Kum. V. Sri Rama

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IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF I CLASS FOR PROH &

EXCISE, GUNTUR.

Present: Kum.V.Sri Rama

Spl. Judl. Magistrate of I Class for Proh & Excise, Guntur.

Tuesday, this the 26 th day of November, 2019.

C.C. No. 128 of 2019

BETWEEN: The State: Proh & Excise Inspector, Proh & Excise Station,Guntur-I …Complainant. A N D:

Avula Ankireddy, S/o Ankireddy, Age 42 years, Reddy, R/o RTC colony, 5th line, Guntur Town. …Accused.

This case has come before me on 26.08.2019 for final hearing in the presence of Sri. Asst.Public Prosecutor for the complaint and of Sri. B. Gopi, Advocate for accused and on hearing of both sides and after having stood over consideration till this date, this court has delivered the following:

J U D G M E N T

1.The State Proh & Excise Inspector, Guntur-I had filed the charge sheet against the accused for the offence punishable under Section 34 (a) of A.P Excise

Act, by mentioning in the charge sheet that the place of offence was near buddy bunk in front of Annapurna lodge situated opposite of NTR RTC bus stand in Guntur and that it was within the limits of Proh & Excise Station, Guntur-I and as such it is within the jurisdiction of this court.

2. The brief averments of the charge sheet are as follows:-

That on 02.10.2018, as per the instructions of Assistant Commissioner of

Prohibition and Excise Enforcement Wing, Guntur, P.W1 along with staff/LWs.1 and 2 while conducting raids for Proh & Excise offences and on the eve of Gandhi Jayanthi had reached the place of offence which was near buddy bunk in front of Annapurna lodge situated opposite of NTR RTC bus stand in Guntur at about 4:30 p.m, and on reaching such place they had noticed the accused has standing there by holding a white plastic bag in his right hand and that on seeing the Excise officials in the uniform, the accused had got perturbed and had tried to make an escape. On entertaining suspicion, PW.1 had got detained the accused with the help of his staff and upon due enquiry by PW.1, the accused had admitted that he was in possession of the liquor bottles. It has been further stated in the charge sheet that PW.1 had 2 deputed LW.1 to secure the mediators in Guntur village and after some time, L.W1 had returned and reported that village officers are not available and none had come forward to act as mediators. Later, PW.1 had verified the bag, accused was found in possession of 08 bottles of Ever Shine Premium Classic whisky of 180ml capacity and having decided to proceed under special report, questioned the accused as to his identity particulars and that the accused revealed his identity particulars during such enquiry, and on further verification of the said bottles, they found them as the bottles to be of 180 ml capacity, with company seals labels having inscription on it as ‘FOR SALE IN ANDHRA PRADESH ONLY’ and that their

HEALs were torn out and as such they had decided those bottles to be as duty paid liquor bottles and it has been further stated in the charge sheet that on further enquiry, the accused had confessed that he was not in possession of either the bill or permit with regard to the possession of aforesaid liquor bottles and that the accused had questioned the accused with regard to the source of supply of said liquor bottles, he has confessed that all the liquor shops were closed on the occasion of Gandhi Jayanthi because of with intention to sale the liquor bottles at higher prices. Later, PW.1 had taken one bottle from the seized contraband as the sample for forwarding the same to the chemical analyst and that he had kept the remaining bottles in the same bag, tied the same and had sealed and affixed the identity slips to the sample bottle and also to the bag and with the signatures of

P.W1 and the accused and that after seizing the same, he had effected the arrest of the accused, after explaining to him the reasons for his arrest and that later on PW.1 had got incorporated all the observations that had taken place at the scene of offence into writing in the special report. It has been further mentioned in the charge sheet that the special report was drafted by L.W2 and that it was attested by

PW.1 LWs.1 and 2 and that after informing the reasons of arrest to his friend. It has been mentioned in the charge sheet that after completion of special report at the place of offence, PW.1 had reached Proh & Excise Station,Guntur- I, along with the accused, case property and based on the special report, P.W2 had registered the

Special report, as a case in Cr.No: 45/2018 of Proh & Excise Station, Guntur-I, under

Section 34(a) of A.P Excise Act,1968 and that he had submitted the original FIR to this court and that the copies have been forwarded to all the officer’s concerned and accused had produced before this court for remanding him to judicial custody.

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It has also been mentioned in the charge sheet that sample was sent to the analyst and that the chemical analyst after examining the same had opined that the sample contained THE INDIAN LIQUOR vide R.C.No: 3118/2018 dt. 13.11.2018 in

Sl.No: 3649 with regard to the remaining case property, proposals have been submitted to the Deputy Commissioner, Proh & Excise, Guntur for issuing of confiscation and destruction orders and that after completion of further investigation, L.W5 had filed the charge sheet.

3. After careful perusal of the record and the charge sheet this case was taken on file by taking cognizance of the commission of the offence under Section 34 (a) of A.P Excise Act against the accused and when the accused had appeared

before this Court, copies of relevant documents had been furnished to him under

Section 207 Cr.P.C., and after framing of the charge against the accused under

Section 34 (a) of A.P Excise Act, the accused was examined under Section 239 of

Criminal Procedure Code by reading over the content of the charge or the allegation that was levelled against him in Telugu and on having understood the same, the said accused had pleaded not guilty and claimed to be tried.

4.To prove its case, the prosecution has examined PWs.1 and 2 and

Exs.P1 to P4 and M.O.1 were marked. Evidence of LWs.1, 2 and 5 was given up by the prosecution. Ex.P1 is the special report. Ex.P2 is the FIR. Ex.P3 is the letter of advice. Ex.P4 is the chemical analysis report. Mo.1 is the sample of Ever shine

Premium classic whisky bottle of 180ml capacity.

5.After the evidence of the prosecution was closed, the accused was examined under Section 313 Cr.P.C., by explaining to him the incriminating evidence that was adduced by the prosecution witnesses against him oral and documentary evidence and on having understood the same, the accused had denied the evidence that was adduced by the prosecution witnesses and had reported that he has no defense witnesses to be examined on his behalf and hence the defence evidence was also closed.

6.Now the point determination is:

Whether the prosecution had proved the guilt of the accused for the offence punishable under Section 34(a) of A.P Excise Act beyond all reasonable doubt?

7.After completion of the trial proceedings and upon hearing the version of both the Learned APP and the counsel for the accused, this Court had taken into its 4 consideration the following aspects for appreciating the evidence that was adduced

before this Court and also based on the material placed on record.

8. Appreciation of evidence of the prosecution:-

To bring home the guilt of accused for the offence under Section 34 (a) of A.P.

Excise Act, the prosecution has examined PWs.1 and 2.

a).PW1 in her examination-in-chief had narrated the manner in which the arrest of the accused was effected and the contrabands were seized from him in her presence.

But, during her cross-examination by the counsel for the accused, PW.1 had admitted that she has acted as per the oral instructions of the Assistant

Commissioner and that no written documents were filed depicting the delegation of authority for conducting raids and has admitted that the scene of offence was a busy locality and that no notices was served to the persons to whom the requisition was made to act as mediators. Though P.W1 has stated that L.W1 was deputed fetch mediators, independent witnesses were not examined in this case and P.W1 has stated that accused has not replied with regard to the source of obtaining of liquor bottles by him and P.W1 has further stated that EALS of the contraband were not found and as such the seized liquor bottles were mentioned to be duty paid without

EALS. Both P.Ws.1 and 2 have admitted that columns No.5 (e) (f) and columns 6 (d)

(e) & (f) of Ex.P2 were left blank and P.W1 has stated that he has only detected the case and cannot state the reason as he has not registered the Ex.P2 FIR and P.W2 has also stated that he cannot say the reasons for leaving such columns blank and

P.W2 during his cross-examination has admitted that another case was detected on the same day. From the evidence of P.Ws.1 and 2, this court has drawn the inference that raiding was conducted by P.W1 P&E S.I of Enforcement Task Force and the same was registered by P.W2. Hence, this court has looked into the other aspect for determining the guilt of the accused. Ex.P3 reflected that the sample was alleged to have been received on 02.10.2018 and no date was mentioned by the side of signature of P&E Inspector. As per Form No.66 date of dispatch was mentioned to be 03.10.2018 and the same was received by this court on 25.10.2018 vide CPR No.

218/18 and as per Ex.P4 the sample in Cr.No.45/18 in the above case property number was received by the laboratory on 27.10.2018 and the opinion was rendered on 13.11.2018.

5 9). Relevant Provisions of law, that has been taken into consideration by this

Court for better appreciation of the evidence are as follows:

Section 14 of A.P Excise Act provides that - Possession of excisable articles in excess of the quantity prescribed:-

1.The Government may, by notification, specify the maximum quantity of any intoxicant which a person may have in his possession: Provided that different maxima may be specified for different descriptions or kinds of intoxicants.

2.No person shall have in his possession any intoxicant in excess of the quantity specified under sub-Section 1) except under the authority and in accordance with the terms and conditions of---

a).a license for the manufacture, cultivation, collection, sale, buying or supply of such articles, or

b).a permit granted by such officer, not below the rank of a ( Prohibition and excise Superintendent) as may be prescribed.

Section 15 of A.P Excise Act provides that-

Sale or buying of excisable article without license prohibited:--

1. No person shall sell or buy an intoxicant except under the authority and in accordance with the terms and conditions of a license granted in this behalf: Provided that a person having a license to draw toddy from an excise tree, may sell such toddy to a person licensed to buy toddy under this act without obtaining a license for such sale but subject to such restrictions and conditions as the Commissioner may, by general or special order, specify.

2. A license for sale or buying under sub-section (1) shall be granted--

a). by the (Prohibition and excise Superintendent), if the sale or buying is within a district:

b). by the Deputy Commissioner, if the sale or buying is in more than one district within his jurisdiction; and

c). by the Commissioner, if the sale or buying is in an area within the jurisdiction of more than one Deputy Commissioner; Provided that subject to such conditions as may be determined by the Commissioner, a license for sale or buying granted under the excise law in any other part of India may be deemed to be a license granted under this Act. 3). Nothing in this section shall apply to the sale of any liquor lawfully procured by any person for his private use and sold by him or on his behalf of his representative in interest upon his quitting a station or after his decease.

4). Notwithstanding anything in sub-sections (1) and (2), no club or a hotel shall supply liquor to its members or customers on payment of a price or any fee or subscription except under the authority and in accordance with the terms and conditions of a license a granted in that behalf by the Commissioner on payment of such fees as may be fixed by him according to scale of fees prescribed therefor.

Section 34 of Act connotes:

“Penalties for illegal import, etc.:- Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any license or permit granted or issued under this Act.: a. imports, exports, transports, manufacturers, collects or possesses or sells any intoxicant; or b. c.

