Vacant Fac Smt. A. Geetha Vani, Pjcj, Atp

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IN THE COURT OF ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS,

ANANTAPURAMU

Present:- Smt.A.Geetha Vani,

Prl. Junior Civil Judge, Ananthapuramu FAC Additional Judicial Magistrate of First Class, Anantapuramu. Tuesday, this the 20th day of February 2018.

C.C.No.1784/2017

Between:-

State : Represented by the Sub Inspector of Police, Anantapuramu II Town Police Station.

… Complainant

And

1. Derangula Vadde Mohan, aged 56 years, S/o D. Subbarayudu, Vanipenta Village & mandal, Kadapa District. Now R/o Indiramma Colony Rapthadu Village, Ananthapuramu District. Aadhar No.326322251667.

… Accused

This case was come up for final hearing before me on 15-02-2017 in the presence of Assistant Public Prosecutor for the complainant and of Sri S. Subramanyam, Advocate for Accused and upon hearing both sides and on perusing the material on record and the matter having stood over for consideration till this day, and this court delivered the following:-

J U D G M E N T

1]The Inspector of Police, Anantapuramu II Town Police Station filed charge sheet against the accused in Crime Number 121/17

U.sec.457,380 IPC and Cr.No.214/2017 U.sec.457, 380 IPC .

2]The facts of the prosecution case are that in between 02.05.2017 at 12.00 Noon to 03.05.2017 at 7.30 p.m, wherein unknown offenders gained entrance into the house of Pw.1 B. Veerappa by break open the door locks and committed theft of gold ornaments. On the

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complaint of Pw.1. Basing on the police report, police registered a case in

Cr.No.21/2017 U.sec.457,380 IPC of Ananthapuramu II Town PS In between 27.7.2017 17.30 to 28.7.2017 19.00 hours wherein some unknown offenders ained entrance into the house of Pw.3 Talari harinath

Kumar break open the door locks and committed theft of gold ornaments and Samsung Galaxy J2 mobile phone. Basing on the police report of

Pw.3, police registered a case in Cr.No.214/2017 U.sec.457,380 IPC of

Ananthapuramu II town PS. During the course of investigation Pw.4 examined witnesses in Cr.No.121/2017 came to light that Nikon Camara,

Citizen watch were committed theft instead of gold chain in the house of

Pw.1. The gold chain was taken away by the Pw.1’s wife without informing to the Pw.1. Further during the course of investigation Pw.4 examined witnesses in Cr.No.214/2017 came to light that accused committed theft of cell phone Samsung Galaxy J2 mobile phone . But the gold ornaments were not committed theft since they were kept in between the sarees by the Pw.3’s wife with out informing to him. On 22.08.2017 at 5.00 p.m, undercover of mahazar and seized gold, silver ornaments and other stolen items from his possession undercover of mahazarnama in the presence of mediators. On 23.08.2017 Pw.4 produced accused before the Hon’ble Court for Judicial custody by Pw,.4 in Cr.No.225/2017 U.sec.457,380 IPC of Ananthapuramu II Town Police

Station. On 05.09.2017 Pw.4 produced the accused before the Hon’ble

Court under PT warrant in Cr.No.214/17 U.sec.457,380 IPC and in

Cr.NO.121/2017 U.sec.457,380 IPC of Ananthapuramu II Town Police

Station.

3]On 10.09.2017 Pw.4 handed over the NIKON Camera and Citizen watch to Pw.1 in Cr.NO.121On the same day Pw.4 handed over Samsung

Galaxy J2 cell phone to the Pw.3 in Cr.NO,.214/17 U.sec.457. 380 IPC of

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Ananthapuramu II Town Police Station. A separate charge sheet filed against the accused in Cr.No.225/2017 U.sec.457,380 IPC and in

Cr.No.177/2017 U.sec.457, 380 IPC of Ananthapuramu II Town Police

Station.

4]After careful perusal of material on record cognizance of the offence was taken on file Under Section 457, 380 or 411 Indian Penal

Code against the accused.

5]On production of the accused, relevant copies of documents were furnished to them as contemplated Under Section 207 Cr.P.C.

6]The accused has been examined Under Section 239 Cr.P.C for the offence Under Section 457,380 or 411 Indian Penal Code and the charge Under Section 457, 380 or 411 Indian Penal Code was framed, read over and explained to accused in Telugu, for which the accused pleaded not guilty and claimed to be tried.

7] In order to prove the case of prosecution, the prosecution chose to examine PWs.1 to PW.4 and got marked Exs.P.1 to Ex.P.7 besides Mo.1 to Mo.3. On the other hand, neither the witnesses examined nor the exhibits are marked on behalf of the defence.

8]After closure of prosecution side evidence, the accused were examined U/sec.313(1) Cr.P.C. by putting incriminating evidence available from the evidence of prosecution witnesses for which they denied and reported no defence evidence.

9]Heard on both sides and perused the record.

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10] Now the point that arise for determination is:

“Whether the prosecution bring home the

guilt of accused for the offence punishable

Under Section 457 – 380 or 411 Indian

Penal Code beyond all reasonable doubt ?”

11] POINT :-

The learned APP argued that the prosecution examined Pws.1 to 4, Ex.P1 to P7, MO.1 to 3 marked. All the witnesses supported the case of the prosecution, hence prayed to convict the accused. On the other hand the learned counsel for the accused argued that there is no corroboration in between the investigating officer and Pw.2 VRO who was examined stating that he was present at th e time of alleged arrest and seizure of case property. The prosecution failed to examine the eyewitness, hence the accused is not liable for conviction.

12]To substantiate the case of the prosecution, Prosecution examined

Pw.1 B. Veerappa he deposed that on 1.5.2017 he went to Tirupathi on his personal work his father and his mother were in the house situated

D.No.11/1/149, Aravindanagar, 1st cross, Ananthapuramu. On 2.5.2017 his parents locked the house doors and went to Nandyala and on 03.05.2017 house owner D. Krishnaveni made phone call to Pw.1 and informed that their house doors are opened. On 4.5.2017 Pw.1 returned back to his house in the evening hours and observed the commission of theft of sarees three in number and his garments three pairs, cash of

Rs.30,000/-, One gold chain two tulas, camera, wrist watch. On04.5.2017 at 4.00 p.m, went to police station and gave police report. Police recovered his wrist watch and camera MO.1 and 2 are belongs to him.

Pw.3T. Harinath Kumar who is working as constable deposed that 13] on 27.7.2017 at 7.00 p.m, he locked his house doors and went to

Tirupathi to attend a function. On 28.7.2017 he received phone call from his house owner Chidambar Reddy and came to know that some unknown offenders committed theft in the house of Pw.3. Immediately

Pw.3 returned back to his house on 29.7.2017 and observed commission of theft of one gold chain, one pair to gold ear studs, two gold small rings and one cell phone missing. Then he gave police report Ex.P3.

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Subsequently he came to know that the gold ornaments were hidden by his wife in her saree and Pw.3 immediately went to police station and informed the same to police. Police recovered his Samsung Galaxy J2 mobile phone and hte same is marked as MO.3.

14]On perusal of the evidences of Pw.1, Pw.1 and Pw.3 are not hte eyewitenss to the commission of offence and the investigating officer could not examine any eyewitness to the commission of theft. As such this court is of the opinion that the prosecution is failed to prove the offences under sec.457,380 IPC that the accused by lurking house tress pass in the dwelling house of Pw.1 and Pw.3 committed theft.

15]Now coming to Sec.411 of IPC the prosecution examined Pw.2 Y.

