SVV.Natha Reddy

1

IN THE COURT OF THE XVII ADDL CHIEF METROPOLITAN MAGISTRATE:

AT HYDERABAD.

PRESENT: SRI S.V.V.NATHA REDDY,

XVII ADDL CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Dated this the 17th day of April, 2013.

CC.No.72 of 2008

Between:

The State through The Sub Inspector of Police, Begum Bazar police station,

Hyderabad... Complainant

AND

S.Komaraiah, s/o Balaiah, aged 27 years, occ:Business, r/o H.No.5-5-412/28, Bhimraobada, MJ Road,

Hyderabad... Accused

This case is coming before me on 8.4.2013 in the presence of learned APP appearing for the State and of M/s.s.Mujib Kumar, counsel for the accused and after having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The Sub Inspector of Police, police station Begum Bazar representing the state filed charge sheet against the accused, S.Komaraiah in Cr.No.77 of 2007 of his police station stating that the investigation well established that the accused committed offences punishable under sections 341 and 353 IPC.

2On appearance of the accused, all copies of the documents were furnished to him U/Sec.207 Cr.P.C and he is examined U/Sec.251 Cr.P.C for 2 the offences under sections 341 and 353 IPC which he denied and pleaded not guilty and claimed to be tried.

3The prosecution to establish the guilt of the accused, examined Pws.1 to 6 and got marked Exs.P1 to P3 while Exs.D1 and D2 are marked on behalf of the accused. PW1 is the defacto complainant. Pws.2 to 4 are the eye witnesses, PW5 is the investigation officer who registered the case and PW6 is the investigation officer who investigated the case and filed the charge sheet.

4On conclusion of the prosecution evidence, accused was examined under section 313 Cr.P.C with the incriminating material evidence spelt out by the prosecution witnesses and he denied the same and reported no defence.

5Heard both sides.

6Now the point for consideration is whether the prosecution has proved the guilt of the accused beyond all reasonable doubts?

POINT:

7It is the case of the prosecution that on 23.6.2007 in the morning hours as per the directions of District Administration, the defacto complainant, Sri Hanumanth Reddy, Revenue Divisional Officer, Hyderabad Division along with his officials went to Bheem Rao bada to serve the show cause notices on all the inhabitants of Bheem Rao bada in view of the directions of the Hon'ble High Court of Andhra Pradesh in Writ Petition No.25905 of 2005 dated 19.1.2006 and when the Revenue Divisional Officer and his officials started serving the show cause notices at about 1600 hours, accused who is a resident of Bheem Rao bada instigated and provoked the inhabitants and tried to prevent serving of show cause notices and created nuisance. Accused also threatened the revenue officials and used filthy and vulgar language and prevented them from performing their official duties.

3 8The evidence of PW1 (defacto complainant) shows that on 22.6.2007 when he went to Bheem Rao bada along with Deputy Collector, Sri Babu Rao, Dr.Laxmi, LPO and other Mandal Revenue Officer's including PW2 to serve the notices issued by the Joint Collector, Hyderabad, as per the directions of the Hon'ble High Court in WP.No.25905 of 2005, accused started threatening them and abused them in filthy language and when they tried to affix notices to the doors of the houses, accused obstructed them and torned some notices which are affixed to some doors of the houses and after that they went to Begum Bazar police station and gave the complaint Ex.P1. Cross examination of PW1 dated 8.8.2011 shows that as the land in dispute belongs to Andhra Pradesh Housing Board and the Revenue Divisional Officer was not competent to issue pattas, he addressed a letter to the District Collector to cancel the pattas and the land in dispute belongs to the Housing Board. In the same cross examination a suggestion was given to him that the alleged incident took place while serving notices as directed by the Hon'ble High Court. The said suggestion was admitted as true by PW1 and it shows that the incident took place while PW1 and his officials were serving notices as per the directions of the Hon'ble High Court. PW1 in the cross examination dated 4.6.2012 admitted that as per the orders in

WP.No.13841 of 2007 dated 7.8.2007 (Ex.D1) the Honble High Court set aside

the show cause notice issued by him. The incident took place on 22.6.2007. Therefore, the fact of setting aside the show cause notices by the Hon'ble High Court is subsequent to the incident and therefore such orders of the Hon'ble High Court will not absolve the acts of the accused on the date of incident. It is elicited in the same cross examination of PW1 dated 4.6.2012 that the report Ex.P1 was lodged in the police station on 23.6.2007 at 2 pm and in such report, the date of offence was not mentioned and it was mentioned in the statement of PW1 recorded by the police under section 161 Cr.P.C that the offence took place on 23.6.2007 but PW1 added that such date was mentioned by mistake. The purpose of statements recorded by police under section 161 Cr.P.C are limited and they are useful only to prove the contradictions and not for corroboration. Since PW1 clearly stated in his examination in chief that the incident took place on 22.6.2007, the date mentioned by the police in section 161 Cr.P.C statement of PW1 is not fatal to the case of the prosecution. Thus the evidence of PW1 4 clearly shows that on 22.6.2007 himself and officials went to Bheem Rao bada to serve the notices issued by the Joint Collector, Hyderabad as per the directions of the Hon'ble High Court in WP.No.25905 OF 2005 and at that time the accused threatended them by abusing them in filthy language and obstructed them by tearing some of the notices affixed to some doors of the houses and due to that they have not completed their work. Though PW1 was cross examined by the learned defence counsel by recalling him thrice nothing is elicited to disbelieve the involvement of the accused in obstructing PW1 and his officials from performing the official duty of serving notices on the inhabitants of Bheem Rao bada.

9PW2, Tahsildar of Nampally also deposed that he accompanied PW1 on 22.6.2007 to Bheem Rao bada for serving notices issued by the Joint Collector, Hyderabad and the accused on seeing them started threatening and abusing them in filthy language. His evidence also shows that when they were trying to affix notices to the doors of the houses, accused obstructed them and torned some notices and due to that they were unable to complete their work. It is elicited in the cross examination that about 10 persons including the accused obstructed them. PW2 admitted in his cross examination that he did not state in his statement recorded by the police that they were obstructed by 10 persons and the accused was one among them. Since this fact of participation of 10 persons including the accused is elicited in the cross examination by the learned defence counsel, I feel non-mentioning of such fact in 161 Cr.P.C statement of PW2 does not amounts to improvement or omission and it will not affect the case of the prosecution. Cross examination of PW2 further shows that PW2 is aware that the accused is the local leader of Bheem Rao bada. Therefore, the identification of the accused cannot be disputed. PW2 in his cross examination also clearly stated that after some notices were served, some disturbance was made by the local leaders and then they left the place. This shows that PW2 and other officials were obstructed from performing their duties in serving notices issued by the Joint Collector, Hyderabad and they abruptly stopped their work due to the incident.

5 10Evidence of PW3, the then Mandal Revenue Officer (MRO) Asif Nagar also shows that he along with Pws.1, 2, 4, LW4 Smt.Leela, MRO Bandlaguda and other staff visited Bheem Rao bada to serve notices on the inhabitants of Bheem Rao bada and at that time accused obstructed PW1 and started scolding the officials in filthy language and on that they left the place without completing work. Cross examination of PW3 reveals that around 40 revenue officials including 16 MROs went to the spot to serve show cause notices and he stood at the spot for about half-an-hour and after that all the revenue officials left the spot along with him. His cross reveals that after serving some notices, some disturbance was made by the local leaders and then they left the place.

