Smt. V.Satya Lakshmi Prasanna

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O.S.NO.282/2011

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE

AMALAPURAM

PRESENT : Smt.V.Satya Lakshmi Prasanna

Principal Junior Civil Judge

Thursday, this the 28 th day of February 2019

O.S.282 of 2011

Between: Bonthu Nagamani H/o Late Pallamsetty , aged 60 years, Hindu, Caste:Nil, Mamillapolam, H/o Velavalapalli , Inavilli Mandal, East … plaintiff Godavari District.

And

1) Bonthu Nagooru S/o Late Kanakayya, aged 65 years, Hindu, Inam, Durgadevipalem, Mamillapolam, H/o Velavalapalli, Inavilli Mandal, East Godavari District.

2) Bonthu Chandrarao S/o Late Kanakayya, aged 58 years, Hindu, Inam, Durgadevipalem, Mamillapolam, H/o Velavalapalli,

..Defendants

Inavilli Mandal, East Godavari District.

This suit coming on 20.02.2019 for arguments before me in the presence of

Sri.M.Adinarayana Rao, Advocate for plaintiff and Sri.V.Rajeswara Rao, Advocate for defendants and in the matter 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 suit filed for perpetual injunction against two defendants.

2]The brief averments of the plaint are that:

The husband of plaintiff by name late Bonthu Pallamsetti and defendants 1 and 2 are own brothers and they are sons of late Kanakayya. In his life time, the said

Kanakayya acquired the schedule property to an extent of Ac.0.05 cents which is dry land situated in R.S.No.7-14, so also sililar extent dry land in R.S.No.7-8, out of Ac.0.30 cents, apart from some other properties. After his demise, his three sons as aforesaid stated got partitioned the properties left by their father, wherein, the husband of plaintiff got the plaint schedule property as described above to his share and after his death the same was devolved upon this plaintiff who has been in peaceful possession and enjoyment of the same to the knowledge of one and all including these defendants.

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O.S.NO.282/2011

While the things stood thus, defendants 1 and 2 though they have no manner of right whatsoever over the suit schedule land but proclaiming in the village that they would dispossess the plaintiff from the suit lands as she has no issues and even has no male assistance. Thus, by taking undue advantage of the helplessness condition of plaintiff, both the defendants making hectic efforts to occupy the suit land as both of them are having their properties on either side I.e, South and North which they got in the family partition. Therefore, as the plaintiff has no strength to resist the highhanded acts of defendants got issued a legal notice to them on 30.08.2011 directing them not to interfere with her peaceful possession over the suit lands for which they issued a false reply notice dated 21.10.2011, wherein they set up a false plea of purchase of the suit lands by both the defendants to an extent of 5 cents each. But till the date of such reply notice, the relevant documents pertaining to such alienation in favour of either of these defendants not seen by her and thus they invented false story only to occupy the suit lands. It is further stated that apart from such claim they also claimed a right over some property which is exclusively belongs to this plaintiff and she is reserving her right to defend their claim, if they resort to file any civil suit in that regard. Thus, as without no iota of right in their favour both the defendant trying to interfere with the peaceful possession of the plaintiff over the suit lands, she will sustain irreparable loss and injury, if the defendants were succeeded in their attempts. But as helpless lady and has no support of children and other male family members except having no other go she filed the present suit for the relief as indicated above.

3]After making their appearance 2nd defendant resisted the claim of plaintiff much less her right over the suit lands by way of his written statement, wherein, he denied each and every material allegations about the alleged possession of plaintiff over the suit lands. Inter alia, he further stated that though it is admittedly true that property to an extent of Ac.0.10 cents fell to the share of plaintiffs husband in the oral partition, but out of it, their brother who is husband of plaintiff sold out Ac0.05 cents vacant land to this defendant for a valuable sale consideration of Rs.10,000/-. Out of 3

O.S.NO.282/2011

said consideration, this defendant paid an amount of Rs. 2,000/- in cash and further exchanged his Ac 0.04 cents of land which is alloted by Government at Durgadevipalem

H/o Velavalapalli village in favour of his brother. Consequently, in proof of said transaction, the husband of plaintiff executed an agreement dated 22.05.1994 in the presence of attestors as well as scribe in favour of defendant No.2.

He further stated that regarding the remaining extent of Ac.0.05 cents, the deceased Pallamsetty also executed another agreement in favour of defendant No.1 for a valuable sale consideration of Rs.20,000/-. In the said land there is a tiled house.

Out of sale consideration of Rs.20,000/- , the 1st defendant paid Rs.8,000/- on the same day and the same was received by his vendor. Consequently, on 23.05.1995 he executed an agreement in favour of 1st defendant, subsequently after receipt of remaining sale consideration of Rs.12,000/-, he delivered the vacant possession. Thus, the deceased Pallamsetty has no site at all in the suit schedule survey as alleged by plaintiff but by virtue of agreements executed by their brother Pallamsetty, these defendants No.1 and 2 are alone in possession and enjoyment of Ac0.015 cents each.

It is further submitted that during his life time, his brother never interfered with the suit lands, thus this plaintiff has no right to do so. After purchase of suit lands, both the defendants have constructed a thatched house in their respective sites and also paying taxes to the Grampanchayat respectively. Apart from that, they also paying electrical charges in respect of their respective houses. Thus, from 23.05.1995 these two defendants are in exclusive possession of suit lands by residing in their houses. Hence, the suit of plaintiff is barred by limitation and even she has no prima facie case and other ingredients to get an equitable relief of permanent injunction. It is finally submitted that during life time of his brother Pallamsetty, all of three brothers encroached an extent of Ac.0.60 cents pertains to Government at Durgadevipalem and out of said land, their brother Pallamsetty constructed one RCC building to an extent of Ac0.04 cents and the remaining land is coconut garden in RS No.16 which is their joint family property.

Thus, these two defendants are having a right to get 1/3rd share in such coconut garden. Therefore, when both these two defendants set up a right of their title over the 4

O.S.NO.282/2011

suit lands, a mere suit for injunction as set forth in the plaintiff is not maintainable and thus the present suit is sought to be dismiss by them with costs. The 1st defendant adopted the same written statement.

4] Basing on the strength of pleadings, the following issues are settled for trial:

1. Whether the plaintiff is entitled for perpetual injunction as prayed for?

2. To what relief?

5]During the course of trial, plaintiff herself is examined as PW.1 and she got marked Ex.A.1 to Ex.A.4. Apart from that she also got examined Pws.2 and 3 who are a third party of the suit and husband of her fostered daughter respectively. On the other hand, the 2nd defendant is examined as DW.1, but no documentary evidence was let in by him.

6]The learned counsel for plaintiff submitted that the plaintiff got suit lands, situated in two different survey numbers to an extent of Ac.0.05 cents each from her husband who died intestate. The defendants No.1 and 2 who are the own brothers of her husband set up a false claim of purchase of suit lands an extent of Ac.0.05 cents each by virtue of alleged documents executed by deceased Pallamsetty. But no documents were placed before this court, thus without having any basis both the defendants trying to encroach into the suit lands. Thus he sought for decree as prayed for.

7]On the other hand, counsel for defendant No.1 and 2 submitted that though the suit is for perpetual injunction, but PWs. 1 to 3 categorically deposed that PW.1 is residing somewhere else, thus the question of her possession over the suit lands much less in the year of filing the present suit does not arise. He further submitted that even though both the defendants set up a claim of title over the suit lands in their written statement itself but no rejoinder is filed by plaintiff to counteract their plea. He finally submitted that as PW.1 did not file any document to show that she is in possession of 5

O.S.NO.282/2011

plaint schedule property and as per the case of defendants they are in possession of such property the mere suit for perpetual injunction is not maintainable. Thus, he sought for dismissal of present suit.

8]ISSUE NO 1:-

Since the suit is for perpetual injunction which is an equitable relief undoubtedly the burden rests upon the plaintiff to prove her exclusive possession over the two items of suit lands that too as on the date of filing the present suit. In order to substantiate her plea and to discharge her burden, she examined her own self as PW.1, by reiterating the contents of her plaint in the evidence affidavit. She further deposed that being boundary holders on South as well as North of the suit lands, both D.1 and D.2 openly proclaimed in the village that they would occupy the same and when she issued a legal notice questioning their right over the suit lands both of them set up a plea in their reply notice under Ex.A.4 stating that they have purchased Ac 0.05 cents from her husband and he executed agreements during his life time in favour of his brothers which are arse and ficticious.

