Sri B.Gautam Prasad

IN THE COURET OF THE PRINCIPAL DISTRICT JUDGE,

SRIKAKULAM.

Present: Sri V. Appa Rao,

Principal District Judge.

Monday, this the 3rd day of August, 2015

Appeal Suit No.01/2010

Between:

1. Tokka Mohana Rao, S/o late Chinna Gummalu, aged about 59 years, retired police head constable, presently residing at Hudco colony, Srikakulam town and District (died).

2. Tokka Prakasa Rao, S/o late Chinna Gummalu, aged about 56 years, cultivation and business, residing at Pedda Madiga Street, At/Po/PS, Parlakhemundi, Gajapathi District, Orissa.

3. Tokka Krishna Rao, S/o Chinna Gummalu, aged about 51 years, Driver, PWD, residing at Pedda Madiga Street, rest do.,

4. Tokka Apparao, S/o late Chinna Gummalu, aged about 49 years, P.D.S.Dealer, Residing at Pedda Madiga Street, rest do.,

5. Tokka Parvathi, W/o late Mohana Rao, aged about 50 years, H.No.147, Hudco Colony, Hospital Junction, Srikakulam town and District.

6. Tokka Madhavi Latha, D/o late Mohana Rao, aged about 29 years, rest do.,

7. Tokka Ravikumar, S/o late Mohana Rao, aged about 35 years, rest do.,

8. Tokka Umamaheswara Rao, S/o late Mohana Rao, aged about 31 years, rest do., (The appellants 5 to 8 are L.Rs., of the deceased appellant No.1 added as per orders in I.A.No.1057/2010, dt.21.09.2010)

.. Appellants/Plaintiffs.

And:

1. Mohammad Kasim, S/o late Usman, aged about 51 years, business, residing at Palasa street, At/PO/PS Parlakhemundi, Gajapathi District, Orissa State.

2. Inaitullah Shariff, S/o Hazirutullah Shariff, aged about 71 years, business, residing at Market Street, rest do., (died).

3. Abdul Babji, S/o late Ajijullak, aged about 56 years, Cloth merchant, Arogya Street, rest do.,

4. Kalyana Bhaskara Rao, S/o Japayya, aged about 51 years, Teacher (private tuitions) Brahmin Street, Pathapatnam village and Mandal, Srikakulam District (died).

5. Kalyana Annamma, W/o late Bhaskara Rao, Convent Teacher, aged about 46 years, Madiga Seri street, Parlakhemundi.

6. Kalyana Kiran Kumar, S/o late Bhaskara Rao, aged about 30 years, Employee, rest do.,

7. Savalapuram Jyothi, W/o Joseph, Household duties, aged about 28 years, rest do.,

8. Regeti Kalpana, W/o Ramarao, household duties, aged about 26 years, rest do.,

...Respondents 1 to 8/Defendants 1 to 8.

9. Nurjahan Begum, W/o late Inaitulla Sharif, household duties, aged about 60 years, Market Street, Parlakhimundi town and Taluk, Gajapathi District, Orissa.

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10.Namatulla Sharif, S/o late Inaitulla Sharif, aged about 40 years, rest do.,

11.Kudutulla Sharif, S/o late Inaitulla Sharif, aged about 42 years, rest do.,

12.Saida Begum, W/o not known, Household duties, aged about 40 years, rest do.,

13.Abuma Begum, W/o not known, Household duties, aged about 38 years, rest do., (Defendant No.4 died during the pendency of the suit and defendants 5 to 8 are added as Legal Representatives of Defendant No.4.) (Respondent No.2 died during the pendency of the appeal and respondents Nos.9 to 13 are added as Legal representatives of Respondent No.2 as per orders in I.A.2302/2011, dt.24.08.2012.) …Respondents 9 to 13.

Appeal filed against the Decree and Judgment made in

O.S.20/2003, dated 16.11.2009 on the file of the Junior Civil Judge,

Pathapatnam.

Between:

1. Tokka Mohana Rao.

2. Tokka Prakasa Rao.

3. Tokka Krishna Rao.

4. Tokka Appa Rao.

.. Plaintiffs.

And:

1. Mohammad Kasim

2. Inaitullah Shariff (died)

3. Abdul Babji.

4. Kalyana Bhaskara Rao (died)

5. Kalyana Annamma.

6. Kalyana Kiran Kumar

7. Savalapuram Jyothi.

8. Regeti Kalpana.

..Defendants.

This appeal coming on 02.06.2015 for final hearing before me in the presence of Sri L.Ram Gopal Rao and Sri B.Rama Mohana Rao, Advocates for Appellants/Plaintiffs and of Sri Sriram Seetharam, Advocate for Respondents 1, 3 and 5 to 8 and the Respondent No.2 died and abated and Respondent No.4 also died in the suit and the Respondents 9 to 13 called absent and having heard both sides and having stood over till this day for consideration, this court made the following:

J U D G M E N T

This appeal arises against the decree and judgment dated 16.11.2009 passed in O.S.No.20/2003 where in and whereby the said suit was dismissed by the learned Judicial Civil Judge, Pathapatnam.

The appellants 1 to 4, here in, are plaintiffs 1 to 4 in the said suit.

During pendency of this appeal, the 1st plaintiff died and his legal 3 representatives were impleaded as appellants 5 to 8 as per orders in

I.A.No.1057/2010, dt.21.09.2010. Originally, the said suit was filed against the defendants 1 to 4 and during pendency of the said suit, consequent to the death of the 4th defendant, his legal representatives as defendants 5 to 8 were added as per orders in I.A.257/2005 dated 20.04.2006. During pendency of the appeal, the 2nd respondent/2nd defendant died and his legal representatives as respondents 9 to 13 were added as per orders in I.A.2302/2011, dt.24.08.2012.

2. It is suffice to mention and refer the parties as arrayed in the said suit for disposal of this appeal.

3.The plaintiffs 1 to 4 filed the suit for declaration of their right and title over the plaint schedule land and to grant permanent injunction against the defendants restraining them from interfering with their peaceful possession and enjoyment of the plaint schedule land and to costs of the suit with the following averments;

All the plaintiffs 1 to 4 are brothers and their father is late

Chinna Gummalu @ Gummalu of Parlakhemundi. The said Chinna

Gummalu purchased the plaint schedule land from one Tamada

Adinarayana in the year 1960 under an unregistered sale deed for a sum of Rs.95-00 and since then, the said land had been in possession and enjoyment of the said Chinna Gummalu, the father of the plaintiffs who was doing hides and skin business in the said land. There is a shed situate on the plaint schedule land near the railway station of

Pathapatnam. The father of the plaintiffs’ was also paying profession tax to the panchayat and he was having a licence issued by the panchayat. The certificate of registration was also issued to him under

A.P.General Sales Tax Act in the year 1968. Thus, the father of the plaintiffs had been in possession and enjoyment of the plaint schedule land in his own right till his death in the year 1972. After the death of their father, the plaintiffs 1 to 4 having succeed all his properties including the plaint schedule land continued to be in possession and 4 enjoyment of the said properties in their own right. The plaintiffs’ got the suit land divided among themselves and they have been issued pattadar passbooks and title deeds by the revenue authorities. Thus, the plaintiffs 1 to 4 have been in continuous possession and enjoyment over the plaint schedule land without interruption from anybody much less the defendants and thereby, they perfected their title over the plaint schedule land. The defendants who have no any manner of right, title, possession and enjoyment over the plaint schedule land, have been proclaiming that they would trespass into the plaint schedule land, without denying the title of the plaintiffs. Hence, this suit.

4.The 4th defendant filed written statement which was adopted by defendants 1 and 3 denying the material averments made in the plaint and further contended that the total extent of S.No.257/3 is Ac.2.88 cents situate at Pathapatnam an the said land was originally in the name of one Venugopala Narayana Dev of Pathapatnam village who was pattadar of the said land. One Tamada Adinarayana of

Pathapatnam village purchased Ac.0.55 cents of land from the said

Venugopala Narayana Dev through registered sale deed and in turn the said Tamada Adinarayana sold away Ac.0.55 cents of land to one person of Palasa who in turn sold away the said land to one Kottapalli

Laxmana Murthy Achari under registered sale deed. Government acquired an extent of Ac.0.50 cents in S.No.257/3 and F.C.Godown was constructed in the said acquired land. The father of the plaintiffs purchased an extent of Ac.0.40 cents in the said S.No.257/3 from

Venugopala Narayana Dev of Pathapatnam in the year 1966 by way of registered sale deed and the remaining extent of Ac.1.43 cents in the said survey number was purchased by late Mahammad Usman, Sahid

Abdul Aziz, Kalyana Papayya and Enaitulla Shariff from Venugopala

Narayana Dev in the year 1968 by way of registered sale deed and since then, these four persons were in joint possession of the said land 5 of Ac.1.43 cents. On 12.05.1975 the plaintiffs and their mother executed a registered sale deed for an extent of Ac.0.40 cents in the said S.No.257/3 in favour of Mohammad Usman, Enaitulla Shariff, Sahid

Abdulla Aziz and Kalyana Papayya for consideration and delivered possession of the said land to them. The defendants have been enjoying Ac.1.83 cents of land in the said S.No.257/3 and FC godown was constructed in an extent of Ac.0.50 cents acquired by the government and the remaining extent of Ac.0.55 cents was in possession of Kothapalli Lakshmana Murthy Achari. Thus, the plaintiffs have no land in the said S.No.257/3 in Pathapatnam.

