Sri. Y. Govinda Reddy

XVII ACMM C.C. No. 239 OF 2012 .

IN THE COURT OF THE XVII ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE: NAMPALLY CRIMINAL COURTS, HYDERABAD

Present: Sri Y. Govinda Reddy, XVII Addl. Chief Metropolitan Magistrate, Nampally Criminal Courts, Hyderabad

C. C. No. 239 of 2012

Dated this the 1st day of May, 2017

Between:

The State of Telangana, through the Sub-Inspector of police, Jubilee Hills P.S., Hyderabad City, Telangana State.… Complainant

AND

A1. D.S. Nagesh Goud, S/o: Yadaiah Goud, Age: 36 yrs, Occ: PC 9355 of CCS, Detective Department, Hyderabad. R/o: H.No. 13-3-595/A/4, Durga Nagar, Ziaguda, Hyderabad.

A2.G. Mahesh Yadav, S/o: Narsimha Yadav, Age: 29 yrs, Occ: PC 3448 of Sultan Bazar PS, R/o: H.No. 13-6-278/279, Jaferguda, Karwan, Hyderabad.

A3.S. Mahesh Kumar, S/o: S. Jangaiah, Age: 30 yrs, Occ: PC 3851 of Shalibanda PS, R/o: H.No. 9-5-27/32 GF, Near Vasavi Engineering College, Ibrahimbagh, R. R. District. … Accused

This case is coming on this day before me for final disposal in the presence of Asst. Public Prosecutor for the State and of Sri. V. Surender Rao, Counsel for accused and having heard both sides and upon perusal of material available on record, this court made the following:

J U D G M E N T

[1]The SI of Police, Jubilee Hills PS filed charge sheet against the accused alleging as follows:

That the PW3/Ashok Bhai Patel is working as a Manager in M/s Patel Plastic Industries, Kabutarkhana, Mumbai – 400 002 and he is in charge of the business in twin cities of Hyderabad and Secunderabad. PW3/Ashok

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Bhai Patel has employed PW2/Vishnu Solanki to look after the collections of cash from customers of M/s Patel Plastics in twin cties of Hyderabad and Secunderabad. While so on 21-09-2011 PW3/Ashok Bhai has instructed PW2/Vishnu Solanki to collect cash from the customers and send the same to Bombay in a Scaripo Vehicle MH 04 EX 2315. PW3/ Ashok Bhai Patel has sent PW4/Sailesh Bhai and PW5/Vishnu Bhai from Bombay in their Scarpio Vehicle MH 04 EX 2315 to Hyderabad to bring the cash, and they reached Hyderabad and met PW2/Vishnu Solanki. On 21-09-2011 the PW2/Vishnu Solanki has collected cash of Rs. 22 lakhs from the customers of M/s Patel Plastic Industries in Hyderabad, and kept the same in Scarpio MH 04 EX 2315 and instructed PW4/Sailash Bhai and PW5/Vishnu Bhai to carry the same to Bombay to PW3/Ashok Bhai Patel, and they left Hyderabad at about 22-00 hours on 21-09- 2011. About half an hour after the departure, PW4/Sailesh Bhai and PW5/Vishnu Bhai made a call to the PW2/Vishnu Solanki that three persons intercepted their vehicle and snatched cash of Rs.12 lakhs on motor cycle bearing No. AP 09 CD 421 saying that they were police and that they would book a case if cash is not paid. On 25-09-2011 the LW12/Srinivas, S.I. of Police of Jubilee Hills registered this case as Cr.No. 445/2011 U/Sec. 382 and 384 of IPC on the complaint of PW2/Vishnu Solanki. During the course of further investigation, PW6/K. Narsing Rao, S.I. of Police, Jubilee Hills has examined and recorded the statements of witnesses, visited the crime scene and prepared a panchanama and rough sketch. Later PW6/Narsing Rao, on 25-09-2011 at 13-45 hours apprehended the accused No. 1 and recovered cash of Rs.2,90,000 and Samsung cell phone and Nokia cell phone in the presence of panchas i.e., PW1/Srinivas and LW7/Bhimaraj. On the same day PW6/Narsing Rao arrested the accused No. 2 at his residence and recovered cash of Rs. 6 lakhs and Micromax phone in

XVII ACMM C.C. No. 239 OF 2012 .

the presence of same mediators. Later on the same day he arrested the accused No.3 at his residence and recovered cash of Rs. 1.5 lakhs and Samsung Cell phone and Honda Unicorn Motor cycle No. AP 09 CD 421 in the presence of same mediators. Then he took the accused No. 1 to 3 to the Police Station and farwarded them to judicial remand. Then PW6/Narsing Rao got conducted test identification parade of the accused through the Judicial Magistrate in the Central Prison, Chenchlguda, wherein the witness (PW2/Vishnu) has identified the accused No.3 as one of the offenders, and failed to identify the accused No. 1 and 2. After completion of investigation he filed charge sheet for the offences U/Sec. 382 and 384 of IPC and produced the case property before the Court.

[2]This Court has taken cognizance of offence for the offence U/Sec. 382 and 384 of IPC. Copies of documents were supplied to the accused U/Sec. 207 of Cr.P.C. to the accused. The accused was examined U/Sec. 239 of Cr.P.C., and a charge has been framed U/Sec. 240 of Cr.P.C., for the offence U/Sec. 382 and 384 of IPC. The charge has been read over and explained to the accused, who pleaded not guilty and claimed to be tried.

[3]The prosecution examined Pws 1 to 6 and got marked Ex. P1 to P14 and M.Os.1 to 5. PW1 is the panch-witnesses witness. PW2 is defacto-complainant and eye witness to the occurrence. PW3 is the employer of PW2. PW4 and PW5 are the drivers of Scarpio vehicle MH MH 04 EX 2315. PW6 is an Investigating Officer. Ex.P1 to P3 are the signatures of PW1 on seizure panchanamas. Ex.P4 is complaint of PW1. Ex.P5 is part of statement marked in statement U/Sec. 161 of Cr.P.C., of PW2. Ex.P6 is signature of PW2 in statement recorded U/Sec. 164 of Cr.P.C. Ex.P7 is Test Identification Proceedings marked by consent U/Sec. 294 (3) of Cr.P.C. Ex.P8 statement of PW2 recorded U/Sec. 164 of Cr.P.C., by Judicial Magistrate. Ex.P9 is FIR. Ex.P10 and P11 are crime scene panchanama and rough sketch. Ex.P12 to P14 are seizure panchanamas. Ex.P15 is the persons bond taken at the time of release of seized cash to Muthum Bhai Naridass patel. Mos 1 to 5 are the cell phones. After closure of evidence of prosecution the accused was examined U/Sec. 313 of Cr.P.C. and the incriminating material was put to the accused, who denied the truth in the evidence of prosecution and reported no defence.

XVII ACMM C.C. No. 239 OF 2012 .

[4]The defence of the accused is that they were implicated due to mistaken identity and that they are innocents of the offences.

[5]Heard both the sides.

[6]POINT: Whether the accused No.1 to 3, on 21-9-2011 at about 22-00 hours in Madhapur Cross Roads, Jubilee Hills, Hyderabad, have stopped the Scarpio vehicle MH 04 EX 2315, and snatched the cash of Rs.12 lakhs from PW2, 4 and 5 from them saying that they were police, and thus committed an offence U/Sec. 382 and 384 of IPC ?

[7]ANSWER TO THE POINT: The evidence of PW1 to 6 and Ex.P1 to P15, and Mos 1 to 5 are on record. Now let me examine the evidence on record.

[8]PW2/Vishnu Solanki is the defacto-complainant and eye witness to the occurrence. He deposed that PW3/Ashok Bhai Patel is his brother and he is doing business in plastic items in Hyderabad; that PW4/Sailesh Bhai and PW5/Vishnu Bhai are the employees working under his brother (PW3); that during the year 2011, on one day himself, PW4 and PW5 were carrying company cash of Rs.22 lakhs from Hyderabad to Bombay in Scarpio Vehicle; that when they reached Jubilee Hills area, two persons stopped their vehicle, conducted check, and on seeing the cash those persons demanded cash, and took Rs.12 lakhs from him; that immediately he informed about the incident to PW3, and on his instructions, he lodged Ex.P4: complaint. He further added that the persons who snatched cash from him on that are not before the Court today. (In fact the accused No. 1 to 3 are present before the Court today). He was treated as hostile by the prosecution and he was cross examined by the Learned A.P.P. In the course of cross-examination, he added that he had identified one of the accused in the TIP in the Jail premises at the instance of police who have shown the photo of the accused and asked him to identify. He denied the suggestion that the accused are the persons who snatched the cash from him. He did not speak anything that he gave statement U/Sec. 164 of Cr.P.C. In the course of cross-examination by the accused, PW2 deposed that he does not know English and he does not know the contents of Ex.P4: complaint. He further admits that he has not filed any document to show the source from where he collected the money in question. He denied the suggestion that no theft of cash occurred on that day. He further adds that he does not know what was recorded in Ex.P8/statement U/Sec. 164 of Cr.P.C.

[9]PW4/Sailesh Bhai is the driver of questioned jeep, and an eye witness to the occurrence. He deposed that he does not know anything about this case

XVII ACMM C.C. No. 239 OF 2012 .

and that the police did not examine him. He was treated as hostile, and was cross examined by the Learned A.P.P. He denies the suggestion that the accused are the persons who snatched cash of Rs.12 lakhs from their jeep on the day of incident.

[10]PW5/Vishnu Bhai is another driver of questioned jeep, and he is an eye witness to the occurrence. He deposed that on the day of incident he was traveling in the jeep along with PW2 and 4, and when their jeep reached near Madhapur area, three persons stopped their jeep and snatched cash of Rs. 12 lakhs, and that the persons before the Court are not the ones who snatched cash from them, and that the police did not record his statement.

[11]PW/3 Ashok Bhai Patel is circumstantial witness, and he is an employer of PW2, 4 and 5. He deposed that he is doing business in plastic items in Bombay, and he PW2, 4 and 5 are his employees; that during the year 2011 he instructed the PW2, 4 and 5 to bring cash from Hyderabad to Bombay; that while they were carrying cash, some persons in the midnight have snatched cash of Rs.12 lakhs from them in Madhapur area; that he instructed PW2 to lodge complaint. In the course of cross examination, he admits that he has not filed any document to prove the source of Rs.22 lakhs. He categorically stated that at the time of incident he was not present along with PW2.

[12]PW1/Srinivas is the panch-witnesses for arrest and recovery of property. He deposed that in the month of September 2011 on one day, he visited the Jubilee Hills Police Station on his personal work and at that time the police obtained his signatures on some papers, and that the police did not recover anything from the accused in his presence. He was treated hostile by the prosecution, and was cross examined by the prosecution. He denied the suggestion that the police recovered cash of Rs. 2,90,000 from the accused No.1, and Rs. 6,00,000 from accused No.2, and another Rs. 1,50,000 from the accused No.3 under the cover of panchanama by the police of Jubilee Hills and that he was deposing false to help the accused.

[13]PW6/ Narsing Rao is an Investigating Officer. He deposed that on 25-09- 2011, LW12/K. Srinivas, S.I. of Police registered this case as Cr.No. 445/2011 for the offence U/Sec. 382 and 384 of IPC and issued an FIR as in Ex.P9; that during the course of his further investigation, he examined and recorded the statements of Pws 2 to 5, visited the crime scene and prepared Ex.P10: crime scene panchanama and Ex.P11: rough sketch; that on 25-9-2011 he apprehended the accused No.1 at his house in the presence of PW1 and

XVII ACMM C.C. No. 239 OF 2012 .

