigation done by P.W-1 and sent the drawn sample to chemical analysis and obtained the analysis report and received the destruction orders . After receiving of the chemical analysis report and completion of the investigation he fi led charge sheet. chemical analysis report is marked as Ex P-3, Destruction orders issued by

Deputy commissioner of Proh and Excise, Srikakulam is marked as

Ex P-4. In his cross examination he admitted that no rough sketch of the scene of off ence drafted by them and not mentioned the name of the scribe of the Ex P-1 in Ex P-1 report and he do not know to whom L.W-1 asked to act as mediators .

10.In order to bring home the guilt of the accused, the prosecution must prove that the accused is in actual possession of the contraband. P.W-1 deposed that he sent L.W-1 to secure mediators from Kottakojjiria village . Hence, there is every chance to secure the mediators from Kottakojjiria village even then they failed to secure mediators and even the prosecution witnesses did not mentioned the names of the persons who refused to act as mediators when they tried to secure mediators to seize the contraband from the possession of the accused and P.W-1

Contd..

//5// admitted that he have not mentioned the batch number of the seized contraband.

11.In view of the decision in Pradeep Narayan

Madgaonkar and other’s Vs State of Maharashtra AIR 1995 SC 1930 Hon’ble Court held that, “ the evidence of police off icials cannot be discarded merely on the ground that they belongs to the police and are either interested in the investigating or the prosecution agency. However, as far as possible, the corroboration of their evidence on material particulars should be sought.

12.In the present case on hand except excise witness no other independent witnesses were examined by the prosecution to corroborate the evidence of P.W’s 1 and 2 and the evidence of P.W’s 1 and 2 cannot be discarded merely on the ground that they belongs to the excise but their evidence must be corroborated with other independent witnesses.

13.As per section 100 (4) of Crpc Persons in-charge of closed place to allow search :

“Before making a search, the off icer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do”.

14.In Yeduru Srinivasulu Reddy Vs. State of A.P.

2002(1) ALD (Crl) 347

Wherein it was held that when no mediators were examined, though search conducted in a busy locality, the conviction of the accused is not sustainable.

Contd..

//6//

Hence, when there were no mediators present at the time of arrest and seizure of the contraband it is not safe to rely upon the evidence of P.W’s 1 and 2 unless their evidence corroborated with any other independent witnesses and it is duty of prosecution to produce the material witness and when it fails to do so, the accused is entitled for benefi t of doubt.

Hence, it is not just and proper to come to the conclusion about the guilt of the accused basing on the evidence placed by the prosecution and in view of the above discussion, prosecution failed to establish the case beyond all reasonable doubt and failed to bring home the guilt of the accused.

15.In the result accused found not guilty for the off ence charged U/sec. 34 (a) of A.P. Excise Act. 1968 and he is acquitted

U/Sec. 248(1) of Cr.P.C M.O’s 1 and 2 shall be destroyed after expiry of appeal time. Accused is directed to execute a bond of Rs. 5,000/- with single surety as required U/Sec. 437-A of Cr.P.C to appear

before the appellate court if preferred any appeal.

Typed to my dictation, corrected and pronounced by me in open court this the 23rd day of April, 2018.

Sd/- S.Mani

Judl. Magistrate of Ist Class

ICHAPURAM

Appendix of evidence

Witnesses Examined .

For Prosecution :- For Defence :- PW1: P. John Prasad, Sub-Inspector,-None- Proh & Excise, Ichapuram

PW2: K.Mallikarjuna Rao, Inspector, Proh & Excise, Ichapuram.

Contd..

//7//

Exhibits Marked

For Prosecution: -

Ex.P1Occurrence Report dt 24-05-2017 Ex.P2First Information Report , dt 24-05-2017 Ex.P3Chemical Analysis Report, dt. 09-06-2017 Ex.P4Destruction orders dt. 04-11-2017

For Defence: - N I L -

Material objects

M.O’s 1 and 2 two Sample Bottles

Sd/- S.Mani

Judl. Magistrate of Ist Class

ICHAPURAM.

Contd..

CALENDAR AND JUDGMENT

Calendar Cases tried by the Judl. Magistrate of Ist Class, Ichapuram.

Date of Offence :24-05-2017

Date of Complaint or Report : 24-05-2017

Date of Apprehension of accused:41-A of Cr.P.C

Date of Release on Bail:

Date of Commencement of trial: 14-03-2018

Date of Close of trial: 19-03-2018

Date of Sentence of order: 23-04-2018

Explanation for delay: No Delay

Name of the complainant: State represented by The Inspector of Proh. and Excise Ichapuram.

