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Date : 22.04.2025. MTM
IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-
CUM- PRINCIPAL CIVIL JUDGE (JUNIOR DIVISION):
MACHILIPATNAM
Present: SMT V. DEVI SAI SRIVANI,
Judicial First Class Magistrate - Cum -
Principal Civil Judge (Junior Division),
Machilipatnam.
Tuesday, this the 22nd day of April, 2025
C.C.No.129/2025
Between:
The State represented by the Sub-Inspector of Police, Machilipatnam Police Station. … Complainant.
AND
1. Nalla Sai Kiran @ Sai, S/o.Siva Sankar, 20 years, G-Block, Sing Nagar, Vijayawada.
2. Ratti Tambaiah @ Kappa, S/o.Hari, 28 years, Vambay Colony, Vijayawada. … A1 & A2.
This case has come up before me on 21.04.2025 for final hearing in the presence of Learned Senior Assistant Public Prosecutor for Complainant and of Sri K. Gopala Krishna, Legal Aid Defence Counsel for A2, Sri K.Venu Gopala Rao, Advocate for A1, and the matter having been stood over for consideration to this day, this Court delivered the following :
J U D G M E N T
1.A1 & A2 are arrayed before this Court for the offence punishable U/s.331(4), 305 r/w.3(5) B.N.S in Cr.No.142/2024 of
Machilipatnam Police Station.
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2. The brief factual matrix of prosecution case is as follows:- a.The S.H.O. Machilipatnam PS filed charge sheet against the accused persons alleging that P.W.1/Sadik Baig is running
Shamiyana Shop along with his brother in the name of "Hasun" at
Durga Mahal, Machilipatnam. On 22.09.2024 at around 10:00 a.m., his wife and children went to relatives' marriage at Jammi Daggumilli village and he went to Shamiyana shop. On that day, at around 11:30 p.m., he went to his house, had bath and went to Jenda near his house and completed dinner at that place on the occasion of
Miladunnabi. Later at around 11:30 p.m., he went to his sister viz.,
Munnirunnissa's house and stayed there. On 23.09.2024 at around 08:00 a.m., he came to his house at Railpet and when he opened the gate lock, he noticed that his house door lock was opened, observed that iron safe in the front room was opened and things got scattered on the ground. He found that the articles in the iron safe were missing.
b.P.W.1 further noticed that some unknown persons committed theft of articles i.e., 1) Gold Ear rings 2 – pairs – 12 grams, 2) Gold head locket – 1 – 6 grams, 3) Gold black bead chain - 1 – 11 grams, 4) gold biscuit – 1 – 30 grams, 5) Silver anklets – 1 pair – 160 grams, 6) Silver key set – 1 – 50 grams, 7) Cash of
Rs.1,20,000/- all worth of Rs.2,14,800/-.
c.Basing on the report of P.W.1, P.W.10/S.I of Police,
Machilipatnam P.S., registered this case U/s.331(4), 305 B.N.S in
Cr.No.142/2024 on 23.09.2024 and took up investigation. P.W.10 visited the scene of offence along with mediators P.W.3/A.Venkata
Sailaja and L.W.9/S.Jagadeeswari, prepared observation report,
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rough sketch and examined and recorded the statements of P.W.1,
P.W.2/Shamshad Begum, L.W.3/Asif Baig, L.W.4/Shahina Begum,
L.W.5/D.PurnaChandraRao,L.W.6/D.Eswariand
L.W.7/K.Subbamma.
d.During the course of investigation, on 29.09.2024, when
P.W.10 is present in police station, P.W.9/S.I of police, Gunadala
Police Station informed about taking custody of C.C.L., boy and recording of his confessional statement in the presence of mediators i.e., P.W.6/M.Seshagiri and P.W.7/G.Dhanunjaya Rao. P.W.9 further informed P.W.10 that as per the statement of C.C.L., boy, he along with A1 & A2 herein came to Machilipatnam and committed theft in a house. The said C.C.L., boy handed over the stolen property i.e., one Gold biscuit - 30 grams to P.W.9.
e.Again on 01.10.2024, P.W.8/S.I of Police, Bhavanipuram
Police Station, informed P.W.10 about arresting A1 herein and recording of his confessional statement in the presence of mediators viz., L.W.12/S.Subba Lakshmi and P.W.5/T.Venkata Sai Kanaka
Lakshmi. As per confessional statement of A1, he along with C.C.L., boy and A2 have committed theft in Machilipatnam and they are responsible for the present case offence. A1 handed over stolen property i.e., one gold ear ring - 4 grams, silver anklets - 22.80 grams, cash of Rs.1,00,000/- to P.W.8.
f.P.W.10 collected the attested copies of F.I.Rs and mediators reports in Cr.No.533/2024 U/s.331(4), 303 B.N.S of
Bhavanipuram P.S and in Cr.No.138/2024 U/s.331(4), 303 B.N.S of
Gunadala P.S and filed for P.T Warrant before this Hon'ble Court. On 25.10.2024, the C.C.L., boy was produced before the Hon'ble
Juvenile Court, Vijayawada. On 28.10.2024, A1 was produced before
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this Hon'ble Court for judicial remand. On 11.11.2024, P.W.10 received information about A2 and he along with mediators
P.W.4/K.Nancharaiah and L.W.11/M.Pavani reached Dimmala Center,
Machilipatnam and arrested A2 at around 10:00 a.m. P.W.10 also seized stolen property i.e., one gold black bead chain - 12.800 grams, one pair of gold ear rings - 4.370 grams, one gold head locket - 6.320 grams, one pair of silver anklets - 121.840 grams, silver key bunch - 31.190 grams. After completion of investigation,
P.W.10 filed charge sheet against A1 & A2. Hence the charge sheet.
