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IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE-CUM- SPECIAL
JUDICIAL MAGISTRATE OF FIRST CLASS FOR TRIAL OF CASES UNDER PCR
ACT (SPECIAL MOBILE COURT), ANANTHAPURAMU
Present: Smt. D. Naga Venkata Lakshmi,
Judicial Magistrate of First Class,
Anantapuramu.
FAC Special Judicial Magistrate of First Class for Trial of Cases under
PCR Act, (Special Mobile Court),
Ananthapuramu.
Wednesday, the Twenty Fifth day of August,
Two Thousand Twenty One
(25.08.2021)
Calendar Case No.485 of 2017
(Old CC.No.1108/2015 on the file of learned First Additional Judicial
Magistrate of First Class, Ananthapuramu)
(Crime No.11 of 2015 of Ananthapuramu III Town Police Station) Between:-
The State of Andhra Pradesh represented by the Sub-Inspector of Police, Ananthapuramu III Town Police Station. …Complainant.
AND
A1:Vadde Siva Prasad @ Siva, aged 23 years, S/o Late Vadde Venkatappa, R/o D.No.18/24, Thopudurthy Village, Atmakur Mandal, (Tractor driver) A2:Vadde Muthyalappa, aged 28 years, S/o V.Venkatappa, R/o D.No.1-423, Rudrampeta Village, Ananthapuramu Rural Mandal (Owner of Tractor & Trailer bearing Registration No.AP- 02-TA-0292 and AP-02-TA-0296). …Accused. * * * * * *
This case came on 23.08.2021 for final hearing before me in the presence ofAssistant Public Prosecutorfor the state and of
Sri A. Sreekantha Reddy, Advocate for the accused, upon hearing both sides and having perused the material on record, this court delivers the following:
: : J U D G M E N T : :
1.The Sub-Inspector of Police, Ananthapuramu III Town Police
Station, filed charge sheet against A1 and A2 in Crime No.11 of 2015 of 2
Ananthapuramu III Town Police Station, for the offences punishable under sections 379 of Indian Penal Code and 35 read with Rule 26 of Andhra
Pradesh Water, Land and Trees Act, 2002.
2.The case of the prosecution alleged against A1 and A2 is as follows:
On 06.02.2015 at around 10.10 Am, when V.Rathnam(PW1/LW1),
Sub-Inspector of Police, of Ananthapuramu III Town Police Station was attending his duty, A1 was found transporting sand in tractor and trailer bearing Registration Nos.AP-02-TA-0292 and AP-02-TA-0296 behind Sarada
School, 2nd Road, Ananthapuramu Town. On questioning, A1 confessed that the said tractor and trailer belongs to A2 and they were transporting the same from Kakkalapalli rivulet, Ananthapuramu to sell the same to the builders in Ananthapuramu Town for their monetary benefits. Then,
V.Rathnam, Sub-Inspector of Police, (PW1/LW1) apprehended A1 and seized the tractor and trailer loaded with sand with the assistance of
P.Purushotham(LW2), B.Sreenivasulu(LW3) and K.Abdulla(LW4) – police constables and produced A1 and the seized property before C.Sankar Reddy (PW2/LW5), the then Sub Inspector of Police, Ananthapuramu III Town Police
Station along with police proceedings. Basing on which, C.Sankar Reddy (PW2/LW2), registered the case in Crime No.11/2015 for the offences punishable under sections 379 of Indian Penal Codeand Section 35 read with section 26 of Andhra Pradesh Water, Land and Trees Act, 2002.
Subsequently, C.Sankar Reddy (PW2/LW5), examined PW1 and other witnesses and arrested both the accused and released them on bail. He sent the requisition to Tahsildar, Anantapuramu for disposal of the seized property. As per the proceedings of Tahsildar, Anantapuramu, vide
No.B/593/2014, A2 paid fine of Rs.15,000/- vide challan dt.11.02.2015 and then C.Sankar Reddy (PW2/LW5), released the seized tractor and trailer.
Thus, A1 and A2 committed the offences punishable under sections 379 and 3
Section 35 read with section 26 of Andhra Pradesh Water, Land and Trees
Act, 2002.