11PW4 is the retired Tahsildar and his evidence shows that on 23.6.2007 PW1 called him to his office for serving notices on the inhabitants of Bheem Rao bada and then he along with other staff went to Bheem Rao bada in the afternoon for serving notices and at that time some inhabitants refused to receive the notices and in such cases, they pasted the notices on the doors of such houses and during that process 2 or 3 persons of the locality torned the notices and on that the notices are not served on all the persons and the revenue officials returned back due to law and order problem. PW4 failed to identify the assailants who torned the notices by stating that it is not his jurisdiction and there is a time gap of 5 years. Though PW4 failed to identify the assailants, his evidence clearly shows that the revenue officials were obstructed by 2 or 3 persons by tearing the notices. Non-identification of the accused by PW4 is not fatal to the case of the prosecution since the other witnesses clearly identified the accused as the persons who obstructed them.

12PW5 is the investigation officer who registered the case. His evidence shows that on 23.6.2007 at 1400 hours he received the report Ex.P1 from PW1 and on the basis of the same registered the case as Cr.No.77 of 2007 under sections 341 and 353 IPC and handedover the case file to the Sub Inspector for further investigation. It was suggested to PW5 in the cross examination that the section of law mentioned in Ex.P3 first information report was not attracted to the contents of Ex.P1. Since there is no allegation of any kind of assault or use of 6 force by the accused against Pws.1 to 4, the acts of the accused may not amounts to an offence punishable under section 353 IPC. Similarly since the contents of the first information report does not reveal any kind of restrainment on Pws.1 to 4 from the accused, the offence under section 341 IPC is also not attracted to the facts of this case. But, obstructing the revenue officials Pws.1 to 4 from serving notices issued by the Joint Collector, Hyderabad on the inhabitants of Bheem Rao bada by the accused by tearing the notices amounts to an offence punishable under section 186 IPC as the accused voluntarily obstructed Pws.1 to 4 who are public servants discharging their official duties in serving notices on the inhabitants of Bheem Rao bada. Even if such notices issued by the Joint Collector, Hyderabad were set aside by the Hon’ble High Court subsequently, the accused cannot take the law into hands and obstruct the government servants from performing their official duties. The notices issued by the Joint Collector Hyderabad are not set aside by the Hon’ble High Court by the date of the incident.

13PW6 the investigation officer who filed the charge sheet on completion of investigation. His evidence shows that he took up investigation, visited the scene of offence at Bheem Rao bada and also recorded the statements of witnesses Pws.1 to 4 and LW4 Smt.Leela and during the course of investigation, accused obtained anticipatory bail from the Hon’ble II Addl Metropolitan Sessions

Judge, Hyderabad on 15.12.2007 and after that he filed the charge sheet. It is

elicited from the cross examination of PW6 that he does not know about the litigation on Bheem Rao bada and he cannot say how many revenue officials visited Bheem Rao bada at the time of serving show cause notices. It is elicited from the cross examination of PW6 that a case in Cr.No.82 of 2007 under sections 341 and 323 IPC was registered against the accused herein and the said case numbered as CC.No.944 of 2007 on the file of I Addl Chief Metropolitan

Magistrate, Hyderabad and the same was ended was in acquittal through the

judgment under Ex.D2. Acquittal of accused in CC.No.944 of 2007 on the file of I Addl Chief Metropolitan Magistrate is nothing to do with this case. Cross examination of PW6 shows that his investigation does not reveal how many persons participated in the incident. This shows the poor investigation done by 7

PW5. But such poor investigation by PW6 itself is not sufficient to throw away the entire case of the prosecution. It is also elicited from the cross examination of PW6 that the date of offence is 22.6.2007 at about 4 pm but the contents of the charge sheet shows the date of offence as 23.6.2007. This shows the lethargy on the part of the investigation officer (PW6). But I feel such faults on the part of the investigation officer are not sufficient to disbelieve the entire case of the prosecution. Evidence of Pws.1 to 4 categorically establishes that they were obstructed by the accused while discharging their official duties in serving notices on the inhabitants of Bheem Rao bada by the accused by using vulgar language and by tearing the notices affixed to the doors of the houses by creating disturbance and law, order problems along with other persons of the locality and because of the accused Pws.1 to 4 failed to complete their official work on the date of incident.

14From the above discussion, I am of the considered opinion that the evidence available on record is sufficient to establish that the accused committed an offence punishable under section 186 IPC. Though there is no sufficient evidence to establish that the accused committed offences punishable under section 353 and 341 IPC, since the ingredients of offence under section 353 IPC are similar to the offence punishable under section 186 IPC with lesser gravity, I feel that the accused can be convicted for the offence punishable under section 186 IPC.

15In the result, the accused is found guilty for the offence punishable under section 186 IPC and accordingly he is convicted for the same under section 255(2) Cr.P.C.

Dictated to Personal Assistant, transcribed and typed by him, corrected

and pronounced by me in the open court on this the 17th day of April, 2013.

XVII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

8 dt.17.4.2013 Heard the accused with regard to quantum of sentence. Accused submitted that he is having wife and small children and prayed for imposing fine only. Considering the facts and circumstances of the case, I am not inclined to extend the benefits of provisions of Andhra Pradesh Probation of Offenders Act to the accused, but at the same time as the offence is not a serious one, I feel that the sentence can be restricted to fine only to meet the ends of justice as the accused is a young man having future. Hence the accused is found guilty for the offence under section 186 IPC and he is convicted U/Sec.255(2) Cr.P.C and sentenced to pay a fine of Rs.500/- (rupees five hundred only). In default of payment of fine, he shall undergo SI for a period of one month.

Dictated to Personal Assistant, transcribed and typed by him, corrected

and pronounced by me in the open court on this the 17th day of April, 2013.

XVII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

APPENDIX OF EVIDENCE

NO OF WITNESSES EXAMINED FOR

PROSECUTION

PW1.Sri M.Hanumanth Reddy, Revenue Divisional Officer, Hyderabad, complainant PW2.Sri B.Krupker, MRO, Nampally mandal, eye witness PW3.Sri K.Chandra Reddy, MRO Asif Nagar, eye witness PW4.Sri Fathelam Khan, MRO Charminar, eye witness PW5.Sri G.Jangaiah, ASI of Police, PS Begumbazar, registered case PW6.Sri M.Nagendra Rao, SI of Police, PS Begum Bazar, investigation officer

DEFENCE

Nil 9

NO OF EXHIBITS MARKED

PROSECUTION

Ex.P1.Report Ex.P2.A portion of 161 Cr.P.C statement of PW4 Ex.P3.First Information Report

DEFENCE

Ex.D1.Certified copy of order of the Hon’ble High Court of AP in WP.No.13481 of 2007 dt7.8.2007

Ex.D2.Certified copy of judgment in CC.No.944 of 2007 dated 26.8.2008 on the file of I Addl Chief Metropolitan Magistrate, Hyderabad

NO OF MOS MARKED

Nil

XVII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

1

IN THE COURT OF THE XVII ADDL CHIEF METROPOLITAN MAGISTRATE:

AT HYDERABAD.

PRESENT: SRI S.V.V.NATHA REDDY,

XVII ADDL CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Dated this the 22nd day of April, 2013.

CC.No.278 of 2009

Between: The State through The Inspector of Police, Golconda police station,

Hyderabad... Complainant

AND 1)Ahmed Mustafa, s/o late Badar Uz Zama, aged 31 years, Occ:Private business, r/o H.no.Plot No.5, Koralbagh, Khader Bagh, Hyderabad, native of Quarter No.E-23, Nizamabad Sugar Factory Colony, Sarangpur, Nizamabad district.

*2)Kiran Reddy, s/o Vishwas Reddy, aged 34 years, Occ:Soft engineer, r/o Nizamabad Sugar Factory Colony, Sarangpur, Nizamabad district, presently residing at Leujers, USA.

