Smt. V.l. Shyam Sundari

C.C No.215 of 2017 1 17-03-2020

IN THE COURT OF THE II ADDL. JUDICIAL MAGISTRATE OF ICLASS : NELLORE

Present: Smt.V. LEELA SHYAM SUNDARI, II Additional Judicial Magistrate of First Class, Nellore

Tuesday, this the Seventeenth(17th) day of March, 2020

CALENDAR CASE NO. 215 OF 2017

The Government of Andhra Pradesh Represented by Sri P.Kupaiah, Assistant Director of Agriculture (Regular), Kovur, S.P.S.R Nellore District. Complainant

Vs.

1. K.Gopal Reddy, S/o Krishna Reddy (Proprietor), M/s Sai Ram Fertilizers & Pesticides, D.No: 4-185, Main road, Varini Village, Vidavalur Mandal, SPSR Nellore District. (Dealer).

2. V.Narayana Varma, S/o Subba Raju, aged 40 years, M/s Nagarjuna fertilizers and Chemicals Limited, Regional manager, D.No.66-5-17, Sri Sainilayam, Ashok Nagar, Kakinada- 533 003, East Godaari District. (Distributor)

3. Sharokh, Managing Director, M/s Universal Speciality Chemicals Private Limited, The companysituated at 502, ‘A’ Bezzola Complex, Sion TrombayRoad,

Chembur, Mumbai -400 071. (Manufacturer) ... Accused No.1 to 3

This case is coming on 06.03.2020 before me for hearing in the presence of the learned Assistant Public Prosecutor for the complainant and of Sri A. Nagendra Sai, Counsel for the accused No.1, Sri I.V.Raama Sastry, counsel for the accused No.2 and Sri Ravi Kondoori, counsel for the accused No.3, upon hearing and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1. This is a complaint filed by the Assistant Director of Agriculture (Regular), Kovur against the accused/A1 to A3 for the offence under Sec. 19 (a) of Fertilizer Control Order 1985 (hereinafter referred to as FCO) r/w S. 7 (1) (a)(ii) of Essential Commodities Act, 1955 ( hereinafter referred to as EC Act).

2.The brief contents of the complaint are as follows: On 22.12.2014,

C.C No.215 of 2017 2 17-03-2020

L.W.1/P.Mary Kamala, the Mandal Agricultural Officer, Vidavalur and Fertilizer

Inspector, inspected the premises of accused/A1 i.e., M/s. Sri Ram Fertilizers and

Pesticides, D.No.4-185, main road, Varini village, Vidavalur mandal, SPSR Nellore district. She inspected the available stock, which was exhibited for sale and drew samples of Chelated Zinc Edta 12%, each sample was sealed by her in the presence of mediators and A1 under the cover of mahazarnama. One sample was sent to the Deputy Director of Agriculture, Fertilizer Coding Centre

Sameti, old Malakpet, Hyderabad for analysis and the second sample was delivered to dealer along with a copy of Form-J, third sample was retained as a referee sample, fourth sample was sent to Assistant Director of Agriculture, FCO

Lab, Ananthapur. After receiving report of the analyst from the Deputy Director,

Fertilizer coding centre, Hyderabad that the said sample was found ‘not according to the specifications’. L.W.1 received the analysis report in Form-L on 19.01.2015 from deputy Director of Agriculture, FCO(A.P), Hyderabad. L.W1 inspected the premises of A-1 on 23.01.2015, she served the above analytical report and obtained acknowledgement of A1, she seized the records of substandard Chelated Zinc Edta 12% in the presence of mediators by name

P.Venugopal and T.Chennai and as there was no stock (Chelated Zinc Edta 12% ) at the time of inspection, she seized and collected the extracts of stock register, bill book, tax invoice-cum-delivery challan copy from A1 firm. L.w.1 had obtained safe custody orders from this Court on 07.02.2015 for the seized stock register bill book, tax invoice-cum-delivery challan copy.

(ii)L.W2/P. Kuppaiah, the Sub-Divisional notified fertilizer registering authority and Assistant Director of Agriculture (Regular) Kovur issued show cause notices to A-1 to A-3 on 18.05.2015 for selling non-standard fertilizer of chelated Zinc Edta-12% in violation of Clause 19(a) of FCO 1985, but as per the request of A1, the referee sample and dealer sample were sent to the

Commissioner & Director of Agriculture, Andhra Pradesh for reanalysis on 11.02.2015, but again the re-analysis report declared the sample as ‘not according to the specifications and fails in Zinc and pH. Thus A-1 has stocked,

C.C No.215 of 2017 3 17-03-2020 exhibited and sold non-standard Chelated Zinc Edta 12% supplied by A-2 and manufactured by A-3. Thus, the accused committed offence by contravening clause 19(a) of FCO 1985 and punishable under Section 7(1)(a)(ii) of EC Act 1955. Hence, the complaint.

3. This case was taken cognizance for the offence under clause 19(a) of

FCO 1985 punishable under Section 7(1)(a)(ii) of EC Act 1955 against A1 to A3.

4.On appearance of the accused before this Court, relevant copies of documents were furnished tothem as required under Section 207 Cr.P.C.

5.Accused 1 to 3 were examined under Section 239 Cr.P.C., explained in Telugu language, the accusation of offence levelled against them for the offence under clause 19(a) of FCO 1985 punishable under Section 7(1)(a)(ii) of

EC Act 1955, for which they pleaded not guilty and claimed to be tried.

6. During the course of trial, on behalf of the prosecution, P.Ws.1 to 6 were examined and Exs.P-1 to P-10 documents were marked. Ex.P1 is the Form

J, Ex.P2 is the From P, Ex.P3 is the Form K, Ex.P4 is the receipt of payment for the samples, Ex.P-5 is the Photostat copy of mahazarnama containing the original signatures of the accused and the mediators (marked subject to objection), Ex.P-6 is the custody orders, Ex.P-7 is the Analysis report in Form-

L(two papers), Ex.P-8 is the Request for re-analysis, Ex.P-9 is the re-analysis report(two pages) and Ex.P-10 is the show cause notice to the accused dated 18.05.2015.

7.After closure of evidence on prosecution, the accused were examined under Section 313 Cr.P.C explaining the incriminating material in the evidence of prosecution witnesses, they denied the same and reported no defence evidence on their behalf.

C.C No.215 of 2017 4 17-03-2020

8.Heard both sides.

9. Now, the point that has arisen for determination is: "Whether the prosecution was able to prove the guilt of A1 to A3 for the offence punishable under clause 19(a) (b) of FCO 1985 punishable under Section 7(1)(a)(ii) of EC Act 1955 beyond all reasonable doubt?"

POINT:

10. The learned Assistant Public Prosecutor argued that the samples taken from the premises of A1 is clearly proved to be substandard from the reports of both Central and State Laboratory, and so A1 being the dealer, A2 being the distributor and A3 being the manufacturer of the non-standard fertilizer, violated the provisions of Sec.19 (a) of FCO 1985 and so prayed for conviction of accused.

11.On the other hand, the learned defence Counsel for A1 argued that the drawing of samples was in violation of the procedure laid down under

Schedule II of FCO 1985. He argued that a lengthy procedure is prescribed under

FCO for drawing the samples but Ex.P5 does not disclose any such procedure.

He further argued that the show cause notices were not issued to the accused in their names and not served individually, moreover the chemist who is actually responsible for the manufacture of non-standard fertilizer was not shown as accused in this case. He argued that the packets of non-standard fertilizer were intact and it was manufactured by A3 and so A1 did not commit any offence. He argued that as per the report of state laboratory, the sample was within the tolerance limit and there is no necessity to send the sample for re-analysis, so this complaint is not maintainable.

12.The learned counsel for A2 argued that, A2 only purchased the fertilizer from A3 in bulk and so he did not commit any offence. He argued that

P.W1 did not speak about the presence of mediators in the shop of A1 and there is contradiction between P.Ws.1 and 6 regarding manner in which P.W6 was

C.C No.215 of 2017 5 17-03-2020 asked to act as mediator by P.W1. He argued that P.W1 is not authorized to act as fertilizer Inspector, no document was produced by the prosecution to prove the same. He further argued that the subject fertilizer is a micro nutrient which looses its structure when exposed to air. He argued that Ex.P5 is not proved and it is not admissible in evidence. He argued that the reports produced under

Exs.P7 and P9 are not issued by the laboratories to which the samples were sent. He argued that P.W1 did not follow the procedure and the variation in the reports is only minute variation. He argued that prosecution did not file all necessary documents and show cause notice was not issued to A2 and so the prosecution did not prove the case against A2.

