Ms. Vani Sabbavarapu

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST

CLASS :: DARSI

PRESENT: Ms. S. Vani,

Judicial Magistrate of First Class, Darsi

Wednesday, this the Thirteen (13th) day of April, 2022

CALENDAR CASE NO. 446 of 2021

(Cr. No.121/2021 of Thallur P.S.)

Between:

State: Sub Inspector of Police, Thallur Police Station … Complainant

AND

Thupakula Siva Narayana, S/o Venkata Rao, 24 years, Yanadi by caste, Yanadi Sangam, Rajanagaram Village of Thalluru Mandal, driver of Tractor bearing No. AP 39 TR 6505. … Accused

This case coming before me on this day, i.e., 13.04.2022 for fnal hearing in the presence of Learned Assistant Public Prosecutor, for the

Complainant and of Sri G. Srinivasula Reddy, Learned Advocate for accused, and upon perusing the material available on record, and upon hearing the arguments and having stood over for consideration to this day, till this day, this Court delivered the following:-

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

01.The State represented by Sub-Inspector of Police, Thallur Police

Station laid a charge sheet against the accused in Crime Number. 121/2021 of Thallur Police station for the ofences Punishable under Section 379 of the

Indian Penal Code, section 21(2) of Mines and Minerals (Development &

Regulation) Act, 1957.

02. The facts lie in a short compass:

On 17.07.2021 at 14:00 hours, PW.1 along with his staf, i.e.,

Lw.2-Ramasetty Venakateswararao and Lw.3-P. Jaya Surya proceeded to

Thallur village and Mandal, and there they found the accused transporting the 4 tons of sand in his tractor bearing registration No. AP39 TR 6505 and its trailer bearing registration No. AP07 TD 3493. On enquiry, the accused 2 stated that he brought the sand from Polavaram reach without any permission or license.

03. Investigation and Charge sheet:

On the same day PW.1 secured the accused, seized the crime vehicle along with sand of 4 tons, and drafted Special report. Basing on the

Special report, PW.2 registered the case in Crime Number 121/2021 under section 379 of the Indian Penal Code, section 21(2) of Mines and Minerals (Development & Regulation) Act, 1957 and investigated. During the course of the investigation, PW.2 examined PW.1, Lw.2-Ramasetty Venakateswararao and Lw.3-P. Jaya Surya and recorded their detailed statements under section 161(3) of the Criminal Procedure Code, visited the crime scene and drafted the rough sketch, issued notice to the accused under section 41-A of the

Criminal Procedure Code. During the course of further investigation, PW.2 sent the seized sand to the Tahsildar, Thallur for conducting auction, for which the Tahsildar, Thallur conducted auction on the seized sand and remitted the auction amount of Rs.1100/- to Mines and Geology department.

Later Lw.9–B. Narasimha Rao, Sub-Inspector of Police, Thallur fled a charge sheet against the above named accused under section 379 of the Indian

Penal Code, section 21(2) of Mines and Minerals (Development & Regulation)

Act, 1957.

04. Cognizance:

Perused the charge-sheet and entire material available on record. As per Section 22 of the Mines and Minerals (Development &

Regulation) Act, 1957 no court can take cognizance of the ofences under this Act except on a complaint in writing by a person authorised by the

Central or State Government. On perusal of the entire record, no such private complaint is moved as is required under section 22 of Mines and Minerals (Development & Regulation) Act, 1957. However, there is no impediment in taking cognizance for the ofence under section 379 of the Indian Penal 3

Code, if any on the basis of the same police report is made out. On perusal of record, it shows that the accused committed theft of sand, which is the property of the State. Here, a prima-facie case is made out for the ofences under section 379 of the Indian Penal Code and Section 3 of Prevention of

Damage to Public Property Act. Therefore, cognizance is taken for the ofence under section 379 of the Indian Penal Code and Section 3 of Prevention of

Damage to Public Property Act against the accused.

05. Compliance of section – 207 of the Code of Criminal Procedure:

In pursuant to the court’s process, the accused appeared before the Court, and the copies of challan and the documents annexed therewith were furnished to him as contemplated under section 207 of the Code of

Criminal Procedure.

06. Examination and charge:

Accused was examined under section 239 of the Code of

Criminal Procedure. After hearing both sides, the charges under Section 240 of the Code of Criminal Procedure were framed for the ofences under

Section 379 of the Indian Penal Code and Section 3 of Prevention of Damage to Public Property Act and were read over and explained to the accused in

Telugu language, on which he pleaded not guilty and claimed to be tried.

07. Evidence adduced by prosecution:

To prove its case and discharge the initial burden of proof cast upon it, the prosecution examined two (2) witnesses PW.1 and PW.2 and marked Exs.P1 to P4 and M.O.1 as indicated in the appendix of evidence and after the examination of two (2) witnesses, the prosecution evidence was closed.

08. Statement of Defence:

After cessation of the prosecution evidence, the accused is examined under section 313(1)(b) of the Code of Criminal Procedure. Each 4 and every incriminating circumstance found in the evidence of the prosecution against the accused is separately read over to him. Accused denied all such circumstances as false and did not choose to adduce defense evidence.

09. ARGUMENTS:

I have heard the rival submissions by Learned Assistant Public

Prosecutor for the State and by the Learned counsel for the accused and gone through the case record in the backdrop of evidences presented before this Court by the prosecution side.

10. Arguments advanced by Learned Assistant Public Prosecutor:

During the course of the arguments, Learned Assistant Public

Prosecutor for the State has submitted that the prosecution has been able to prove the guilt of the accused beyond the reasonable doubt. It has been further asserted that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond a reasonable doubt. Hence, she prayed the Hon’ble Court to convict the accused.

11. Arguments advanced by Defence Counsel:

Per contra the Learned Defence counsel contended that the prosecution story does not invigorate confdence and the accused is falsely implicated in this case only for statistical purposes. No independent witnesses were secured at the time of the Ex.P1 Special report. So under the circumstances, it cannot be said that the prosecution has proved the case beyond reasonable doubt, and accused is entitled to get an acquittal.

12.Now the points for determination are:-

1. “Whether the prosecution proved beyond reasonable doubt

that the accused/Thupakula Siva Narayana on 17.07.2021 at

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about 14:00 hours at, Thallur village of Thallur Mandal to take

dishonestly sand from the lawful authority without their

consent, moved it in order to such taking and thereby the

accused committed an ofence punishable under section 379 of

the Indian Penal Code?”

2. “Whether the prosecution proved beyond reasonable doubt

that the accused on the same date, time, and place committed

mischief to public property by committing theft of sand and

thereby the accused committed an ofence punishable under

section 3 of the Prevention of Damage to Public Property Act?”

3. What order?

13.My answer to the above points are as under.

Point No – 1:In the Negative

Point No – 2:In the Negative

Point No – 3:As per the fnal order for the following

REASONS

14. Point No – 1 and 2:

These points are taken up together for common discussion since they are interrelated with reference to the nature of the ofence committed by the accused.

15.I have perused the oral and documentary evidence. Now, to prove the ofences under Section 379 of the Indian Penal Code and Section 3 of the Prevention of Damage to Public Property Act, the prosecution must prove:-  That the Accused committed theft of sand from Polavaram reach .

 That the Accused committed acts of mischief by damaging Polavaram reach belonging to the Government.

16.Now, to prove the ofence under section 379 of the Indian Penal

Code and section 3 of the Prevention of Damage to Public Property Act, the prosecution must prove that the accused committed theft of sand from

Polavaram reach belonging to the Government and he committed acts of mischief and damaged public property. To prove the same the prosecution 6 examined PW’s.1 and 2 and got marked Exs.P1 to P4. It is the case of prosecution that on 17.07.2021 PW.1 and his staf proceeded to Thallur village of Thallur Mandal, at about 14:00 hours, and they found one tractor belongs to accused along with 4 tons of the sand. Immediately, he enquired the driver of tractor, i.e., the accused about permission to transport the sand, on that he failed to produce any permission to transport the sand. On further enquiry, the accused confessed that he committed the sand theft from Polavaram reach. Immediately, PW.1 arrested the accused, seized the tractor bearing registration No. AP39 TR 6505 along with its trailer bearing registration No. AP07 TD 3493 and sand under Ex.P1/Special report. Basing on Ex.P1/Special report, PW.2 registered a case in Cr. No.121/2021, under section 379 of the Indian Penal Code, section 21(2) of Mines and Minerals (Development & Regulation) Act, 1957 against the accused and submitted

Ex.P2/FIR to the Hon'ble Court and its copies to the ofcers concerned.