3.Thiscase was taken on file U/s.331(4), 305 or 317(2) of
B.N.S against A1 & A2. On appearance of A1 & A2, copies of documents were furnished to them as contemplated U/s.230 of
B.N.S.S. and they were examined U/s. 263 of B.N.S.S. Charges
U/s.331(4), 305 or 317(2) of B.N.S were framed. A1 & A2 pleaded not guilty and claimed to be tried.
4.During the course of trial, the prosecution examined
P.W.1 to P.W.1 to P.W.10 and got marked Ex.P1 to Ex.P9. M.O.1 to
M.O.9, which are i.e., 1) one gold biscuit - 30 grams, 2) one gold ear studs - 4 grams, 3) silver anklets - 22.80 grams, 4) cash of
Rs.1,00,000/-, 5) one gold black bead chain - 12.800 grams, 6) one pair gold ear rings - 4.370 grams, 7) one gold head locket - 6.320 grams, 8) one pair of silver anklets - 121.840 grams and 9) silver key bunch - 31.190 grams were marked. The prosecution has given up the evidence of L.W.3/Asif Baig, L.W.4/Shahina Begum,
L.W.5/D.Purna Chandra Rao, L.W.6/D.Eswari, L.W.7/K.Subbamma,
L.W.9/S.Jagadeeswari, L.W.11/M.Pavani and L.W.12/S.Subba
Lakshmi. Nobody was examined on behalf of the A1 & A2. On the closure of prosecution evidence, A1 & A2 were examined U/s.351
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B.N.S.S. A1 & A2 denied the incriminating circumstances as false and reported no defence witnesses.
5.Heard both sides.
6. Now the Points for consideration are:
i. Whether A1 & A2 on 22.09.2024 during night
hours have committed lurking of house breaking and
committed theft of gold and silver ornaments and cash
belonging to P.W.1 and thereby committed offence
U/s.331(4) r/w.3(5) B.N.S as alleged?
ii. Whether A1 & A2 on 22.09.2024 during night
hours have committed theft in dwelling house of gold
and silver ornaments and cash belonging to P.W.1 and
thereby committed offence U/s.305(a) r/w.3(5) B.N.S as
alleged?
iii. Whether A1 & A2 have retained the stolen
gold and silver ornaments and stolen cash, inspite of
knowing it to be a stolen property and thereby
committed offence U/s.317(2) r/w.3(5) B.N.S., as
alleged?
POINT NOS.i to iii:-
7.To prove the case against the accused persons for the offence U/s. 331(4), 305(a) or 317(2) r/w.3(5) of B.N.S, the prosecution has examined the P.W.1 to P.W.10 and got marked
Ex.P1 to Ex.P9 and M.O.1 to M.O.9. Ex.P1 is Report, Ex.P2 is Scene observation report, Ex.P3 is Attested seizure mediators report, dated 11.11.2024, Ex.P4 is Attested seizure mediators report, dated 1.10.2024, Ex.P5 is Signature of PW6 on mediators report,dt.29-9- 2024, Ex.P6 is Signature of PW7 on mediators report,dt.29-9-2024,
Ex.P7 is Attested seizure mediators report, dated 29.9.2024, Ex.P8 is
F.I.R, Ex.P9 is Rough sketch.
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8. P.W.1, who is the complainant deposed that on 22.09.2024 at about 10:00 a.m., his wife and children went to relatives marriage at Jammi Dagumilli Village and he went to his Shaminayana shop.
On the same day at 09:30 p.m. returned to his home, did bath and went to Zenda (reglious rituals) near his house and completed his dinner on the occasion of Miladunabi. Then, again he went to his sister’s (Munirunnisa) house at around 11:30 p.m. and stayed there that night. On the next day i.e., on 23.09.2024 at 08:00 a.m., he went to his house and opened his gate and he saw the doors with lock break. When he went inside and found his iron safe opened and found all the clothes on the ground. He also found missing of gold ornaments, silver items and cash of Rs.1,20,000/-. He informed the incident to his neighbours i.e., L.W.5 to L.W.7. He also informed his wife/P.W.2 on phone. Then, he went to police station and gave report. After one month, police informed him about recovery of missing articles and cash of Rs.1,00,000/-. He received those recovered properties for interim custody through orders in
Crl.M.P.No.50/2025, dated 03.02.2025. He gave report about
missing of M.O.1 to M.O.9 i.e., 30 grams of gold pieces, gold ear studs – two pairs, gold black beads chain, silver anklets – one pair, one silver key bunch and cash of Rs.1,20,000/-. P.W.1 again deposed that silver anklets are two pairs.
9.During cross-examination, P.W.1 denied of omitting to state in his 161 Cr.P.C. statement about gold black beeds chain; two pair silver anklets; the descriptive particulars of gold and silver ornaments. He admitted of not submitting any bills or documents to show that those ornaments belong to him. P.W.1 further deposed that they were purchased long back. Cash of Rs.1,00,000/- is only recovered while in the complaint the missing cash is Rs.1,20,000/-.