13.The learned counsel for A3 argued that the prosecution did not produce any document to prove that the subject fertilizer was manufactured by

A3. He argued that the mediators are not local persons and the mahazarnama shows that the procedure under Cr.P.C was not followed by P.W1. He argued that

Ex.P1 also contains corrections and over writings which is not reliable. He argued that A3 was not given show cause notice and the analysis reports were also not served to A3. He argued that though the reports show that the fertilizer samples were within the tolerance limit, this complaint is filed only for statistical purpose and A3 did not commit any offence.

14.To prove the case, the prosecution examined P.W.1 who is the

Mandal Agricultural Officer, Vidavalur, she deposed that on 22.12.2014 at about 3.00 p.m., she inspected the shop of A1 ie., M/s.Sri Ram Fertilizers and

Pesticides, Ramatheertham village, A1 was present there, she verified the stock, the stock register and Bill book and invoices, found that there was stock of Chelated Zinc Edta 12% fertilizer and drew four packets of the said fertilizer out of the 200 packets of stock, each packet was weighing 100 grams, kept each packet in separate polythene covers and filled the necessary forms. She further deposed that she gave one sample to A1 as dealer sample and recorded

C.C No.215 of 2017 6 17-03-2020 the entire procedure in the form of panchanama in the presence of P.Ws.3 and 6 and obtained their signatures. She deposed that she gave a copy of inspection report and panchanama to A1 and sent one sample to F.C.O Bapatla for analysis, she sent another sample to P.W.2 as the referee sample and sent the third sample to Deputy Director of Agriculture, fertilizer coding center, Hyderabad for analysis, and on 19-01-2015 after receiving the analysis report, in which it was opined that the sample was non- standard, on 23-01-2015, she went to the shop of A1 and served a copy of the analysis report to A1 in the presence of

P.Ws.4 and 5 and seized the stock register and bill book and invoice as there was no stock of the fertilizer, she prepared panchanama and obtained the signatures of mediators and A1 and she informed A1 of his right to prefer re- analysis. She further deposed that on 07-02-2015 she produced the seized books and obtained the safe custody orders from the Hon’ble Court. On 07-02- 2017 at the request of A1 and on payment of the fee, P.W.2, their A.D.A sent the referee sample for re-analysis to Commissioner and Director of Agriculture,

Hyderabad. She stated that on 07-05-2015 P.w.2 received the re-analysis report which disclosed that the sample was non-standard and then P.W.2 issued show cause notices to A1 to A3. She further deposed that her successor obtained the legal opinion and P.W.2 filed this complaint on 19-06-2017.

15.Pw.2 is the Assistant Director of Agriculture, Kovur, he deposed that he received all the documents from PW.1 and at the request of A-1, he sent the sample for re-analysis to the Commissioner and Director of Agriculture,

Hyderabad and re-analyst report was received on 07.05.2015. He further deposed that the analyst opined that the sample was not according to specifications, then he served a copy of re-analysis report to A-1, issued show cause notices to A-1 to A-3 on 18.05.2015, verified the documents and after obtaining the legal opinion he filed this complaint.

C.C No.215 of 2017 7 17-03-2020

16.P.W.3 deposed that he did not act as mediator for P.W.1 and he signed in Ex.P-5 in Agricultural office and it was blank paper when he signed on it. P.Ws.4 and 5 deposed that they did not act as mediators for P.W.1 at the time of seizure of registers.

17.P.W.6 deposed that about four or five years back, on one day, he went to the shop of A-1 to purchase fertilizers, P.W.1 was present there and she told him that she took samples of fertilizers in the shop which is situated in

Ramatheertham village and asked him to sign on some papers prepared by

P.W.1.

18.S. 19 (a) of FCO 1985 reads as follows "No person shall himself or by any other person on his behalf:- a. manufacture/import for sale, sell, offer for sale, stock or exhibit for sale or distribute any fertilizer which is not of prescribed standard"

19.In the present case on hand, A1 to A3, who are the dealer, distributor and manufacturer of the zinc EDTA 12% sub-standard fertilizer are mandated to duly follow the provisions of the FCO order 1985, and they are mandated under Sec. 19 to sell only those fertilizers which confirm to the minimum standards. The subject fertilizer that was manufactured and sold by accused allegedly failed in the test as it is apparent from Exs.P7 and P9, so the prosecution prima facie established that accused are liable to be punished under

Sec. 7(i) (a)(ii) of EC Act.

20.Now considering the evidence available in the light of the charges framed against the accused, although P.W.1 deposed that the sample taken from the premises of A1 was found to be not of standard quality, in her cross- examination she admitted that Ex.P5 shows that the samples were taken by using trior instrument which is used only for taking samples from big bags and it

C.C No.215 of 2017 8 17-03-2020 is not necessary to use this instrument for taking the samples from packets.

Apparently and admittedly Ex.P5 is a photostat copy of the mahazarnama, the original is not produced and the prosecution did not give any reason for not producing the original document and so Ex.P5 was marked subject to the objection raised by the learned defence counsel. So as P.W1 or P.W2 did not give any reason for not producing the original document of Ex.P5 and as Ex.P5 is only secondary evidence, without sufficient reason, the secondary evidence is not admissible and so the objection is decided in favour of the accused.

Moreover P.W1 herself admitted that the contents of Ex.P5 were scribed by A1 and the contents of it are wrong. As rightly argued the purpose of mahazarnama is to prove that the procedure for drawing sample was followed properly and it is the crucial document to prove the seizure of samples.

21.Further P.W1 admitted that she did not obtain the signatures of the mediators in Ex.P5. P.Ws.3 and 6 are mediators at the time of drawing samples by P.W1. As rightly elicited by the learned defence counsel for A2, P.W1 stated that P.Ws. 3 and 6 were present in the shop of A1 by the time she reached there, whereas P.W6 stated that he went to the office of P.W1 and he was taken by

P.W1 to the shop of A1. P.W3 did not depose anything about drawing of the samples by P.W1. Though P.W6 deposed that P.W1 took the samples from the shop of A1, he admitted that he does not know the contents of the mahazarnama and he does not know the time at which the samples were taken.

P.W6 also admitted that he cannot say the number of persons who were present at the time of taking samples. These admissions by P.W6 create a reasonable doubt about his presence at the time of drawing samples.

22.Section 28 (2) of FCO 1985 lays down that the provisions of the

Code of Criminal Procedure relating to search and seizure are applicable to search and seizures under FCO. In the present case, though P.W.1 deposed that she took the samples in the presence of P.Ws.3 and 6, as P.W3 did not support

C.C No.215 of 2017 9 17-03-2020 the prosecution case and presence of P.W6 is also doubtful, this Court finds that it is not safe to rely on the sole testimony of P.W.1 without any corroboration from independent witnesses to find that the sample was drawn from the premises of A1’s shop. Section 28(1) (b) of FCO provides that the Inspector should follow the procedure under schedule II of the FCO at the time of drawing samples. However though P.W1 admitted that as per FCO, a micro nutrient fertilizer should be taken only 50 grams of sample, but she had taken 100 grams packets as samples. So it is also not clear from the evidence of P.W.1 whether she has followed the procedure prescribed under Schedule-II of FCO 1985.

23.In addition, the learned defence counsel vehemently argued that

PW.1 is not competent to act as fertilizer inspector. PW.1 admitted that she did not produce any document to show that she was appointed as fertilizer inspector. In this regard, this Court finds that Section 27 of FCO 1985, the State government or the Central government shall appoint the fertilizer inspectors and also define the limits of local area in which they shall exercise their jurisdiction.

Though PW.1 is the Mandal Agricultural Officer and she possess the qualification prescribed under Section 27-A of FCO 1985 to be appointed as fertilizer inspector, except her oral submission that all mandal agricultural officers are authorized to act as fertilizer inspectors, she did not produce the document showing her authority. It was also argued by the learned defence counsel that the chemist is the actual person who must be made as the accused for the manufacture of substandard fertilizer. In this regard, this Court finds that the chemist is an employee of the manufacturer and he has to act as per the directions of the manufacturer, the chemist has no power to take any decision, moreover it is the manufacturer but not the chemist, who is not made responsible under FCO 1985 for the manufacture of substandard fertilizers.

24.The learned counsel for A3 elicited from P.W1 that she did not produce any document to show that the subject fertilizer was manufactured by

A3 and supplied by A3 to A2. She also admitted that Ex.P1 is a carbon copy and

C.C No.215 of 2017 10 17-03-2020 it contains corrections and over writings in the column showing the manufacturers. She also admitted that Ex.P2 also contains corrections. P.W1 further admitted that she did not file any document to prove that the analysis reports and the show cause notices were served to A3.

25.The learned defence counsel for A2 argued that elicited from P.W1 that Exs.P7 and P9 are not pertaining to the laboratories to which the samples were sent by P.W1 as deposed by her. It is also admitted that asper Ex.P9, the variation is only 0.24% which is very minute variation. Though P.W1 deposed that she seized the registers, also bill books and invoices from the shop of A1, she categorically admitted that she did not produce all the necessary documents in this case and registers. P.Ws.4 and 5 who are the mediators at the time of seizure of registers and bill books, did not depose anything about search seizure by P.W1.