Calendar and Judgment in C.C.No.2/2018 on the file of Judl. Magistrate of I Class Court, Ichapuram.

Name and Address of the accused:

Panapana Desayya, S/o late Rajayya, Age 47 years, R/o Kottakojjiria (v) in Kaviti Mandalam, Srikakulam Dist.

Offence:- U/sec. 34(a) of A.P. Excise. Act 1968.

Finding:- Not guilty.

Sentence of order:- In the result accused found not guilty for the off ence charged U/sec. 34 (a) of A.P. Excise Act. 1968 and he is acquitted U/Sec. 248(1) of Cr.P.C M.O’s 1 and 2 shall be destroyed after expiry of appeal time. Accused is directed to execute a bond of Rs. 5,000/- with single surety as required U/Sec. 437-A of Cr.P.C to appear before the appellate court if preferred any appeal.

Sd/- S.Mani

Judl. Magistrate of Ist Class

ICHAPURAM

Copy to The Hon'ble Ist Addl. District and Sessions

Judge's court, Srikakulam.

Contd..

IN THE COURT OF THE JUDICIAL MAGISTRATE OF IST CLASS,

ICHAPURAM.

Present:- Kum. S.Mani. Judl. Magistrate of Ist Class Ichapuram

Tuesday, the 17th day of April, 2018.

C.C No. 93/2014

Between: The State Rep. By the Sub-Inspector of Police, Town Police Station, Ichapuram. … Complainant. And:

Gajji Mohana Rao @ Mallesu, S/o late Perumallu, Age 32 years, Karji Street @ Golla Street, Rattakanna Village, Ichapuram Mandal. … Accused

This case is coming on 13-04-2018 this day for fi nal hearing before me in the presence of Asst. Public Prosecutor for the complainant and of Sri. G.Seethayya Advocate for the accused having stood over till this day for consideration, this court delivers the following :

J U D G M E N T

1.The Sub-Inspector of Police, Ichapuram Town Police fi led a charge sheet in Cr.No. 52/2014, for the off ence U/sec.384 of IPC against the accused.

2. The brief facts of the prosecution case is :

L.W-1 (Gummadi Seshamma) is residing at Pyla veedhi of

Rattakanna village in ichapuram municipality and her parents are same village of Thota veedhi and her marriage was solemized with

L.W-2 ( Gummadi Hanumanthu ) in the year, 2004 L.W-2 (Gummadi

Hanumanthu ) is at Saudi Arabia. About three months back she withdrawn amount from the ATM at Ichapuram and while returning to the village the accused waylaid her in the en-route and demanded to give the amount and ATM card and if doesn’t so he willabduct her son and send message to her husband refl ecting on her character.

She became frightened and gave the ATM card and cash Rs. 5,000/- and then frightened her in the same cadence and took Rs. 15,000/- and in the recent days it was increased. The matter was brought to the notice of L.W-2 (Gummadi hanumanthu) and on the advice of

L.W-2 (Gummadi Hanumanthu) , L.W-1 (Gummadi Seshamma) came

Contd..

//2// to the police station and presented the report, basing on the report , L.W-10, Sub-Inspector of Police, Ichapuram Town Police

Station registered the FIR in Cr.No. 52/2014 , U/sec 384 of IPC.

During the course of investigation, L.W-10, Sub-Inspector identifi ed the place of off ence and prepared rough sketch of scene of off ence, and recorded the statements of L.W’s 1 to 9 ( Gummadi

Seshamma, Gummadi Hanumabthu, Gummadi Neelamma, Chidipothu

Annamma, Edi Bodamma, Lenka Mohini, Ginni Rajarao, Chidipothu

Tarinayya, Lenka Neelakar ) and established the prima facie and served notice U/sec 41-A Cr.P.C to the accused and arrested the accused on 22-05-2014 at Ichapuram town police station and sent him judicial remand and the accused informed that the total extorted amount has been spent away and reluctant to give his disclosure statement. After completion of investigation L.W-10 ,

Sub-inspector fi led charge sheet.

3.This case was taken on fi le U/sec. 384 of Indian Penal

Code against the accused .

4.On appearance of the accused the case copies were furnished to him as required under section 207 Cr.P.C

5.Accused examined U/sec. 239 Cr.P.C. and a charge U/Sec.

384 of Indian Penal Code has been framed and read over and explained to him in Telugu for which he pleaded not guilty and claimed for trial.