LW7/Bhimaraj and recovered cash of Rs.2,90,000 and one Samsung cellphone, and Nokia cellphone under the cover of Ex.P12/panchanama; that then he arrested the accused and recovered Rs. 6 lakhs and Mocromax phone from his possession at his house under the cover of Ex.P13/panchanama; and that he arrested the accused No.3 at his residence and recovered Rs.1.5 lakhs and one Samsung cellphone and motor cycle bearing No. AP 9 CD 421 under the cover of Ex.P14/panchanama, and farwarded them to judicial remand; that he got recorded the statement of PW2 U/Sec. 164 of Cr.P.C., by the Judicial Magistrate as in Ex.P7, and also got the test identification parade of accused was conducted by Judicial Magistrate through the PW2 in the Jail Premises, and Ex.P8 is TIP proceedings; that after collecting the TIP papers and Sec. 164 Cr.P.C., statement he filed charge sheet and deposited the seized cash of Rs.10,40,000; that such seized cash was given under personal bond to Muthum Bhai Narsidass Patel on 14-5-2012 under Ex.P15/personal bond. Mos 1 to 4 are cellphones, and MO15 is the motor cycle AP 9 CD 421. In the course of cross-examination he admits that he has not collected any document or receipt related to the seized cash, and that he did not record the statements of the persons who paid cash to PW2. He further says that he did not collect the CC camera footages of the incident of snatching since there were no CC cameras during the days of incident in the year 2011. He denied the suggestion that he has planted the cash and foisted this case against the accused.

[14]Now let me evaluate the evidence. In order to prove the guilt of the accused, the prosecution must prove two aspects viz., (1) that some persons have snatched away the cash of Rs.12 lakhs from the PW4 and PW5, and (2) that that somebody are no other than the accused.

[15]Now let me see whether the prosecution has proved that an

extortion of cash of Rs. 12 lakhs took place in the Scarpio Vehicle on

21-09-2011 at Madhapur Cross Roads. The PWs 2, 4 and 5 are the eye witnesses to the occurrence. PW2 stated that on 21-09-2011 during the night hours at about 10-00 p.m., two persons checked their vehicle and snatched cash of Rs.12 lakhs from the Scarpio jeep in Jubilee Hills area. PW5 says that three persons came and snatched the cash of Rs.12 lakhs. There is a contradiction in the evidence of PW2 and PW5 as to the number of offenders, since PW2 says it as two and the PW5 says it as three. PW4 says that he does not know about the occurrence, and that the police did not examine him. Further there is a delay of four days in lodging complaint before the police, and the reason offered by the prosecution is that the PW2 has waited for four days

XVII ACMM C.C. No. 239 OF 2012 .

till the arrival of PW3: Ashok Bhai Patel from Bombay. I could find no sound reasoning behind this explanation for the reason that the sanction of PW3 is not warranted to PW2 to lodge complaint over the criminal incident. Further PW3 has not brought from Bombay any material or information, which is necessary for lodging complaint before the police. It is not the case of the prosecution that PW3 brought some documents from Bombay to account for the cash of Rs.22 lakhs. Had PW3 lodged this complaint after his arrival from Bombay, it would have lent some force to the case of prosecution. When PW3 has not brought any document from Bombay, and when PW3 has not lodged complaint, there is no meaning in waiting for the arrival of PW3 for three days to lodge police complaint. The contention of the learned Counsel for the accused that the case was designed after due deliberations and adjustment of books of accounts needs to be accepted as true. The learned counsel for the accused would contend that the legal bodies like Police and Courts shall not extend their helping hands when the tax evader or hawala dealer approaches the Court for recovery of their ill-gotten money, which they lost in theft. I could see no force in his contention for the reason that the Criminal Court is not bound to examine whether the money involved in theft, or robbery, or extortion has suffered the tax or not. This is the look out of some other agency. Another improbability in the case of the prosecution is that the accused have disclosed their names and designations as police constables to PW2 and then snatched the cash. No sane offender would disclose his true name and designation to the victim before committing any offence of theft, or robbery, or extortion. This is sounding an abnormality, which cautions the Court not to accept the version of prosecution. For the above discussions I hold that the evidence on record is not sufficient to hold that the occurrence of extortion of Rs.12 lakhs from the vehicle of PW2 has taken place.

[16]Now let me examine whether the prosecution has placed cogent

evidence on record to prove that the accused No. 1 to 3 have

participated in the extortion in question. PW2 and PW5 have deposed that some unknown persons came and snatched cash of Rs.12 lakhs from them. But they failed to identify the accused No. 1 to 3 as the persons who snatched the cash from them. PW2 has identified the accused No.3 in the test identification parade of accused in Central Prison, Chenchalguda, Hyderabad

before the Judicial Magistrate and the same is marked as Ex.P8. But he failed

to identify the accused before the Court. The identification before the Court is the substantive evidence, and the identification in the test identification parade

before charge sheet filing is only a corroborative, and it is meant for the

XVII ACMM C.C. No. 239 OF 2012 .

Investigating Officer to assure himself that he was fixing the correct offender into the charge. Now the legal question is whether the identification of offender in the TIP is sufficient to fasten criminal liability to the accused. At this juncture the learned counsel for the accused relied on the citation in Dhana Yadav Vs. State of Bihar, (2002) 7 SCC 295, wherein the Aped Court has laid down the legal principles as to evidentiary value of test identification parade. The relevant portion is extracted as under:

In view of the law analysed above, we conclude

thus:-

(a) ...

(b) ...

(c) Evidence of identification of an accused in

court by a witness is substantive evidence

whereas that of identification in test

identification parade is, though a primary

evidence but not substantive one, and the same

can be used only to corroborate identification of

accused by a witness in court.

In view of the above legal principle the identification of the accused No.3 in the TIP by the PW2 in the Jail can not be regarded as a substantive piece of evidence, and the same can not be used as a substantive evidence to fasten criminal liability to the accused. The accused No.3 at the time of conducting of TIP has reported to the Judicial Magistrate, who conducted TIP, that the police took his photographs, and that at the instance of police the PW2 has identified him in the TIP. Under these circumstances the TIP as in Ex.P8 can not be received in evidence as matter of course though the accused have consented for its marking. The objection raised by the accused 3 before the Judicial

Magistrate that the police have shown him to the PW2 when he (A-3) was in

police station, would also come on record being the part and parcel of Ex.P8. The evidence of PW2 before the Court alone is legally admissible evidence. The TIP proceedings as in Ex.P8 and the statement U/Sec. 164 of Cr.P.C., can not be taken as an aid to fasten criminal evidence. I have already observed that the identification of accused No.3 in TIP is not a substantive evidence, and it is only corroborative.The test identification parade as in ExP8 needs to be put at bay, which I do.

[17]Now let me examine whether the Ex.P7: statement of PW2 U/Sec. 164 of Cr.P.C., will lend support to the case of prosecution. The prosecution got it recorded by the Judicial Magistrate. But PW2 has not reiterated the contents of such statement before the Court on oath. However he admitted that signature

XVII ACMM C.C. No. 239 OF 2012 .

in Ex.P7: Sec. 164 Cr.P.C., statement is of him. But he added in cross- examination that he does not know English, and as such he does not know the contents of Ex.P4: complaint, which is in English language. The statement of PW2 as in Ex.P8 before the Judicial Magistrate is also not substantive evidence and it can be used only for contradiction. The Apex Court in Ram Kishan Singh Vs.. Harmit Kaur and Another ((1972) 3 SCC 280 has held that a statement of 164 Cr.P.C. is not substantive evidence and can be used only to corroborate or contradict the witness with the statement made in the Court on oath. In other words, it can be only used only as a previous statement and nothing more. This can also be used to prosecute the statement maker if he/she resiles from his statement for the offence of perjury U/Sec. 191 of IPC. I have perused the Ex.P8: statement of PW2 U/Sec. 164 Cr.P.C. It does not contain anything that the Judicial Magistrate, who recorded the statement, has not administered any oath on PW2, and as such Ex.P8 can not be called as a statement on oath. The nomenclature appended to Ex.P8 at the top as “Sworn Statement” can not be taken that the Judicial Magistrate has administered oath. There shall be an express mention that oath has been administered by the Presiding Judge, who recorded the statement, as per the provisions of The Oaths Act. For the above discussions, I hold that the Ex.P8: statement of PW2

before the Judicial Magistrate can not be regarded as a substantive evidence to

fasten criminal liability to the accused. For the above discussions, I hold that the prosecution failed to bring home the guilt of he accused No. 1 to 3 for the offence U/Sec. 382 and 384 of IPC.

[18]Let me present the penal definition of Sec. 382 and 383 of IPC for the sake of perusal. Section 382 of IPC provides as - Whoever commits theft,

having made preparation for causing death, or hurt, or restraint, or

fear of death, or of hurt, or of restraint, to any person, in order to the

committing of such theft, or in order to the effecting of his escape

after the committing of such theft, or in order to the retaining of

property taken by such theft, shall be punished with rigorous

imprisonment for a term which may extend to ten years, and shall

also be liable to fine. The evidence on record does not attract the penal provision of Sec. 382 of IPC, since none of the eye witnesses spoke that the accused No. 1 to 3 have participated in the occurrence of snatching of cash from PW2, PW4 and PW5.

[19]Sec. 383 of IPC defines 'extortion' as - Whoever intentionally puts

any person in fear of any injury to that person, or to any other, and

XVII ACMM C.C. No. 239 OF 2012 .

thereby dishonestly induces the person so put in fear to deliver to any

person any property or valuable security, or anything signed or sealed

which may be converted into a valuable security, commits “extortion”.

The evidence of PW2, PW4 and PW5 does not whisper about the presence of accused at the time of so called extortion of money from them. Hence no liability can be fastened to the accused for the offence U/Sec. 384 of IPC.

[20]It is settled law that if the prosecution failed to bring home the guilt of the accused for the offences of theft, extortion, robbery, or dacoity, still the offender can be punished for the offence U/Sec. 411 of IPC for possessing the stolen property. Now let me see whether the prosecution has made out its case for the offence U/Sec. 411 of IPC. In order to bring home the guilt of the accused, the prosecution has to prove that the movable property in question was subjected to theft, or robbery, or extortion, or dacoity and offender was found possessing such property dishonestly. In the case on hand I have already held that the prosecution failed to prove the guilt of the accused for the offences U/Sec. 382 or 384 of IPC. To prove the recovery of cash of Rs. 10.40 lakhs from the accused No. 1 to 3, the prosecution examined one panch- witness as PW1, and also examined PW7/ Investigating Officer. PW1/Srinivas, panch-witness deposed that he had put his signatures on some papers in Police Station and that the police did not recover anything from the accused in his presence. The evidence of PW7/ Investigating Officer alone is on record as to recovery of cash of Rs.10.40 lakhs, and his evidence is that he had arrested the accused No. 1 to 3 on 25-09-2011 at different places and recovered Rs. 2.90 lakhs from the accused No.1, Rs. 6 lakhs from accused No.2, and Rs. 1.5 lakhs from accused No.3 in the presence of PW1 and another panch-witness by name Bhim Raj (LW7). This evidence of PW7 is not corroborated by either panch- witness or any other police official. It is settled law that there must be corroborative evidence to the evidence to police official with regards to search. In the case on hand except the evidence of PW7, a police official there is no other evidence as to recovery of cash from the accused. It is for this reason, I hold that the prosecution failed to prove the offence U/Sec. 411 of IPC against the accused No. 1 to 3.