It is further stated that in the year 1985, when the

A.P.State Electricity Board tried to construct a Sub Station in the land of the defendants in S.No.257/3 without their knowledge, Mohammad

Usman i.e., the father of defendants 1 and 2 filed a suit for permanent injunction in O.S.No.126/85 on the file of Court of District Munsiff,

Pathapatnam against the Divisional Engineer, APSEB, Srikakulam and two others and the said suit was decreed on 04.10.1990 in favour of the said Mohammad Usman and the 2nd defendant here in. The plaintiffs by misrepresenting the revenue authorities, obtained pattadar pass books and title deeds for the entire land covered by

S.No.257/3. The defendants, on coming to know about the issuance of pattadar pass books and title deeds in favour of the plaintiffs in respect of the plaint schedule land, issued notice to Mandal Revenue Officer,

Pathapatnam who after enquiry, submitted his report in

Rc.No.97/2002/B dated 30.12.2002 to Collector, Srikakulam for

cancellation of pattadar pass books and title deeds issued in favour of the plaintiffs, which is pending with Collector, Srikakulam. The plaintiffs also received notices from the Collector, Srikakulam, suppressing these material facts, the plaintiffs approached this court without clean hands. The defendants therefore prayed to dismiss the suit with exemplary costs.

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5.Basing on the above pleadings, the following issues and

additional issues were settled for trial in the trial court:

(1) Whether the plaintiffs are in possession and enjoyment of plaint schedule property by the date of filing of the suit?

(2) If so, whether it is lawful?

(3) Whether the plaintiffs are guilty of suppressing of material facts?

(4) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for?

(5) To what relief?

Additional Issues:

(1) Whether the plaintiffs are owners of the plaint schedule properties or not?

(2) Whether the plaintiff are entitled to seek the declaration of their right and title and ownership over the plaint schedule property or not?

(3) To what relief?

6.During trial, on behalf of the plaintiffs, besides the 3rd plaintiff examined as P.W.1, the plaintiffs also examined P.Ws.2 to 6 and got marked Exs.A.1 to A.10 in support of their case. On behalf of the defendants, the 3rd defendant was examined as D.W.1 and they also examined D.Ws.2 to 5 and got marked Exs.B.1 to B.10 on their behalf.

7.Upon considering the oral and documentary evidence adduced on either side and their respective contentions, the learned

Junior Civil Judge, Pathapatnam dismissed the suit holding that the plaintiffs failed to prove their right and title over the plaint schedule land vide his judgment dated 16.11.2009 which is impugned in this appeal by the unsuccessful plaintiffs.

I.A.No.1091/2013 in A.S.No.1/2010

8.During pendency of this appeal, the plaintiffs/appellant filed the petition under Order 41 Rule 27 of C.P.C., to receive No.3

Adangal Pahani for Fasali 1422 i.e., for the year 2012-2013 as

additional evidence.

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9.Counter is filed by the respondents mainly contending that the said No.3 Adangal for Fasali 1422 i.e., 2012-2013 is issued by the revenue authorities during pendency of this appeal and as such, the document cannot be received as additional evidence and the said document is created for the purpose of this case and prayed to dismiss this petition with costs.

10.Arguments of the learned counsel appearing for the plaintiffs/appellants and respondents have been heard.

11.Now, the points for consideration in the appeal are; “(1) Whether the plaintiffs/appellants are entitled for declaration of their right or title over the plaint schedule property as prayed for?

(2) Whether the plaintiffs/appellants are entitled for permanent injunction as prayed for?

(3) Whether the judgment and decree dated 16.11.2009 passed by the learned Junior Civil Judge, Pathapatnam in

O.S.No.20/2003 are liable to be set aside or confirmed and

if so, to what relief?”

12.Points 1 and 2:-

The plaint schedule property is dry land in an extent of

Ac.2.88 cents situate in S.No.257/3 at Pathapatnam village in

Srikakulam District. In the written statement, it is pleaded that the total extent of S.No.257/3 is Ac.2.88 cents and one Venugopal

Narayana Dev of Pathapatnam village was the original owner and pattadar of the said land which fact is not denied by the plaintiffs by filing rejoinder and in the evidence of P.W.1-Tokka Krishna Rao, the 3rd plaintiff. Therefore, it is an undisputed fact that one Venugopala

Narayana Dev of Pathapatnam village was original owner and pattadar of the land covered by S.No.257/3 situate at Pathapatnam village and its total extent is Ac.2.88 cents.

13.The case of the plaintiffs and the evidence of P.W.1 (3rd plaintiff) is that the father of the plaintiffs’ late Chinna Gummalu purchased the entire land of Rs.2.88 cents covered by S.No.257/3 from one Tamada Adinarayana of Pathapatnam village under an 8 unregistered sale deed dated 25.05.1960 which is marked as Ex.A.1.

Ex.A.1 unregistered is said to have been executed on a white paper.

The recitals of Ex.A.1 unregistered sale deed clearly disclose that this plaint schedule property was the ancestral property of Tamada

Adinarayana, the vendor of the said Ex.A.1 sale deed. When the plaint schedule property originally belonged to Venugopala Narayana Dev of

Pathapatnam village, the recitals of Ex.A.1 that this property was the ancestral property of vendor of Ex.A.1 i.e., Tamada Adinarayana cannot said to be correct. It is also not recited in Ex.A.1 unregistered sale deed that the father of Tamada Adinarayana acquired the said property from venugopala Narayana Dev of Pathapatnam village.

Therefore, the very title of the said Tamada Adinarayana who executed

Ex.A.1 unregistered sale deed in favour of the father of the plaintiffs regarding his rights over this property and how he acquired this property is totally silent in Ex.A.1 sale deed. P.W.1 also deposed how the said Tamada Adinarayana acquired this plaint schedule property which is the schedule property covered by Ex.A.1. Admittedly Ex.A.1 is an unregistered sale deed written on a white paper. Therefore, the execution of Ex.A.1 unregistered sale deed dated 25.05.1960 though it is more than 30 years old document, since it is unregistered one under section 90 of Indian Evidence Act, its execution cannot be said to be proved. To prove the execution of Ex.A.1 sale deed, P.W.2-

Shyamaghana Patnaik, document writer, who scribed Ex.A.1 unregistered sale deed is examined and he deposed that he scribed sale deed in respect of land in an extent of Ac.2.88 cents by Tamada

Adinarayana in favour of Tokka Chinna Gummalu, the father of the plaintiff for a sum of Rs.95-00 in the year 1960 and the possession of the said land was delivered in the presence of the witnesses. In his cross-examination, he admits that the land in Pathapatnam is not alienated for consideration of one rupee or below one rupee per cent for the last 40 years and this property is situate opposite to railway 9 station of Pathapatnam village. Evidently the consideration under

Ex.A.1 unregistered sale deed is Rs.95-00 for total extent of Ac.2.88 cents. Therefore, the cost of this land per cent under Ex.A.1 is only

Rs.0.32.98 paise (nearly Rs.0.33 ps.) paise which can be said to be very negligible amount. The contention of the defendants is that, this

Ex.A.1 unregistered sale deed is only created and concocted one.

Therefore, considering this fact in respect of the consideration amount, for which, this land under Ex.A.1 was sold is also one of the suspicious circumstances to doubt execution of Ex.A.1 unregistered sale deed for such a throw away price. The witnesses ie., the attestors of Ex.A.1 unregistered sale deed are also not examined in this case by the plaintiffs. No doubt, P.Ws.3 to 6 i.e., K.Latchayya, D.Nageswara Rao,

Y.Radhamma and Sivakala Doulat Rao deposed about the plaintiffs father’s skin business in the suit land and also deposed that the suit land has been in possession and enjoyment of the plaintiffs after the death of their father. P.W.3-K.Latchayya who according to him, did skin business along with the father of the plaintiffs did not depose about the possession of the plaintiffs over this plaint schedule land.

P.W.4-D.Nageswara Rao also admits in his cross-examination that he has no personal knowledge as to the possession and enjoyment of the plaint schedule property and about the persons who are in actual possession and enjoyment over the plaint schedule property and the plaintiffs are not doing any works in the plaint schedule property. In his cross-examination, he only stated that the plaintiffs used to go to plaint schedule property which cannot be sufficient to prove the possession of the plaintiffs over the plaint schedule property. P.W.5-

Y.Radhmma admits in her cross-examination that after the death of the father of the plaintiffs, she has no acquaintance with the suit schedule property and she has no knowledge about the possession and enjoyment of the plaint schedule property and she does not know the persons who are having possession and enjoyment over the plaint 10 schedule property. P.W.6-S.Doulat Rao also admits in his cross- examination that the plaintiffs are not doing any cultivation and they are not doing any business in the plaint schedule property. According to him, there is a dilapidated shed in the plaint schedule property, which is not now used. According to P.W.4, this dilapidated shed situate in plaint schedule property in an extent of one cent. P.W.3 admits in his cross-examination that the father of the plaintiffs died about 40 years back. He was cross-examined on 09.02.2009.