3. On 29.08.2015, the court of the learned Additional Judicial
Magistrate of First class, Ananthapuramu took cognizance of case for the
offences punishable under section 379 of Indian Penal Code and section 35 read with section 26 of Andhra Pradesh Water, Land and Trees Act, against
A1 and A2 and numbered it as a Calendar Case No.1108 of 2015.
4. At this stage, as per the proceedings of Hon'ble Principal District
Judge, Ananthapuramu in Dis.No.132, dated05.01.2017, the case is
transferred to this Court on the point of jurisdiction and renumbered as
CC.No.485/2017.
5.On 25.04.2019, after appearance of A1 and A2, copies of documents were furnished to them as contemplated under Section 207
Criminal Procedure Code.
6.On 13.05.2019, A1 and A2 were examined under section 239 of
Criminal Procedure Code for which they denied. After hearing both sides and on considering the entire record, the charges for the offences punishable under sections 379 of Indian Penal Code and 35(2) of Andhra Pradesh Water,
Land and Trees Act, 2002, were framed against A1 and A2. The said charges were read-over and explained to them in Telugu, for which they denied, pleaded not guilty and claimed to be tried. Hence, the case was posted for trial.
7.During the course of trial, the prosecution has examined LW1 and
LW5 as PW1 and PW2 respectively and got marked Exs.P1 to P4. The learned Assistant Public Prosecutor has given up the remaining evidence of
LW2/P.Purushotham, LW3/B.Sreenivasulu and LW4/K.Abdulla. Accordingly, the prosecution evidence was closed.
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8.After closure of the prosecution evidence, on 19.04.2021 A1 and
A2 were examined under section 313 of Criminal Procedure Code by explaining the incriminating prosecution evidence in Telugu, for which they denied the incriminating material and reported no defence evidence.
9.Heard arguments of learned Assistant Public Prosecution and learned defence counsel.
10.Now the points that arise for determination are as follows :-
1. Whether the prosecution is able to establish the guilt of
A1 and A2 for the offence punishable under section 379 of Indian
Penal Code, beyond the reasonable doubts ?
2. Whether the prosecution is able to establish the guilt of
A1 and A2 for the offence punishable under section 35(2) of Andhra
Pradesh Water, Land and Trees Act, 2002, beyond the reasonable
doubts ?
11.In order to substantiate its case, the prosecution has examined
PW1 and PW2 out of 5 listed witnesses and got marked Exs.P1 to Ex.P4.
Among them, PW1 is Sub-Inspector of police, Special Flying Squad, who detected the case. PW2 is the then Sub Inspector of Police, Ananthapuramu
III Town Police Station, who registered and investigated into the case.
12.Ex.P1 is Police proceedings, dated 06.02.2015 at about 10.10
Am., Ex.P2 is the original First Information Report, dated 06.02.2015. Ex.P3 is the Vehicle release order of Tahsildar, Ananthapuramu Dated 10.02.2015.
Ex.P4 is the vehicle release receipt given by A2, dated 12.02.2015.
13.The stand of A1 and A2 is of total denial.
14.The learned Assistant Public Prosecutor argued that the evidence of PW1 and PW2 clinchingly establishes that A1 and A2 had illegally transported the sand without valid permit and therefore, both the accused 5 are liable for punishment for the offences leveled against them.
15.On the other hand, the learned defence counsel argued that the police failed to secure independent mediators and there is no independent evidence to the alleged arrest and recovery of sand from the possession of the accused and further, the ingredients of Section 35(2) of Andhra Pradesh
Water, Land and Trees Act, 2002, do not attract, as the Kakkalapalli rivulet is not a notified sand reach and hence, A1 and A2 are entitled for benefit of doubt.
16.In view of these rival contentions, the entire evidence is perused.
17.POINT No.1 and No.2 :
The point No.1 and No.2 are answered together for the sake of convenience, as they are inter linked and inter related with each other :
In order to bring home the guilt of accused for the offence punishable under section 379 of Indian Penal Code, the prosecution has to establish that the accused had taken away movable property without the consent of the owner. Herein the case, it is alleged that A1 at the instance of
A2 moved the sand from Kakkalapalli rivulet, Ananthapuramu without any valid permit of the concerned officials and thereby committed theft which is an offence punishable under section 379 of Indian Penal Code.