[21]AS A RESULT the accused No. 1 to 3 are found not guilty of offence U/Sec. 382, or 384, or 411 of IPC, for which the they are acquitted U/Sec. 248 (1) of Cr.P.C. The bail bonds of the accused shall remain in force for a period of six months. The interim custody orders in respect of seized cash in giving it to Muthum Bhai Narsidass Patel shall hold good after appeal time. The MOs 1 and

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2 shall be given to accused No.1, MO3 shall be returned to accused No. 2, and MO4 shall be returned to accused No.3. The interim custody orders in respect of MO5/motor cycle in giving it to its registered owner, Smt. Sneha Latha shall hold good after appeal time.

[Typed by me in my laptop, corrected and pronounced by me in the open court on this the 1 st day of May, 2017]

XVII ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE, HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTIONFOR DEFENCE

PW1: P. Srinivas, panch witnessNIL PW2: Vishnu Solanki, complainant/victim PW3: Ashok Bhai Patel, Witness PW4: Sailesh Bhai Patel, Eye witness PW5: Vishnu Bhai, Eye witness PW6: K. Narsing Rao, S.I. of Police/I.O

EXHIBITS MARKED

FOR PROSECUTIONFOR DEFENCE

Ex.P1 : Signature of PW1 on panchanama dated 25-9-2011NIL Ex.P2: Signature of PW1 on panchanama dated 25-9-2011 Ex.P3: Signature of PW1 on panchanama dated 25-9-2011 Ex.P4: complaint of PW2 Ex.P5: Statement of PW2 before the police U/Sec. 161 of Cr.P.C. Ex.P6: Signature of PW2 on Ex.P7 statement U/Sec. 164 Cr.P.C. Ex.P7: Statement of PW2 U/Sec. 164 of Cr.P.C. Ex.P8: Test Identification Parade proceedings Ex.P9: FIR Ex.P10: Crime scene panchanama. Ex.P11: Rough Sketch of crime scene Ex.P12: Seizure panchanama of accused No.1 Ex.P13: Seizure panchanama of accused No.2 Ex.P14: Seizure panchanama of accused No.3

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Ex.P15: personal bond of Muthum Bhai Narsingdass Patel

MATERIAL OBJECTS MARKED

FOR PROSECUTIONFOR DEFENCE

M.O.1: Samsung CellphonesNIL M.O.2: Nokia cellphones M.O.3: Micromax Cellphones M.O.4: Nokia cellphones M.O.5: Motorcycle No. AP 9 CD 421.

XVII ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE, HYDERABAD

XVII ACMM C.C. No. 357 OF 2016 .

IN THE COURT OF THE XVII ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE: NAMPALLY CRIMINAL COURTS, HYDERABAD

Present: Sri Y. Govinda Reddy, XVII Addl. Chief Metropolitan Magistrate, Nampally Criminal Courts, Hyderabad

C. C. No. 357 of 2016

Dated this the 1st day of May, 2017

Between:

The State of Telangana, through the Sub-Inspector of police, Jubilee Hills P.S., Hyderabad City, Telangana State.… Complainant

AND

Kamepally Krishna Mohan @ Karthik @ Krish, S/o: Late Laxmi Narayana, Age: 35 yrs, R/o: H.No. 137, JC Layout, Mysore, Karnataka State, N/o: Tirumala Towers, Railway Station road, Nidadavolu of West Godavari District. A.P.… Accused

This case is coming on this day before me for final disposal in the presence of Asst. Public Prosecutor for the State and of Sri Balaraj Goud, Counsel for accused and having heard both sides and upon perusal of material available on record, this court made the following:

J U D G M E N T

[1]The SI of Police, Jubilee Hills PS filed charge sheet against the accused alleging as follows:

That on 27.10.2015 some unknown offenders have committed theft of two laptops of Lenovo and HP from the room of LW1/M.S. Kishore Babu in H. No. 8-3- 231/C/44/1, Krishna Nagar, Hyderabad and also committed theft of one Lenova laptop from the room of LW.2/Naveen Reddy situated in the 3rd floor of the same building. The LW12/K. Ramesh, S.I. of Police of Jubilee Hills has registered this case as Cr.No. 762/2015 for the offence U/Sec. 454 and 380 IPC, visited the crime scene, examined and recorded the statements of witnesses. During the course of time, on 26-1-2015 the LW11/Krishna Murthy, S.I. of Police of Tirumalgherry

XVII ACMM C.C. No. 357 OF 2016 .

arrested the accused in Lothukunta area under suspicious circumstances, and took him to Thirumalgherry PS, and interrogated in the presence of two mediators namely Peddireddy Venkat Reddy and Ramachandran Ayyappan, and recovered one stolen gold ring related to Cr.No. 131/2015 of Thirumalgherry PS. The accused further confessed that he had committed theft of several laptops in houses in Jubilee Hills, Madhapur, Begumpet, Bowenpalli, and sold the stolen laptops through OLX.com, which is an online website through which the used articles are bought and sold by anybody. He further disclosed that he had sold the stolen laptops in (1) Prarav of Jeshwanthpur, (2) Mohan of Koramangala, (2) Bhargava Kumar @ Marath of Marathhalli, (4) Pranav of Yeshwanthpura in Banglore city, and (5) Dayanand @ Daya Bhai of Huliya Durg, Kunigal Taluk, Tumkur District, Karnataka State, (6) Girish of Yellapura, Arakeri, Tumkur District, (7) Shakeem of Mysore, Karnataka State and (8) Mohan Reddy of Athebilli village, Ankle Taluk, Karnataka State. The accused was produced for judicial remand before XI Addl. Chief Metropolitan Magistrate, Secunderabad and he was taken for police custody from 3-12-2015 to 9-12- 2015.

As led by the accused, the LW11/Krishna Murthy, S.I. of Police of Thirumalgherry along with the same panchas reached Mysore on 4-12-2015 and secured the presence of one Shakeem, who purchased the stolen laptops from the accused, and recovered eight laptops under the cover of panchanama.

As led by the accused, the LW11/Krishna Murthy, S.I. of Police of Thirumalgherry along with the same panchas reached Totalizing Center, Race Course Road, Thumkur Town, Karnataka State on 5-12-2015 and secured the presence of one B. M. Dayanand, who produced the stolen laptops from the accused and LW11/Krshna Murthy recovered five laptops under the

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cover of panchanama on 5-12-2011 and also recovered Seven laptops from one Girish, who produced the stolen laptop from the accused.

As led by the accused, the LW11/Krishna Murthy, S.I. of Police of Thirumalgherry along with the same panchas reached Majestic Bus Stop in Banglore City on 7-12-2015 and secured the presence of Bhargav Kumar @ Marath, who purchased the stolen laptops from the accused, and recovered eight laptops from him under the cover of panchanama.

As led by the accused, LW11/Krishna Murthy, S.I. of Police of Thirumalgherry along with the same panchas reached Attibelli Village, Ankele Taluk, Karnataka State on 8-12-2015, and secured the presence of Mohan Reddy, who purchased stolen laptops from the accused, and recovered seven laptops from him under the cover of panchanama.

The laptops (1) Lenova Laptop WB 02227152 and (2) HP DV 23232 TX and (3) Lenova 59304310 recovered on 5-12-2015 at Totalizer Center, Race Course Center at M.C. Road, Thumkur, Thumkur District, Karnataka State are related to this case.

The LW11/Krishna Murthy has reproduced the accused before the XI ACMM Court, Secunderabad. On 28-11-2015 the LW12/K. Ramesh, S.I. of Police, Jubilee Hills has secured the presence of accused on production warrant, and got his arrest recorded in this case. He also collected the stolen property related to this case, along with the arrest panchanamas and seizure reports, connected the same to this case, and filed charge sheet and filed charge sheet against the accused for the offence U/Sec. 454 and 380 IPC.

[2]This Court has taken cognizance of offence for the offence U/Sec.454 and 380 of IPC. Copies of documents were supplied to the accused U/Sec. 207 of Cr.P.C. to the accused. The accused was examined U/Sec. 239 of Cr.P.C., and a charge has been framed U/Sec. 240 of Cr.P.C., for the offence U/Sec. 411 of IPC.

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The charge has been read over and explained to the accused, who pleaded not guilty and claimed to be tried.

[3]The prosecution examined PW 1 to 5 and got marked Ex. P1 to P5 and M.Os.1 to 3. After closure of evidence of prosecution the accused was examined U/Sec. 313 of Cr.P.C. and the incriminating material was put to the accused, who denied the truth in the evidence of prosecution and reported no defence.

[4]The defence of the accused is that he was falsely implicated in this case for the statistics purpose.

[5]Heard both the sides.

[6]POINT: Whether the accused has led the police party to the recovery of stolen laptop from one Dayanand of Thumkur, Karnataka State, on 05 -12-2015 and thus committed an offence U/Sec. 411 of IPC?

[7]ANSWER TO THE POINT: The evidence of PW1 to 5 and Ex.P1 to P5 and M.Os.1 to 3 is on record. Now let me examine the evidence on record.

[8]PW.1: N. Naveen Kumar is the defacto complainant. He deposed that he used to reside in H.No. 8-3-231/C/44/1, Sri Krishna Nagar, C-Block, Hyderabad; that on 27.10.2015at about 9 AM, he left his house and at about 10 AM his house owner informed that his room door was opened and on his search he found missing of his Lenovo laptop and his neighbour i.e LW.1: Kishore Babu’s laptop was also subjected to theft at the same point of time and that LW.1: Kishore Babu lodged report before police and that police recovered his laptop as in M.O.1 which was taken by him towards interim custody.

[9] PW.2: M.S. Kishore Babu deposed that he used to reside in H.No. 8-3- 231/C/44/1, Sri Krishna Nagar, C-Block, Hyderabad; that on 27.10.2015at about 9 AM, he along with his roommates left his house by keeping the door under lock and on his return in the evening he found missing of his Lenovo and HP laptops and that he gave complaint as in Ex.P1 and that police recovered his two laptops as in M.O.2 and 3 which were taken by him towards interim custody.

[10] PW.3: P. Ayyappan is the panch witness. He deposed that on 26.11.2015, Murthy, S.I of police, Thirumalgherry PS called him to the PS and that he found one person by name Krishna Mohan in the custody of police and on his enquiry the said Krishna Mohan disclosed that he committed theft of laptops and gold

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at Madhapur and Hitech city of Hyderabad and sold the same in Bangalore town and by so saying he took one gold ring from his pocket stated to be stolen property and that police recovered the said gold ring under cover of panchanama; that as led and shown by the accused, himself, PW.3 and police went to Totalizer center at Race Course Center at MG Road, Thumkur town, Karntaka State and recovered 7 laptops and gold jewellery under cover of seizure report. Ex.P2 is attested copy of seizure panchanama dtd. 26.11.2015. Ex.P3 is attested copy of confession panchanama dt. 05.12.2015 at Totalizer center. Ex.P4 is seizure report. The police recovered laptops in Bangalore city and returned back to Hyderabad along with seized laptops. His evidence was not destroyed in cross examination.

[10]PW.4: M. Krishna Murthy is the then S.I of Police, Thirumalgherry PS and he is the Recovery officer in this case. He deposed that on 26.11.2015 at about 18.00 hours on receipt of information about offender moving on Lothkunta area of Tirumalgherry, he along mediators namely LW.2: Venkat Reddy and PW.2 proceeded to Lothkunta area and apprehended the accused and took him to Tirumalgherry PS and on interrogation, the accused confessed that he had committed theft of laptops and gold ornaments in several places in Hyderabad; that he recorded confession statement of accused and recovered one gold ring from the possession of accused in the presence of above mediators under cover of Ex.P2 panchanama; that the accused further confessed that he had sold stolen laptops in Bangalore city, Dayabhai City, Mysore city and he will show the said places; upon which PW.3 produced the accused before XI Addl.Chief Metrpolitan Magistrate, SEcunderabad and forwarded him to judicial remand and that from 03.12.2015 to 09.12.2015 the accused was taken for police custody during the course of which further confession of accused was recorded and later on 04.12.2015 as led and shown by the accused he along with mediators reached the house of accused in Mysore where one person by name Shakeem admitted that he purchased eight (8) laptops from the accused and that he seized the said 8 laptops from the under cover of panchanama and the laptop of Lenovo company related to Jubilee Hills PS was found among the above 8 laptops.