She was cross examined by the counsel for defendants stating that either herself or her husband never in possession of suit schedule properties for last 20 years, as they were alienated by her husband during his life time in favour of D.1 and D.2. But as both of them claiming a share of coconut garden only, she filed the present suit for wrongful gain. Admittedly, as deposed by PW.1 in her cross examination, she did not file any document to show that she is in possession of schedule property and even she also not filed any tax receipts regarding such lands before this court. It is not at all in dispute that originally there said to have Ac.0.30 cents of land possessed by the father of both defendants and plaintiff’s husband and in the oral partition which is not disputed by either party the suit lands were devolved upon plaintiff’s husband. Therefore, regarding the ownership of late Pallamsetty in respect of the suit lands there is no dispute. But when it is the case of the plaintiff, after that his demise the suit lands were devolved upon her and since then she continued to be in possession of such lands, obviously 6

O.S.NO.282/2011

there should be some documentary evidence to show the same since the nature of the land is claimed to be vacant house site and there are no kind constructions in it. If that is the case, during his life time her husband and after his demise this plaintiff did not try to get any certificate from the concerned authorities regarding their possession over the residential suit plots and same cannot be presumed in the absence of any documentary evidence. Even otherwise, when it is the case of defendant no.1 and 2 as specifically stated in their reply notice under Ex.A.4, so also in the written statement that they purchased the suit lands from the husband of plaintiff obviously it is incumbent upon the plaintiff to prove her exclusive possession over the suit land ever since the date of demise of her husband by leading some cogent evidence.

9]For that purpose, she examined one third party as PW.2, who deposed about the devolution of suit lands upon plaintiff, after demise of her husband, so also regarding her possession over it. His cross examination by the learned counsel for defendants shows that 10 to 15 years prior to the filing of the suit itself, the deceased Pallamsetty constructed a house in the patta site allotted to him by the Government and residing there. It further discloses that during his life time said Pallamsetty not resorted to file any suit claiming the suit properties. Be it noted, even her cross examination also PW.1 admitted about construction of such house in some other land pertaining to the

Government that too during life time of her husband. If such being the case, if at all the suit lands still remains with her husband during his life time, but without making any efforts to construct a house in such lands why they have built up their house at some where else that too in the land pertaining to the Government and such admissions on the part of PW.1 and PW.2 creates a doubt about the case of plaintiff over the suit land much less her in over possession after demise of her husband. Even otherwise, though

PW.2 deposed that PW.1 is paying taxes in respect of the schedule property and that he seen such receipts, it falsifies his testimony in about so called possession of plaintiff over the suit lands since the plaintiff herself deposed that suit land is house plot then 7

O.S.NO.282/2011

there are no such receipts. Hence, the testimony of PW.2 is not worthy of consideration is deciding plea of plaintiff.

10]Apart from PW.2, PW.1 also examined one T.Prabhakara Rao as PW.3 who claimed himself as husband of fostered daughter of plaintiff. In his chief examination, he supported the case of plaintiff. But during course of cross examination, he made inconsistent statements that after the demise of her husband, plaintiff herself constructed a house in the land allotted by the Government and residing there which is quiet contra to the testimony of PW.1 who gave evidence that said house was constructed during life time of her husband only. Moreover, his further cross examination discloses that he is not aware of the affairs of suit lands since in the plaint schedule they are described as vacant sites. But strangely this witness deposed that house tax is being paid to the schedule property by both the plaintiff and defendants together but failed to show any such receipts. Therefore, when there is no house at all is in existence in the suit lands, the question of paying any house tax to the concerned authorities does not arise. Hence, the testimony of PW.3 discloses that only for the sake of alleged relationship he gave evidence before the court though not aware of the details of suit lands. Hence, testimony of this witness also not going to fetch any benefit to the case of plaintiff in establishing her possession even by way of oral evidence.

11] Be it noted, in order to substantiate the pleadings set up by defendants No.1 and 2, the son of defendant No.2 examined as DW.1, who reiterated the material contents of the written statement. Though in his cross examination, he admitted that the suit lands along with some other lands are the ancestral properties, originally owned by his grand father, so also the fact that the suit lands fell to the share of plaintiff’s husband but reiterated the defence set up original defendants. Admittedly, though there said to be two agreements alleged to have been executed in favour of D.1 and D.2 by their younger brother Pallamsetty but no such documents were placed and exhibited before this court. However, since it is the plaintiff who approached the court seeking a relief 8

O.S.NO.282/2011

she cannot take any advantage from the weakness of defence set up by defendants and it is a duty cast upon her to prove her case of possession by placing some cogent and convincing evidence. In that regard, as stated above oral testimony of her supporting witnesses is not suffice for that purpose and even except Ex.A.1 and Ex.A.4 which are a legal notice issued by plaintiff and the reply given by defendants, there is no single scrap of paper to show that plaintiff is in possession and enjoyed suit lands at any point of time. If such being the case, as the relief is equitable in nature and the case of claim and would satisfy the cordial principles namely existence of prima facie case, balance of convenience and irreparable loss. In the case on hand, except the oral evidence of PW.1 , there is no other supporting and corroborating evidence to substantiate her case, that after demise of her husband she came to be in possession and enjoyment of suit lands. If such being the case, though as per Ex.A.4 there said tobe a threat by the defendant No.1 and 2 since they have set up an adverse plea of title but such material alone is not suffice to grant the relief infavour of plaintiff, unless her possession over the suit land is established. Hence, out of the oral testimony of

PWs.1 to 3, DW.1 coupled with Ex.A.1 to Ex.A.4, this court is of the view that the case of plaintiff fails since there is no material even to establish her alleged possession over the suit lands and thus, there is no prima facie case in her favour. Under such circumstances, the remaining cordial principles also cannot be invoked in her favour, since in such a case, it will cause of hardship and prejudice to the defendants. Thus , the suit of plaintiff fails. This issue is answered accordingly.

12]ISSUE NO 2: In the result, this suit is dismissed and both parties are directed to bear their own costs.

Dictated by me to Stenographer Grade III, transcribed by him corrected and

pronounced by me in the open court this the 28th day of February, 2019.

Principal Junior Civil Judge

Amalapuram.

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O.S.NO.282/2011

Appendix of evidence Witnesses examined

For Plaintiff PW: 1 : Bonthu Nagamani PW: 2 : Appari Lakshminarayana PW: 3 : Tekumudi Prakasa Rao For Defendants: DW:1 : Bonthu Srinivasa Rao

Exhibits marked

For Plaintiff Ex.A.1 : Office copy of Legal Notice dated 30.08.2011 Ex.A.2 : Served postal acknowledgment of D.1. Ex.A.3 : Served postal acknowledgment of D.2. Ex.A.4 : Reply notice issued by the defendants. For Defendants: Nil

Principal Junior Civil Judge

Amalapuram. Note: “The parties should apply, as soon as possible, for return of all exhibits which they wish to preserve, as the record will be liable to be destroyed after three years from the date of decree or order”.

O.S.NO.282/2011

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE

AMALAPURAM

PRESENT : Smt.V.Satya Lakshmi Prasanna

Principal Junior Civil Judge

Thursday, this the 28 th day of February 2019

O.S.282 of 2011

Between: Bonthu Nagamani H/o Late Pallamsetty , aged 60 years, Hindu, Caste:Nil, Mamillapolam, H/o Velavalapalli , Inavilli Mandal, East … plaintiff Godavari District.

And

1) Bonthu Nagooru S/o Late Kanakayya, aged 65 years, Hindu, Inam, Durgadevipalem, Mamillapolam, H/o Velavalapalli, Inavilli Mandal, East Godavari District.

2) Bonthu Chandrarao S/o Late Kanakayya, aged 58 years, Hindu, Inam, Durgadevipalem, Mamillapolam, H/o Velavalapalli,

..Defendants

Inavilli Mandal, East Godavari District.

This is a suit filed by the plaintiff against the Defendants for permanent injunction restraining the defendants their men and followers from in any interfering with peaceful possession and enjoyment of the plaintiff over the plaint schedule property and for costs. Suit presented on 15.11.2011, filed on 15.11.2011 Value of the suit: The plaintiff valued the suit for permanent injunction at Rs.10,000/- ; upon which a Court fee of Rs.786/- is paid under section 26 Sch.I Art 1( c ) of APCF and SV Act.

Cause of action for the suit arose when the oral partition between late Pallamsetty and his two brothers I.e, defendants, after the death of Pallamsetty the plaint schedule property devolved upon his wife i.e., the plaintiff and she is in peaceful possession and enjoyment of the plaint schedule property, when there are no children and male assistance the respondents are trying to interfere with the plaint schedule property by making hectic efforts to occupy the schedule property as the defendants are having their lands on either side I.e, on South and North, when resist the illegal actions the plaintiff got issued a legal notice dated 30.08.2011, when the defendants got issued a reply with false and untenable allegations which was received on 21.10.2011 and where the parties are residing and where the schedule property is situated is within the jurisdiction of this court.