Therefore, may be in the year 1969, the father of the plaintiffs died according to him. So, the evidence of P.Ws.3 to 6 as admitted in their cross-examination clearly show that the plaintiffs are not in a possession and enjoyment of the plaint schedule property and they are not doing any business in the said property or they are not cultivating the said land. Therefore, the case of the plaintiffs and the evidence of

P.W.1 about their possession and enjoyment of the plaint schedule property is not corroborated by any of the witnesses examined on their behalf. The defendants also denied the possession and enjoyment of the plaintiffs over the plaint schedule property and it is the case of the defendants that the plaintiffs absolutely have no manner of right or title over any part of the plaint schedule property.

14.As I have observed above, it is an undisputed fact that originally the plaint schedule property is Ac.2.88 cents in S.No.257/3 belonged to one Venugopala Narayana Dev of Pathapatnm village and he was the original pattadar of the said land. According to the defendants and the evidence of D.W.1 (3rd defendant), one Tamada

Adinarayana of Pathapatnam village purchased an extent of Ac.0.55 cents from the said Venugopala Narayana Dev under registered sale deed dated 30.08.1953 which is marked as Ex.B.4. The caste of the said Tamada Adinarayana is mentioned in Ex.B.4 as ‘Viswa Brahmin’ caste where as in Ex.A.1 unregistered sale deed, the caste of Tamada

Adinarayana, the vendor of the said document is mentioned as 11 “Yadava” caste. So, Tamada Adinarayana who purchased Ac.0.55 cents of land under Ex.B.4 registered sale deed dated 30.08.1953 and

Tamada Adinarayana who executed Ex.A.1 unregistered sale deed cannot be said to be one and the same person as they both belong to different caste. It is also the case of the defendants and the evidence of D.W.1 that the said Tamada Adinarayana after running rice mill for some time in the said land of Ac.0.55 cents purchased by him under

Ex.B.4 sale deed, sold away the said land after removing the rice mill machinery to one Talasu Venkata Narayana of Palasa and in turn

Talasu Venkata Narayana sold away the said land of Ac.0.55 cents to one Kothapalli Laxmana Achari under registered sale deed dated 20.12.1973. D.W.2-Kothapalli Laxmana Murthy Achari deposed that

Tamada Adinarayana who is his relative purchased Ac.0.40 cents of land in S.No.257/3 from Radhasyam Gajapathi Narayana Dev and

Venugopala Gajapathi Narayana Dev under registered sale deed dated 30.08.1953 (Ex.B.4) and the said Tamada Adinarayana after running a rice mill in the said land for more than one decade, sold away the said land to one Talasu Sarveswara Rao under registered sale deed dated 04.04.1967 and later, himself, his brother and one Baipotu Rama Rao jointly purchased the said Ac.0.40 cents of land under registered sale deed dated 20.12.1973 for valuable consideration from Talasu

Sarveswara Rao and took possession of the said land. Of-course, the said registered sale deed dated 20.12.1973 where under D.W.2 and two others purchased Ac.0.40 cents of land from Talasu Sarveswara

Rao is not filed before this court. But, as per Ex.B.4 sale deed dt.30.08.1953, one Tamada Adinarayana of Viswa Brahmin caste purchased Ac.0.40 cents of dry land in S.No.257/3 from Radhasyam

Gajapathi Narayana Dev and Venugopala Gajapathi Narayana Dev.

D.W.3-Krishna Chandra Dev, the grand son of Venugopala Gajapathi

Narayana Dev identified the signatures of his grand father i.e.,

Venugopala Gajapathi Narayana Dev and his brother. So, after 12 excluding this Ac.0.40 cents of land from total extent of Ac.2.88 cents in S.No.257/3, the remaining land available is Ac.2.48 cents.

15.It is the further case of the defendants that out of this remaining land, an extent of Ac.0.50 cents acquired by the

Government for construction of Food Corporation of India godown and accordingly, the Food Corporation godown was constructed in the said

Ac.0.50 cents. D.W.1-Syed Abdul Hafeezulla also deposed the said fact. Ex.B.10 attested copies of fair adangal relating to S.No.257/3 shows the existence of Government Civil Supplied godown in an extent of Ac.0.20 cents in S.No.257/3. D.W.5-S.Appala Swamy, Mandal

Surveyor of Pathapatnam also deposed that as per fair adangal

Ex.B.10, the Government Civil Supplies godown is situated in

S.No.257/3 in an extent of Ac.0.49 cents.

16.It is also the further case of the defendants and also the evidence of D.W.1 that the father of the plaintiffs purchased Ac.0.40 cents of dry land in this S.No.257/3 from Venugopala Narayana Dev under registered sale deed dated 26.12.1966 which is marked as

Ex.B.2 and that after the death of the father of the plaintiffs, the plaintiffs and their mother sold away the said Ac0.40 cents of land to

Mohommad Usman, the father of 1st defendant, Inaitulla Sharif (2nd defendant), Abdul Aziz (father of 3rd defendant) and Kalyana Papayya, the father of the 4th defendant under registered sale deed dated 12.05.1975 which is marked as Ex.B.1. It is not the case of the plaintiffs that their father purchased Ac.0.40 cents of land in

S.No.257/3 under Ex.B.2 registered sale deed. The plaintiffs are not claiming any right or title over the land covered under Ex.B.2 registered sale deed dated 26.12.1966 where under their father purchased Ac.0.40 cents of land in S.No.257/3.

17.The plaintiffs mainly relied upon Exs.A.2 to A.5 pattadar passbooks and title deeds issued in their favour in respect of the entire land of Ac.2.88 cents covered by S.No.257/3. But, it is the case of the 13 defendants that on coming to know about the issuance of these pattadar passbooks and title deeds in favour of the plaintiffs, they sent a representation to the Mandal Revenue Officer, Pathapatnam for cancellation of those pattadar passbooks and title deeds and the

Mandal Revenue Officer, Pathapatnam after enquiry, sent a report to the District Collector, Srikakulam for cancellation of the said pattadar passbooks and title deeds issued in favour of the plaintiffs. P.W.1, the 3rd plaintiff admitted in his cross-examination that the defendants issued legal notice to him and his brothers and also to revenue authorities in the year 1999 stating that they have managed the revenue authorities and obtained pattadar passbooks and title deeds and land revenue receipts fraudulently by creating the said pattadar passbooks and title deeds in their names. He also admits in his cross- examination that subsequent to the filing of this suit, the District

Collector, Srikakulam made enquiries regarding the genuineness of their pattadar passbooks and title deeds by Mandal Revenue Officer,

Pathapatnam and they received summons from the District Collector,

Srikakulam and then, immediately they filed in O.S.No.111/2004 against the District Collector, Joint Collector and the defendants here in to stop the enquiry. Therefore, the enquiry before the District Collector for cancellation of these pattadar passbooks and title deeds issued in favour of the plaintiffs is appeared to be pending before him in view of the pendency of this matter. D.W.4-Nymatulla Shariff, the son of the 2nd defendant also deposed about the purchase of Ac.0.40 cents of land covered by S.o.257/3 under Ex.B.1 registered sale deed dated 12.05.1975 from the plaintiffs and their mother by his father, the 2nd defendant and the fathers of other defendants which fact is not at all disputed by the plaintiffs.

18.Of-course regarding the purchase of Ac.1.43 cents by the 2nd defendant and the fathers of other defendants under registered sale deed dated 01.08.1968 in the same S.No.257/3 from Venugopala 14

Narayana Dev, though the said fact is deposed by 3rd defendant (D.W.1), the said registered sale deed dated 01.08.1968 is not filed

before this court. Therefore, the purchase of Ac.1.43 cents in

S.No.257/3 by the 2nd defendant and the fathers of the other defendants under registered sale deed dated 01.08.1968 cannot be said to be proved.

19.Taking into consideration the above facts, it is the contention of the learned counsel appearing for the plaintiffs/appellants that dismissing the entire suit in respect of the plaint schedule property without considering the plaintiffs’ right or title over some part of the plaint schedule property even after excluding the property sold away the plaintiffs father and the property acquired by the Government for construction of Food Corporation of India godown is totally erroneous and the plaintiffs’ right and title can be declared in respect of the remaining property of the plaint schedule.

He further contends that since Exs.A.2 to A.5, the pattadar passbooks an title deeds issued in favour of the plaintiffs in respect of the plaint schedule property are not yet cancelled, the plaintiffs right and title in respect of the remaining part of the plaint schedule can be declared.

20.But, I have held above, Ex.A.1 unregistered sale deed

dated 25.05.1960 cannot be said to be proved and further, under this

Ex.A.1 unregistered sale deed dated 25.05.1960, the plaintiffs father cannot acquire any right or title over this plaint schedule property.

The other contention of the plaintiffs that they have also perfected title over the plaint schedule property in view of their long possession over the said property for a period of more than 12 years cannot also said to be proved since absolutely there is no evidence on record adduced by plaintiffs that they have been in continuous possession and enjoyment over the plaint schedule property for a statutory period of more than 12 years adverse to the interest of the defendants. On the other hand, as I have observed above, the evidence of P.Ws.3 to 6 examined on 15 behalf of the plaintiffs, in their cross-examination clearly shows that the plaintiffs are not in possession and enjoyment over the plaint schedule property. Further, since Ex.A.1 is an unregistered sale deed, even assuming that under the said Ex.A.1 unregistered sale deed, the plaintiffs father purchased the plaint schedule property, no right or title can be acquired by the plaintiffs father under the said Ex.A.1 registered sale deed and since there is no evidence or material before court that after due enquiry and procedure followed by the concerned revenue authorities contemplated under Revenue Laws, these Exs.A.2 to A.5 pattadar passbooks and title deeds were issued. It is also not the case of the plaintiffs that Ex.A.1 unregistered sale deed was got validated by the concerned revenue authorities after conducting due enquiry and after following the procedure contemplated under law.