[10](a)PW.4 further deposed that on 05.12.2015 as led by the accused they reached Totalizer center, Alive Race Course center, M.G. Road, Thunkur and on the information given by the accused they made call to one Dayanand and Girish and subsequently the said Dayanand produced 5 laptops where Girish produced 7 laptops stated to purchased from the accused. On

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examination of the laptops produced by Dayanand it was found that one laptop related to Jubilee Hills PS and also found from out of the 7 laptops produced by Girish it was found that 3 laptops were related to Jubliee Hills PS and that he seized 5 laptops from Dayanand and 7 laptops from Girish under cover of panchanama in the presence of above panchas.

[10](b) PW.4 further deposed that on 07.12.2015 as led by the accused they reached Majestic bus stop in Bangalore city where the accused shown one person by name Bharghava Kumar and that on his enquiry the said Bhargava produced eight (8) laptops stated to be purchased from the accused and that he seized 8 laptops from the said Bhargava under cover of panchanama and recorded confession statement of accused in Attibile Ankele Taluk, Karnataka State dtd. 08.12.2015; that he recorded confession statement of accused in Totalizer center race course center, MG Road, Tumkur as in Ex.P3.

[10](c) PW.4 further deposed that on 08.12.2015 as led by the accused they reached the house of one Mohan Reddy in Attibelli, Ankele Taluk, Karnataka State and there he seized seven (7) laptops from the said Mohan Reddy under cover of panchanma in the presence of mediators and from out of the 7 laptops, 5 were found to be related to Jubilee Hills PS. That he took the accused and seized laptops to Thirumalgherry PS and reproduced the accused before XI Addl.Chief Metropolitan Magistrate, Secunderabad. Though searching cross examination was made, nothing could be elicited from this witness to discredit his testimony.

[11]PW.5: K. Ramesh, S.I of police, Jubilee Hills PS is the Investigating officer. He deposed that on 28.10.2015, he received Ex.P1 from PW.1 and registered the same as case in Cr.No.762/2015 U/sec. 454, 380 IPC and issued FIR as in Ex.P5. Then he took up investigation into the matter, examined and recorded the statement of PW.1, visited the scene of offence situated at the house of PW.1; that on 28.11.2015 he received information from PW.3 about the arrest of accused in their Cr.No. 137/2015 U/sec. 457, 380 IPC of Thirumalgherry PS and recovery of stolen property related to this case and several other cases and also remand of accused to judicial custody; that he collected case property i.e 11 laptops related to several cases of Jubilee Hills P and got that identified by their owners; that he produced the accused before this court on Production Warrant and got his arrest recorded in this case and later he took the accused for police custody for 2 days and reproduced him before the court. After completion of investigation he filed charge sheet and produced the case property before the court.

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[12]The evidence of PW1 and PW2 is their Mos 1 to 3/ loptops were subjected to theft when they left them in their house. But they did show their guilty finger towards the accused as the person who lifted the property from their possession. They had said that their laptops were lifted by some unknown persons. There is no definite evidence to connect the accused to the offence U/Sec. 380 of IPC which contemplates punishment to the offender who commits theft in the residential house. It is necessary to present the discussion as to 'theft' and 'possession of stolen property'. Sec. 378 of IPC defines theft as:

“Section 378. Theft: Whoever, intending to take

dishonestly any movable property out of the

possession of any person without that person's

consent, moves that property in order to such

taking, is said to commit theft.”

Sec. 379 of IPC provides punishment for the theft, and Sec. 380 of IPC provides punishment to the offender who commits theft of property in the dwelling house. Now let me examine whether the case of the prosecution will fit into the penal definition of theft or not. In the case on hand the PW1 did not depose that he had seen the accused lifting the property from the possession of the PW1. The evidence in the form of either finger prints, or test identification parade of accused involving the identification of accused by the PW1, has not been placed on record to connect the accused to the occurrence of lifting or moving or snatching of property. Therefore, it has to be put on record that the essential ingredient of dishonest taking or moving of the property by the accused has not been proved, for which no criminal liability can be fastened to the accused for the offence U/Sec. 380 of IPC.

[13]Now let me examine whether there is any material in the case on hand to fasten criminal liability to the accused for the offence U/Sec. 411 of IPC. The Apex Court in the case of Trimbak Vs. State of Madhya Pradesh, AIR 1954

SC 39 has held that the following ingredients shall be present in the case to

fasten criminal liability to the accused:

"It is the duty of the prosecution in order to bring home the guilt of a

person under Section 411 I. P. C. to prove (1) that the stolen property

was in the possession of the accused, (2) that some person other than

the accused had possession of the property before the accused got

possession of it and (3) that the accused had knowledge that the

property was stolen property." [14]The evidence of panch-witness/Ayyappan and recovery officer/Krishna

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Murthy is that they went to Karnataka State as led by the accused and at the instance of accused they secured the presence of purchasers of laptops and recovered the same in Tatalizer center, Race Course Road, Thumkur Town. Ex.P3/confession panchanama and P4/seizure report coupled with the oral evidence of panch-witnesses and Investigating Officer/Krishna Murthy the prosecution has proved the recovery of MO1 and 2 from the third parties. The accused alone has got the knowledge as to the presence of stolen property, and none else. Hence the confession of the accused which led to recovery of stolen property at Banglore from third parties alone is admissible in evidence U/Sec. 27 of Indian Evidence Act. The evidence of Ayyappan/Panch-witness and Krishna Murthy/Investigating Officer are proving the recovery of stolen property as under MO1 and 2 from the accused. Therefore the prosecution brought home the guilt of the accused for the offence U/Sec. 411 of IPC, which is extracted as under for the sake of perusal.

“Section 411. Dishonestly receiving stolen property: Whoever

dishonestly receives or retains any stolen property knowing or having

reason to believe the same to be stolen property, shall be punished

with imprisonment of either description for a term which may extend

to three years, or with fine, or with both”.

[15]Since the stolen properties of laptops were recovered at the instance of accused from the possession of bonafide purchaser at Bangalore, it has to be held that the accused is guilty of offence U/Sec. 411 of IPC. The accused possession of stolen property at some point of time soon before his sale of the same to the person at Banglore, and such possession shall be regarded as 'dishonestly receiving of stolen property' within the meaning of Sec, 411 of IPC. The accused alone has got knowledge as to the whereabouts of stolen property and at the instance of accused only the stolen property was recovered by Krishna Murthy/Investigating Officer. Therefore, the offence U/Sec. 411 of IPC is made out against the accused.

[16]As a result the accused is found guilty of offence U/Sec. 411 of IPC for which he is convicted U/Sec. 248 (2) of Cr.P.C.

XVII ADDL. CHIEF METROPOLITAN

MAGISTRATE, HYDERABAD

1-5-2017:

The accused is produced from the jail. Judgment is pronounced and the operating portion of judgement is read over to him, and explained. When

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questioned as to quantum of sentence, the accused pleaded that he has got wife and children depending upon him, and by so saying he pleaded for the lenient view. He stated that he is man of much talent and had the history of having worked in Cinema field, and that his future will be spoiled if he is kept in Jail. The accused is aged about 30 years. He has been in judicial remand during pendency of this case. Having regard to the age of the accused and quantum of property involved in this case, I feel that it will meet the ends of justice if he is sentenced to suffer for a period of 16 months. The judicial remand period is set off U/Sec. 428 Cr.P.C. The interim custody orders in respect of the seized property shall hold good after appeal time. The sentence in this case and the sentence in CC 358/16, 359/16, 360/16, 361/16, 362/16, 404/16, 462/16 and 463/16 shall run concurrently since the recovery of property involved in all the cases was effected at the same time.

[Typed by me in my laptop, corrected and pronounced by me in the open court on this the 1 st day of May, 2017]

XVII ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE, HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTIONFOR DEFENCE

PW1: S. Naveen Kumar, victim NIL

PW2: M.S. Kishore Babu, Complainant and victim

PW3: P. Ayyappan, Panch witness

PW.4: M. Krishna Murty, Recovery officer

PW.5: K. Ramesh, IO

XVII ACMM C.C. No. 357 OF 2016 .

EXHIBITS MARKED

FOR PROSECUTIONFOR DEFENCE

Ex.P1: complaint

Ex.P2: Atested copy of panchanama dtd. 26.11.2015

Ex.P3: attested copy of confession panchanama dtd. 05.12.2015

Ex.P4: seizure report

Ex.P5: FIR

MATERIAL OBJECTS MARKED

FOR PROSECUTIONFOR DEFENCE

M.O.1: Lenova laptop of PW.1NIL

M.Os.2 and 3 are Lenova and HP laptops of PW.2

XVII ADDL. CHIEF METROPOLITAN

MAGISTRATE, HYDERABAD

XVII ACMM C.C. No. 358 OF 2016 .

IN THE COURT OF THE XVII ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE: NAMPALLY CRIMINAL COURTS, HYDERABAD

Present: Sri Y. Govinda Reddy, XVII Addl. Chief Metropolitan Magistrate, Nampally Criminal Courts, Hyderabad

C. C. No. 358 of 2016

Dated this the 1st day of May, 2017

Between:

The State of Telangana, through the Sub-Inspector of police, Jubilee Hills P.S., Hyderabad City, Telangana State.… Complainant

AND

Kamepally Krishna Mohan @ Karthik @ Krish, S/o: Late Laxmi Narayana, Age: 35 yrs, R/o: H.No. 137, JC Layout, Mysore, Karnataka State, N/o: Tirumala Towers, Railway Station road, Nidadavolu of West Godavari District. A.P.… Accused

This case is coming on this day before me for final disposal in the presence of Asst. Public Prosecutor for the State and of Sri Balaraj Goud, Counsel for accused and having heard both sides and upon perusal of material available on record, this court made the following:

J U D G M E N T

[1]The SI of Police, Jubilee Hills PS filed charge sheet against the accused alleging as follows:

That on 28-05-2015 some unknown offenders have committed theft of Dell XPS laptop and some net cash from the room of LW1/S. Rajashwar Bunga in H. No. 8-3- 225/A/150/57, #102, Yadagiri Nagar, Yousufguda, Hyderabad. The LW12/K. Ramesh, S.I. of Police of Jubilee Hills has registered this case as Cr.No. 377/2015 for the offence U/Sec. 454 and 380 IPC, visited the crime scene, examined and recorded the statements of witnesses. During the course of time, on 26-1-2015 the LW11/Krishna Murthy, S.I. of Police of Tirumalgherry arrested the accused in Lothukunta area under suspicious circumstances, and took him to

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Thirumalgherry PS, and interrogated in the presence of two mediators namely Peddireddy Venkat Reddy and Ramachandran Ayyappan, and recovered one stolen gold ring related to Cr.No. 131/2015 of Thirumalgherry PS. The accused further confessed that he had committed theft of several laptops in houses in Jubilee Hills, Madhapur, Begumpet, Bowenpalli, and sold the stolen laptops through OLX.com, which is an online website through which the used articles are bought and sold by anybody. He further disclosed that he had sold the stolen laptops in (1) Prarav of Jeshwanthpur, (2) Mohan of Koramangala, (2) Bhargava Kumar @ Marath of Marathhalli, (4) Pranav of Yeshwanthpura in Banglore city, and (5) Dayanand @ Daya Bhai of Huliya Durg, Kunigal Taluk, Tumkur District, Karnataka State, (6) Girish of Yellapura, Arakeri, Tumkur District, (7) Shakeem of Mysore, Karnataka State and (8) Mohan Reddy of Athebilli village, Ankle Taluk, Karnataka State. The accused was produced for judicial remand before XI Addl. Chief Metropolitan Magistrate, Secunderabad and he was taken for police custody from 3-12-2015 to 9-12- 2015.