This suit coming on 20.02.2019 for arguments before me in the presence of Sri.M.Adinarayana Rao, Advocate for plaintiff and Sri.V.Rajeswara Rao, Advocate for defendants and in the matter having stood over for consideration till this day and this Court DOTH ORDER AND DECREE as follows:-

1. That the suit be and same is hereby dismissed .

2. That the both parties do bear their own costs.

copy of plaint schedule hereto annexed.

Given under my hand and seal of this court on this 28 th day of February 2019.

PRL. JR. CIVIL JUDGE,

AMALAPURAM.

O.S.NO.282/2011

Particulars of costs

For PlaintiffAmount in Rs.For DefendantsAmount in Rs. Vakalat 2-00No Cost memo filed- Court Fee786-00 Advocate fee2000-00 Process Fee65-00 writing charges50-00 Total: 2903-00

P.J.C.J.

Note: “The parties should apply, as soon as possible, for return of all exhibits which they wish to preserve, as the record will be liable to be destroyed after three years from the date of decree or order”.

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CC 438 of 2015

IN THE COURT OF THE JUDL. MAGISTRATE OF FIRST CLASS AMALAPURAM

PRESENT:- Smt.V.Satya Lakshmi Prasanna,

Judl. Magistrate of First Class, Amalapuram. Thursday, the 28th day of February 2019

C.C. No.438 of 2015

Between: State: Sub-Inspector of Police, Ainavilli Police Station.

... Complainant

And

1) Elipey Chandra Sekhar @ Shekar S/o Sai Babu, aged 31 years, Caste Mala, Krapa village, Ainavilli Mandal.

2) Dukkipati Lokesh S/o Surya Rao, Aged 24 years, Caste...Accused

SC-Mala, Krapa village, Ainavilli Mandal.

This case is coming on 20.02.2019 for arguments before me in the presence of learned

A.P.P.O for Prosecution and of Sri D.Erakayya, Advocate for accused 1 and 2 and upon hearing the arguments and having stood over for consideration till this day, this court made the following:-

J U D G M E N T

1]This case is originally registered and trial by Addl. Judicial Magistrate of First Class,

Amalapuram, and after conclusion of tried, the matter transferred to this court in pursuance of orders passed by Hon’ble Chief Judicial Magistrate at Rajamahendravaram.

2]The then SI of Police, Police Station Ainavilli filed charge sheet in Cr.No.117/2014 under section 461, 380 of IPC.

3]The case of prosecution in brief is that:

On 27.08.2014 one A.Mallikarjuna Rao, resident of Magam village of Ainavilli mandal went to Police Station and lodged a written report at 10:30 a.m., stating that he is doing wines business under the name and style of “Varasidhi Vinayaka Wine shop” in his village and as usual on the previous day i.e, on 26.08.2014 he done his business upto 10:00 p.m., and later duly locked the shop. But on the next day, at about 6:00 a.m. while his sweeper went to the shop for cleaning she observed that some body broke open the lock. Immediately, he reached to the shop and on verification, he came to know that some unknown offenders 2

CC 438 of 2015

gained entry into his shop and committed theft of ( i ) Mens Club (Nibs) 180 ml. – 480 bottles

(ii) Royal Challenge full – 750 ml, (iii) Imperial Blue full – 750 ml. - 3 Bottles, (iv) Blenders

Pride Full 750 ml., - 2 bottles (v) Royal Stag full 750 ml, - 6 bottles (vi) Mansion House wisky

Full 750 ml, 2 bottles, (vii) Black & Gold halt 375 ml., - 9 bottles, (viii) Blenders Pride (Nibs) 180 ml., - 2 bottles besides cash of Rs.5000/- from the cash box. Therefore, immediately he rushed to Police Station and sought for necessary action.

Basing on said report aforesaid crime was registered by LW.9. Later he examined and recorded the statements of LW.1, as well as LW.2 to 5 who are the neighbours to the shop.

While the efforts to arrest the accused are under progress on 15.09.2015 at 9:00 a.m., A.1 and A.2 were arrested by LW8, CI of Police, Amalapuram Town P.S. at Bodasakurru Bridge on the way to Thotlapalem in connection with some other crime and also recovered Men’s Club – 180 ml. (Nibs) and Imperial Blue – 750 ml. - 3 bottles pertaining to this case under cover of a confession recorded in the presence of mediators. Subsequently, both the accused were produced before the court on execution of P.T. Warrant. Later, on completion of investigation

LW.10 filed charge sheet and also produced the seized property along with form 60.

4]Basing on the strength of material papers such as confession panchanama etc., this case was taken on file by taking cognizance of offence punishable under section 411 of IPC.

5]On appearance of accused, the concerned court duly complied Section 207 Cr.p.C. by serving the copies of case documents. Further they are examined under section 239 Cr.P.C.

To which they both pleaded not guilty as such a charge under Section 411 of IPC is framed, read over and explained to them in their known language to which they claimed to be tried.

6]During the course of trial, prosecution examined Pws 1 to 4 and got marked Exs P.1 to

P.5 and MO.1 and Mo.2. The learned APPO given up the evidence of LW2 to 5 and the evidence of LW.9 is closed.

7]After closure of prosecution evidence, both the accused were examined under section 313 Cr.p.C. by explaining the incriminating material available on record to which they pleaded 3

CC 438 of 2015

false implication and reported no defence evidence.

8]Heard on both sides.

9]POINT: Whether the prosecution proved the guilt of both Accused for the

offence punishable under section 411 of IPC beyond reasonable doubt?

10]In order to bring home the guilt of accused, out of 10 listed witnesses, prosecution examined Pws 1 to 4 and got marked Exs.P.1 to P.5. Out of them, PW.1 is defacto complainant/victim, PW.2 is the mediator for the confession and seizure report, PW.3 is

Investigating Officer who seized the property, whereas PW.4 is also Investigating Officer who filed charge sheet.

Now the first point to be determined is whether MO.1 and MO.2 are stolen properties?

To establish / prove that fact, prosecution mainly projected the testimony of Pws 1 to 3 beside MO.1 and MO.2.

11]PW.1 being the complainant deposed that he is having wines shop in the name and style of Sri Varasiddi Vinayaka Wine shop in Magam village at Ainavilli. On 26.08.2014 some persons committed theft of liquor bottles from his shop by broke open the grill door and bottles pertaining to Royal Stag, Imperial Blue, Blenders pride, King fisher Beer, Breezer,

Aristocrat premium, Aristocrat Black, Mc.Dowells Whisky all worth of Rs.43,000/- are missing.

Accordingly, he lodged a report under Ex.P.1 to the police. In his cross examination by learned counsel for the accused, it is suggested to the witness that the liquor stock will be delivered bearing batch number and with dates mentioned on the bottles. Though the same was admitted by PW.1 but he failed to state such dates in his cross examination. Even in his report under Ex.P.1, though he mentioned the quantity of liquor bottles by describing their brands however there is no whisper about the batch number as well as the date of manufacturing etc. Thus, PW.1 did not depose any thing material to suggest that the property seized by police is really belong to him. But in the case on hand, when the charge is regarding the alleged receipt and retention of stolen property knowing its nature by the accused, the nature of property recovered is also to be established, by adducing evidence that they are the bottles that were committed theft from the shop of PW.1.

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CC 438 of 2015

12]Be it noted, apart from PW.1 there is evidence of PW.2 who is one of the mediator for both confession and seizure report alleged to have been prepared by police in the presence of two mediators, out of them one of the witness is examined as PW.2, who clinchingly and consistently deposed that on 15.09.2015 at about 5.00 a.m., at the instance of PW.3 he accompanied with him in order to go to Bodasakurru bridge, situated on the way to

Thotlapalem village and there found two persons under suspicious circumstances with gunny bags. Consequently, when both of those persons are trying to escape, the police party could caught hold them and later after due interrogation in the presence of this witness and LW.7, they both confessed about their guilt of having to commit theft of some liquor bottles from

Varasiddi Vinayaka brandhi shop. He further deposed that Inpursuance of their confession

MO.1 MC Brandhy 180 ml., - 96 Nibs and MO.2 Imperial Blue 750 ml., 3 bottles were seized in the presence of mediators under cover of Ex.P.3 mediators report. PW.2 further identified both the accused persons before the court as the person who confessed their guilt in his presence.

13]The learned counsel for accused cross examined PW.2 alleging that this mediator not at all gone to anywhere much less to the place of seizure along with police party, hence the question of seizing anything from the possession of accused does not arise, but put his signature only at Police station. In his cross examination PW.2 did not state anything in contra to his chief examination. Though it is suggested to PW.2 in his cross examination that the scene of seizure is a busy locality but if one has taken into consideration the time of seizure which is at 6 a.m., though the locality might be busy in general but at relevant point of time, one can except the availability of huge number of people at the scene. Even otherwise

PW.2 is working as VRO and categorically deposed about details of confession and seizure as described in Ex.P.3 seizure report. If that is the case, when there is nothing to suggest that this witness deposing any falsehood against accused muchless to show that he is having any animosity against accused to do so, his evidence both in his chief as well as in cross examination which is corroborating the case of prosecution is worthy of consideration, thus reliable.

