Sri Sugali Narayana

IN THE COURT OF THE VIII ADDITIONAL DISTRICT AND SESSIONS

JUDGE AT MEDAK

PRESENT: Sri S. NARAYANA, VIII Addl. District & Sessions Judge, Medak.

Monday, 12 th day of October, 2020

Criminal Appeal No. 114 of 2017

Between:-

Puram Naveen S/o Laxmaiah, aged 26 years, Occupation Agriculture, R/o H.No.1-100, Sardhana village, Haveli Ghanpur Mandal, Medak District. …Appellant

A N D

The State of Telangana through P.S. Medak-Rural.

...Respondent

Aggrieved by the Judgment of Conviction and Sentence dated

18-09-2017 passed by the Judicial Magistrate of First Class

(Spl.Mobile Court), Medak in

C.C. No.181 of 2014

Between:-

The State of Telangana through P.S., Medak-Rural. …Complainant

A N D

Puram Naveen S/o Laxmaiah, aged 26 years, Occupation Agriculture, R/o H.No.1-100, Sardhana village, Haveli Ghanpur Mandal, Medak District.

...Accused

This Criminal Appeal having come before me for final hearing in the presence of Sri M.Venkat Reddy, Sri A. Ramesh, Advocates for Appellant/ Accused and of Sri S. Chandra Reddy, Addl. Public Prosecutor for the Respondent, upon perusing the material available on record and upon hearing and having stood over for consideration till this day, this Court delivered the following:-

:: J U D G M E N T ::

1.This is a Criminal Appeal preferred under Sec.374(3) of Criminal

Procedure Code against the conviction and sentence imposed by the learned Judicial Magistrate of First Class Special Mobile Court, Medak (in 2 of 13 Crl.Appeal No.114 of 2017

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short trial Court) thereby challenging the validity and legality of the

Judgment, Dated 18-9-2017 passed by the said Court convicting the accused for the offences punishable under Sections 304-A, 337 and 338 of

Indian Penal Code, sentenced to undergo Rigorous Imprisonment for a period of Six months and to pay a Fine of Rs.1,000/- In default of payment of Fine he shall further undergo Simple Imprisonment for a period of Thirty days for the offence punishable under Section 304-A of I.P.C. and the accused also sentenced to pay a Fine of Rs.500/-. In default of payment of

Fine he shall further undergo Simple Imprisonment for a period of One month for the offence punishable under Section 337 of I.P.C. and the accused also sentenced to pay a Fine of Rs.1,000/-. In default of payment of Fine he shall further undergo Simple Imprisonment for a period of Two months for the offence punishable under Section 338 of I.P.C. The remand period if any shall be set off under Section 428 of Cr.P.C.

2.For the sale of convenience and for the better understanding the parties to this appeal will herein after be referred as to arrayed before trial

Court.

3.The case of the prosecution in brief are that PW10 M.Venu Kumar,

Sub Inspector of Police, Medak-Rural received a written complaint from

PW1 on 17-10-2013 under Ex.P1/report in which he stated that he along with his family members, relatives came from Kondapur to Sardhana to attend cradle ceremony, while function was going on in front of house of

Poltharaju Ashok a white colour Car bearing No. AP 09 CG 4362 had dashed to his cousin by name Kedem Swamy and his Aunts Kedem Ramalingavva,

Kedem Anitha, Kedem Manjula and the said car also dashed to Auto and three bikes which were damaged. The Car driver was in drunken state drove the crime vehicle in rash and negligent manner, caused the accident, due to which the above said four persons sustained injuries and 3 of 13 Crl.Appeal No.114 of 2017

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shifted to Medak hospital in a Auto and while undergoing treatment

Smt.Ramalingaavva died. Basing on the complaint under Ex.P1, PW10 registered the case and investigated into matter. During the course of investigation he visited scene of offence, drew rough sketch and conducted scene of offence panchanama in the presence of panch witnesses, later he visited Mortuary of Government Area Hospital, Medak, held inquest panchanama over the dead body of deceased Smt. Ramalingavva in the presence of witnesses and subjected the dead body of deceased for

Autopsy. LW9 Medical Officer on request conducted Autopsy over the dead body of deceased and Motor Vehicle Inspector on request inspected the crime vehicle and furnished opinion, later he examined all the injured persons and witnesses and recorded their statements. On 21-10-2013 the owner of the crime vehicle along with the accused came to Police Station and surrendered. The accused voluntarily admitted his guilty of offence and later effected his arrest and produced before Court for judicial remand and after collecting postmortem examination report and relevant documents and after completion of investigation PW10 filed charge sheet against the accused thereby alleging that the accused committed the offences under Sections 304-A, 337 and 338 of I.P.C.