Therefore, under Exs.A.1 to A.5, either the plaintiffs’ father or the plaintiffs after the death of their father cannot acquire any right or title over the plaint schedule property irrespective of the fact that the defendants proved their right or title over part of the plaint schedule property. However, the defendants by examining D.W.1 and by marking Exs.B.1 and B.2 sale deeds dated 12.05.1`975 and 26.12.1966 proved the fact that Ac.0.40 cents of land purchased by plaintiffs father was purchased by the 2nd defendant and the fathers of the other defendants under Ex.B.1 registered sale deed dated 12.05.1975.

Further, the plaintiffs also failed to prove their possession and enjoyment over the plaint schedule property as on the date of filing of the suit. Therefore, I hold that the plaintiffs failed to prove their right and title over the plaint schedule property and they have also failed to prove their possession and enjoyment over the plaint schedule property as on the date of filing of the suit. Hence, I hold that the plaintiffs are not entitled for declaration of their right and title over the plaint schedule property and they are also not entitled for the relief of 16 permanent injunction in respect of the plaint schedule property as prayed for. These two points are accordingly answered.

21.I.A.1091/2013 in A.S.No.1/2010.

This petition is only filed by the plaintiffs/appellants under

Order 41 Rule 27 of C.P.C., to receive the No.3 Adangal issued in respect of the plaint schedule property for the year 2012-2013 i.e., for

Fasali 1422 which is long after the filing the filing of the suit. This document cannot therefore be taken into consideration to prove the possession and enjoyment over the plaint schedule property as on the date of filing of the suit. As such, this document sought to be received as additional evidence in this petition by the plaintiffs/appellants cannot be received in this matter at this stage, as it is not useful to prove the plaintiffs’ case of possession and enjoyment over the plaint schedule property as on the date of filing of the suit. The petition is therefore, liable to be dismissed, but in the circumstances, without costs.

In the result, the petition is dismissed, without costs.

22.POINT No.3:

For the foregoing reasons and findings given on points 1 and 2, the judgment and decree dated 16.11.2009 passed by the Junior

Civil Judge, Pathapatnam in O.S.No.20/2003 are liable to be confirmed.

The learned Junior Civil Judge, Pathapatnam has properly appreciated the evidence adduced on both sides and rightly held that the plaintiffs are not entitled for both the reliefs of declaration of title and permanent injunction as prayed for which cannot be interfered with by this court. The appeal, which is devoid of any merits, is liable to be dismissed, but in the circumstances without costs.

23.In the result, the appeal is dismissed, without costs confirming the judgment and decree dt.16.11.2009 in O.S.No.20/2003 on the file of Junior Civil Judge, Pathapatnam.

17

Dictated to the Stenographer-Gr.I, transcribed by him,

corrected and pronounced by me in open court, this the 3rd day of August, 2015.

Principal District Judge,

Srikakulam.

Copy to the Junior Civil Judge, Pathapatnam.

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES

UNDER NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES

ACT, 1985-CUM- I ADDL. DISTRICT AND SESSIONS JUDGE,

SRIKAKULAM.

Present: Sri B. GAUTAM PRASAD,

Special Judge for trial of Cases under Narcotic Drugs and

Psychotropic Substances Act-cum- I Additional District & Sessions Judge, Srikakulam.

FRIDAY, THIS THE 21st DAY OF DECEMBER, 2018

SESSIONS CASE No. 3/2017

(Crime No.60/2016 of Tekkali Police Station)

Between: - State of Andhra Pradesh represented by Inspector of Police, Tekkali Circle.

Complainant. And:

1.Amiya Pasupureddi, S/o Laxmikanth, Aged 22 years, SC- Harijana, Khambariguda village, Tembaguda Post, Padmapur PS Limits, Rayagada district, Odisha state.

2.Kunna Behara, S/o Brundavan Behara, Aged 23 years, SC- Harijana, Khambariguda village, Tembaguda Post, Padmapur PS Limits, Rayagada district, Odisha state.

… Accused Nos. 1 and 2.

Prosecution conducted by: Sri K. Tirumala Rao, Special Public Prosecutor, Srikakulam.

Accused are defended by: Sri T.Balakrishna, Advocate, Srikakulam.

Offence: U/Sec. 8 (C) R/w 20(b)(ii)(C) and 25 of of N.D.P.S.Act.

Plea of the accused: Pleaded not guilty.

Finding of Judge Found not guilty.

Sentence/order: In the result, I find A.1 and A.2 not guilty for the offence under Section 20(b)(ii)(C) R/w 8 of Narcotic Drugs & Psychotropic Substances Act, 1985 and I acquit A.1 and A.2 for the offences 2 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018 charged against them, under Section 235(1) Cr.PC.

Bail bonds of A.1 and A.2 shall stand cancelled after six months, as per Section 437(A) Cr.PC

MO.1, MO.4 (02 old Rs.500/- notes), MO.8 and MO.9 shall be destroyed after appeal time is over.

MO.2, MO.3, MO.5 and MO.6 shall be returned to A.1 and MO.7 shall be returned to A.2, after appeal time is over.

This Sessions Case came on 17.12.2018 for final hearing

before me in the presence of Sri K. Tirumala Rao, learned Special

Public Prosecutor and of Sri T.Balakrishna, learned Advocate for A.1 and A.2 and having heard both sides and stood over till this day for consideration, this Court delivered the following:

JUDGMENT

01. The Inspector of Police, Tekkali circle filed charge sheet against the accused persons (A.1 and A.2) for the offence under

Section 20 (b) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ‘the N.D.P.S. Act, 1985’), in Crime No. 60/2016 of

Tekkali Police Station, alleging as under:

02. On 21.04.2016 at about 04.30PM, the Sub Inspector of

Police, Tekkali (PW.3-LW.7) received information about the suspicious moving of 2 persons in Naupada railway station with two bags and then immediately he rushed to the said spot and on seeing the police jeep, both the accused persons tried to escape from the spot and the police could stop them and the said Sub Inspector interrogated them and during which they revealed their particulars and disclosed that they are carrying Ganja packets to Raipur from Gunupur to handover the same to one Sagar at Raipur and the said Sagar offered Rs.3000/- 3 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018 per head. Then immediately, the said Sub Inspector informed the matter to the Inspector (PW.6-LW.13). Then the said Inspector in turn informed the matter to Dy. Superintendent of Police, kasibugga and obtained oral instructions and then proceeded to the said spot and while proceeding he contacted the Tahsildar, Tekkali over phone for acting as Gazetted officer, but he was not available and then he sent two Village Revenue Officers to the spot. Meanwhile, the Sub

Inspector requested the Veterinary Assistant Surgeon (PW.5-LW.10) to act as Gazetted Officer, By 05.00PM, the Inspector reached the spot along with his staff and noticed the accused persons in the custody of said Sub Inspector. Meanwhile, Vaterinary Assistant

Surgeon (PW.5) also reached the spot. Notice under Section 50 of

NDPS Act was served on the accused to conduct search proceedings in the presence of PW.5. During search, the Inspector searched 2 bags (MO.9) containing Ganja and got measured with the help of

PW.3 - weigh man (bag of A.1 contains 8 KGs and bag of A.2 contains 7.5 KGs of Ganja) and also seized 2 samples (MO.8) from each bag for examination. Both the accused persons were talking in Hindi and Oriya. PW.3-Sub Inspector known Hindi and Oriya and he translated the information given by the accused persons in Telugu.

With his help, the seizure panchanama (Ex.P.2) was conducted at the spot and the Inspector also found and seized railway tickets available with A.1 to travel in Train No. 18518 from Visakhapatnam to Bilaspur (MO.1 is the Xerox copy of said train ticket), SBI ATM Card (MO.2),

SBI Green Remit card (MO.3) and Voter ID card of A.1 (MO.5). He also seized Micromax mobile Phone (MO.6) , two Rs.500/- rupee 4 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018 notes (Old notes) from A.1 (MO.4). He also seized Samsung Mobile from A.2 (MO.7). After completion of seizure proceedings, he took the accused persons to police station along with the case property and papers, where he instructed to the Sub Inspector (PW.3) to register the case. Then, he took up investigation, examined the witnesses and recorded their statements and produced the accused persons before the court for judicial remand. He also forwarded samples to the

Excise Laboratory, Visakhapatnam for analysis. Subsequently, he received Analyst Report (Ex.P.4) stating that the said contraband is 'Ganja'. Then he filed charge sheet.

04. This case was taken on file under Section 20(b) of N.D.P.S.

Act against the accused persons (A.1 and A.2). After the accused persons made their presence, copies of case documents are furnished to them.

05. Having heard the learned Special Public Prosecutor and learned counsel for the accused persons and on considering the material on record, Charge under Section 8(C) read with 20(b)(ii)(C) of

N.D.P.S. Act is framed against the accused persons (A.1 and A.2) and the said charges are read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

06. During trial, in order to prove its case on prosecution side, PWs.1 to 6 are examined and Exs.P.1 to P.4 documents are filed and MO.1 to MO.9 are marked. Ex.D.1 contradiction was marked in

Section 161 Cr.PC statement of PW.1.