Subramanyam VRO that he deposed on 22.8.2017 while he was going to his house Revenue Inspector Anil Kumar made phone call and instructed him to go to II Town PS, Ananthapuramu to act as mediator. Immediately

Pw.2 went to the police station and accompanied to police to Vidyutnagar circle, Ananthapuramu around 3.00 p.m, and there police found the accused and on enquiry the accused disclosed his identity particulars and also confessed the offence and accordingly police seized one watch and one cellphone undercover of mahazarnama Ex.P2. The investigating officer Pw.4 S.Siva Gangadar reddy SI of police deposed that on 3.5.2017 at 5.00 p.m, he received police report from Pw.1 and registered a case in

Cr.No.121/17 U.sec.457,380 IPC and underEx.P4. During the course of investigation he visited the scene of offence and drawn rough sketch

Ex.P5. AT the scene of offence Pw.1 and his wife came to Pw.4 and stated that old ornaments were not committed theft, then Pw.4 re-examined

Pw.1 and his wife and recorded their statements. Further Pw.4 deposed that On 20.9.2017 at 5.00 p.m, while he was present in the police station he received police report from Pw.3 and registered a case in

Cr.No.214/2017 U.sec.457,380 IPC under Ex.P6 and during the course of investigation Pw.4 also visited the scene of offence in Cr.No.214/17 and drawn rough sketch under Ex.P7. At the scene of offence Pw.3 stated to

Pw.4 that the gold ornaments were not committed theft. Then Pw.4 re- examined Pw.3 and recorded his statement. Pw.4 further deposed that on 22.8.2017 he arrested the accused in Cr.No.225/17 U.sec.457,380 or 411

IPC of Ananthapuramu II Town Police Station and seized case property concern in the present crimes also and produced the accused before the court for remand in Cr.No.214/17. In the cross examination Pw.4 deposed

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that “the finger prints only tallied with Cr.No.225/17 and not tallied in

Cr.No.221/17 and in Cr.No.214/17. On perusal of the evidence of Pw.3 who is said to be acted as mediator deposed in cross examination that the alleged place of arrest the seizure at Vidyutnagar Circle,

Ananthapuramu will not come under his perview of his jurisdiction. It clearly shows that the investigating officer Pw.4 failed to secure near by mediators of the locality of alleged arrest and seizure. Further Pw. 4 in his cross examination categorically admits that the finger prints of the accused are not tallied with the finger prints collected by clues teem at the scene of offence in Cr.No.121/17 and in 214/17 i.e., the present cases. When such is a case it creates a doubt in the mind of the court about the seizure of the stolen properties in Cr.Nos.121/17 and

Cr.No.214/17. Further the investigating officer failed to adduce any evidence before this court that the finger prints obtained by the clues team at the scene of offence in Cr.No.121/17 U.sec.457,380 IPC of II Town

Police station and also in Cr.No.214/2017 u.sec.457,380 of

Ananthapuramu II Town Police Station belongs to the accused. Further the investigating officer failed to follow the procedure established u.sec.100(4) of Cr.P.C. As per Sec.100(4) crpc 16]Sec.100(4) Cr.P.C mandates that at the time of seizure of the case property two respectable inhabitants must be present, but in the present case though there was an ample time, the investigating officer is failed to secure independent witnesses as mahazardars at the time of alleged arrest and seizure of the case property. On perusal of Sec.100(4) Cr.P.C.

Section 100 (4) and (5) is as follows :

100 Cr.P.C : Persons in charge of closed place to allow search:-

Before making a search under this Chapter, the officer or

other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a

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witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

17]The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless especially summoned by it.

It has to be seen that the legislature in their wisdom have used the words "two or more independent and respectable inhabitants of the locality".

At this juncture, this Court relied upon the decision reported in :

2010(1) ALT (Crl.) 134 (A.P)

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT

HYDERABAD.

R.KANTHA RAO, J.

Crl.A.No.534 of 2004 - Decided on 31-07-2009.

Tadigiri Rambabu @ Bulli and another

Vs.

State of Andhra Pradesh.

and argued that failure to secure independent witnesses is

fatal to the case of the Prosecution.

In the above citation the honourable High Court opined in Para No. 9 ---------- If really, the circumstances indicate that it was not possible for the arresting police officer to secure the

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mediators at the given time, the Court cannot find fault with the arresting police officer in not securing the mediators. However when there is ample opportunity for the police officer to secure the presence of mediators and he fails to do so, it can be considered as a lapse on the part of the investigating agency. In the instant case, the appellants were arrested in a busy locality and on the

Christmas day.

18]As about discussion this court is of the opinion that the prosecution is failed to prove this be and all reasonable doubts and the accused are entitled for acquittal.

19]In the result, accused found not guilty for the offence punishable u/sec. 457, 380 or 411 IPC and he is acquitted U/sec. 248 (1) Cr.P.C.

The Superintendent District Jail, Anantapuramu is hereby directed to release the accused forthwith, if he is not required in any other case.

MO.1 and MO.2 already given to interim custody to Pw.1 and Mo.3 already given interim custody to Pw.3 are stands good after appeal time is over.

[Typed to my dictation to Stenographer, corrected and

pronounced by me in open Court, this the 20th day of February, 2018]

Sd/- Smt. A. Geetha Vani,

Prl. Junior Civil Judge, Ananthapuramu FAC Addl. Judicial Magistrate of First Class, Anantapuramu.

Appendix of evidence

Witnesses examined for

Prosecution Defence

P.W.1 B. Veerappa None. P.W.2 Y. Subramanyam P.W.3. T. Harinath Kumar P.W.4. S. Siva Gangadhar Reddy

Exhibits marked on behalf of Prosecution

1. Ex.P.1: Complaint by Pw.1.

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2. Ex.P.2: C.C of mahazar Dt. 22.08.2017 by Pw.2.

3. Ex.P3: My police report by Pw.3

4. Ex.P4: FIR Cr.No.121/17 by Pw.4

5. Ex.P5: Rough sketch by Pw.4.

6. Ex.P6: FIR Cr.No.214/17 by Pw.4.

7. Ex.P7: Rough sketch by Pw.4.

Exhibits marked on behalf of Defence Nil Material Objects marked Mo.1 NIKON Camera. Mo.2 Citizen Watch Mo.3 Cell Phone.

Sd/-

A.J.M.F.C.

True Copy

Addl. Judicial First Class Magistrate,

Anantapuramu.

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CALENDAR CASES TRIED IN THE ADDITIONAL JUDICIAL FIRST CLASS

MAGISTRATE, ANANTAPURAMU

Date of Report or Apprehen Released Commenc Close of Sentence Offence Complaint sion of on bail ement of trial Order

accused trial

02.05.17 to03.05.1703.08.2017---13.11.2017 11.01.2018 20.02.2018 03.05.17

Calendar and Judgement in CC.No.1784/2017 on the file of Additional

Judicial First Class Magistrate, Anantapuramu.

Complainant : Sub Inspector of police, Anantapuramu II Town Police Station

Cr.No.121/17 and 214/2017

1. Derangula Vadde Mohan, aged 56 years, S/o D. Subbarayudu, Vanipenta Village & mandal, Kadapa District. Now R/o Indiramma Colony Rapthadu Village, Ananthapuramu District. Aadhar No.326322251667.

Offence :-Under section 457, 380 or 411 IPC.

Finding :- Found not guilty.

Sentence or Order:-In the result, accused found not guilty for the offence punishable u/sec. 457, 380 or 411 IPC and he is acquitted U/sec. 248 (1) Cr.P.C. The Superintendent District Jail, Anantapuramu is hereby directed to release the accused forthwith, if he is not required in any other case. MO.1 and MO.2 already given to interim custody to Pw.1 and Mo.3 already given interim custody to Pw.3 are stands good after appeal time is over.

Addl. Judicial First Class

Magistrate, Anantapuramu.

Copy Submitted :-

1. The Hon’ble I Additional District and Sessions Judge, Anantapuramu.

2. The Superintendent of Police, Anantapuramu.

DIS.No._____________, Dt._________________.

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In the Court of the Additional Judicial Magistrate of First Class,

Anantapuramu

Present: Smt. A. Geetha Vani,

Principal Junior Civil Judge,

FAC-Additional Judicial Magistrate of First Class,

Anantapuramu.

Monday the 5 th day of February, 2018

C.C.NO.1135 / 2014

Between:-

State Rep. by Sub-Inspector of Police, Anantapuramu Rural PS. …Complainant.

AND

1) Akula Mahaboob Basha, aged about 22 years, S/o Afzan, D.No.4-1-731, 6th Road, Anantapuramu Town.

2) Shaik Shasha Vali @ Jack, aged about 23 years, S/o Babu Sab, 5th Road, Anantapuramu Town.

3) Shaik Masood Vali @ Areef, aged about 23 years, S/o Khaja Hussain, D.No.28-4-627, Drivers’colony, Anantapuramu Town.

4) Shai Shasha Vali @ Bada, aged about 22 years, S/o Maboo, Papampeta, Anantapuramu Town. …Accused.

This case is coming on 31-01-2018 for final hearing before me in the presence of Assistant Public Prosecutor for the state and of Sri.