4.On appraisal of material on record the learned Judicial Magistrate of

First Class, Spl.Mobile Court, Medak took the cognizance of the offence

under Sections 304-A, 337 & 338 of Indian Penal Code against the accused.

The accused appeared before the trial Court and was furnished with copies of documents compliance under Sec.207 Cr.P.C. and examined the accused under Sec. 251 Cr.P.C., read over and explained to the accused by the trial Court, and accused having understood the same denied the offence and pleaded not guilty and claimed to be tried. The Accused defended by his Advocate.

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5.During the course of trial before the trial Court the prosecution had examined PWs 1 to 10 and got marked Ex.P1 to Ex.P10. No defence witnesses are examined and not marked any document on behalf of the accused. After completion of trial the accused was examined U/s 313

Cr.P.C. he denied the incriminating evidence of prosecution and further he stated that he has no defence witnesses on his behalf. After completion of trial and after hearing the arguments of learned Public Prosecutor and the learned counsel for the accused before the trial Court found the accused guilty for the offences under Sections 304-A, 337 & 338 of Indian Penal

Code and accordingly he convicted under Sec.255(2) Cr.P.C. for the said offences and sentenced to undergo Rigorous Imprisonment for a period of

Six months and to pay a Fine of Rs.1,000/- In default of payment of Fine he shall further undergo Simple Imprisonment for a period of Thirty days for the offence punishable under Section 304-A of I.P.C. and the accused also sentenced to pay a Fine of Rs.500/-. In default of payment of Fine he shall further undergo Simple Imprisonment for a period of One month for the offence punishable under Section 337 of I.P.C. and the accused also sentenced to pay a Fine of Rs.1,000/-. In default of payment of Fine he shall further undergo Simple Imprisonment for a period of Two months for the offence punishable under Section 338 of I.P.C.

6.The appellant/Accused has deposited the Fine amount and sentence was suspended and aggrieved by the said conviction and sentence imposed the impugned Judgment of trial Court the appellant/Accused herein preferred this appeal with grounds of appeal of which the core of the contention is as follows; 5 of 13 Crl.Appeal No.114 of 2017

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Grounds of Appeal:

7.The Judgment passed by the learned Judicial Magistrate of First Class,

Narsapur is against the law, weight of the evidence and probabilities of the case. The lower Court ought to have not the major contradictions in filing report by the prosecution and contradicitons of boundaries varied in the scene of offence and rought sketch. The lower Court gave conviction to the accused not properly appreciated the evidence on record and came to wrong conclusion. Ex.P2 scene of offence panchanama, Ex.P5 rough sketch which were kprepared at the scene of offence, boundaries mentioned under the said Ex.P2 and Ex.P5 were quite different. The lower Court ought to have acquit the appellant for production of insufficient medical documents and for non producing of Medical Officer into witness box and also not producing of Motor Vehicle Inspector who inspected the crime vehicle and issued MVI report as witnesses which evidences could have fortified the version of the appellant and could have given him acquittal.

The lower Court mainly by giving much unnecessary and uncredibility of eye witnesses and circumstances of the case to be tallied for proper conviction in this case. The major witnesses Medical Officer and Motor

Vehicle Inspector have not collected for evidence. The lower Court failed to see that there is delay in fling the complaint after the said crime and the name of the owner of the crime vehicle cited as G.Srinivas Rao in the charge sheet, whereas as per the remand case the Motor Vehicle Inspector mentioned the owner of crime vehicle as Ch.Rashikala. The lower Court could not see the evidences of PWs 1 to 3. During the cross examination they categorically stated that they have seen the accused for the first time

in the Court hall, but the court below erroneously given much weight to

their evidence and convicted the appellant. PW4 is close relative of PWs 1 to 3 and Lws 6 to 9. The prosecution failed to establish the case against 6 of 13 Crl.Appeal No.114 of 2017

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appellant beyond reasonable doubt. There are several weaknesses and major discrepancies in the testimony of prosecution witnesses. With these main contentions the appellant prayed the Court to allow the appeal, consequently set-a-side the conviction in the impugned Judgment.