26.So, in view of the above discussion this Court finds that the prosecution failed to prove that the alleged samples were drawn from the possession of the accused and also failed to prove that P.W1 followed the mandatory provisions under the FCO 1985. So this Court also finds that the offence against A1 to A3 is not proved by the prosecution beyond reasonable doubt and they are entitled to acquittal.

27.In the result, A1 to A3 are found not guilty for the offence under

Sec. 19 (a) (b) of FCO 1985 punishable under Sec. 7(1)(a)(ii) of EC Act 1955 and accordingly they are acquitted under Sec.248 (1) Cr.P.C. for the above offence. The bail bonds of the accused shall stand canceled after expiry of appeal time. No order needs to be passed as to the property since no property is deposited in this case.

Typed to my dictation by the Typist, corrected and pronounced by me in the Open Courtthis the 17th day of March, 2020.

II ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS

NELLORE.

C.C No.215 of 2017 11 17-03-2020

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: -- FOR DEFENCE: - NONE - PW.1: P. Mary Kamala, the then Mandal Agricultural Officer, Vidavalur Mandal. PW.2: P.Kuppaiah, Assistant Director of Agriculture, Kovur. PW.3: G.Sunil. PW.4: T.Chennaiah PW.5: P.Venugopal. P.W.6: P.Venkateswarlu.

DOCUMENTS MARKED

FOR PROSECUTION:-- FOR DEFENCE: - NIL-

Ex.P1: Form J. Ex.P2: From P. Ex.P3: Form K. Ex.P4: Receipt of payment for the samples. Ex.P-5: Photostat copy of mahazarnama containing the original signatures of the accused and the mediators (marked subject to objection). Ex.P-6: Custody orders. Ex.P-7: Analysis report in Form-L(two papers). Ex.P-8: Request for re-analysis. Ex.P-9: Re-analysis report(two pages) Ex.P-10: Show cause notice to the accused dated 18.05.2015.

MATERIAL OBJECTS MARKED:

-NIL-

II A.J.M.F.C,

NELLORE.

C.C. No.1256 of 2019 1/10 18-03-2020

IN THE COURT OF THE II ADDL., JUDICIAL MAGISTRATE OF I CLASS : NELLORE

Present: Smt. V. LEELA SHYAM SUNDARI, II Addl. Judicial Magistrate of First Class, Nellore. Wednesday, this the Eighteenth (18th) day of March, 2020

CALENDAR CASE NO. 1256 OF 2019

State: Sub-Inspector of Police, Chinna Bazaar Police Station, Nellore.

….. Complainant

Vs.

01. Pilla Lakshmi, W/o Srinivasulu, aged about 34 years, Kamma by caste, r/o Konda dibba, Mulapet, Nellore.

02. Pilla Srinivasulu, S/o Parasu Naidu, aged about 40 years, Kamma by caste, r/o Konda dibba, Mulapet, Nellore. Cell No.9849999410. Accused Nos. 1 and 2

This case is coming on 11-03-2020 before me for hearing in the presence of the learned Assistant Public Prosecutor for the complainant and of Sri T. Srinivasa Rao,Counsel for accused A1 and A2, upon hearing and perusing the material on record and having stood over for consideration till this day, this Court delivered the following: -

J U D G M E N T

1.The Sub-Inspector of Police, Chinna Bazaar Police Station, Nellore, filed charge sheet against accused in crime No.276 of 2018 for the offences punishable under sections 448, 427, 506, 290 r/w 34 of the Indian Penal Code, 1860 (herein after referred to as 'IPC').

2.The contents of the charge sheet in brief are as follows:

L.W1/Boodati Lavanya is the resident of Parameswari Nagar,

Nellore. The children of L.W1 are studying in Himalaya school, Mulapet,

Nellore, A1 is working in the same school and so A1 and L.W1 got acquaintance with each other and became friends. They decided to do tailoring business and

A1 used to visit the house of L.W1 frequently. While so both of the placed an online order for purchase of sarees, L.W1 paid the amount for both the sarees.

Later A1 gave the amount of her saree to L.W1 but did not take her saree from

C.C. No.1256 of 2019 2/10 18-03-2020

L.W1. On 22-12-2018 at about 09:45 P.M., while L.W1 was present in her house, A1 along with A2 trespassed into the house of L.W1, abused her in filthy language, demanding her to give her saree. L.W1 told that she would give the saree of A1 on the next day morning after checking it and requested them not to quarrel with her in her house in the night time. A1 did not listen the words of L.W1, she abused her in filthy language, threw away the P.V.C pipes on the water motor and caused damage to the pipes as well as motor. A2 also abused

L.W1 in filthy language and threatened her with dire consequences. Due to fear L.W1 informed about the incident to her husband L.W2/Boodati Gopala

Krishna, L.W3/Basava Mallikarjuna and L.W4/Chengi Selvaraj. L.Ws.3 and 4 visited the house of L.W1 and came to know about the incident from L.W1.

Thereafter L.Ws.1 and 2 went to the police station and presented a written report about the incident.

L.W5/Sk. Kareemulla, the then Sub-Inspector of police, Chinna Bazaar police station, Nellore, registered the report of L.W1 as a case in crime number 276 of 2018 under Sections 448, 427, 290, 506 r/w 34 IPC of Chinna Bazaar police station on 24-12-2018 at 09:00 hours and investigated into.

During the course of investigation, he visited the scene of offence, prepared the rough sketch, examined the L.Ws1 to 4 and recorded their statements. On 24-12-2018, L.W5 served Section 41-A Cr.P.C notices to the A1 and A2. After completion of investigation he filed the charge sheet.

3. This case was taken cognizance for the offences punishable under

Sections 448, 427, 506, 290 r/w 34 IPC against A1 and A2. On appearance of the accused A1 and A2 before this Court, relevant copies of documents were furnished to them as required under Section 207 Cr.P.C.

C.C. No.1256 of 2019 3/10 18-03-2020

4.A1 and A2 were examined under Section 239 Cr.P.C. by framing the charges under Sections 448, 427, 290, 506 r/w 34 IPC, the charges were read over and explained to them in Telugu language, to which they pleaded not guilty and claimed to be tried.

5.During the course of trial, on behalf of the prosecution, P.Ws.1 to 5 were examined and Exs.P1 to P3 were marked. Ex.P1 is the report, Ex.P2 is the

First Information Report, Ex.P3 is the rough sketch.

6.After closure of evidence on prosecution side, A1 and A2 were examined under sections 313 Cr.P.C by explaining the incriminating evidence in the prosecution witnesses for which they denied the same and reported no defence evidence.

7.Heard the arguments of both sides.

8. Now the point that has arisen for determination is:

Whether the prosecution is able to prove the offence punishable under Sections 448, 427, 506, 290 r/w 34 IPC against the accused A1 and A2 beyond all reasonable doubt?

POINT :

9.To prove the case, the prosecution examined P.W1 who is the defacto complainant and P.Ws. 2 to 5. P.W1 deposed that during the summer vacation in the year 2017, A1 and she decided to start tailoring business. She deposed that A1 used to visit their house now and then and on one day she ordered two sarees in online, one for each of them at the request of A1. She deposed that she paid the money for the said sarees. She further deposed that A1 gave her the money for her saree later and she received the parcel of both the sarees. She deposed that she told A1 to take her saree but A1 did not take it and in the meanwhile she gave her another saree and one dress

C.C. No.1256 of 2019 4/10 18-03-2020 material of her daughter to A1 for the purpose of stitching the same. She deposed that on 22-12-2018 at about 09:45 P.M., A1 and A2 who is the husband of A1, came to her house and asked her to give her saree which was purchased online for which she told her that she was unable to give her saree which was purchased online for which she told her that she was unable to search for the said saree and she told her that she would give her the saree on the next day morning. She further deposed that A1 did not listen to her words and instead she started abusing her loudly in filthy language. She deposed that A1 also took the PVC electrical pipes which were kept in their varanda, and threw them on their electrical water motor as a result of which their motor was damaged and also the pipes were broken. She deposed that A2 also abused her in filthy language. She deposed that due to the acts of A1, she sustained a loss of Rs.25,000/- and the next day morning she went to the police station and gave report to the police.

10.P.W2 is the eye witness, he deposed that on 22-12-2018 at about 09:50 P.M., P.W1 called her over phone and told him that A1 and A2 were quarreling with her in the issue relating to the sarees and he went to the house of P.W1, he saw that when P.W1 told A1 that she would give the saree, the next day morning, A1 did not listen and she quarreled with her and she also threw the pipes which were in the house of P.W1 and put them on the motor as a result of which the pipes were broken and the motor was also broken. He deposed that A2 also quarreled with P.W1 by abusing her in vulgar language.