A. Sreekantha Reddy, Advocate for the accused, upon hearing both sides and having perused the material on record and this court delivered the following:

: : J U D G E M E N T : :

1)The sub Inspector of police, Anantapuramu rural police station filed charge sheet against the accused A1 to A4 in Cr.No.26/2014 for the offences punishable Under section 457, 380 R/w 511 IPC; in

Cr.No.49/2014 for the offences punishable Under section 454, 380 IPC and in Cr.No.79/2014 for the offences punishable Under section 457, 380 R/w 511 IPC.

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2)The brief contents of the charge sheet is as follows:

(i)That prior to 29.01.2014 at D.No.3-720 at Tapovanam,

Anantapuramu wherein some unknown offenders gained entry into the house of defacto complaiant P. Sevalal Naik to commit theft but they could not succeed in their efforts, on the same day at 7.00pm, D.

Srinivas, Sub Inspector of police, registered a case in Cr.No.26/2014.

Thus, accused committed offence punishable U/S 457, 380 R/w 511

IPC. Hence, the charge.

(ii)That occurred on 22.02.2014 at 4.30pm at Umapathappa garden,

Bellary Road, Anantapuramu wherein some unknown offenders gained entry into the house of K. Sivalinga Reddy and committed theft of cash of Rs.30,000/-, on the same day at 9.00pm, B. Ravi Prasad, head constable, registered a case in Cr.No.49/2014. Thus, accused committed offence punishable U/S 454, 380 IPC. Hence, the charge.

(iii)That prior to 17.03.2014 at Tapovanam, Anantapuramu wherein some unknown offenders gained entry into the house of R.

Subramanya Nagaraju committed theft of gold ornaments worth

Rs.70,000/-, on the same day at 1.30pm, B. Ravi Prasad, Head

Constable, registered a case in Cr.No.79/2014. Thus, accused committed offence punishable U/S 457, 380 IPC. Hence, the charge.

3)After careful perusal of material on record, cognizance was taken against the accused for the offence punishable under section U/S 454, 457, 380 R/w 411 IPC.

4)On appearance of the accused, all relevant case records were furnished to them as required under section 207 of Cr.PC.

5)The accused were examined Under Section 239 Cr.P.C by 3 explaining the substance of accusation leveled against him for the offence U/S 454, 457, 380 R/w 411 IPC as per the charge sheet and the same was read over and explained to them in Telugu, for which they denied the same and pleaded not guilty and claimed to be tried according to law.

6)The prosecution examined PW1 to PW7 and got marked Exs.P1 to

P9 on its behalf. On the other hand, defence never led any kind evidence except depending upon the loopholes of prosecution.

7)After closure of the prosecution evidence, the accused were examined u/s 313 Cr.P.C. for which they denied the incriminating material and reported no defence evidence.

Heard arguments on both sides and perused the record :

Now the point that arises for determination is:

Whether the Prosecution able to bring home the guilt of

accused for the offences punishable U/S 454, 457, 380 R/w 411

IPC beyond all reasonable doubts?

POINT:

8)The learned APP argued that the prosecution examined Pws.1 to

5. Ex.P1 to P7 marked. All the witnesses supported the case of prosecution, hence the accused are liable for conviction. On the other hand the learned counsel for the accused argued that there is no corroboration in between the evidences of investigating officer and

Pw.3, VRO who is said to be acted as mediator at the time of alleged arrest and seizure of the case property. There is no eye witness for the offence occurrence, hence the prosecution is failed to prove its case beyond all reasonable doubts and the accused are entitled for acquittal.

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9.To substantiate the case of the prosecution, the prosecution examined Pw.1 R.S. Nagaraju he deposed in his chief examination that

On 12.03.2014 they have closed their house doors and locked it and went to Kurnool to attend house warming function of their relative along with the family member. On 17.03.2014, One Shaik Banu bee made phone call to the wife of Pw.1 and informed that their house doors are in open condition. Immediately Pw.1 return back to his house and found about the missing of gold ornaments kept in almariah and also pelmel condition of the house hold articles, then he went to police station and gave police report under Ex.P1.

10.Pw.2 K. Siva linga Reddy deposed in his chief examination that on 22.02.2014 at 4.30 p.m, himself and his wife locked their house doors and went to attend medical shop situated at 3rd road, Ananthapuramu and at 6.00 p.m, Pw.2 received phone call from its tenants who are residing on his home upstairs and immediately returned back and found some unknown offenders gained entrance into the house of Pw.2 and committed theft of Rs.26,000/- in pooja room and Rs.4,000/- in iron safe, then pw.2 gave police report under Ex.P2.

11.On perusal of the evidences of Pw.1 and Pw.2, they are the eye witnesses to the offence occurence and there is no eye witness, hence the prosecution is failed to prove that the accused by lurking house trespass or house breaking either in day light or in the night committed theft in the house of Pw.1 hence the accused are not liable for the offences charged u.sec.454,457 and 380 IPC.

12.Coming to Sec.411 IPC it is to be proved that the accused were in possession of stolen property dishonestly. In this regard on perusal of the evidence of Pw.3 N.V.Prasad VRO who is the crucial witness in this 5 case deposed in his chief examination that in his presence police arrested and seized the entire case property concerned in the present case and also in connection with some other cases under cover mahazarnama dt:26.4.2017 at 5.00 p.m, under Ex.P3, he deposed in his cross examination that he does not remember who drafted Ex.P3 and he cannot say specifically from which of the accused the gold ornaments were seized. On perusal of the case record in the present case the police shown four number of accused and when such is a case as the crucial witness Pw.3 failed to depose from which of these accused the gold ornaments were seized in the opinion of this court the evidence of Pw.3 is not reliable.

13.On perusal of the evidence of Pw.4 P. Ravi Prasad, Assistant Sub

Inspector of police previously he worked as Head Constable at Rural

Police Station, Ananthapuramu from 2012 to February 2017. On 22.02.2014 while he was present in the police station around 9.00p.m, pw.2 came to the police station and gave police report accordingly he registered a case in Cr.No.49/14 u.sec.454,380 IPC under Ex.P4. During the course of investigation, pw.4 recorded the statement of Pw.2 and visited the house of pw.2 and inspected the scene of offence and also prepared rough sketch under Ex.P5 and the further investigation took up by Pw.7.

14.Pw.5 P. Narayan Reddy Head Constable deposed that he received police report from pw.1 and registered a case in Cr.No.79/14 u.sec.457,380 IPC under Ex.P6. During the course of investigation, pw.5 visited the house of pw.1 and inspected the scene and also drawn rough sketch under Ex.P7.

15.Coming to the evidence of Pw.6 D. Srinivas SI of police deposed 6 that he registered a case in cr.no.26/2014 on the report of PS Naik u.sec.457,380 IPC R/w 511 IPC under Ex.P8. Police filed a report that PS

Naik whereabouts are not known as per the docket order dt:13.6.2017.

Pw.6 further deposed that he visited the scene of offence secured K.

Venkata Krishna Reddy and examined him and recorded his statement and also visited the scene of offence and drawn rough sketch under

Ex.P9.

16.Coming to the evidence of Pw.7 P. Subha Kumar he deposed that he arrested the accused and seized the case property concern in

Cr.No.26/2014 , 49/2014 and 79/2014 at Dalda factory around 4.30 p.m, on 27.04.2014. In the cross examination, he deposed that he did not collect nearby mediators as he has already secured the mediators prior to going to place of arrest. Pw.7 further deposed that all the accused are residence of nearby the Dalda factory surrounding area i.e., 4th and 5th roads. On perusal of the evidences of Pw3 and PW7 as per the admission by pw.3 there are residential houses around dalda factory but the investigating officer for the alleged arrest and seizure of case property did not secure nearby the mediators. Pw.7 deposed that as he had already secured mediators, he did not secured any nearby mediators at the time of alleged arrest and seizure of case property and police failed to follow Sec.100(4) of Cr.P.C.

Sec.100(4) Cr.P.C mandates that at the time of seizure of the case property two respectable inhabitants must be present, but in the present case though there was an ample time, the investigating officer is failed to secure independent witnesses as mahazardars at the time of alleged arrest and seizure of the case property. On perusal of

Sec.100(4) Cr.P.C.

Section 100 (4) and (5) is as follows :

7 100 Cr.P.C : Persons in charge of closed place to allow search:-

Before making a search under this Chapter, the officer or

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

The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless especially summoned by it.