3)Mohd Siraj, s/o Mohd Younus, aged 36 years, Occ:Car mechanic, r/o 8-2-276, Khaja Nagar, Opposite lane of Nasheman hotel, First Lancer,

Hyderabad... Accused

*(Case against A2 split up and numbered as CC.No.377 of 2009 as he was absconding and the present case is proceeded against A1 and A3 only)

This case is coming before me on 18.4.2013 in the presence of learned APP appearing for the State and of M/s.N.Ramchander Rao, counsel for the accused and after having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

2

The Inspector of Police, police station Golconda representing the state filed charge sheet against accused in Cr.No.206 of 2005 of Golconda police station stating that the investigation revealed that A1 is the friend of A2 and A3 and as per the plan of A2, A1 had taken broad band connection with Bandwidth of 512 Kbps from M/s.Excel Media Private Limited through optical fibre cable which in turn connected with media converter make Smartnet model No.F1B-10/100W/SC20B with S.No.8202 version A2. This was in turn connected to an 8-port Ethernet hub make D link model No.DES1008 s.No.04091008+05408 – Version C-2, to which four Quintum Tenor VOIP gateways were connected. Each VOIP gateway Tenor A800 has 8 ports; so 8 telephones can be connected to each gateway. But in this set up, 4 telephones were connected to gateway No:1, 5 telephones were connected to gate No.2, 4 telephones were connected to gateway No.3 and 6 telephones were connected to gateway No.4. All these telephones were fixed wireless telephones taken from M/s.Reliance. The VOIP gateways are configured with the static Ips 202.153.39.50, 202.153.39.52, 202.153.39.53 and 202.153.39.54. It is well established that A1 received the amount sent by A2 from USA on the account No.55255 pertaining to A3 for installation of the above said telecommunication net work at premises No.9-4-116/51, Balreddynagar, Hyderabad and A1 having taken internet protocol connection with the above said IP Nos from M/s.Excel Media Private Limited, Banajra Hills as Proprietor of Kriprtec Services on 5.6.2004, started receiving calls in the data form from US sent by A2 through internet and terminated on the VOIP gateways to which wireless phones are connected. The gateways converter calls which are in data form are converted converted into voice form and also retrieves the number dialled by the other end customer (foreign end customer) and dialled out the destination number using any of the three wireless telephones connected to it, in other words, the accused are terminating the incoming international VOIP calls into public switched telecom net work (PSTN) net which is not permitted by the department of telecommunication. A1 with this set up established an illegal exchange, which interfaces internet VOIP calls to PSTN net work. The Calling Line Identification 3 on the receiver’s displays the local Reliance telephone number whereas the caller is from outside India. Thus A1 is routing the calls in an unauthorised way and caused revenue loss to the Government of India and also the licenced international long distance service provider. The calls made through this type of set up are beyond the scope of lawful monitoring and hence causing breach to the national security.

2 That, A2 sent the amount on the account of A3 with A/c.No.55255 in Canara Bank, Masab tank branch for installation of illegal telecommunication net work. A2 used to collect the call amounts from the customers at USA and send calls in the data form from US on the said IP numbers. In turn A1 route the same to the needy customers. Further A2 used to send the shared amount to A1 and A3 from USA for the illegal business. A3 received his share amount and also the share amount of A1 on his account No. from A2 in USA and he also used to remit the billing cash at M/s.Excel Media Private Limited, Banjara Hills, Hyderabad. Thus the facts and evidence collected during the course of investigation well established that A1, A2 and A3 committed offences punishable under sections 420, 379, 120-B r/w 34 IPC and Sections 4, 20 and 25 of Indian Telegraphic Act, 1885. Hence the charge.

3Case against A2 was split up as CC.No.377 of 2009 as he was absconding and the present case is proceeded against A1 and A3 only.

4On appearance of accused A1 and A3, all copies of the documents were furnished to them U/Sec.207 Cr.P.C and they were examined U/Sec.239 Cr.P.C and charges under sections 420, 379, 120-B r/w 34 IPC and Sections 4, 20 and 25 of Indian Telegraphic Act, 1885 were framed against accused, particulars read over and explained to them which they denied and pleaded not guilty and claimed to be tried.

5The prosecution to establish the guilt of accused, examined Pws.1 to 5 and got marked Exs.P1 to P5 and Mos.1 to 11. PW1 is the then Director (Vigilance) Telecommunication Moniteering is the defacto complainant. PW2 4 is the then Sub Divisional Engineer (Vigilance) Telecommunication Moniteering, TEC Cherlapally, PW3 is the Assistant Director, DOT Vigilance. PW4 is the Sub Inspector who assisted the investigation officer and PW5 is the investigation officer.

6On conclusion of the prosecution evidence, both accused A1 and A3 were examined under section 313 Cr.P.C with the incriminating material evidence spelt out by the prosecution witnesses and they denied the same and reported no defence.

7Heard both sides. The learned defence counsel argued that the prosecution failed to establish the guilt of accused beyond all reasonable doubts and no person from Excel Media is examined and no independent witness is examined by the prosecution to establish the involvement of the accused in the alleged illegal telecommunication set up. Therefore accused are entitled for acquittal.

8Now the point for consideration is whether the prosecution has proved the guilt of the accused beyond all reasonable doubts?

POINT:

8It is the case of the prosecution that A1 set up the illegal net work system at his residence by obtaining broad band connection of 512 Kbps from M/s.Excel Media Private Limited and purchased the equipment with the amount sent by A2 (Kiran Reddy, s/o Vishwas Reddy) from US through the bank account of A3 at Canara Bank, Masab Tank branch with A/c.No.55255 and A2 used to collect call amounts from the customers at US and send calls in the data form from USA on the internet protocol numbers 202.153.39.53, 203.153.39.52, 203.152.39.52, 203.153.39.54 obtained by A1 and A1 in turn route the same to the needy customers.

5 9Though it is the case of the prosecution that the accused A1 obtained broad band connection from Excel Media Private Limited and set up the illegal telecommunication net work by misusing such broad band connection, no person from Excel Media Private Limited is examined by the prosecution to establish that the accused A1 obtained broad band connection from such service provider. Though the investigation officer has cited one Sri P.Ramakrishna, Manager (Administration), M/s.Excel Media Private Limited as LW9 in the list of witnesses enclosed to the charge sheet, statement of such witness is not filed in part-II case diary and such witness is not examined by the prosecution. Therefore, there is no evidence on record from Excel Media Private Limited to establish that the accused A1 was provided with broad band connection. Non-examination of any official from Excel Media Private Limited is fatal to the case of the prosecution.

10Pws.1 to 3 are the officials from the department of telecommunication. Their evidence shows that on 25.8.2005 PW1 received information about the misuse of broad band connection by directing international calls from other countries to India and those calls are routed through public fixed telephone net work and on verification of such information PW1 lodged the report Ex.P1 with the police Golconda on the same day and after that PW1 accompanied the police to the premises of A1 and found illegal telecommunication set up in working condition and he explained to the police the illegality involved in such net work and after that police seized equipment by preparing panchanamas. Cross examination of PW1 shows that he has not reduced the information received by him into writing and he also did not mention the international numbers and domestic numbers of the callers on VOIP in his report. His cross examination reveals that the quantum of alleged loss sustained in this case was not mentioned in his report Ex.P1 since it requires lot of calculations and such calculations are made subsequently and mentioned in his office record and such office records containing calculations are not filed into the court. Thus there is no telephone number of any customer who availed the illegal service of A1 to show that accused misused the broad band connection. Since the calculations allegedly made by PW1 in his office records regarding 6 the quantum of loss is not filed, there is no evidence on record to show any loss caused by the accused either to the Government of India or to Excel Media Private Limited.