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10. During further cross-examination, P.W.1 admitted that generally when any woman go to marriage they will wear the jewelry (gold and silver) and also take silver key bunch while attending the function. There is no proof to show that he went to his sister’s house and stayed that night except his oral statement.
Generally when there is gold and cash, they sleep in their house during nights. Except his oral evidence, there is no document to show that he has cash Rs.1,20,000/- on the date of alleged incident.
Generally, he has good terms with police and government officials.
He admitted that It is true that there is some weight difference between the measurements mentioned in my report, 161 Cr.P.C.
statement and Form – 60. P.W.1 further stated that those gold ornaments belong to his wife, which were presented to her as
Stridhana. He denied other suggestions categorically.
11.P.W.2, who is wife of P.W.1, deposed that in similar lines as that of P.W.1 about missing of M.O.1 to M.O.9. During her cross- examination, she stated about going to marriage and returned on 23.09.2024 at around 11:00 to 12:00 a.m. Before she returned to the house, P.W.1 already gave report. She does not know the contents of the complaint. Generally, she wears jewellary while attending the marriage. P.W.2 further stated that she wore some ornaments to the marriage and left some jewellary in the house.
That cash of Rs.1,20,000/- is kept for Dwakra saving amount. She denied of omitting to state the said fact in her 180 B.N.S.S statement. She denied other suggestions categorically.
12.P.W.3/V.R.O, who is the mediator under scene observation report in Ex.P2, deposed that on 23.09.2024 at around 04:30 p.m., Machilipatnam Police called herself and L.W.9 and
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requested them to be at the scene of offence in Railpet area at
D.No.30/77-1. On that, they went to the scene of offence and in their presence, P.W.10 visited the scene of offence and found scattering of saries and things on the floor and the iron safe lock opened.
P.W.10 took photographs and drafted rough sketch. No objects were found, which were alleged to have been used for committed theft.
P.W.10 drafted scene observation report under Ex.P2 and it was signed by herself, L.W.9 and P.W.10.
13. During cross-examination, P.W.3 deposed of drafting around 4 or 5 mediators report. On the request of P.W.10, she drafted Ex.P2. She admitted that there is no mention about presence of house owner at the time of scene observation in Ex.P2. She has not separately made signature as scribe to show that she drafted the report. Police came initially by the time, they went to scene of offence. The other police staff have not signed in Ex.P2. They generally have cordial relationship and attend police station when they called. No other independent person signed in the report and they were also not allowed to enter into the scene of offence. She denied of other suggestions categorically.
14.P.W.4/V.R.O, who is the mediator under Ex.P3-Report, deposed that on 11.11.2024, P.W.10 called him and L.W.11 for acting as mediators. On that, himself along with L.W.11, P.W.10 and police staff went to Dimmala Center, Machilipatnam. There, they found A2 and he revealed his name and also informed that he was also arrested in some theft cases previously. In their presence, A2 also stated that on 22.09.2024 at Railwaypet, Machilipatnam, he along with A1 & Doma Sangeetha Rao committed theft of gold, silver ornaments. P.W.10 seized stolen property i.e., black beeds gold
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chain, gold ear studs, gold head locket, silver ankelets and silver key bunch from A2, which was in his possession. On further enquiry, A2 stated that other theft items were in possession of the other accused persons. The entire mediators report/Ex.P3, which is signed by himself, L.W.11, P.W.10 and A2, was prepared by P.C.No.259 in the lap top of P.W.10.
15. During cross-examination, P.W.4 admitted about not obtaining written permission from the higher officials. Dimmala
Center area is commercial area and no one was requested for acting as independent witness in that area. On the instructions of P.W.10,
P.C.No.259 typed mediators report. He does not know how many keys are there for silver key bunch seized from A2. The police staff and P.C.No.259, who were present at the time of Ex.P3-Mediators report, have not signed on it. He denied other suggestions categorically.
16.P.W.5, who is mediator under Ex.P4, deposed that on 01.10.2024, she acted as mediator on the request of one police constable from Bhavanipuram Police Station. Then, she along with
L.W.12, police staff and P.W.8 went to Kabela Center, Bhavanipuram and found one male person escaping on seeing them. P.W.8 enquired that person and he informed his name as Nalla Sai
Kiran/A1 herein. A1 further informed that he used to commit theft in various places along with his friends viz., Sangeetha Rao and A2.
P.W.5 identified A1 standing in the Court hall. P.W.5 further deposed that P.W.8 seized small bag from the pocket of A1 and A1 informed about commission of the theft in a house at Railpet, Machilipatnam along with A2 and C.C.L., boy. A1 further informed about commission of theft of gold and silver ornaments including cash of
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Rs.1,20,000/-. On verifying the said bag, P.W.8 found gold ear rings- 1 pair, silver anklets- 1 pair and cash of Rs.1,00,000/-. Ex.P4-
Mediators report was prepared by one constable in the laptop of
P.W.8 duly signed by herself, L.W.12, P.W.8 and A1. P.W.8 arrested
A1 under the cover of Ex.P4.