5 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018

07. After closure of adducing prosecution evidence, accused persons 1 and 2 are examined as per Section 313 (1)(b) of Cr.P.C. by explaining the incriminating evidence appeared against them but they denied the same. Their plea is of total denial. However, they did not choose to adduce any evidence.

08. Heard both sides.

09. Now the point that arose for determination is whether the prosecution has proved its case against the accused persons (A.1 and A.2) for the offences charged against them, beyond all reasonable doubt?

10. POINT:

The allegation of prosecution against the accused persons (A.1 and A.2) in brief is that on 21.04.2016 at about 04.30PM, the accused persons were caught red handed at Naupada railway station while transporting Ganja in 2 bags (8KGs by A.1 and 7.5 KGs by A.2) from Gunupur to Raipur by train. According to the prosecution, both the accused persons belong to Khambariguda village, Rayaghada district of Odisha state and one Sagar of Raipur came to the village of accused persons and handed over the said Ganja to them with a request to take the same to Raipur by offering Rs.3,000/- per head for the said purpose. Both the accused persons came to Gunupur and from there they came to Naupada railway station by Gunupur-

Visakhapatnam train and waiting for a train to go to Vizianagaram with a view to catch train to go to Raipur. Then the Sub Inspector (PW.3) received information about the suspicious movements of the 6 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018 accused persons in the said railway station and he went there and caught the accused persons and found Ganja in their possession.

11. As already stated above, the prosecution in order to establish its case, examined six witnesses besides marking 4 documents and 9 material objects.

(a) Out of the said witnesses, PW.1 is the owner of diary form located near the said Naupada railway station and out of curiosity he went to the spot when the Sub Inspector (PW.3) and his staff came to the spot and conducting raid. He deposed to the effect is that:

" My said dairy farm is located at the end of Railway

Station, Naupada. On 21.04.2016 at about 05.30 p.m., while I was available at my dairy farm one Police jeep came there from Tekkali side and on seeing the same the persons who stood in the dock got perturbed and tried to escape. Then, Police could stop them on the railway platform end where my dairy farm is located nearby.

Then, I went there out of my curiosity and noticed that two bags one each are available with both the accused persons. On suspicion Police searched said bags and noticed one bundle in each bag and Police suspected that the said bundles contained ganja. Then, Sub-Inspector secured presence of Veterinary Doctor with whom I have acquaintance and also two VROs. Sub-Inspector also secured presence of one Weighman from Tekkali for weighing purpose and in their presence the said two bundles were opened and Weighman measured the quantity of each bundle. One bundle weight comes to 8

K.Gs and another comes to 7.5 K.Gs. Said Sub-Inspector seized samples from said bundles. He interrogated both the accused persons, but accused persons stated that they do not know Telugu. Then, Sub-Inspector of Tekkali 7 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018 was summoned to the said place and he translated information given by accused persons into Telugu. They stated that they are coming from Rayagada to go to

Rayapur and they got down at Naupada Railway Station from Gunupur Passenger train. They also stated that one

Sagar gave said two bundles to transport the same to

Rayapur and to handover to some person there and for that said Sagar offered Rs.3,000/- each to them. Police searched pockets of both the accused and seized two mobile phones i.e., one each from both the accused and also one ATM card, one SBI green remit card and also voter ID card of A.1 under the cover of panchanama".

(b) P.W.2 is the weigh man who came to the spot and weighed the contraband at the spot. He deposed to the effect is that:

" On 21.04.2016 at about 05.00 p.m. while I was in my vegetables shop attending duty located opposite MDO

Office one Constable came to me and took me along with my weighing machine to Naupada Railway Station where I noticed Police and some other persons. I also noticed persons stood in the dock at the said Railway Station at that time. Sub-Inspector of Police, Tekkali who was available there asked me to measure ganja available in two bags with my weighing machine. Then, I weighed said ganja available in two bags. Ganja available in one bag comes to 8.10 K.Gs and another comes to 7.660 K.Gs.

Police seized 25 grams each from both the bags for sample purpose with my help".

(c). PW.3 is the Sub Inspector who received information first about the suspicious movements of the accused persons at the said spot. He deposed to the effect is that:

8 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018 "I worked as S.I. of Police at Tekkali P.S. February, 2015 to January, 2018. On 21.04.2016 at about 04.00 p.m.

while myself, H.C.770 and P.Cs were at village visit of

Pedda Rokallapalli of Tekkali Mandalam I received information about moving of two persons in the Naupada

Railway Station under suspicious circumstances with two bags. Then, myself and my staff came to Naupada

Railway Station on our jeep and reached there by 04.30 p.m. On seeing our jeep both the accused persons who were available near railway quarters available at the end of first platform started running away with the bags. Then, we could stop them and I interrogated them. They stated that they came from Gunupur and are proceeding to

Visakhapatnam. During further interrogation they stated that they are transporting ganja in two bags available with them from Gunupur to Rayapur at the request of one

Sagar of Rayapur and said Sagar offered Rs.3,000/- per each for the said purpose. Then, immediately I informed my C.I. K.Bhavani Prasad (L.W.13). He came to said spot along with Veterinary Doctor B.Ramu (L.W.10),

P.Kameswararao (L.W.8) and Ch.Tirumularao (L.W.9).

Then, he took up investigation. He secured P.W.2 for weighing purpose and in the presence of said Gazetted

Officer and mediators he seized ganja available in two bags from the accused persons under the cover of panchanama. I translated information given by accused persons in Hindi to my C.I. At the instructions of my C.I.,

I registered panchanama conducted by my C.I as a case in Cr.No.60/2016 for the offence under Section 20(b) r/w 8 of NDPS Act and issued FIR to all concerned. Ex.P.1 is original FIR sent to Court. My C.I examined me and recorded my statement".

9 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018

(d) P.W.4 is the Village Revenue Officer of Narasingapalli of

Tekkali Mandal and he went to the spot as per the instructions of his

Mandal Revenue Officer. he deposed to the effect is that:

"On 21.04.2016 at about 04.30 p.m., as per instructions of my MRO myself and Ch.Tirumalarao (L.W.9) proceeded to Naupada Railway Station and reached there by 05.30 p.m. We noticed accused persons are being questioned by

Police about the contents of bags available with them.

Meanwhile, Veterinary Doctor whose name I do not remember present also came there to act as mediators for search and seizure of contraband. Both the accused persons stated that their bags contain ganja and they are transporting the same at the request of some body to

Rayapur from Gunupur. Police secured the presence of

Weighman and they lifted sample from the said quantity and then seized entire ganja measuring 8 K.Gs and 7 K.Gs and odd under the cover of panchanama attested by us.

Police also seized one railway ticket, two cell phones, two

Rs.500/- notes, and one Aadhar card from the possession of accused persons under the same panchanama. We attested paper slips affixed on sample ganja"

(e). PW.5 is the Gazetted Officer and he deposed to the effect is that:

"On 21.04.2016 at about 04.00 p.m., while I was in my

Veterinary Hospital, Konusula-Kotthuru, I received phone call from S.I. of Police, Tekkali. As per his request I proceeded to railway station, Naupada and reached there by 05.30 p.m. and noticed C.I and S.I of Tekkali nearby railway track of first platform. I also noticed VROs and village people there. I also noticed both the accused persons available there with two bags. In my presence 10 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018

Police opened the said bags and noticed one packet in each bag. We noticed that the said packets contains ganja. My identity was disclosed to the accused persons for seizure purpose and Police secured one Weighman and with his help the quantity of ganja was weighed. One packet contains 8 K.Gs ganja and another 7.5 and odd

K.Gs. Police seized one sample each from two packets for analysis purpose under the cover of panchanama.

Accused persons revealed during interrogation that they are transporting said ganja packets to Rayapur from

Rayagada village at the request of some Sagar. Police prepared panchanama and obtained our signatures.

Ex.P.2 is said seizure panchanama which bears my signature. Police also seized two cell phone from each one from accused and bank ATM card, election identity card, two Rs.500/- notes and xerox copy of ticket from the accused persons. After completion of seizure proceedings police took the accused to Police Station along with case property and papers."

(f). PW.6 is the Investigation Officer. He deposed to the effect is that:

"On 21.04.2016 at 04.30 p.m., while I was present in the

Tekkali Circle Office I received a phone call from S.I. of

Tekkali (P.W.3) and he informed that two persons were found while moving in suspicious manner. He also informed that he noticed them while proceeding to Pedda

Rokalapalli village along with his staff. Then, I immediately informed matter to DSP, Kasibugga and I obtained oral instructions from him and then I contacted

Tahsildar, Tekkali over phone for seeking his personal presence for seizure of ganja and he told that he was available at Hyderabad for some work and at my request 11 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018 he agreed to send two VROs to the Railway Station,

Naupada. Then, I contacted P.W.5 over phone and requested him to act as Gazetted Officer for seizure of ganja, if any. Then, I rushed to Naupada Railway Station and reached there by 05.10 p.m. By that time S.I. along with his staff and accused persons were present beside railway track of platform No.1. After few minutes P.W.5 and Ch.Tirumalarao (L.W.9) also came there. Meanwhile I secured presence of P.W.2 for weighing purpose. After reaching scene of offence I informed matter to P.W.4 and

P.W.5 and said Tirumalarao (L.W.9) and P.W.5 disclosed his identity to accused persons and accused persons agreed to conduct search and seizure in his presence in writing. Ex.P.3 is written consent obtained by P.W.5 from the accused persons for search and seizure. Then, in their presence ganja available in two bags of the accused persons was measured with the help of P.W.2. With his help two samples from each of the two packets were seized with the help of P.W.2 for examination purpose. During conversation I came to know that accused persons do not know Telugu. They were talking in Hindi as well as Oriya.