11Evidence of PW2 reveals that after PW1 received information about the misuse of broad band connection on 25.8.2005, he along with LW3, Sri A.Srinivas,ADEP, PW3 went to Balreddy nagar, Tolichowki and identified the house where the misuse is going on and by evening their higher ups along with the police came to the said house and found the accused A1 and after entering inside such house, noticed all the equipment in the bed room of the house. It is elicited from the cross examination of PW2 that he has not stated

before the police that he went to Balreddynagar, Tolichowki and by evening

their higher ups along with police came to the house of accused. This omissions elicited from the cross examination of PW2 creates a doubt about PW2 and other officials going to Balreddy nagar for verification of the information received by PW1. 12There is no whisper in the evidence of PW2 about going to Balreddynagar prior to the visit of PW1 and police to locate the address of A1. Evidence of PW3 shows that he along with other officials went to the premises of A1 along with the police only. Cross examination of PW3 shows that the enquiry report was prepared in this case and it is their internal file and the same is confidential. If such enquiry report was conducted by the department of Pws.1 to 3, such report should have been filed by PW1 in the police station along with complaint Ex.P1 or given to the police subsequently

before filing charge sheet in this case. Non-filing of such enquiry report raises

a doubt whether such enquiry said to have been made by PW2 along with others is true? Evidence of Pws.1 to 3 shows that all the equipment Mos.1 to 11 alleged to have been seized from the premises of A1 are freely available in the market. The investigation officer (PW5) also stated in his cross examination that the alleged seized equipments are freely available in the market.

7 13PW5 in his cross examination stated that he has pasted panch chits on the seized material Mos.1 to 11 but PW1 in his reexamination categorically admitted that Mos.1 to 11 are not containing any chits with his signatures and signatures of mediators. This further strengthens the suspicion whether Mos.1 to 11 are the same equipment seized by PW5 from the premises of A1.

14Prosecution failed to examine the panchas for the alleged confession cum seizure panchanama. Therefore, there is no independent witness to the alleged seizures of Mos.1 to 11. Since the evidence of PW5 shows that the material objects seized by him are pasted with panch chits and the evidence of PW1 reveals that Mos.1 to 11 are not containing the chits bearing the signatures of panch witnesses and no panch witness for the alleged seizures are examined by the prosecution, it creates a suspicion whether Mos.1 to 11 are the same material objects seized by PW5 in the presence of panchas. PW1 being the defacto complainant and Pws.2 and 3 are his subordinates, their interestedness in the case cannot be ruled out. Therefore, I feel that the prosecution failed to establish the seizure of Mos.1 to 11 beyond all reasonable doubts.

15Prosecution also filed to examine the landlord of the alleged premises of A1 to establish that the said premises was in the occupation of A1 by the date of detection of the alleged offence. Cross examination of PW5 shows that he has not examined the neighbours of the premises of the place of offence Though the examination in chief of PW5 shows that he examined and recorded the statements of LW9 Sri P.Ramakrishna, Manager (Administration), M/s.Excel Media Private Limited, no such statement is found in the charge sheet. Such witness is also not examined by the prosecution as he was not secured. This raises a doubt whether such Manager of Excel Media Private Limited is a fictitious person and as such, his presence was not secured by the prosecution. Such witness is a material witness in this case and non- examination of such witness makes me to draw an adverse inference under section 114(g) of Indian Evidence Act that such person is not in existence and as such the prosecution failed to examine such witness. Cross examination of 8 the investigation officer (PW5) shows that the alleged panch witness, Sri Jaya Kiran Cherukuri (LW6), Sri Y.B.Seetharamaiah (LW7) are not residents of Golconda and this shows that they are non-locals. Securing panchas who are not local residents of the place of offence further strengthens the suspicion on the alleged seizure.

16From the above discussion, I am of the considered opinion that the prosecution failed to establish the guilt of the accused beyond all reasonable doubts. Therefore, I feel that accused A1 and A3 are entitled for the benefit of reasonable doubt.

17In the result, A1 and A3 are found not guilty for the offences under sections 420, 379, 120(B) r/w 34 IPC and Sec.4, 20, 25 of Indian Telegraphic Act, 1885 and accordingly they are acquitted under section 248(1) Cr.P.C. The bail bonds of accused shall stand cancelled after expiry of six(6) months. Mos.1 to 11 shall be preserved for consideration in CC.No.377 of 2009 .

Dictated to Personal Assistant, transcribed and typed by him, corrected

and pronounced by me in the open court on this the 22nd day of April, 2013.

XVII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

APPENDIX OF EVIDENCE

NO OF WITNESSES EXAMINED FOR

PROSECUTION

PW1.Sri B.Suresh Krishna, Director Vigilance, Telecommunication Monitoring, Hyderabad, complainant PW2.Sri V.Shankar, Sub Divisional Engineering, Vigilance Telecom Monetary, TEC Cherlapally, RR district, witness PW3.Sri K.S.V.Prasad, witness PW4.Sri B.Ravinder, SI of Police, PS Golconda, assisted investigating officer PW5.Sri S.John Wesley, Inspector, PS Golconda, investigation officer

DEFENCE

Nil

NO OF EXHIBITS MARKED

9

PROSECUTION

Ex.P1.Report Ex.P2.Observation confession cum seizure panchanama Ex.P3.Block diagram of illegal set up Ex.P4.First Information Report Ex.P5.Search proceedings

DEFENCE

Nil

NO OF MOS MARKED

PROSECUTION

MO1.14 Nos. Tata CDMA Motorola MO2.3 Nos. CDMA LG make MO3.6 Nos.VOIP routers MO4.OFC JUNCTION box MO5.Media Convertor MO6.2 UPS MO7.UPS APC MO8.2 D-Link switches with 8 ports each MO9.Connecting cables MO10.42 Nos.Reliance CDMA of LG Make MO11.36 Nos. Power Adapters

DEFENCE

Nil

XVII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

10

1

IN THE COURT OF THE XVII ADDL CHIEF METROPOLITAN MAGISTRATE:

AT HYDERABAD.

PRESENT: SRI S.V.V.NATHA REDDY,

XVII ADDL CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Dated this the 24th day of April, 2013.

CC.No.321 of 2012

Between:

The State through The Inspector of Police, Musheerabad police station,

Hyderabad... Complainant

AND 1)Smt.Bagari Yadamma @ Laxmamma, w/o Ramaswamy, aged 32 years, Occ:Tailor work, r/o H.No.3-82, Pomal (Village & PO), Nawabpet (Mandal), Mahaboobnagar district.

2)B.Narsimhulu @ Ramulu @ Pasha, s/o Bheemaiah, aged 30 years, r/o H.No.8-189, Old Bazar, Masjid Road,

Balepally, Jedcherla, Mehaboobnagar District... Accused

*(Cognizance was taken against A1 only as police filed charge sheet stating A2 was absconding and the present case is proceeded against A1 only).

This case is coming before me on 24.4.2013 in the presence of learned APP appearing for the State and of Smt.Ch.Padma, counsel for the accused and after having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The Inspector of Police, police station Musheerabad representing the state filed charge sheet against accused A1 and A2 in Cr.No.47 of 2012 stating that the investigation revealed that the defacto complainant, Sri Md.Sarwar Hussain (LW1), a native of Pomal village, Nawabpet mandal, 2

Mahboobnagar district and accused A1 also belongs to the same village. Whenever A1 used to visit Hyderabad she used to stay in the house of the defacto complainant and during such stay she noticed that the defacto complainant used to keep the gold jewellery in almirah and keep the almirah keys to the peg of the wall. As A1 is facing financial problems, she along with A2 hatched a plan to commit theft of jewellery from the house of defacto complainant. On 12.1.2012 at about 1800 hours A1 along with her second daughter Akila and A2 came to Hyderabad and she went to the complainant's house along with her daughter and informed that she came to Hyderabad for purchasing tailoring material. A2 also followed them and he was moving near the complainant's house and in the early hours of 13.1.2012 at about 0200 hours, A1 entered into the store room of the defacto complainant, oped the almirah with the available keys and committed theft of one black box containing gold and silver articles and concealed the same in her clothes and kept the jewellery box in her luggage bag and after that accused persons left Hyderabad. After reaching their village, A1 kept gold articles viz. Gold latcha wg.about 2 tolas, gold Limboli haar and gold Sarasai wg.about 1 tola, one small gold ring wg.about 2 gms and 9 nose studs with her while A2 taken away all the silver articles along with one gold ring and gold galser for selling. During the course of investigation, A1 was apprehended on 31.1.2012 at about 6 am and produced before the investigation officer and on the interrogation, A1 confessed the commission of this offence and on that the properties are recovered from her under the cover of confession cum seizure panchanama in the presence of mediators. Thus the investigation established that accused A1 and A2 have committed an offence punishable under section 380 IPC. Hence the charge.