6 d. e. f. g. h. i.

shall on conviction be punished –

13. In the case of an offence falling under clause (a), (I). Where the intoxicant involved in the offence is less than such quantity as may be notified in this behalf with imprisonment for a term which shall not be less than six months but which may extend up to three years and with fine which shall not be less than rupees five thousand but which may extend up to rupees twenty thousand:

ii.) Where the intoxicant involved in the offence is not less than the quantity notified as aforesaid with imprisonment for a term which shall not be less than (three years) and which may extend up to five years and with fine which shall not be less rupees ten thousand” Section 59 of A.P Excise Act provides that -

Any person arrested under this Act, shall be informed, as soon as may be, of the grounds for such arrest and save as otherwise expressly provided in this Act, the provisions of the (Code of Criminal Procedure, 1973), relating to arrests, detention in custody, searches, summonses, warrants of arrests, search warrants, the production of persons arrested and the disposal of things seized shall apply, as far as may be, to all actions taken in these respects under this Act.

10.After appreciating the evidence that was adduced by the prosecution witnesses PWs.1 and 2 and also upon the perusal of the averments that were stated in the documents which were marked through PWs.1 and 2, this Court had opined as follows in answering the point that was framed against the accused, and had found the accused to be not guilty of the offence punishable under Section 34 (a) of A.P Excise Act after taking into consideration the following aspects, which had formed the reasonable grounds for the acquittal of the accused.

11. Reasons for the finding:

1. This court had opined that – since, the stock that was seized from the possession of the accused was 08 bottles of Ever Shine Classic whisky each of 180 ml capacityhad been seized from the possession of the accused and the accused is said to have committed an offence in view of the Notification in G.O.Ms. No: 274,

Revenue dated 21.7.2014, issued under Section 14 (1) of A.P. Excise Act,

1968 effective from 22.7.2014, which specifies the maximum quantity of the intoxicants which a person may have in his possession at a time without a permit or license with effect from 22.7.2014. They are as follows:- i. Indian made Foreign Liquor : a). Six (6) Quart bottles each 750 Ml or

b). Six (6) Pint bottles of each 375 Ml or

c). Six (6) Nip bottles each 180 Ml or

d). Twelve (12) Dip bottles each 90 Ml. ii. Foreign Liquor : Six (6) Quart bottles each 750 Ml.

iii. Denatured Spirit : Three (3) Bulk Liters iv. Methylated Spirit : Three (3) Bulk Liters v. Beer : Twelve (12) bottles each 650 Ml.

7 vi. Toddy : Two (2) Bulk Liters.

vii. Rectified Spirit : No quantity viii. Intoxicating drugs : No quantity

Even though, the act of being in possession of 08-180ml bottles of Ever

Shine Premium classic whisky without having valid permit or license amounts to an offence as per the afore cited G.O.M.S.NO.274, it is for the prosecution to prove the guilt of the accused beyond all reasonable doubt in respect of other aspects such as whether the accused was really in possession of the contraband and was selling the same without having valid permit or bill or license and also as to its source of supply to the accused, whether the contraband was actually seized from the accused by duly following the procedure as envisaged under the provisions of

Section 100 of Criminal Procedure Code or not and the prosecution is also expected to prove that the sample that was seized from the accused was intact till the time it was forwarded to this court for forwarding it further to chemical analyst and that no tampering was done in respect of the seized liquor bottles.

In addition to the above stated reason, as per Sec.7 of Prohibition Act,

the possession of the liquor in violation of Excise Act, only is an offence

and the Honourble AP High Court has referred to G.O.Ms.No.268 Revenue

dt.1.4.1997 which was issued under Section 14(1) of the A.P Excise Act,

with effect from 18.4.1997 in delivering its verdict in the cases of

1) K.Narasimha and others Vs. State represented by P.P, 2004(1) ALT (Crl.) 224 AP;

2) K.Prabhu S/o. Rukma Goud Vs. the State of A.P reported in Criminal Petition No.2104 of 2012;

Wherein it was held that an individual can posses six bottles of

Indian Liquor of 750 ml each without any permit and in respect of G.O.Ms.

No: 274, Revenue dated 21.7.2014, issued under Section 14 (1) of A.P.

Excise Act, 1968 effective from 22.7.2014, no subsequent reference was

made by the Honourable AP High Court for assessing the offence under

Sec.34(a) of A.P. Excise Act,1968 with regard to the valid possession of

permissible limit of liquor bottles without having any permit or license,

but subsequent amendment was carried out to the AP Excise Act, 1968

and G.O.M.S.No.274 Revenue Dt.21.07.2014 was notified under Sec.14 in

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Notification No.7 as 7(b). Hence, this court has taken G.O.Ms.No.274,

Revenue dt 21.07.2014 for assessing the liability of the accused with

regard to the invalid possession of liquor bottles beyond permissible limit

without having any permit or license in that regard and the instant case,

the accused is said to have committed offence under Section 34(a) of A.P.

Excise Act. This court has also looked into the other legal aspects for

assessing the guilt of the accused.

2. It is a well settled principle of law that in cases where the

accused are not arrested from the scene of offence itself, or the accused

is not known to the eye witnesses prior to the crime in question, the

identity of the accused has to be established by conducting test

identification parade. If this procedure has not been gone through, the

identity of the accused for the first time in the court room has no

evidentiary value and the accused deserves, in such cases, to be entitled

to acquittal.

It was held so in the case of K.Sriramulu Vs State (D.H. Nasir,J) (A.P)

1998(1) ALT (Crl.) 89 (A.P). In the instant case, even though, accused was alleged to have been arrested at the scene of offence, as the self-serving statements of PWs.1 and 2 are not admissible and as there is no further corroboration in this aspect and moreover, this court has noticed that columns No. 5

(e) and (f) of Ex.P2 were left blank.

3) Another important factor which deters the court from arriving at a definite conclusion that the accused was responsible for committing the crime in question is the absence of any proposition whether the Investigating officer was in possession of any secret information which prompted him to lay the raid. Nothing

has come on record to show whether any such secret information was

received or whether it was reduced to writing or whether a copy thereof

was sent to the superior officer. In the absence of this evidence, the

implication of this accused in the commission of crime falls under the

cloud which aggravates the doubtful proposition of the case. If this evidence was produced it would have served as the conclusive proof to the evidence of the prosecution.

4. The Excise official are the police officials. The confession recorded by

them is inadmissable as hit by Section 25 and 27 of The Indian Evidence

Act. Non-examination of independent witnesses of Panchanama is fatal to

the prosecution case. Seizure proceedings are hit by Section 27 of the

Evidence Act. Only three sample bottles were produced and no proof was

adduced that all the seized liquor bottles had contained the Indian Liquor

as the chemical analyst of RFSL was not examined as a witness except the

filing of analysis report (EX.P4). Hence it is a fit case for giving the

accused the benefit of doubt. This court had arrived at this opinion based

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of the decision given by the Hon’ble A.P High court in Mudavath Mothia Vs

State of A.P; 2002(1)ALT (Crl.)176(A.P).

4. a) The Hon’ble Supreme Court while deciding the case under NDPS Act, reported in AIR 2017 Supreme Court 3859 has stated that - “the witness denied any search, seizure and recovery from the appellant in his presence. If an independent witness was available and relied upon by the prosecution, his evidence could be discarded without reason, to hold that the police version was the truth. Additional submissions were made with regard to non-compliance with Section 50 of the Act, as there was personal search also and that the

complainant himself could not be the Investigating Officer.” Reliance was

placed on Basappa Vs. State of Karnataka 2014(5) SCC 154; 2014 AIR SCW

1529; that if two views were possible the acquittal ought not to have been

interfered with in appeal.

In the instant case, the complainant and the Investigating Officer are

one and the same i.e., PW.1 and if the accused was known to the

Investigating officer as one involved in another crime, the I.O should have

produced that evidence. But no such evidence was adduced by the

prosecution witnesses. 5.Relying on the decision given by the Hon’ble High Court in the case of Mudavath Mothia Vs. State of AP reported in AP 2002(1) ALT (Crl) 437 (AP), wherein it was held that, “the samples must have been drawn from all the

seized liquor bottles and the prosecution must prove that all the sachets

contained ID liquor.” Relying on this decision and by applying the same principle of law, this court has observed that the samples were not drawn from all the seized liquor bottles. Seizure of the sample was made on 02.10.2018. The Sample

(Mo.1) was alleged to have been sent to chemical examiner on 03.10.2018

as per form No.66 and in Ex.P4 the date of receipt of sample was

mentioned to be on 27.10.2018 and opinion was given on 13.11.2018. In

form No. 66 the date of dispatch was mentioned as 03.10.2018 but this

court has received the sample vide CPR No. 218/18 on 26.10.2018. No

explanation was given as to why the sample bottle could not be sent to

this court till 26.10.2018 for forwarding the samples to the expert for

seeking his opinion. Hence this court has drawn the inference that there is no need to consider the other points that have been raised by the prosecution, as CPR No.218/2018 reveals that the sample was received by this court on 26.10.2018 and no explanation was given by the prosecution in this regard.

This principle of law have been highlightened by the Hon’ble A.P

High court in Babu Saheb @ Babu.s Vs State of A.P 2010(1) ALT(Crl.) 32

(A.P). and also in the case of Valsala Vs. State of Kerala reported in AIR

1994 SC 117 wherein the Hon’ble Supreme court has stated in Para Nos.4

and 5 by opining by stating as follows, “…….. we are constrained to say

that the investigation in this case has been perfunctory and on important

aspects the evidence of concerned officers is highly discrepant and

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unconvincing and does not throw much light. Therefore, the evidence

adduced is wholly insufficient to conclude that what was seized from the

appellant alone was sent to the chemical examiner. Though, this is purely

a question of fact but this is an important link. Both the courts below

have not examined this aspect in a proper perspective. No doubt, the

trafficking in narcotic drugs is a menance to the society but in the absence

of satisfactory proofs, the courts cannot convict”. In this case, there was

delay of more than three months in sending the seized article to the court

and there was no evidence to show that the article was seized and kept in

proper custody in police station and as the sending of the very article

seized to chemical examiner was highly doubtful, the Hon’ble Supreme

Court held that conviction cannot be sustained. The same principle of law was elicited by the Hon’ble Supreme

court and the Hon’ble High Court of AP and Telangana in deciding similar

cases. Relying on the above principle of law, this court is of considerable

opinion that discrepancy between the date of seizure and the date of

forwarding of the samples to the chemical Analyst wholly destroys the

credibility of the charges levelled against the accused. The sample was seized from the accused on 02.10.2018 at 6:00 p.m and the sample was received by this courton 26.10.2018, as the CPR No.218/2018 bears the date of receiving the sample as 26.10.2018In the list of exhibits that were annexed and forwarded along with the charge sheet to the court, the letter of advice EX.P3, seem to have been forwarded on 02.10.2018, and in form No.66

the date of dispatch was mentioned to be as 03.10.2018 the sample was

received by the laboratory on 26.10.2018 and the chemical examiner has given his opinion on 13.11.2018. If this is true, it is incumbent upon the

prosecution to establish in whose custody the sample was kept during the

period from 02.10.2018 to 26.10.2018 and whether the seals were intact

during those days so as to satisfy the court that no tampering was done

with the samples till the same was delivered to the chemical Analyst and

even the discrepancy in the dates of forwarding the samples to the

laboratory had not been satisfactorily explained by the prosecution.