17. During cross-Examination, P.W.5 deposed that A1 is not present by the time she went to police station. She does not know the owner of the shop, where print out of the mediators report is taken. On the instructions of P.W.8, the constable typed the mediators report under Ex.P4. That ornaments and cash were shown to her by P.W.8. She acted as mediator in around 10 to 15 cases. In some cases, she used to write the report and in some cases, they observe the recording in typing upon the instructions by S.I. In this case, it was typed by police, which happened in their presence. No written permission is obtained for acting as mediator from higher officials and written requisition is given by P.W.8 to her. In the report, L.W.12 signed first and thereafter she signed. There are only few shops at Kabela Center and it is not much busy locality. She denied other suggestions categorically.
18.P.W.6 and P.W.7, who are the mediators under the mediators report for arrest of C.C.L., boy, turned hostile without supporting the case of the prosecution.
19. P.W.8/S.I of Police, Bhavanipuram P.S, who arrested A1 in
Cr.No.533/2024 U/s.331(4), 303 B.N.S of Bhavanipuram P.S, deposed in similar lines as that of P.W.5, who is the mediator in the arrest of
A1 and seizure of gold under Ex.P4. During cross-examination, P.W.8 deposed that he picked up mediators from Kabela Center,
Vijayawada. The mediators report was drafted at the scene of
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offence in the laptop by P.C.No.3651 and he is not listed as witness.
Kabela Center is busy locality and there are shopping complexes. He has not requested any of those shop owners to act as mediators. He cannot say the descriptive particulars of the ornaments seized.
Those ornaments will also be available in the market. He cannot say the denomination of cash seized. The date of offence in
Cr.No.533/2024 of Bhavanipuram P.S in the F.I.R is mentioned as 04.09.2024, report was given on 13.09.2024 and place is mentioned as Gollapudi. He denied other suggestions categorically.
20. P.W.9/S.I of Police, Gunadala P.S., who arrested A1 & A2 in another Cr.No.138/2024 of Gunadala P.S under Ex.P7, deposed that on 29.09.2024, he along with mediators viz., P.W.6, P.W.7, gold appraiser and police staff went to Disney land, Payakapuram or
Nunna, Vijayawada. P.W.9 further deposed that he questioned their identity and on that they informed their names as Ashok, Darvin,
Sangeetharao, Sai Kiran and Thambaiah. When he informed about his suspicion about their involvement in their station cases based on the record available with him, they accepted about involvement in three cases i.e., in Cr.Nos.138/2024, 131/2024, 158/2024 of
Gunadala P.S. He also found that those persons were involved in
Cr.No.553/2024 of Padamata P.S., Cr.No.330/2024 of Azith Singh
Nagar P.S. They also informed that CCL/Doma Sangeetha Rao in this case informed that he was involved in commission of theft at
Machilipatnam Police station limits. Thereafter, A1 & A2 including
CCL boy informed about commission of theft in Machilipatnam and showed one gold biscuit, which is the one of the theft properties in this case. On weighing that gold biscuit, it is 30 grams. The said CCL boy further informed that the remaining property was given to A1 &
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A2. On enquiry of A1 & A2, they informed about spending away the money out of that gold. The said A1 & A2 in this case were also involved in Bhavanipuram and Nunna P.S. He seized 30 grams of gold biscuit from CCL boy which is the material object in this case.
The entire proceedings were typed in his laptop by one police constable on his dictation and it was signed by the mediators and gold appraiser. P.W.9 further deposed that Ex.P7 was signed by all the accused and mediators. He brought all the accused and CCL boy to the police station and thereafter, sent that CCL boy to safe home school.
21. During cross-examination, P.W.9 deposed that the complainant in Cr.No.138/2024 of Gunadala P.S., was not listed as witness in this present case. P.W.9 further deposed that, the said complainant is not connected in this case. He has not taken any receipt from the gold appraiser about that 30 grams gold biscuit. He does not remember that gold appraiser's name. The weighing machine belongs to that gold appraiser. The laptop is supplied to them by the government. He used his personal laptop in this mediator report proceedings. He does not remember the details of the police constable, who typed the mediators report. The date is not mentioned at the signature column under Ex.P7. He denied that the mediators are stock mediators and they signed in Ex.P7 in police station and no such proceedings happened and the entire report was prepared at police station.
22. During further cross-examination, P.W.9 deposed that he came to the Court for deposing evidence as witness but not as an
I.O. He has not seen the record while deposing the evidence and he remember all the facts. He admitted that there is CD file in front of
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him and there are accused names written on his hand. He denied of stating the names of the accused by seeing the names written on his hand. P.W.9 further deposed that he can remember the names of accused, which are noted in his mind and they are Ashok,
Thambaiah, Sai Kiran, Sangeetharao and Darvin. He denied other suggestions categorically.
23. P.W.10, who is the main I.O., in this case, deposed in similar lines as that of P.W.3. On 23.09.2024 at 04:00 p.m. while he was in station, P.W.1 came to police station and gave report stating about commission of theft of gold ornaments and cash of
Rs.1,20,000/- in his house. Basing on the report, he registered this case in Cr.No.142/2024 U/s.331(4), 305 BNS. When he went to the scene of offence, he found the things in the house got scattered and two iron safes were break open. He captured photos at the scene of offence. There, scene observation report was drafted by PW3.