8.On registration of the appeal a due notice was ordered to the State representing by the learned Addl.Public Prosecutor, the same was duly served. On the receipt of the material papers from the trial Court, hearing of the appeal was taken up. During the course of appeal both sides relied upon the same oral and documentary evidence adduced before trial Court and submitted their detailed arguments, there after appeal is coming for passing of the Judgment.

9.The learned counsel for the appellant/Accused has argued that the evidence of prosecution witnesses is inadmissible in the eye of law, their evidence cannot be believed and accused is innocent and the trial Court must be scrutinized the evidence carefully and took all precautions accepting their evidence in the absence of any other convincing evidence and hearsay evidence is inadmissible in the eye of law, therefore the accused is innocent and never committed such offence, therefore, this appeal may be allowed and set-a-side the lower Court Judgment.

10.On the other hand the learned Additional Public Prosecutor strongly supported the Judgment under appeal and pleaded for dismissal of the appeal.

11.In the light of rival contentions the following points that arise for consideration.

i) Whether the prosecution has brought home the guilt of the accused for the offences punishable under Sections 304-A, 337 & 338 of I.P.C. beyond all reasonable doubt?

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ii) Whether the impugned Judgment dated 18-9-2017 in C.C.No.181 of 2014 in convicting and sentencing the accused for the offences punishable under Sections 304-A, 337 & 338 of I.P.C. suffer from any infirmities, irregulaties and illegalities and called for any interference by this Court?

iii) To what result?

12.Point No.1:

The case of the prosecution is that the accused is Car driver and was in drunken stated drove the crime vehicle white colour Car bearing No.AP 09 CG 4362 in rash and negligence manner and dashed to Kedem Swamy,

Kedem Ramalingavva, Kedem Anitha and Kedem Manjula, resulting which all the four persons sustained several bleeding injuries and while undergoing treatment Kedem Ramalingavva died. The accused is responsible for death of Kedem Ramalingavva and sustaining injuries by three injured persons and the defence taken by the accused is total denial.

Out of 23 witnesses prosecution examined PWs 1 to 10.

13.PW1 is the defacto-complainant deposed in his evidence that on 16- 10-2013 he along with his relatives went to attend function, and while they were in function in front of house situate at Sardena village one Car bearing No. 4362 came in rash and negligence manner and dashed their

Auto and three bike which were parked in front of house, resulting which

Manjula, Swamy and Anitha sustained injuries and Ramalingavva died while undergoing treatment. But he did not state the name of the accused under Ex.P1 report, stating that this particular accused came with a Car bearing No.4362 and dashed Auto. PW2 deposed in his evidence that he know the accused, on 16th October, 2013 he along with his relatives came to Sardena village to attend a function. At about 5:30 P.M. while there were present in Sardena village in order to go to home in Auto, at that time one 8 of 13 Crl.Appeal No.114 of 2017

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Ford Car bearing No.4362 came in rash and negligence manner and dashed to them, their Auto and three motor bikes which were parked there, due to which he along with other three injured persons sustained injuries.

PW2 in his chief examination deposed that he knows the accused, but in the cross examination he stated that he saw the accused for first time in the Court hall. As per his evidence there is no trust and reliability that he saw the accused at the time of accident. His evidence is in consisting and he has been traveling in ways, therefore this Court does not believe that he saw the accused at the time of accident that he came with Ford Car and dashed their Auto.

14.PWs 3 to 5 have also deposed in the same version of PW2, they have also deposed in their cross-examination that they saw the accused for the first time in the Court hall. If really this accident had occurred on that day while PWs 2 and 3 and other persons in order to go their home, at that time Ford Car came in rash and negligence manner and dashed their Auto.