There is no evidence of whatsoever, to depict the fact that whether the

seals allegedly applied on the sample at the scene of the offence were

intact right upto the time when the same were delivered to the concerned

authority at the laboratory. The prosecution has failed to establish the

safe custody of the material objects from the date and time of seizure till

the date and time of the same to have been allegedly handed over to the

chemical Examiner, (even though Ex.P4 bears a printed endorsement on

its top that the samples of liquid was received with correct and seals

intact vide R.C No.3118/2018, this Court did not rely on the same as the

chemical examiner had not been produced as a witness for examining him

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in the open Court and as no corroborating version of the prosecution was

given by the chemical analyst in this regard.

The person who had allegedly delivered the sample at the laboratory has

also not been examined. The officer in whose custody these samples were

kept during the period between the seizure of the samples and handing

over the samples at the laboratory has also not been examined and

nothing has come on record to satisfy the court whether the sample was

kept in safe custody during the intervening period and whether the seals on the samples were intact during that period so as to derive the satisfaction that no tampering was done with the samples.

It is the duty of the prosecution to show as to whom and by whom and on

which date and at what time and at which place the material seized from

the scene of offence was entrusted for safe custody and whether the seals

of the samples were intact at that time. Even if the report of the Chemical Examiner is believed, the absence of proof

that the samples examined by the chemical examiner were the same

which were collected by the Investigating officer at the scene of offence,

clouds the prosecution case with suspicion. Section 34(a) of A.P Excise Act provides that – Penalties for illegal imports etc;- “Whoever in contravention of the Act or of any rule, notification or order made, issued or passed there under or of any license or permit granted or issued under this Act ;-

a).Imports, exports, transports, manufacturers, collects or possess or sells any intoxicant; or ….... Section 34 would be permissible provided a person is in possession of the material without having a license.

Seizure must be affected in accordance with the procedure laid down under Section 100 of Cr.P.C. Therefore, seizure made in violation of law amounts to deprivation of property (Wazir Chand Vs. State of Himachal Pradesh). The accused

has denied that the contraband articles which were seized and produced

before this Court were not seized and produced while they were in their

possession. The accused had also retracted from their alleged confession

made by them earlier before the police. Even though, the burden of proof

is on the accused, a heightened standard of proof in any event is required

to be discharged by the prosecution to establish the foundation facts and

the same having not been done in the instant case.

In State Vs. Arun AIR 2003 SC 801 the Hon’ble Supreme Court held

that where there is no independent witness from the locality, the

prosecution must offer reasonable explanation where it transfers that not

only there were many residences in that locality but also large number of

people assembled at the time of recovery, the selection of outsider as a

seizure witness necessarily castes doubt. In the instant case, no such

explanation was given by the prosecution and no independent witness was

examined.

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12. To conclude, the identity of the accused, and the identity of the

materials seized and examined by the chemical Analyst was not

established by the prosecution to the hilt i.e., beyond all reasonable

doubts and the custody of the samples as well as the non-tampering of

the samples having not been proved, as also the lacuna with regard to the

secret information not having been reduced to writing and not having

been communicated to the officer, superior to the officer who conducted

the raid in advance have rendered the credibility of the prosecution case

to realm of doubt, which makes obligatory upon this court to give the

advantage of benefit of doubt thereof to the accused, even though it is

considered as an offence when the accused was found in excessive

possession of the permissible limit as per the G.O.M.S.NO. 274, Revenue

(Excise) Dept., dt.21.7.2014. Hence the accused is entitled to acquittal of

the offence punishable under section 34(a) of A.P Excise Act.

13. In the result, the accused is found not guilty of the offence punishable under Section 34(a) of A.P Excise Act and therefore, he is acquitted under Section 248(1) of Criminal Procedure Code, in respect of the aforesaid offence. The bail bonds of the accused that were executed by him, shall stand canceled after the expiry of period of six months from the date of pronouncing of this Judgment as per the provision of Section 437 (A) of Criminal Procedure Code. Mo.1 is the sample of Ever shine Premium Classic whisky of 180ml capacity, received by this court vide CPR.No 218 of 2018 shall be destroyed after the expiry of the appeal time as per the provisions of Section 452 of Criminal Procedure Code. Typed to my dictation by the Personal Assistant, corrected and pronounced by me in the open Court, this the 26th day of November, 2019.

Sd/-

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE: --NONE-- PW.1: Ch. Geeta. PW.2: K. Veera Sekhara Rao.

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE:: NIL. Ex.P1 is the special report. Ex.P2 is the FIR. Ex.P3 is the letter of advice. Ex.P4 is the chemical analysis report. MATERIAL OBJECTS: Mo.1 is the sample of Ever shine Premium classic whisky bottle of 180ml capacity.

Sd/-

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

//True copy//

SPLJFCM, GNT.

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IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

FOR PROH & EXCISE, GUNTUR.

CALENDAR AND JUDGMENT

C.C.NO.128 of 2019

DATE OF :- Offence: 02.10.2018 Filing: 22.01.2019 Apprehension of accused: 02.10.2018 Released on bail: 04.10.2018 Commencement of trial: 18.04.2019 Close of trial: 20.08.2019 Sentence or order: 26.11.2019.

Complainant :State : Proh & Excise Inspector, Proh & Excise Station, Guntur-I, (Cr.No. 45/18) Name of the accused : Avula Ankireddy, S/o Ankireddy, Age 42 years, Reddy, R/o RTC colony, 5th line, Guntur Town.

Offence: U/Sec.34(a) of AP Excise Act. Plea of accused: Not Guilty Finding: Found not guilty

Explanation for delay: No delay, the calendar was prepared on the same date of pronouncing the Judgment. Sentence or Order: In the result, the accused is found not guilty of the offence punishable under Section 34(a) of A.P Excise Act and therefore, he is acquitted under Section 248(1) of Criminal Procedure Code, in respect of the aforesaid offence. The bail bonds of the accused that were executed by him, shall stand canceled after the expiry of period of six months from the date of pronouncing of this Judgment as per the provision of Section 437 (A) of Criminal Procedure Code. Mo.1 is the sample of Ever shine Premium Classic whisky of 180ml capacity, received by this court vide CPR.No 218 of 2018 shall be destroyed after the expiry of the appeal time as per the provisions of Section 452 of Criminal Procedure Code.

Sd/-

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

Copy submitted to : The Hon’ble Chief Judicial Magistrate, Guntur.

//True copy//

SPLJFCM, GNT.

1

IN THE COURT OF SPL.JUDL.MAGISTRATE OF I CLASS FOR PROH &

EXCISE COURT, GUNTUR.

Present: Smt. M. Sobha Rani,

III Additional Junior Civil Judge, Guntur,

FAC Spl.Judl. Magistrate of I Class for Proh & Excise, Guntur

Saturday, this the 30 th day of May, 2020.

C.C NO. 562/2016

Between: The State: Sub-Inspector of police, Nallapadu P.S. …Complainant.

And

1. Bandla Narasimha Rao, S/o Krishna Murthy, Age 56 years, Telaga, 1/1 lane, Chandramouli Nagar, Guntur.

2. Bandla Prakasa Rao, S/o Krishna Murthy, Age 42 years, Telaga, 5th lane, Annapurna Nagar, Guntur.

3. Lavu Ramaiah, S/o Narasaiah, Age 72 years, Telaga, Gorantla village, Guntur Rural Mandal.

...Accused.

This case had come before me on 26.05.2020 for final hearing in the presence of the learned Assistant Public Prosecutor for the State and of Sri C. Narendra Babu, Advocate for the accused and after hearing of their arguments and upon perusal of the entire material papers that were placed on record, this Court had passed the following:-

J U D G M E N T

The Sub-Inspector of Police of Nallapadu PShad filed the charge sheet against the accused No.1 to 3 in Crime No.544/2015 for the offences under Sections 324, 448 r/w 34 of Indian Penal Code.

02.The brief averments of the charge sheet is stated as follows:

P.W1 was working as supervisor of Rajkamal Township, Saraswathi

Vidyalayam road, Gorantla village and the land in which Rajkamal

Township was being raised belongs to A1 and that P.W2 had purchased the land from A1 and has started the construction of work. It was mentioned in the charge sheet that there was some more land to A1 at

Rajkamal Township and that there is dispute between P.W1 and A1 with regard to ownership of such land. It was specifically mentioned in the 2 charge sheet that on 09.12.2015 in the morning time, the labour of A1 have started placing plants and that they have started escalating the compound wall which was in the disputed property. It was further mentioned in the charge sheet that as per the advice of P.W2, P.W1 had taken photographs and that A1 having learnt about taking of photographs, at about 2:30 p.m, the accused No.1 to 3 had come to

Rajkamal Township and has assaulted P.W1 with hands and legs and also attacked him with stones as a result of which P.W1 has sustained injuries and that L.Ws.3, 6 and P.Ws.3 and 4 have rescued P.W1 from the hands of the accused. Again the accused No.1 to 3 have criminally trespassed into the cellar of Rajkamal Township and again they have assaulted P.W1 to do away with him and that P.W2 on having come to learnt about the occurrence of the incident, had shifted P.W1 to GGH, Guntur for treatment.

It has also been mentioned in the charge sheet that on 10.12.2015 at about 8:00 p.m, on lodging of report by P.W1 against the accused No.1 to 3, P.W5 has registered the same as a case in Cr.No. 544/15 U/secs.

324, 448 r/w 34 of IPC and took up investigation. During the course of investigation, P.W5 has visited the scene of offence and drawn rough sketch, examined P.Ws.1 to 4 and L.W3 and recorded their statements

U/sec. 161 Cr.P.C. It was further mentioned in the charge sheet that on 15.12.2015, P.W5 has served notices to the accused No.1 to 3 U/sec. 41-

A of Cr.P.C and that L.W7/D. Y.V.R Aditya who gave treatment to P.W1 had issued wound certificate and opined that the injuries of P.W1 were simple in nature and on receipt of such wound certificate, after completion of investigation, P.W5 has filed the charge sheet.

03. This case was taken on file by the Predecessor of this court by taking cognizance of the commission of the offence under Section 324 r/w 34 of IPC against the accused No.1 to 3 and when the accused No.1 to 3 have appeared before this Court, copies of relevant documents had 3 been furnished to them under Section 207 Cr.P.C., and after framing of the charge against the accused No.1 to 3 under Sections 324, 448 r/w 34

IPC, the accused No.1 to 3 were examined under Section 239 of Criminal

Procedure Code by reading over the contents of the charges framed against them in Telugu and on having understood the same, the aforesaid accused No.1 to 3 have pleaded not guilty and claimed to be tried.

04.To prove its case, the prosecution has examined PWs.1 to 5 and exhibits P1 to P5 were marked. Evidence of LW.6 was given up by the prosecution. Evidence of LW.3 was closed by this court as death certificate of L.W3 was filed by learned APP along with the memo dt.