6.During course of trial, the prosecution cited 10 witnesses and examined Gummadi Seshamma (LW-1), Gummadi Neelamma (L.W-3), Lenka Neelakar (L.W-9) and K.Vasunarayana (L.W-10) as

P.W’s 1 to 4 and Exhibits P1 to P6 were marked and remaining witnesses ie. Gummadi Hanumanthu (L.W-2), Chidipothu Annamma (L.W-4), Edi Bodamma (L.W-5), Lenka Mohini (L.W-6), Ginni Rajarao (L.W-7) were given up by the prosecution and the evidence of

Chidipothu Tarinayya (L.W-8) was closed as per Report fi led by the

Prosecution.

Contd..

//3//

7.After closure of prosecution evidence, the accused examined U/sec. 313 Cr.P.C and explained the incriminating material against accused and the same was denied by the accused and he reported no defence evidence.

8.Heard oral arguments of both sides and perused the record.

9.Now the point for consideration is :

Whether the Prosecution established the guilt of the accused U/sec. 384 of IPC beyond all reasonable doubt?

10.In support of its case, Prosecution examined 4 witnesses.

P.W’s 1 to 3 who are material witnesses deposed that they do not know anything about the case and turned hostile . Hence, their evidence is not helpful to the case of prosecution. P.W-1 further deposed that she do not know the contents of her report to police and her signature on the report is marked as Ex P-1 and P.W’s 1 to 3 were cross examined by the prosecution after obtaining the permission from the court and 161 Cr.P.C statements of P.W’s 1 to 3 are marked as Ex P-2 to P-4 and even in their cross examination nothing was elicited except the suggestions put forth to them. P.W-3 testifi ed in his cross examination that husband of P.W-1 working at

Saudi Arabia and used to send money of Rs. 10,000/- every month to

P.W-1 and he know about the sending of money by husband of P.W-1 to her.

11.P.W-4 who is investigating off icer deposed about his registration of F.I.R U/sec 384 of Indian Penal Code and recorded the statements of witnesses and visited the scene of off ence and draw the rough sketch and arrested the accused . F.I.R is marked as

Ex P-5, Rough Sketch is marked as Ex P-6 and in his cross examination he denied the suggestion that the witnesses, P.W’s 1 to 3 not stated before him as in their 161 Cr.P.C statements.

As per section 384 of Indian Penal Code :

Whoever commits extortion shall be punished with imprisonment of

Contd..

//4// either description for a term which may extend to three years , or with fi ne, or with both.

12. In order to prove extortion U/sec 384 of Indian Penal

Code, prosecution must establish that the accused intentionally puts P.W-1 in fear of injury and thereby dishonestly induces P.W-1 in fear to deliver him the money, there by committed the off ence of extortion. But in the present case on hand prosecution witnesses

P.W’s 1 to 3 did not support the case of prosecution and it is the complainant i.e. P.W-1 who has to depose that she sustained fear of injury when accused intentionally and dishonestly induced her in fear to deliver him the money but she turned hostile.

13.P.W-4 who is an investigating off icer deposed that he registered the case basing on the report of P.W-1 and there is no law to discard the evidence of investigating off icer i.e.,P.W-4 to convict the accused basing on the testimony on Investigating Off icer, if their evidence establishes that the accused committed the off ence and and P.W-4 is not the eye witness to the case of prosecution hence he is not the direct witness. Hence, in view of the above, none of the witnesses examined by the prosecution disclosed that accused intentionally and dishonestly induced P.W-1 in fear of injury and committed extortion and prosecution failed to establish the guilt of the accused U/sec 384 of Indian Penal Code beyond all reasonable doubt. Hence, in view of above discussion, the accused is entitled for benefi t of doubt.

In the result, Accused found not guilty for the off ence punishable under section 384 of IPC and he is acquitted under section 248(1) of Cr.P.C and Bonds and bail bonds of the accused shall stand to be cancelled after expiry of appeal time.

Typed to my dictation, corrected and pronounced by me in open court this the 17th day of April, 2018.

Sd/-S.Mani

Judl. Magistrate of Ist Class

ICHAPURAM

Contd..

//5//

Appendix of evidence Witnesses Examined .