If so such accident had occurred they could have identify the accused and said his name in their cross-examination. PWs 4 and 5 in their cross- examination deposed that they never witnessed the incident but at instance of PW1 they are deposing false. So the evidence of LWs 4 and 5 does not believable that the accused drove the Ford Car in rash and negligence manner and dashed their Auto, due to which they sustained bleeding injuries.

15.In the evidence of PW6 deposed that on 16-10-2013 he along with relatives went to attend cradle ceremony and after completion of function he along with deceased and Swamy and Manjula and others engaged an

Auto to go to their village, at that time one white colour Ford Car came in 9 of 13 Crl.Appeal No.114 of 2017

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rash and negligence manner and dashed to their Auto, due to which he along with deceased and others fell down from the Auto and sustained injuries and while undergoing treatment Ramalingavva died. PW7 deposed in his evidence that on 16-10-2013 on the occasion of his son cradle ceremony at Sardhana village he along with their relatives came to

Sardhana village and while were going to their village in Auto at that time one Car came in rash and negligence manner and dashed their Auto, due to which he along with Anitha, deceased and others fell down from Auto and sustained injuries. He did not state the name of the accused in his evidence that accused himself came with Ford Car in rash and negligence manner and dashed. Admittedly the accident had occurred resulting of rash and negligence manner due driver of car. PWs 8 and 9 are the panch witnesses for scene of offence panchanama and inquest panchanama, they have deposed that Police conducted scene of offence panchanama and held inquest panchanama. After that they have signed on Ex.P2 and Ex.P3 panchanamas. PW10 M.Venu Kumar, Sub Inspector of Police, Investigating

Officer who investigated the matter in this case and after completion of investigation filed charge sheet. He did his duties in the instance case.

16.No eye witnesses are clearly fully supported the prosecution version that particularly the accused drove Ford Car on particular date in rash and negligence manner and hit to the Auto and they did not identified the accused after the accident. During the course of trial in the cross- examination they unanimously deposed that they saw the accused for the first time in the Court hall. Therefore the evidence of all the eye witnesses

PWs 3 to 7 not established the guilt of the accused that he himself drove the Ford Car and dashed to their Auto, due to which they sustained injuries and their evidences are totally inconsistence and unbelievable. There is no cogent evidence. The prosecution failed to examine the Medical Officer 10 of 13 Crl.Appeal No.114 of 2017

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who conducted postmortem examination over the dead body of deceased

Ramalingavva as a matter of fact the Motor Vehicle Inspector also not chosen to examine before the trial Court. The Doctor and Motor Vehicle

Inspector who were issued postmortem examination report and Motor

Vehicle Inspection report are marked through PW10 Investigating Officer and as to why the prosecution did not chose to examine them before trial

Court, there is no convincing explanation forthcoming from the side of prosecution for the non examination of these two important witnesses, and the trial Court passed judgment believing the prosecution side evidence that the accused drove Ford Car in rash and negligence manner and caused death of the deceased Ramalingavva and others sustained injuries.

The absence of non-examination of Doctor and Motor Vehicle Inspector is fatal to the case of the prosecution. It is the fact seen from the record under Exs.P6 to P10 which were marked through the evidence of PW10

Investigating Officer without any efforts made by the prosecution to examine Doctor and Motor Vehicle Inspector who were issued Ex.P6 to

Ex.P10, much less the non-examination of the Doctor who cited as witness in the first list appended to charge sheet. The prosecution failed to give any convincing explanation for the non-examination of these two important witnesses and now the question that arise before this Court as whether the trial Court is justified in marking Ex.P6 to Ex.P10 through Doctor and Motor

Vehicle Inspector which were marked through Investigating Officer during the course of trial whose proof is not made due to non-examination of

Doctor who conducted postmortem examination and issued Ex.P6 report, and Ex.P10 MVI’s report which was also not proved due to non-examination of Motor Vehicle Inspector who issued MVI report.

17.In a Judgment of Leela Moi Ghosh J.June Arjun Mandi Vs. State, in 11 of 13 Crl.Appeal No.114 of 2017

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1986(3) Crimes (Calcutta High Court, 145) which is equallent to 1986 Law

Suit, Callcutta, Page 312, wherein it is clearly held that non-examination of

Doctor who conducted postmortem examination of the deceased, is fatal to the case of the prosecution, and without examination of Doctor to prove the postmortem examination report that cannot be use as substantive evidence in Criminal Case.