25.04.2019 and hence the evidence of L.W3 was closed. Evidence of

L.W7 was closed as per memo filed by learned APP wherein it was mentioned that the whereabouts of L.W7 were not known. Hence evidence of L.W7 was closed. EX.P1 is the report given by PW.1. EX.P2 is the signature of PW.1 in the report. Ex.P3 is the FIR, Ex.P4 is the rough sketch and Ex.P5 is the wound certificate of PW.1 issued by L.W7.

05.After closure of prosecution evidence, the accused A1 to A3 were examined under Section 313 Cr.P.C., by explaining to them the incrimi- nating evidence that was adduced by the prosecution witnesses against them in their oral and documentary evidence and on having understood the same, the accused No.1 to 3 have denied the evidence that was ad- duced by the prosecution witnesses and had reported that they have no defence on their behalf and hence the defence evidence was also closed.

06. Heard the learned APP for state and the learned counsel for accused.

07.Now the point for the determination is:

Whether the prosecution had proved the guilt of the accused No.1 to 3 for the offences punishable under Sections 324, 448 r/w 34 IPC beyond all reasonable doubt?

08. After completion of the trial proceedings and upon hearing the 4 version of both the Learned APP and the counsel for the accused, this

Court had considered the following aspects for determining the main issue in controversy based on the oral and documentary evidence adduced by both the parties.

09 . Appreciation of evidence of the prosecution:-

As per the provision of Sec.324 of IPC, the main ingredient for constituting the offence is voluntarily caused hurt by means of any instrument for shooting, stabbing or cutting or any instrument which can be used as a weapon of offence which is likely to cause death, or by means of fire, or any heated substance or by means of poison or any corrosive substance or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale to swallow or to receive into blood or by means of any animal. On proof of above ingredient, constituting the offence, the accused shall be liable to be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.

From the evidence of PWs.1 to 5 and also on perusal of Exs.P1, and P5, this court has noticed that abrasions over the back and over the head were noted by the L.W7 and the nature of injury was described to be simple in nature but the prosecution has failed to examine L.W7 in support of his version and no stone was seized by P.W5 with which the assault was alleged to have been committed by accused No.1 to 3 in furtherance of their common intention. In the charge sheet it was mentioned that as per the advice of P.W2, P.W1 has taken photographs, accused NO.1 have come to know about taking of photographs and that at about 2:30 p.m, accused No.1 to 3 have come to Rajakamal Township and have assaulted P.W1 with hands and legs and also attacked P.W1 with stones, resulting which P.W1 has received injury. In support of its

version, the prosecution has failed to establish specific overtact

on the part of each accused in furtherance of their common

5

intention to assault and to use criminal force against P.W1.

Hence, this court is of considerable opinion that in the absence of specific overtacts by each accused in furtherance of their common intention, accused No.1 to 3 cannot be held to be liable U/sec. 34 of

Indian Penal Code. Such meeting of minds or criminal conspiracy among the accused can be either at the spur of the moment or can be the consequence of their prior meeting of minds. In the instant case, neither of the above two probabilities could be inferred from the facts of this case as it was not specifically mentioned that the overtacts of beating

P.W1 by accused No.1 to 3 was in furtherance of their common intention.

10.On perusal of record, this court has not noticed any photographs which were alleged to have been taken by P.W1 as per the directions of

P.W2 in support of their contention. But P.W1 in his chief-examination has stated that he has taken photographs of the compound wall and the disputed area on receiving of instructions from P.W2 and due to that all the accused along with ten other people have beaten him in the afternoon at about 2:30 p.m on 09.12.2015 and that the same was eye witnessed by L.Ws.3, 6 and P.Ws.3 and 4. P.W1 has stated that he has submitted to the police the relevant photographs pertaining to the fact of work done by the accused and has admitted that he has not mentioned that fact either during his preliminary examination by the police or while recording of Section 161 Cr.P.C statements of the witnesses or in the report filed by him.

11.P.W3 in his chief-examination has stated that all the accused have beaten P.W1 with sticks and stones and have injured P.W1 on his face and that the accused have also dragged P.W1. But during his cross- examination, P.W1 pleaded ignorance in stating the names of the persons who had beaten P.W1 and has deposed that he has come to the court at the request of P.W1. This court has noticed that P.W3 has admitted that he was resident of Swarnabharathi Nagar and that the 6 incident has occurred near KP estate, Gorantla pleaded ignorance in stating the full name of owner of KP Estates which is situated at

Ramannapet, Lakshmipuram and has stated the name of KP estates as

Raju and that he has accompanied P.W1 on his motor bike. The chance

of P.W3 at the scene of offence to eye witness the occurrence of

the incident could not be established by the prosecution and

moreover, P.W3 has stated that all the accused No.1 to 3 have

beaten P.W1 with sticks and stones which was not narrated by

P.W1 either in his chief-examination. In the report lodged by P.W1 it was mentioned that accused No.1 to 3 at about 2:30 p.m on 09.12.2015 have come to the apartments and have called P.W1 come down and that they have assaulted him with stones, hands and legs and that he was rescued by his workers and that later P.W1 was taken to the parking place, he was made to lay down and that intimation was given to

P.W2 and that once again accused No.1 to 3 by committing trespass have entered into the parking place and all the accused No.1 to 3 have tried to kill him by placing their legs on his throat and by pressing his throat with their legs and that at that time he was rescued by his workers and that accused NO.1 to 3 were send away by the workers. P.W1 further stated in his report that he was in unconscious state due to the assault and usage of criminal force committed by accused No.1 to 3 and that later he was shifted to Government hospital by his owner P.W2. In the report it was not mentioned that P.W3 has accompanied P.W1 on his motor bike and

P.W3 has only stated the name of the owner of KP estates as Raju and has given aggravated version of P.W1 being beaten by accused No.1 to 3 with sticks and stones and has failed to state the names of the persons who has beaten P.W1 and has not identified the accused A1 to A3 to be the persons who have beaten P.W1 as on the date of commission of the alleged offences.

12. From the evidence of P.W4, this court has noticed that it was 7 mentioned that P.W3 and P.W4 have separated P.W1 from the hands of the accused and P.W4 failed to state the names of the persons who have beaten P.W1 and has stated that he has no prior acquaintance with the accused. During his chief-examination, P.W4 has stated that he was resident of Sivareddypalem and that the incident had taken place on 09.12.2012 at about 2:00 p.m, near Rajkamal apartment, Gorantla. This court has noticed that the date of occurrence of the incident was described to be on 09.12.2015 at about 2:30 p.m and this court found contradiction in the evidence of P.W4 in mentioning the date of occurrence of the alleged incident. Further, P.W4 has stated that all the accused persons have beaten one clerk with stones and that they have also dragged that person and during his cross-examination he has stated that all the accused and 12 other persons have beaten the injured person and that one Raju who was the builder of KP estates had taken him to the police station. The report filed by P.W1 it was not mentioned by P.W1 that he was dragged by the accused No.1 to 3. Prosecution has failed to explain the chance of presence of P.W4 at the scene of offence and the probability of his eye witnessing the occurrence of the incident.

(a) During cross-examination of P.W1, P.W1 has stated that P.W2 has brought two other constables to the scene of offence at about 3 to 4:30 p.m and that he has went to the police station along with P.W2 and two other constables and that on observing bleeding injuries over his head, the concerned C.I has advised him to go to the hospital and to get the treatment. On the other hand, P.W2 during his chief-examination has stated that on receiving the phone call that P.W1 was again beaten and the situation was tense, P.W2 has went to Nallapadu police station and that along with one constable he has come to the site by 3:00 p.m. P.W2 has specifically stated that he has noticed P.W1 with injuries over head and that he was unconscious. More specifically, P.W2 stated that accused

No.1 to 3 and the others were standing at a distant place as P.W2 has 8 arrived to the scene of offence along with the police. More specifically,

P.W2 stated that he has given CC T.V footage to the Sub-Inspector of police of Nallapadu P.S. On perusal of the record, this court did not notice the filing of C.C T.V footage.

(b) During cross-examination, P.W2 has admitted that he know accused No.1 since 2012 and that disputes have arisen between himself and A1 in the year 2014 and that he has filed a civil suit vide O.S

No.609/15 on the file of Hon’ble II Addl. District Judge and that the accused has also filed O.S No.35/16 on the file of the same court and that another case was also filed against him (P.W2) by the children of A1.

P.W2 during his cross-examination has added that private complaint was also lodged by the accused against him U/sec. 420 of IPC. P.W2 has specifically admitted that he has filed the suit against accused No.1 in

O.S No. 609/15 for the reason that the accused has not registered the

sale deed in his favour even though the same was executed by him and

P.W2 admitted that all the cases that were filed by the accused as well as by himself were pending for their disposal and has stated that accused

No.1 to 3 along with 10 other persons have beaten P.W1 and on receiving of such information from his workers, he has reached Rajkamal township along with one constable. P.W2 has stated that the dispute which has arisen at Rajkamal township was in respect of construction of Rajkamal apartments which was sold by the accused and that the entire construction of the apartment was made within an extent of 896 square yards of site and that the remaining land was vacant land. P.W2 further stated that in respect of the remaining vacant site sale deed was executed by the accused and that it was not registered and more

specifically P.W2 has admitted that the cases were pending

before the courts in respect of such vacant site. This specific

admission by P.W2 has made this court to entertain the doubt in determining the guilt of the accused for the offence of criminal trespass, 9 as the title in respect of such disputed vacant site was still pending

before the court and as the right with regard to the ownership of such

vacant site was not conclusively determined. Moreover, P.W2 has also admitted that in respect of the disputed remaining vacant site the accused has pleaded in his written statement that the signatures on the alleged sale deed were not that of the accused and that the accused has filed a petition before the concerned court for referring such document to an expert for seeking his opinion in respect of the disputed signatures and P.W2 has also admitted that for the same reason that the signatures on the alleged sale deed were forged, the accused has filed a private complaint against him. At this juncture, P.W2 has added that even before lodging of the aforesaid cases the cause of action has arisen when the accused No.1 to 3 along with their henchmen have beaten P.W1. But subsequently, during his cross-examination P.W2 has admitted that even prior to the date of occurrence of the incident since August, the exchange of legal notices have occurred between them in respect of such dispute and that accused No.1 had conveyed his disinterest in entering into a compromise on appearing before DLSA on 21.08.2015 and P.W2 has admitted that he was summoned in LAC No.1877/15 for obtaining of his intention with regard to entering into a compromise and

P.W2 has also admitted that by the time he has reached the scene of offence along with one constable, the entire incident had happened and he has not eye witnessed the same and P.W2 has added that on seeing the images captured in C.C footage he has identified that accused had committed the offence. P.W2 during his entire cross-examination has not spoken about the specific overtacts on the part of accused No.2 and 3 in furtherance of their common intention and the admission by P.W2 with regard to exchange of legal notices prior to the occurrence of the incident and the aspect of P.W2 being summoned in LAC No.1877/15 shows that the disputes were pending before the regular courts and that 10 the ownership was not yet established to hold the accused No.1 to 3 liable to be punished for the offence U/sec. 448 of IPC.