2Cognizance was taken against A1 only for the offence under section 411 IPC.

3On appearance of the accused A1, all copies of the documents were furnished to her U/Sec.207 Cr.P.C and she was examined U/Sec.239 Cr.P.C and charge under section 411 IPC was framed against accused, 3 particulars read over and explained to her, which she denied and pleaded not guilty and claimed to be tried.

4The prosecution to establish the guilt of the accused, examined Pws.1 to 5 and got marked Exs.P1 to P5 and Mos.1 to 5. PW1 is the defacto complainant in whose house accused A1 took shelter and committed theft, Pws.2 and 3 are the panch witnesses for the confession cum seizure panchanama of the accused, PW4 is the first investigation officer and PW5 is the investigation officer who filed the charge sheet.

5On conclusion of the prosecution evidence, accused was examined under section 313 Cr.P.C with the incriminating material evidence spelt out by the prosecution witnesses and she denied the same and reported no defence.

6Heard both sides and received written arguments from the learned counsel for the accused.

7Now the point for consideration is whether the prosecution has proved the guilt of the accused beyond all reasonable doubts?

POINT:

8It is the case of the prosecution that the accused A1 belongs to the native village of PW1 and she used to stay in the house of PW1 as and when she used to visit Hyderabad and in that she learnt that PW1 used to keep gold jewellery in almirah and keep keys of such almirah to the peg of the wall and the accused facing financial problems hatched a plan to commit theft of the jewellery from the house of PW1 and accordingly went to the house of PW1 along with her daughter Haseena at 6 pm on 12.1.2012 and on the same night around 2 am she entered into the store room of PW1, opened the almirah with the available keys and committed theft of plastic bag containing 4 gold and silver articles and left Hyderabad with her luggage by concealing the stolen jewellery in her luggage. 9Evidence of PW1 reveals that the accused came to his house along with her daughter on 12.1.2012 and on the next day at 6 am they left his house and after that on 16.1.2012 his wife Farzana Begum on opening the almirah in the house found her gold and silver articles missing. Evidence of PW1 further shows that on his enquiry at his native place he got information that one woman is trying to sell the articles at his native place and then he lodged the report in Musheerabad police station and after 3 days he came to know that some of the properties are recovered by the police. PW1 identified Mos.1 to 5 as the properties belonging to him.

10PW1 in his cross examination stated that he might have given the report in the police station on 16th or 17th of January, 2012 and on 25.1.2012 he came to know that his properties are recovered by police. The learned counsel for the accused in her written arguments contended that the evidence of PW1 shows that he lodged the report on 16th or 17th of January, 2012 but, the report Ex.P1 shows that it was received in the police station on 25.1.2012 at 2100 hours. The difference in the date of lodging the report Ex.P1 in the police station is not fatal to the case of the prosecution since cross examination of PW1 reveal that he does not remember the exact date of lodging the report in the police station. The learned counsel for the accused also contended in the written arguments that PW1 denied about receiving a copy of the first information report in the police station and column No.14 of the first information report is not containing the signatures of PW1 and in the first information report it was mentioned that the first information report read over to the complainant and the contents are admitted to be correctly recorded and copy was given to the complainant free of cost. Such latches on the part of the investigation officer will not affect the evidence of PW1 since no contradictions are elicited from the cross examination of PW1. It is also submitted in the written arguments that the reasons for the delay was not mentioned in the first information report. The delay in lodging the first information report itself is not sufficient to throw 5 away the case of the prosecution. Though there is a delay in lodging the first information report, no motives are made out against PW1 for falsely involving the accused. It is elicited from the cross examination of PW1 that he has not witnessed the accused while committing theft in his house but PW1 adds that on his enquiry with his villagers he came to know that the accused committed theft of his articles. Thus the evidence of PW1 categorically establishes that the accused A1 came to his house on 12.1.2012 and left the house on the next day morning around 6 AM and after that on 16.1.2012 his wife, Farzana Begum on opening the almirah found the gold and silver jewellery kept in the almirah are missing and after that on enquiry, PW1 came to know that one woman in his village is trying to sell the articles stolen from his house and then he lodged the report Ex.P1. This shows that as PW1 did not see any person committed theft, he kept quiet and only after enquiring and coming to know about the attempts of a woman to sell the stolen jewellery at his village he lodged the report in the police station. Thus the delay though not explained in the first information report can be found that it had occurred due to such facts. 11Evidence of panch witnesses Pws.2 and 3 clearly shows that they were called to the police station Musheerabad and shown the accused and the accused shown the stolen articles by confessing the offence. Both panch witnesses are residents of Musheerabad and the panchanama was also conducted in the police station Musheerabad. Nothing was elicited from the cross examination of these witnesses to disbelieve their testimony. Cross examination of PW3 categorically shows that the accused confessed before him that she came to Hyderabad along with her daughter on 12.1.2012 and on that night slept in the house of PW1 and waited till the owner of the house fell asleep and after that she took the keys of almirah hanging to the wall and took gold items from the almirah and kept the gold ornaments in her bag. Thus it is clear from the evidence of Pws.2 and 3 that Mos.1 to 5 are recovered from the possession of accused under the cover of panchanama. 12PW4 is the investigation officer who interrogated the accused and recovered Mos.1 to 5 under the cover of confession cum seizure panchanama of the accused in the presence of mediators (Pws.2 and 3). His evidence 6 shows that after the case was registered by Sub Inspector, Sri N.R.Laxman Raju in Cr.No.47 of 2012 he took up the investigation, examined the witnesses PW1 and LW2 Farzana Begum and on receiving credible information about presence of accused near Malakpet gunj on 31.1.2012 at 6 am, he deputed WPC-633, Kumari Archana (LW5) and PC-3386 Sri Nagesh (LW6) along with PW1 for apprehending the accused and they apprehended the accused and produced before him and on his interrogation accused confessed the commission of theft and then he secured the presence of mediators (Pws.2 and 3), recorded the confession cum seizure panchanama of the accused and seized Mos.1 to 5 and after that effected arrest of the accused and sent her for judicial remand. Thus the evidence of PW4 is thoroughly corroborated by the mediators (Pws.2 and 3) and shows that the properties of PW1 viz. Mos.1 to 5 are recovered from the possession of the accused under the cover of confession cum seizure panchanama of the accused. It is elicited from the cross examination of PW4 that the name of the accused was mentioned as Tappa Yadamma in the report Ex.P1 and during the course of investigation, the name of the accused is revealed as Bagari Yadamma. PW4 Sri A.Surya Naik denied the suggestion that Tappa Yadamma and Bagari Yadamma are different persons and the accused is falsely implicated in this case. Though the name of accused is mentioned as Tappa Yadamma, in Ex.P2, it is mentioned in the charge sheet as Bagari Yadamma. Accused is clearly identified by PW1 as the person whom he referred in his report Ex.P1 as Tappa Yadamma. Therefore such minor variation in the first name is not sufficient to disbelieve the involvement of the accused in this case.