During the course of the investigation, PW.2 examined PW.1 and other staf members, recorded their detailed statements under section 161 (3) of the

Code of Criminal Procedure, visited the scene of ofence and drafted rough sketch, issued notice to the accused under section 41-A of Code of Criminal

Procedure. During the course of further investigation, PW.2 sent a requisition to the Tahsildar, Thallur for conducting the auction on the seized sand, in turn, on 23.07.2021, PW.2 conducted the auction of the sand and remitted the auction amount of Rs.1100/- to the Mines and Geology department. Later after completion of investigation, Sub-Inspector of Police fled the charge sheet against accused.

17.As can be seen from the evidence of PW’s.1 and 2, admittedly

PW.1 and PW.2 are the SEB Sub-Inspector and Head Constable of Thallur

Police station. So, when PW’s.1 and 2 are the Police Ofcers, their evidence has to be scrutinized with caution and see whether the seizure of tractor was true and made as per the procedure prescribed under Law.

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18. PW.1/SEB Sub-Inspector, who seized the crime vehicle along with loaded sand admitted that he did not issue any written summons to secure MRO, VRO, VRA and Panchayat secretary of Thallur village. PW.2 admitted that he has not fled any documents showing polavaram reach is prohibited area. PW.2 denied the suggestion that he never visited the scene of ofence and did table investigation in this case. So, when PW.1 admitted that he did not issue any written notice to secure mediators, it shows that the PW.1 did not secure any mediators for the seizure of the tractor along with sand in the scene of ofence. So, it shows that the investigating ofcer did not follow the procedure prescribed under Section 100(4) of the Code of

Criminal Procedure Code, wherein, it mandates that “before making search the ofcer about to make it, shall call upon two or more independent and respectable persons of the locality in which, the place is to be searched to attend and witness the search and may issue an order in writing to them” and 100(5) envisages that "the search shall be made in their presence and the list of things seized shall be prepared by the ofcer and signed by such witnesses" and Section 100(7) shows that "a copy of the list of things seized shall be given to the person from whom the property is seized". But, there is no evidence on record to show, that PW.1 and his staf followed the procedure prescribed under Sections 100 (4), (5), and (7) while seizing the tractor in the scene of ofence. Admittedly, the scene of ofence is a busy locality, but PW.1 did not issue any written summons to any persons to act as mediators particularly to the revenue ofcials, for the seizure of tractor. So, under the above circumstances the evidence of PW.1 cannot be believed to be trustworthy as he failed to comply with the mandatory provisions under sections 100(4), (5), and (7) of the Criminal Procedure Code, at the time of seizure of crime vehicle along with sand.

19.It is a settled proposition of law that Sub section 4 to section 100 8 of the Criminal Procedure Code is a directory provision. However, the explanation of the non-joining of independent witnesses should also be plausible. In nearly each and every case, a general explanation is given that no public witness volunteered to join the search/investigation or seizure and it appears that even the “directory” provision has been made nugatory. In this case, PW.1 failed to ofer even such general explanation and maintained silence during his cross examination. Such a vital provision cannot be made a dead letter in the statute book as it is intended to curb any false recovery.

There is every possibility of false planting of the case property by the police party against the accused person cannot be ruled out beyond doubt, which makes the story of prosecution qua the seizure of the sand at the instance of accused from the above said tractor is highly doubtful. So, it creates a doubt over the evidence of PW.1 and PW.2, who are Police witnesses with respect to the commission of theft of sand by the accused and thereby caused damage to the public property and there are various discrepancies in the evidence of

PW.1 and PW.2. PW.2 failed to investigate whether the Polavaram reach was sand reach point or not and Ex.P3 is totally silent about Polavaram reach and preparing rough sketch at the place of seizure instead of actual scene of ofence i.e., from where the accused committed theft of sand and thereby caused damage or mischief to the public property is no way helpful to the prosecution to prove its case.

20.From the said evidence of PW.1 and PW.2, it is quite clear that except the alleged oral confession statement of the accused to the efect that he is transporting the sand without permission or licence, absolutely no reliable evidence is placed on record that the accused committed theft of sand in question from Polavaram reach. Further, assuming for a moment that the evidence of PW.1 and PW.2 to the efect that the accused stated before them that he is transporting the sand from Polavaram reach without any licence, is true, it is not known why PW.1 did not record such confession 9 statement from the accused separately. Therefore, in the absence of any written confession statement separately from the accused, the evidence of

PW.1 that the accused made oral confession before him appears to be not believable. The fact remains, except the interested testimonies of PW.1 and

PW.2, absolutely no reliable either oral or documentary evidence is placed on record to connect the accused for the ofence with which he is charged.

21.It is also the evidence of the PW.2 that the seized sand was auctioned by him on 23.07.2021 but his evidence is silent about the procedure followed by him to conduct auction. To prove the same, the prosecution did not choose to examine any sand auction mediators or the bidders. PW.2 merely testifed that as per the requisition, Tahsildar granted permission to him and he conducted an auction on seized sand and one A.

Adam is highest bidder for an amount amount of Rs.1100/- and PW.2 remitted the same to the government on same day vide challan bearing CFMS transaction ID 50058618302021. This seems that the said auction and its proceedings were concocted one.

22.It is the core contention of the learned Assistant Public

Prosecutor for the state that as per the orders of the Court, the seized tractor

AP39 TR 6505 and its trailer AP07 TD 3493/ M.O.1 was given interim custody to one CH. Ramana Reddy. Hence, the court has to believe the seizure of crime vehicle. But, itmay be mentioned here that simply because the tractor in question was given interim custody to its respective owner in the absence of establishing from where and how the accused committed theft of the sand in question and in the absence of establishing the connection between the accused and the sand load in the tractor, it cannot be said that accused is guilty of the ofence with which he is charged.

23.Hence, it is held that the evidence of PW.1 and 2 cannot be believed and accepted to be true, as PW.1 failed to follow the mandatory 10 procedure prescribed under Law, for seizure of case property and there are lapses in the investigation done by PW.2. Moreover, Ex.P3 is totally silent about Polavaram reach and as per version of PW.2 even he could secure any documents to prove that the Polavaram reach is a sand reach point. So, when the evidence of PW.1 and PW.2 is held to be not trustworthy and when the alleged seizure of crime vehicle along with sand was not made according to the procedure prescribed under Law and when the sand said to be committed theft by the accused was not proved properly, it creates a reasonable doubt over the case of the prosecution and hence, it is held that prosecution failed to prove the necessary ingredients for the ofences punishable under Section 379 of the Indian Penal Code and Section 3 of Prevention of Damage to Public

Property Act against accused, beyond all reasonable doubt. Hence, the beneft of doubt goes in favour of the accused and he is entitled to acquittal.

24.It is the cardinal principle of criminal jurisprudence that the accused is presumed to be innocent, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of ofence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. In a criminal trial, the burden of proving everything essential to the establishment of the charge against accused is always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that “while the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability”. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that "in criminal cases, the burden is always is on prosecution and never shifts".

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25.In the light of the above discussion and appreciation of evidence and giving my thoughtful considerations to the arguments advanced at the bar, this Court is of the view that the prosecution has not been able to prove its case beyond a shadow of reasonable doubt against the accused for the ofence under section 379 of the Indian Penal Code and Section 3 of

Prevention of Damage to Public Property Act. Hence these two points are answered in Negative.

26.So far as the order regarding disposal of the case property is concerned, it may be mentioned here that as per the evidence of PW.2 the sand load in the tractor was sold away by him in the auction and the sale proceeds of Rs.1100/- was remitted to the State vide challan bearing CFMS

Transaction ID: 50058618302021 dated 23.07.2021 under Ex.P4. The record further goes to show that based on the orders of the Court dated 27.10.2021 in Crl.M.P. No.324 of 2021, the tractor AP39 TR 6505 and its trailer AP07 TD 3493 was given interim custody to its respective owner namely CH. Ramana

Reddy. Since the prosecution has failed to establish its case against accused the tractor which was given interim custody to its respective owner shall be retained with him on the same conditions imposed earlier till the expiry of the appeal time. As the case of accused is one of total denial of the ofence with which he is charged, and since he have not claimed the sand seized, the sale proceeds have to be confscated to the State. Since the sale proceeds of sand of Rs.1100/- were already remitted to the State, no order need be passed in that regard.