© On verifying Ex.P3, this court has noticed that column No.14 of

Ex.P3 was left blank and that no stones were seized at the scene of offence. This court has also noticed that L.W7 the CMO who has issued the wound certificate was not examined which was fatal to the case of the prosecution. However, this court has noticed that in column No.8 the reason for the delay in reporting by the informant P.W1 was mentioned to be as undergoing of treatment before coming to the police station. On perusal of the wound certificate issued by L.W7 (which was marked as

Ex.P5 through P.W5) this court has noticed that abrasions were mentioned to be present over the back and on the head of the injured

P.W1 and the reason was mentioned as the assault by known person with stones, hands and legs at Gorantla, Guntur and the nature of injury was described to be of simple in nature. More specifically on perusal of

Ex.P4, this court has noticed that witnesses P.Ws.3, 4 and L.W6

were not shown in the rough sketch and that witness L.W3 was

cited in Ex.P4 rough sketch which was marked through P.W5.

However, the prosecution could not get the witness L.W3 examined and his evidence was closed on the memo dated 25.04.2019 filed by learned

APP along with the death certificate of L.W3.

13. P.W5 during his cross-examination has admitted that the stone which was alleged to have been used by the accused was not secured by him and has stated that such stone was not shown to him by the accused and has admitted that it was his duty in securing the presence of the stone which was alleged to have been used in the commission of the offence. P.W5 has further admitted that in Ex.P5 the probability of infliction of injuries to P.W1 with the alleged usage of stone was not opined by L.W7 and P.W5 has admitted of the presence of disputes between P.W2 and the accused in respect of the vacant site which was 11 left over after erecting of the construction and has admitted that he has not conducted investigation regarding such issue relating to vacant site.

P.W5 has pleaded ignorance with regard to the aspect as to whether A1 has given a complaint against P.W2 on the previous day of lodging of report by P.W1 and that on their refusal to register the same A1 has lodged a private complaint, which was later referred to the station for the purpose of conducting of investigation and for filing of report and that against the same P.W2 has approached the Hon’ble High Court for obtaining of order for quash of the proceedings.

More specifically, during the cross-examination P.W5 has stated that there were two scene of offences in this instant case accused No.1 to 3 have beaten P.W1 in front of Rajkamal township and that later there was continuation of commission of offence by the accused No.1 to 3 who have again beaten P.W1 and have tried to kill him by twisting his neck with their legs. At this juncture, this court has noticed that only one rough sketch was filed which was marked as Ex.P4 and the scene of offence was narrated to be in front of Rajkamal township and that no

another rough sketch was drafted by P.W5. Moreover, P.W5 has

admitted that as per the wound certificate issued (Ex.P5) issued

by L.W7 no marks of injury were inflicted to P.W1 either on his

neck or on his chest and P.W5 has further stated that except

himself none of his staff members have accompanied him or

assisted him in conducting of investigation. P.W5 has further

denied the suggestion that on the previous day of lodging of the

report by P.W1, P.W2 has taken one of their constables to the

scene of offence and that such constable has accompanied P.W2

to the scene of offence. This specific denial by P.W5 has contradicted the statements of P.Ws.1 and 2 who have stated that constables have accompanied to scene of offence along with P.W2. This court has noticed many contradictions in the evidence adduced by the prosecution 12 witnesses and has opined that the prosecution was unsuccessful in establishing its case against the accused No.1 to 3 for the offences punishable U/secs. 324, 448 r/w 34 of IPC.

15. In the result, the accused No.1 to 3 were found not guilty of the offences punishable under Sections 324, 448 r/w 34 of Indian Penal Code and therefore, they were acquitted under Section 248 (1) of Criminal

Procedure Code, in respect of the aforesaid offences. As the accused

No.1 to 3 have obtained station bail and hence, no orders were

pronounced in respect of bail bonds of the accused No.1 to 3.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in the open Court, this the 30th day of May, 2020.

Sd/- M. Sobha Rani

FAC SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE: --NONE--

PW.1:T. Rajanikanth. PW.2:P. Rajeswara Rao. PW.3: Kanaparthy Prakasarao. PW.4: Pothabattuni Vijayabhaskar. PW.5: R.V Sankara Rao.

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE:: NIL.

Ex.P1: Report Ex.P2: Signature f PW.1 on the report. Ex.P3: FIR. Ex.P4: Rough sketch. Ex.P5: Wound certificate of P.W1.

MATERIAL OBJECTS: -- Nil—

Sd/- M. Sobha Rani

FAC SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

//True copy//

FAC Spl.JFCM, GNT.

13

CALENDAR AND JUDGMENT

IN THE COURT OF THE SPL. JUDL. MAGISTRATE OF I CLASS FOR

PROHIBITION AND EXCISE: GUNTUR.

C.C.No.562 /2016

DATE OF :- Offence:09.12.2015 Filing: 28.01.2016 Apprehension of accused: 01.03.2016 Released on bail : 15.12.2015 Commencement of trial : 23.12.2016 Close of trial: 28.05.2020. Sentence or order: 30.05.2020.

Complainant :State: Sub-Inspector of police, Nallapadu P.S.

Name of the accused :

1. Bandla Narasimha Rao, S/o Krishna Murthy, Age 56 years, Telaga, 1/1 lane, Chandramouli Nagar, Guntur.

2. Bandla Prakasa Rao, S/o Krishna Murthy, Age 42 years, Telaga, 5th lane, Annapurna Nagar, Guntur.

3. Lavu Ramaiah, S/o Narasaiah, Age 72 years, Telaga, Gorantla village, Guntur Rural Mandal.

Offences : U/Sec.324, 448 r/w 34 of IPC Plea of accused : Not Guilty Finding : Found not guilty

Explanation for delay: No delay, the calendar was prepared on the same date of pronouncing the Judgment. Sentence or Order: In the result, the accused No.1 to 3 were found not guilty of the offences punishable under Sections 324, 448 r/w 34 of Indian Penal Code and therefore, they were acquitted under Section 248 (1) of Criminal Procedure Code, in respect of the aforesaid offences. As the accused No.1 to 3 have obtained station bail and hence, no orders were pronounced in respect of bail bonds of the accused No.1 to 3.

Sd/- M. Sobha Rani.

FAC SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

Copy submitted to : The Hon’ble Chief Judicial Magistrate, Guntur.

//True copy//

FAC Spl.JFCM, GNT.

1

IN THE COURT OF THE V. ADDITIONAL JUNIOR CIVIL JUDGE, GUNTUR.

Present:- Ms. V. Sri Rama,

Spl. Judl. I Class Magistrate for Prohibition and Excise, Guntur, FAC. V.Addl. Junior Civil Judge, Guntur

Monday, this the 27 th day of May,2018

C.C. NO.390 of 2018

Between: State: Sub-Inspector of Police, Arundelpet PS (Crime No.302/2018)…Complainant.

And:

1. Bodapati Anil, S/o.Suresh, 25 years, 4th Lane, Saradha Colony, Guntur.

2. Kalukuri Bujji, S/o.Venkaiah, 40 years, 15th Lane, Saradha Colony, Guntur.

3. Bodapati David, S/o.Suresh, 22 years, 4th Lane, Saradha Colony, Guntur. 4.Thola Ramana, w/o Lazar, 38 years, 14th Lane, Saradha Colony, Guntur.

… Accused.

This case had come before me on 27-08-2018 for final hearing in the presence of the learned Assistant Public Prosecutor for defacto complainant and

Accused Nos.1 to 4 present inperson and after hearing of their and upon perusal of the entire material papers placed on record, having stood over for consideration till this date, this Court had passed the following:-

J U D G M E N T

The Sub-Inspector of Police, Arundelpet PS, Guntur , had filed the charge sheet against the accused A1 to A4 based on the report lodged by

PW1 before them, by registering the case as a case in Crime No.302/2018 under Section 427, 324, 509 r/w sec.34 of Indian Penal Code.

2.The brief averments of the charge sheet are as follows: That the offence under Section 427, 324, 509 r/w sec.34 of Indian Penal Code had been committed by the accused A1 to A4 at 14th lane, Saradha Colony,

Guntur Town and that it is within the jurisdiction of this Court.

It was mentioned in the charge sheet that as on 12-7-2018 at about 10-00 a.m., ie., on the date of commission of the offence by the 2 accused. PW.1 who is a house wife was living in that locality and her husband was doing coolie works. PWs.2 and 3 are son and daughter of PW.1.

it was described in the charge sheet that while PW.1 was chatting with LW.4, at that time A4 was trashing in front of house of PW.1. intentionally ,on seeing the same LW.4 told PW.1 and PW.1 has asked A4 for the aforesaid act and that A4 had picked up quarrel without reason and that in the mean while

A1 who is relative of A4 had rushed to the spot, pulled the hand of PW.1, .

then PW.1 has through way A1, who has also pulling her jacket . Then PW.2 who has come there has tried to stop A1 from beating PW.2 with stick. At that junction A1 has picked up quarrel , pushed PW.1 and as a result PW.1 had fallen down in the side canal as a result PW.1 has received blood injury on head and also PW.2 received blood injury, on being frightened

PW.2 has closed the house doors. Then A1 to A4 have come to their house, abused in filthy language, started thronging stones and that one stone had hit PW.3 and as such PW.3 has received blood injury. In the charge sheet it was further mentioned that in this connection, a counter case was also registered in Cr.No.303/2018. Immediately the injured person was shifted to

GGH, Guntur for treatment and that Lw.4 and 5 who was present there have eye witnessed the occurrence of the incident and that on 12-7-2018 at 10-00 a.m., PW.1 had lodged the report.

It had been mentioned that on 12-7-2018 at 10-00 a.m., on receiving the report given by PW.1, LW.9 has registered the case, as a case in

Cr.No.302/2018 under Sec.427, 324, 509 r/w 34 of IPC and that he had took up the investigation. During the course of investigation in this case on 12-7- 2018 at 3-40 p.m, he has visited the scene of offence, observed the same and examined Lws.1 to 3 and recorded their detailed statements and prepared scene observation report in the presence of LW.6 and 7 and prepared rough sketch also, secured the presence of Lws.4 and 5, has examined and recorded their respective Sec.161 Cr.P.C. statements. LW.9 has registered a separate case against the complaint party in 3

Cr.No.303/2018, U/s.323,324 r/w. IPC for inflicting injuries to A1. During course of further investigation on 12-7-2018 LW.9 has served notice to the accused A1 to A4 compelling them to attend before the Court when ever they summoned. In the charge sheet, it has been further mentioned after obtaining the wound certificate of PW.2 and 3 from LW.8 and on completion of the investigation, LW.10 has verified the investigation which was done by

LW.9 and has filed charge sheet.

3.On filing of the charge sheet, this case was taken on file under

Section 427, 324, 509 r/w sec. 34 of Indian Penal Code against the accused

A1 to A4 on 21.07.2018.