As led by the accused, the LW11/Krishna Murthy, S.I. of Police of Thirumalgherry along with the same panchas reached Mysore on 4-12-2015 and secured the presence of one Shakeem, who purchased the stolen laptops from the accused, and recovered eight laptops under the cover of panchanama.

As led by the accused, the LW11/Krishna Murthy, S.I. of Police of Thirumalgherry along with the same panchas reached Totalizing Center, Race Course Road, Thumkur Town, Karnataka State on 5-12-2015 and secured the presence of one B. M. Dayanand, who produced the stolen laptops from the accused and LW11/Krshna Murthy recovered five laptops under the cover of panchanama on 5-12-2011 and also recovered Seven laptops from one Girish, who produced the

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stolen laptop from the accused.

As led by the accused, the LW11/Krishna Murthy, S.I. of Police of Thirumalgherry along with the same panchas reached Majestic Bus Stop in Banglore City on 7-12-2015 and secured the presence of Bhargav Kumar @ Marath, who purchased the stolen laptops from the accused, and recovered eight laptops from him under the cover of panchanama.

As led by the accused, LW11/Krishna Murthy, S.I. of Police of Thirumalgherry along with the same panchas reached Attibelli Village, Ankele Taluk, Karnataka State on 8-12-2015, and secured the presence of Mohan Reddy, who purchased stolen laptops from the accused, and recovered seven laptops from him under the cover of panchanama.

The laptop recovered on 07 -12-2015 at Majestic Bus Stop is related to this case.

The LW11/Krishna Murthy has reproduced the accused before the XI ACMM Court, Secunderabad. On 28-11-2015 the LW12/K. Ramesh, S.I. of Police, Jubilee Hills has secured the presence of accused on production warrant, and got his arrest recorded in this case. He also collected the stolen property related to this case, along with the arrest panchanamas and seizure reports, connected the same to this case, and filed charge sheet and filed charge sheet against the accused for the offence U/Sec. 454 and 380 IPC.

[2]This Court has taken cognizance of offence for the offence U/Sec.454 and 380 of IPC. Copies of documents were supplied to the accused U/Sec. 207 of Cr.P.C. to the accused. The accused was examined U/Sec. 239 of Cr.P.C., and a charge has been framed U/Sec. 240 of Cr.P.C., for the offence U/Sec. 411 of IPC. The charge has been read over and explained to the accused, who pleaded not guilty and claimed to be tried.

[3]The prosecution examined PW 1 to 4 and got marked Ex. P1 to P5 and M.O.1. After closure of evidence of prosecution the accused was examined

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U/Sec. 313 of Cr.P.C. and the incriminating material was put to the accused, who denied the truth in the evidence of prosecution and reported no defence.

[4]The defence of the accused is that he was falsely implicated in this case for the statistics purpose.

[5]Heard both the sides.

[6]POINT: Whether the accused has led the police party to the recovery of stolen laptop from one Marath @ Bhargav Kumar of Banglore, Karnataka State, on 07-12-2015 at Majestic Bus Stop, Banglore city and thus committed an offence U/Sec. 411 of IPC?

[7]ANSWER TO THE POINT: The evidence of PW1 to 4 and Ex.P1 to P5 and M.O.1 is on record. Now let me examine the evidence on record.

[8]PW.1: Rajeshwar Bunga is the defacto complainant. He deposed that he used to reside in H.NO. 8-3-225/A/50/57, Yadagiri Nagar, Yousufguda, Hyderabad and on 28.05.2015 he left his house under lock and key to attend his job and at about 3.30 PM his house owner informed about commission of theft in his house and on his search he found missing of his Dell XPS laptop and cash and that he lodged Ex.P1 complaint before police and police recovered his Dell XPS laptop as in M.O.1 which was taken by him towards interim custody.

[9]PW.2: P. Ayyappan is the panch witness. He deposed that on 26.11.2015, Murthy, S.I of police, Thirumalgherry PS called him to the PS and that he found one person by name Krishna Mohan in the custody of police and on his enquiry the said Krishna Mohan disclosed that he committed theft of laptops and gold at Madhapur and Hitech city of Hyderabad and sold the same in Bangalore town and by so saying he took one gold ring from his pocket stated to be stolen property and that police recovered the said gold ring under cover of panchanama; that as led and shown by the accused, himself, PW.3 and police went to Magistic bus stop Bangalore and recovered 7 laptops and gold jewellery under cover of seizure report as in Ex.P4. Ex.P2 is attested copy of seizure panchanama dtd. 26.11.2015. Ex.P3 is attested copy of confession cum seizure panchanama dtd. 07.12.2015. The police recovered laptops in Bangalore city and returned back to Hyderabad along with seized laptops. The evidence of this witness was not destroyed in cross examination.

[10]PW.3: M. Krishna Murthy is the then S.I of Police, Thirumalgherry PS and

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he is the Recovery officer in this case. He deposed that on 26.11.2015 at about 18.00 hours on receipt of information about offender moving on Lothkunta area of Tirumalgherry, he along mediators namely LW.2: Venkat Reddy and PW.2 proceeded to Lothkunta area and apprehended the accused and took him to Tirumalgherry PS and on interrogation, the accused confessed that he had committed theft of laptops and gold ornaments in several places in Hyderabad; that he recorded confession statement of accused and recovered one gold ring from the possession of accused in the presence of above mediators under cover of Ex.P2 panchanama; that the accused further confessed that he had sold stolen laptops in Bangalore city, Dayabhai City, Mysore city and he will show the said places; upon which PW.3 produced the accused before XI Addl.Chief Metrpolitan Magistrate, SEcunderabad and forwarded him to judicial remand and that from 03.12.2015 to 09.12.2015 the accused was taken for police custody during the course of which further confession of accused was recorded and later on 04.12.2015 as led and shown by the accused he along with mediators reached the house of accused in Mysore where one person by name Shakeem admitted that he purchased eight (8) laptops from the accused and that he seized the said 8 laptops from the under cover of panchanama and the laptop of Lenovo company related to Jubilee Hills PS was found among the above 8 laptops.

[10](a)PW.3 further deposed that on 05.12.2015 as led by the accused they reached Totalizer center, Alive Race Course center, M.G. Road, Thunkur and on the information given by the accused they made call to one Dayanand and Girish and subsequently the said Dayanand produced 5 laptops where Girish produced 7 laptops stated to purchased from the accused. On examination of the laptops produced by Dayanand it was found that one laptop related to Jubilee Hills PS and also found from out of the 7 laptops produced by Girish it was found that 3 laptops were related to Jubliee Hills PS and that he seized 5 laptops fro Dayanand and 7 laptops from Girish under cover of panchanama in the presence of above panchas.

[10](b) PW.3 further deposed that on 07.12.2015 as led by the accused they reached Majestic bus stop in Bangalore city where the accused shown one person by name Bharghava Kumar and that on his enquiry the said Bhargava produced eight (8) laptops stated to be purchased from the accused and that he seized 8 laptops from the said Bhargava under cover of panchanama and recorded confession statement of accused in Attibile Ankele Taluk, Karnataka

XVII ACMM C.C. No. 358 OF 2016 .

State dtd. 08.12.2015. Ex.P3 is confession pachanama.

[10](c) PW.3 further deposed that on 08.12.2015 as led by the accused they reached the house of one Mohan Reddy in Attibelli, Ankele Taluk, Karnataka State and there he seized seven (7) laptops from the said Mohan Reddy under cover of panchanma in the presence of mediators and from out of the 7 laptops, 5 were found to be related to Jubilee Hills PS. That he took the accused and seized laptops to Thirumalgherry PS and reproduced the accused before XI Addl.Chief Metropolitan Magistrate, Secunderabad. Ex.P4 is seizure report dtd. 07.12.2015 at Majestic Bus stop, Bangalore. The evidence of this witness stood to cross examination.

[11]PW.4: K. Ramesh, S.I of police, Jubilee Hills PS is the Investigating officer. He deposed that on 28.05.2015 he received Ex.P1 from PW.1 and registered the same as case in Cr.No.377/2015 U/sec. 454, 380 IPC and issued FIR as in Ex.P5. Then he took up investigation into the matter, examined and recorded the statement of PW.1, visited the scene of offence situated at the house of PW.1; that on 28.11.2015 he received information from PW.3 about the arrest of accused in their Cr.No. 137/2015 U/sec. 457, 380 IPC of Thirumalgherry PS and recovery of stolen property related to this case and several other cases and also remand of accused to judicial custody; that he collected case property i.e 11 laptops related to several cases of Jubilee Hills P and got that identified by their owners; that he produced the accused before this court on Production Warrant and got his arrest recorded in this case and later he took the accused for police custody for 2 days and reproduced him before the court. After completion of investigation he filed charge sheet and produced the case property before the court.

[12]The evidence of PW1 is their MO 1/Dell laptop was subjected to theft when they left him in their house. But he did show his guilty finger towards the accused as the person who lifted the property from their possession. He had stated that his laptop was lifted by some unknown person. There is no definite evidence to connect the accused to the offence U/Sec. 380 of IPC, which contemplates punishment to the offender who commits theft in the residential house. It is necessary to present the discussion as to 'theft' and 'possession of stolen property'. Sec. 378 of IPC defines theft as:

“Section 378. Theft: Whoever, intending to take

dishonestly any movable property out of the

possession of any person without that person's

consent, moves that property in order to such

XVII ACMM C.C. No. 358 OF 2016 .

taking, is said to commit theft.”

Sec. 379 of IPC provides punishment for the theft, and Sec. 380 of IPC provides punishment to the offender who commits theft of property in the dwelling house. Now let me examine whether the case of the prosecution will fit into the penal definition of theft or not. In the case on hand the PW1 did not depose that he had seen the accused lifting the property from the possession of the PW1. The evidence in the form of either finger prints, or test identification parade of accused involving the identification of accused by the PW1, has not been placed on record to connect the accused to the occurrence of lifting or moving or snatching of property. Therefore, it has to be put on record that the essential ingredient of dishonest taking or moving of the property by the accused has not been proved, for which no criminal liability can be fastened to the accused for the offence U/Sec. 380 of IPC.

[13]Now let me examine whether there is any material in the case on hand to fasten criminal liability to the accused for the offence U/Sec. 411 of IPC. The Apex Court in the case of Trimbak Vs. State of Madhya Pradesh, AIR 1954

SC 39 has held that the following ingredients shall be present in the case to

fasten criminal liability to the accused:

"It is the duty of the prosecution in order to bring home the guilt of a

person under Section 411 I. P. C. to prove (1) that the stolen property

was in the possession of the accused, (2) that some person other than

the accused had possession of the property before the accused got

possession of it and (3) that the accused had knowledge that the

property was stolen property." [14]The evidence of panch-witness/Ayyappan and recovery officer/Krishna Murthy is that they went to Karnataka State as led by the accused and at the instance of accused they secured the presence of purchasers of laptops and recovered the same in Mejestic Bus Stop, Banglore. Ex.P3/confession panchanama and P4/seizure report coupled with the oral evidence of panch- witnesses and Investigating Officer/Krishna Murthy, the prosecution has proved the recovery of MO1 from one Bhargav Kumar @ Marath in Mejestic Bus Stop, Banglore. The accused alone has got the knowledge as to the presence of stolen property, and none else. Hence the confession of the accused which led to recovery of stolen property at Banglore from third parties alone is admissible in evidence U/Sec. 27 of Indian Evidence Act. The evidence of Ayyappan/Panch-witness and Krishna Murthy/Investigating Officer are proving

XVII ACMM C.C. No. 358 OF 2016 .

the recovery of stolen property as under MO1 at the in instance of accused. Therefore the prosecution brought home the guilt of the accused for the offence U/Sec. 411 of IPC, which is extracted as under for the sake of perusal.