In a Judgment of Veerabhadrappa Vs. State of Karnataka, 1990(1)

Crimes, Karnataka, 615, D.B., a Division Bench of Karnataka High Court held that non examination of Motor Vehicle Inspector to prove Motor

Vehicle Inspector’s report in accident case is a fatal to the case of the prosecution, and in the absence of that evidence is fatal to the case of the prosecution, and in the absence of that evidence a report of Motor Vehicle

Inspector cannot be taken to have been proved. In the light of these settled principles of Law, the non-examination of Doctor who conducted postmortem examination under Ex.P6 and non-examination of Motor

Vehicle Inspector report issued under Ex.P10 are very much fatal to the prosecution case in the absence of that important evidence. A legal proof of the same cannot be taken to have been made before trial Court and under those circumstances, the conclusion arrived by the trial Court on these two documents are bad in Law.

18.As per the owner of the crime vehicle the name of the owner of the crime vehicle is cited as G.Srinivas Rao in the charge sheet. As per the remand case filed by Motor Vehicle Inspector mentioned the owner of

Crime vehicle name as Ch.Rashikala. In the evidence of PWs 1 to 3 they have categorically stated that they have seen the accused for the first time

in the Court hall, they did not see the cause of accident that the accused

drove the crime vehicle and hit to Auto. However, the lower Court believed the evidence of PW3 and erroneously came to conclusion and has given 12 of 13 Crl.Appeal No.114 of 2017

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much weight to their evidence and convicted the appellant. These witnesses did not directly state in their evidence that they saw the accused who drove the Ford Car and hit to their Auto. In the absence of any weight given to PWs 6 to 10 the involvement of the accused in the crime cannot be taken to have been proved by the prosecution beyond reasonable doubt. The opinion of the trial Court in passing ln conclusion to the evidence of PWs 1 to 10 the trial Court discussed in the evidence is not on correct lines, the identification of the accused is also not proved beyond reasonable doubt as per the discussion made above. By taking all these facts into consideration the findings of the trial Court in holding the accused guilty for the offence under Sections 304-A, 337 and 338 of I.P.C.

cannot be accepted. Without proof of these facts beyond reasonable doubt conclusion arrived by the trail Court basing on the evidence of PWs 1 to 10.

In the absence of evidence of Medical Officer and Motor Vehicle Inspector it cannot be taken as acceptable substitute to proof of fact beyond reasonable doubt, which is cardinal principle of jurisprudence for the conviction of the accused. In the facts and circumstances discussed above the accused is entitled to seek strong benefit of doubt in his favour, hence the appellate Court found that the accused not guilty for the offences punishable under Sections 304-A, 337 and 338 of I.P.C. Thus the point is decided in favour of the appellant.

19.Point No.2: In the light of above detailed discussion under Point

No.1 the impugned Judgment of the trial Court finding the accused guilty for the offences under Sections 304, 337 and 338 of Indian Penal Code and consequently in convicting the accused sentence of imprisonment for the offence under Section 304-A of I.P.C. and imposing Fine amount for the offences under Sections 337 and 338 of I.P.C. is not on correct lines, suffer from serious infirmity, irregularity and illegality and thus the same is 13 of 13 Crl.Appeal No.114 of 2017

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invitably required necessary interference by this Court to set-a-side the conviction and sentence imposed by the trial Court against the appellant.

The finding of the trial Court are not tenable under Law and trial Court has not arrived at the correct conclusion. The conviction and sentence imposed by the trial Court against the accused for offences under Sections 304-A, 337 and 338 of I.P.C. are liable to be set-a-side. Accordingly the point is decided in favour of Appellant and against the respondent.

20.Point No.3: In the light of Points No.1 and 2 which are major points are decided partly in favour of the appellant and against the respondent.

IN THE RESULT: In the result, the Appeal is allowed under Section 386(B)(i) of Cr.P.C., thereby setting a side the conviction and sentence to undergo imprisonment and to pay a Fine for the offences punishable under

Sections 304-A, 337 & 338 of I.P.C. in the impugned Judgment dated 18th

September, 2017 passed in C.C.No.181 of 2014 by the Judicial Magistrate of First Class, Spl.Mobile Court, Medak, consequently the appellant stood acquitted of the charge for the offences punishable under Sections 304-A, 337 and 338 of I,P.C. The Fine amount paid by the appellant shall be refunded to the appellant/accused after expiry of appeal time. The office is directed to send back the case record to the trial Court duly indexed.