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CC 438 of 2015

14]Apart from this mediator, PW.3, the then SI of Police, Amalapuram town P.S. also deposed about his raids made at Bodasakurru bridge so also about apprehension of both the accused under some suspicious circumstances and also about the seizure of MO.1 and MO.2 muchless from their possession. Out of his cross examination also nothing could be elicited to doubt about the genuinity of the seizure of MO.1 and MO.2 that too from the possession of accused No.1 and 2. However, in cross examination also PW.3 admitted that the scribe of mediator’s report under Ex.P.3 who is a policeconstable as deposed by PW.2, did not mention the batch number of liquor bottles and this witness further added that no batch numbers were not mentioned on those bottles, hence, they were not mentioned in the mediators report.

15]Be that as it may, the investigation agency produced 96 nibs of 180 ml MC Brandhy bottles and exhibited them as MO.1 so also produced 750 ml Imperial Blue bottles three in number and got exhibited them as MO.2. However, in respect of MO.1, a careful observation made by this court, shows that there is batch number on some of the bottles out of MO.1, which is mentioned as 100 and the date of their manufacture is mentioned as 3.8.2015. In respect of MO.2 which are Imperial Blue bottles, their batch number is 139 and it’s date of manufacture is shown as 12.10.2016. If that is the case , the testimony of PW.3 about the absence of such date and batch numbers on these MO.1 and MO.2 shows he seized those items in a casual manner, but without any proper verification.

16]Even other wise Ex.P.2 mediator’s report also shows that the accused merely said to have made a confession of having to commit theft of some liquor bottles in the month of

August 2014 in the wines shop of PW.1 in the manner as described and projected by prosecution. Therefore, though PW.2 and 3 deposed that in pursuance of such confession both the accused led them to Old Regency Clay Production area and consequently seized

MO.1 and MO.2 under Ex.P.3, but either of these two reports have no mention about the details as stated above regarding the date and batch number of the properties seized by

PW.3. Therefore , though it is undoubtedly true that the testimony of PW.2 is very much 6

CC 438 of 2015

reliable regarding the seizure of MO.1 and Mo.2, but strictly speaking there is no kind of evidence available on record, to establish the specific details of those items seized by police.

17]Nevertheless, there is nothing to suggest that PW.1 is running the wine shop as belt shop but when it is specific case thus that he is running his shop obviously it would be an authorized one muchless recognized by the Government by issuing the required licence. If that is the case, before delivering any stock to a particular shop obviously the batch number and other details will be mentioned on the each and every bottle given to the concerned shops for sale and it is also a general tendency that a stock register will be maintained to show the opening and closing stock on each date. If that is the case, at first instance it is the obligation on the part the PW.1 to verify the stock register and thereafter to specifically mention the batch number and other details pertaining to the stock stolen from his shop.

Even otherwise during course of investigation the concerned Investigating Officer has to call for such stock register and to collect the material regarding the identity details of the bottles stolen from the shop of PW.1.

Even in his cross examination, admittedly PW.1 failed to give any such details of stock alleged to be stolen by unknown offenders. If that is the case, when MO.1 and MO.2 which are liquor and can easily be available in the market. Under such circumstances, when the material particulars such as batch number etc are not elicited from Pw.1 and even there is no material collected by Investigating Officer to assume the same from the record. Therefore, though it might be be true that some stock was committed theft from the shop of PW.1 but the prosecution literally failed to establish that the seized property under MO.1 and MO.2 are the same of that of such stolen property.

18]Even otherwise from the very dates of manufacture as mentioned in some of the bottles out of MO.1 they have manufactured in the month of August 2015, and in respect of

MO.2 some of the bottles were manufactured in the month of October 2016. But it is highly strange to consider that in the case on hand the offence had happened on 26.08.2014. If such being the case, how MO.1 and MO.2 which were manufactured after the date of 7

CC 438 of 2015

commission of offence can be connected with the crime on hand is not explained by the prosecution and thus it gives a scope for entertaining a doubt in the judicious mind about the availability of MO.1 and MO.2 in the shop of PW.1 on the date of offence to be committed theft by any one. If such being the case, when the identity of stolen property is a crucial point in deciding the guilt or otherwise of the accused, MO.1 and MO.2 cannot be branded as stolen property muchless belongs to PW.1.

19]Hence, even after careful consideration of the oral testimony of PW.1 to PW.4 coupled with Ex.P.1 to P.5 though there is evidence of seizure of Mo.1 and Mo.2 but they are nothing to do with the case on hand much less the theft took place on 26.08.2014. Thus though they have been seized from the possession of accused, both of them cannot be considered as the receivers of stolen property pertaining to this case, since this ownership of MO.1 and 2 prior to said theft is not established by adducing sufficient evidence. If such being the case, when

MO.1 and MO.2 cannot be termed or branded as stolen property, hence though the testimony of PW.2 and Pw.3 is believable about the seizure of such property from the possession of A.1 and A.2 the same is not suffice to link up the accused with this case. Therefore, this court has no hesitation to conclude that prosecution miserably failed to bring home the guilty of the accused for the charge levelled against them. As a result, they are entitled for clear acquittal.

20]In the result, Accused No.1 and 2 not found guilty for the offence punishable under section 411 of IPC and accordingly, they are acquittal of the same under section 248(1) of

Cr.P.C. Their bail bonds shall stand discharged. Mos.1 and 2 are ordered to be destroyed after lapse of appeal time.

Dictated by me to Stenographer Grade III, transcribed by him corrected and

pronounced by me in the open court this the 28th day of February, 2019.

Sd/- V.Satya Lakshmi Prasanna

Judl. First Class Magistrate, Amalapuram.

8

CC 438 of 2015

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

P.W.1 : Addagalla Mallikarjuna Rao

P.W.2 : V.Viswanadham

P.W.3 : Y.R.K.Srinivas

P.W.4 : D.Durga Sekhar Reddy

FOR DEFENCE:---- NIL ----

DOCUMENTS MARKED

FOR PROSECUTION:

Ex.P.1 : Complainant Statement of PW.1.

Ex.P.2 : Mediators report pertaining to the confession.

Ex.P.3 : Mediators report (for seizure)

Ex.P.4 : F.I.R by PW.4.

Ex.P.5 : Rough Sketch by PW.4.

FOR DEFENCE:---- NIL ----

MATERIAL OBJECTS MARKED

MO.1 – MC Brandhi Full Bottles 180 ml – 96 bottles

MO.2 – Imperial Blue – 750 ml of – 3 bottles

Sd/- V.Satya Lakshmi Prasanna

Judl. First Class Magistrate, Amalapuram.

//TRUE COPY//

J.F.C.M., AMALAPURAM

9

CC 438 of 2015

CALENDAR AND JUDGMENT

District of East Godavari.

Calendar of cases tried by Smt V.Satya Lakshmi Prasanna, Judl. First Class Magistrate, Amalapuram.

Date of Offence:26.08.2014

Date of Report or Complaint: 27.08.2014

Date of Apprehension of accused : 15.09.2015

Date of Commencement of trial: 18.11.2016

Date of Close of trial: 26.07.2018

Date of sentence of Order: 28.02.2019

Explanation of delay and remarks : Due to non-production of Prosecution witnesses in time.

Judgment in Calendar Case No.438 of 2015 on the file of the Judl. First Class Magistrate Court, Amalapuram.

1) Elipey Chandra Shekar @ Shekar S/o Sai Babu, aged 31 years, Caste SC-Mala, Krapa Village, Ainavilli Mandal.

2) Dukkipati Lokesh S/o Surya Rao, Aged 24 years, Caste SC-Mala, Krapa village, Ainavilli

...Accused

Mandal.

Offence: Under Section 411 of IPC

Plea of accused : Not guilty

Finding: Not guilty

Sentence : In the result, Accused No.1 and 2 not found guilty for the offence punishable under section 411 of IPC and accordingly, they are acquittal of the same under section 248(1) of Cr.P.C. Their bail bonds shall stand discharged. Mos.1 and 2 are ordered to be destroyed after lapse of appeal time.

Sd/- V.Satya Lakshmi Prasanna

Judl. First Class Magistrate, Amalapuram.

Copies submitted to: The Hon’ble Chief Judicial Magistrate, Rajahmahendravaram.