24. P.W.10 further deposed about receiving phone call from
P.W.9 on 29.09.2024 about arresting A2 in Cr.No.138/2024 under
Ex.P7 and also seizing of stolen property in this case i.e., 30 grams of gold biscuit. P.W.10 further deposed that on 01.10.2024, he received phone cal from P.W.8 about arresting A1 in Cr.No.533/2024 of Bhavanipuram P.S., and about seizure of stolen property in this case i.e., silver anklets, gold ear rings and cash of Rs.1,00,000/-.
Upon filing P.T.Warrant, he produced A1 & A2 before this Court in this case. P.W.10 also informed about proceedings done under
Ex.P3-Mediators report involving arrest of A2 and seizing of other stolen property.
25. During cross-examination, P.W.10 admitted that the name of P.W.9 is wrongly mentioned in the list of witnesses as V. Venkata
Rao. He denied that the name of A. Rakheeb is not present
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anywhere in the case record as if he done any investigation. P.W.10 further deposed that P.W.9 signed in the mediators report of
Gunadala P.S. In the present case, the gold and silver articles seized were weighed by gold appraiser, but he has not given any report. He does not know the name of that gold appraiser and he has license.
He has not secured the bills of the recovered gold and silver articles for ascertaining the ownership. He admitted that the signatures of
PC, who typed mediators report under Exs.P3, P4 and P7 were not taken. The name of P.C.No.259 as went to scene of offence is not stated anywhere in charge sheet or Ex.P3/mediators report. He informed through phone to mediators as well as MRO during morning hours on the same day and no written notice was given. He admitted that the sister of P.W.1, at whose house PW1 stated during the intervening night when alleged offence took place is not examined for finding out about his statement regarding his stay. He denied other suggestions categorically.
26. From the perusal of the evidence of the PW’S it appears that the offence alleged against the accused persons is U/s.331(4), 305 or 317(2) r/w.3(5) of BNS. There is no denial of the fact that no such occurrence took place.
27. It is to be noted here that the prosecution has to prove the essential ingredients of the S.331(4) B.N.S. The S.331(4) B.N.S speaks about of house trespass or house breaking during night hours for the purpose of committing any offence. In the present case, the case of the prosecution revolves around commission of theft in the house of P.W.1 during night hours.
28. Coming to the ingredients of S.305 B.N.S, which speaks about theft in dwelling house and S.317(2) B.N.S deals about
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possession of stolen property. For the above said Sections 331(4) or 305 or 317(2) B.N.S, as per the prosecution story, the common element is for commission of theft.
Section 303 of BNS clearly states the provisions for Theft as:
Subsection (1) states that whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.
Subsection (2) states that whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both and in case of second or subsequent conviction of any person under this section, he shall be punished with rigorous imprisonment for a term which shall not be less than one year but which may extend to five years and with fine.
S.317 BNS deals with the concept of stolen property and the legal consequences associated with receiving, retaining, dealing, or assisting in the disposal of such property. It ensures that individuals and entities are held accountable for benefiting from or enabling the circulation of property acquired through theft, robbery, extortion, cheating, criminal misappropriation, or breach of trust.
As per the definition of theft u/s.303 IPC, the ingredients needed to establish the offence of theft are that there has to be dishonest taking of any movable property, intending to take the same out of the possession of a person without that person's consent and further, the property has to be moved in order to effect such taking. Thus, to establish the offence of theft, it was incumbent
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upon the prosecution to have proved firstly, the intention of the accused to dishonestly take the movable property out of the possession of the complainant and further the factum of moving being effected by the accused per-se.
29. On perusal of entire evidence on prosecution side, this
Court found that P.W.1 and P.W.2 were unable to identify the offenders who has committed the alleged incident and his evidence coupled with evidence of Investigating Officer discloses the commission of theft. And that M.O.1 to M.O.9 are recovered in this case. But their evidence is not establishing that the accused persons committed theft of above stolen property.
30. In the instant case, there is no other eye witness to the incident. Rest of the witnesses examined by prosecution were police witnesses and mediators who were not present at the spot at the time of incident. Their testimonies are entirely based upon the disclosure statement of the accused persons which is not admissible in evidence. Hence, their testimonies could not be sufficient to prove the fact that accused persons had stolen the gold and silver ornaments including cash of the complainant.
31. As per Section 23(1) of The Bharathiya Sakshya
Adhinayam, 2023 confession before police is irrelevant and cannot be proved as against that accused even though accused confessed his commission of theft before police. As there are no eye witnesses to prove that the accused persons committed theft of
M.O.1 to M.O.9 from P.W.1, hence prosecution failed to prove guilt of
A1 & A2 for the offence U/s.331(4) and 305 r/w.3(5) of BNS. In view of aforesaid discussion, the prosecution is failed to prove the guilt of
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accused persons U/s.331(4) and 305 r/w.3(5) of BNS beyond reasonable doubt.
32.The evidence of P.W.3, who is the mediator for the scene observation report under Ex.P2, in this case, deposed that in the presence of herself and L.W.9, P.W.10 visited the scene of offence and found scattering of things in the house of P.W.1 and iron safe lock break out. P.W.4, who is another mediator for Ex.P3-Mediators report, which involves about arrest of A2 and recovery of stolen property from A2. P.W.5, who is the mediator under Ex.P4-Mediators report deposed about arresting A1 by P.W.8 in another crime of
Bhavanipuram P.S and recovery of stolen property in this case from the possession of A1. The above said mediators for the proceedings under Ex.P2 to Ex.P4 clearly stated about their presence at the time of arrest and seizure of stolen property from A1 & A2, who were also involved in another crimes in different police stations by their respective investigation officers i.e., P.W.8 and P.W.10.