11. P.W3 is the husband of P.W1, he deposed that on 22-12-2018 at about 10:30 P.M., P.W1 called him over phone and informed him that at about 09:30 P.M., A1 and A2 came to their house and asked P.W1 to give the saree of

A1 for which P.W1 told that she would give the same on the next day because

C.C. No.1256 of 2019 5/10 18-03-2020 there was stock of PVC pipes in their house, for which A1 and A2 insisted to give the saree immediately, they abused P.W1 in filthy language, created nuisance and also threatened P.W1 with dire consequences. He deposed that the accused also threw the pipes on the motor as a result of which the pipes were damaged and also the motor was damaged.

12.P.W4 is also another eye witness, he deposed that on 22-12-2018 at about 09:30 P.M., she went to his friend’s house and he saw that A1 and A2 were quarreling with P.W1 regarding an issue about saree and A1 abused P.W1 in filthy language. He deposed that A2 pushed the pipes down, they felldown on the motor and the motor and also the pipes were damaged. He deposed that himself and his friend intervened and pacified their quarrel and then A1 and A2 left the place.

13.P.W5 is the S.I of police, he is the investigating officer, he deposed that on 24-12-2018 at about 09:00 A.M., while he was in the police station,

P.W1 and P.W3 came to the police station and gave a report and then he registered the report as a case in Crime Number 276 of 2018 under Sections 448, 427, 290, 506 r/w 34 IPC. He deposed that he examined P.Ws1 and 3 in the police station and recorded their statements. He further deposed that he reached the scene of offence situated at Parameswari Nagar, Nellore and observed the scene and prepared the rough sketch. He deposed that he secured P.Ws.2 and 4 at the scene examined them and recorded their statements. He deposed that on the same day he served Section 41-A Cr.P.C notices to the accused.

14.The Learned Assistant Public Prosecutor argued that P.W1 was abused and threatened by A1 and A2 due to prior disputes between P.W1 and

A1. P.W1 is corroborated by P.W2 and P.W4 who are the eye witnesses, P.W1

C.C. No.1256 of 2019 6/10 18-03-2020 sustained a loss of Rs.25,000/- due to the acts of the accused and the prosecution also proved the motive for the alleged incident and so she prays to convict the accused.

15.On the other hand, the Learned Defence Counsel argued that P.W1 did not mention about the reason for the disputes in her report. He argued that there are no eye witnesses to the incident and P.Ws 2 and 4 are relatives of

P.W1 and so they deposed false at the instance of P.W1. He argued that P.Ws 2 and 4 are residing at a long distance from the scene of offence and they belong to the same caste of P.W1. He further argued that the investigating officer did not produce any document to prove the business of P.W1 and also did not produce the damaged property. He argued that there is delay in giving report and P.W5 registered this case due to the acquaintance of P.W1 with the police persons residing in the house of P.W1. He argued that there is no proof of any damage to the property of P.W1 and this case is filed only due to financial disputes between P.W1 and A1 and so he prays to acquit the accused.

16.Now considering the evidence available on hand in the light of the rival arguments, the testimony of P.W.1 is that on the date of the alleged incident, the accused trespassed into their house, abused her and caused damage to her property. P.Ws.2 to 4 also deposed that the accused came to the house of P.W1 and corroborated with P.W1. However P.W3 is only a hearsay witness as he categorically deposed that he came to know about the incident through P.W.1 when he was informed by P.W1 over phone. P.W3 also admitted that he resides in Thadepalligudem. P.W2 is admittedly working under P.W1 and

P.W3, he is residing at a distance of four kilometers from the house of P.W1.

Even according to P.W1 and P.W2, P.W2 came to the scene of offence after he was informed by P.W1 over phone about the incident. So P.W2 appears to be a chance witness and the possibility for him to have seen the alleged incident

C.C. No.1256 of 2019 7/10 18-03-2020 also appears to be doubtful as he categorically deposed that he came to the scene of offence after he was informed by P.W.1 over phone, but he deposed as if he was present and he directly saw the incident.

17. P.W4 deposed that he came to the scene of offence to meet his friend but as rightly suggested by learned defence counsel, P.W4 did not state

before the police, that he had come to meed his friend Raja, who resides in the

house of P.W1. Moreover P.W4 admitted that he does not remember when he was examined by the police, and also he does not know the contents of his statement. In addition P.W4 stated that the police wrote down his statement at the scene of offence at about 9:30 P.M, whereas according to P.W1 the alleged incident occurred at about 9:45 P.M, and she had given Ex.P1 report on the next day. P.W4 also admitted that he resides at a distance of 1 ½ kilometer from the house of P.W1. So this Court finds that the evidence of P.W4 is not reliable.

18. P.W5 admitted that he did not examine the owner of the building and also the neighbours at the scene of offence though it is a residential area as admitted by P.W1. P.W5 also stated that the neighbours did not co-operate for investigation. So as the presence of and the testimony of P.W2 and P.W4 are doubtful and the evidence of the neighbours and any other eye witnesses is not available, this Court finds that it is necessary to scrutinize the evidence of

P.W.1 with caution.

19.Further P.W1 admitted that the phone number mentioned in Ex.P1 is different from the phone numbers deposed by her in this Court, she admitted that she did not mention in Ex.P1 about the particulars of the phone number from which she ordered for the two sarees, the name of the website, the price and the date of the order, the details of the delivery etc., she also admitted that she did not file any document relating to the said order. P.W5 also

C.C. No.1256 of 2019 8/10 18-03-2020 admitted that he did not investigate about those particulars. Though P.W5 stated that it is not necessary to investigate about the said details to prove the alleged charges against the accused, this Court finds that when there is no corroboration to P.W1 from any reliable witness, the motive for the incident assumes importance and it becomes necessary to consider the motive.

Moreover P.W1 also admitted that she did not produce any document to show that she was doing P.V.C electrical business in her house and she also admitted that the purchase details of those pipes were not mentioned by her in Ex.P1 report. P.W1 further admitted that the electrical motor belongs to their house owner. Apparently P.W5 did not seize and did not produce any material objects

before this Court to prove any damage. It was also elicited by the learned

defence counsel that P.W1 did not mention the value of damage in Ex.P1 report and she stated for the first time in her chief examination that she sustained loss of Rs. 25,000-00. It is evident that there is no proof for the value of damage as stated by P.W1.

20.Moreover as rightly argued by the learned defence counsel, there is delay in giving the report as the incident occurred on 22-12-2018 and Ex.P1 was given by P.W.1 on 24-12-2018, though P.w.1 deposed that she gave the report on the next day after the incident. Moreover P.w.1 made vague allegation that the accused abused her in filthy language, neither in her report nor in her testimony, she deposed about the particular words used by the accused to abuse her. This Court also finds that the reason for abusing P.W.1 according to her is due to not giving the saree of A1, this cause also appears to be trivial and leads to a doubt whether such incident could have occurred due to the reason deposed by P.W.1.

C.C. No.1256 of 2019 9/10 18-03-2020

21.So inview of foregoing discussion, this Court finds that in the absence of any independent corroboration to the testimony of P.W.1 and in the background of existing disputes between A1 and P.W.1, this Court finds that it is not safe to rely on the sole testimony of P.W.1, as no material objects or proof of any particular damage caused to P.W.1 is produced by the prosecution.

Hence this Court finds that the prosecution failed to prove the case against the accused beyond reasonable doubt and accordingly the point is answered.

22.In the result, A1 and A2 are found not guilty for the offences under

Sections 448, 427, 506, 290 r/w 34 IPC, and accordingly they are acquitted under section 255 (1) Cr.P.C. for the above offences. The bail bonds of the accused shall stand canceled after the expiry of appeal time. As no property was produced in this case there is no need to pass any property order.

Typed to my dictation by the Typist, corrected and pronounced by me in open Court on this 18th day of March 2019.

II ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS,

NELLORE.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W1 : B. Lavanya NONE

P.W2 : B. Mallikarjuna

P.W3 : B. Gopalakrishna

P.W4 : Ch. Selva Raj

P.W5: Sk. Karimullah, the then S.I of Chinna Bazaar Police Station, Nellore.

C.C. No.1256 of 2019 10/10 18-03-2020

DOCUMENTS MARKED

FOR PROSECUTION:-

Ex.P1: Report,

Ex.P2: First Information Report

Ex.P3: Rough sketch.

FOR DEFENCE:-

Nil

MATERIAL OBJECTS MARKED

- NIL-

II A.J.M.F.C

NELLORE

CC. No.1989 of 2019 1/8 23.03.2020

IN THE COURT OF THE II ADDL. JUDICIAL MAGISTRATE OF I CLASS:NELLORE

Present: Smt.V.Leela Shyam Sundari,

II Additional Judicial Magistrate of First Class, Nellore

Monday, the Twenty Third (23rd) day of March, 2020.