27. POINT NO. 3:

In the result, the accused is found not guilty for the ofences under Section 379 of the Indian Penal Code and Section 3 of Prevention of

Damage to Public Property Act, and accused is acquitted under Section 248(1) of the Criminal Procedure Code for the ofences under Section 379 of 12 the Indian Penal Code and Section 3 of Prevention of Damage to Public

Property Act and his bail bonds shall remain in force for six months, as required undersection 437-A of the Criminal Procedure Code. The property under C.P.R. No.172/2021, i.e., M.O.1 (tractor bearing registration No. AP39

TR 6505 and its trailer bearing registration No. AP07 TD 3493) is already returned to its registered owner one CH. Ramana Reddy for interim custody as per orders in Crl.M.P. No.324/2021, dated:27.10.2021 the said orders shall be absolute after the expiry of appeal time. Ofce is directed to Original documents of the sureties and CH. Ramana Reddy be returned to them after the cancellation of the endorsements if any, on the same.

28.File be consigned to record room after necessary compliance.

29.This judgment contains thirteen(13) pages and each page is checked and signed by me.

Typed to my dictation by the Typist, corrected and pronounced by me in the open Court on this the 13 th day of April, 2022.

Sd/- S. Vani

Judicial Magistrate of First Class,

Darsi

Appendix of evidence

Witnesses examined for

Prosecution:- Defence:-

PW.1: M. Sreedhar Babu -None-

PW.2: G. Mohan Rao

Exhibits marked for

Prosecution:-

Ex.P1: Special report

Ex.P2: Original F.I.R. in Cr. No.121/2021

Ex.P3: Rough sketch of the scene of ofence

Ex.P4: Challa bearing No. CFMS transaction ID 50058618302021,

dated: 23.07.2021.

13

Defence:- Nil

Material Objects

M.O.1: tractor bearing registration No. AP 07 TD 3493

ILD/-S.V J.M.F.C., Darsi.

// True Copy //

Judicial Magistrate of First Class,

Darsi.

14

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS

: DARSI. ::

446 of 2021

CALENDAR AND JUDGMENT IN C.C. No. (Crime No. 121/2021 of Thalluru Police Station)

1. Date of Ofence: 17.07.2021

2. Date of Report: 17.07.2021

3. Date of taken on fle: 23.10.2021

4. Date of arrest of accused: Issued Sec. 41(A) Cr.P.C. notices

5. Date of release: - - -

6. Date of commencement of trial: 08.03.2022

7. Date of close of trial: 08.03.2022

8. Date of Judgment: 13.04.2022

9. Complainant: State: Sub Inspector of Police Thalluru P.S.(Cr. No. 121/2021)

10. Accused:

Thupakula Siva Narayana, S/o Venkata Rao, 24 years, Yanadi by caste, Yanadi Sangam, Rajanagaram Village of Thalluru Mandal, driver of Tractor bearing No. AP 39 TR 6505

11. Ofence/s: U/sec.379 of I.P.C. & Sec. 3 of P.D.P.P. Act

12. Plea of accused: Pleaded not guilty

13. Finding of Court: Found not guilty

14. Sentence or Order: In the result, the accused is found not guilty for the ofences under Section 379 of the Indian Penal Code and Section 3 of Prevention of

Damage to Public Property Act, and accused is acquitted under Section 248(1) of the Criminal Procedure Code for the ofences under Section 379 of the Indian Penal Code and Section 3 of Prevention of Damage to Public

Property Act and their bail bonds shall remain in force for six months, as required undersection 437-A of the Criminal Procedure Code. The property under C.P.R. No.172/2021, i.e., M.O.1 (tractor bearing registration No. AP39

TR 6505 and its trailer bearing registration No. AP07 TD 3493) is already returned to its registered owner one CH. Ramana Reddy for interim custody as per orders in Crl.M.P. No.324/2021, dated:27.10.2021 the said orders shall be absolute after the expiry of appeal time. Ofce is directed to Original documents of the sureties and CH. Ramana Reddy be returned to them after the cancellation of the endorsements if any, on the same.

Explanation for delay: -This case was taken on fle on 23.10.2021 for the ofences punishable u/Sec.379 of I.P.C. and Sec. 3 of P.D.P.P. Act against the accused. On 03.11.2021, after appearance of accused, copies of all the 15 documents furnished to him as contemplated u/Sec. 207 of Cr.P.C. On 14.12.2021, accused is examined u/Sec.239 Cr.P.C. On behalf of prosecution,

PW.1 and PW.2 examined, got marked Exs.P1 to P4 besides M.O.1.

Hence, prosecution side evidence closed. After closure of prosecution evidence, the accused is examined u/Sec.313(1)(b) of Cr.P.C., for which he denied the incriminating material appeared against him from the prosecution evidence and reported ‘no defence evidence’. Hence, defence side evidence closed. On 13.04.2022, arguments heard and on the same day, i.e., on 13.04.2022, Judgment is pronounced by acquitted the accused u/Sec.248 (1)

Cr.P.C. Hence the delay.

Sd/- S. Vani

Judicial Magistrate of First Class,

Thallur Copy submitted to : The Hon’ble I-Addl. District & Sessions Judge, Ongole // True Copy //

Judicial Magistrate of First Class,

Darsi.

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST

CLASS :: DARSI

PRESENT: Ms. S. Vani,

Judicial Magistrate of First Class, Darsi

Tuesday, this the Twelfth (12th) day of April, 2022

CALENDAR CASE NO. 36 of 2021

(Cr. No.29/2019 of SEB Darsi police station)

Between:

State: Sub Inspector of Police, SEB., Darsi police station … Complainant

AND

1. Gandham China Dibbaiah, S/o China Venkataiah, 43 years, Madiga by caste, Abbayapalem Village, Darsi Mandal.

2. Talluri Pagulu, S/o Pedda Narasaiah, 38 years, Madiga by caste, Abbayapalem Village, Darsi Mandal.

... Accused

This case coming before me on this day, i.e., 19.03.2021 for fnal hearing in the presence of Learned Assistant Public Prosecutor, for the

Complainant and of Sri V. Ramana Reddy, Learned Advocate for accused, and upon perusing the material available on record, and upon hearing the arguments and having stood over for consideration to this day, till this day, this Court delivered the following:-

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

1.The State represented by the Sub Inspector of Police, SEB police station, Darsi laid charge sheet against the accused 1 and 2 in Crime

No.29/2019 for the ofence punishable U/Sec.34(a) of A. P. Excise Act, 1968.

2. The allegations in the charge sheet are as follows:

On 03.04.2019, PW.1-A. Padmaja, Prohibition and Excise Sub-

Inspector along with PW.2-Mulla Mahimood, Lw.3-A. Srinivasulu left the station in government hired vehicle and proceeded for Venkatachalam palli cross road of Darsi Mandal, at that time the election fying squad team stopped one vehicle with accused persons carrying a plastic bag. Then PW.1 caught hold the accused. On enquiry, the accused confessed that the plastic bag contains liquor bottles. Since they failed to secure mediators PW.1 decided to inscribe special report and opened the bag and found '42' bottles of Bagpiper premier whisky (180 ml each). Then PW.1 questioned and obtained the identity particulars of the accused persons and also questioned the accused persons about having any valid licence or permit to the liquor bottles, but they failed to produce the same. Thereupon, PW.1 drawn sample bottle, sealed and afxed identity slips duly signed by her along with her staf and the accused 1 and 2, arrested the accused 1 and 2 after informing the grounds of their arrest as contemplated u/Sec.50, 50(A) and 51 Cr.P.C procedure seized the contraband and sample bottles under cover of Special report. Then PW.1 left the place and returned to station along with accused 1 and 2 and seized property and registered the Special report as a case in

Cr.No.29/2019, U/Sec. 34(a) of A. P. Excise Act, 1968 and send the accused persons to judicial remand. During the course of investigation, PW.2 forwarded the sample bottle along with letter of advice and requisition to the

Chemical Examiner for analysis purpose. On analysis of sample, the

Chemical Examiner opined that the sample is ‘Indian Liquor’. After completion of investigation, Lw.4-T. B. Rajendra Prasad, SEB Inspector of

Police fled charge sheet against the accused 1 and 2 u/Sec. 34(a) of A.P.