It has to be seen that the legislature in their wisdom have used the words "two or more independent and respectable inhabitants of the locality".

At this juncture, this Court relied upon the decision reported in :

2010(1) ALT (Crl.) 134 (A.P)

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT

HYDERABAD.

R.KANTHA RAO, J.

Crl.A.No.534 of 2004 - Decided on 31-07-2009.

Tadigiri Rambabu @ Bulli and another

Vs.

State of Andhra Pradesh.

and argued that failure to secure independent witnesses is

fatal to the case of the Prosecution.

8 In the above citation the honourable High Court opined in

Para No. 9 ---------- If really, the circumstances indicate that it was not possible for the arresting police officer to secure the mediators at the given time, the Court cannot find fault with the arresting police officer in not securing the mediators. However when there is ample opportunity for the police officer to secure the presence of mediators and he fails to do so, it can be considered as a lapse on the part of the investigating agency. In the instant case, the appellants were arrested in a busy locality and on the Christmas day.

In the present case, the evidence of Pw.3 is not reliable that he failed to depose who drafted Ex.P3 mahazaranama and also failed to deposed from which of the accused the case property was seized among four members, it creates the doubt in the mind of the court about the presence of pw.3 at the time of alleged arrest and seizure of case property and the investigating officer failed to secure nearby mediators at the time of alleged arrest and seizure of the case property and this court do not see any reason to convict the accused. Accused are entitled for acquittal.

17)In the result, the accused A1 to A4 are found not guilty for the offence punishable U/S 454, 457, 380 R/w 411 IPC and the accused A1 to A4 acquitted U/S 248 (1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as required Under Section 437-A

Cr.P.C.

Typed to my dictation by Senior stenographer, corrected and

pronounced by me in open court, this the 5th day of February, 2018.

Sd/- Smt. A. Geetha Vani,

Principal Junior Civil Judge,

FAC-Addl. Judl.Magistrate of 1 st Class,

Anatapuramu.

A ppendix of Evidence Witnesses Examined Prosecution Defence 9 PW1 : R.S. Nagaraju. Nil PW2 : K. Sivalinga Reddy. PW3 : N.V. Prasad. PW4 : B. Ravi prasad PW5 : P. Narayana Reddy. PW6 : D. Srinvias. PW7 : B. Subha Kumar.

Exhibits marked

prosecution. Defence Ex.P1 : police report of PW1. Nil Ex.P2 : police report of PW2. Ex.P3 : certified copy of mahazar, dt.26.01.17 at 5.00pm. Ex.P4 : FIR in Cr.No.49/14. Ex.P5 : Rough sketch in Cr.No.49/14. Ex.P6 : FIR in Cr.No.79/14. Ex.P7 : Rough sketch in Cr.No.79/14. ExP8 : FIR in Cr.No.26/14. ExP9 : rough sketch in Cr.No.26/14.

Mos marked on behalf of

Prosecution Defence Nil Nil

Sd/-

PJCJ

FAC- AJFCM

True copy

Principal Junior Civil Judge,

FAC-Addl. Judl.Magistrate of 1 st Class,

Anatapuramu.

10

CALENDAR CASES TRIED IN THE ADDITIONAL JUDICIAL FIRST CLASS

MAGISTRATE, ANANTAPURAMU

Date of Report or Apprehen Released Commenc Close of Sentence

Offence Complain sion of on bail ement of trial Order

t accused trial 29.01.1429.01.1426.04.1422.06.1519.12.1609.10.1705.02.18 22.02.1422.02.14 17.03.1417.03.14

Calendar and Judgement in CC.No.1135/2014 on the file of Additional

Judicial First Class Magistrate, Anantapuramu.

Complainant : Sub Inspector of police, Anantapuramu Rural police station.

Cr.No.26/2014; Cr.No.49/2014 and Cr.No.79/2014

1) Akula Mahaboob Basha, aged about 22 years, S/o Afzan, D.No.4-1-731, 6th Road, Anantapuramu Town.

2) Shaik Shasha Vali @ Jack, aged about 23 years, S/o Babu Sab, 5th Road, Anantapuramu Town.

3) Shaik Masood Vali @ Areef, aged about 23 years, S/o Khaja Hussain, D.No.28-4-627, Drivers’colony, Anantapuramu Town.

4) Shai Shasha Vali @ Bada, aged about 22 years, S/o Maboo, Papampeta, Anantapuramu Town.

Offence :-Under section 454, 457, 380 R/w 411 IPC.

Finding :- Found not guilty.

Sentence or Order:-In the result, the accused A1 to A4 are found not guilty for the offence punishable U/S 454, 457, 380 R/w 411 IPC and the accused A1 to A4 acquitted U/S 248 (1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as required Under Section 437-A Cr.P.C.

Principal Junior Civil Judge,

FAC-Addl. Judicial First Class

Magistrate, Anantapuramu.

Copy Submitted :-

1. The Hon’ble I Additional District and Sessions Judge, Anantapuramu.

2. The Superintendent of Police, Anantapuramu.

DIS.No._____________, Dt._________________.

1

In the Court of the Additional Judicial Magistrate of First Class,

Anantapuramu

Present: Smt. A. Geetha Vani,

Principal Junior Civil Judge,

FAC-Additional Judicial Magistrate of First Class,

Anantapuramu.

Tuesday the 2 nd day of January, 2018

C.C.NO.1306 / 2017

Between:-

State Rep. by Sub-Inspector of Police, Anantapuramu Rural Police Station …Complainant.

AND Bheemineni Amarnath Naidu, Aged 32 years, S/o Late B. Sriramulu, R/o D.No.2-34, OC Colony, Uppunesinapalli village, Dharmavaram Mandal. …Accused.

This case is coming on 19-12-2017 for final hearing before me in the presence of Assistant Public Prosecutor for the state and of Sri.

Praneeth Kumar, Legal aid counsel for the accused, upon hearing both sides and having perused the material on record and this court delivered the following:

: : J U D G E M E N T : :

1) The sub Inspector of police, Anantapuramu rural police station filed charge sheet against the accused in Cr.No.73/2017 and Cr.No.115/2017 for the offences punishable Under section 454 and 380 IPC.

2) The brief contents of the charge sheet is as follows:

That on 28.04.2017 at 09.00, defacto complainant-K. Sivananda and his wife after completion of of their in Anantapuramu returned to their home at about 2.00pm and found that some unknown offenders gained entrance into the house by broke open the door lock and committed theft of 2 thuals gold chian, one pair of ear studs and gold ring weighing about 1 thula from amirah worth Rs.48,000/-. Then, the defacto complainant gave police 2 report.

3) Further on 22.06.2017 at about 10.00am, V. Gogula Rajamma and her daughter returned to home after treatment of her daughter at

Anantapuramu at 3.00pm and found that some unknown offenders gained entry into the house of V. Gogula Rajamma committed theft of one pair of gold ear studs about 1 tula, one gold ring weighing about 4 grams, one gold ring weighing about 3 grams and one silver leg chain weighing about 10 thulas worth Rs.46,000/-. Then, the defacto complainant gave police report.Thus, accused committed offence punishable U/S 454 and 380 IPC.

Hence, the charge.

4) After careful perusal of material on record, cognizance was taken against the accused for the offence punishable under section U/S 454 and 380 IPC.

5) On appearance of the accused, all relevant case records were furnished to him as required under section 207 of Cr.PC.

6) The accused was examined Under Section 239 Cr.P.C by explaining the substance of accusation leveled against him for the offence U/S 454 and 380

IPC as per the charge sheet and the same was read over and explained to him in Telugu, for which he denied the same and pleaded not guilty and claimed to be tried according to law.

7) The prosecution examined PW1 to PW7 and got marked Exs.P1 to P10 and MO1 to MO6 on its behalf. On the other hand, defence never led any kind evidence except depending upon the loopholes of prosecution.

8) After closure of the prosecution evidence, the accused was examined u/s 313 Cr.P.C. for which he denied the incriminating material and reported 3 no defence evidence.

Heard arguments on both sides and perused the record :

Now the point that arises for determination is:

Whether the Prosecution able to bring home the guilt of

accused for the offences punishable U/S 454 and 380 IPC beyond all

reasonable doubts?