18.To prove the same, the prosecution has examined PWs1 and 2.
Both are police officials. According to PW1, on 06.02.2015 at around 10.10
Am., he received credible information and he along with his staff/constables i.e., LW2/P.Purushotham, LW3/B.Sreenivasulu and LW4/K.Abdulla proceeded to behind Sarada School, 2nd Road, Ananthapuramu, they found A1 coming on tractor bearing Registration Nos. AP 02 TA 0292 with Trolley No.AP02 TA 0296 and on interrogation, A1 confessed that he extracted the sand from 6
Kakkalapalli vanka and loaded the sand as per the instructions of A2, in order to sell the same for higher prices at Ananthapuramu town without any license and then, he arrested A1 and seized the tractor and trailer loaded with sand under cover of Police proceedings (Ex.P1) and produced the A1 along with the seized property before PW2 at Ananthapuramu III Town Police
Station.
19.The evidence of PW2 goes to show that he registered the First
Information Report (Ex.P2), on the basis of the said Police proceedings(Ex.P1). His evidence also shows that he examined PW1,
LW2/P.Purushotham, LW3/B.Sreenivasulu and LW4/K.Abdulla, recorded their statements and sent a requisition dated 10.02.2015(Ex.P3) to Tahsildar,
Ananthapuramu for necessary action about the disposal of the seized property and arrested both the accused at Police station and enlarged them on bail, after furnishing sufficient sureties. His evidence further shows that on 10.02.2015 he received vehicle release order of Tahsildar,
Ananthapuramu(Ex.P3) and released the tractor and trailer to A2 and obtained receipt(Ex.P4) and filed charge sheet.
20.It is the core contention of the learned defence counsel that no document is filed to establish that PW1 was attending duty and he did not secure mediators at the time of the alleged seizure and thus, in the absence of support of independent evidence, the evidence of PW1 cannot be relied upon to connect the accused No.1 and 2 to the seized sand and Accused
No.1 to the tractor. Per contra, the learned Assistant Public Prosecutor submitted that merely because there are no independent mediators, the evidence of PW1 cannot be discarded. But, it is settled law that when only the police officials have been examined, their evidence is not liable to be discarded, but it should be weighed with utmost care and caution. Herein the case, the police officials did not secure the independent mediators at the time of alleged arrest and seizure. In such situation, it is also the duty of 7 court to see whether there is a possible opportunity for the police officer to secure the mediators and whether the arresting police officials made any effort to secure mediators. However, when there is possible opportunity for the police officer to secure the mediators and if he fails to do so, it can be considered as a lapse on the part of the investigating agency.
21.In the present case, PW1 did not secure any independent mediators. Though, the evidence of PW2 shows about registration and investigation of the case, admittedly, he was not present at the time of the arrest and seizure. So, the only evidence available regarding the alleged seizure is that of PW1, but his evidence is completely silent about his efforts to secure mediators. There is no whisper at all in the evidence of PW1 that he made any effort to secure mediators. Further, it was elicited that he did issue any notice to anyone to act as mediator.
22.As seen from the evidence of PW1, there is Sarada School near the scene of offence. So, it is neddless to say that the staff or Principal will be available at the School. If such is the case, it is open to PW1 to issue notices or summons to any of those persons to make them bound to act as mediators. But, admitedly PW1 did not take any such step. When no such step was taken by him, the court finds no material to believe that he tried to secure mediators from the persons available near the scene of offence.
23.Moreover, the village level officials and the officials of all
Departments of the Government will be available in Ananthapuramu Town. It is to be noted that every person is legally bounded to assist the police officials. So, the police officials may approach any official of any Department of Government or local body or Village Revenue Officer or any of the official, to act as mediator. But there is no whisper in the evidence of PW1 that he tried to secure any of those officials as mediators. In such facts and circumstances, the court is of the view that PW1 failed to secure independent 8 persons as mediators, though there was a possible opportunity, which is lapse on his part casting doubt on his version.