Excise Act, 1968.

3. Cognizance:

The Charge Sheet was taken on fle U/Sec.34(a) of A. P. Excise

Act, 1968 against accused 1 and 2.

4. Compliance of section – 207 of the Code of Criminal Procedure:

On the appearance of accused 1 and 2, copies of the case documents are furnished to them as contemplated U/Sec.207 of Code of

Criminal Procedure (Cr.P.C. in brevity).

5. Examination and charge:

The accused 1 and 2 were examined U/Sec.239 Cr.P.C. The charge under Section 240 Cr.P.C was framed for the ofence U/Sec.34(a) of A.

P. Excise Act, 1968 and was read over and explained to accused 1 and 2 in

Telugu to which they denied and pleaded not guilty and claimed to be tried.

Hence, the trial.

6. Evidence adduced by prosecution:

During the Course of the trial, the prosecution has examined

PW.1 and PW.2 and marked Exs.P1 to P4 besides M.O.1 as indicated in the appendix of evidence. In order to avoid repetition of evidence, the learned Assistant Public Prosecutor given up the evidence of Lw.3-A.

Srinivasulu, and Lw.4-T. B. Rajendra Prasad, Inspector of police. Ex.P1 is the

Special report, Ex.P2 is Original F.I.R, Ex.P3 is letter of advice and Ex.P4 is

Analysis report. M.O.1 is 180 ML sample bottle of Bagpiper premier whisky.

7. Statement of Defence:

After cessation of the prosecution evidence the accused 1 and 2 are examined u/Sec.313(1)(b) of Cr.P.C. Each and every incriminating circumstances found in the evidence of the prosecution against the accused 1 and 2 is separately read over to the accused persons. The accused 1 and 2 denied all such circumstances as false. The accused persons did not choose to adduce defense evidence and submitted that they are falsely implicated in this case.

8. ARGUMENTS:

I have heard the rival submissions by Learned Assistant Public

Prosecutor for state and by Learned counsel for accused 1 and 2 and gone through the case record in the backdrop of evidences presented before this court by the prosecution side.

9. Arguments advanced by Learned Assistant Public Prosecutor:

During the course of the arguments, Learned Assistant Public

Prosecutor for the State has submitted that the prosecution has been able to prove the guilt of the accused 1 and 2 beyond the reasonable doubt. It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused 1 and 2 beyond the reasonable doubt.

10. Arguments advanced by Defence Counsel:

Per contra Learned Defence counsel contended that the prosecution story does not inspire confdence and the accused 1 and 2 falsely implicated in this case.

11.Now the point for determination is:-

“Whether the prosecution proves beyond all reasonable doubt

that the accused 1 and 2 was found in possession of illicit liquor and

transporting/manufacturing/selling the same without obtaining any

valid license or permit and thereby accused 1 and 2 have committed

the ofence punishable under Section 34(a) of Andhra Pradesh

Excise Act, 1968?”

12. POINT:-

I have carefully perused the evidence brought on record. In order to bring home the guilt of the accused 1 and 2, the prosecution has to establish that the accused persons were found in illegal possession of ''42'' liquor bottles which is in contravention of Section 34(a) of A.P. Excise Act, 1968.

13.The evidence available on record is the evidence of PW.1 and

PW.2 and PW.1 and PW.2 were cross-examined by the learned counsel for the accused persons by stating that PW.1 and PW.2 registered the false case against the accused 1 and 2 for statistical purpose.

14.Admittedly PW.1 and PW.2 are Police ofcials and there are no independent mediators secured by PW.1 and PW.2 in this case. The evidence available on the record is the evidence of PW.1 and PW.2 who happened to be head Constable and Sub-Inspector of police. PW.1 and PW.2 in their evidence deposed that on 03.04.2019, at about 01:30 P.M., PW.1 along with

PW.2 and other staf members proceeded to Venkatachalam palli cross road of Darsi mandal and at that time the election fying squad team stopped one vehicle with accused persons carrying a plastic bag. Then PW.1 caught hold the accused. On enquiry, the accused persons confessed that the plastic bag contains liquor bottles. Immediately PW.1 searched the bag and found the '42' bottles of Bagpiper premier whisky (180 ml each). Then PW.1 enquired the accused about possession of liquor bottles and having any valid license for having possession of liquor bottles, but the accused failed to produce the same. Later, PW.1 arrested the accused by explaining the reasons for his arrest and also seized the liquor bottles under the cover of Ex.P1 Special report and lifted one sample bottle i.e., M.O.1. Basing on Ex.P1/Special report, PW.1 registered a case in Cr. No.29/2019, U/Sec.34(a) of A.P. Excise

Act, 1968 and submitted the original F.I.R i.e., Ex.P2 to the Hon’ble Court and issued sent the accused persons to judicial remand. During the course of investigation, PW.1 forwarded the sample bottle along with letter of advice and requisition to the Chemical Examiner for analysis purpose. On analysis of sample, the Chemical Examiner opined that the sample is ‘Indian Liquor’.

After completion of investigation, SEB Inspector of polce fled charge sheet against the accused.

15.During the course of cross-examination of PW.1, she admitted that the scene of ofence is busy locality and she did not issue any written summons to secure mediators. PW.2 admitted in his cross-examination that the scene of ofence is busy locality. He further admitted that PW.1 did not issue any written summons to V.R.A, V.R.O, Panchayat secretary of veluguvaripalem to act as mediators in this case. PW.1 and PW.2 denied the suggestion that they never seized any liquor bottles from the possession of accused 1 and 2, did not arrest the accused persons while they were alleged possession of liquor bottles and foisted a false case against the accused 1 and 2 only for statistical purpose.

16.As seen from the record, except the interested testimony of PW.1 and PW.2, who are Police Ofcials, there is no independent evidence available on record. Moreover, the entire case is based on Ex.P1/Special report. Admittedly, no mediators were present who witnessed search and seizure. On a careful perusal of the evidence of PW.1 and PW.2, it is quite evident that PW.1 failed to follow the prescribed procedure as contemplated under section 100(4) Cr.P.C during the search and seizure. Admittedly, no summons were served on the revenue ofcials calling them to act as mediators. If the fact that their eforts to secure the mediators were went in vain is true, what prevented the police ofcials to take appropriate legal action against the persons refused to assist them. PW.1 failed to follow the procedure prescribed under section 100(4) of Cr.P.C. It is expedient to have a glance on Sec. 100(4) of Cr.P.C for better appreciation of the evidence in this case.

“Sec. 100(4) of Cr.P.C reads as follows: Before making a search

under this Chapter, the ofcer or other person about to make it shall

call upon two or more independent and respectable inhabitants of

the locality in which the place to be searched is situate or any other

locality if no such inhabitant of the said locality is available or is

willing to be a witness to the search, to attend and witness the

search and may issue an order in writing to them or any of them so

to do...”. As per the Sec. 100(4) of Cr.P.C, when the independent mediators in that locality are not available, the police ofcials have to record the same and issue an order in writing as prescribed above. It is pertinent to note here that PW.1 and PW.2 admitted in their cross-examination that the scene of ofence is a revenue village and Mandal as well scene of ofence is busy locality. PW.1 and PW.2 further admitted that PW.2 did not try to secure any public servants as mediators and PW.2 did not issue any written notices to any person to act as mediators and also did not try to secure VRA, VRO and

Panchayat Secretary as mediators.

17.It is clear from the record that no such procedure was adopted by the investigating ofcer. It is a settled law that in absence of independent mediators the entire procedure vitiates the case. I feel it is just and proper to go through the relevant case law in this regard. The Hon’ble High Court of

A.P. in the case of ‘S.Babu Saheb @ babu Vs. The State of A.P’ reported in ‘2010 (1) A.L.T (Crl.) 32 A.P’ held that: “when they are conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the police ofcials or prohibition ofcers are bound to take the local respectable independent inhabitants. They must make sincere eforts to secure local respectable mediators, that is the mandate of Section 100(4) of Cr.P.C. As referred to in the above provision, the police ofcials are also authorised to issue an order in writing asking them to act as mediators under sub section 4 of section 100 of Cr.P.C. The object of Section 100 of Cr.P.C is to ensure confdence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted”. As held in the above authority, the investigating ofcer/PW.1 failed to follow the prescribed procedure as contemplated and non securing of independent mediators by the police ofcials is creating doubt on the entire prosecution case.