13PW5 is the investigation officer who filed the charge sheet. He also denied the suggestion that Tappa Yadamma is not the accused in this case. There is no contrary evidence to show that there is another person other than the accused with the name Tappa Yadamma and the accused is falsely identified as Tappa Yadamma. Evidence of Pws.1 to 4 clearly establishes that the accused is the person involved in the offence and the evidence of Pws.2 to 4 further establishes that the properties Mos.1 to 5 are recovered from the possession of the accused under the cover of confession panchanama.

7 14From the above discussion, I am of the considered opinion that the evidence available on record is sufficient to establish that stolen properties Mos.1 to 5 belonging to PW1 are recovered from the possession of the accused. Therefore the accused is liable for punishment under section 411 IPC as she failed to justify the possession of Mos.1 to 5.

15In the result, the accused A1 is found guilty for the offence punishable under section 411 IPC and accordingly he is convicted under section 248(2) Cr.P.C.

Dictated to Personal Assistant, transcribed and typed by him, corrected

and pronounced by me in the open court on this the 24th day of April, 2013.

XVII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

Dated: 24.4.2013

Heard the accused with regard to quantum of sentence. Accused submitted that she is having small children and prayed for a lenient view. Considering the facts and circumstances of the case, I feel that a lenient view can be taken against the accused by restricting the sentence to the period already undergone by the accused as an under trial prisoner. Hence the accused is convicted under section 248(2) Cr.P.C for the offence under section 411 IPC and sentenced to the period already undergone by her from 31.1.2012 to 16.4.2012 by giving set off under section 428 Cr.P.C. Mos.1 t 5 returned to PW1 for interim custody shall become absolute after appeal time.

Dictated to Personal Assistant, transcribed and typed by him, corrected

and pronounced by me in the open court on this the 24th day of April, 2013.

XVII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

8

APPENDIX OF EVIDENCE

NO OF WITNESSES EXAMINED FOR

PROSECUTION

PW1.Sri Mohammed Sarwar Hussain, complainant PW2.Sri Mohd Riyazuddin, panch witness PW3.Sri Md.Ziyauddin, panch witness PW4.Sri A.Surya Naik, SI of Police, PS Musheerabad, first investigation officer PW5.Sri Mohammed Riyazuddin, Inspector (Crimes), Musheerabad, investigation officer filed charge sheet

DEFENCE

Nil

NO OF EXHIBITS MARKED

PROSECUTION

Ex.P1.Report Exs.P2&3.Admitted signatures of PW2 on confession cum seizure panchanama of A1 dt.31.1.2012 Ex.P4.Relevant portion of confession cum seizure panchanama of accused Ex.P5.First Information Report

DEFENCE

Nil

NO OF MOS MARKED

PROSECUTION

MO1.Gold latcha MO2.Gold Limboli haar MO3.Gold Jumke MO4.Gold Sarasai and Gold gundlu MO5.One small gold ring and 9 nose studs

DEFENCE

Nil

XVII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

9

1

IN THE COURT OF THE XVII ADDL CHIEF METROPOLITAN MAGISTRATE:

AT HYDERABAD.

PRESENT: SRI S.V.V.NATHA REDDY,

XVII ADDL CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Dated this the 17th day of April, 2013.

CC.No.457 of 2009

Between:

The State through The Sub Inspector of Police, Jubilee Hills police station,

Hyderabad... Complainant

AND 1)Medikonda Venkata Murali Krishna, s/o M.Ramachandra Rao, aged 42 years, Caste: Kamma, Occ:Film Producer & Owner of “Cheers Bar & Restaurant”, Opposite Old Bus stand, Vijayawada, r/o Flat No.301, SR Mansion, Plot No.74, Road No.70, Jubilee Hills, Hyderabad.

2)Ambati Madhusudhan Reddy, s/o Bal Reddy, aged 42 years, n/o Vidyanagar, Allagadda Mandal, Kurnool district.

3)thallapuru Ranga Muni, s/o Chantanna, aged 36 years, Occ:Illiterate, Mala/Christian, n/o Vidyanagar, Allagadda, Kurnool district.

4)Thummala Jai Raju @ Raju, s/o Bhaskar, aged 33 years, Mala (SC), Driver, N/o Allagadda (near Church Old Bus stand), Kurnool district, r/o Plot No.94, Road No.72, Jubilee Hills.

5)Padakandla Chakali Pullaiah, s/o Santenna, aged 36 years, Caste :Chakali, agent Kapil Chitfunds, 2

Owner STD booth/Professional Courier Services, Allagadda, Kurnool district, r/o Plot No.94, Road No.72, Jubilee Hills.

6)Mekala Ramanaidu @ Swamy, s/o Chinnaiah, aged 40 years, Caste:Boya, n/o Gorimanipally Village, Kolimugunda mandal, Koilkunta Tq, Kurnool district, r/o Plot No.94, Road No.72, Jubilee Hills.

7)Sundi Kiran Kumar, s/o Singaiah, aged 21 years, occ:Cook, Kamma, n/o Ponnapuram Colony, Nandhyal, r/o Plot No.94, Road No.72, Jubilee Hills, Hyderabad.

8)Hanumolu Malleswara Rao @ Bose, s/o Venkata Rao, aged 45 years, Occ:Driver, r/o Plot No.94, Road No.72, Jubilee Hills, n/o Opp.Kanaka Durgah Theatre, Dasari Vari Veedhi,

Suryapet, Vijayawada... Accused

This case is coming before me on 8.4.2013 in the presence of learned APP appearing for the State and of M/s.Papa Naidu & Associates, counsel

for the accused and after having stood over for consideration till this day, this

court delivered the following:

J U D G M E N T

The Sub Inspector of Police, police station Jubilee Hills representing the state filed charge sheet against accused A1 to A8 in Cr.No.41 of 2006 of Jubilee Hills police station stating that the investigation established that the defacto complainant, Sri Hanumara Subash Chandra Bose (LW1) purchased buses from the company of A1 about 4 years ago and in that the defacto complainant retained an amount of Rs.50,000/- as one of the registration certificate of the bus No.AP 13 W 3737 was not handedover to him. A1 instead of handing over the said registration certificate book pressurising the defacto complainant to clear the amount along with 3 compound interest but the defacto complainant refused to do so. On that A1 sent A2 to the house of the defacto complainant about 2 months back and intimidated to do away if the due amount of Rs.50,000/- with interest is not cleared. On 13.1.2006 at about 10 pm A2 contacted the defacto complainant on telephone and abused him for not clearing the payment and after few minutes on the instructions of A1, A2 to A7 went to the house of the defacto complainant in White Innova car bearing No.AP 9 AY 199 registered in the name of A1 driven by A8. On the call of A2 defacto complainant came near the main gate and then A2 and others started abusing him in filthy language. A2 to A7 jumped the compound wall and beaten the supervisor LW2 N.Venkataiah Chowdary who tried to prevent the accused from abducting the defacto complainant. Then the accused forcibly lifted the defacto complainant and thrown him into the Innova car and taken him away. The supervisor LW2 N.Venkaiah Choudary informed the incident to LW4 B.G.Srinivas Reddy and LW5 N.venkata Ramakrishnam Raju and other friends and relatives and LW4 B.G.Srinivas Reddy in turn passed oral information to the Jubilee Hills police station at 11 pm and the same was entered in General Diary dated 13.1.2006 at Serial No.39. The accused used another vehicle bearing No.AP 9 AK 2600 registered in the name of V.Venugopal to carry the defacto complainant by shifting from Innova car bearing NO.AP 9 AY 199. A2 to A7 taken the abducted defacto complainant to the guest house of A1 at Plot No.94, Road No.72, Jubilee Hills, Hyderabad owned by the wife of LW9 Sri Dorai Swamy Kishore Kumar and confined him wrongfully for about 1 ½ hour and tortured him by fisting, kicking and abusing in filthy language and demanded for the payment of Rs.5 lakhs towards the due amount of Rs.50,000/-. Under such coercion and threat the defacto complainant orally agreed to pay the amount. On seeing the patrolling van moving in the area, accused A1 to A3 instructed A4 to A7 to take the defacto complainant away from the guest house in Maruthi van bearing N o.AP 9 Z 3438 registered in the name of A2 and on that A4 to A7 shifted the defacto complainant and left him near Satyam computers on Road No.1, Jubilee Hills, Hyderabad due to fear of police and escaped. Thus the investigation established that A1 to A8 have committed offences punishable under section 365, 368, 342, 323 and 506 r/w 34 IPC. Hence the charge.