33. Though P.W.6 and P.W.7 turned hostile, the evidence of
P.W.9, who done the proceedings under Ex.P7-Mediators report clearly stated about arresting the A1 & A2 including C.C.L., boy and recording their confessional statements in different crimes of various police stations. The property was also seized from the possession of
C.C.L., boy, which is one of the material objects in this case i.e., gold biscuit-30 grams. The confession statement of C.C.L., boy clearly shows about involvement of A1 & A2. The said information in the confession statement of C.C.L., boy is in par with the proceedings under Ex.P2 to Ex.P4-Mediators reports since the remaining stolen properties i.e., gold, silver ornaments and cash were recovered from the possession of A1 & A2.
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34. The evidence of P.W.8 and P.W.9 also got tallied with the circumstances stated by P.W.10, who is the main I.O., in this case about arresting of A1 & A2 and recovery of stolen property by another I.Os in another crime, which is involved in this case. The information given by P.W.8 and P.W.9 to P.W.10 was clearly stated by P.W.10 in his chief examination. There is clear corroboration between the evidence of P.W.8 to P.W.10 and also with the version of the mediators, who were examined for the proceedings under
Ex.P2 to Ex.P4. It is general principle that the evidence of police official cannot be discarded if it is found to be trustworthy. In the present case, the evidence of P.W.10 became trustworthy due to the corroboration from the evidence of other prosecution witnesses.
35. Therefore, the crucial fact which needs to be established by the prosecution in order to bring home the culpability of accused persons for the offence U/s.317(2) of B.N.S is the existence of knowledge about the gold and silver ornaments and cash being stolen properties. In the case of Shiv Kumar v. The State of
Madhya Pradesh crl. Appeal No.1503 of 2022., "Hon'ble
Supreme Court observed that for conviction u/s.411 of IPC it must be established that the accused had knowledge that the property was stolen property."
36. In order to prove the offence u/s.317(2) B.N.S, the prosecution has primarily relied upon the testimonies of P.W.1 to
P.W.5 and P.W.8 to P.W.10, who are the mediators and police officials who had arrested the accused persons in the present case and recovered stolen properties from their possession. In his testimony, P.W.10 had completely supported the case of the prosecution that the stolen ornaments and cash belonging to the
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complainant was recovered from the possession of the accused persons, which are corroborated with the evidence of mediators and
P.W.8 and P.W.9. No doubtful version is created from the suggestions elicited in the cross-examination of P.W.1 to P.W.5 and
P.W.8 to P.W.10, by the learned defence counsels.
37.Basing on the information given by P.W.8 and P.W.9, the
I.O., in this case i.e., P.W.10, who actually produced the accused persons on P.T.Warrant clearly stated about identifying the stolen properties in this case with the help of the investigation done by
P.W.8 and P.W.9 in another crimes.
38.Though it was admitted in the cross-examination about having no independent witnesses gathered at the scene of offence by P.W.10, the same cannot be a ground to discard the evidence of
P.W.10, since P.W.3, who is V.R.O acted as mediator to that proceedings.
39. In the cross-examination of P.W.1 by the learned defence counsels, the suggestions with regard to ownership of stolen articles was posed. P.W.1 stated that those gold ornaments belong to his wife and the same was corroborated with the evidence of P.W.2, who is the wife of P.W.1. But, in the theft case, it is not required for commission of offence only from the owner of the property. On observing the meaning enshrined U/s.303(1) B.N.S for theft, it was mentioned as commission of theft of movable property out of the possession of any person without his consent. The provision has not mentioned anything about commission of theft from the owner of the property. Even on observing Explanation 5 of Section 303(1)
B.N.S., it clearly shows the consent mentioned in the said Section may be express or implied and may be given either by the person in
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possession or by any person having for that purpose authority either express or implied. Thus, the statute is clear about commission of theft even from the person having possession and need not always be the owner of the article.
40.Even the present I.O in this case i.e., P.W.10 has clearly stated about registering this case basing on the complaint given by
P.W.1, in which, he mentioned about his missing gold and silver ornament including cash. P.W.10, who recovered the stolen property basing on the mediators report proceedings prepared under Ex.P2 to
Ex.P4 and Ex.P7 prepared by P.W.8 to P.W.10.
41.The evidence of P.W.3 to P.W.5 and P.W.8 to P.W.10 proved the recovery of stolen ornaments and cash from A1 & A2.
The evidence of P.W.1 to P.W.5 and P.W.8 to P.W.10 corroborates with one another and there are no contradictions in their evidence.
As per Section 23 Proviso of The Bharathiya Sakshya
Adhinayam, when any fact is deposed as to be discovered in consequence of information received from a person accused of any offence in the custody of police officer, so much of such information whether it amounts to confession or not, may be proved. The principle of criminal law lays down that the burden of proof is always on the prosecution to prove the case beyond doubt and the accused is presumed to be innocent.