24.Further, as pointed out by the learned defence counsel, PW1 did not obtain the signature of A1 in Police proceedings,to establish the presence of A1 at the time of seizure. Further more, no seizure list is prepared and copy of the same is not given to A1. In view of all these latches, the court is of the considered opinion that in absence of independent evidence, it is highly unsafe to rely upon the sole testimony of PW1 to connect A1 to the seized sand and vehicle.
25. Apart from this, it appears from the evidence of PW1 and PW2 that it was concluded that A1 and A2 were illegally transporting the sand on the basis of the confession alleged to be made by A1. But A1 denied that he made such confession. It is needless to say that the confession made by the accused before the police is hit by Section 25 and 26 of Indian Evidence Act.
Thus, such portion of PW1’s evidence as well as Police proceedings cannot be relied upon.
26.It is to be noted that PW1 or PW2 did not make any efforts to ascertain whether any sand was extracted from Kakkalapalli rivulet by A1.
He did not examine any coolie with whom the sand was alleged to be lifted or loaded from that area. He also did not choose to examine any person to whom the accused had proposed or offered to sell the said sand. No rough sketch was prepared to ascertain the place from where the said land was alleged to be extracted. No receipt or acknowledgment regarding handing over of sand to the revenue authorities is filed. No certificate of registration is exhibited to connect A1 and A2 to the seized vehicle. In the absence of any such material, the Court feels that it is highly unsafe to rely upon the sole testimony of PW1 and PW2, the police officials, who detected and investigated into the case.
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27.Therefore, the Court finds no convincing and satisfactory evidence to hold that A1 was found in possession of sand and that A2 engaged him to transport the sand illegally. In other words, the Court holds that the prosecution failed to establish that A1 and A2 committed theft of sand, which is an offence punishable under section 379 of Indian Penal Code, beyond the reasonable doubt.
28.Apart from this, it is also the core contention of the learned defence counsel that the ingredients of Section 35(2) of Andhra Pradesh
Water, Land and Trees Act, 2002, does not attract to this case, as
Kakkalapalli rivulet is not a notified area. In view of such contention, it is pertinent to note Section 35(2) of Andhra Pradesh Water, Land and Trees Act, 2002 “Whoever without any lawful authority damages, alters, pollutes or obstructs any part of a public water supply system or a water body, encroaches water bodies including tanks, lakes, ponds, nallas (water course or drainage course), contaminates ground water in any manner by industrial and acqua culture waste disposal or directly disposes waste water into the aquifers shall be punishable with imprisonment for a term which shall not be less than one month but which may extent to six months or with fine shall not be less than two thousand rupees but which may extend to fifty thousand rupees or with both in addition to that the cost of its repairs or remedying the same shall be recovered as an arrears of land revenue:
Provided that the person responsible for abetment of such offence or connivance shall also be liable and punished accordingly”.
29.Herein the case, as adverted above, the investigating officer failed to ascertain the exact place from where, the accused were alleged to have extracted the sand. No rough sketch of the scene or observation report is prepared by the concerned officers. So, the Court finds no convincing and satisfactory evidence material to hold that the accused damaged or altered or obstructed any part of public water supply system or water body and 10 contaminated ground water in any manner, in order to bring the alleged acts of the accused for the offence punishable under section 35(2) of Andhra
Pradesh Water, Land and Trees Act, 2002.
30. In view of the above discussion, the Court holds that the prosecution failed to establish the guilt of A1 and A2 for the offence punishable under section 379 of Indian Penal Code and section 35(2) of
Andhra Pradesh Water, Land and Trees Act, 2002, beyond the reasonable doubts. Accordingly, the point No.1 and No.2 are answered against the prosecution.
31.In the result, A1 and A2 are found not guilty for the offences punishable under sections 379 of Indian Penal Code and Section 35(2) of
Andhra Pradesh Water, Land and Trees Act, 2002. Therefore, A1 and A2 are acquitted under section 248(1) of Criminal Procedure Code for the said offences and they are set at liberty. The bail bonds of A1 and A2 and their sureties shall remain in force for a period of six months as contemplated under section 437-A of Criminal Procedure Code.
No Property is produced in this case.
Typed to my dictation by the Typist, corrected and pronounced by me
in the Court through Bluejeans Video Conference (virtual mode), on this the
25 th day of August, 2021.