//TRUE COPY//

J.F.C.M., AMALAPURAM

1

CC 440 of 2015

IN THE COURT OF THE JUDL. MAGISTRATE OF FIRST CLASS AMALAPURAM

PRESENT:- Smt.V.Satya Lakshmi Prasanna,

Judl. Magistrate of First Class, Amalapuram. Thursday, the 28th day of February 2019

C.C. No.440 of 2015

Between: State: Sub-Inspector of Police, Ainavilli Police Station.

... Complainant

And

1) Elipey Chandra Sekhar @ Shekar S/o Sai Babu, aged 31 years, Caste Mala, Krapa village, Ainavilli Mandal.

2) Dukkipati Lokesh S/o Surya Rao, Aged 24 years, Caste...Accused

SC-Mala, Krapa village, Ainavilli Mandal.

This case is coming on 20.02.2019 for arguments before me in the presence of learned

A.P.P.O for Prosecution and of Sri D.Erakayya, Advocate for accused 1 and 2 and upon hearing the arguments and having stood over for consideration till this day, this court made the following:-

J U D G M E N T

1]This case is originally registered and trial by Addl. Judicial Magistrate of First Class,

Amalapuram, and after conclusion of trial, the matter transferred to this court in pursuance of orders passed by Hon’ble Chief Judicial Magistrate at Rajamahendravaram. The then SI of

Police, Police Station Ainavilli filed charge sheet in Cr.No.130/2014 under section 461, 380 of

IPC.

2]The case of prosecution in brief is that:

On 21.09.2014 one Rajalapudi Ravi, resident of Allavaram village of Allavaram mandal went to Police Station and lodged a written report at 1:00 p.m., stating that he is working in shop viz “Chandra Sri Wines Shop” at Nedunuru village and as usual on the previous day I.e, on 20.09.2014 he done business upto 9:30 p.m., and later duly locked the shop. But on the next day at about 9:30 a.m. when he went to the shop, he found some unknown offenders gained entry into his shop and committed theft of ( i ) Aristrocrat Premium 750 ml., -12 bottles

(ii) Imperial Blue 750 ml – 1 bottle (iii) AC black 750 ml – 5 bottles (iv) Royal strong 750 ml – 11 bottles (v) Men’s Club – 180 ml – 5 X 48 bottles, (vi) King fisher beer – 12 bottles and all 2

CC 440 of 2015

worth of Rs.33,185/-. Therefore, he rushed to Police Station and sought for necessary action.

Basing on said report aforesaid crime was registered by LW.8. Later he examined and recorded the statements of LW.1, as well as LW.2 to 4 who are the neighbours to the shop.

While the efforts to arrest the accused are under progress on 15.09.2015 at 9:00 a.m., A.1 and A.2 were arrested by LW.7 CI of Police, Amalapuram P.S. at Bodasakurru Bridge on the way to Thotlapalem in connection with some other crime, and he also recovered Men’s Club – 180 ml 96 Nibs , Imperial Blue – 750 ml – 1 bottle under cover of a confession recorded in the presence of mediators. Subsequently, both the accused were produced before the court on execution of P.T. Warrant. Later, on completion of investigation LW.9 filed charge sheet and also produced the seized property along with form 60.

3]Basing on the strength of material papers such as confession panchanama etc., this case was taken on file by taking cognizance of offence punishable under section 411 of IPC.

4]On appearance of accused, the concerned court duly complied Section 207 Cr.p.C. by serving the copies of case documents. Further they are examined under section 239 Cr.P.C.

To which they both pleaded not guilty as such a charge under Section 411 of IPC is framed, read over and explained to them in their known language to which they claimed to be tried.

5]During the course of trial, prosecution examined Pws 1 to 5 and got marked Exs P.1 to

P.5 and MO.1 and Mo.2. The learned APPO given up the evidence of LW2 to 4 and LW.6.

6]After closure of prosecution evidence, both the accused were examined under section 313 Cr.p.C. by explaining the incriminating material available on record to which they pleaded false implication and reported no defence evidence.

7]Heard on both sides.

3

CC 440 of 2015

8]POINT : Whether the prosecution proved the guilt of both Accused for the

offence punishable under section 411 of IPC beyond reasonable doubt?

8]In order to bring home the guilt of accused, out of 9 listed witnesses prosecution examined Pws 1 to 5 and got marked Exs.P.1 to P.5. Out of them, PW.1 is defacto complainant/victim , PW.2 is the mediator for the confession and seizure report, PW.3 is

Investigating Officer who seized the property, PW.4 is another investigating officer who registered the case thereafter prepared rough sketch in this case and filed charge sheet whereas PW.5 is also investigating Officer who investigated in this case.

Now the first point to be determined is whether MO.1 and MO.2 are stolen properties?

To establish / prove that fact, prosecution mainly projected the testimony of Pws 1 & 3 beside MO.1 and MO.2.

9]PW.1 being the complainant deposed that he is working in wine shop viz.,Chandu sri wines in Nedunuru village. In the month of September 2014, on one day some unknown offenders of the offenders committed theft of liquor bottles from said shop by gaining entrance into the shop from back door by break opening the window bars and committed theft of liquor bottles of Mansion house, Royal Stag, Imperial Blue, Blenders price, king Fisher beer,

Breezer, Arisocrat black, MC Dowels Whisky all worth of Rs.30,000/- are missing.

Accordingly, he lodged a report under Ex.P.1 to the police. In his cross examination by both the accused, it is suggested to the witness that the liquor stock will be delivered bearing batch number and with dates mentioned on the bottles and the same was admitted by PW.1 and he further stated that he cannot say the dates, batch number of the stolen property so also the number of bottles. Though the same was admitted by PW.1 but he failed to state such dates in his cross examination. Even in his report under Ex.P.1, though he mentioned the quantity of liquor bottles by describing their brands however there is no whisper about the batch number as well as the date of manufacturing etc. Thus, PW.1 did not depose any thing material to suggest that the property seized by police is really belong to him. But in the case on hand, when the charge is regarding the alleged receipt and retention of stolen property knowing its nature by the accused, the nature of property recovered is also to be established 4

CC 440 of 2015

by adducing evidence that they are the bottles that were committed theft from the shop of

PW.1.

11]Be it noted, apart from PW.1 there is evidence of PW.2 who is one of the mediator for both confession and seizure report alleged to have been prepared by police in the presence of two mediators, out of them one of the witness is examined as PW.2, who clinchingly and consistently deposed that on 15.09.2015 at about 5.00 a.m., at the instance of PW.3 he accompanied with him in order to go to Bodasakurru bridge, situated on the way to

Thotlapalem village and there found two persons under suspicious circumstances with gunny bags. Consequently, when both of those persons are trying to escape, the police party could caught hold them and later after due interrogation in the presence of this witness and LW.7, they both confessed about their guilt of having to commit theft of some liquor bottles from

Chandra Sri Wines Shop. He further deposed that Inpursuance of their confession MO.1 MC

Brandhy 180 ml., - 96 Nibs and MO.2 Imperial Blue 750 ml., 3 bottles were seized in the presence of mediators under cover of Ex.P.3 mediators report. PW.2 further identified both the accused persons before the court as the person who confessed their guilt in his presence.

12]The learned counsel for accused cross examined PW.2 alleging that this mediator not at all gone to anywhere much less to the place of seizure along with police party, hence the question of seizing anything from the possession of accused does not arise, but put his signature only at Police station. In his cross examination PW.2 did not state anything in contra to his chief examination. Though it is suggested to PW.2 in his cross examination that the scene of seizure is a busy locality but if one has taken into consideration the time of seizure which is at 6 a.m., though the locality might be busy in general but at relevant point of time, one can except the availability of huge number of people at the scene. Even otherwise

PW.2 is working as VRO and categorically deposed about details of confession and seizure as described in Ex.P.3 seizure report. If that is the case, when there is nothing to suggest that this witness deposing any falsehood against accused muchless to show that he is having any animosity against accused to do so, his evidence both in his chief as well as in cross examination which is corroborating the case of prosecution is worthy of consideration, thus 5

CC 440 of 2015

reliable.

13]Apart from this mediator, PW.3, the then SI of Police, Amalapuram town P.S. also deposed about his raids made at Bodasakurru bridge so also about apprehension of both the accused under some suspicious circumstances and also about the seizure of MO.1 and MO.2 muchless from their possession. Out of his cross examination also nothing could be elicited to doubt about the genuinity of the seizure of MO.1 and MO.2 that too from the possession of accused No.1 and 2. However, in cross examination also PW.3 admitted that the scribe of mediator’s report under Ex.P.3 who is a policeconstable as deposed by PW.2, did not mention the batch number of liquor bottles and this witness further added that no batch numbers were not mentioned on those bottles, hence, they were not mentioned in the mediators report.