18.As seen from the record, no special circumstances are appearing to explain what compelled the PW.1 to proceed under Ex.P1 Special report, though the scene of ofence is not an isolated area and the time of arrest is not an odd hours. Except the confession of the accused 1 and 2, no other evidence on record to show that the accused persons having possession of ''42'' liquor bottles. However, confession of accused before the police ofcer is totally inadmissible as per section 25 of Indian Evidence Act, 1872. For all these reasons, it is not safety to rely upon the testimony of PW.1 and PW.2.

Hence, the search and seizure of ''42'' liquor bottles from the possession of the accused 1 and 2 is not proved. There is no basis to prove that accused persons possessed the same for the purpose of selling them. Therefore, there is no cogent and corroborating evidence to implicate the complicity of the accused 1 and 2 in commission of the ofence. Thus, the prosecution has failed to bring home the guilt of the accused 1 and 2 beyond all reasonable doubt. The point is answered accordingly in favour of the accused 1 and 2 and against the prosecution.

19.IN THE RESULT, Accused 1 and 2 are found not guilty for the ofence u/Sec.34(a) of A.P Excise Act, 1968. Accordingly the accused 1 and 2 are acquitted u/Sec.248(1) Cr.P.C. The bail bonds of the accused persons shall remain in force for the next six months, as required u/Sec. 437-A Cr.P.C.

The property under C.P.R. No. 50/2019, i.e., M.O.1 (180 ML sample bottle of

Bagpiper premier whisky) shall be destroyed after appeal time.

Typed to my dictation by the Typist, corrected and pronounced by me in the open Court on this the 12 th day of April, 2022.

Sd/- S. Vani

Judicial Magistrate of First Class,

Darsi

Appendix of evidence

Witnesses examined for

Prosecution:- Defence:-

PW.1: A. Padmaja -None-

PW.2: M. Mohammad

Exhibits marked for

Prosecution:-

Ex.P1: Special Report

Ex.P2: Original F.I.R. in Cr. No.29/2019

Ex.P3: Letter of advice

Ex.P4: Analysis report

Defence:- Nil

Material Objects

M.O.1: 180 ML sample bottle of Bag Piper Premium Whiskey.

ILD/- S.V J.M.F.C., Darsi

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS

:: DARSI ::

36 of 2021

CALENDAR AND JUDGMENT IN C.C. No. (Crime No.29/2019 of SEB Darsi police station)

1. Date of Ofence: 03.04.2019

2. Date of Report: 04.04.2019

3. Date of taken on fle: 17.03.2021

4. Date of arrest of accused: 04.04.2019

5. Date of release: 08.04.2019

6. Date of commencement of trial: 11.03.2022

7. Date of close of trial: 08.04.2022

8. Date of Judgment: 12.04.2022

9. Complainant: State: Sub Inspector of Police, SEB Dadrsi P.S. (Cr. No.29/2019)

10. Accused:

1. Gandham China Dibbaiah, S/o China Venkataiah, 43 years, Madiga by caste, Abbayapalem Village, Darsi Mandal.

2. Talluri Pagulu, S/o Pedda Narasaiah, 38 years, Madiga by caste, Abbayapalem Village, Darsi Mandal.

11. Ofence/s: U/sec.34 (a) of A.P. Excise Act

12. Plea of accused: Pleaded not guilty

13. Finding of Court: Found not guilty

14. Sentence or Order:

IN THE RESULT, Accused NO.1 and 2 are found not guilty for the ofence u/Sec.34(a) of A.P Excise Act, 1968. Accordingly the accused No.1 and 2 are acquitted No.1 and 2 u/Sec.248(1) Cr.P.C. Their bail bonds of the accused shall remain in force for the next six months, as required u/Sec.

437-A Cr.P.C. The property under C.P.R. No. 50/2019, i.e., M.O.1 (180 ML sample bottle of Bagpiper premier whisky) shall be destroyed after appeal tim.

Explanation for delay: - This case was taken on fle on 17.03.2021 for the ofences punishable u/Sec.34(a) of A.P. Excise Act against the accused No.1 and 2. On 25.11.2021, after appearance of accused No.1 and 2, copies of all the documents furnished to them as contemplated u/Sec. 207 of Cr.P.C. On 30.11.2021, accused NO.1 and 2 are examined u/Sec.239 Cr.P.C. On behalf of prosecution, PW.1 and PW.2 examined, got marked Exs.P1 to P4 besides

M.O.1. Hence, prosecution side evidence closed. After closure of prosecution evidence, the accusedn NO. 1 and 2 are examined u/Sec.313 (1) (b) of

Cr.P.C., for which they denied the incriminating material appeared against them from the prosecution evidence and reported ‘no defence evidence’.

Hence, defence side evidence closed. On 12.04.2022, arguments heard and on the same day, i.e., on 12.04.2022, Judgment is pronounced by acquitted the accused u/Sec.248 (1) Cr.P.C. Hence the delay.

Sd/- S. Vani

Judicial Magistrate of First Class,

Darsi

Copy submitted to :

The Hon’ble I-Addl. District & Sessions Judge, Ongole

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE :: DARSI

PRESENT: Ms. S. VANI,

JUNIOR CIVIL JUDGE, DARSI

Monday, this the 29 th day of October, 2018

ORIGINAL SUIT No. 108 of 2018

Between

Yerraguntla Rajaiah, S/o Chinna Lakshmaiah, aged about 47 years, Hindu, Agriculturist, R/o Bhumanapalli Village, Donakonda Mandal, Prakasam District ... Plaintif

And.,

1. Yerraguntla Seethamma, W/o late Venkateswarlu, aged about 55 years, Hindu, Housewife, R/o Bhumanapalli Village, Donakonda Mandal, Prakasam District

2. Yerraguntla Kalpana, W/o Krishna, D/o late Venkateswarlu, aged about 30 years, Hindu, Housewife, R/o Bhumanapalli Village, Donakonda Mandal, Prakasam District

3. Yerraguntla Sumalatha, W/o Srinivasa Rao, aged about 27 years, Hindu, Housewife, R/o Bhumanapalli Village, Donakonda Mandal, Prakasam District

4. Challapalli Bhulakshmi, W/o Sandeep, aged about 25 years, Hindu, Housewife, R/o Bhumanapalli Village, Donakonda Mandal, Prakasam District

... Defendants

This case coming before me on 26-10-2018 for final hearing in the presence of Sri V. Ranga and Sri K. Ramesh Babu, Advocates for the Plaintiff and the Defendants remained ex-parte, and having stood over for consideration, till this day, this Court made the following;

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

This is a suit for recovery of amount of Rs.1,13,388/- being the principal and interest due on a promissory note dated 10-05-2015 and costs.

2.The averments of the plaint, in brief, are as follows:

One Yerraguntla Venkateswarlu, who is the husband of first defendant and father of defendants 2 to 4, borrowed an amount of Rs.82,500/- on 10-05-2015 from the plaintiff for his family expenses and duly executed a promissory note on the same day at Bhumanapalli Village, Donakonda Mandal in favour of the plaintiff, agreeing to repay the same with interest @ 18% per annum payable to the plaintiff or his order on demand. Subsequently, the plaintiff being need of money demanded Yerraguntla Venkateswarlu personally for repayment of debt due under suit promissory note, but he went on postponing the same. Later, the said Yerraguntla Venkateswarlu died intestate on 29-09-2016 without discharging 2 the suit debt. He left behind him the defendants as his legal representatives. The estate of the deceased Yerraguntla Venkateswarlu devolved upon the defendants and they are enjoying the same. The defendants are having personal knowledge of the suit debt and subsequently after his death the plaintiff personally demanded the defendants to repay the suit debt with interest but they are failed to comply the demand with a view of evasion. The defendants were due an amount of Rs.1,13,388/-. Hence, he filed the suit.

3.The defendants remained ex-parte.

4.To establish his case, the plaintiff himself examined as PW.1 and got marked

Ex.A1.