4 2On appearance of accused A1 to A8, all copies of the documents were furnished to them U/Sec.207 Cr.P.C and they were examined U/Sec.239 Cr.P.C and charges under sections 365, 368, 342, 323 and 506 r/w 34 IPC were framed against accused, particulars read over and explained to them which they denied and pleaded not guilty and claimed to be tried.

3The prosecution to establish the guilt of the accused, examined Pws.1 to 3 and got marked Exs.P1 to P12. PW1 is the defacto complainant/victim. PW2 is a panch for scene of offence observation panchanama and PW3 is the investigation officer.

4On conclusion of the prosecution evidence, accused were examined under section 313 Cr.P.C with the incriminating material evidence spelt out by the prosecution witnesses and they denied the same and reported no defence.

5Heard both sides.

6Now the point for consideration is whether the prosecution has proved the guilt of the accused beyond all reasonable doubts? POINT:

7It is the case of the prosecution that PW1 purchased buses from A1 and in that transaction PW1 withheld an amount of Rs.50,000/- as A1 did not handover the registration certificate book of the bus bearing No.AP 13 W 3737 on that A1 started pressurising PW1 to clear the due amount along with compound interest and in that A2 to A7 went to the house of PW1 at about 10 pm on 13.1.2006 and forcibly taken him to the guest house of A1 by putting him in Innova car bearing No.AP 9 AY 199 and confined PW1 for about 1 ½ hour and tortured him by demanding for the payment of Rs.5 lakhs towards the due amount of Rs.50,000/- and on seeing the patrolling police van, 5 accused left PW1 on a maruthi van bearing No.AP 9 AZ 3438 near Satyam computers on Road No.1, Jubilee Hills, Hyderabad.

8The defacto complainant/victim is examined as PW1, but PW1 failed to offer himself for cross examination. Therefore, the evidence of PW1 which is not put to the test of cross examination is not fit for consideration. Prosecution failed to examine the other eye witnesses and circumstantial witnesses inspite of giving several chances.

9PW2 who is shown as a panch for scene of offence observation panchanama deposed that he came to know about the incident after going to the house of PW1 on the date of incident and he also came to know that PW1 was released by the evening of the same day. His evidence further shows that on the next day of the incident police obtained his signatures on blank papers at the house of PW1 but he did not see anything about preparing scene of offence observation panchanama by the police.

10PW3 is the investigation officer who filed the charge sheet. His evidence shows that the case was registered by Head Constable-5146 and after that he verified the investigation done by the Head Constable and also verified the General Diary and examined the witnesses and prepared the panchanama of the scene by drawing rough sketch in the presence of mediators viz. Gova Narsimha Rao and E.Rajpal Reddy and also examined the remaining witnesses at the scene of offence, but none other witnesses were examined by the prosecution other than Pws.1 and 2 to corroborate the case of the prosecution.

11Evidence of PW3 further shows that he apprehended A4 to A7 at Road No.72 in Plot No.94 in the guest house belonging to A1 and interrogated the said accused in the presence of mediators, B.Sagar Reddy (LW12) and S.Venkata Murali and recorded the confessional statement of A1 and seized Ford car bearing No.AP 9 AK 2600 used in the offence and then effected arrest of A4 to A7 but the mediators P.Sagar Reddy (LW12) and S.Venkata 6

Murali (LW13) are not examined by the prosecution. Therefore, there is no corroboration to the evidence of PW3.

12Evidence of PW3 further shows that on 16.2.2006 A2, A3 and A8 surrendered before III Addl Chief Metropolitan Magistrate Court, Hyderabad and the Court granted police custody of A2, A3 and A8 for one day on his requisition and during the police custody on 21.2.2006 A2, A3 and A8 admitted the commission of offence along with other accused in the presence of mediators A.Venkata Durga Prasad (LW14) and M.Venkata Ramana (LW15) and then he recorded the confessional statement of A2 and in pursuance of the confession of A2, he along with the panchas and A2 visited the premises of Abhishek Residency, Road No.1, Banjara Hills, and seized Innova car bearing No.AP 09 AY 0199 and Maruthi van bearing No.AP 09 AZ 3438 from the open place in front of the main gate of Abhishek Residency at the behest of A2. But prosecution failed to examine such mediators to corroborate the evidence of PW3. Evidence of PW3 also shows that he recorded the statement of the watchman of Abhishek Residency by name Ram Shanker Naik (LW8) but such watchman is also not examined by the prosecution. Even the alleged A1’s guest house owner, LW9 Smt.Padmavathi or her husband, D.Kishore Kumar (LW9) are not examined by the prosecution to prove that their house was let out to A1. Therefore there is no evidence to connect the accused A1 with the guest house at which the defacto complainant (PW1) was allegedly detained by the accused. Even the doctor who treated the defacto complainant and his supervisor (LW2) Nagoji Venkataiah Choudary (LW2) is not examined by the prosecution to prove the injuries. Cross examination of PW3 reveals that he has not received any documentary evidence about the due of Rs.50,000/- by PW1 to A1. The copies of the General Diary at page No.39 are not filed along with the charge sheet and exhibited as document to prove that the incident was orally informed in the police station by LW5 Sri Venkata Krishnam Raju. Even such informant Sai Venkata Krishnam Raju is not examined to prove that he informed the incident to the police orally. Cross examination of PW3 reveals that the evidence of PW1 consists of improvements and omissions on material facts. Since PW1 failed to offer 7 himself for cross examination, the accused are deprived of testing the veracity of his evidence. Therefore the evidence of PW1 is not fit for consideration. There is no other eye witness or circumstantial witness to corroborate the evidence of the investigation officer (PW3). In the circumstances, I feel that the solitary evidence of the investigation officer (PW3) is not sufficient to establish the guilt of accused.

13With the above insufficient evidence on record, I am of the considered opinion that the prosecution failed to bring home the guilt of the accused beyond all reasonable doubts. Therefore, I feel that accused A1 to A8 are entitled for the benefit of doubt.

14In the result, A1 to A8 are found not guilty for the offences punishable under sections 365, 368, 342, 323 and 506 r/w 34 IPC and accordingly they are acquitted for the same under section 248(1) Cr.P.C. The bail bonds of the accused shall stand cancelled after six(6) months. The unmarked valuable properties ie Innova car bearing No.AP 09 AY 0199 returned to A1 vide orders in MP.2214/2006 and Maruthi Omni bearing No.AP 09 AZ 3438 returned to A2 vide orders in MP.2215/2006 dated 9.3.2006 and Icon Ford car bearing No.AP 09 AK 2600 returned to Sri V.Venugopal owner of the vehicle vide orders in MP.7125/2006 dated 28.6.2006 shall become absolute after appeal time.

Dictated to Personal Assistant, transcribed and typed by him, corrected

and pronounced by me in the open court on this the 17th day of April, 2013.