“Section 411. Dishonestly receiving stolen property: Whoever

dishonestly receives or retains any stolen property knowing or having

reason to believe the same to be stolen property, shall be punished

with imprisonment of either description for a term which may extend

to three years, or with fine, or with both”.

[15]Since the stolen property of laptops was recovered at the instance of accused from the possession of bonafide purchaser at Banglore, it has to be held that the accused is guilty of offence U/Sec. 411 of IPC. The accused, though not lifted the stolen property from the house of PW1, still he had possession of stolen property at some point of time soon before his sale of the same to the person at Banglore, and such possession shall be regarded as 'dishonestly receiving of stolen property' within the meaning of Sec, 411 of IPC. The accused alone has got knowledge as to the whereabouts of stolen property and at the instance of accused only the stolen property was recovered by Krishna Murthy/Investigating Officer. Therefore, the offence U/Sec. 411 of IPC is made out against the accused.

[15]As a result the accused is found guilty of offence U/Sec. 411 of IPC for which he is convicted U/Sec. 248 (2) of Cr.P.C.

XVII ADDL. CHIEF METROPOLITAN

MAGISTRATE, HYDERABAD

1-5-2017:

The accused is produced from the jail. Judgment is pronounced and the operating portion of judgement is read over to him, and explained. When questioned as to quantum of sentence, the accused pleaded that he has got wife and children depending upon him, and by so saying he pleaded for the lenient view. He stated that he is man of much talent and had the history of having worked in Cinema field, and that his future will be spoiled if he is kept in Jail. The accused is aged about 30 years. He has been in judicial remand during pendency of this case. Having regard to the age of the accused and quantum of property involved in this case, I feel that it will meet the ends of justice if he is sentenced to suffer for a period of 16 months. The judicial remand period is set off U/Sec. 428 Cr.P.C. The interim custody orders in respect of the seized property shall hold good after appeal time. The sentence

XVII ACMM C.C. No. 358 OF 2016 .

in this case and the sentence in CC 357/16, 359/16, 360/16, 361/16, 362/16, 404/16, 462/16 and 463/16 shall run concurrently since the recovery of property involved in all the cases was effected at the same time.

Typed by me in my laptop, corrected and pronounced by me in the open court on this the 1 st day of May, 2017]

XVII ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE, HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTIONFOR DEFENCE

PW1: Rajeshwar Bunga, ComplainantNIL

PW2: P. Ayyappan, Panch witness

PW3: K. Krishna Murthy, Recovery officer

PW.4: K. Ramesh, Investigating Officer

EXHIBITS MARKED

FOR PROSECUTIONFOR DEFENCE

Ex.P1: complaint NIL

Ex.P2: attested copy of seizure panchanama dtd. 26.11.2015

Ex.P3: attested copy of confession cum seizure panchanam dtd. 07.12.2015

Ex.P4: seizure report dtd. 07.12.2015 at Majestic bus stop, Bangalore

Ex.P5: FIR

MATERIAL OBJECTS MARKED

FOR PROSECUTIONFOR DEFENCE

M.O.1: Dell XPS laptopNIL

XVII ADDL. CHIEF METROPOLITAN

MAGISTRATE, HYDERABAD

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE: NAMPALLY

CRIMINAL COURTS, HYDERABAD

Present: Sri Y. Govinda Reddy, Chief Metropolitan Magistrate, Nampally Criminal Courts, Hyderabad

C. C. No. 215 of 2010

Dated this the 8th day of February, 2018

Between:

The State of Telangana, through the Sub-Inspector of police, P.S. Charminar, Hyderabad City, Telangana State.… Complainant

AND

A1 Syed Jakeer Hussain S/o Sd Khaja Peer, Age 31 years, Occ: Real Estate Business, R/o H.No. 16-1-28/A, Near Quba-E-Masjid, Farah Colony, Saidabad, Hyderabad. N/o Ananthapur Dist.

A2 Malishetty Venkateshwarlu @ Sharma, S/o Late M. Subbaraidu, age 48 years, Occ: Real Estate Business, R/o SRT-476, Sanathnagar, Hyderabad, N/o Prakasham Dist.

A3 Pallapu Trupathaiah S/o P. Lachaiah, age 47 years, Occ: Real Estate Business, Occ: H.No. 8-30/K/4/A, Hema Nagar Colony, Boduppal, Uppal Limits Hyderabad N/o Warangal Dist.

A4 A. Venkata Ram Reddy S/o A. Chinna Reddy, Age 40 years, Occ: Real Estate Business, R/o H.No. 205/1, Narsing Kottal (V), Proddutur (M), Kadapa Dist.

A5 C. Guru Prasad S/o C. Guraiah, age 30 years, Occ: SPF Constable No. 1746 Working at Mint Compound , R/o H.No. 2-3-647/B/123, New Prem Nagar, Amberpet, Hyderabad, N/o Kadapa Dist, Andhra Pradesh.

A6 G. Devendrudu @ Deva S/o Kriahnaiah, age 31 years, Occ: SPF PC. No. 2491, Working at Security Printing Press Unit, Mint Compound Hyderabad from 2006, R/o SPF Barracks, Mint Compound N/o Chittor Dist.

A7 R. Venkata Suryanarayana S/o R. Tirupathaiah, Age 34 years, Occ: Pvt employee (Insurance Agent) R/o H.No. 6-1-445/AA, Gandhi Nagar, Khairatabad, N/o Kadapa, Andhra Pradesh. …Accused 2 (A1 died . Hence the case against A1 is abated . The present case is against A2 to A7 only)

This case is coming on this day before me for final disposal in the presence of Asst. Public Prosecutor for the State and of Sri Venu Gopal and Mohd Aslam , D, Raji Reddy, Counsel for accused no.1, 2, 4, 5 and 7; Sri Ramprasad , Counsel for accused no. 6 and having heard both sides and upon perusal of material available on record, this court made the following:

J U D G M E N T

[1]The SI of Police, Charminar PS has filed charge sheet against the accused alleging as follows:

That on one day the LW2/Suresh and LW3/Mohan Rao came to the LW1/L.

Durga Das and revealed a super idea of becoming rich with the help of magic pot. The LW1/L. Durga Dass agreed to purchase the magic pot for

Rs.6,00,000/-. In pursuance of their plan to purchase a magic pot, the LW1/L.

Durga Dass took cash of Rs. 6,00,000/- and came to LW4/Ramavatar Goel to buy the magic pot. The said Ramavatar collected Rs.6,00,000/- from the

LW1/L. Durga Dass. Then LW4/Ramavatar asked the LW1/L. Druga Dass,

LW2/Suresh and LW3/Mohan Rao to move to Nacharam to collect magic pot from three persons, who were waiting in a house near Nacharam. Accordingly they reached one house near Nacharam as led by LW4/Ramavatar. They found two female persons and three male persons in the said house, and those unknown persons asked LW4/Ramavatar and party to sit in the hall. Those unknown persons went inside the house and brought one paper box and perform pooja to that box. Meanwhile, four unknown persons came in Khaki pants and civil shirts holding lathis in their hands, and took the cash bag, and beaten the persons who were performing pooja. Those persons fled away from the house along with cash on their motor cycles saying as “police station chalo”. Meanwhile, LW4/Ramavatar and all others except LW3/Mohan Rao escaped from the place. On the next day LW1/L. Durga Dass gave complaint in Charminar PS, who registered the same as in Cr.No. 202/2008 for the offence U/Sec. 420 IPC. During the course of investigation, the LW10/M.

Raju, S.I. of Police has examined the witnesses and recorded their statements, 3 and apprehended the accused no.1 to 3 in the presence of mediators namely

Md. Anwar and Md. Hameed and recovered the offensive money of Rs.

60,000/- and one copper pot from the accused no.1, Rs.6,500/- cash from the accused no.2, Rs. 20,000/- from the accused no.3. As led by the accused no.1, he apprehended the accused no. 4 to 7 and recovered Rs. 30,000/- from accused no. 4, Rs.58,000/- from accused no.5, Rs. 23,000/- from accused no.6, and Rs.12,500/- from accused no.7 under the cover of panchanama. The accused no. 1 to 7 were forwarded to the judicial remand, and added penal section of 384, 120-B r/w 34 of IPC and filed charge sheet after completion of investigation.

[2]This Court has taken cognizance of offence for the offence U/Sec. 384 and 120-B of IPC.

Copies of documents were supplied to the accused U/Sec. 207 of Cr.P.C. to the accused. The accused were examined U/Sec. 239 of Cr.P.C., and a charge has been framed U/Sec. 240 of Cr.P.C., for the offences U/Sec. 420, 384 and 120-B of IPC. The charges have been read over and explained to the accused, who pleaded not guilty and claimed to be tried.

[3]The prosecution examined PW 1 to PW6 and got marked Ex. P1 to P9. After closure of evidence of prosecution the accused were examined U/Sec. 313 of Cr.P.C. and the incriminating material was put to the accused, who denied the truth in the evidence of prosecution and reported no defence. (A1 died . Hence the case against A1 is abated . The present case is against A2 to A7 only) [4]The defence of the accused is that they were implicated in this case mistakenly by planting the cash and copper pot, which are available in the local market.

[5]Heard both the sides.

[6]POINT: Whether the accused no. 1 to 7 have deceived the PW1/L. Durga Das with a false promise that the magic pot which they give will do miracles, and thereby collected money of

Rs.6,00,000/- from the PW1/L. Durga Das and thus committed an offence U/Sec. 420, 120-B r/w 34 of IPC ?

4 [7]PROSECUTION EVIDENCE ON RECORD: The evidence of PW1 to P6 and Ex.P1 to P 9 is on record. Now let me examine the evidence on record.

[8]PW1/L. Durga Das in his evidence has deposed that during the year 2008, LW2/Suresh came to him and stated that there is a magical pot and one would achieve wonders if such magical pot is kept in the Almirah in the place were cash is usually kept. He believed LW2/Suresh , then himself and PW3 went to Suresh and he informed that the said magical pot is with LW4/Ramavathar, who asked him to bring Rs 6,00,000/- towards cost of such magical pot, that on the next day ie in the month of August, 2008, himself, LW3/ Mohan Rao together went to City College X Roads along with cash of Rs 6,00,000/-. They went on two wheelers to Nacharam. From there he was taken to one temple of

Saibaba. There is a house near that temple, where 7 or 8 persons are present in that house. They entered into the house and one person brought one box in his hands and stated that inside the box there is magical pot and that four persons entered into the house and introduced themselves as police and took the person who was holding magical pot and that he had given Rs 6,00,000/- to

LW4/Ramavatharam. After those police uniformed persons left the scene. Ramavatharam was also found missing along with cash and he stated that he had not seen who had taken Rs 6,00,000/- cash from LW4/Ramavatharam and informed to police. He went to police station and gave complaint on the next day . Later the police recovered cash of Rs 2,10,500/- and taken the same for interim custody.

[9] PW2/Mohan in his evidence has deposed that LW2/Suresh told him that there is one magical pot and that he informed the same to PW1 . LW2/Suresh informed him that if he purchased magical pot then only he will show the magical pot . PW1 collected Rs 6,00,000/- and came to him. Then himself ,

PW1, LW2/Suresh went to Nacharam area to purchase magical pot. Then they were taken through small gallis and reached one house and they made them to sit in a Temple . From the temple PW1 alone went to bring magical pot. After 30 minutes PW1 came and narrated that some people snatched the cash from him and they searched in the streets .