4.When the accused A1 to A4 have appeared before this Court, copies of the case documents were furnished to them by complying with the requirements as stated under Section 207 of Cr.P.C and the accused were examined under Section 239 Cr.P.C., by explaining them in Telugu, the contents of charge that was framed under Sec.427, 324, 509 r/w sec.34 of

IPC and during their examination on having understood the same, all the accused have pleaded not guilty and claimed to be tried and hence summons were issued to Lws.1 to 3 for ensuring his presence and also for the purpose of conducting the trial proceedings.

5. To prove its case, prosecution had examined Pws.1 to 3 and

Exs.P1 to P4 were marked. Evidence of LWs. 4 to 10, was given up by the learned APP., by making endorsement that “Madam, in view of evidence of

PWs.1to3, evidence of LWs. 4 to 10 are given up ”. After completion of examination of PWs1 to 3, the evidence of the prosecution was closed. As no incriminating evidence was adduced by the prosecution witnesses against the accused, the examination of accused under Section 313 of the Criminal

Procedure Code was dispensed with. Hence upon listening the version of the learned APP and accused A1 to A4 who have appeared in person , this Court had made the following observation for the purpose of answering the point 4 for determination that was framed in this case.

6. Now the points for determination is:-

Whether the prosecution was able to prove the guilt of the accused A1 to A4 for the offence punishable under Section 427, 324, 509 r/w sec.34 of Indian Penal Code beyond all reasonable doubt?

7.After completion of the trial proceedings and upon hearing the version of both this Court had opined that accused A1 to A4 are not found guilty of the offence punishable under Section 427, 324, 509 r/w sec.34 of

Indian Penal Code. For answering the point that was framed against the accused, this Court had taken into consideration the following aspects which had formed the reasonable grounds for the acquittal of the accused, after the appreciation of evidence of the prosecution.

8.Appreciation of evidence of the prosecution:- For answering

Point No.1:- This Court has taken into consideration the depositions of PWs. 1 to 3 which were made by them during their respective examination-in-chief and cross examination and also based upon the averments of entire material that were placed before this Court for the purpose of appreciation of evidence.

9.During the examination-in-chief of PW1, she had stated that “ I know

Lws.2 and 3. I also know all the accused as they are my neighbors. I do not know the fats of the case. My signature was obtained on some white paper.

The concerned police have not examined me”.

At this stage the learned APP has sought the permission this court to declare him as hostile and when permission was accordingly granted to him, in his cross examination PW1 had stated as follows: “It is not true to suggest I know all the case facts and that as the matter has been settled out of the court.

During examination by the police, I have stated that the accused A1 to A4 had beaten me and that I have received injuries during such assault and usage of criminal force by all the accused as stated by me earlier before the police as inEx.P1 and Ex.P2. It is true that we have entered into a compromise and have settled our disputes outside the court and have decided not to contest the case.”.

5

10.During the examination-in-chief of PW2,(Child Witness) he had stated as follows “ PW.1 is my mother and LW.3 is my elder sister. I do not know Lws.

4 to 5. I know all the accused A1 to A4. I do not know the facts of this case in respect of the commission of the offence of assault and usage of criminal force by all the accused against PW.2. The concerned police have not examined me”.

At this stage the learned APP has sought the permission this court to declare him as hostile and Permission was accordingly granted to him, during the Cross-examination by learned APP, PW.2 has stated as follows- “It is not true to suggest that I know all the case facts and that as the matter has been settled out of the court. I am deposing false as stated by me before the police earlier as in Ex.P3 Section 161 Cr.P.C, statement during examination by the police, I have stated that the accused A1 to A4 had beaten PW.2 and that PW.2 have received injuries during such assault and usage of criminal force by all the accused as stated by me before the police as in Ex.P3. ”.

11.During the examination-in-chief of PW3, she had stated as follows “

PW.1 is my mother, PW.2 is my brother. I do not know Lws. 4 to 5. I know all the accused A1 to A4. I do not know the facts of this case in respect of the commission of the offence of assault and usage of criminal force by all the accused against PW.3. The concerned police have not examined me”.

At this stage the learned APP has sought the permission this court to declare him as hostile and Permission was accordingly granted to him, during the Cross-examination by learned APP, PW.3 has stated as follows- “It is not true to suggest that I know all the case facts and that as the matter has been settled out of the court. I am deposing false as stated by me before the police earlier as in Ex.P4 Section 161 Cr.P.C, statement during examination by the police, I have stated that the accused A1 to A4 had beaten PW.3 and that PW.3 have received injuries during such assault and usage of criminal force by all the accused as stated by me before the police as in Ex.P3. ”.

12.Thus the case of the prosecution had become doubtful as the version given by the prosecution witness i.e., PWs. 1 and 3 in the open Court were different from the statements made by them before the Investigating

Officer, as conflict has arisen between the sworn testimony of the witnesses made before the Court and mere unsigned and Un-affirmed statements that were made to a police officer, superior weight and preeminence has

been given to the evidence adduced by the witnesses in the open

6

Court. At this stage as PWs.1 to 3 have turned hostile, the learned APP after examining PWs.1 to 3 has stated before this Court that no useful purpose would be served if other prosecution witnesses were examined and hence the evidence of LWs. 4 to 8 was given up by the prosecution.

13.The prosecution had failed to prove all the ingredients of the offence punishable under Section 427, 324, 506 r/w sec.34 of Indian Penal

Code, had failed to link the accused A1 to A4 with the commission of the offence charged against them, by producing relevant evidence, as Pws.1 to 3 have turned hostile. Hence, as the prosecution could not be established the guilt of the accused A1 to A4 beyond all reasonable doubt and as the evidence adduced by PWs.1 to 3 had not attributed any role to the accused

A1 to A4, even though, the material placed before this court had reflected the aspect of receiving of injuries by PW.2 and 3, yet the same has not been taken into consideration as no incriminating evidence was adduced by the prosecution witnesses as against the accused A1 to A4.

14.In the result, the accused A1 to A4 were not found guilty of the offence punishable under Sections 427, 324, 509 r/w sec.34 of Indian Penal

Code and accordingly, they were acquitted under Section 248 (1) Criminal

Procedure Code. station bail was given to accused A1 to A4 and hence, no orders were passed in respect of bail bonds of the accused A1 to A4.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in the open Court, this the27th day of August,2018

Sd/-V.Sri Rama

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE: --NONE--

PW1: Pola Ramana,

PW.2:Bodaopate Anil.

DOCUMENTS MARKED

7

FOR PROSECUTION: FOR DEFENCE:: NIL

Ex.P1: Signature of PW.1 on the report.

Ex.P2: Section 161 Cr.P.C statement of PW1.

Ex.P2: Section 161 Cr.P.C statement of PW.2.

MATERIAL OBJECTS:: NIL

Sd/-V.Sri Rama

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

8

CALENDAR AND JUDGMENT

IN THE COURT OF THE V.ADDL. JUNIOR CIVIL JUDGE, GUNTUR.

C.C.No.390/ 2018

DATE OF :- Offence: 12-7-2018 Filing: 21-7-2018 Apprehension of accused:-- Released on bail: – Commencement of trial: 23-8-2018 Close of trial: 23.8.2018 Sentence or order: 27.8.2018

Complainant :State : Sub-Inspector of Police, Arundelpet P.S.(Cr.No.302/2018) Name of the accused :

1. Bodapati Anil, S/o.Suresh, 25 years, 4th Lane, Saradha Colony, Guntur.

2. Kalukuri Bujji, S/o.Venkaiah, 40 years, 15th Lane, Saradha Colony, Guntur.

3. Bodapati David, S/o.Suresh, 22 years, 4th Lane, Saradha Colony, Guntur. 4.Thola Ramana, w/o Lazar, 38 years, 14th Lane, Saradha Colony, Guntur.

Offence: U/Sec. 427, 324, 509 r/w sec.34 IPC.

Plea of accused: Not Guilty

Finding: Found not guilty

Explanation for delay:

No delay, the calendar was prepared on the same date of pronouncing the Judgment. Sentence or Order: Accused A1 to A4 were not found guilty of the offence punishable under Sections 427, 324, 509 r/w sec.34 of Indian Penal Code and accordingly, they were acquitted under Section 248 (1) Criminal Procedure

Code.

Sd/-V.Sri Rama

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

Copy submitted to : The Hon’ble Chief Judicial Magistrate, Guntur. Copy to: The Superintendent of Police, Guntur.

1

IN THE COURT OF THE V. ADDITIONAL JUNIOR CIVIL JUDGE,

GUNTUR.

Present:- Ms. V. Sri Rama,

Spl. Judl. I Class Magistrate for Prohibition and Excise, Guntur, FAC. V.Addl. Junior Civil Judge, Guntur

Monday, this the 27 th day of August,2018

C.C. NO.389 of 2018

Between: State: Sub-Inspector of Police, Arundelpet PS (Crime No.303/2018)…Complainant.

And:

1. Kothapalli Durga Rao, S/o.Venkateswarulu, 35 years, 14th Lane, Saradha Colony, Guntur.

2. Kothapalli Bujji, @ Durgamma w/o. Durga Rao, 35 years, 14th Lane, Saradha Colony, Guntur.

3. Kothapalli Sravani, D/o.Durga Rao, 22 years, 14th Lane, Saradha Colony, Guntur. … Accused.

This case had come before me on 24-08-2018 for final hearing in the presence of the learned Assistant Public Prosecutor for defacto complainant and

Accused Nos.1 to 3 present inperson and after hearing of their and upon perusal of the entire material papers placed on record, having stood over for consideration till this date, this Court had passed the following:-

J U D G M E N T

The Sub-Inspector of Police, Arundelpet PS, Guntur , had filed the charge sheet against the accused A1 to A3 based on the report lodged by PW1 before them, by registering the same as a case in Crime

No.303/2018 under Section 323, 324, 509 r/w sec.34 of Indian Penal Code.

2.The brief averments of the charge sheet are as follows: That the offence under Section 323, 324, 509 r/w sec.34 of Indian Penal Code had been committed by the accused A1 to A3 at 14th lane, Saradha Colony,

Guntur Town and that it is within the jurisdiction of this Court.

It was mentioned in the charge sheet that as on the date of commission of the offence by the accused A1 to A3 , PW.1 was eking her 2 livelyhood by selling Vegetables at her house and that her husband was eking his livelyhood by working in GMC Department as private sweeper and that they were blessed with one daughter and two sons.it was mentioned in the charge sheet that PW.1 has thrown away Mesta wrap on the vacant site located between the house of A2 and LW.3 house and then Lw.3 has asked to remove the Mesta wrap for which A2 has agreed and that in the mean while, A1 has interfered in the matter abusing in filthy language as harlot and then LW.1 has asked A2 as to why she was abusing and that it was already told by LW.3 to remove the same. At that moment, A1 being husband of A2, had pulled PW.2 then A1 took a stone, had beaten LW.2 on his head, as result LW.2 has received blood injury and that A1 has also beaten PW.1 with hands and as such PW.1 has fallen down. Later A3 has caught hold of tuft of LW.3 , had beaten LW.3 with hands and as such LW.3 has also fallen down. Due to that Pw.2 has thrown stones at the house of

A1, in the meantime Lws.4 and 5 have rushed there and had sent them away. Immediately the injured person was shifted to GGH, Guntur for treatment and that Lw.4 and 5 who were present there, has eye witnessed the occurrence of the incident and that on 12-7-2018 at 10-30 a.m., PW.1 had come to the police station for lodging the report.