14]Be that as it may, the investigation agency produced 96 nibs of 180 ml MC Brandy bottles and exhibited them as MO.1 so also produced 750 ml Imperial Blue bottles three in number and got exhibited them as MO.2. However, in respect of MO.1, a careful observation made by this court, it shows that there is batch number on some of the bottles out of MO.1, which is mentioned as 103 and the date of their manufacture is mentioned as 07.8.2015. In respect of MO.2 which are Imperial Blue bottles, their batch numbers also different. If that is the case , the testimony of PW.3 about the absence of such date and batch numbers on these

MO.1 and MO.2 shows he seized those items in a casual manner, but without any proper verification.

15]Even other wise Ex.P.2 mediator’s report also shows that the accused merely said to have made a confession of having to commit theft of some liquor bottles in the month of

August 2014 in the wines shop of PW.1 in the manner as described and projected by prosecution. Therefore, though PW.2 and 3 deposed that in pursuance of such confession both the accused led them to Old Regency Clay Production area and consequently seized

MO.1 and MO.2 under Ex.P.3, but either of these two reports have no mention about the 6

CC 440 of 2015

details as stated above regarding the date and batch number of the properties seized by

PW.3. Therefore, though it is undoubtedly true that the testimony of Pw.2 is very much reliable regarding the seizure of Mo.1 and Mo.2 which is supported by PW.3, but strictly speaking there is no kind of evidence available on record, to establish the specific details of those items seized by police.

16]Nevertheless, there is nothing to suggest that PW.1 is running the wine shop as belt shop but when it is specific case thus that he is running his shop obviously it would be an authorized one muchless recognized by the Government by issuing the required licence. If that is the case, before delivering any stock to a particular shop obviously the batch number and other details will be mentioned on the each and every bottle given to the concerned shops for sale and it is also a general tendency that a stock register will be maintained to show the opening and closing stock on each date. If that is the case, at first instance it is the obligation on the part the PW.1 to verify the stock register and thereafter to specifically mention the batch number and other details pertaining to the stock stolen from his shop.

Even otherwise during course of investigation the concerned Investigating Officer has to call for such stock register and to collect the material regarding the identity details of the bottles stolen from the shop of PW.1.

Even in his cross examination, admittedly PW.1 failed to give any such details of stock alleged to be stolen by unknown offenders. If that is the case, when MO.1 and MO.2 which are liquor and can easily be available in the market. Under such circumstances, when the material particulars such as batch number etc are not elicited from Pw.1 and even there is no material collected by Investigating Officer to assume the same from the record. Therefore, though it might be be true that some stock was committed theft from the shop of PW.1 but the prosecution literally failed to establish that the seized property under MO.1 and MO.2 are the same of that of such stolen property.

17]Even otherwise from the very dates of manufacture as mentioned in some of the bottles out of MO.1 they have manufactured in the month of August 2015. But it is highly strange to consider that in the case on hand the offence had happened on 20.09.2014. If 7

CC 440 of 2015

such being the case, how MO.1 which is manufactured after the date of commission of offence can be connected with the crime on hand is not explained by the prosecution and thus it gives a scope for entertaining a doubt in the judicious mind about the availability of

MO.1 in the shop of PW.1 on the date of offence to be committed theft by any one. If such being the case, when the identity of stolen property is a crucial point in deciding the guilt or otherwise of the accused, MO.1 and MO.2 cannot be branded as stolen property muchless belongs to PW.1.

18]Hence, even after careful consideration of the oral testimony of PW.1 to PW.4 coupled with Ex.P.1 to P.5 though there is evidence of seizure of Mo.1 but they are nothing to do with the case on hand much less the theft took place on 20.09.2014. Thus though they have been seized from the possession of accused, both of them cannot be considered as the receivers of stolen property pertaining to this case, since this ownership of MO.1 and 2 prior to said theft is not established by adducing sufficient evidence. If such being the case, when MO.1 and MO.2 cannot be termed or branded as stolen property, hence though the testimony of

PW.2 and Pw.3 is believable about the seizure of such property from the possession of A.1 and A.2 the same is not suffice to link up the accused with this case. Therefore, this court has no hesitation to conclude that prosecution miserably failed to bring home the guilty of the accused for the charge levelled against them. As a result, they are entitled for clear acquittal.

19]In the result, Accused No.1 and 2 not found guilty for the offence punishable under section 411 of IPC and accordingly, they are acquittal of the same under section 248(1) of

Cr.P.C. Their bail bonds shall stand discharged. Mos.1 and 2 are ordered to be destroyed after lapse of appeal time.

Typed to my dictation, corrected and pronounced by me in the open court this the 28th day of February, 2019.

Sd/- V.Satya Lakshmi Prasanna

Judl. First Class Magistrate, Amalapuram.

8

CC 440 of 2015

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

P.W.1 : Rajulapudi Ravi

P.W.2 : V.Viswanatham

P.W.3 : Satyanarayana

P.W.4 : M.V.K.Raju

P.W.5 : D.Durga Sekhar Reddy

FOR DEFENCE:---- NIL ----

DOCUMENTS MARKED

FOR PROSECUTION:

Ex.P.1 : Complainant statement.

Ex.P.2 : Mediators report pertaining to the confession.

Ex.P.3 : Mediators report (for seizure)

Ex.P.4 : F.I.R. by PW.4.

Ex.P.5 : Rough sketch by PW.4.

FOR DEFENCE:---- NIL ----

MATERIAL OBJECTS MARKED

MO.1 : MC Brandhy ( 180 ml) of 96 bottles.

MO.2 : Imperial Blue (750 ml) 1 bottle

Sd/- V.Satya Lakshmi Prasanna

Judl. First Class Magistrate, Amalapuram.

//TRUE COPY//

J.F.C.M., AMALAPURAM

9

CC 440 of 2015

CALENDAR AND JUDGMENT

District of East Godavari.

Calendar of cases tried by Smt V.Satya Lakshmi Prasanna, Judl. First Class Magistrate, Amalapuram.

Date of Offence:20.09.2014

Date of Report or Complaint: 21.09.2014

Date of Apprehension of accused : 15.09.2015

Date of Commencement of trial: 18.11.2016

Date of Close of trial: 26.07.2018

Date of sentence of Order: 28.02.2019

Explanation of delay and remarks : Due to non-production of Prosecution witnesses in time.

Judgment in Calendar Case No.440 of 2015 on the file of the Judl. First Class Magistrate Court, Amalapuram.

1) Elipey Chandra Shekar @ Shekar S/o Sai Babu, aged 31 years, Caste SC-Mala, Krapa Village, Ainavilli Mandal.

2) Dukkipati Lokesh S/o Surya Rao, Aged 24 years, Caste SC-Mala, Krapa village, Ainavilli

...Accused

Mandal.

Offence: Under Section 411 of IPC

Plea of accused : Not guilty

Finding: Not guilty

Sentence : In the result, Accused No.1 and 2 not found guilty for the offence punishable under section 411 of IPC and accordingly, they are acquittal of the same under section 248(1) of Cr.P.C. Their bail bonds shall stand discharged. Mos.1 and 2 are ordered to be destroyed after lapse of appeal time.

Sd/- V.Satya Lakshmi Prasanna

Judl. First Class Magistrate, Amalapuram.

Copies submitted to: The Hon’ble Chief Judicial Magistrate, Rajahmahendravaram.

//TRUE COPY//

J.F.C.M., AMALAPURAM

1

CC 437 of 2015

IN THE COURT OF THE JUDL. MAGISTRATE OF FIRST CLASS AMALAPURAM

PRESENT:- Smt.V.Satya Lakshmi Prasanna,

Judl. Magistrate of First Class, Amalapuram. Thursday, the 28th day of February 2019

C.C. No.437 of 2015

Between: State: Sub-Inspector of Police, Ainavilli Police Station.

... Complainant

And

1) Elipey Chandra Sekhar @ Shekar S/o Sai Babu, aged 31 years, Caste Mala, Krapa village, Ainavilli Mandal.

2) Dukkipati Lokesh S/o Surya Rao, Aged 24 years, Caste...Accused

SC-Mala, Krapa village, Ainavilli Mandal.

This case is coming on 20.02.2019 for arguments before me in the presence of learned

A.P.P.O for Prosecution and of Sri D.Erakayya, Advocate for accused 1 and 2 and upon hearing the arguments and having stood over for consideration till this day, this court made the following:-

J U D G M E N T

1]This case is originally registered and trial by Addl. Judicial Magistrate of First Class,

Amalapuram, and after conclusion of trial, the matter transferred to this court in pursuance of orders passed by Hon’ble Chief Judicial Magistrate at Rajamahendravaram. The then SI of

Police, Police Station Ainavilli filed charge sheet in Cr.No.54/2015 under section 461, 380 or

Under section 411 IPC.