Dictated to the Stenographer-Grade-I, transcribed and typed by him,

corrected and pronounced by me in Open Court on this the 12 th day of October, 2020.

VIII Addl. Dist.& Sessions Judge,

Medak.

APPENDIX OF EVIDENCE

BOTH SIDES: N I L.

VIII Addl. Dist.& Sessions Judge, Medak.

IN THE COURT OF THE VIII ADDITIONAL DISTRICT AND SESSIONS

JUDGE AT MEDAK

PRESENT: Sri S. NARAYANA, VIII Addl. District & Sessions Judge, Medak.

Wednesday, 7 th day of October, 2020

Criminal Appeal No. 51 of 2017

Between:-

Gurram Shankar S/o Bhoomaiah, age 22 years, Occupation Coolie, R/o Pothulaboguda village, Alladurg Mandal, Medak District. …Appellant

A N D

The State of Telangana through P.S. Alladurg. ...Respondent

Aggrieved by the Judgment of Conviction and Sentence dated

03-4-2014 passed by the Judicial Magistrate of First Class, Andole

at Jogipet in

C.C. No. 334 of 2014

Between:-

The State of Telangana through P.S., Alladurg. …Complainant

A N D

Gurram Shankar S/o Bhoomaiah, age 22 years, Occupation Coolie, R/o Pothulaboguda village,

Alladurg Mandal, Medak District. ...Accused

This Criminal Appeal having come before me for final hearing in the presence of Sri K.V.Raghavulu, Sri M.Lingamaiah, Advocates for Appellant/ Accused and of Sri S. Chandra Reddy, Addl. Public Prosecutor for the Respondent, upon perusing the material available on record and upon hearing and having stood over for consideration till this day, this Court delivered the following:-

:: J U D G M E N T ::

1.This is a Criminal Appeal preferred under Sec.374(3) of Criminal

Procedure Code against the judgment of conviction and sentence imposed 2 of 8 Crl.Appeal No.51 of 2017

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by the learned Judicial Magistrate of First Class, Andole at Jogipet (in short trial Court) thereby challenging the validity and legality of the Judgment,

Dated 03-4-2017 passed in C.C.No.334 of 2014 for the offences punishable

under Sections 454, 380 of Indian Penal Code by the said Court convicting and sentencing the accused to suffer Rigorous Imprisonment for a period of Two years and also to pay Fine of Rs.1,000/- for the offence punishable under Section 454 of I.P.C. and in default of payment of Fine he shall further undergo Simple Imprisonment for a period of One month. The accused also further sentenced to suffer Rigorous Imprisonment for a period of One year. The sentences passed against the accused for the offences punishable under Sections 454 and 380 of I.P.C. shall run concurrently.

2.The fact leading to filing the present appeal in brief are stated in the charge sheet are that the Sub Inspector of Police,s Alladurg P.S. filed charge sheet against the accused in Crime No.60 of 2014 alleging that on 01-8-2014 at about 10:00 A.M. PW1 locked her house and went to her agricultural fields along with her husband, there after when they returned back to house in the evening hours she found her house lock was broke open and doors were opened and on search she found missing of an amount of Rs.1,000/- from the box. The accused entered into the house by break opening the lock and committed theft of Rs.1,000/-. On receipt of report of PW1, PW5/Sub Inspector of Police, G. Narender, P.S.Alladurg registered a case and investigated into, during the course of investigation he examined and recorded the statement of PW1 and later visited scene of offence and recorded statement of LW2/Tonta Veeraiah and conducted scene of offence panchanama in the presence of PW2 and LW4/Tonta

Machender. Later on reliable information he apprehended the accused, 3 of 8 Crl.Appeal No.51 of 2017

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secured the presence of panchas PW3 and PW5 and in their presence accused confessed the commission of offence and recovered the theft amount of Rs.1,000/- from the accused under cover of confession-cum- recovery panchanama and after completion of investigation PW5 filed charge sheet alleging that accused has committed the offence under

Sections 454, 380 of Indian Penal Code, as such the accused is liable for punishment under the above sections of Law.