It had been mentioned that on 12-7-2018 at 10-30 a.m., on receiving the report given by PW.1, LW.7 has registered the case, as a case in Cr.No.303/2018 under Sec.323, 324, 509 r/w 34 of IPC and that he had taken up the investigation in this case on 12-7-2018 at 5.30 p.m and during the course of investigation, he has visited the scene of offence, observed the same and examined Lws.1 to 3 and recorded their detailed statements and prepared rough sketch, secured the presence of Lws.4 and 5 has examined and recorded their respective Sec.161 Cr.P.C. statements and that during the course of further investigation, on 12-7-2018 LW.7 has served notice to the accused compelling them to attend before the Court when ever they 3 summoned. In the charge sheet, it has been further mentioned after obtaining the wound certificate of PW.2 from LW.6 and on completion of the investigation, LW.7 had filed charge sheet.

3.On filing of the charge sheet, this case was taken on file under

Section 323, 324 r/w sec. 34 of Indian Penal Code against the accused A1 to

A3 on 21.07.2018.

4.When the accused A1 to A3 have appeared before this Court, copies of the case documents were furnished to them by complying with the requirements as stated under Section 207 of Cr.P.C and the accused were examined under Section 239 Cr.P.C., by explaining them in Telugu, the contents of charge that was framed under Sec.323, 324 r/w sec.34 of IPC and during their examination on having understood the same, all the accused have pleaded not guilty and claimed to be tried and hence summons were issued to Lws.1 to 3 for ensuring their presence and also for conducting the trial proceedings.

5. To prove its case, prosecution had examined Pws.1 and 2 and

Exs.P1 to P3 were marked. Evidence of LWs. 3 to 8, was given up by the learned APP., by making endorsement that “the evidence of LWs.3 to 8 were given up by the prosecution. After completion of examination of PWs1 & 2, the evidence of the prosecution was closed. As no incriminating evidence was adduced by the prosecution witnesses against the accused, the examination of accused A1 to A3 under Section 313 of the Criminal

Procedure Code was dispensed with. Hence upon listening the version of the learned APP and accused, this Court had made the following observation for the purpose of answering the point for determination that was framed in this case.

6. Now the points for determination is:-

Whether the prosecution was able to prove the guilt of the accused A1 to A3 for the offence punishable under 4

Section 323, 324 r/w sec.34 of Indian Penal Code beyond all reasonable doubt?

7.After completion of the trial proceedings and upon hearing the arguments on both sides, this Court had opined that accused A1 to A3 are not found guilty of the offence punishable under Section 323, 324 r/w sec.34 of Indian Penal Code. For answering the point that was framed against the accused, this Court had taken into consideration the following aspects which had formed the reasonable grounds for the acquittal of the accused, after the appreciation of evidence of the prosecution.

8.Appreciation of evidence of the prosecution:- For answering

Point No.1:- This Court has taken into consideration the depositions of PWs.

1 and 2 which were made by them during their respective examination-in- chief and cross examination and also based upon the averments of entire material that were placed before this Court for the purpose of appreciation of evidence.

9.During the examination-in-chief of PW1, she had stated that “ I know

LWs.2, 3 4 and 5. I also know all the accused as they are my neiaghbours

Lws.2 to 5 are also my relatives. I have received small injury while I was falling down at my house due to in insertion of small mirror glass my signature was obtained on some white paper. The concerned police have not examined me”.

At this stage the learned APP has sought the permission this court to declare him as hostile and when permission was accordingly granted to him, in his cross examination PW1 had stated as follows: “It is not true to suggest I know all the facts and that as the matter has been settled out of the court.

During examination by the police, I have stated that the accused A1 to A3 had beaten me and that I have received injuries during such assault and usage of criminal force by all the accused as stated by me earlier before the police as in

Ex.P2. It is true that we have entered into a compromise and have settled our disputes outside the court and have decided not to contest the case.”.

5

10.During the examination-in-chief of PW2, he had stated as follows “

PW.1 is my relative I know Lws. 3 to 5 and also all the accused A1 to A3. One month ago while I was doing my work and have falledn down and received head injury later I was shifted to GGH,Guntur for treatment. I do not know the facts of this case in respect of the commission of the offence of assault and usage of criminal force by all the accused against PW.2. The concerned police have not examined me”.

At this stage the learned APP has sought the permission this court to declare him as hostile and Permission was accordingly granted to him, during the Cross-examination by learned APP, PW.2 has stated as follows- “It is not true to suggest that I know all the case facts and that as the matter has been settled out of the court. I am deposing false as stated by me before the police earlier as in Ex.P3 Section 161 Cr.P.C, statement during examination by the police, I have stated that the accused A1 to A3 had beaten PW.2 and that PW.2 have received injuries during such assault and usage of criminal force by all the accused as stated by me before the police as in Ex.P3. ”.

11.Thus the case of the prosecution had become doubtful as the version given by the prosecution witness i.e., PWs. 1 and 2 in the open Court were different from the statements made by them before the Investigating

Officer, as conflict has arisen between the sworn testimony of the witnesses made before the Court and mere unsigned and Un-affirmed statements that were made to a police officer, superior weight and preeminence has

been given to the evidence adduced by the witnesses in the open

Court. At this stage as PWs.1 & 2 have turned hostile, the learned APP after examining PWs.1 & 2 has stated before this Court that no useful purpose would be served if other prosecution witnesses were examined and hence the evidence of LWs. 3 to 8 was given up by the prosecution.

12.The prosecution had failed to prove all the ingredients of the offence punishable under Section 323, 324 r/w sec.34 of Indian Penal Code, had failed to link the accused A1 to A3 with the commission of the offence charged against them, by producing relevant evidence, as Pws.1 & 2 have 6 turned hostile. Hence, as the prosecution could not be established the guilt of the accused A1 to A3 beyond all reasonable doubt and as the evidence adduced by PWs.1 & 2 had not attributed any role to the accused A1 to A3, even though, the material placed before this court had reflected the aspect of receiving of injuries by PW.1 and 2, yet the same has not been taken into consideration as no incriminating evidence was adduced by the prosecution witnesses as against the accused A1 to A3.

13. In the charge sheet filed by the SHO of Arundelpet PS under Sec.323, 324 r/w 34 of IPC, station bail was given to accused A1 to A3 and hence, no orders were passed in respect of bail bonds of the accused A1 to A3.

14.In the result, the accused A1 to A3 were not found guilty of the offence punishable under Sections 323, 324 r/w sec.34 of Indian Penal Code and accordingly, they were acquitted under Section 248 (1) Criminal

Procedure Code.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in the open Court, this the27th day of August,2018

Sd/-V.Sri Rama

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE: --NONE--

PW1: Pola Ramana, PW.2:Bodaopate Anil.

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE:: NIL

Ex.P1: Signature of PW.1 on the report. Ex.P2: Section 161 Cr.P.C statement of PW1. Ex.P3: Section 161 Cr.P.C statement of PW.2.

MATERIAL OBJECTS:: NIL

Sd/-V.Sri Rama

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

7 8

CALENDAR AND JUDGMENT

IN THE COURT OF THE V.ADDL. JUNIOR CIVIL JUDGE, GUNTUR.

C.C.No.389/ 2018

DATE OF :- Offence: 12-7-2018 Filing: 21-7-2018 Apprehension of accused:-- Released on bail: – Commencement of trial: 23-8-2018 Close of trial: 23.8.2018 Sentence or order: 24.8.2018

Complainant:State : Sub-Inspector of Police, Arundelpet P.S.(Cr.No.303/2018) Name of the accused :

1. Kothapalli Durga Rao, S/o.Venkateswarulu, 35 years, 14th Lane, Saradha Colony, Guntur.

2. Kothapalli Bujji, @ Durgamma w/o. Durga Rao, 35 years, 14th Lane, Saradha Colony, Guntur.

3. Kothapalli Sravani, D/o.Durga Rao, 22 years, 14th Lane, Saradha Colony, Guntur.

Offence: U/Sec.323, 324 r/w sec.34 IPC.

Plea of accused: Not Guilty

Finding: Found not guilty

Explanation for delay:

No delay, the calendar was prepared on the same date of pronouncing the Judgment. Sentence or Order: Accused A1 to A3 were not found guilty of the offence punishable under Sections 323, 324 r/w sec.34 of Indian Penal Code and accordingly, they were acquitted under Section 248 (1) Criminal Procedure Code.

Sd/-V.Sri Rama

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

Copy submitted to : The Hon’ble Chief Judicial Magistrate, Guntur. Copy to: The Superintendent of Police, Guntur.

9

CALENDAR AND JUDGMENT

IN THE COURT OF THE V.ADDL. JUNIOR CIVIL JUDGE, GUNTUR.

C.C.No.390/ 2018

DATE OF :- Offence: 12-7-2018 Filing: 21-7-2018 Apprehension of accused:-- Released on bail: – Commencement of trial: 23-8-2018 Close of trial: 23.8.2018 Sentence or order: 27.8.2018

Complainant :State : Sub-Inspector of Police, Arundelpet P.S.(Cr.No.302/2018) Name of the accused :

1. Bodapati Anil, S/o.Suresh, 25 years, 4th Lane, Saradha Colony, Guntur.

2. Kalukuri Bujji, S/o.Venkaiah, 40 years, 15th Lane, Saradha Colony, Guntur.

3. Bodapati David, S/o.Suresh, 22 years, 4th Lane, Saradha Colony, Guntur. 4.Thola Ramana, w/o Lazar, 38 years, 14th Lane, Saradha Colony, Guntur.

Offence: U/Sec. 427, 324, 509 r/w sec.34 IPC.

Plea of accused: Not Guilty

Finding: Found not guilty

Explanation for delay:

No delay, the calendar was prepared on the same date of pronouncing the Judgment. Sentence or Order: Accused A1 to A4 were not found guilty of the offence punishable under Sections 427, 324, 509 r/w sec.34 of Indian Penal Code and accordingly, they were acquitted under Section 248 (1) Criminal Procedure

Code.

Sd/-V.Sri Rama

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

Copy submitted to : The Hon’ble Chief Judicial Magistrate, Guntur. Copy to: The Superintendent of Police, Guntur.

1

IN THE COURT OF THE V. ADDITIONAL JUNIOR CIVIL JUDGE, GUNTUR.

Present:- Ms. V. Sri Rama,

Spl. Judl. I Class Magistrate for Prohibition and Excise, Guntur, FAC. V.Addl. Junior Civil Judge, Guntur

Tuesday, this the 28 th day of August,2018

C.C. NO.384 of 2018

Between: State: Sub-Inspector of Police, Arundelpet PS (Crime No.266/2018)…Complainant.