Ex.A1 is the promissory note, dated 10-05-2015 executed by Yerraguntla

Venkateswarlu

5.Heard the learned counsel for the plaintiff.

6.The point for consideration is,

“Whether the plaintiff is entitled to recover the suit amount from

the defendants as prayed for?”

POINT:

7.I have carefully gone through the oral and documentary evidence adduced by the plaintiff. There is no dispute that the original borrower by name Yerraguntla

Venkateswarlu is husband of first defendant and father of defendants 2 to 4. The plaintiff filed the suit for recovery of an amount of Rs.1,13,388/- basing on Ex.A1 suit promissory note, dated 10-05-2015. In order to prove the suit claim, the plaintiff himself examined as PW.1 and got marked Ex.A1 document. The plaintiff as PW.1 filed his examination-in-chief in the form of chief- affidavit and re-iterated the plaint averments in verbatim. According to him, one Yerraguntla

Venkateswarlu has borrowed an amount of Rs.82,500/- on 10-05-2015 from him for his family expenses and executed pronote and also agreed to repay the same with interest @ 18% per annum payable to the plaintiff or his order on demand. It 3 is the further evidence of PW.1 that Yerraguntla Venkateswarlu failed to repay the loan amount despite repeated demands and later he died leaving behind the defendants as his legal heirs. Ex.A1 suit promissory note, dated 10-05-2015 clinchingly goes to show that Yerraguntla Venkateswarlu has availed loan of

Rs.82,500/- and executed Ex.A1 promissory note. As already noticed, the defendants 1 to 4 remained ex-parte and did not choose to contest the matter and thus, the evidence of PW.1 remains intact and goes unchallenged. The original borrower Yerraguntla Venkateswarlu is husband of first defendant and father of defendants 2 to 4 died prior to filing of the suit without discharging the suit debt. The version of the plaintiff is that the estate of the deceased

Yerraguntla Venkateswarlu devolved upon the defendants and they are enjoying the same and that therefore, the plaintiff is entitled to decree against the estate of Yerraguntla Venkateswarlu lying in the hands of the defendants. It is well established law that the legal heirs of deceased Yerraguntla Venkateswarlu have pious obligation to discharge the debts incurred by the original borrower. The defendants being wife and children of deceased Yerraguntla Venkateswarlu are liable to pay the suit debt from out of estate of deceased lying in their hands. The plaintiff is entitled for decree as prayed for. Hence, the point is answered accordingly.

9. In the result, the suit is decreed with costs for Rs.1,13,388/- in favour of the plaintiff with subsequent interest @ 12% per annum from the date of filing of suit till the date of decree and @ 6% per annum from the date of decree till realization on the principal amount of Rs.82,500/- . The defendants 1 to 4 are directed to pay the said amount from out of the estate of deceased Yerraguntla

Venkateswarlu lying in their hands.

Typed to my dictation by the Personal Assistant of this Court corrected and pronounced by me in open Court, this the 29 th day of October, 2018

Junior Civil Judge, Darsi 4

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

F or Plaintif: For Defendants: PW.1: Yerraguntla Rajaiah - Ex-parte -

EXHIBITS MARKED

For Plaintif:

Ex.A1: Promissory note, dt.10-05-2015 for Rs.82,500/- executed by Yerraguntla

Venkateswarlu

For Defendants: NIL

J.C.J., Darsi.

IN THE COURT OF THE JUNIOR CIVIL JUDGE :: DARSI

PRESENT: Ms. S. VANI,

JUNIOR CIVIL JUDGE, DARSI

Monday, this the 29 th day of October, 2018

ORIGINAL SUIT No. 108 of 2018

Between

Yerraguntla Rajaiah, S/o Chinna Lakshmaiah, aged about 47 years, Hindu, Agriculturist, R/o Bhumanapalli Village, Donakonda Mandal, Prakasam District ... Plaintif

And.,

1. Yerraguntla Seethamma, W/o late Venkateswarlu, aged about 55 years, Hindu, Housewife, R/o Bhumanapalli Village, Donakonda Mandal, Prakasam District

2. Yerraguntla Kalpana, W/o Krishna, D/o late Venkateswarlu, aged about 30 years, Hindu, Housewife, R/o Bhumanapalli Village, Donakonda Mandal, Prakasam District

3. Yerraguntla Sumalatha, W/o Srinivasa Rao, aged about 27 years, Hindu, Housewife, R/o Bhumanapalli Village, Donakonda Mandal, Prakasam District

4. Challapalli Bhulakshmi, W/o Sandeep, aged about 25 years, Hindu, Housewife, R/o Bhumanapalli Village, Donakonda Mandal, Prakasam District

... Defendants

This is a suit for recovery of amount of Rs.1,13,388/- being the principal and interest due on a promissory note dated 10-05-2015 and costs.

Cause of action :- Cause of action for the suit arose on 10-05-2015 when the Yerraguntla Venkateswarlu, S/o Pedda Lakshmaiah borrowed money of Rs.82,500/- from the plaintiff for his necessities and duly executed a suit promissory note in favour of plaintiff on the same day and subsequently when the said Yerraguntla Venkateswarlu, S/o Pedda Lakshmaiah died on 29-09-2016 leaving behind the defendants and the estate of the deceased Yerraguntla Venkateswarlu, S/o Pedda Lakshmaiah devolved upon the defendants and as such all the defendants are liable to pay the suit debt but they are failed to discharge the debt amount with interest in-spite of repeated demands made by the plaintiff to the defendants for repayment of the above said debts. The same having arisen at Bhumanapalli Village, Donakonda Mandal, and this Court has got territorial jurisdiction to try the suit. Valuation and Court Fee:- For the purpose of court fee and jurisdiction the suit is valued at Rs.1,13,388/-, on which a court fee of Rs.3,626/-is paid U/Sec. 20 of A.P.C.F. & S.V. Act. Plaint presented on :02-06-2018 Plaint registered on :08-06-2018

This case coming before me on this day for final hearing in the presence of Sri V. Ranga and Sri K. Ramesh Babu,Advocates for the Plaintiff and the

Defendants remained ex-parte and having been heard and stood over for consideration, till this day, the Court doth order and decree :-

1. that the defendants 1 to 4 do pay to the plaintiff a sum of Rs.1,13,388/- from out of the estate of deceased Yerraguntla Venkateswarlu, which are lying in their hands, with future interest @ 12% per annum from the date of filing of suit i.e., 02-06-2018 till the date of decree i.e., 29-10-2018 and thereafter @ 6% per annum from the date of decree i.e., 29-10-2018 till the date of realization on the

principal amount of Rs.82,500/-; and;

2. that the defendants 1 to 4 likewise do also pay to the plaintiff a sum of Rs.7,154/- towards costs of the suit.

Given under my hand and the seal of the court, this the 29 th day of October, 2018

JUNIOR CIVIL JUDGE,

DARSI

TABLE OF COSTS

For Plaintif For Defendants Stamp on Vakalath: Rs. 2-00Ex-parte Stamp on plaint: Rs. 3,626-00 Process: Rs. 75-00 Advocate fee: Rs. 2,551-00 Publication charges: Rs. 800-00 Typing charges: Rs. 100-00 --------------------- Total Costs : Rs. 7,154-00 ---------------------

J.C.J., DARSI

N.B. :- The parties are hereby directed to take back the Exhibited documents and non-exhibited documents which are marked in the suit within one month time with an undertaking to produce the same as and when required by the court.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS ::

DARSI

Present: Ms. S. Vani, Judl. Magistrate of First Class, Darsi

Friday, this the Twenty-Eighth (28th) day of June, 2019

C.C. No. 166 of 2019

State : Sub-Inspector of Police,

Thallur police station ... Complainant

Vs.

Chinthala Samba Sivaiah, S/o Lakshmana Swami, 45 years, Kamma by caste, L.P. Road, Darsi. Driver of car bearing registration No. AP 27 H 2351

... Accused

This case coming on 27-06-2019 before me for fnal hearing in the presence of Learned Assistant Public Prosecutor, for the Complainant and of Sri B. Chennakesavulu, Learned Advocate for accused, and the matter is having stood over for consideration to this day, this Court passed the following:

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

1.The Sub-Inspector of Police, Thallur Police Station laid charge sheet in

Crime No. 84/2019 for the ofence punishable u/Sec. 338 of Indian Penal

Code (IPC in brevity) against the accused.