Sd/- D.Naga Venkata Lakshmi,
Judicial Magistrate of First Class,
Ananthapuramu, FAC Special Judicial Magistrate of First Class for trial of Cases under PCR Act, (Special Mobile Court), Ananthapuramu.
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Appendix of evidence
Witnesses examined for
Prosecution
PW1:V.Rathnam, the then Sub-Inspector of Police, Special Flying Squad, Ananthapuramu III Town Police Station. PW2:C.Sankar Reddy, the then Sub-Inspector of Police, Ananthapuramu III Town Police Station.
Defence
NIL
Exhibits marked for the Prosecution
Ex.P1: Police proceedings, dated 06.02.2015 Ex.P2: Original First Information Report, dated 06.02.2015. Ex.P3: Vehicle Release order issued by the Tahsildar, Ananthapuramu,
dated 10.02.2015.
Ex.P4: Receipt given by A2, dated 12.02.2015.
Exhibits marked for the Defence
NIL
Material objects marked on behalf of
ProsecutionDefence
NILNIL
Sd/- D.Naga Venkata Lakshmi,
Judicial Magistrate of First Class,
Ananthapuramu, FAC Special Judicial Magistrate of First Class for trial of Cases under PCR Act, (Special Mobile Court), Ananthapuramu.
//True Copy//
Judicial Magistrate of First Class,
Ananthapuramu,
FAC Special Judicial Magistrate of First Class
for trial of Cases under PCR Act,
(Special Mobile Court),
Ananthapuramu.
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CALENDAR CASES TRIED
IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE-CUM- SPECIAL
JUDICIAL MAGISTRATE OF FIRST CLASS FOR TRIAL OF CASES UNDER PCR
ACT (SPECIAL MOBILE COURT), ANANTHAPURAMU.
Calendar Case No.485 of 2017
(Old CC.No.1108/2015 on the file of learned First Additional Judicial
Magistrate of First Class, Ananthapuramu)
Complainant : Sub-Inspector of Police, Ananthapuramu III Town Police Station. Crime No.11 of 2015. A1: Vadde Siva Prasad @ Siva, aged 23 years, S/o Late Vadde Venkatappa, R/o D.No.18/24, Thopudurthy Village, Atmakur Mandal, (Tractor driver) A2: Vadde Muthyalappa, aged 28 years, S/o V. Venkatappa, R/o D.No.1-423, Rudrampeta Village, Ananthapuramu Rural Mandal (Owner of Tractor & Trailer bearing Registration No.AP-02-TA-0292 and AP-02-TA-0296).
Date of Report or Appearance/ Released Commence Close of Sentence
Offence Complaint Apprehension on bail ment of trial Order
of accused trial
06.02.2015 06.02.201506.02.201506.02.2015 29.01.202016.04.202125.08.2021 Offences :-Under section 379 of Indian Penal Code and Section 35(2) of Andhra Pradesh Water, Land and Trees Act, 2002. Finding :- Found not guilty. Sentence of Order:- In the result, A1 and A2 are found not guilty for the offences punishable under sections 379 of Indian Penal Code and Section 35(2) of Andhra Pradesh Water, Land and Trees Act, 2002. Therefore, A1 and A2 are acquitted under section 248(1) of Criminal Procedure Code for the said offences and they are set at liberty. The bail bonds of A1 and A2 and their sureties shall remain in force for a period of six months as contemplated under section 437-A of Criminal Procedure Code. No Property is produced in this case.
Sd/- D.Naga Venkata Lakshmi,
Judicial Magistrate of First Class,
Ananthapuramu, FAC Special Judicial Magistrate of First Class for trial of Cases under PCR Act, (Special Mobile Court), Ananthapuramu. Copy Submitted :-
1. The Hon’ble First Additional District and Sessions Judge, Anantapuramu.
2. The Superintendent of Police, Anantapuramu. //True Copy//
Judicial Magistrate of First Class,
Ananthapuramu,
FAC Special Judicial Magistrate of First Class
for trial of Cases under PCR Act,
(Special Mobile Court),
Ananthapuramu.
DIS.No._____________, Dt._________________.