POINT:

9) The learned Assistant Public Prosecutor argued that the prosecution examined PW1 to PW7, Ex.P1 to Ex.P10 and MO1 to MO6 marked. The prosecution established its case against the accused for the offence U/S 454, 380 IPC, hence prayed to convict the accused.

10) On the other hand, the legal aid counsel for the accused argued that there is no eye witness to the occurrence of offence. The prosecution examined PW3 stating that he was present at the time of arrest and seizure of the case property. The investigating officer failed to secure any near mediators for the alleged arrest and seizure of case property. PW3 is the tutored witness and his evidence cannot be taken into consideration, hence prayed to acquit the accused.

11) In order to substantiate the case of prosecution, prosecution examined

PW1-Sivananda, he deposed that on 28.04.2017 at 9.00am, himself and his wife locked house doors and went to Anantapuramu and returned at about 2.00pm and found locks were broken by some unknown offenders and gained entrance into their house and committed theft of one gold chain, one pair of ear studs and one gold ring kept in almirah and fledaway with booty.

On 01.05.2017, pw1 went to police station and gave police report. Police recovered MO1 one gold chain and MO2 one pair of gold ear studs.

12) The prosecution examined PW2-V.G. Rajamma, she deposed that on 22.06.2017 at 10.00am, herself and her daughter went to hospital by 4 locking doors and returned at 3.00pm, found doors lock was broken open by some unknown offenders and gained entrance into the hosue and committed theft of one pair of gold ear studs, two gold rings and one pair of leg chains and fled away with booty. Police recovered the stolen property MO3 to MO6.

13) In this regard, on perusal of evidence of PW3-K. Venkatanarasimhulu,

Village Revenue Officer who was examined by the prosecution deposed in his chief examination that on 17.07.2017 while he was present in his office, the then Tahsildar called him and instructed to go to Narpala police station and accordingly, himself and M. Srisailam Mallikarjuna, Revenue Inspector went to Narpala police station and from there, they accompanied police and reached Sri Sai Petrol Bunk, Narpala cross. There the accused present and tried to skulk away on seeing police, then police caught hold the accused and enquired in the presence of mediators, the accused disclosed his identity particulars and confessed the offence. Then the Circle Inspector of Police found three covers containing gold ornaments from the possession of accused concerned to the Narpala case and seized those covers under the cover of mahazar under Ex.P3. from there on the confession of accused, they proceeded to Uppunesinapalli village in the fields of accused and there, found seven small plastic covers containing gold ornaments seized which were hidden by the accused near the bore well in his fields. In the cross examination, PW3 deposed Police did not secure any witnesses at Sai petrol bunk.

14) The prosecution examined PW6-G.R. Yadav, Sub Inspector of police, he deposed that Sri Sai Petrol bunk is situated by the side of main road and it is busy locality by that time when he reached to the scene of offence, so many persons were also present. He did not examine any of the persons who were present nearby said petrol bunk.

5

15) On perusal of the evidences of PW3 and PW6 admittedly, Sri Sai Petrol

Bunk is a busy locality. Further, PW5 deposed that at the time of alleged seizure, proceedings, so many persons present nearby the said petrol bunk but he did not examine any of the witnesses. When such is the case, the prosecution failed to explain the reasons for non securing independent witnesses nearby the locality at the time of alleged seizure of the case property.

16) Sec.100(4) Cr.P.C mandates that at the time of seizure of the case property two respectable inhabitants must be present, but in the present case though there was an ample time, the investigating officer is failed to secure independent witnesses as mahazardars at the time of alleged arrest and seizure of the case property. On perusal of Sec.100(4) Cr.P.C.

Section 100 (4) and (5) is as follows :

100 Cr.P.C : Persons in charge of closed place to allow search:-

Before making a search under this Chapter, the officer or other

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

The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless especially summoned by it.

It has to be seen that the legislature in their wisdom have used 6 the words "two or more independent and respectable inhabitants of the locality".

At this juncture, this Court relied upon the decision reported in :

2010(1) ALT (Crl.) 134 (A.P)

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT

HYDERABAD.

R.KANTHA RAO, J.

Crl.A.No.534 of 2004 - Decided on 31-07-2009.

Tadigiri Rambabu @ Bulli and another

Vs.

State of Andhra Pradesh.

and argued that failure to secure independent witnesses is fatal to

the case of the Prosecution.

In the above citation the honourable High Court opined in

Para No. 9 ---------- If really, the circumstances indicate that it was not possible for the arresting police officer to secure the mediators at the given time, the Court cannot find fault with the arresting police officer in not securing the mediators. However when there is ample opportunity for the police officer to secure the presence of mediators and he fails to do so, it can be considered as a lapse on the part of the investigating agency. In the instant case, the appellants were arrested in a busy locality and on the

Christmas day.

17) In the present case also, the police failed to comply the provision under section 100(4) CR.P.C., as such this court is of the opinion that it creates doubt regarding the alleged seizure of the case property from the possession of accused.

18) The prosecution also examined PW4-H. Lakshmanna, Village Revenue

Officer, he deposed that PW1 identified MO1 and MO2 and accordingly he 7 prepared Ex.P6 identification proceedings of the case property in

Cr.No.115/2017.

19) The prosecution also examined PW5-K. Dhanunjaya , Head constable, he deposed that he registered the present case in Cr.No.115/2017 under

Ex.P7 FIR. During the course of investigation, he examined and recorded the statements of witnesses, visited the scene of offence and drawn rough sketch under Ex.P8.

20) On perusal of the entire case on hand, prosecution failed to examine any eye witnesses to occurrence of offence and also failed to prove that the accused was in possession of the stolen property dishonestly, as such this court is of the opinion that the prosecution failed to prove its case beyond all reasonable doubts for the offences punishable U/S 454, 380 IPC, as such the accused is entitled for acquittal.

21) In the result, the accused is found not guilty for the offence punishable

U/S 454 and 380 IPC and the accused is acquitted U/S 248 (1) Cr.P.C. The

Superintendent, District Jail, Anantapuramu is hereby directed to release the accused, if the accused is not required in any other cases. MO1 and MO2 which were already given to the interim custody of PW1, shall be made absolute after appeal time is over. MO3 to MO6 which were already given to the interim custody of PW2, shall be made absolute after appeal time is over.

Dictated to senior stenographer, corrected and pronounced by me in

open court, this the 2nd day of January, 2018.

Sd/- Smt. A. Geetha Vani

Prl. Junior Civil Judge, FAC-Addl. Judl.Magistrate of Ist Class,

Anatapuramu.

Appendix of Evidence Witnesses Examined Prosecution Defence PW1 : Sivananda. Nil PW2 : V.G. Rajamma.

8 PW3 : K. Venkatanarasimhulu. PW4 : H. Lakshmanna. PW5 : K. Dhanunjaya. PW6 : G.R. Yadav. PW7 : P. Nagendra Prasad.

Exhibits marked

prosecution. Defence Ex.P1 : PW1 complaint. Nil Ex.P2 : PW2 complaint. Ex.P3 : certified copy of mahazar, dt.17.07.2017 at 1.00pm. Ex.P4 :.certified copy of mahazar, dt.17.07.2017 at 4.00pm. Ex.P5 : property identification mahazar, dt.25.07.2017 at 4.00pm. Ex.P6 : certified copy of Proceedings in Cr.No.115/17 Ex.P7 : First Information Report in Cr.No.115/17 Ex.P8 : Rough Sketch in Cr.No.115/17. Ex.P9 : Rough Sketch in Cr.No.73/17. Ex.P10: First Information Report in Cr.No.73/17.

Mos marked on behalf of

Prosecution Defence MO1 : gold chain weighing 2 tulas. Nil MO2 : pair of gold ear studs. MO3 : pair of gold ear studs weighing 1 tula. MO4 : one gold ring weighing 4 grams. MO5 : one gold ring(ladies). MO6 : one pair of silver leg chains weighing 10 tulas.

Sd/-

PJCJ

FAC-AJFCM

True Copy

Prl. Junior Civil Judge, FAC-Addl. Judl.Magistrate of Ist Class,

Anatapuramu.

9

CALENDAR CASES TRIED IN THE ADDITIONAL JUDICIAL FIRST CLASS

MAGISTRATE, ANANTAPURAMU

Date of Report or Apprehens Released Commenc Close of Sentence

Offence Complaint ion of on bail ement of trial Order

accused trial

28.04.2017 01.05.2017 17.07.2017 - 04.10.2017 09.11.2017 02.01.2018

Calendar and Judgement in CC.No.1306/2017 on the file of Additional

Judicial First Class Magistrate, Anantapuramu.