3.On appraisal of material on record the learned Judicial Magistrate of

First Class, Andole at Jogipet took the cognizance of the offence under

Sections 454, 380 of Indian Penal Code against the accused. The accused appeared before the trial Court and was furnished with copies of documents compliance under Sec.207 Cr.P.C. and framed charge under

Sections 454, 380 of Indian Penal Code against the accused, read over and explained to the accused under Sec.240 Cr.P.C. by the trial Court, and accused having understood the same denied the offence and pleaded not guilty and claimed to be tried. The Accused defended by his Advocate.

4.During the course of trial before the trial Court the prosecution had examined PWs 1 to 5 and got marked Ex.P1 to Ex.P8. No defence witnesses are examined on behalf of the accused. After completion of trial the accused was examined U/s 313 Cr.P.C. he denied the incriminating evidence of prosecution and further he stated that he has no defence witnesses on his behalf. After completion of trial and after hearing the arguments of learned Public Prosecutor and the learned counsel for the accused before the trial Court found the accused guilty for the offence under Sections 454, 380 of Indian Penal Code and accordingly he is convicted under Sec.248(2) Cr.P.C. for the offence under Sections 454, 380 4 of 8 Crl.Appeal No.51 of 2017

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of I.P.C. and sentenced him to suffer Rigorous Imprisonment for a period of

Two years and also to pay Fine of Rs.1,000/- for the offence punishable under Section 454 of I.P.C. and in default of payment of Fine he shall further undergo Simple Imprisonment for a period of One month. The accused also further sentenced to suffer Rigorous Imprisonment for a period of One year.

5.The appellant/Accused has deposited the Fine amount and sentence was suspended and aggrieved by the said conviction and sentence imposed the impugned Judgment of trial Court the appellant/Accused herein preferred this appeal with grounds of appeal of which the core of the contention is as follows;

Grounds of Appeal:

6.The Judgment of conviction and sentence passed by the learned

Judicial Magistrate of First Class, Andole at Jogipet is against the law,

weight of the evidence and probabilities of the case. The lower Court aught to have held that the evidence of PWs 3 and 4 who were said to be panch witnesses for confessional cum seizure panchanama who have not supported the case and they turned hostile. The lower Court failed to consider the evidence of PW2 who is alleged panch witness for scene of offence, he is no other than natural son of PW1, his evidence cannot be looked into and cannot be considered, but the lower Court erroneously believed his evidence and convicted the appellant. The prosecution has not proved the seizure panchanama and not marked, even then the lower

Court has convicted the appellant/accused. PWs 3 and 4 have turned hostile they did not support the case of the prosecution, their evidences were not cogent and convincing n convicting the accdused. The lower 5 of 8 Crl.Appeal No.51 of 2017

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Court did not appreciate the fact, evidence of the witnesses, simply convicted the accused. There are several weaknesses in the testimony of prosecution which has been over looked by the lower Court. The lower

Court ought to have appreciate that prosecution failed to prove the material evidence. Thus the trial Court Judgment dated 3rd May, 2014 in

C.C.No.334 of 2014 is against the principels of Law, weight of evidence and liable to be set-a-side and appeal be allowed.

7.On registration of the appeal a due notice was ordered to the State representing by the learned Addl.Public Prosecutor, the same was duly served. On the receipt of the material papers from the trial Court, hearing of the appeal was taken up. During the course of appeal both sides relied upon the same oral and documentary evidence adduced before trial Court and submitted their detailed arguments, there after appeal is coming for passing of the Judgment.

8.The State represented by the learned Additional Public Prosecutor strongly supported the Judgment under appeal and pleaded for dismissal of the appeal.

9.In the light of rival contentions the following points that arise for consideration.

i) Whether the Judgment and sentence under appeal are maintainable under Law?

ii) To what result?