42. Section 119 illustration (a) of the Bharathiya
Sakshya Adhinayam lays down, “that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.” The presumption permitted under S.119 of the B.S.A illustration (a) doesn’t arise until the prosecution has established the
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following facts: (1) the ownership of the articles in question, (2) their theft (3) their recent possession by the accused.
43.In case of circumstantial evidence, burden on prosecution is always a greater. As has been held by the Hon’ble Apex Court in
Jugendra Singh Vs.State of Uttar Pradesh, reported in (2012)
6 SCC 297, "it is the duty of Court to shift chaff from grain and find the truth from testimony of witness. Such testimony of witness must inspire confidence and must be credit worthy, statements of witnesses are required to be read as a whole. The court cannot pick up evidence in isolation from the entire statement and use it ignoring its proper reference and context."
44.The Hon’ble Supreme Court of India in the case of Pawan
Kumar @ Monu Mittal Vs State of UP & Anr. as decided on
11 th March, 2013 observed that – “The Principal factor factum Probandum may be proved indirectly by means of certain inferences drawn from factual probans, that is, the evidentiary facts. To put it differently, circumstantial evidences is not direct to the point in issue but consist of evidence of various other facts which are so closely associated with the facts in issues that taken together they form or issues that taken together they form a chain of circumstances from which the existence of the
principal fact can be legally inferred or presences.
45.From the evidence of P.W.1 to P.W.5 and P.W.8 to
P.W.10, it is clear that the stolen properties belongs to the wife of
P.W.1 and those ornaments and cash have been stolen.The learned counsel for the defence put forth a suggestion with regard to doubtfulness about commission of theft and ownership of ornaments
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as that of P.W.2 since any woman wears jewellary for attending marriages. In this regard, P.W.2 has clearly stated in her cross- examination that she wore few jewellaries to the marriage and kept some jewellary at house. Therefore, the evidence of P.W.1 and P.W.2 can be taken together for getting circumstantial evidence so as to find out the ownership aspect. Even P.W.1 has filed return of property petition under Crl.M.P.No.50/2024 in this case in which, the ownership of P.W.1 is ascertained by this Court and property was given for interim custody. It is also a believable evidence given by
P.W.1 that no bills are available for those ornaments as they were purchased long back and are given to his wife as sthridhana.
Generally, there is no requirement for keeping all the bills of purchased goods.
46. Even the knowledge about the properties being stolen properties to the accused persons can be inferred from the evidence of P.W.3 to P.W.5 and P.W.8 to P.W.10 during the investigations done in another crimes in which, they were involved. If at all the accused have no knowledge about the property being the stolen property, there is no explanation in the rebuttal as to how the stolen properties are kept in their pockets.
47.The evidence of P.W.3 to P.W.5 and P.W.8 to P.W.10 proved the the recovery of M.O.1 to M.O.9 from A1 & A2 as per their confessional statement, which is relevant under section 23 Proviso of B.S.A. Moreover, A1 & A2 have not put forth any rebuttal evidence to prove their innocence with respect to the possession of stolen property. In the present case, although all the prosecution witnesses does not eye witness the accused persons committing the offence, their corroborated evidences, which were not shaken by the cross
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examination by the learned defence counsel leads to the conclusion that the stolen property was recovered from A1 & A2 at their instant. All the evidences of the prosecution shows chain of occurrence of events.
48.In view of my aforesaid discussion, I am of the view that as there is no incriminating evidence on record except the evidence of Investigating officer and mediator, the prosecution has failed to prove guilt of A1 & A2 u/s. 331(4) and 305 r/w.3(5) of B.N.S. Further, the prosecution has proved the guilt of A1 & A2 beyond all reasonable doubt U/s. 317(2) r/w.3(5) of BNS.
49. Heard A1 & A2 on quantum of sentence. A1 & A2 pleaded that they are the only breadwinners of their family and having small children and prayed the Court to take lenient view.
50.Taking into consideration the submissions made by A1 &
A2 and their counsels and also having regard to the circumstances of the case including the nature of the offence and the characters of the accused. I am not inclined to extend the provisions of Prohibition
Act against A1 & A2. This Court is of the opinion that the ends of justice would meet if A1 & A2 are sentenced to imprisonment.
51.In the result, A1 & A2 are found not guilty for the offence u/s. 331(4) and 305 r/w.3(5) of BNS and they are acquitted
U/s.271(1) B.N.S.S. However A1 & A2 are found guilty for the
offence U/s.317(2) r/w.3(5) of B.N.S and they are convicted
U/s.271(2) of B.N.S.S. A1 & A2 are sentenced to undergo Simple
Imprisonment for a period of Seven months each. A1 & A2 are apprised their right of appeal and legal aid. The remand period of A1 i.e., from 18.10.2024 to 22.04.2025 i.e., 187 days shall be set off
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U/s.468 of B.N.S.S. The remand period of A2 i.e., from 11.11.2024 to 22.04.2025 i.e., 163 days shall be set off U/s.468 of B.N.S.S. M.Os.1 to 9 were already given to P.W.1 by name Sadik Baig towards interim custody shall holds good after expiry of appeal time.
Typed to my dictation by the Stenographer Gr.III, corrected and pronounced by me in the open Court, this the 22nd day of April, 2025.