2]The case of prosecution in brief is that:

On 13.06.2015 one Rajalapudi Ravi, resident of Allavaram village of Allavaram mandal went to Police Station and lodged a written report at 3:00 p.m., stating that he is working in shop viz “Chandu Sri Wines Shop” at Nedunuru village and as usual on the previous day I.e, on 12.06.2015 he done his business upto 9:00 p.m., and later duly locked the shop. But today at about 10:30 a.m. when he was went to the shop, he found that some body broke cement roof foil and opened the back door. On verification, he came to know that some unknown offenders gained entry into his shop and committed theft of ( i ) MH Brandy – 17 2

CC 437 of 2015

nibs (ii) Blenders Pride – 45 nibs (iii) Mc.Dowell – 750 ml. Full – 15 bottles (iv) Imperial Blue 180 ml – 10 bottles and 90 ml – 3 bottles (v) Aristrocrat black 750 ml – 10 bottles and 180 ml – 3 bottles (vi) Officer choice –750 ml – 1 full bottle, 180 ml – 2 bottles and 90 ml – 30 bottles

(vii) Royal stag full 750 ml – 10 bottles, 180 ml – 3 bottles (viii) Mens club 75 m – 12 bottles, 360 ml – 5 bottles , 180 ml 30 bottles, (ix) CCCP 180 ml – 165 bottles (x) K.F. Strong 750 ml – 35 bottles , 360 ml – 5 bottles (xi) K.F. light 750 ml – 3 bottles (xii) Budwiser 750 ml – 3 bottles (xiii) Bresezer 360 ml – 4 bottles , (xiv) Aristrocrat premium 750 ml - , 180 ml -3 bottles besides some cash from the cash box. Therefore, he rushed to Police Station and sought for necessary action.

Basing on said report aforesaid crime was registered by LW.7. Later he examined and recorded the statements of LW.1, as well as LW.2 and 3 who are the neighbours to the shop.

While the efforts to arrest the accused are under progress on 15.09.2015 at 9:00 a.m., A.1 and A.2 were arrested by LW.6 SI of Police, Amalapuram town P.S. at Bodasakurru Bridge on the way to Thotlapalem and in connection with some other crime, he also recovered Royal

Stag Fulls – 10 bottles and MC brandy fulls – 10 bottles under cover of a confession recorded in the presence of mediators. Subsequently, both the accused were produced before the court on execution of P.T. Warrant. Later, on completion of investigation LW.8 filed charge sheet and also produced the seized property along with form 60.

3]Basing on the strength of material papers such as confession panchanama etc., this case was taken on file by taking cognizance of offence punishable under section 411 of IPC.

4]On appearance of accused, the concerned court duly complied Section 207 Cr.p.C. by serving the copies of case documents. Further they are examined under section 239 Cr.P.C.

To which they both pleaded not guilty as such a charge under Section 411 of IPC is framed, read over and explained to them in their known language to which they claimed to be tried.

5]During the course of trial, prosecution examined Pws 1 to 5 and got marked Exs P.1 to

P.5 and MO.1 and Mo.2. The learned APPO given up the evidence of LW2, 3 and 5.

3

CC 437 of 2015

6]After closure of prosecution evidence, both the accused were examined under section 313 Cr.p.C. by explaining the incriminating material available on record to which they pleaded false implication and reported no defence evidence.

7]Heard on both sides.

8]POINT: Whether the prosecution proved the guilt of both Accused for the

offence punishable under section 411 of IPC beyond reasonable doubt?

9]In order to bring home the guilt of accused, out of 8 listed witnesses prosecution examined Pws 1 to 5 and got marked Exs.P.1 to P.5. Out of them, PW.1 is defacto complainant/victim , PW.2 is the mediator for the confession and seizure report, PW.3 is

Investigating Officer who seized the property, PW.4 is another investigating officer who registered the case thereafter prepared rough sketch in this case and filed charge sheet but whereas PW.5 is also investigating Officer who investigated in this case.

Now the first point to be determined is whether MO.1 and MO.2 are stolen properties?

To establish / prove that fact, prosecution mainly projected the testimony of Pws 1 & 3 beside MO.1 and MO.2.

10]PW.1 being the complainant deposed that he is working in wines shop viz style of

Chandu sri wines in Nedunuru village. On 12.06.2015 some unknown offenders committed theft of liquor bottles from their shop and he further stated that some unknown offenders gained entrance into the shop by making a hole in the roof and committed theft of liquor bottles of Mansion house, Royal Stap, Imperial Blue, Blenders price, king Fisher beer,

Breezer, Arisocrat black, Mc Dowells Whisky all worth of Rs.45,000/- are missing.

Accordingly, he lodged a report under Ex.P.1 to the police. In his cross examination by learned counsel for the accused, it is suggested to the witness that the liquor stock will be delivered bearing batch number and with dates mentioned on the bottles. Though the same 4

CC 437 of 2015

was admitted by PW.1 but he failed to state such dates in his cross examination. Even in his report under Ex.P.1, though he mentioned the quantity of liquor bottles by describing their brands however there is no whisper about the batch number as well as the date of manufacturing etc. Thus, PW.1 did not depose any thing material to suggest that the property seized by police is really belong to him. But in the case on hand, when the charge is regarding the alleged receipt and retention of stolen property knowing its nature by the accused, the nature of property recovered is also to be established by adducing evidence that they are the bottles that were committed theft from the shop of PW.1.

11]Be it noted, apart from PW.1 there is evidence of PW.2 who is one of the mediator for both confession and seizure report alleged to have been prepared by police in the presence of two mediators, out of them one of the witness is examined as PW.2, who clinchingly and consistently deposed that on 15.09.2015 at about 5.00 a.m., at the instance of PW.3 he accompanied with him in order to go to Bodasakurru bridge, situated on the way to

Thotlapalem village and there found two persons under suspicious circumstances with gunny bags. Consequently, when both of those persons are trying to escape, the police party could caught hold them and later after due interrogation in the presence of this witness and LW.7, they both confessed about their guilt of having to commit it theft of some liquor bottles from

Varasiddi Vinayaka brandhi shop. He further deposed that Inpursuance of their confession

MO.1 MC Royal Stag full bottles (750 ml) – 10 bottles and MO.2 MC Brandy (750 ml) 10 bottles were seized in the presence of mediators under cover of Ex.P.3 mediators report.

PW.2 further identified both the accused persons before the court as the person who confessed their guilt in his presence.

12]The learned counsel for accused cross examined PW.2 alleging that this mediator not at all gone to anywhere much less to the place of seizure along with police party, hence the question of seizing anything from the possession of accused does not arise, but put his signature only at Police station. In his cross examination PW.2 did not state anything in contra to his chief examination. Though it is suggested to PW.2 in his cross examination that 5

CC 437 of 2015

the scene of seizure is a busy locality but if one has taken into consideration the time of seizure which is at 6 a.m., though the locality might be busy in general but at relevant point of time, one can except the availability of huge number of people at the scene. Even otherwise

PW.2 is working as VRO and categorically deposed about details of confession and seizure as described in Ex.P.3 seizure report. If that is the case, when there is nothing to suggest that this witness deposing any falsehood against accused muchless to show that he is having any animosity against accused to do so, his evidence both in his chief as well as in cross examination which is corroborating the case of prosecution is worthy of consideration, thus reliable.

13]Apart from this mediator, PW.3, the then SI of Police, Amalapuram town P.S. also deposed about his raids made at Bodasakurru bridge so also about apprehension of both the accused under some suspicious circumstances and also about the seizure of MO.1 and MO.2 muchless from their possession. Out of his cross examination also nothing could be elicited to doubt about the genuinity of the seizure of MO.1 and MO.2 that too from the possession of accused No.1 and 2. However, in cross examination also PW.3 admitted that the scribe of mediator’s report under Ex.P.3 who is a police constable as deposed by PW.2, did not mention the batch number of liquor bottles and this witness further added that no batch numbers were not mentioned on those bottles, hence, they were not mentioned in the mediators report. But on verification of Mo.1 and 2 , there are such details on the bottles which show that he seized material without any verification.

14]Even other wise Ex.P.2 mediator’s report also shows that the accused merely said to have made a confession of having to commit theft of some liquor bottles in the month of June 2015 in the wines shop of PW.1 in the manner as described and projected by prosecution. Therefore, though PW.2 and 3 deposed that in pursuance of such confession both the accused led them to Old Regency Clay Production area and consequently seized

MO.1 and MO.2 under Ex.P.3, but either of these two reports have no mention about the details as stated above regarding the date and batch number of the properties seized by 6

CC 437 of 2015

PW.3. Therefore , though it is undoubtedly true that the testimony of PW.2 is very much reliable regarding the seizure of MO.1 and Mo.2, but strictly speaking there is no kind of evidence available on record, to establish the specific details of those items seized by police.

Therefore, though it is undoubtedly true that the testimony of Pw.2 is very much reliable regarding the seizure of Mo.1 and Mo.2 which is supported by PW.3.