2.The allegations in the charge sheet are as follows:

On 05-05-2019, D. Suryanarayana Reddy and O. Sujith Reddy (Lws.1 and 2) went to East Gangavaram village on motorcycle for purchasing provisions and hair cutting of O. Sujith Reddy (Lw.2). After completion of their works, they return to Bellamkondavaripalem Village on their motorcycle and D. Suryanarayana Reddy (Lw.1) drove his motorcycle. At about 16.00 hours, D. Suryanarayana Reddy and O. Sujith Reddy (Lws.1 and 2) reached near Jahnavi Olympiad School, East Gangavaram, the accused, being the driver of car bearing registration No. AP 27 H 2351, drove his car in rash and negligent manner, drove in high speed and hit back side of motorcycle of D.

Suryanarayana Reddy (Lw.1), resulting which they fell down from the bike 2 and D. Suryanarayana Reddy (Lw.1) received bleeding injuries on his back side of the head, below the right leg knee and scratched injury on his left eye.

3.On 15-06-2019, this Court took cognizance for the ofence punishable u/Sec. 338 of Indian Penal Code (I.P.C. in brevity).

4.On the appearance of accused, copies of the case documents were furnished to him as contemplated u/Sec. 207 of Code of Criminal Procedure (Cr.P.C. in brevity).

5.Accused was examined u/Sec. 251 Cr.P.C., and the substance of accusation for the ofence u/Sec.338 of I.P.C. was explained to the accused in his known language, for which he pleaded not guilty and claimed to be tried.

Hence the trial.

6.To prove its case, the prosecution has examined PW.1 to PW.4 and got marked Exs.P1 to P4 as indicated in the appendix of evidence.

PW.1/O. Sujith Reddy is the grandson of the defacto-complainant, PW.2/D.

Raja Gopal Reddy is the brother of defacto-complainant, PW.3/K. Srinu and PW.4/G.

Venkateswara Reddy are the direct eye-witnesses and independent witnesses to the occurrence of incident.

The prosecution has given up the evidence of remaining witnesses and thereby the prosecution evidence was closed.

7.Since there is no incriminating material against the accused in the evidence of prosecution witnesses, the examination u/Sec. 313 of Code of

Criminal Procedure (Cr.P.C. in brevity) is dispensed with.

3

8.I have heard the submissions made by learned counsel for accused and by learned A.P.P. for State and perused the record carefully.

9.Now the point for consideration is:

“Whether the prosecution was able to prove guilt of the accused for

the offence punishable uSSec. 338 of IPC beyond reasonable doubt?

10. POINT:

To bring home the guilt of the accused, the prosecution has examined the grandson and brother of the defacto-complainant is examined as PW.1 and PW.2, whereas PW.3 and PW.4 are the eyewitnesses of the occurrence of incident.

11.PW.1/O. Sujith Reddy, who is the grandson of defacto-complainant, became total hostile and deposed that on 05-05-2019, he along with his grandfather D. Suryanarayana Reddy went to Gangavaram village from

Bellamkondavaripalem Village for saloon shop and after completion of work, at about 4.30 P.M., he along with his grandfather D. Suryanarayana Reddy returned Gangavaram village, he does not know what happened, but his grandfather fallen from the bike and sustained injury on his right leg and he received scratch injuries. Then his grandfather shifted to RIMS, Ongole through 108 Ambulance, but he does not know who informed to the 108 authorities. Apart from that he does not know anything about the facts and circumstances of the case. They informed to D. Raja Gopal Reddy through a phone. He further stated in his cross-examination that he did not state

before police as in Ex.P1.

12.PW.2/D. Raja Gopal Reddy, who is the brother on of defacto- complainant, became total hostile and deposed that on 05-05-2019, he along with his wife went to Dornala and when they reached Podili village, he received a call that his brother D. Suryanarayana Reddy met with an accident and then they rushed to the RIMS hospital, Ongole and found that his brother D. Suryanarayana Reddy sustained injury on his right leg. He did 4 not enquire how his brother received injuries. He further stated in his cross- examination that he did not state before police as in Ex.P2.

13.The PW.3 and PW.4, who said to be the eyewitnesses to the occurrence of the incident became total hostile and deposed that they do not know about the facts and circumstances of the case and police not examined them. They further stated in their cross-examination that they did not state

before police as in Exs.P3 and P4.

14.The blood relatives as well as eyewitnesses to the incident did not support the case of the prosecution and that too the prosecution has failed to examine the victim-cum-defacto complainant viz. D. Suryanarayana

Reddy, since he died prior to his evidence., and therefore what all the statements said to have been given by the said D. Suryanarayana Reddy to the Sd. Khaja Hussain, Head Constable concerned and which was only the document put the criminal law into motion was not marked through the said witness.

15.In view of the above evidence, there is no direct evidence to connect this accused with the accident and in the absence of any such direct evidence, I am of the considered view that the prosecution has miserably failed to prove its case beyond reasonable doubt and the accused is entitled for acquittal.

16. IN THE RESULT, accused is found not guilty for the ofence u/Sec.

338 of IPC and he is acquitted u/Sec. 255 (1) of Cr.P.C. His bail bonds shall remain in force for six months, as required u/Sec. 437-A of Cr.P.C.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in open court, this the 28 th day of June, 2016

SdS- S. Vani

Judicial Magistrate of First Class,

Darsi 5

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

PW.1: Ogirala Sujith Reddy -Nil-

PW.2: Daka Raja Gopal Reddy

PW.3: Kuluri Anji Reddy

PW.4: Guda Venkateswara Reddy

DOCUMENTS FOR PROSECUTION

Ex.P1: 161 (3) Cr.P.C. statement of PW.1

Ex.P2: 161 (3) Cr.P.C. statement of PW.2

Ex.P3: 161 (3) Cr.P.C. statement of PW.3

Ex.P4: 161 (3) Cr.P.C. statement of PW.4

DOCUMENTS FOR DEFENCE

- Nil –

MATERIAL OBJECTS

- Nil –

ILDS- S.V.

J.M.F.C.,

Darsi

SS True Copy SS

Judicial Magistrate of First Class,

Darsi

6

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS

:: DARSI ::

CALENDAR AND JUDGMENT IN C.C. No. 166 of 2019

(Crime No. 84/2019 of Thallur Police Station)

1. Date of Ofence: 05-05-2019

2. Date of Report: 07-05-2019

3. Date of taken on fle: 15-06-2019

4. Date of arrest of accused: Issue u/Sec. 41(A) Cr.P.C. notice

5. Date of release: - - -

6. Date of commencement of trial: 19-06-2019

7. Date of close of trial: 27-06-2019

8. Date of Judgment: 28-06-2019

9. Complainant: State : Sub-Inspector of Police, Thallur police station (Cr. No. 84/2019)

10. Accused: Chinthala Samba Sivaiah, S/o Lakshmana Swami, 45 years, Kamma by caste, L.P. Road, Darsi. Driver of car bearing registration No. AP 27 H 2351

11. Ofence: u/Sec. 338 of IPC

12. Plea of accused: Pleaded not guilty

13. Finding of Court: Found not guilty

14. Sentence or Order:

IN THE RESULT, accused is found not guilty for the ofence u/Sec. 338 of IPC and he is acquitted u/Sec. 255 (1) of Cr.P.C. His bail bonds shall remain in force for six months, as required u/Sec. 437-A of Cr.P.C.

Explanation for delay: - This case was taken on fle on 15-06-2019 for the ofence u/Sec. 338 of IPC against the accused. On 17-96-2019, after appearance of accused, copies of all the documents furnished to him as required u/Sec. 207 of Cr.P.C. and on the same day he was examined u/Sec. 251 of Cr.P.C. On behalf of the prosecution, PW.1 to PW.4 were examined, got marked Exs.P1 to P4. Since there is no incriminating material against the accused in the evidence of prosecution witnesses, the examination u/Sec. 313 of Cr.P.C. is dispensed with. On 27-06-2019, arguments heard. On 28-06-2019, Judgment is pronounced by acquitted the accused u/Sec. 255 (1) Cr.P.C. Hence the delay. SdS- S. Vani

Judicial Magistrate of First Class,

Darsi

Copy submitted to: The Hon’ble I-Addl. District & Sessions Judge, Ongole. The Superintendent of Police, Ongole.