[10] PW3 Ramavthar in his evidence has stated that A1 came to him and proposed to sell one magic pot to the needful party. Then he informed the same to LW2/Suresh and PW1 and LW2 Suresh took the 5 cash and met them near High Court from there, himself , PW1 and some other persons went to

Nacharam to collect the magic pot. They went to one house where some pooja was going on. When they approached near the house police came there and snatched cash of Rs 6,00,000/- from PW1 and ran away. This witness turned hostile and did not support the case of the prosecution.

[11] PW/Mohd Hameed , in his evidence has deposed that he is running Bangle store. A few days ago on one day the police called him to Police Station obtained his signatures on some papers. This witness turned hostile and did not support the case of the prosecution.

[12] PW5/K. Sunkaanna in his evidence has deposed that on 04-09-2008 he accompanied his SI of

Police /M. Raju, PC Chandra Sekar/ LW8 and LW9/Ismail , PW4 and LW5/Anwar were also present .

They all reached Fara Colony in Saidabad and enter into the house of A1 and two more friends were also present and when his SI of Police questioned him A1 he admitted that he was cheating the public by propagating that he is having one magic pot in his house and whoever keeps such magic pot in house he will become rich very quickly. A1 further confessed that along with him there were some other persons assisting him in duping public and collecting money in the name of offer to sale magic pot. His SI of Police seized magic pot and also some cash from his house under cover of panchanama in the presence of mediators. From there as led by A1 they reached the house of co- accused in Premnagar, Amberpet and found four persons in the said house and recovered some cash from those persons since the said related to the cheating business in the name of magic pot committed by A1. A panchanama was drafted for seizure of cash from the said house. They took A1 and other arrested persons to their PS and forwarded to judicial remand.

[13] PW6 /M. Raju, Inspector of Police in his evidence ha deposed that on 30-08-2008 at 10.40 P.M he received Ex P6 complaint from PW1 and registered the same as a case in Cr.No. 202/2008 and issued

FIR, examined and recorded the statements of PW1, PW2, PW3 and LW2/Suresh,went to the scene of offence and caused enquires. On 04-09-2008 on credible information he along with his staff arrested 6

A1 to A3 at his house in the presence of mediators, recorded the confession statement of accused and seized Rs 60,000/- and one copper pot from A1, Rs 6,500/- cash from A2, Rs 20,000/- from A3 . As led and shown by A1 to A3, they reached New Prem Nagar, Amberpet and arrested A4 to A7 and recovered Rs 30,000/- from A4 and Rs 58,000/- from A5 and Rs 23,000/- from A6 and Rs 12,500/- from A7 and got marked Ex P8 and P9 and forwarded you to judicial remand . Then he added section of law under Section 384, 120-B r/w 34 of IPC , after completion of investigation he filed charge sheet.

[14]DISCUSSION OF POINT: The evidence of PW1 disclosing that he has paid Rs.6 lakhs of cash towards the cost of magic pot in one house, but he can not identify the person who took cash from him and that he can not identify the persons who came to the spot in police uniform. Admittedly, the

PW1 has not seen the accused prior to the occurrence. He has not identified the accused in the Police

Station or in the Jail before the Judicial Magistrate. The Investigating Officer has not narrated as to how he has connected the accused to this crime. When the names of the accused are not known to the

PW1, and when the PW1 has not identified the accused in the investigation stage, the connecting of the accused to this crime is something which the law does not accept. PW1 has not identified the accused even before the Court at the trial stage. Hence the evidence of PW1 is not sufficient to connect the accused to the occurrence. Further the PW1 adds in his cross-examination that he gave handwritten complaint in the Police Station, and his complaint is not available in the case file before the Court.

This goes a long way and from his I have no hesitation to hold that the case was laid after due deliberations. The incident is stated to have taken place on 29-8-2008 at 10-00 AM, and the complaint was lodged on 30-8-2008 at 22-40 hours. There is delay of more than 36 hours delay in lodging complaint. The delay is fatal which cuts the gross roots of the case of the prosecution.

[15]Now let me see the evidence of PW2 and PW3, who are the eye witnesses to the occurrence.

PW2 and PW3 having narrated as to how the offenders have snatched the cash from PW1, they have categorically stated that they can not say whether the accused before the Court the same persons who participated in the occurrence. Hence their evidence is of no avail for the prosecution to fasten criminal liability to the accused.

7 [16]The evidence of PW4/panchwitness is that his signatures were taken by the police in the Police

Station, and that the police recovered nothing from the accused. This evidence of PW4 is also of no avail for the prosecution. PW5/ASI of Police has deposed that PW6 arrested the accused and recovered cash from the house of accused. PW6/ Investigating Officer has deposed that he has connected the accused to the occurrence basing on the possession of the offensive cash. The basis for the Investigating Officer to fix the accused into this crime is his credible information, and consequent recovery of cash from them. The cash is available everywhere in the society, and it is very difficult to fasten criminal liability to the accused on the basis of mere possession of cash. There is definite evidence to hold that the cash said to have been snatched by the offenders in the crime scene and the cash recovered from the accused is one and the same. Under these circumstances, I hold that the prosecution failed to bring home the guilt of the accused no. 2 to 7.

[17]As a result, the accused no. 2 to 7 are found not guilty of offence U/Sec. 420 , 384 and 120-B r/w 34 of IPC for which they are acquitted U/Sec. 248 (1) of Cr.P.C. The bail bonds of the accused shall remain in force for a period of six months.

[18] The seized cash which was given for interim custody to the PW1 shall hold good after appeal time, since the accused are not claiming the cash in question is of them.

Typed by me in my laptop by myself corrected and pronounced by me in the open

court on this 8th day of February, 2018.

CHIEF METROPOLITAN MAGISTRATE

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTIONFOR DEFENCE

PW1: L. Durga Das/ Complainant/victim NIL

PW2: Mohan Rao/Eye witness

PW3: Ramavthar Goel/Eye witness 8

PW4: Mohd Hameed/ panch witness for confessional cum seizure panchanama

PW5: K. Sunkanna / assisted IO

PW6: M. Raju/Investigating Officer

EXHIBITS MARKED

FOR PROSECUTIONFOR DEFENCE

Ex.P1: is signature of PW1NIL

Ex.P2: is 161 Cr.P.C statement of PW2

Ex.P3: is 161 Cr.P.C statement of PW3

Ex.P4 and P5: are signatures of PW4 on panchanama

Ex.P6: is complaint

Ex.P7: is FIR

Ex.P8: is panchanama covering relating to the arrest of A1 to A3 and recovery of cash

Ex.P9: is panchanama covering relating to the arrest of A4 to A7 and recovery of cash

MATERIAL OBJECTS MARKED

FOR PROSECUTIONFOR DEFENCE

NILNIL

CHIEF METROPOLITAN MAGISTRATE

HYDERABAD.

CALENDER OF CASES TRIED BY CHIEF METROPOLITAN MAGISTRATE :

HYDERABAD

FORM NO: 71/72 OF CRL. RULES OF PRACTICE

CALENDER AND JUDGEMENT

C.C.NO. 215 of 2010

Date of offence: 29-08-2008 Date of report/complaint : 30-08-2008 Taking cognizance : 23-02-2010 Furnishing copies to the accused : 23-02-2010 Plea of the accused : 08-08-2017 Examination U/Sec.313 Cr.P.C.: 05-01-2018 Date of apprehension of accused : 04-09-2008 Date of Release on bail : 18-09-2008 Date of Commencement of trial : 28-08-2017 Date of Close of Trial : 28-12-2017 Date of Judgment: 08-02-2018 Name of the Complainant : SI of Police, Charminar PS , Hyderabad. Name of the accused : A2 to A7

Explanation for delay: No delay / Due to non production of witnesses by the prosecution. Offence under Section : 420, 384, 120-B r/w 34 of IPC Finding : Found not guilty Result : Acquitted under Section 248(1) Cr.P.C

CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

To: The Hon'ble I Addl., Metropolitan Sessions Judge, Hyderabad.

Dis.No. /CMM/2018 Date :

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE: NAMPALLY

CRIMINAL COURTS, HYDERABAD

Present: Sri Y. Govinda Reddy, Chief Metropolitan Magistrate, Nampally Criminal Courts, Hyderabad

C. C. No. 611 of 2013

Dated this the 16th day of February, 2018

Between:

The State of Telangana, through the Sub-Inspector of police, Chandrayanagutta P.S., Hyderabad City, Telangana State.… Complainant

AND

Mohd. Nizam S/o Mohd. Masleh Uddin , Aged 28 years , Occ: Business, R/o H.No. 18-9-462/1, Near MIM Office, Keshavagiri, Chandrayangutta, Hyderabad. … Accused

This case is coming on this day before me for final disposal in the presence of Asst. Public Prosecutor for the State and of Sri Sabir Bin Awaz , Counsel for accused and having heard both sides and upon perusal of material available on record, this court made the following:

J U D G M E N T

[1]The SI of Police, Chandrayanagutta PS filed charge sheet against the accused alleging as follows:

The accused and the LW1/Md. Abdul Rahman and LW2/Abubakar Siddique are his friends. The LW1/Md. Abdul Rahman had purchased one goat for Rs.

54,000/- from the accused and he paid Rs.50,000/- to accused and kept the Rs.

4,000/- as a balance. The accused was demanding to return the balance of

Rs.4,000/- and the LW1/Md. Abdul Rahman was postponing the same. While so on 24-3-2010 at 22-00 hours the accused called the LW1/Md. Abdul Rahman to Farooki Azam Mosque in Chandrayanagutta X Roads, and demanded for the repayment loan of Rs.4,000/- from LW1/Md. Abdul Rahman. The LW1/Md.

Abdul Rahman went along with his friend, Abubakar Siddiqui (LW2) nearer to

Farooki Azam Mosque. There was a quarrel between the accused on one side 2 and the LW1/Md. Abdul Rahman on the other side. In such quarrel the accused assaulted the LW1/Md. Abdul Rahman with a knife on his chest and caused an injury, and also caused fracture injury to his right shoulder, and also fisted on his face on the eye. The incident was witnessed by LW3/Md. Haji Shareef, and

LW4/Md. Abdul Mateen. After the incident LW1/Md. Abdul Rahman went to

PS of Chandrayanagutta and lodged a complaint. The LW5/Mohd Jameeluddin,

HC registered this case as Cr.No. 80/2013 for the offence U/Sec. 324 of IPC, and handed over the investigation to the LW6/D. Venkat Reddy, S.I. of Police, who conducted investigation. During the course of investigation he examined the witnesses and recorded their statements, visited the crime scene, arrested the accused on 24-3-2013 and forwarded him to judicial remand, and collected the medical certificate from the Owaisi Hospital, Hyderabad and filed charge sheet.

The Doctor who gave treatment to the LW 1/Md. Abdul Rahman has opined that the injury to his shoulder was grievous in nature since there was a fracture.

Hence charge for the offence U/Sec. 326 of IPC.

[2]This Court has taken cognizance of offence for the offence U/Sec. 326 of IPC. Copies of documents were supplied to the accused U/Sec. 207 of Cr.P.C. to the accused. The accused was examined U/Sec. 239 of Cr.P.C., and a charge has been framed U/Sec. 240 of Cr.P.C., for the offence

U/Sec. 326 of IPC. The charge has been read over and explained to the accused, who pleaded not guilty and claimed to be tried.

[3]The prosecution examined PW 1 to 5 and got marked Ex. P1 to P3. After closure of evidence of prosecution the accused was examined U/Sec. 313 of Cr.P.C. and the incriminating material was put to the accused, who denied the truth in the evidence of prosecution and reported no defence.