Complainant : Sub Inspector of police, Anantapuramu Rural Police Station.

Cr.No.73/2017 and 115/2017

Offence :-Under section 454 and 380 IPC.

Finding :- Found not guilty.

Sentence or Order:-In the result, the accused is found not guilty for the offence punishable U/S 454 and 380 IPC and the accused is acquitted U/S 248 (1) Cr.P.C. The Superintendent, District Jail, Anantapuramu is hereby directed to release the accused, if the accused is not required in any other cases. MO1 and MO2 which were already given to the interim custody of

PW1, shall be made absolute after appeal time is over. MO3 to MO6 which were already given to the interim custody of PW2, shall be made absolute after appeal time is over.

Prl. Junior Civil Judge, FAC-Addl. Judl.Magistrate of Ist Class,

Anatapuramu.

Copy Submitted :-

1. The Hon’ble I Additional District and Sessions Judge, Anantapuramu.

2. The Superintendent of Police, Anantapuramu.

DIS.No._____________, Dt._________________.

1

In the Court of the Additional Judicial Magistrate of First Class,

Anantapuramu

Present: Smt. A. Geetha Vani,

Principal Junior Civil Judge,

FAC-Additional Judicial Magistrate of First Class,

Anantapuramu.

Tuesday the 2 nd day of January, 2018

C.C.NO.1478 / 2017

Between:-

State Rep. by Sub-Inspector of Police, Narpala Police Station. …Complainant.

AND Bheemineni Amarnath Naidu, Aged 32 years, S/o Late B. Sriramulu, R/o D.No.2-34, OC Colony, Uppunesinapalli village, Dharmavaram Mandal. …Accused.

This case is coming on 19-12-2017 for final hearing before me in the presence of Assistant Public Prosecutor for the state and of Sri.

Praneeth Kumar, Legal aid counsel for the accused, upon hearing both sides and having perused the material on record and this court delivered the following:

: : J U D G E M E N T : :

1) The sub Inspector of police, Narpala police station filed charge sheet against the accused in Cr.No.24/2017 for the offences punishable Under section 457, 380 or 411 IPC.

2) The brief contents of the charge sheet is as follows:

That on 15.02.2017 at 10.00am, defacto complainant-B. Chinna Nagi

Reddy left his house after locking it to go to Sreekalahasti and returned to his village on 20.02.2017 at 2.00pm, he found lock of the door was broken and hanged to the hasp. On suspicion, he entered into his house and found biruva was mended and opened and found 2 tulas weighing plain gold chain worth Rs.39,000/-. On the same day, he went to police station and lodged a complaint. Thus, accused committed offence punishable U/S 457, 380 or 2 411 IPC. Hence, the charge.

3) After careful perusal of material on record, cognizance was taken against the accused for the offence punishable under section U/S 457, 380 or 411 IPC.

4) On appearance of the accused, all relevant case records were furnished to him as required under section 207 of Cr.PC.

5) The accused was examined Under Section 239 Cr.P.C by explaining the substance of accusation leveled against him for the offence U/S 457, 380

IPC as per the charge sheet and the same was read over and explained to him in Telugu, for which he denied the same and pleaded not guilty and claimed to be tried according to law.

6) The prosecution examined PW1 to PW6 and got marked Exs.P1 to P6 on its behalf. On the other hand, defence never led any kind evidence except depending upon the loopholes of prosecution.

7) After closure of the prosecution evidence, the accused was examined u/s 313 Cr.P.C. for which he denied the incriminating material and reported no defence evidence.

Heard arguments on both sides and perused the record :

Now the point that arises for determination is:

Whether the Prosecution able to bring home the guilt of

accused for the offences punishable U/S 457, 380 IPC beyond all

reasonable doubts?

POINT:

8) The learned Assistant Public Prosecutor argued that the prosecution examined PW1 to PW6, Ex.P1 to Ex.P6 and MO1 marked. The prosecution established its case against the accused for the offence U/S 379 or 411 IPC, hence prayed to convict the accused.

3

9) On the other hand, the legal aid counsel for the accused argued that there is no eye witness to the occurrence of offence. The prosecution examined PW2 stating that he was present at the time of arrest and seizure of the case property. The investigating officer failed to secure any near mediators for the alleged arrest and seizure of case property. PW2 is the tutored witness and his evidence cannot be taken into consideration, hence prayed to acquit the accused.

10) In order to substantiate the case of prosecution, prosecution examined

PW1-B.C. Nagi Reddy, he deposed that at about seven months back, he went to Kalahasti by locking the house doors and sent after 5 days, he returned to his hosue and found house doors were broke open by some unknown offenders and due to suspicion, he went inside the house and found missing of one gold chain. On the same day, pw1 went to police station and gave police report. Police recovered gold chain weighing about 20 grams and the same is marked as MO1.

11) PW2-K. Venkatanarasimhulu, Village Revenue Officer who was examined by the prosecution deposed in his chief examination that on 17.07.2017 while he was present in his office, the then Tahsildar called him and instructed to go to Narpala police station and accordingly, himself and

M. Srisailam Mallikarjuna, Revenue Inspector went to Narpala police station and from there, they accompanied police and reached Sri Sai Petrol Bunk,

Narpala cross. There the accused present and tried to skulk away on seeing police, then police caught hold the accused and enquired in the presence of mediators, the accused disclosed his identity particulars and confessed the offence. Then the Circle Inspector of Police found three covers containing gold ornaments from the possession of accused concerned to the Narpala case and seized those covers under the cover of mahazar under Ex.P2. from there on the confession of accused, they proceeded to Uppunesinapalli 4 village in the fields of accused and there, found seven small plastic covers containing gold ornaments seized which were hidden by the accused near the bore well in his fields. In the cross examination of PW2, Sri Sai Petrol

Bunk, Narpala is a busy locality. Police did not secure at witnesses at said petrol bunk.

12) The prosecution examined PW5-G.R. Yadav, Sub Inspector of police, he deposed that Sri Sai Petrol bunk is situated by the side of main road and it is busy locality by that time when he reached to the scene of offence, so many persons were also present. He did not examine any of the persons who were present nearby said petrol bunk.

13) On perusal of the evidences of PW2 and PW5 admittedly, Sri Sai Petrol

Bunk is a busy locality. Further, PW5 deposed that at the time of alleged seizure, proceedings, so many persons present nearby the said petrol bunk but he did not examine any of the witnesses. When such is the case, the prosecution failed to explain the reasons for non securing independent witnesses nearby the locality at the time of alleged seizure of the case property.

14) Sec.100(4) Cr.P.C mandates that at the time of seizure of the case property two respectable inhabitants must be present, but in the present case though there was an ample time, the investigating officer is failed to secure independent witnesses as mahazardars at the time of alleged arrest and seizure of the case property. On perusal of Sec.100(4) Cr.P.C.

Section 100 (4) and (5) is as follows :

100 Cr.P.C : Persons in charge of closed place to allow search:-

Before making a search under this Chapter, the officer or other

person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is 5 available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless especially summoned by it.

It has to be seen that the legislature in their wisdom have used the words "two or more independent and respectable inhabitants of the locality".

At this juncture, this Court relied upon the decision reported in :

2010(1) ALT (Crl.) 134 (A.P)

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT

HYDERABAD.

R.KANTHA RAO, J.

Crl.A.No.534 of 2004 - Decided on 31-07-2009.

Tadigiri Rambabu @ Bulli and another

Vs.

State of Andhra Pradesh.

and argued that failure to secure independent witnesses is fatal to

the case of the Prosecution.

In the above citation the honourable High Court opined in

Para No. 9 ---------- If really, the circumstances indicate that it was not possible for the arresting police officer to secure the mediators at the given time, the Court cannot find fault with the arresting police officer in not securing the mediators. However when there is ample opportunity for the police officer to secure the presence of mediators and he fails to do so, it can 6 be considered as a lapse on the part of the investigating agency. In the instant case, the appellants were arrested in a busy locality and on the

Christmas day.

15) In the present case also, the police failed to comply the provision under section 100(4) CR.P.C., as such this court is of the opinion that it creates doubt regarding the alleged seizure of the case property from the possession of accused.