For Prosecution :- PW1: Gummadi Seshamma , dt 05-01-2018. PW2: Gummadi Neelamma, dt. 05-01-2018 PW3: Lenka Neelakar, dt. 21-02-2018 PW4: K.Vasunarayana dt. 12-04-2018

For Defence :- - None -

Documents Marked

For Prosecution: -

Ex.P1Signature of P.W-1 on police report Ex.P2161 Cr.P.C statement of P.W-1 Ex.P3161 Cr.P.C statement of P.W-2 Ex.P4 161 Cr.P.C statement of P.W-3 Ex.P5First Information Report Ex.P6Rough Sketch of Scene of off ence

For Defence: - - Nil -

Material objects

- N I L -

Sd/-S.Mani

Judl. Magistrate of Ist Class

ICHAPURAM

Contd..

CALENDAR AND JUDGMENT

Calendar Cases tried by the Judl. Magistrate of Ist Class, Ichapuram.

Date of Offence :prior to 20-05-2014

Date of Complaint or Report : 20-05-2014

Date of Apprehension of accused:22-05-2014

Date of Release on Bail:02-06-2014

Date of Commencement of trial: 05-01-2018

Date of Close of trial: 12-04-2018

Date of Sentence of order: 17-04-2018

Explanation for delay: Due to non production of witnesses by the Prosecution.

Name of the complainant: State represented by The Sub-Inspector of Police, Town Police Station, Ichapuram.

Calendar and Judgment in C.C.No. 93/2014 on the file of Judl. Magistrate of I Class Court, Ichapuram.

Name and Address of the Accused :

Gajji Mohana Rao @ Mallesu, S/o late Perumallu, Age 32 years, Karji Street @ Golla Street, Rattakanna Village, Ichapuram Mandal.

Offence:- U/sec . 384 of IPC : Extortion

Finding:- Not guilty.

Sentence of order:- In the result, Accused found not guilty for the off ence punishable under section 384 of IPC and he is acquitted under section 248(1) of Cr.P.C and Bonds and bail bonds of the accused shall stand to be cancelled after expiry of appeal time.

Sd/- S.Mani

Judl. Magistrate of I st Class, Ichapuram Copy to The Hon'ble Ist Addl. District and Sessions

Judge's court, Srikakulam.

Contd..

IN THE COURT OF THE JUNIOR CIVIL JUDGE AT ICHAPURAM.

Present:- Kum. S. Mani. Junior Civil Judge, Ichapuram

Wednesday, the 25th day of April, 2018.

Original Suit No. 29/2016

Between: Telukala Ganapathi, S/o late Seetharam, Aged about 43 years Transport Broker and Agriculture, R/o D.No. 1-2-123, Main Road Purushottapuram, Ichapuram, Srikakulam Dist. Andhra Pradesh. … Plaintiff. And:

Konthala Saradhi, S/o late Surayya Reddy, Aged about 50 years Transport Broker, Main Road, Purushottapuram, Ichapuram, Srikakulam District, Andhra Pradesh.

... Defendant

This suit is coming on 16-04-2018 for fi nal hearing before me in the presence of Sri N.Viswanadham advocate for plaintiff and the defendant called absent and remained exparte, and after after considering the material on record, this court delivered the following :

J U D G M E N T

This is a suit fi led by the plaintiff for grant of

Permanent injunction restraining the defendants and his agents and servants and henchmen from ever interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule

Items 1 and 2 and the costs of the suit.

2. The averments of the plaint in brief runs as follows.

The suit schedule property items No’s 1 and 2 originally belong to the joint family of the Plaintiff and his brothers and father.

Late father of the plaintiff purchased some properties in his name and some properties in the name of his wife i.e., the mother of this plaintiff and some in the name of his brothers during his life time.

The father of the Plaintiff died about 30 years back. About 15 years back the joint family properties were partitioned orally among the brothers and mother of the plaintiff and the suit schedule items.

No-1 and 2 properties fell to the share of this plaintiff apart from some other properties. From that day onwards the plaintiff has been in peaceful possession and enjoyment of the suit schedule

Contd..

//2// items No’s 1 and 2 . In the revenue records the name of the plaintiff mutated and the adangal also stands in the name of the this plaintiff. This plaintiff was given a pattadar passbook and title deed by the Revenue authorities. The title deed is kept with the Andhra

Bank, Ichapuram since the Plaintiff obtained crop loan. The suit schedule items No;’s 1 and 2 are wet lands and the extent of the item no-1 is Ac. 0.17 cents and situated in survey no 89-18 in

Purushottapuram Revenue Village and the item No-2 is Ac. 0.58 cents is a wet land and is situated in survey no 50-9 in

Purushottapuram Revenue Village. The Items No’s 1 and 2 of the suit properties are more fully described in the schedules attached to the plaint and which may be read as part of this plaint.