Then, P.W.3 who knows Hindi and Oriya translated information given by the accused persons into Telugu.

With his help statements of both the accused persons were reduced into writing in the seizure proceedings.

Both the accused persons stated that they are transporting said ganja from Gunupur to Rayapur by

Train. They revealed that they came from Gunupur on

Naupada Passenger and got down at Naupada to catch

Train to Visakhapatnam. I seized xerox copy of railway ticket available with A.1 to travel in Training No. 18518 from Visakhapatnam to Bilaspur. I also seized SBI ATM card, SBI green remit card and also voter identity card of

A.1 under the cover of said panchanama. I also seized 12 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018

Micromax small phone and two Rs.500/- notes (old) from

A.1. M.O.1 is said railway ticket xerox copy, M.O.2 is SBI

ATM card, M.O.3 is SBI green remit card, M.O.4 is two

Rs.500/- notes, M.O.5 is voter identity card and M.O.6 is

Micromax small mobile phone. M.O.7 is Samsung Mobile phone seized from A.2. M.O.8 are two sample packets and

M.O.9 are two travel bags seized from the accused persons. At my dictation one of my Constable scribed

Ex.P.2 panchanama and the same was attested by P.Ws.4, 5 and both the accused persons also signed on it. I took the accused persons to Police Station along with case property and papers after completion of seizure proceedings. I instructed P.W.3 to register said panchanama as a case. Then, I took up investigation in this case and the accused were produced before Court for judicial remand. Then, I examined P.Ws.1 and 2,

D.Venkatareddi, L.M.Rangareddy, R.Harinarayana and

V.Venkataramana (L.Ws.3 to 6) and recorded their statements. Later, I forwarded two sample packets to

Excise Laboratory, Visakhapatnam for analysis. I received

Analyst Report dt.11.05.2016. Ex.P.4 is Analyst Report.

After completion of investigation I filed charge sheet".

12. The version of defence is that the accused persons never involved in transporting any contraband and they are coolies by profession in their village Khambariguda of Rayaghada district and they were falsely implicated in this case. According to the learned defence counsel, the police officials did not follow the prescribed procedure for seizure of contraband under NDPS Act. He argued that

PW.6 is the Investigation Officer in this case, but by the time he went to the alleged spot, Sub Inspector (PW.3) already made alleged search and said to be noticed contraband in the possession of 13 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018 accused persons. The Sub Inspector (PW.3) has to reduce into writing information received by him over phone and he has to intimate his higher officials in writing about information. But without doing so, the Sub Inspector straight away went to the alleged spot and caught the accused persons and conducted search in which he said to be found Ganja contraband. So, there is violation of procedure prescribed under NDPS Act and getting Gazetted Officer (PW.5) to the alleged spot and again conducting search in his presence etc., is a futile exercise. Moreover, PW.6-Investigation

Officer is said to be the police official, seized contraband from the accused persons and he himself conducted further investigation without handing over the matter to any other officials to conduct further investigation and the said is contrary to well established law that the person who made search and seizure cannot investigation the matter further.

13. Admittedly, the alleged seizure of contraband in this case is not during any routine cheque and it was based on information received by the Sub Inspector (PW.3) over phone. The Sub Inspector first received information over phone and then he rushed to the spot and he caught the accused persons. He also searched and found contraband in possession of the accused persons. His evidence is that he did not reduce into writing the information received over phone nor intimated to his higher officials. So, without any hesitation it can be held that he violated the procedure prescribe under Section 42 of the NDPS Act. It is not known as to why he failed to reduce into writing about the alleged information received over phone and also 14 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018 about the reason for not intimating his higher officials under Section 42 (2) of the NDPS Act. His evidence shows that he simply informed the Inspector (PW.6) over phone that too after conducting alleged raid and noticing the Ganja in possession of the accused persons. He did not invite any Gazetted Officer nor informed the accused persons about the raid to be searched before any Magistrate or Gazetted

Officer for the said search for contraband. His evidence shows that he already interrogated the accused persons and they made confession about transporting the Ganja to Raipur from Gunupur and then only he informed the Inspector (PW.6) and then the said

Inspector (PW.6) came to the spot along with PW.5-Gazetted Officer.

According to the learned defence counsel this part of investigation is futile exercise because already Sub Inspector (PW.3) searched and alleged to be found ganja in the possession of accused persons.

14. The evidence of PW.6 Inspector shows that on 21.04.2016 at about 4.30PM while he was present in Tekkali circle office, he received phone call from Sub Inspector (PW.3) and he immediately informed the matter to the

Dy. Superintendent of Police, Kasibugga and obtained oral instructions from him and then he contacted local Tahsildar over phone and after coming to know that local Tahsilder is not available, he requested the local Tahsildar over phone to provide two Village Revenue Officers to the said spot and then he contacted

PW.5-Vaterinary doctor/Gazetted Officer over phone and requested him to act as Gazetted Officer for seizure of ganja if any. By the time, he received information already Sub Inspector (PW.3) searched and 15 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018 found ganja in the possession of accused persons and then only he informed the

Inspector (PW.6).

15. It is not even the evidence of this Inspector/P.W.6 that he informed the higher officials in writing about the information received from Sub

Inspector/PW.3. So, this Inspector/PW.6 also did not follow the procedure prescribed for search and seizure of contraband under NDPS Act. The Sub

Inspector conducted alleged search and found contraband in the possession of accused persons and informed the Inspector and the Inspector also conducted search, found contraband and seized it and filed charge. Because, PW.3 and

PW.6 already involved in the investigation, they cannot make further investigation.

16. The prosecution examined Sri B. Ramu, Veterinary

Assistant Surgeon as P.W.5 stating that he acted as Gazetted Officer for the alleged search and seizure of contraband. As already stated above, by the time this Gazetted Officer reached the spot already Sub

Inspector (PW.3) searched the accused persons and found ganja contraband in the possession of accused persons. So, the evidence of this Gazetted Officer (PW.5) that in his presence police opened the bags and noticed the contraband, is of no value. In his cross- examination, he admitted that he was not available at the scene of offence by the time of stopping the accused and searching the bags available with the accused persons. He also stated that seizure panchanama (Ex.P.2) does not contain recital that he disclosed his identity to the accused persons before conducting seizure proceedings. His evidence shows that he does not know Hindi or 16 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018

Oriya and only Sub Inspector (PW.3) knows language of the accused persons and Sub Inspector (PW.3) translated into Telugu.

17. The prosecution examined PW.1 stating that he was available at the time of stopping the accused persons by Sub

Inspector (PW.3) and searching them on suspicion. His evidence shows that he is running dairy farm near Naupada railway station and out of his own curiosity he went to the spot. He stated that the persons stood in the dock got perturbed and tried to escape from the railway station, Naupada and the police could stop them and they noticed two bags available with the accused persons and on suspicion police searched the said bags and noticed the ganja contraband in the said bags. In his evidence he stated that Sub Inspector (PW.3) himself conducted entire proceedings by securing veterinary doctor (PW.5) and also weigh man (PW.2). He did not state anything about the presence of Inspector (PW.6) there. Moreover, in his cross- examination for the first question he stated that the police examined him and recorded his statement immediately before leaving that place. It means First Information Report (Ex.P.1) is hit by statement of this witness recorded under Sections 161/162 Cr.P.C. Anyhow, his evidence is not helpful because he gave a different story as if entire seizure proceedings are conducted by Sub Inspector (PW.3) which is not the case of prosecution.

17 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018

18. Keeping in view of the above discussion, without any hesitation it can be held that the prosecution has failed to prove its case against the accused persons (A.1 and A.2) for the offences charged against them, for which they are entitled to acquittal.

Thus, the above point is answered.

19. In the result, I find A.1 and A.2 not guilty for the offence under Section 20(b)(ii)(C) R/w 8 of Narcotic Drugs & Psychotropic

Substances Act, 1985 and I acquit A.1 and A.2 for the offences charged against them, under Section 235(1) Cr.PC.

Bail bonds of A.1 and A.2 shall stand cancelled after six months, as per Section 437(A) Cr.PC

MO.1, MO.4 (02 old Rs.500/- notes), MO.8 and MO.9 shall be destroyed after appeal time is over.

MO.2, MO.3, MO.5 and MO.6 shall be returned to A.1 and MO.7 shall be returned to A.2, after appeal time is over.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open court this the 21st day of December,

2018.

Special Judge for trial of Cases

under Narcotic Drugs and Psychotropic Substances Act-cum- I Addl. District & Sessions Judge, Srikakulam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

P.W.1 : Dalli Sankara Narayana P.W.2 : Kinthali Suresh (weigh man) -NONE- P.W.3 : G.Rajesh, Sub Inspector P.W.4 : Polaki Kameswara Rao, VRO P.W.5 : Dr. Bagadi Ramu, Veterinary Asst.-Gazetted Officer P.W.6 : K.Bhavani Prasad, Inspector 18 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018

DOCUMENTS MARKED

* For Prosecution:

Ex.P.1/ 21.04.2016 First Information Report in Crime No. 60/2016 of Tekkali police station.

Ex.P.2/ 21.04.2016 Seizure panchanama.