16) The prosecution also examined PW3-R. Gurumurthy, Village Revenue

Officer, he deposed that PW1 identified MO1 and accordingly he prepared

Ex.P4 identification proceedings of the case property.

17) The prosecution also examined PW4-M.K. Praveen, Assistant Sub

Inspector of Police, he deposed that he registered the present case under

Ex.P5 FIR. During the course of investigation, he examined and recorded the statements of witnesses, visited the scene of offence and drawn rough sketch under Ex.P6.

18) The prosecution also examined PW6-V. Ram Prasad, Sub Inspector of

Police, he deposed that he verified the investigation of PW4 and found it on correct lines. He came to know that PW5 arrested the accused and seized property and then he produced the accused before this court on PT warrant on 27.07.2017 after completion of investigation, he filed charge sheet.

19) On perusal of the entire case on hand, prosecution failed to examine any eye witnesses to occurrence of offence and also failed to prove that the accused was in possession of the stolen property dishonestly, as such this court is of the opinion that the prosecution failed to prove its case beyond all reasonable doubts for the offences punishable U/S 379 or 411 IPC, as such the accused is entitled for acquittal.

7

20) In the result, the accused is found not guilty for the offence punishable

U/S 457, 380 IPC and the accused is acquitted U/S 248 (1) Cr.P.C. The

Superintendent, District Jail, Anantapuramu is hereby directed to release the accused, if the accused is not required in any other cases. MO1 which was already given to the interim custody of PW1 shall be made absolute after appeal time is over.

Dictated to Senior stenographer, corrected and pronounced by me in

open court, this the 2nd day of January, 2018.

Smt. A. Geetha Vani, Prl. Junior Civil Judge, FAC-Addl. Judl.Magistrate of Ist Class,

Anatapuramu.

Appendix of Evidence Witnesses Examined

Prosecution Defence PW1 : B.C. Nagi Reddy. Nil PW2 : K.V. Narasimhulu. PW3 : R. Gurumurthy. PW4 : M.K. Praveen. PW5 : G.R. Yadav, Inspector of Police, PW6 : V. Ram Prasad, Sub Inspector of police.

Exhibits marked

prosecution. Defence Ex.P1 : PW1 complaint. Nil Ex.P2 : certified copy of mahazar, dt.17.07.2017 at 1.00pm. Ex.P3 :.certified copy of mahazar, dt.17.07.2017 at 4.00pm. Ex.P4 :.Identification proceedings. Ex.P5 : First Information Report. Ex.P6 : Rough Sketch.

Mos marked on behalf of

Prosecution Defence MO1 : Gold chain weighing 20 grams. Nil

Sd/-

PJCJ

FAC-AJFCM

True Copy

Prl. Junior Civil Judge, FAC-Addl. Judl.Magistrate of Ist Class,

Anatapuramu.

8

CALENDAR CASES TRIED IN THE ADDITIONAL JUDICIAL FIRST CLASS

MAGISTRATE, ANANTAPURAMU

Date of Report or Apprehens Released Commenc Close of Sentence

Offence Complaint ion of on bail ement of trial Order

accused trial

20.02.2017 20.02.2017 17.07.2017 - 04.10.2017 09.11.2017 02.01.2018

Calendar and Judgement in CC.No.1478/2017 on the file of Additional

Judicial First Class Magistrate, Anantapuramu.

Complainant : Sub Inspector of police, Narpala Police Station.

Cr.No.24/2017

Offence :-Under section 457, 380 IPC.

Finding :- Found not guilty.

Sentence or Order:-In the result, the accused is found not guilty for the offence punishable U/S 457, 380 IPC and the accused is acquitted U/S 248 (1) Cr.P.C. The Superintendent, District Jail, Anantapuramu is hereby directed to release the accused, if the accused is not required in any other cases. MO1 which was already given to the interim custody of PW1 shall be made absolute after appeal time is over.

Prl. Junior Civil Judge, FAC-Addl. Judl.Magistrate of Ist Class,

Anatapuramu.

Copy Submitted :-

1. The Hon’ble I Additional District and Sessions Judge, Anantapuramu.

2. The Superintendent of Police, Anantapuramu.

DIS.No._____________, Dt._________________.

1

IN THE COURT OF ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS,

ANANTAPURAMU

Present:- Smt.A.Geetha Vani,

Prl.Junior Civil Judge, Ananthapuramu FAC Additional Judicial Magistrate of First Class, Anantapuramu. Thursday, this the 15th day of February 2018.

C.C.No.509/2013

Between:-

State : Represented by the Sub Inspector of Police, Singanamala Police Station. … Complainant

And

T.S.Rahamathulla, aged 43 years, S/o T.S.Ibrahim Sab, D.No.19/681, Bhagyanagar, Ananthapuramu Town. Driver of Eicher bearing no.AP27 U 7000.

… Accused

This case was come up for final hearing before me on 07.02.2018 in the presence of Assistant Public Prosecutor for the complainant and of Sri J. Raja Reddy and B. Jayaramulu, Advocates for

Accused and upon hearing both sides and on perusing the material on record and the matter having stood over for consideration till this day, and this court delivered the following:-

J U D G M E N T

1]The Inspector of Police, Singanamala Police Station filed charge sheet against the accused in Crime Number 24/2013 for the offence punishable Under Sections 304-A IPC.

2]The facts of the prosecution case are that on 24.03.2013 at about 3.00 p.m, while Pw.1 and his brother-in-law i.e., deceased Nethi

Rama Krishna left Tadiptri on their motorcycles to B.K.Samudram and at about 4.00 p.m, near C. Bandameedapalli village in front of Akkamma temple accused the driver of Eicher van bearing No.AP27 U 7000 drove the van in a rash and negligent manner and dashed against the 2 motorcycle of deceased on that the deceased received injuries on his left side of head, right side of fingers, right side of leg knee and the injured was shifted to Pavani Pvt. Hospital, Ananthapuramu and later shifted to

Nims Hospital, Hyderabad for better treatment and while undergoing treatment the deceased died on 14.4.2013 at 1.30 a.m,. During the course of investigation Pw.9 examined six witnesses including the Pw.1 and recorded their statements and visited the scene of offence and described the same. Pw.11 held inquest over the dead body of the deceased on 15.4.20136 at 12.30 p.m, at Osmania GGH Hyderabad.

Pw.12 arrested the accused and sent him to judicial custody on 03.4.2013. Pw.6,Pw.5 and B. Sugunakar Reddy are the inquest panchayatdars, held inquest over the dead body of the deceased on 14.4.2013 at 12.30 p.m, to 2.30 p.m. Pw.8 is the MVI who inspect the crime vehicle bearing No.AP27 I 7000 and opined that the accused occurred not due to any mechanical defects of the crime vehicle. Pw.10 conducted autopsy over the dead body of the deceased and he opined that the cause of death “ Complications of multiple injuries”. After completion of investigation, charge sheet filed.

4]After careful perusal of material on record cognizance of the offence was taken on file Under Section 304-A Indian Penal Code against the accused.

5]On production of the accused, relevant copies of documents were furnished to them as contemplated Under Section 207 Cr.P.C.

6]The accused has been examined Under Section 239 Cr.P.C for the offence Under Section 304-A Indian Penal Code and the charge

Under Section 304-A Indian Penal Code was framed, read over and 3 explained to accused in Telugu, for which the accused pleaded not guilty and claimed to be tried.

7] In order to prove the case of prosecution, the prosecution chose to examine PWs.1 to PW.12 and got marked Exs.P.1 to Ex.P.13. On the other hand, neither the witnesses examined nor the exhibits are marked on behalf of the defence.

8]After closure of prosecution side evidence, the accused were examined U/sec.313(1) Cr.P.C. by putting incriminating evidence available from the evidence of prosecution witnesses for which they denied and reported no defence evidence.

9]Heard on both sides and perused the record.