The defendant who is stranger to the family of the plaintiff and has nothing to do with the suit schedule properties and he has no manner of right over the suit schedule items no’s 1 and 2 but from Vijayadasami Day. i.e. from 11-10-2016 . the defendant has been proclaiming that he would trespass into the suit schedule Items

No’s 1 and 2 and occupy the same forcibly and defendant has not denied the title of the plaintiff. The defendant is a strong person having large following in the village and he is capable of translating his threats into action and the plaintiff is a weak person and belongs to minority community and he cannot resist the high handed acts of the defendant. Hence, the plaintiff fi les this suit for permanent injunction against the defendant, his servants, agents and henchmen from ever interfering with the peaceful possession and enjoyment by the plaintiff over the suit schedules items No’s 1 and 2.

3.Summons issued to the defendant , but he was called absent and was set exparte.

Contd..

//3//

4.To prove his case, the plaintiff himself was examined as

P.W-1 and K.Sunil Kumar , Branch manager , Andhra Bank ,

Ichapuram was examined as P.W-2. P.W-1 fi led his chief-aff idavit and reiterated the same averments as in the plaint. In support to his case, he exhibited A1 to A-5 i.e. 1) Pattadar Pass Book in the name of Telukala Ganapathi, 2). Adangal (e-copy obtained through Mee- seva) for survey no 89/18, for item No-1, dt. 22-09-2015, 3). Adangal (e-copy obtained through mee-seva ) for survey no 50-9, Item No-2,

dt. 22-09-2015, 4). 1-B ROR (record of rights) for survey no 89-18,

item no 1, dt. 22-09-2015 (e-copy through mee-seva ). 5). 1-B ROR (record of rights ) for survey no 50-9, item No-2, dt. 22-09-2015 (e- copy through mee-seva ).

5.P.W-2 K.Sunil Kumar , Branch manager andhra Bank ,

Ichapuram deposed that P.W-1 deposited the original title deed to obtain crop loan of Rs. 25,000/- on 16-09-2015 and the compared copy of the title deed with original title deed brought by P.W-2 is marked as Ex A-6.

6.The evidence of P.W-1 is unchallenged and unrebutted by the defendant as he remained exparte. The documentary evidence i.e. Ex A1 to A6 clearly shows the lawful possession of plaintiff over the plaint schedule property Items No-1 and 2. As present suit is fi led for Permanent Injunction , the plaintiff is under obligation to prove his lawful possession and enjoyment over the plaint schedule

Items No 1 and 2 property as on the date of fi ling of the suit. As the oral and documentary evidence adduced by the plaintiff established that the plaintiff is in lawful possession and enjoyment over the plaint schedule property, he is entitled to resist the interference of the defendant by way of the relief of permanent injunction, the evidence on hand established the case of plaintiff and he is entitled for a decree as prayed for.

Contd..

//4//

7.In the result, the suit is decreed with costs in favour of plaintiff by granting permanent injunction, restraining the defendant, his servants, agents and henchmen from ever interfering with the lawful possession and enjoyment of the plaintiff over the plaint schedule item no 1 and 2 property.

Typed to my dictation, corrected and pronounced by me in open court this the 25th day of April, 2018

Sd/-S.Mani

JUNIOR CIVIL JUDGE

ICHAPURAM

Appendix of evidence

Witnesses Examined . For Plaintiff :- P.W-1 Telukula Ganapathi, dt . 25-01-2017 P.W-2 K.Sunil Kumar, B.M, Andhra Bank, Ichapuram, dt. 13-04-2018

For Defendant:- - none -

Documents Marked

For Plaintiff: -

Ex.A1Pattadar Pass Book in the name of Telukala Ganapathi,

Ex.A2Adangal (e-copy obtained through Mee-seva) for survey no 89/18, for item No-1, dt. 22-09-2015,

Ex.A3Adangal (e-copy obtained through mee-seva ) for survey no 50-9, Item No-2, dt. 22-09-2015,

Ex.A4 1-B ROR (record of rights) for survey no 89-18, item no 1, dt. 22-09-2015 (e-copy through mee-seva ).

Ex.A5 1-B ROR (record of rights ) for survey no 50-9, item No- 2, dt. 22-09-2015 (e-copy through mee-seva ).

Ex.A6 compared copy of the title deed compared with original title deed brought by P.W-2 is marked as Ex A-6.

For Defendant: - - Nil -

Sd/- S.Mani

JUNIOR CIVIL JUDGE

ICHAPURAM

Contd..