XVII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

APPENDIX OF EVIDENCE

NO OF WITNESSES EXAMINED FOR

PROSECUTION

PW1.Sri Hanumara Subhash Chandra Bose, complainant/victim PW2.Sri Movva Narasimha Rao, panch witness PW3.Sri M.Srinivasa Rao, Inspector of Police, Jubilee Hills PS, investigation officer 8

DEFENCE

Nil

NO OF EXHIBITS MARKED

PROSECUTION

Ex.P1.Report Exs.P2&3.Admitted signatures of PW2 on scene of offence panchanama dt.31.1.2006 Ex.P4.Admitted signature of PW2 on rough sketch map Ex.P5.Scene of offence panchanama Ex.P6.rough sketch Ex.P7.Relevant portion of confession cum seizure panchanama of A4 Ex.P8.Relevant portion of confession cum seizure panchanama of A2 Ex.P9.Medical certificate of PW1 Ex.P10.Medical certificate of LW2 Venkataiah Chowdary Ex.P11.First Information Report Ex.P12.Letter addressed to RTA, Central Zone, Khairatabad, Hyderabad by PW3 .

DEFENCE

Ex.D1.

NO OF MOS MARKED

Nil

XVII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

9

1

IN THE COURT OF THE XVII ADDL CHIEF METROPOLITAN MAGISTRATE:

AT HYDERABAD.

PRESENT: SRI S.V.V.NATHA REDDY,

XVII ADDL CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Dated this the 18th day of April, 2013.

CC.No.1052 of 2009

Between:

The State through The Sub Inspector of Police, Jubilee Hills police station,

Hyderabad... Complainant

AND 1)Guggilla Dinesh Gupta, s/o Nagaraju, aged 21 years, Caste:Vishya, r/o H.No.8-3-231/A/121, Krishnanagar, A Block, Yousufguda, Hyderabad, n/o Gudiwada near Baskara Theatre, Krishna district.

2)Lakkimsetty Leela Karteek @ Bobby, s/o Nageswara Rao, aged 21 years, Occ:House keeping, Caste: Devangula (BC), r/o H.no.8-3-234/501, Laxminarasimhanagar, Yousufguda, Hyderabad, n/o Narsapura near

Y.N.College, West Godavari district. .. Accused

This case is coming before me on 17.4.2013 in the presence of learned APP appearing for the State and of Sri L.Zainuddin, counsel for the accused and after having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The Sub Inspector of Police, police station Jubilee Hills representing the state filed charge sheet against accused A1 and A2 in Cr.No.22 of 2008 of his police station stating that the facts and evidence collected during the course of investigation well established that on the intervening night of 10/11.1.2008 at 0400 hours while the defacto complainant, Sri M.Pavan Kumar (LW1) and his 2 friends, K.Jagan Reddy (LW2), B.Sashidhar (LW3) were sleeping in their portion at H.No.8-3-229/E/61/1, Ground floor, Venkatagiri, A1 and A2 noticed the window of the ground floor portion kept opened and while A2 was watching outside A1 inserted his hand through the window and removed the inside bolt of the main door and entered into the portion and committed theft of 4 cellphones of Samsung, Nokia, Sony Ericson and another Nokia along with credit card etc. Therefore accused are liable for punishment under sections 457 and 380 IPC.

2On appearance of accused A1 and A2, all copies of the documents were furnished to them U/Sec.207 Cr.P.C and they were examined U/Sec.239 Cr.P.C and charges under section 457 and 380 IPC were framed against accused, particulars read over and explained to them, which they denied and pleaded not guilty and claimed to be tried.

3The prosecution to establish the guilt of the accused, examined one of the panch witnesses as PW1 and the investigation officer as PW2 and got marked Exs.P1 to P6.

4On conclusion of the prosecution evidence, accused were examined under section 313 Cr.P.C with the incriminating material evidence spelt out by the prosecution witnesses and they denied the same and reported no defence.

5Heard both sides.

6Now the point for consideration is whether the prosecution has proved the guilt of the accused beyond all reasonable doubts?

POINT:

7It is the case of the prosecution that on the intervening night of 10/11.1.2008 A1 and A2 entered into the portion of the defacto complainant by 3 opening the inside bolt of the main door through the window by A1 and after that accused committed theft of 4 cellphones and some credit cards.

8Prosecution failed to examine the defacto complainant, Sri M.Pavan Kumar (LW1) and his friends, K.Jagan Reddy (LW2) and B.Shashidhar (LW3). Therefore the contents of the first information report are not proved. Since the defacto complainant is not examined, even the cellphones recovered and deposited by the investigation officers are not established to be the cellphones involved in this case.

9PW1 a panch for the alleged confession cum seizure panchanama of A1 and A2 did not support the case of the prosecution. His evidence shows that about 2 or 3 years back on one morning around 11 am police called him to the police station Jubilee Hills and obtained his signatures on scribed papers but no offenders were shown to him nor the properties are recovered from anybody. Prosecution failed to examine the other panch witness, Sri Md.Chand Pasha (LW4). Therefore, there is no evidence of any independent witness to prove the seizure alleged to have been made by the investigation officer (PW2) under the cover of panchanama.

10Evidence of the investigation officer (PW2) shows that he received the complaint Ex.P3 from the defacto complainant, Sri M.Pavan Kumar and registered this case and during the course of investigation on 16.1.2008 at 1630 hours he apprehended A1, A2 and another accused by name, Manikanta on credible information at Dil Communications shop in Krishna Nagar main road and on checking those persons he found cellphones in their possession and they confessed to have stolen those cellphones and then he secured the mediators (PW1) and Chand Pasha (LW4), recorded the confession cum seizure panchanamas of A1 and A2 and Manikanta separately and seized Samsung cellphone model 3170, Nokia model 1112 pertaining to this case and another Nokia cellphone pertaining to other offence from the possession of A1. His evidence also shows that on the basis of confession of A2, he seized Sony Ericson cellphone model W550i and Nokia cellphone model 6030 pertaining to 4 this case. But the evidence of PW2 is not corroborated by PW1 and there is no other witness to support the evidence of PW2. Since the defacto complainant is not examined, there is no evidence to show that the cellphones allegedly recovered from the possession of A1 and A2 are the cellphones stolen from the house of defacto complainant. A suggestion was given to PW2 that nothing was recovered from the possession of accused and no confession was made by the accused. Though PW2 denied such suggestion, there is no sufficient evidence other than the evidence of PW2 to establish that the accused committed theft of cellphones from the portion of defacto complainant and the same cellphones are recovered from the possession of accused. Since the evidence of PW2 is not supported by PW1, I feel that it is not safe to rely on the solitary evidence of PW2.

11With the above insufficient evidence on record, I am of the considered opinion that the prosecution failed to establish the guilt of A1 and A2 beyond all reasonable doubts. Therefore, I feel that A1 and A2 are entitled for the benefit of doubt.

12In the result, A1 and A2 are found not guilty for the offences under sections 457/380 IPC and accordingly they are acquitted U/Sec.248(1)Cr.P.C. The bail bonds of accused shall stand cancelled after six (6) months. The cellphones which are already returned to the defacto complainant, Sri M.Pavan Kumar vide MP.No.540 of 2008 dated 24.1.2008 towards interim custody shall become absolute after appeal time.

Dictated to Personal Assistant, transcribed and typed by him, corrected and

pronounced by me in the open court on this the 18th day of April, 2013.

XVII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

5

APPENDIX OF EVIDENCE

NO OF WITNESSES EXAMINED FOR

PROSECUTION

PW1.Sri T.Venkatesham, panch witness PW2.Sri K.Srinivas, SI of Police, PS Jubilee Hills, Hyderabad, investigation officer

DEFENCE

Nil

NO OF EXHIBITS MARKED

PROSECUTION

Ex.P1.Admitted signature of PW1 on confession cum seizure panchanama of A1 Ex.P2.Admitted signature of PW1 on confession cum seizure panchanama of A2 Ex.P3.Complaint Ex.P4.First Information Report Ex.P5.Relevant portion of confession cum seizure panchanama of A1 Ex.P6.Relevant portion of confession cum seizure panchanama of A2

DEFENCE

Nil

NO OF MOS MARKED

Nil

XVII ADDL CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

6