CALANDER CASE NO. 1989 OF 2019

State: Sub-Inspector of Police, Chinna Bazaar Police Station, NelloreComplainant.

Vs.

Penubakam Kamalakar, S/o Veera Brahmaiah aged 51 years, Viswa Brahmin by caste, r/o D.No. 23-1-1040, Brahmamgari Matham, Fathekhanpet main road, Nellore city. Aadhaar No.864275759118 and Cell No.9290792990. Accused

This case is coming on 16.03.2020 before me for hearing in the presence of the learned Assistant Public Prosecutor for the complainant and of Sri K. Ravi Kumar, Counsel for the accused, upon hearing and perusing the material on record and having stood over for consideration till this day, this Court delivered the following: -

J U D G M E N T

1.The Sub-Inspector of Police, Chinna Bazaar Police Station, Nellore, filed charge sheet against the accused in Crime No.183 of 2019 of Chinna Bazaar

Police Station, for the offence punishable under Section 420 of IPC and Section 4 (1)(C ) of A.P.Lotteries Act.

2.The contents of the charge sheet in brief are as follows. The accused wrote single digit numbers and conducted single digit lottery, with intention to cheat the public and to grab money from the innocent persons at Kamal

Electronics, Fathekhanpet, Nellore. During that course on 14-05-2019 at about 10:00 hours, on credible information received about running of single number lottery, immediately L.W6/Sk.Md.Haneef, the then Sub-Inspector of police in

Chinna Bazaar Police Station, Nellore, secured LW.1/Matle Srinu, L.W2/Md. Shakir and L.W3/D. Suresh Babu, L.W5/B. Madhusudhanarao, conducted raid of the scene of offence ie., Kamal Electronics, Fathekhanpet, Nellore, found the accused organizing single digit lottery game. L.W6 examined the accused and according to the confession arrested the accused at 11:30 hours and seized an amount of

CC. No.1989 of 2019 2/8 23.03.2020

2,000/-(500X2+100X10=2000), five empty slips, and a pocket book from the possession of the accused under the cover of mediatornama duly attested by

L.Ws1 and 2 by explaining the reasons of his arrest and seizure as contemplated under Sections 50 and 51 Cr.P.C.

On 14-05-2019 at 12:00 hours, basing on the said mediatornama,

LW.6 brought the accused to Chinna Bazaar police station, Nellore, registered a case in crime number 183/2019 under Section 420 of IPC and Section 4(1) (c) of

AP Lotteries Act 1968 of Chinna Bazaar police station, Nellore and took up investigation in this case. During the course of investigation, LW.6 visited the scene of offence and prepared rough sketch. L.W6 forwarded the accused to the

Hon’ble Court along with remand report for judicial custody. After completion of

entire investigation, he filed the charge sheet.

3.The accused was examined under Section 239 Cr.P.C. by framing the charges under Section 420 of IPC and Section 4 (1)(C ) of A.P.Lotteries Act 1968, read over and explained to him in Telugu language, to which he pleaded not guilty and claimed to be tried.

4.During the trial, the prosecution examined P.Ws.1 to 4 and got marked Exs.P1 to P5 and M.Os.1 to 3.Ex.P1 is the signature of P.W.1 in the mahazarnama dated 14.05.2019, Ex.P-2 is the signature of P.W.2 in the mahazarnama dated 14.05.2019, Ex.P-3 is the mahazarnama dated 14.05.2019,

Ex.P-4 is the First Information Report. M.O.1 is the cash of Rs.2,000/-, Ex.P5 is the rough sketch, M.O2 is the five empty slips, M.O3 is the pocket book.

5.After closure of evidence on prosecution side, the accused was examined under sections 313 Cr.P.C by explaining the incriminating evidence for which the accused denied the same and reported no defence evidence.

6.Heard both sides.

CC. No.1989 of 2019 3/8 23.03.2020

7.Now, the point that has arisen for determination is:

"Whether the prosecution is able to prove the offence punishable under Section 420 of IPC and Section 4 (1)(C ) of A.P.Lotteries Act 1968 against the accused beyond all reasonable doubt?" POINT:

8.The case of the prosecution is that the accused conducted single digit lottery and cheated the public. To prove the case, the prosecution examined

P.Ws.1 to 4, P.Ws.1 and 2 are the mediators, P.Ws.3 and 4 are police officials.

9. P.W.3 deposed that on 14-05-2017, on receiving information about conducting of lotteries he accompanied P.W4 and L.W3/D.Suresh Babu along with

L.W4/M. Venkateswarlu, the police constable and P.Ws.1 and 2 who mediators, to the T.V.Mechanic shop in the name and style of Kamala Electronics situated at

Fathekhanpet, Nellore, found ten persons, they tried to escape on seeing them, then himself and others went inside the shop and found the accused in shop who was writing slips. He further deposed that on interrogation made by P.W4, the accused revealed his name and he confessed that he wrote slips for conducting single digit lottery and also confessed that he was not having any permission to conduct lottery. He further deposed that P.W4 seized cash of Rs.2,000/- from the accused, also some slips of papers and P.W4 arrested the accused and prepared mahazarnama, the mediators and P.W4 signed in it.

10.P.W.4 is the investigating officer in this case. He deposed that on 14-05-2017 at about 10.00 A.M, he received information about the organizing of single digit lottery at Kamal Electronic shop, Fathekhanpet, Nellore, immediately, he secured P.Ws.1 and 2 as mediators, he along with his staff and mediators reached to Kamal Electronic shop, Fathekhanpet, Nellore, found persons in the shop and on seeing them, the said persons tried to escape from there, the organizer also tried to escape but with the help of his staff, he caught hold of him.

He further deposed that on interrogation, the organizer revealed his name as the

CC. No.1989 of 2019 4/8 23.03.2020

accused, he also revealed his identity particulars and further confessed that he was used to organizing single digit lottery which is the game of chance, for earning money, by choosing the last digit of the KOIL game winning number published in news paper, as the winner of single digit lottery. He further deposed that he arrested the accused and seized cash of Rs. 2,000/- and M.O.s.1 to 3 and also seized five empty slips, one pocket book under the cover of mahazarnama duly signed by the mediators, himself and the accused. He further deposed that he registered the mahazarnama as a case in Cr.No. 183 of 2019 under Sec. 420

I.P.C and Section 4 (1) (c ) of A.P. Lotteries Act and produced the accused before the Hon’ble Court and also produced the property before the Hon’ble Court. He further deposed that he again visited the scene, observed and prepared rough sketch and after completion of investigation he filed the charge sheet.

11.P.Ws 1 and2 deposed that they did not act as mediators for police and that they do not know the contents of Ex.P3 mahazarnama. P.Ws1 and 2 were declared hostile by the learned Assistant Public Prosecutor and with the permission of this Court, they were cross examined by her, but nothing was elicited in favour of prosecution. P.Ws 1 and 2 categorically denied that they saw the police at the time of raid when the accused were conducting single digit lottery. Except identifying their signatures in Ex.P3, they did not depose anything against the accused, infact they stated that their signatures were obtained by the police in the police station when they went to the police station on their personal work.

12.So this case is entirely based on Ex.P3, the mahazarnama which is the most crucial document. To prove this case the evidence of the mediators and the seizure mahazarnama/Ex.P3 is most important. As both the mediators examined by the prosecution turned hostile and did not support the prosecution case. So the only evidence is available is that of P.Ws. 3 and 4.

13.Now coming to the evidence of P.W3, though he deposed that he

CC. No.1989 of 2019 5/8 23.03.2020

accompanied P.W4, he admitted that he did not sign in the mahazarnama and he does not know who scribed the mahazarnama. P.W4 also admitted that he did not obtain the signatures of P.W3 and other staff in Ex.P3. He admitted that the scribe of Ex.P3 is not mentioned in it. Though P.W4 denied that M.Os1 to 3 are fabricated for the purpose of this case, he admitted that M.O3 is empty.

14.As rightly suggested and argued by the Learned defence counsel,

P.w4 is the complainant as well as the investigating officer in this case. P.W4 further admitted that he did not examine the neighbours in the scene of offence.

According to Pw.4, it is clear that though the scene of offence is busy locality and public were available he did not choose to secure any local inhabitants at the place of arrest. The testimony of PW.4 proves that he failed to comply the mandatory requirements under section 100 (4) Cr.P.C., during the search and recovery of the cash. Moreover section 14(2) of Lotteries Act 1968 lays down that all the searches under the Act shall be made in accordance with the provisions of the Code of Criminal Procedure 1973. So the search and seizure is required to be made by the Police Officer in the presence of at least two independent local inhabitants which is the mandate of Section 100 (4) of Cr.P.C. Section 100 (4) of

Cr.P.C., reads as follows:

Before making a search under this Chapter, the officer

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

15.From the above provision, it is clear that the police officer must take reasonable and necessary steps to secure at least two independent local inhabitants during the search to witness the said search in order to establish that the search took place genuinely. But, here, surprisingly, PW.4 deposed that

CC. No.1989 of 2019 6/8 23.03.2020

he did not examine the neighbours and it is also apparent that P.Ws.1 and 2 are not residents of the scene of offence. As per Section 100 (4) Cr.P.C. if the

Officer conducting search could not secure the mediators, he has to record the reasons the same in writing, but no such procedure was adopted by P.W.4.