Sd/- V. Devi Sai Srivani
Judicial First Class Magistrate - Cum -
Principal Civil Judge (Junior Division),
Machilipatnam.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION:
PW1 : Sadik Baig PW2 : Shamshad Begum PW3 : A.V.Sailaja PW4 : Kumbha Nancharaiah PW5 : T.V.S.Kanaka Lakshmi PW6 : M. Seshagiri PW7 : G.Danujaya Rao PW8 : S. Francies PW9 : Abdul Rakheeb PW10 : B. Prabhakara Rao, S.I of Police. FOR DEFENCE:
- None -
EXHIBITS MARKED.
FOR PROSECUTION:
Ex.P1 : Report.
Ex.P2 : Scene observation report.
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Ex.P3 : Attested seizure mediators report, dated 11.11.2024.
Ex.P4 : Attested seizure mediators report, dated 1.10.2024.
Ex.P5 : Signature of PW6 on mediators report,dt.29-9-2024.
Ex.P6 : Signature of PW7 on mediators report,dt.29-9-2024.
Ex.P7 : Attested seizure mediators report, dated 29.9.2024.
Ex.P8 : F.I.R
Ex.P9 : Rough sketch
FOR DEFENCE:
- Nil -
MATERIAL OBJECTS:
M.O.1 : one gold biscuit - 30 grams
M.O.2 : one gold ear studs - 4 grams
M.O.3 : silver anklets - 22.80 grams
M.O.4 : cash of Rs.1,00,000/-
M.O.5 : one gold black bead chain - 12.800 grams
M.O.6 : one pair gold ear rings - 4.370 grams
M.O.7 : one gold head locket - 6.320 grams
M.O.8 : one pair of silver anklets - 121.840 grams
M.O.9 : silver key bunch - 31.190 grams were marked.
Sd/- V. Devi Sai Srivani
J.F.C.M – CUM – P.C.J(J.D)., MTM
// True Copy //
Judicial First Class Magistrate - Cum -
Principal Civil Judge (Junior Division),
Machilipatnam.
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Date : 22.04.2025. MTM
Calendar and Judgment in C.C.No.129/2025 on the file
Judicial First Class Magistrate - Cum - Principal Civil Judge
(Junior Division), Machilipatnam.
1.Date of Offence::22-09-2024
Date of
2.::23.09.2024 Report/Complaint
3.Date of Apprehension::--
4.Date of Release::--
5.Commencement of trial::13.02.2025
6.Date of Closure of trial::17.04.2025
7.Date of Judgment::22.04.2025
The State represented by the Name of the
8.::Sub-InspectorofPolice, Complainant Machilipatnam Police Station
1. Nalla Sai Kiran @ Sai, S/o.Siva Sankar, 20 years, G-Block, Sing Nagar, Vijayawada.
9.Name of the Accused::
2. Ratti Tambaiah @ Kappa, S/o.Hari, 28 years, Vambay Colony, Vijayawada. … A1 & A2.
Sections 331(4), 317(2), 305 r/w
10.Section of Law:: 3(5) of B.N.S
11.Plea of Accused::Pleaded not guilty
Found not guilty for offence
U/s.331(4) and 305 r/w 3(5) BNS
12.Finding of the court:: Found guilty for offence
U/s.317(2) r/w 3(5) BNS
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13.Sentence or Order: In the result, A1 & A2 are found not guilty for the offence u/s. 331(4) and 305 r/w.3(5) of BNS and they are acquitted U/s.271(1) B.N.S.S. However A1 & A2 are found
guilty for the offence U/s.317(2) r/w.3(5) of B.N.S and they
are convicted U/s.271(2) of B.N.S.S. A1 & A2 are sentenced to undergo Simple Imprisonment for a period of Seven months each.
A1 & A2 are apprised their right of appeal and legal aid. The remand period of A1 i.e., from 18.10.2024 to 22.04.2025 i.e., 187 days shall be set off U/s.468 of B.N.S.S. The remand period of A2 i.e., from 11.11.2024 to 22.04.2025 i.e., 163 days shall be set off U/s.468 of
B.N.S.S. M.Os.1 to 9 were already given to P.W.1 by name Sadik
Baig towards interim custody shall holds good after expiry of appeal time.
14. Explanation for delay: This case was taken on file on 5.2.2025 under sections 331(4), 317(2), 305 r/w 3(5) of B.N.S against the accused and on 05.2.2025, A1 & A2 were examined U/ s.263 of BNSS and charges U/s.331(4) or 317(2) were framed against A1 & A2, for which, they pleaded not guilty and claimed to be tried and trial commenced in this case on 13.2.2025 and on be- half of the prosecution, P.W.1 to P.W.10 were examined and got marked Ex.P1 to Ex.P9 and M.O.s 1 to 9 is marked and on behalf of
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the accused, no one was examined and no documents were marked and trial closed on 17.04.2025 and on the same day i.e., on 17.04.2025, A1 & A2 were examined U/s.351 BNSS and they denied the evidence and reported no defence evidence and heard both sides on 21.04.2025 and Judgment pronounced on 22.04.2025.
Sd/- V. Devi Sai Srivani
Judicial First Class Magistrate - Cum -
Principal Civil Judge (Junior Division),
Machilipatnam.
Copy Submitted to :
The Hon’ble I Additional District & Sessions Judge, Machilipatnam.
// True Copy //
Judicial First Class Magistrate - Cum -
Principal Civil Judge (Junior Division),
Machilipatnam.