10.Point No.1: The appellant herein is the accused before the trial

Court, as per the details available on record. PW1 examined before trial

Court and marked Ex.P1. In her evidence she deposed in her evidence that herself and her husband were not present in the house. The accused came into their house by broke open the lock of the door and committed theft an 6 of 8 Crl.Appeal No.51 of 2017

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amount of Rs.1,000/-. It is the evidence of PW2 that he deposed that about one month back Police secured his presence and took himm to the house of PW1 and prepared scene of offence panchanama under Ex.P2 and drafted rough sketch under Ex.P3 in respect of accused committing theft in the house of PW1, he attested on them. PW2 is none other than son of

PW1, naturally he fully supports the version of PW1 who is his mother. PWs 3 and 4 are the crucial witnesses who are panch witnesses for confession cum recovery panchanama, but they did not support the version of the prosecution that the accused has committed theft of Rs.1,000/- in the house of PW1 and the same amount was recovered from them under cover of panchanama Ex.P4 and Ex.P5. They deposed that Police obtained their signatures on blank papers. The evidence of PW5 who is Sub Inspector of

Police, Investigating Officer, who discharged his legitimate duties as per

Law. The evidence of PW5 in his evidence deposed before the lower Court that he secured the presence of PWs 4 and 5 and in their presence the accused has confessed the commission of offence of committing theft of

Rs.1,000/- from the house of PW1. But PW4 and PW5 did not support the version of the PW5 Investigating Officer, simply they stated that PW5 obtained their signatures on blank papers. In the instance case PWs 1 and 2 who are the mother and son, except their evidence alleging that accused committed theft of Rs.1,000/- from their house.

11.In the absence of evidence of crucial witnesses PWs 4 and 5 the evidence of PW1 cannot be relied on, there is no cogent and trustworthy evidence on behalf of the prosecution and further it is the evidence of PW5 that he recovered Rs.1,000/- fromt he accused under cover of confession and recovery panchanama in the presence of panchas, but prosecution failed to mark the alleged theft of Rs.1,000/- either through him or PW1.

7 of 8 Crl.Appeal No.51 of 2017

VIII AD & SJ

PW1 lodged compaint under Ex.P1 stating that when she entered into her house she saw the accused, to that effect neither she caught hold him nor handed over the accused to the Police at the time she gave complaint under Ex.P1. Therefore, in view of the evidence of PW1 which is inconsistency, except her evidence there is no any supporting evidence to her version. In the absence evidence of other witnesses PWs 4 and 5 who are crucial witnesses panchas for confession and recovery panchanama.

On careful evolution of entire evidence placed by the prosecution, this

Court of the considered opinion that prosecution has miserably failed to bring home the guilt of the accused for the offences punishable under

Sections 454, 380 of I.P.C. beyond all reasonable doubt. Under these circumstances the appellant is entitled to seek strong benefit of doubt in his favour. Hence this Court finds that the accused is found not guilty for the offences punishable under Sections 454, 380 of I.P.C., and thus the conviction and sentence passed by the learned Judicial Magistrate of First

Class, Andole at Jogipet is liable to be set-a-side. Accordingly the point is answered.

15.Point No.2: In the light of Point No.1 which is major point is decided in favour of the appellant and against the respondent.

IN THE RESULT: In the result, the Appeal is allowed, thereby setting a side the conviction and sentence of Appellant/Accused under Section 386(B)(i) of Criminal Procedure Code imposed against the appellant/accused in the impugned Judgment dated 3rd May, 2017 passed by the Judicial Magistrate of First Class, Andole at Jogipet in C.C. No.334 of 2014 for the offence punishable under Sections 454, 380 of Indian Penal

Code, consequently the appellant/ Accused stood acquitted U/s 248(1) 8 of 8 Crl.Appeal No.51 of 2017

VIII AD & SJ

Cr.P.C. The FINE amount remitted by the appellant/ Accused is ordered to be returned to the appellant/ Accused after expiry of appeal time, and the bail bond of the accused shall stand canceled after expiry of appeal time.

The office is directed to send the case record to the lower Court after duly indixing.

Dictated to the Stenographer-Grade-I, transcribed and typed by him,

corrected and pronounced by me in Open Court on this the 7 th day of October, 2020.

VIII Addl. Dist.& Sessions Judge,

Medak.

APPENDIX OF EVIDENCE

BOTH SIDES: N I L.

VIII Addl. Dist.& Sessions Judge, Medak.