And:

Kanneganti Veeranarayana, S/o.Subramanyam, 40 years, D.No,.3-33 sowpadu village Vatticherukuru Mandal, Guntur District. … Accused.

This case had come before me on 28-08-2018 for final hearing in the presence of the learned Assistant Public Prosecutor for defacto complainant and the accused who has appeared in person and after hearing arguments on both sides and upon perusal of the entire material papers placed on record, having stood over for consideration till this date, this Court had passed the following:-

J U D G M E N T

The Sub-Inspector of Police, Arundelpet PS, Guntur , had filed the charge sheet against the accused based on the report lodged by PW1 before them, by registering the same as a case in Crime No.266/2018 under

Section 323, 325 of Indian Penal Code.

2.The brief averments of the charge sheet are as follows: That the offence under Section 323, 325 of Indian Penal Code had been committed by the accused at 6/19th lane, Brodipet, Guntur Town and that it is within the limits of Arundelpet PS and as such it is within the jurisdiction of this Court.

It was mentioned in the charge sheet that as on the date of commission of the offence by the accused PW.1 has retired from his services as Junior Veterinary Officer in the year 2004. On 12.06.2018, PW.1 has went to District Pensioners association office by hiring an auto to reach Taluk 2

Office, after completion of the work there at about 6.30 p.m., PW.1 has went to the Tea stall situated at 6th lane of Arundelpet opposite to Taluka office. It was further mentioned in the charge sheet that PW.1 along his friend had a cup of Tea and that after he had accompanied his friend till hiring an auto, then while he was crossing the main road of Arundelpet towards Lodge centre, one bike rider who was coming in a rash and negligent manner without blowing horn has driven his vehicle in a high speed, on seeing PW.1, he has stopped his vehicle and then PW.1 has asked the rider as to why he was coming speedily, then rider of the bike had questioned PW.1 as to what

PW.1 has questioned him and that the rider of the bike had beaten PW.1 on his face, pushed his hands and that as a result, PW.1 has fallen down on the road on the spot had received swelling injuries on his right thigh and also to the parts beneath it and also to his right hand wrist. Then, when PW.1 was shouting loudly, then, the accused had escaped on motor cycle from that place and that in the meanwhile, the neighboring persons who have rushed to the spot had shifted PW.1 to GGH, Guntur and at that time, LW.2 and 3 who had come to the hospital had joined PW.1 at Sri Sai Hospital of

Arundelpet, Guntur for better treatment by taking him in an auto. Police have narrated in the charge sheet that the occurrence of offence was due to misunderstanding.

On basing of the report of PW.1, LW.5 has registered the same as a case in Cr.No.266/2018 U/s.323 of IPC on 25-6-2018 at 9-00 p.m. and took up the case for investigation. During course of investigation LW.5 has examined PW.1 and recorded his detailed statement, visited the scene of offence, prepared rough sketch and had examined Lws.2 and 3 and recorded their detailed statements. It was mentioned in the charge sheet that LW.4 the

Medical Officer who has rendered the treatment to PW.1 had issued the

Wound Certificate and had opined that the injuries were Grievous in nature.

As per the wound certificate of PW.1 which was described to be of grievous in nature, LW.5 has added Sec. 325 of IPC to the existing the section 323 of 3

IPC.

During course of further investigation, on 11-7-2018 LW.5 has served notice to the accused compelling him to attend before this Court whenever he was Summoned. In the charge sheet, it has been further mentioned after obtaining the wound certificate from LW.4, LW.6 has filed charge sheet after verifying investigation done by LW.5.

3.On filing of the charge sheet, this case was taken on file under

Section 323, 325 of Indian Penal Code against the accused on 21.07.2018.

4.When the accused have appeared before this Court, copies of the case documents are furnished to him under Section 207 of Cr.P.C and the accused was examined under Section 239 Cr.P.C., by explaining to him in

Telugu, the contents of charges that were framed under Sec.323, 325 of IPC and during his examination on having understood the same, the accused have pleaded not guilty and claimed to be tried and hence summons were issued to Lws.1 to 3 for ensuring their presence and also for conducting the trial proceedings.

5. To prove its case, prosecution had examined Pws.1 Exs.P1 & P2 were marked. Evidence of LWs. 2 to 6, was given up by the learned APP., by making endorsement that “Madam, In view of evidence of PW.1, Lws. 2 to 6 are given up” evidence of LW.2 to 6 was given up by the prosecution and prosecution was closed. As no incriminating evidence was adduced by the prosecution witnesses against the accused, the examination of accused under Section 313 of the Criminal Procedure Code was dispensed with.

Hence upon listening the version of the learned APP and accused who has appeared in person, this Court had made the following observation for the purpose of answering the point for determination that was framed in this case.

6. Now the points for determination is:-

Whether the prosecution was able to prove the guilt of the accused for the offence punishable under Section 323, 4 325 of Indian Penal Code beyond all reasonable doubt?

7.After completion of the trial proceedings and upon hearing the arguments on both sides, this Court had opined that accused is not found guilty of the offence punishable under Section 323, 325 of Indian Penal Code.

For answering the point that was framed against the accused, this Court had taken into consideration the following aspects which had formed the reasonable grounds for the acquittal of the accused, after the appreciation of evidence of the prosecution.

8.Appreciation of evidence of the prosecution:- For answering

Point No.1:- This Court has taken into consideration the depositions of PWs. 1 which are made by him during his examination-in-chief and cross examination and also based upon the averments of entire material that were placed before this Court for the purpose of appreciation of evidence.

9.During the examination-in-chief of PW1, he had stated that “ I do not know the accused. On 12-6-2018 while I was crossing the road, all of a sudden, I felt that some one has pushed me from my back and I have fallen down on the road and received injuries and I do not know the person who was shown to me in this open court. In the hospital, I was examined by the police and have narrated to them that I have received injuries due to falling down on the road as some unknown persons has pushed me from my behind and my signature was obtained on some written papers the contents of which, I am not aware.

At this stage the learned APP has sought the permission from this court to declare him as hostile and when permission was accordingly granted to him, in his cross examination PW1 had stated as follows: “It is not true to suggest that I know all the case facts and that as the matter has been settled out of the court, I am deposing false as stated by me before the police earlier as in

EX.P2 Section 161 Cr.P.C statement of PW.1. ”

10.Thus the case of the prosecution had become doubtful as the version given by the prosecution witness i.e., PWs. 1 in the open Court were different from the statements made by him before the Investigating Officer, 5 as conflict has arisen between the sworn testimony of the witnesses made

before the Court and mere unsigned and Un-affirmed statements that were

made to a police officer, superior weight and preeminence has been

given to the evidence adduced by the witnesses in the open Court.

At this stage as PW.1 has turned hostile, the learned APP after examining

PW.1 has stated before this Court that no useful purpose would be served if other prosecution witnesses were examined and hence the evidence of LWs.

2 to 6 was given up by the prosecution.

11.The prosecution had failed to prove all the ingredients of the offence punishable under Section 323, 325 of Indian Penal Code, had failed to link the accused with the commission of the offence charged against him, by producing relevant evidence, as Pw.1 have turned hostile. Hence, as the prosecution could not be established the guilt of the accused beyond all reasonable doubt and as the evidence adduced by PW.1 had not attributed any role to the accused, even though, the material placed before this court had reflected the aspect of receiving of injuries by PW.1, yet the same has not been taken into consideration as no incriminating evidence was adduced by the prosecution witnesses as against the accused.

12.In the result, the accused is found not guilty of the offence punishable under Sections 323, 325 of Indian Penal Code and accordingly, they were acquitted under Section 248 (1) Criminal Procedure Code. Station bail was given to accused and hence, no orders were passed in respect of bail bonds of the accused.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in the open Court, this the28th day of August,2018

Sd/-V.Sri Rama

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE: --NONE--

PW1: Annavarapu Sambasivarao.

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DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE:: NIL

Ex.P1: Signature of PW.1 on the Statement recorded by police. Ex.P2: Section 161 Cr.P.C statement of PW1.

MATERIAL OBJECTS:: NIL

Sd/-V.Sri Rama

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

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CALENDAR AND JUDGMENT

IN THE COURT OF THE V.ADDL. JUNIOR CIVIL JUDGE, GUNTUR.

C.C.No.384/ 2018

DATE OF :- Offence: 12-6-2018 Filing: 21-7-2018 Apprehension of accused:-- Released on bail: – Commencement of trial: 28-8-2018 Close of trial: 28.8.2018 Sentence or order: 28.8.2018

Complainant:State : Sub-Inspector of Police, Arundelpet P.S.(Cr.No.266/2018) Name of the accused :

1. Kanneganti Veera Narayana, s/o.Subrahmanayam, 40 years, D.No.3-33, Sowpadu village, Vatticherukuru Mandal, Guntur District.

Offence: U/Sec.323, 325 of IPC.

Plea of accused: Not Guilty

Finding: Found not guilty

Explanation for delay:

No delay, the calendar was prepared on the same date of pronouncing the Judgment. Sentence or Order: Accused was found not guilty of the offence punishable under Sections 323, 325 of Indian Penal Code and accordingly, they were acquitted under

Section 248 (1) Criminal Procedure Code.

Sd/-V.Sri Rama

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

Copy submitted to : The Hon’ble Chief Judicial Magistrate, Guntur. Copy to: The Superintendent of Police, Guntur.

8 9

CALENDAR AND JUDGMENT

IN THE COURT OF THE V.ADDL. JUNIOR CIVIL JUDGE, GUNTUR.

C.C.No.390/ 2018

DATE OF :- Offence: 12-7-2018 Filing: 21-7-2018 Apprehension of accused:-- Released on bail: – Commencement of trial: 23-8-2018 Close of trial: 23.8.2018 Sentence or order: 27.8.2018

Complainant :State : Sub-Inspector of Police, Arundelpet P.S.(Cr.No.302/2018) Name of the accused :

1. Bodapati Anil, S/o.Suresh, 25 years, 4th Lane, Saradha Colony, Guntur.

2. Kalukuri Bujji, S/o.Venkaiah, 40 years, 15th Lane, Saradha Colony, Guntur.

3. Bodapati David, S/o.Suresh, 22 years, 4th Lane, Saradha Colony, Guntur. 4.Thola Ramana, w/o Lazar, 38 years, 14th Lane, Saradha Colony, Guntur.

Offence: U/Sec. 427, 324, 509 r/w sec.34 IPC.

Plea of accused: Not Guilty

Finding: Found not guilty

Explanation for delay:

No delay, the calendar was prepared on the same date of pronouncing the Judgment. Sentence or Order: Accused A1 to A4 were not found guilty of the offence punishable under Sections 427, 324, 509 r/w sec.34 of Indian Penal Code and accordingly, they were acquitted under Section 248 (1) Criminal Procedure

Code.

Sd/-V.Sri Rama

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

Copy submitted to : The Hon’ble Chief Judicial Magistrate, Guntur. Copy to: The Superintendent of Police, Guntur.

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