16.Though P.W3 deposed about the raid conducted by P.W4, he admitted that he did not sign in Ex.P3 mahazarnama and P.W4 himself stated that he did not obtain the signature of P.W3 and other police persons who accompanied him. All these circumstances are creating doubt with regard to the genuineness of search alleged to have been conducted by P.W.4. In the absence of any independent corroboration with regard to the search and recovery of cash which was conducted in a shop situated in a busy locality, no sanctity can be attached to the said mediators report and recovery.

17. For this aspect, I deem it proper to go through the relevant case law in this regard. The Hon'ble High court of A.P in the case of 'S.Babu saheb @babu

Vs The State of A.P' reported in '2010(1) A.L.T(Crl.) 32 A.P' held that:

“When they are conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the Excise officials or Prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators, that is the mandate of section 100(4) of Cr.P.C. As referred to in the above provisions, the Excise officials are also authorized to issue an order in writing asking them to act as mediators under sub section (4) of section 100 of Cr.P.C. The object of section 100 of Cr.P.C is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted”.

Though the above case is pertaining to excise case, the analogy in the said judgment is very much relevant in the present case. When the investigating

CC. No.1989 of 2019 7/8 23.03.2020

officer did not take serious steps for securing the local inhabitants as mediators, the entire procedure vitiates. Here, the inaction on the part of P.W.4 in securing the local mediators creates doubt on the entire prosecution case.

18.Apparently the prosecution did not examine any person from the public who was cheated by the accused. When the seizure of M.Os 1 to 3 is doubtful, the allegations of criminal conspiracy and cheating are also not proved by the prosecution beyond reasonable doubt.

19.In view of the foregoing discussion this Court finds that considering the evidence available on hand as rightly argued by the learned defence counsel,

Ex.P3 itself creates a doubt about the prosecution case and affects the root of the prosecution case. In addition in the absence of corroboration to the evidence of

PW.4 from independent witness, this Court is inclined to find that the prosecution failed to prove the seizure of the property from the possession of the accused and also failed to prove the charges against the accused that he conducted lottery and cheated people. Accordingly the point is answered.

20.In the result, the accused is found not guilty for the offences under

Section 420 IPC and Section 4 (1) (c) of A.P. Lotteries Act 1968 and accordingly he is acquitted under Sec.248 (1) Cr.P.C. for the above offences. The bail bonds of the accused shall stand cancelled after the expiry of appeal time. The unclaimed property in this case in CPR.No. 85 of 2019, Mos.1 to 3 ie., cash of Rs.2,000/- (Rupees two thousand only) shall be confiscated to the state and M.Os.2 and 3 ie., five empty slips and pocket book and shall be destroyed after the expiry of appeal time.

Typed to my dictation by the Typist, corrected and pronounced by me in the Open Court on this 23rd day of March, 2020.

II ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS,

NELLORE.

CC. No.1989 of 2019 8/8 23.03.2020

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W.1: M. Sreenu P.W.2: Md. Shakeer P.W.3: B. Madhusudhan Rao, the then head constable, Chinna Bazaar P.S., Nellore.

P.W.4: Sk.Md. Haneef, the then S.I of Police, Chinna Bazaar P.S., Nellore.

DOCUMENTS MARKED

FOR PROSECUTION:-

Ex.P1 is the signature of P.W.1 in the mahazarnama dated 14.05.2019,

Ex.P-2 is the signature of P.W.2 in the mahazarnama dated 14.05.2019,

Ex.P-3 is the mahazarnama dated 14.05.2019,

Ex.P-4 is the First Information Report,

Ex.P5 is the rough sketch.

FOR DEFENCE:- -NIL-

MATERIAL OBJECTS MARKED

M.O.1: Cash of Rs.2,000/-,

M.O.2: Five empty slips,

M.O.3: Pocket book.

II A.J.M.F.C,

NELLORE

JCC. No.49 of 2019 1/7 23-05-2020

IN THE BOARD OF THE JUVENILE JUSTICE : NELLORE.

Present: Smt. V.Leela Shyam Sundari

Principal Magistrate, Juvenile Justice Board, Nellore-Cum-

II Additional Judicial Magistrate of First Class, Nellore.

Present: E.S.Jagadeeshwar, Social Worker Member, Juvenile Justice Board, Nellore.

Saturday, the Twenty third (23rd ) day of May, 2020

Juvenile Calendar Case. No.49 of 2019

Between:-

State Represented by Sub-Inspector of Police,

Chinna Bazaar Police Station, Nellore.... Complainant

Vs

*************************...Child in Conflict with law

This case is coming on 05-03-2020 for disposal before me in the presence of Assistant Public Prosecutor for the complainant and Sri G. Venu, counsel for the Child in conflict with Law and upon hearing both sides, and on perusing the material on record and the matter having stood over for consideration till this day, this Board delivered the following:-

F I N A L O R D E R

1.The Sub-Inspector of Police, Chinna Bazaar Police Station, submitted

Final Report against the Child in Conflict with Law (herein after referred as 'CICL’) in Crime Number 65 of 2019 for the offence punishable under section 379 or 411

I.P.C.

2.The brief facts of the prosecution case are as follows:

L.W1/Shaik Jameer is the resident of Mansoor Nagar, Nellore. On 12- 03-2019 at about 19:30 hours, when L.W1 parked his Hero Honda X-Treme-ES motorcycle registration bearing number AP 26 R 3380 in front of his house, it was stolen. Later L.W1 searched for his bike in the surroundings but he could not find it and so he went to the police station and gave a report. On 15-03-2019 L.W7/P.

China Balaramaiah, the then S.I of police, registered the report of L.W1 as a case in crime number 65 of 2019 under Section 379 IPC of Chinna Bazaar police station, Nellore and took up investigation.

JCC. No.49 of 2019 2/7 23-05-2020

During the course of investigation, L.W7 visited the scene of offence, examined the witnesses and recorded their statements. On 31-07-2019, in the presence of mediators he apprehended the CICL and seized the stolen bike, two other motor cycles and also one auto from possession of the CICL, L.W7 produced the CICL before the Hon’ble Board and also produced the stolen property before the Board. After completion of investigation he filed the final report.

3. After careful perusal of material on record and final report this Board took the cognizance for the offences under sections 379 or 411 I.P.C against the

CICL.

4.On appearance of the Child in conflict with law, relevant copiesof documents were furnished to him as contemplated under Section 207 Cr.P.C.

5.The Child in Conflict with Law was examined under section 251 Cr.P.C for the offence punishable under section 379 or 411 I.P.C, having read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried.

6.During the inquiry, the prosecution examined P.Ws.1 to 4 and got marked Exs.P1 to P9 and Mo.1.Ex.P1 is the report, Ex.P2 is the signature of PW.2 in mahazarnama dated 31-07-2019 at 07:30 A.M., Ex.P3 is the signature of P.W.2 in seizure mahazarnama dt.31-07-2019 at 08:45 A.M., Ex.P4 is the signature of

PW.3 in the mahazarnama dated 31-07-2019 at 07:30 A.M., Ex.P5 is the signature of P.W.5 in seizure mahazarnama dt.31-07-2019 dated 08:45 A.M, Ex.P6 is the

First Information Report, Ex.P7 is the rough sketch, Ex.P8 is the attested copy of mahazarnama, dated 31-07-2019 at 07:30 P.M., Ex.P9 is the attested copy of seizure mahazarnama, dated 31-07-2019 at 08:45 P.M., Mo.1 is the bike bearing

No.AP 26 R 3380.

JCC. No.49 of 2019 3/7 23-05-2020

7. After closure of prosecution evidence, the CICL was examined Under

Section 313 Cr.P.C,byexplaining the incriminating material against him from the evidence of prosecution witnesses, for which he denied the same and reported no defence evidence.

8. Heard the arguments on both sides and perused the entire material on record.

9.Now the point for determination is:

“Whether the prosecution proved the guilt of the Child in Conflict with Law for the offence punishable Under Section 379 or 411 I.P.C beyond reasonable doubt”?