SS True Copy SS

Judicial Magistrate of First Class,

Darsi

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE AT DARSI

Present: Ms. S. VANI ,

Junior Civil Judge, Darsi

Friday, this the 02 nd day of November, 2018

O. S. No. 131 of 2018

Between:

Vipparla Subbaiah, S/o Yogaiah, aged about 47 years, Hindu, Business and Landholder, R/o P. Venkatapuram Village, Donakonda Mandal, Prakasam District ….Plaintif

AND

1. Sriram China Kondaiah @ Jimmaiah, S/o Lakshmaiah, aged about 55 years, Hindu, Seasonal business, R/o P. Venkatapuram Village, Donakonda Mandal, Prakasam District

2. Sriram Mariyamma, W/o China Kondaiah @ Jimmaiah, S/o Lakshmaiah, aged about 45 years, Hindu, Seasonal business, R/o P. Venkatapuram Village, Donakonda Mandal, Prakasam District …Defendants

This case coming before me on this day for final hearing in the presence of Sri M. Ravindra Babu, Advocate for the Plaintiff and the

Defendants remained ex-parteand having been heard and stood over for consideration, till this day, the court delivered the following:-

:: JUDGMENT ::

1.This is a suit for recovery of amount of Rs.2,72,960/- being the

principal and interest due on a promissory note, dated 04-05-2015 and costs.

2.The averments of the plaint, in brief, are as follows:

The defendants jointly borrowed an amount of Rs.1,56,000/- from the plaintiff on 04-05-2015 for their family expenses and on the same day the defendants jointly executed a promissory note in favour of the plaintiff at

P. Venkatapuram Village, Donakonda Mandal, promising to repay the same along with interest @ 24% per annum on demand. Subsequently, in-spite of 2 several demands, the defendants jointly made part payment of Rs.2,000/- on 09-04-2018 and the same was endorsed on the reverse of the promissory note and thereby acknowledged their liability. Thereafter, the defendants did not choose to repay the remaining debt. The defendants were due an amount of Rs.2,72,960/-. Hence, he filed the suit.

3.Summons served to the defendants but they failed to appear before the

Court and they were remained ex-parte.

4.To establish his case, the plaintiff himself examined as PW.1 and got marked Exs.A1 and A2.

Ex.A1 is the promissory note, dt.04-05-2015 and Ex.A2 is part payment endorsement dt.09-04-2018.

5.Heard the learned counsel for the plaintiff.

6.The point for consideration is:

'Whether the plaintiff is entitled to recover the suit amount

from the defendant as prayed for?'

POINT:

7.I have carefully gone through the oral and documentary evidence adduced by the plaintiff. The plaintiff filed the suit for recovery of an amount of Rs.2,72,960/- basing on Ex.A1, suit promissory note, dated 04-05-2015. In order to prove the suit claim, the plaintiff himself examined as PW.1 and got marked Exs.A1 and A2. The plaintiff as PW.1 filed his examination-in-chief in the form of chief- affidavit and reiterated the plain averments in verbatim.

According to him, the defendants have jointly borrowed an amount of

Rs.1,56,000/- on 04-05-2015 for their family expenses and jointly executed a pronote and also agreed to repay the same with interest @ 24% per annum payable to the plaintiff or his order on demand. It is the further evidence of 3

PW.1 that in-spite of repeated demands, the defendants jointly made part payment of Rs.2,000/- on 09-04-2018 and endorsed the same on the reverse of the Ex.A1 promissory note and thereafter the defendants failed to repay the remaining suit amount. Ex.A1 is the pronote dated 04-05-2015 clinchingly goes to show that the defendants have jointly availed loan of Rs.1,56,000/- from the plaintiff and Ex.A2 is the part payment dated 09-04-2018 clinchingly goes to show that the defendants jointly made part payment of Rs.2,000/- to the plaintiff. As already noticed, the defendants remained ex-parte and did not choose to contest the matter and thus, the evidence of PW.1 remains intact and goes unchallenged. The evidence of P.W.1 clinchingly supported by

Exs.A1 and A2. Therefore, the evidence of PW.1 coupled with Exs.A1 and A2 clinchingly proves the suit claim and the plaintiff is entitled for recovery of suit claim. The point is answered accordingly.

8.In the result, the suit is decreed with costs for Rs.2,72,960/- in favour of the plaintiff and against the defendants with subsequent interest at the rate of 12% per annum from the date of filing of suit till the date of decree and at the rate of 6% per annum from the date of decree till realization on the principal amount of Rs.1,56,000/- .

Typed to my dictation by the Personal Assistant of this Court, corrected and pronounced by me in open Court, this the 02 nd day of November, 2018

Junior Civil Judge, Darsi

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintif: For Defendants: PW.1:V. Subbaiah - Ex-parte -

EXHIBITS MARKED

For Plaintif: For Defendants:

Ex.A1: Promissory note dt.04-05-2015 Nil Ex.A2: Part payment dt.09-04-2018

Junior Civil Judge, Darsi 4

IN THE COURT OF THE JUNIOR CIVIL JUDGE AT DARSI

Present: Ms. S. VANI ,

Junior Civil Judge, Darsi

Friday, this the 02 nd day of November, 2018

O. S. No. 131 of 2018

Between:

Vipparla Subbaiah, S/o Yogaiah, aged about 47 years, Hindu, Business and Landholder, R/o P. Venkatapuram Village, Donakonda Mandal, Prakasam District ….Plaintif

AND

1.Sriram China Kondaiah @ Jimmaiah, S/o Lakshmaiah, aged about 55 years, Hindu, Seasonal business, R/o P. Venkatapuram Village, Donakonda Mandal, Prakasam District

2.Sriram Mariyamma, W/o China Kondaiah @ Jimmaiah, S/o Lakshmaiah, aged about 45 years, Hindu, Seasonal business, R/o P. Venkatapuram Village, Donakonda Mandal, Prakasam District …Defendants

This is a suit for recovery of amount of Rs.2,72,960/- being the principal and interest due on a promissory note, dated 04-05-2015 and costs.

Cause of action :- Cause of action for the suit arose on 04-05-2015 when the defendants jointly borrowed an amount of Rs.1,56,000/- from the plaintiff and jointly duly got executed a promissory note in favour of the plaintiff ont the same day at P. Venkatapuram Village, Donakonda Mandal and when the defendants made part payment of Rs.2,000/- on 09-04-2018 towards suit promissory note debt subsequently when the defendants failed to discharge the debt amount with interest in-spite of repeated demands made by the plaintiff personally. The transaction of the suit promissory note took place at P. Venkatapuram Village, Donakonda Mandal within the jurisdiction of this Hon'ble Court. Hence, this Hon'ble Court has got jurisdiction to try the suit.

Valuation and Court Fee:- For the purpose of court fee and jurisdiction the suit is valued at Rs.2,72,960/-, on which a court fee of Rs.5,226/- is paid U/Sec. 20 of A.P.C.F. & S.V. Act.

Plaint presented on :09-07-2018Plaint registered on :09-07-2018

This case coming before me on this day for final hearing in the presence of Sri M. Ravindra Babu, Advocate for the Plaintiff and the Defendants remained ex-parteand having been heard and stood over for 5 consideration, till this day, the court doth order and decree:- i.that the defendants do pay to the plaintiff a sum of Rs.2,72,960/- with future interest @ 12% per annum from the date of filing of suit i.e. 09-07-2018 till the date of decree i.e., 02-11-2018 and thereafter @ 6% per annum from the date of decree i.e.,02-11-2018 till the date of realization on the principal amount of Rs.1,56,000/-; and; ii. that the defendants do also pay to the plaintiff a sum of Rs.5,228/- towards institutional costs of the suit (CM & FC not filed by the plaintiff).

Given under my hand and the seal of the court, this the 02 nd day of November, 2018

JUNIOR CIVIL JUDGE,

DARSI

TABLE OF COSTS

For Plaintif :- For Defendants :-

Stamp on Vakalath:Rs. 2-00 - Ex-parte - Stamp on plaint:Rs. 5,226-00 Advocate Fee: (CM & FC not filed)

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Total Costs : Rs.5,228-00

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J.C.J., DARSI

N.B. :- The parties are hereby directed to take back the Exhibited documents and non-exhibited documents which are marked in the suit within one month time with an undertaking to produce the same as and when required by the court.