15]Nevertheless, there is nothing to suggest that PW.1 is running the wine shop as belt shop but when it is specific case thus that he is running his shop obviously it would be an authorized one muchless recognized by the Government by issuing the required licence. If that is the case, before delivering any stock to a particular shop obviously the batch number and other details will be mentioned on the each and every bottle given to the concerned shops for sale and it is also a general tendency that a stock register will be maintained to show the opening and closing stock on each date. If that is the case, at first instance it is the obligation on the part the PW.1 to verify the stock register and thereafter to specifically mention the batch number and other details pertaining to the stock stolen from his shop.

Even otherwise during course of investigation the concerned Investigating Officer has to call for such stock register and to collect the material regarding the identity details of the bottles stolen from the shop of PW.1.

Even in his cross examination, admittedly PW.1 failed to give any such details of stock alleged to be stolen by unknown offenders. If that is the case, when MO.1 and MO.2 which are liquor and can easily be available in the market. Under such circumstances, when the material particulars such as batch number etc are not elicited from Pw.1 and even there is no material collected by Investigating Officer to assume the same from the record. Therefore, though it might be be true that some stock was committed theft from the shop of PW.1 but the prosecution literally failed to establish that the seized property under MO.1 and MO.2 are the same of that of such stolen property.

16]Hence, even after careful consideration of the oral testimony of PW.1 to PW.4 coupled with Ex.P.1 to P.5 though there is evidence of seizure of Mo.1 and Mo.2 but they are nothing to do with the case on hand much less the theft took place on 26.08.2014. Thus though they 7

CC 437 of 2015

have been seized from the possession of accused, both of them cannot be considered as the receivers of stolen property pertaining to this case, since this ownership of MO.1 and 2 prior to said theft is not established by adducing sufficient evidence. If such being the case, when

MO.1 and MO.2 cannot be termed or branded as stolen property, hence though the testimony of PW.2 and Pw.3 is believable about the seizure of such property from the possession of A.1 and A.2 the same is not suffice to link up the accused with this case. Therefore, this court has no hesitation to conclude that prosecution miserably failed to bring home the guilty of the accused for the charge levelled against them. As a result, they are entitled for clear acquittal.

17]In the result, Accused No.1 and 2 not found guilty for the offence punishable under section 411 of IPC and accordingly, they are acquittal of the same under section 248(1) of

Cr.P.C. Their bail bonds shall stand discharged. Mos.1 and 2 are ordered to be destroyed after lapse of appeal time.

Typed to my dictation, corrected and pronounced by me in the open court this the 28th day of February, 2019.

Sd/- V.Satya Lakshmi Prasanna

Judl. First Class Magistrate, Amalapuram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

P.W.1 : Rajulapudi Ravi

P.W.2 : V.Viswanatham

P.W.3 : Satyanarayana

P.W.4 : M.V.K.Raju

P.W.5 : D.Durga Sekhar Reddy

FOR DEFENCE:---- NIL ----

DOCUMENTS MARKED

FOR PROSECUTION:

Ex.P.1 : Complainant statement.

Ex.P.2 : Mediators report pertaining to the confession.

8

CC 437 of 2015

Ex.P.3 : Mediators report (for seizure)

Ex.P.4 : F.I.R. by PW.4.

Ex.P.5 L: Rough sketch by PW.4.

FOR DEFENCE:---- NIL ----

MATERIAL OBJECTS MARKED

MO.1 : Royal stag full bottles (750 ml) – 10 bottles

MO.2 : MC Brandhy ( 750 ml) of 10 bottles.

Sd/- V.Satya Lakshmi Prasanna

Judl. First Class Magistrate, Amalapuram.

//TRUE COPY//

J.F.C.M., AMALAPURAM

9

CC 437 of 2015

CALENDAR AND JUDGMENT

District of East Godavari.

Calendar of cases tried by Smt V.Satya Lakshmi Prasanna, Judl. First Class Magistrate, Amalapuram.

Date of Offence:12.06.2015

Date of Report or Complaint: 13.06.2015

Date of Apprehension of accused : 15.09.2015

Date of Commencement of trial: 18.11.2016

Date of Close of trial: 26.07.2018

Date of sentence of Order: 28.02.2019

Explanation of delay and remarks : Due to non-production of Prosecution witnesses in time.

Judgment in Calendar Case No.437 of 2015 on the file of the Judl. First Class Magistrate Court, Amalapuram.

1) Elipey Chandra Shekar @ Shekar S/o Sai Babu, aged 31 years, Caste SC-Mala, Krapa Village, Ainavilli Mandal.

2) Dukkipati Lokesh S/o Surya Rao, Aged 24 years, Caste SC-Mala, Krapa village, Ainavilli

...Accused

Mandal.

Offence: Under Section 411 of IPC

Plea of accused : Not guilty

Finding: Not guilty

Sentence : In the result, Accused No.1 and 2 not found guilty for the offence punishable under section 411 of IPC and accordingly, they are acquittal of the same under section 248(1) of Cr.P.C. Their bail bonds shall stand discharged. Mos.1 and 2 are ordered to be destroyed after lapse of appeal time.

Sd/- V.Satya Lakshmi Prasanna

Judl. First Class Magistrate, Amalapuram.

Copies submitted to: The Hon’ble Chief Judicial Magistrate, Rajahmahendravaram.

//TRUE COPY//

J.F.C.M., AMALAPURAM

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :: AMALAPURAM.

Present : Smt.V.SATYA LAKSHMI PRASANNA,

Principal Junior Civil Judge, Amalapruam

Tuesday, the 26th day of February, 2019

O.S.No.119/2018

Between:

Donga Veera Venkata Ramana Rao, S/o Bhagavan Das, Age 43 years, Hindu, Employee, D.No.2-21, Palagummi Village, Amalapuram Mandal, E.G. District.

..Plaintiff.

And

A.V.V.N.M.Saraba Raju, S/o Venkata Ratnam, Age 50 years, Hindu, Panchayat Secretary, Narendrapuram Panchayat, P.Gannavaram Mandal, E.G. District.

..Defendant.

Plaintiff filed this suit against the defendant for recovery of an amount of Rs.1,64,000/- basing on promissory note, with subsequent interest and for costs.

This suit coming on this day for the evidence of P.W.1. before me in the presence of Sri P.Satyanarayana, Advocate for plaintiff and Sri D.V.V.S.Murthy, Advocate for Defendant and this Court delivered the following:-

:: JUDGMENT ::

Plaintiff/P.W.1 is called absent. No representation even at 03.10 p.m.,

Despite of conditional order PW1 failed to appear to proceed with further chief. Hence as it seems that he has no interest in prosecuting the mater, this suit is dismissed for default.

Pronounced by me in open court on this 26th day of February, 2019.

Principal Junior Civil Judge,

Amalapuram.

Appendix of evidence No oral or documentary evidence adduced on either side.

P.J.C.J.

Note: “The parties should apply as soon as possible, for return of all exhibits which they wish to preserve, as the record will be liable to be destroyed after three years from the date of decree or order”.

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :: AMALAPURAM.

Present : Smt.V.SATYA LAKSHMI PRASANNA,

Principal Junior Civil Judge, Amalapruam

Tuesday, the 26th day of February, 2019

O.S.No.119/2018

Between: Donga Veera Venkata Ramana Rao, S/o Bhagavan Das, Age 43 years, Hindu, Employee, D.NO.2-21, Palagummi Village, Amalapuram Mandal, E.G. District.

..Plaintiff.

And

A.V.V.N.M.Saraba Raju, S/o Venkata Ratnam, Age 50 years, Hindu, Panchayat Secretary, Narendrapuram Panchayat, P.Gannavaram Mandal, E.G. District.

..Defendant.

Plaintiff filed this suit against the defendant for recovery of an amount of Rs.1,64,000/- basing on promissory note, with subsequent interest and for costs.

Suit presented on 07.05.2018, filed on 15.06.2018.

Value of the suit is Rs.1,64,000/-; upon which a court fee of Rs.4,125/- is paid under section 26 (c) of APCF and SV Act.

This suit coming on this day for the evidence of P.W.1. before me in the presence of Sri P.Satyanarayana, Advocate for plaintiff and Sri

D.V.V.S.Murthy, Advocate for Defendant and this Court DOTH ORDER AND

DECREE as follows:-

1) That the suit be and same is hereby dismissed for default.

2) That there shall be no order as to costs.

Given under my hand and seal of this court on this 26th day of February, 2019.

Principal Junior Civil Judge

Amalapuram

Particulars of costs. No costs memo filed on either side.

PJCJ

Note: “The parties should apply as soon as possible, for return of all exhibits which they wish to preserve, as the record will be liable to be destroyed after three years from the date of decree or order”.