POINT

10.To prove the case, the prosecution examined P.Ws.1 to 4, P.W1 is the defacto complainant. He deposed that he is the owner of bike bearing No. AP 26 R 3380. He deposed that he parked his bike on 12-03-2019 at about 07:30 P.M., infront of his house in Mansoor Nagar, Nellore and after one hour he came out and found that his bike was missing. He further deposed that he searched for his bike in the surroundings and he could not find it and so he went to the police station and gave report. He stated that police recovered his auto and informed him.

11.P.Ws.2 and 3 are mediators, they turned hostile and they deposed that they did not act as mediators for the police and that their signatures were obtained by the police in the police station when they went there on their personal work.

12.P.W4 is the Sub-Inspector of police, he deposed that on 15-09-2019

JCC. No.49 of 2019 4/7 23-05-2020 at about 09:30 P.M., he was present in the police station, P.W1 came to the police station and presented a written report. He deposed that he registered the report as a case in crime number 65 of 2019 under Section 379 IPC and he examined

P.W1 in the police station and recorded his statement, then he reached along with

P.W.1 to the scene which situated at mansur nagar. He deposed that he secured

L.Ws.2 to 4 ie., Shaik Muzahid, Syed Shabbir and Shaik Muzaffar at the scene, examined them and recorded their statements. He deposed that he observed the scene and prepared the rough sketch. He further deposed that on 31-07-2019 he received the credible information and he secured the mediators P.Ws2 and 3, along with mediators and his staff he reached near the S2 theatre complex, opposite to Kalyani film distributors building, he stopped an auto and enquired the driver of the auto in the presence of mediators for which he revealed his name as the CICL in this case, he stated that the CICL voluntarily confessed his guilt in this crime and also in other crimes. He deposed that he seized an auto involved in another crime from the possession of the CICL, apprehended the CICL under the cover of mahazarnama. He further deposed that based on the confession of the CICL they proceeded to the parking place in A.C market, east side there and there the CICL showed them three bikes which were stolen by him, he seized those bikes and found that on eof them is the stolen bike ie, M.O.1 in this crime. He further deposed that he prepared the seizure mahazarnama and he obtained the signatures of mediators and also the CICL and then he produced the

CICL before the Hon’ble Board and after completion of investigation he filed the final report.

13.The Learned Assistant Public Prosecutor argued that the investigating officer seized the stolen property from the CICL, he also seized other stolen properties also from the possession of the CICL based on the confession of the CICL and so the prosecution proved the seizure of the stolen property which proves that the CICL committed theft of bike belonging to P.W1. She argued that though the mediators turned hostile, the prosecution proved the case against the

JCC. No.49 of 2019 5/7 23-05-2020

CICL.

14.Per contra, the learned defence counsel argued that the mediators produced by the prosecution are stock mediators and so they did not support the case of the prosecution. He argued that P.W4 conducted table investigation and foisted this case against the CICL after recovery of property. He further argued that the confession of CICL is not admissible in evidence and so the prosecution did not prove the case by producing any independent witnesses except investigating officer. He argued that the CICL did not commit any offence as alleged by the prosecution.

15.To prove the offence punishable under Section 379 or 411 IPC, the prosecution has to prove that the CICL committed theft of MO.1 which belongs to

PW.1 or that he was in possession of stolen property and that MO.1 was recovered from him. P.W.1 categorically stated that his bike was stolen during his absence, he did not depose anything about the person who committed theft of it and particularly he did not speak anything about the theft of M.O1 by the CICL. The prosecution did not examine any other eye witness to the theft and so it follows that there is no evidence against the CICL for the alleged offence of theft.

16. The other alternate offence that is alleged against the CICL is the offence of possession of stolen property. Section 411 IPC punishes those persons who received stolen property or who knowingly are in possession of the stolen property. From the testimony of P.W.1 it is proved that he is the owner of M.O 1 and so it is established that M.O.1 is the stolen property. Now the question that arises is whether M.O.1 was in possession of the CICL and whether prosecution proved that the CICL received it knowing it to be stolen property.

17. According to P.W.4’s testimony, he recovered M.O1 from the CICL.

However P.Ws.2 and 3 did not support P.W.4, as they turned hostile, also nothing

JCC. No.49 of 2019 6/7 23-05-2020 was elicited from them in support of the prosecution. Their presence at the time of seizure is not proved by the prosecution. Moreover according to P.W.4, the CICL confessed his guilt in the presence of mediators, but as rightly argued by the learned defence counsel, this confession is not admissible in evidence as it is hit under Section 25 of Evidence Act 1872. Though P.W.4 denied that he conducted table investigation and that the property was not recovered in the presence of the mediators, there is no cogent and convincing evidence proved against CICL for the recovery of M.O1 from him beyond reasonable doubt.

18. So inview of the foregoing discussion this Board finds that the prosecution failed to prove the seizure of M.O.1 from the possession of the CICL and so failed to prove the case against the CICL also for the alternate offence under Section 411 IPC.

19. In the result, the Child in conflict with law is found not guilty for the offence punishable under Section 379 or 411 IPC and accordingly he is acquitted under Section 17(1) Cr.P.C for the above offences. The parental and bail bonds of the CICL shall stand canceled after the expiry of appeal time. The property under M.O.1 ie., bike bearing No. AP 26 R 3380 under CPR No.112/2019, which was returned to the defacto complainant for interim custody shall be made absolute after the expiry of appeal time.

Typed to my dictation by the Typist corrected and pronounced by me in open Board, this the 23rdday of May, 2020.

PRINCIPAL MAGISTRATE,

JUVENILE JUSTICE BOARD,NELLORE.

JCC. No.49 of 2019 7/7 23-05-2020

Appendix of evidence Witnesses examined for

Prosecution Defence: NONE.

P.W.1: Shaik Jameer

P.W.2: P. Nageswara Rao

PW.3: A. Ravi

PW.4: P. China Balaramaiah.

Exhibits marked on behalf of Prosecution

Ex.P1: Report, Ex.P2: Signature of PW.2 in mahazarnama dated 31-07-2019 at 07:30 A.M., Ex.P3: Signature of P.W.2 in seizure mahazarnama dt.31-07-2019 at 08:45 A.M., Ex.P4: Signature of PW.3 in the mahazarnama dated 31-07-2019 at 07:30 A.M., Ex.P5: Signature of P.W.5 in seizure mahazarnama dt.31-07-2019 dated 08:45 A.M, Ex.P6: First Information Report, Ex.P7: Rough sketch, Ex.P8: Attested copy of mahazarnama, dated 31-07-2019 at 07:30 A.M., Ex.P9: Attested copy of seizure mahazarnama, dated 31-07-2019 at 08:45 A.M.

Exhibits marked on behalf of Defence : NIL

Material Objects marked:

Mo.1: Bike bearing No.AP 26 R 3380.

Principal Magistrate,

Juvenile Justice Board, Nellore. Member: Sd/- E.S.Jagadeeshwar,

JCC. No.48 of 2019 1/7 23-05-2020

IN THE BOARD OF THE JUVENILE JUSTICE : NELLORE.

Present: Smt. V.Leela Shyam Sundari

Principal Magistrate, Juvenile Justice Board, Nellore-Cum-

II Additional Judicial Magistrate of First Class, Nellore.

Present: E.S.Jagadeeshwar, Social Worker Member, Juvenile Justice Board, Nellore.

Saturday, the Twenty third (23rd) day of May, 2020

Juvenile Calendar Case. No.48 of 2019

Between:-

State Represented by Sub-Inspector of Police,

Chinna Bazaar Police Station, Nellore.... Complainant

Vs

********************...Child in Conflict with law

This case is coming on 05-03-2020 for disposal before me in the presence of Assistant Public Prosecutor for the complainant and Sri Venu, counsel for the Child in conflict with Law and upon hearing both sides, and on perusing the material on record and the matter having stood over for consideration till this day, this Board delivered the following:-

F I N A L O R D E R

1.The Sub-Inspector of Police, Chinna Bazaar Police Station, submitted

Final Report against the Child in Conflict with Law (herein after referred as 'CICL’) in Crime Number 235 of 2019 for the offence punishable under section 379 and 411 I.P.C.

2.The brief facts of the prosecution case are as follows:

L.W1/Shaik Khaja Rasool is the resident of 4th street, Mansoor Nagar,

Nellore. On 18-07-2019 at about 14:10 hours, when L.W1 parked his auto bearing registration bearing number AP 39 X 8149 in red-cross road, beside AC vegetable market, Nellore, it was stolen. Later L.W1 searched for his auto in the surroundings but he could not find it and so he went to the police station and gave a report. L.W7/P. China Balaramaiah, the then S.I of Chinna bazaar P.S registered the report of L.W1 as a case in crime number 235 of 2019 under

Section 379 IPC of Chinna Bazaar police station, Nellore on 18-07-2019 at about

JCC. No.48 of 2019 2/7 23-05-2020 18:00 hours and took up investigation.