[4]The defence of the accused is that they were implicated in this case due to local politics.

[5]Heard both the sides.

3 [6]POINT: Whether the accused on 24-03-2013 at about 22-00 hours at Farooq e Azam

Mousque, Chandrayanagutta X Roads, Hyderabad has voluntarily caused injury with knife on the chest to PW1/Md. Abdul Rehman, and caused fracture injury to right hand and thus committed an offence U/Sec. 326 of IPC ?

[7]PROSECUTION EVIDENCE ON RECORD: The evidence of PW1 to 5 and Ex.P1 to P3 is on record. Now let me examine the evidence on record.

[8]PW1: Md. Abdul Rahman is the defacto-complainant and injured. He deposed that he purchased one goat from the accused for Rs. 57,000/- and the said goat was returned to the accused since it was not useful for breeding purpose, but the accused did not return the purchase money; that on the day of incident while the accused was in Rumani Hotel, he visited the said hotel along with his friend, Abubaker Siddiqui (PW3) and demanded the accused for return of money, and at that time the accused and his brother attacked him, and in the said attack the accused assaulted him with knife on his chest and caused injury, and the brother of the accused lifted him and threw him on the ground and caused fracture injury to his right elbow; that after the incident was witnessed by Md. Abdul Matin (PW2) and Mohd Haji Shareef (PW4); that his friends took him to Police Station where he lodged complaint as in Ex.P1, and the police sent him to Osmania General Hospital, Hyderabad , and later he went to Owaisi Hospital for better treatment.

In the course of cross examination, PW1 has denied to have stated before the police as in Ex D1.

Ex D1 has not been confronted the Investigating Officer and as such Ex D1 is not proved .

In the course of cross examination, he further admits that Md. Abdul Mathin (PW2) is his brother and Haji Shareef (PW4) is his friend. He admits that he has not stated the names of those two persons

before the police. He further admits that he belongs to MIM Political party and his wife is Corporator

of Kanchanbag within the limits of which the Owaisi Hospital is situated.

[9]PW2: Md. Abdul Mateen is an eye witness. On 24-3-2013 at about 100-00 p.m., while he was present in Rumani Hotel, the accused came there, and that there was a quarrel between the accused and

PW1 in connection with money transaction, and in such quarrel the accused fisted PW1 on his eye, and 4 caused an injury with knife on the chest of PW1, and that they shifted the PW1 to Osmania General

Hospital, Hyderabad.

In the course of cross examination, he admits that PW1 is his elder brother. He further admits that the incident took place in between Rumani Hotel and Majid. He further admits that after the incident he took the PW1 to Owaisi Hospital. He further added that he intervened at the time of incident, but he did not receive any injury [10]PW3: Abubaker Siddiqui is an eye witness to the occurrence. He deposed that on 24-3-2013 at about 10-00 p.m., he went to Rumani Hotel along with his friends, and while he was present there a quarrel took place between the accused and PW1, and in such quarrel the accused assaulted PW1 with hand on his eye, and the brother of the accused pushed the PW1 to the ground. He further added that after the incident they shifted PW1 to Osmania General Hospital, Hyderabad, and he has seen injury on the chest of PW1.

In the course of cross-examination, he has categorically stated that the accused assaulted the PW1 outside the Rumani Hotel. He further adds that the incident took place in front of Dairy Milk by the side of Majid, which is opposite to the Rumani Hotel.

[11]PW4: Md. Haji Shareef is an eye witness to the occurrence. He deposed that on 24-3-2013 while he was present in Rumani Hotel the accused came there and made a call to PW1 to come to

Rumani Hotel, and PW1 came there; that there was a quarrel between the accused and PW1 in connection with money transaction; that in such quarrel the accused assaulted PW1 and caused injury on his chest, and PW1 also assaulted the accused in front of Rumani Hotel, and that incident continued for about 15 minutes, and that they took the PW1 to Owaisi Hospital, and that at the time of incident

PW2 and 3 were present in the crime scene.

In the course of cross examination he admits that PW1 is his friend. He further admits that six criminal cases against him were ended in acquittal, and still four criminal cases are pending, and that he was a rowdy sheeter of Kanchangagh, and that the police sent him for detention for one year under the

Preventive Detention Act in the year 2016.

5 [12 ]PW5: Venkat Reddy, S.I. of Police is an Investigating Officer in this case. He deposed that his

Head Constable, Jameel has registered this case as Cr.No. 80/2013 for the offence U/Sec. 324 of IPC and issued an FIR as in Ex.P2; that in the course of his investigation, he examined PW1 to 4, and recorded their statements, and later he visited the crime scene and observed the same; that he collected wounds certificate as in Ex.P3 from Owaisi Hospital, arrested the accused on 24-3-2013 and filed charge sheet for the offence U/Sec. 326 of IPC since the injury was grievous.

In the course of cross-examination, he confirmed that the incident was occurred in front of Majid, but not in Rumani Hotel.

[13]DISCUSSION OF POINT: The learned counsel for the accused would contend that the very going of PW1 to the PS of Chandrayanagutta and lodging of complaint is doubtful. PW1 stated in his examination-in-chief that after the incident he went to PS of Chandrayanagutta and police sent him to the Osmania General Hospital from there he went to Owaisi Hospital. The Ex.P1 reads that it was recorded by PC 6111: Md. Ghouse Ahmed on 25-3-2013 at 0-50 hours at Owaisi Hospital. But conversely, PW1 says that after the incident he went to Chandrayanagutta PS, and lodged complaint and police sent him to Osmania General Hospital for treatment. There is no medical record to show that he visited the Osmania General Hospital after the incident. There is a fatal inconsistency in the case of the prosecution as where Ex.P1 complaint was prepared and whereat he took treatment. I have perused the evidence of PW 1 to 4, and it is discloses that PW1 stated that he had gone to Osmania

General Hospital, Hyderabad and then he went to Owaisi Hospital. PW2 says that he shifted the PW1 to Osmania General Hospital, Hyderabad. PW3 stated that he had shifted the PW1 to Owaisi Hospital, and PW4 says that it was Owaisi Hospital. This inconsistency in the record is not explained. This assumes a significance for the reason that the wife of PW1 is holding the position of Corporator and the

PW1 belongs to the ruling MIM Political party and as such they are in a position to wield power on the police. The Court must be cautious in evaluating the evidence.

[14]The learned counsel for the accused would contend that there is no consistency in the evidence of prosecution witnesses with regards to the scene of offence. I have perused the evidence of Pws 1 to 6

PW4. PW1 says that it was in Rumani Hotel, PW2 says that the incident took place in between the

Rumani Hotel and Majid. PW3 says that it was outside the hotel and PW4 says that it was Rumani

Hotel. The Investigating Officer says the crime scene is situated in front of Majid but not in Rumani

Hotel. There is a variation in the crime scene.

[14]As to the occurrence, PW1 says that the accused assaulted him on his face and chest, and the brother of the accused, Arif has lifted him and thrown him to the ground. But the participation of the brother of the accused, Arif in the incident was not found by the Investigating Officer. This is an improved version, which needs to be kept at bay. The PW1 admitted in his cross examination that he had not mentioned in Ex.P1 the names of PW2 and 3 as eye witnesses to the occurrence. Admittedly

PW2 is an elder brother and PW3 is friend of PW1. The evidence of PW2 and 3 needs to be evaluated carefully since they were planted as witnesses with an after thought.

[15]The injuries on the person of PW1 are also not proved for the reason that the LW5/Dr. Nizam, who gave treatment to PW1 could not be examined by the prosecution since he left the Owaisi

Hospital. The mere marking of medical certificate as Ex.P3 through PW5/ Investigating Officer does not mean that the contents were proved. The perusal of Ex.P3/Medical Certificate reads that PW1 was admitted into Hospital on 24-3-2013 at 9-15 p.m., through Home Guard 3373, and one Dr. Nizam gave treatment to PW1. When summons was addressed to the said person Owaisi Hospital reported that

LW5/Dr. Nizam has left Owaisi Hospital. The examination of the LW5/Dr.Nizam is essential since the fracture injury needs to be proved by the prosecution through such Ex.P3/medical certificate. The non- examination of LW 5/Dr. Nizam is fatal to the case of the prosecution.

[16]The material on record is disclosing that after preparation of Ex.P3/medical certificate in Owaisi

Hospital on 24-3-2013 at 09-15 p.m., the statement of PW1 got recorded on 25-3-2013 at 00-50 hours and this case was developed. The evidence of PW1 after the incident he went to Police Station of

Chandrayanagutta and lodged Ex.P1 complaint and the police sent him to Osmaniya General Hospital,

Hyderabad is utter falsehood. He never visited the Osmania General Hospital, Hyderabad as per record. He took medical certificate as in Ex.P3 first and then he gave intimation to the police of 7

Chandrayanagutta who deputed one constable, and got recorded his statement of PW1 and registered this case at 1-30 am on 25-3-2013. The evidence of PW1 can not be taken as truthful for the reason that he gave evidence contrary to the record. His conduct in giving evidence implicating the brother of accused by name Asif and changing versions from time to time made me to discard his evidence. The evidence of PW2 to 4 is contradicting the evidence of PW1 on material aspects. PW2 is the natural brother of PW1 and PW3 and PW4 are friends of PW1, and as such their evidence can not be relied upon since the evidence of PW1 and material on record is reflecting so much abnormalities giving serious doubt as to occurrence. Therefore I hold the accused shall be given benefit of doubt.

[17]As a result, the accused is found not guilty for the offence U/Sec 326 of IPC for which he is acquitted U/Sec 248(1) of Cr.P.C. The bail bonds of the accused shall remain in force for a period of six months.

Typed by me in my laptop by myself corrected and pronounced by me in the open

court on this 16th day of February, 2018.

CHIEF METROPOLITAN MAGISTRATE

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTIONFOR DEFENCE

PW1: Mohd Abdul Rahaman/complainant/injured NIL

PW2: Mohd Abdul Mateen/Eye witness

PW3: Abubaker Siddiqui/Eye witness

PW4: Mohd Haji Shareef/Eye witness

PW5: D. Venkat Reddy/Investigating Officer

EXHIBITS MARKED

FOR PROSECUTIONFOR DEFENCE

Ex.P1: is complaint Ex.D1: is statement of PW1

Ex.P2: is FIR 8

Ex.P3: is medical certificate

MATERIAL OBJECTS MARKED

FOR PROSECUTIONFOR DEFENCE

NILNIL

CHIEF METROPOLITAN MAGISTRATE

HYDERABAD.

CALENDER OF CASES TRIED BY CHIEF METROPOLITAN MAGISTRATE : HYD. FORM NO: 71/72 OF CRL. RULES OF PRACTICE

CALENDER AND JUDGEMENT

C.C.NO. 611 of 2013

Date of offence: 24-03-2013 Date of report/complaint : 24-03-2013 Taking cognizance : 16-05-2013 Furnishing copies to the accused : 16-05-2013 Plea of the accused : 02-08-2017

Examination U/Sec.313 Cr.P.C.: 09-01-2018

Date of apprehension of accused : 24-03-2013

Date of Release on bail : 25-03-2013

Date of Commencement of trial : 23-08-2017

Date of Close of Trial : 02-01-2018

Date of Judgment: 16-02-2018

Name of the Complainant : SI of Police, Chandrayangutta PS ,

Hyderabad.

Name of the accused : Mohd Nizam

Explanation for delay: No delay / Due to non production of witnesses by the prosecution. Offence under Section : 326 of IPC Finding : Found not guilty Result : Acquitted under Section 248(1) Cr.P.C

CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

To: The Hon'ble I Addl., Metropolitan Sessions Judge, Hyderabad.

Dis.No. /CMM/2018 Date :