10]Now the point that arise for determination is:

“Whether the prosecution bring home the

guilt of accused for the offence punishable

Under Section 304-A Indian Penal Code

beyond all reasonable doubt ?” 11] POINT :- 12]Pw.1 in his evidence in the chief examination deposed that on 24.3.2013 himself and the deceased started from Tadipatri around 3.00 p.m, to go to B.k.Samudram on two motorbikes. When they reached at

Bandameedapalli near Akkamma temple the accused who was driving

Eicher van came in a opposite direction and while he was over taking the auto dashed the motorbike of the deceased. At that time the said crime vehicle Eicher van came in a high speed. After the incident the deceased fell down and received injuries on the left hand fingers, on the right knee and severe bleeding injury over the head. Immediately the driver of the

Eicher van ran way from the place. Then the injured shifted to Pavani 4

Private Hospital, Ananthapuramu. From there the injured was shifted to

Nims hospital Hyderabad for better treatment. During the treatment the injured was died. After returning from the Hyderabad police report was given under Ex.P1.

13]As the counsel for the accused was absent for cross examination of

Pw.1 the cross of Pw.1 was treated as nil on the date of chief examination of Pw.1. Subsequently Pw.1 was re-called and in the cross-examination he deposed that “I have not seen the accused prior to the incident. I am seeing the accused first time today in the court”.

14]PW.2 S. Ramakrishna Reddy Pw.3 M. Ramakrishna Pw.7 N.

Narayanareddy who were examined did not support the case of the prosecution that they deposed they do not know anything about the facts of the case and they did not witness any incident. Pw.4 N. Aruna is the wife of the deceased deposed that she came to know about the incident through Pw.1 and immediately she rushed to the scene of offence and her husband was not in the position to speak. Pw.4 further deposed that the injured was shifted to Pavani Hospital and later to

Hyderabad and on 14.4.2013 the injured succumbed to injuries.

15]Pw.5 M. Sree Ramulu naik Pw.6 P. Ramesh who were examined

before this Court did not support the case of the prosecution but they

deposed that no inquest was conducted in their presence.Pw.8

D.Srinivasulu Motor Vehicle Inspector deposed that he inspected the crime vehicle and issued MVI report Ex.P7 on the opinion that the accident is not due to any mechanical defect. Pw.9 G. Rafi deposed that he received police report on 26.3.2013 at 12.30 p.m, through Pw.1 and registered FIR Ex.P8. During the course of investigation he examined

Pw.2, Pw.3 and Pw.7 and recorded their statements. Visited the scene of offence and drawn rough sketch Ex.P9. Pw.10 conducted autopsy and issued Ex.P10 Postmortem report of the opinion that the death due to complications of multiple injuries to the best of his knowledge. Pw.11

S.A.Basheer deposed that he held inquest over the dead body of the deceased under Ex.P11. PW.12 M. Rama Rao deposed that on 03.04.2013 the accused came and surrendered before him and he confirmed as an 5 accused in this case and arrested him. In the cross-examination Pw.12 deposed that he did not examined driver of the crime vehicle.

16]The learned Assistant Public Prosecutor argued that no witnesses supported the case of the prosecution, hence the accused is entitled for acquital. On the other hand the learned counsel for the accused argued that no eye witness supported the case of the prosecution. The identity of the accused is doubtful.

17]On perusal of the record Pw.1 in his chief examination deposed that immediately after the accident the accused ran away from the scene of offence. Pw.4 in her cross-examination deposed that on coming to know about the accident she went to the scene of offence and found her husband with bleeding injuries and at that time her husband was not able to speak and she was narrated the incident by Pw.1. Pw.4 further deposed in her cross-examination that she came to know the identity of the accused through some others. But it is not the case of the prosecution that the accused is known person. The record shows that the incident occurred on 24.03.2013. The examination of Pw.1 was done on 18.9.2014. So after the incident of 1 year 6 months Pw.1 identified the accused in his chief examination. There was no any Test identification conducted to identify the accused and so the identification of the accused by Pw.1 in the court has after lapse of 1 ½ year is doubtful. At this juncture the court relied the Judgment:-

2010 (3) ALT (Crl.) 169 (A.P)

IN THE HIGH COURT OF JUDICATURE,

ANDHRA PRADESH AT HYDERABAD

B.CHANDRA KUMAR, J.

Criminal Revision Case No.1816 of 2004 - Decided on 01-07-2010

K.Rajaiah V.

State of A.P. rep by Public Prosecutor

On perusal of the above citation in Para No.18 the hon'ble High

Court referred a Judgment of Apex Court ie., the case between 6

State of Maharastra through CBI

VS

Sukh dev Singh @ Sukha (5) AIR 1992 Vol. 3 SCC 700

"It would be extremely risky to place implicit reliance on identification made for the first time in court after a long lapse of time but it has to be kept in mind that this principle will apply to case of total strangers".

In the present case also PW1 is total stranger with the case and he did not mention either in Ex.P1 or in 161 Cr.P.C statement about the identity particulars of the accused but he identified accused in the court hall.

18]In the present case also there is no identification of accused. To prove the offence U.sec.304-A IPC the prosecution has to prove the accused due to rash or negligent dashed to deceased due to which the deceased died. But in the present case the identity itself of the accused is doubtful at the time of alleged accident and when the identity itself is doubtful the liability of the offence U.sec.134(a)(b) does not arise. Hence this court is of the opinion that the accused is entitled for acquittal.

19]In the result, Accused is found not guilty for the offence punishable

U/sec. 304 (A) IPC and he is acquitted U/sec. 255 (1) Cr.P.C. The bail bonds and sureties of the accused shall be in force for a period of 6 months as required under Sec. 437 (A) Cr.P.C.

[Typed to my dictation to Stenographer, corrected and

pronounced by me in open Court, this the 15th day of February, 2018]

Sd/- Smt. A. Geetha Vani,

FAC Addl. Judicial Magistrate of First Class, Anantapuramu.

Appendix of evidence

Witnesses examined for

Prosecution Defence

P.W.1 S. Murali None.

P.W.2 S. Ramakrishanareddy

P.W.3. M. Ramakrishna 7

P.W.4. N. Aruna

Pw.5 S. Sriram Naik

Pw.6 P.Ramesh

Pw.7 S. Narayana Reddy

Pw.8 D. Srinivasulu

Pw.9 G.Rafi

Pw.10 Dr.Devaraju

Pw.11 S.A.Basheer

Pw.12 M.Rama Rao

Exhibits marked on behalf of Prosecution

1.Ex.P.1: Complaint by Pw.1. 2.Ex.P.2: 161 Cr.P.C Statement of Pw.2. 3.Ex.P.3. 161 Cr.P.C Statement of Pw.3. 4.Ex.P.4. Signature of Pw.5 on inquest 5.Ex.P.5. Signature of Pw.6 on inquest 6.Ex.P.6 161 Cr.P.C statement of Pw.9. 7.Ex.P.7 MVI report by Pw.8 8.Ex.P8 FIR by Pw.9 9.Ex.P9 Rough sketch by Pw.9 10.Ex.P10 P.M Report by Pw.10 11.Ex.P11 Inquest report by Pw.11 12.Ex.P12 Driving license 13.Ex.P13 R.C.

Exhibits marked on behalf of Defence Nil

Material Objects marked

NIL

Sd/-

A.J.M.F.C.

True Copy

Addl. Judicial First Class

Magistrate, Anantapuramu.

8

CALENDAR CASES TRIED IN THE ADDITIONAL JUDICIAL FIRST CLASS

MAGISTRATE, ANANTAPURAMU

Date of Report or Apprehens Released Commenc Close of Sentence

Offence Complaint ion of on bail ement of trial Order

accused trial

24.03.201324.03.201303.04.201303.04.201318.09.201426.10.201706.04.2018

Calendar and Judgement in CC.No.509/2013 on the file of Additional

Judicial First Class Magistrate, Anantapuramu.

Complainant : Sub Inspector of police, Singanamala Police Station.

Cr.No.24/2013

T.S.Rahamathulla, aged 43 years, S/o T.S.Ibrahim Sab, D.No.19/681, Bhagyanagar, Ananthapuramu Town. Driver of Eicher bearing no.AP27 U 7000.

Offence :-Under section 304 (A) IPC.

Finding :- Found not guilty.

Sentence or Order:-In the result, Accused is found not guilty for the offence punishable U/sec. 304 (A) IPC and he is acquitted U/sec. 255 (1) Cr.P.C. The bail bonds and sureties of the accused shall be in force for a period of 6 months as required under Sec. 437 (A) Cr.P.C.

Addl. Judicial First Class

Magistrate, Anantapuramu.

Copy Submitted :-

1. The Hon’ble I Additional District and Sessions Judge, Anantapuramu.

2. The Superintendent of Police, Anantapuramu.

DIS.No._____________, Dt._________________.