Ex.P.3/ 21.04.2016 Notice under Section 50 of NDPS Act issued by PW.5-Gazetted Officer to the accused persons.

Ex.P.4/ 11.05.2016 Laboratory Analysis Report vide CE No. 725/2016 issued by Govt. chemical examiner for Proh & Excise, RFSL, Visakhapatnam

FOR DEFENCE:

Ex.D.1/ 21.04.2016 Contradiction marked in Section 161 Cr.PC statement of PW.1.

Material objects marked.

M.O.1: Xerox copy of Railway ticket. M.O.2: SBI Card of A.1. M.O.3: SBI Green remit card. M.O.4: Two Rs.500/- notes (Old notes) M.O.5: Voter identity card of A.1. M.O.6: Micromax small mobile phone of A.1. M.O.7: Samsung mobile phone of A.2. M.O.8: Two sample packets M.O.9: Two travel bags.

Special Judge for trial of Cases

under Narcotic Drugs and Psychotropic Substances Act-cum- I Addl. District & Sessions Judge, Srikakulam.

19 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018

CALENDAR

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES

UNDER N.D.P.S.ACT-CUM-I ADDITIONAL DISTRICT AND

SESSIONS JUDGE, SRIKAKULAM.

Present: Sri B. GAUTAM PRASAD,

Special Judge for trial of Cases under N.D.P.S.Act-cum-

I Additional District & Sessions Judge, Srikakulam.

FRIDAY, THIS THE 21st DAY OF DECEMBER, 2018

SESSIONS CASE No. 3/2017

(Crime No.60/2016 of Tekkali Police Station)

Between: - State of Andhra Pradesh represented by Inspector of Police, Tekkali Circle.

Complainant. And:

3.Amiya Pasupureddi, S/o Laxmikanth, Aged 22 years, SC- Harijana, Khambariguda village, Tembaguda Post, Padmapur PS Limits, Rayagada district, Odisha state.

4.Kunna Behara, S/o Brundavan Behara, Aged 23 years, SC- Harijana, Khambariguda village, Tembaguda Post, Padmapur PS Limits, Rayagada district, Odisha state.

… Accused Nos. 1 and 2.

Prosecution conducted by: Sri K. Tirumala Rao, Special Public Prosecutor, Srikakulam.

Accused are defended by: Sri T.Balakrishna, Advocate, Srikakulam.

Offence: U/Sec. 8 (C) R/w 20(b)(ii)(C) and 25 of of N.D.P.S.Act.

Plea of the accused: Pleaded not guilty.

Finding of Judge Found not guilty.

Date of offence: 21.04.2016

Date of report or complaint: 21.04.2016(26.5.2017 charge sheet is filed) 20 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018

Date of appearance of accused: 07.09.2017

Date of commitment: ---

Date of commencement of trial: 28.08.2018

Date of close of trial: 08.10.2018

Date of sentence or order: 21.12.2018

Explanation for delay: - On 26.05.2017 charge sheet is filed

before this court and on 29.06.2017 the

same is taken into cognizance. On 07.09.2017 accused made their appearance and copies furnished to them. On 30.07.2018, they are examined under section 228 Cr.PC and charges for the offence under Sections 8 (C) R/w 20(b)(ii)(C) of NDPS Act against them. The said charges are read over and explained to them in their language and they pleaded not guilty and claimed to be tried and hence posted for trial. On 28.08.2018 PWs.1 to 3; on 30.08.2010 PW.4 and on 06.09.2018 PW.5 and PW.6 are examined and prosecution side evidence is closed. On 08.10.2018, the accused are examined under Section 313, Cr.PC and trial closed. On 17.12.2018 arguments are heard and on 21.12.2018 judgment is pronounced.

Special Judge for trial of Cases

under N.D.P.S. Act-cum- I Addl. District & Sessions Judge, Srikakulam.

21 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018 22 S.C. No. 3/2017, 1st ADJ (NDPS) Court, Srikakulam, dt. 21.12.2018

IN THE COURT OF THE SESSIONS: SESSIONS DIVISION::

SRIKAKULAM.

BEFORE THE JUDGE, III ADDL.DISTRICT & SESSIONS COURT,

SRIKAKULAM.

PRESENT: B.GAUTAM PRASAD.

JUDGE, III ADDL.DISTRICT & SESSIONS COURT, SRIKAKULAM.

DATED THIS THE FRIDAY, THE 6TH DAY OF NOVEMBER, 2015.

SESSIONS CASE No.05 of 2011

(PRC No.12/2010 on the file of the Judicial Magistrate of First Class, Amadalavalasa, arising out of Crime No.27 of 2010 of Amadalavalasa Police Station)

Between:-

The State, represented by Sub-Divisional Police Officer, Srikakulam Sub- Division, Srikakulam.

..Complainant.

And:

1. Suvvari Venkata Ramana, s/o.Ramarao, aged 33 years,

2. Suvvari Rama Rao, s/o.late Ammarao, aged 60 years,

3. Suvvari Chinnammadu, w/o.Ramarao, aged 53 years, All are Kalinga by caste, Purushottapuram village, Sarubujjili mandal. …Accused.

Prosecution was conducted by:-Sri P.Mallibabu, Addl.Public Prosecutor, Srikakulam.

Accused was defended by:Sri T.Radhakrishna, Advocate, Srikakulam.

Offence charged:Under sections 498A and 304B of the Indian Penal Code.

Plea of the accused:Pleaded not guilty.

Finding of the Judge:Accused 1 to 3 found not guilty of the offences under sections 498A and 304B of the Indian Penal Code.

Sentence or order:In the result, I find the accused Nos.1 to 3 not guilty for the offences under sections 498A and 304B of Indian Penal Code and they are acquitted under section 235 (1) of Cr.P.C. The bail bonds of the accused shall stand cancelled after expiry of six months.

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This case was committed to the Court of the Sessions under Section 209 of Cr.P.C. by Sri V.S.S.Srinivasa Sarma, Judicial Magistrate of 1st class, Amadalavalasa, as per order dt.30.11.2010 in P.R.C.No.12/2010.

J U D G M E N T

01.The Sub-Divisional Police Officer, Srikakulam filed charge-sheet against the accused persons(A.1 to A.3) for the offences under Sections 304B and 498A of the Indian Penal Code in Cr.No.27/2010 of Sarubujjili Police Station, alleging as under:

(a)The accused persons are residents of Purushottapuram village in

Sarubujjili mandal. A.1 is the son of A.2 and A.3. The marriage between A.1 with the second daughter of defacto-complainant(Pydi Rangarao) by name

Purna(deceased) was performed on 26.09.2005 at Sri Venkateswara Swamy temple, Amadalavalasa, as per Hindu caste custom. At the time of marriage, defacto-complainant gave Rs.1,50,000/-, 5 tolas of gold and household articles worth Rs.50,000/- to the accused. After marriage, they lead marital life and gave birth to two children. After birth of second child, the accused persons started harassment demanding additional dowry and gold. They did not provide sufficient food and clothes to the deceased. About six months back they necked out her from their house alongwith her kid. Then the matter was placed before the elders by names Pydi Kameswararao, Pydi Srinivasarao and Killi Lakshmanarao (L.Ws.13,14 and 17) respectively and they made counseling and A.1 took his wife after counseling to his house and lead marital life for some period and again started harassment in order to get additional dowry and gold from his parents-in- law. In that connection, on 02.03.2010 all the accused persons picked up quarrel with the deceased while working in their agricultural fields and they beat her indiscriminately for want of additional dowry and gold. The incident was witnessed by Urajana Ramakrishna(L.W.6), Rakoti Bodemma(L.W.7), Mamidi

Tulasirao(L.W.11),TammineniTrinadharao(L.W.12),Birlangi

Bhudevamma(L.W.15) and Nanupatruni Laxmi(L.W.16). Due to unbearable 3 harassment caused by the accused persons at about 3.30 p.m, the deceased left the said agricultural field and proceeded to railway track which is located near the said agricultural field and she committed suicide by standing in the middle of railway track against a running train in between mile stones of 745/22 to 745/20.

(b)Basing on the information given by railway station superintendent

Sri Ramakrishna Biswal(L.W.21), Sub-Inspector of police, G.R.P, Palasa railway station, registered case in Cr.No.25/10 under section 174 Cr.P.C and submitted original First Information Report to Tahsilar, Srikakulam rural. He also conducted inquest over the dead body of the deceased. Associate Professor, Forensic

Medicine, RIMS General hospital, Srikakulam Dr.Y.S.S.V.V.Prasad conducted autopsy over the dead body of the deceased and issued autopsy report. Basing on the statement of defacto-complainant/father of deceased, on 03.03.2010 at 3 p.m altered First Information Report was issued by altering section of law from 174

Cr.P.C to 304B of Indian Penal Code and then Sub-Inspector of police, Sarubujjili police station took up investigation and re-registered a case in Cr.No.27/10 on 21.05.2010 at 8 a.m and issued First Information Report to all concerned. After receiving the same, Sub-Divisional Police Officer, Srikakulam Sri T.Panasa

Reddy(L.W.28) verified the investigation done by Sub-Inspector of police and he visited scene of offence and examined witnesses and recorded the statements of

Tahsildar, Srikakulam. G.Jayaram(L.W.23), Deputy Tahsildar who conducted inquest over the dead body of the deceased herein. On 22.05.2010, A.1 was arrested at about 4.30 p.m and he was produced before court for judicial remand.