During the course of investigation, L.W7 visited the scene of offence, examined the witnesses and recorded their statements. On 31-07-2019 at about 08:30 hours, in the presence of mediators he apprehended the CICL and seized the stolen auto and also three other motor cycles from possession of the CICL,

L.W7 produced the CICL before the Hon’ble Board and also produced the stolen property before the Board. After completion of investigation he filed the final report.

3. After careful perusal of material on record and final report this Board took the cognizance for the offences under sections 379 or 411 I.P.C against the

CICL.

4.On appearance of the Child in conflict with law, relevant copiesof documents were furnished to him as contemplated Under Section 207 Cr.P.C.

5.The Child in Conflict with Law was examined under section 251 Cr.P.C for the offence punishable under section 379 or 411 I.P.C, having read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried.

6.During the inquiry, the prosecution examined P.Ws.1 to 4 and got marked Exs.P1 to P9 and Mo.1.Ex.P1 is the report, Ex.P2 is the signature of PW.2 in mahazarnama dated 31-07-2019 at 07:30 A.M., Ex.P3 is the signature of P.W.2 in seizure mahazarnama dt.31-07-2019 at 08:45 A.M., Ex.P4 is the signature of

PW.3 in the mahazarnama dated 31-07-2019 at 07:30 A.M., Ex.P5 is the signature of P.W.5 in seizure mahazarnama dt.31-07-2019, Ex.P6 is the First Information

Report, Ex.P7 is the rough sketch, Ex.P8 is the mahazarnama, dated 31-07-2019 at 07:30 A.M and Ex.P-9 Mahazarnama dated 31.7.2019 at 8.45 A.M. M.O.1 is the auto bearing No.AP 39 X 8149.

JCC. No.48 of 2019 3/7 23-05-2020

7. After closure of prosecution evidence, the CICL was examined under

Section 313 Cr.P.C,byexplaining the incriminating material against him from the evidence of prosecution witnesses, for which he denied the same and reported no defence evidence.

8. Heard the arguments on both sides and perused the entire material on record.

9.Now the point for determination is:

“Whether the prosecution proved the guilt of Child in Conflict with

Law for the offence punishable Under Section 379 or 411 I.P.C beyond reasonable doubt”?

POINT

10.To prove the case, the prosecution examined P.Ws.1 to 4, P.W1 is the defacto complainant. He deposed that he is the owner of auto bearing No. AP 39

X 8149. He deposed that he parked his auto on 18-07-2019 at Madras bus stand center in Kotha street at about 02:10 P.M., and he went to the Maszid. He deposed that after ten minutes, he came out and found that his auto was missing.

He further deposed that he searched for his auto in the surroundings and he could not find it and so he went to the police station and gave report. He deposed that police recovered his auto and informed him.

11.P.Ws.2 and 3 are mediators and they deposed that they did not act as mediators for the police and that their signatures were obtained by the police in the police station when they went there on their personal work.

12.P.W4 is the Sub-Inspector of police, he deposed that on 18-07-2019 at about 06:00 P.M., he was present in the police station, P.W1 came to the police

JCC. No.48 of 2019 4/7 23-05-2020 station and presented a written report. He deposed that he registered the report as a case in crime number 235 of 2019 under Section 379 IPC and he examined

P.W1 in the police station and recorded his statement, then he reached along with

P.W.1 to the scene which situated at opposite to the maszid near A.C market. He deposed that he secured L.Ws.2 to 4 ie., Ghouse Basha, Abdul Ravoof and Shaik

Raffi at the scene examined them and recorded their statements. He deposed that he observed the scene and prepared the rough sketch. He further deposed that on 31-07-2019 he received the credible information and he secured the mediators P.Ws2 and 3, along with mediators and his staff he reached near the S2 theatre complex, opposite to Kalyani film distributors building, he stopped an auto and enquired the driver of the auto in the presence of mediators for which he revealed his name as the CICL in this case, he stated that the CICL voluntarily confessed his guilt in this crime and also in other crimes. He deposed that he seized the auto from the possession of the CICL, apprehended the CICL under the cover of mahazarnama. He further deposed that he obtained the signatures of mediators and also the CICL and then he produced the CICL before the Hon’ble

Board and after completion of investigation he filed the final report.

13.The Learned Assistant Public Prosecutor argued that the investigating officer seized the stolen property from the CICL, he also seized other stolen properties also from the possession of the CICL based on the confession of the CICL and so the prosecution proved the seizure of the stolen property which proves that the CICL committed theft of auto belonging to P.W1. She argued that though the mediators turned hostile, the prosecution proved the case against the

CICL.

14.Per contra, the learned defence counsel argued that the mediators produced by the prosecution are stock mediators and so they did not support the case of the prosecution. He argued that P.W4 conducted table investigation and

JCC. No.48 of 2019 5/7 23-05-2020 foisted this case against the CICL after recovery of property. He further argued that the confession of CICL is not admissible in evidence and so the prosecution did not prove the case by producing any independent witnesses except investigating officer. He argued that the CICL did not commit any offence as alleged by the prosecution.

15.To prove the offence punishable under Section 379 or 411 IPC, the prosecution has to prove that the CICL committed theft of MO.1 which belongs to

PW.1 or that he was in possession of stolen property and that MO.1 was recovered from him. P.W.1 categorically stated that his auto was stolen during his absence, he did not depose anything about the person who committed theft of it and particularly he did not speak anything about the theft of M.O1 by the CICL. The prosecution did not examine any other eye witness to the theft and so it follows that there is no evidence against the CICL for the alleged offence of theft.

16. The other alternate offence that is alleged against the CICL is the offence of possession of stolen property. Section 411 IPC punishes those persons who received stolen property or who knowingly are in possession of the stolen property. From the testimony of P.W.1, it is proved that he is the owner of M.O 1 and so it is established that M.O.1 is the stolen property. Now the question that arises is whether M.O.1 was in possession of the CICL and whether prosecution proved that the CICL received it knowing it to be stolen property.

17. According to the testimony of P.W.4, he recovered M.O1 from the

CICL. However P.Ws.2 and 3 did not support P.W.4, as they turned hostile, nothing was elicited from them in support of the prosecution. Their presence at the time of seizure is not proved by the prosecution beyond reasonable doubt. Infact they categorically stated that their signatures were obtained in the police station.

Moreover according to P.W.4, the CICL confessed his guilt in the presence of mediators, but as rightly argued by the learned defence counsel, this confession

JCC. No.48 of 2019 6/7 23-05-2020 is not admissible in evidence as it is hit under Section 25 of Evidence Act 1872.

Though P.W.4 denied that he conducted table investigation and that the property was not recovered in the presence of the mediators, there is no cogent and convincing evidence proved against CICL for the recovery of M.O1 from him beyond reasonable doubt.

18. So inview of the foregoing discussion this Board finds that the prosecution failed to prove the seizure of M.O.1 from the possession of the CICL and so failed to prove the case against the CICL also for the alternate offence under Section 411 IPC.

19. In the result, the Child in conflict with law is found not guilty for the offence punishable under Section 379 or 411 IPC and accordingly he is acquitted under Section 17(1) Cr.P.C for the above offences. The parental and bail bonds of the CICL shall stand canceled after the expiry of appeal time. The property under M.O.1 ie., auto bearing No.AP 39 X 8149, which was returned to the defacto complainant for interim custody shall be made absolute after the expiry of appeal time.

Typed to my dictation by the Typist corrected and pronounced by me in open Board, this the 23rdday of May, 2020.

PRINCIPAL MAGISTRATE,

JUVENILE JUSTICE BOARD,NELLORE.

Appendix of evidence Witnesses examined for

Prosecution Defence: NONE.

P.W.1: Sk. Khaja Rasool

P.W.2: P. Nageswara Rao

PW.3: A. Ravi

PW.4: P. China Balaramaiah.

JCC. No.48 of 2019 7/7 23-05-2020

Exhibits marked on behalf of Prosecution

Ex.P1: Report,

Ex.P2: Signature of PW.2 in mahazarnama dated 31-07-2019 at 07:30 A.M.,

Ex.P3: is the signature of P.W.2 in seizure mahazarnama dt.31-07-2019 at 08:45

A.M.,

Ex.P4: Signature of PW.3 in the mahazarnama dated 31-07-2019 at 07:30 A.M.,

Ex.P5: Signature of P.W.5 in seizure mahazarnama dt.31-07-2019,

Ex.P6: First Information Report,

Ex.P7: Rough sketch,

Ex.P8: Mahazarnama, dated 31-07-2019 at 07:30 A.M.,

Ex.P9: Mahazarnama, dated 31-07-2019 at 08.45 A.M,

Exhibits marked on behalf of Defence : NIL

Material Objects marked:

Mo.1: Auto bearing No.AP 39 X 8149.

Principal Magistrate,

Juvenile Justice Board, Nellore. Member: Sd/- E.S.Jagadeeshwar,