A.2 and A.3 were arrested on 25.05.2010 at about 11.30 a.m and produced before the court for judicial remand. After completion of investigation, charge-sheet is filed.

2.The learned Judicial Magistrate of 1st class, Amadalavalasa had taken cognizance of the case against the accused for the offence under sections 498A and 304B of the Indian Penal Code.

4

3.On appearance of the accused before the court of Judicial Magistrate of First Class, Amadalavalasa and after copies of documents relied upon by the prosecution as required under section 207 of Cr.P.C., were duly furnished to the accused and upon considering the material available on record, the learned Judicial

Magistrate of First Class, Amadalavalasa committed this case to the Court of

Sessions, Sessions Division, Srikakulam under section 209 (a) of Cr.P.C., and on

receipt of records from committal court, this Sessions case was registered.

4.On appearance of the accused 1 to 3 before this court and upon hearing the learned Additional Public Prosecutor and the learned counsel appearing for the accused and upon considering the material available on record, charges under sections 498A and 304B of the Indian Penal Code against A.1 to

A.3 were framed and the contents of the said charges were read over and explained to them in Telugu. The accused 1 to 3 pleaded not guilty of the said charges and claimed to be tried. Hence, the case was posted for trial.

5.During trial, on behalf of the prosecution, 22 witnesses as P.Ws.1 to 22 were examined and Exs.P.1 to P.13 were got marked. Exs.D1 and D2 were marked on behalf of the defence.

6.On closure of the prosecution evidence, accused Nos. 1 to 3 were examined under section 313(1)(b) of Cr.P.C. by explaining the incriminating material adduced in the evidence of prosecution witnesses against them. The accused 1 to 3 denied the same and further stated that they have no defence evidence to be let in on their behalf. During 313(1)(b) Cr.P.C examination, A.1 stated that his father-in-law registered Ac.1.01 cents agricultural land in favour of deceased, but his father-in-law and his men are cultivating the same and in that connection his wife approached Killi Lakshmanarao(P.W.10) and he does not know what happens subsequently and meanwhile this false case filed against him.

He filed zerox copy of pattadar pass-book which stands in the name of his wife/deceased in respect of said Ac.1.01 cents.

7.I have heard both sides arguments.

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8.Now, the point for determination is; “Whether the prosecution has established the guilt of the accused 1 to 3 for the offences under sections 498A and 304B of the Indian Penal Code beyond all reasonable doubts?”

9.The case of the prosecution, in brief, is that A.1 to A.3 being husband and parents-in-law of the deceased Purna subjected her to cruelty demanding additional dowry after 3 or 4 years from marriage and in that connection she(deceased) left the matrimonial home for some time and later with the intervention of village elder Killi Lakshmanarao again she joined her husband(A.1), six months prior to her suicide, which took place on 02.03.2010 as she was run over by goods train in between mile stones of 745/22 to 745/20.

According to the prosecution, marriage of the deceased Purna took place on 29.06.2005 and her suspicious death took place on 02.03.2010 which is within 7 years from marriage and for that reason ingredients of section 304B of Indian

Penal Code and 113B of Evidence Act attract. It is the case of the prosecution that the couple lead happy marital life for about 3 or 4 years during which she gave birth to one male and one female child and subsequently accused persons started demanding additional dowry and in that connection they subjected said Purna to cruelty and for that reason she stayed with her parents for some days and she again joined her husband just before 6 months prior to her suicide and on the date of her suicide in the noon time accused persons altercated with said Purna and they beat her with mud stones in their field and persons available in the neighbouring fields i.e.,P.W.3, P.W.7, P.W.8, P.W.15 and P.W.18 and T.Trinadharao(L.W.12) witnessed the incident and questioned the accused persons and then the said Purna felt humiliated and she proceeded to railway track and committed suicide on the same day in the evening time by standing on the railway track against a running train and she was cut into pieces. It is the further case of the prosecution that basing on the written intimation under Ex.P6 given by P.W.14(Railway station superintendent) the Railway Reserve Police, Palasa registered a case in

Cr.No.25/10 under section 174 Cr.P.C and on the next day Deputy Tahsildar, 6

Srikakulam(P.W.17) recorded statement of defacto-complainant/father of deceased which is marked as Ex.P1 and subsequently on 19.05.2010 Sub-Divisional Police

Officer, Srikakulam(L.W.22) received Case Diary file in this case and he in turn sent the same to Sub-Inspector of police, Sarubujjili who registered expressed First

Information report for the offence under section 304B of I.P.C and in the said crime number registered by railway police, Palasa and after receipt of it, the said

Sub-Divisional Police Officer, Srikakulam took up investigation in this case and he examined the witnesses and recorded their statements and on 23.05.2010 he arrested A.1 and produced before court and subsequently on 25.05.2010 he also arrested A.2 and A.3 and produced them before court for judicial remand. After collecting relevant reports and after obtaining legal opinion he filed charge-sheet.

10.As already stated above, the prosecution has examined as many as 22 witnesses and filed 13 documents. Out of the said 22 witnesses, P.Ws.1, 2 and 4 are father, brother and sister of deceased, P.Ws.3,5 to 10, 12, 18 are same villagers and witnesses to the alleged harassment. P.Ws.11 and 13 are inquestdars.

P.W.14 is the then railway station superintendent. P.W.15 is railway station master, P.W.16 is Associate Professor, who conducted autopsy(Ex.P7) over the dead body of Purna. P.W.17 is Deputy Tahsildar, who recorded statement of

P.W.1. P.W.19 is a railway Head Constable, who received death intimation from

Railway Superintendent and sent the same to Railway police, Palasa. P.W.20 is

Sub-Inspector of police, Railway police, Palasa, who registered First Information

Report under 174 Cr.P.C and conducted inquest etc., P.W.21, Sub-Inspector of police, Sarubujjili police station, who altered section of law and assisted investigation officer i.e., P.W.22 Sri P.Panasa Reddy, Sub-Divisional Police

Officer, Srikakulam.

11.The learned Additional Public Prosecutor submitted during course of arguments that the prosecution by examining 22 witnesses and by filing 13 documents established quilty of the accused herein for the offences under sections 498A and 304B of I.P.C and therefore, the accused are liable to punish under both 7 the sections. He submitted that the evidence adduced by the prosecution establishes the guilt of the accused persons and eye witnesses clearly stated that on the date of death of Purna, the accused persons subjected the deceased Purna to cruelty by beating her with mud stones in the field and with regard to the harassment meted out by the accused demanding additional dowry, particularly the evidence of P.W.10 is available on record. He submitted that the prosecution established it’s case against all the accused persons herein.

12.On the other hand, the learned counsel for the accused argued that there is unexplained delay of more than two months in issuing altered first information report and the alleged eye witnesses did not depose anything against the accused with regard to demand of additional dowry and the prosecution utterly failed to prove its case. According to him, after more than two months from the date of death, which is purely an accident, the police roped the accused into this case by introducing the theory of dowry death and due to disputes between accused family and P.W.1(defacto-complainant) this false case is filed. According to him, the prosecution failed to establish that the death of the said woman Purna is suicidal in nature. In addition to his arguments, he relied on the following decisions.

1) 2013 SAR(Criminal) 544 between Bakshish Ram & Anr. Vs. State of

Punjab;

2) 2014 Crl.L.J 4159 between Ramaiah alias Rama v. State of

Karnataka;

3) 2008(1) ALT(Crl.) 148 A.P between Dheshetti Rajesham and

another vs. State of A.P.,rep.by Public Prosecutor, High Court of A.P.,

Hyderabad;

4) 2009(2) ALT(Crl.) 344 A.P between Karre Mohan Krishna vs. State of A.P;

5) (2010) 1 SCC (Crl.) 955 between Bhairon singh vs. State of Madhya

Pradesh; 8

6) 2004 Crl.L.J 2076 between Sakatar Singh and others vs. State of

Haryana;

7) 2012 Crl.L.J 658 between Assoo vs. State of Madhya Pradesh;

8) 2013 SAFR(Crl.)596 between Indrajit Sureshprasad Bind & Others vs. State of Gujarat;

9) 2013 SAR (Crl.) 863 between Anil Kumar @Anil Kumar Ganna, vs.

State of Karnataka;

10) 2013 Crl.L.J 2095 between Vipin Jaiswal(A.1) Vs. State of A.P;

11) 2008(2) ALT(Crl.)183 (A.P) between vanukuru Venkateswara Rao

Vs. State, Sub-Inspector of police, Penamaluru rep.by Public Prosecutor High

Court of A.P, Hyderabad; and

12) (2013) 2 SCC (Crl.) 254 between Assoo, Vs. State of Madhya

Pradesh.

13.According to the learned counsel for accused, the death of the deceased herein is purely accidental and she did not commit suicide and the investigation agency twisted accidental death, as suicide only to implicate the accused persons in this case. It is true prosecution did not examine anyone to say that deceased Purna committed suicide by standing in the middle of railway track.

But photographs of occurrence filed under Ex.P9 clearly shows that the place where the death incident took place is not even unmanned railway crossing. It is also not the case of the defence that the death incident took place at unmanned railway crossing. The evidence of P.Ws.3 and 7 shows that the deceased woman was proceeding from fields towards railway track in the after-noon time and she was weeping. Therefore, without any hesitation it can be held that the death of the deceased herein is not accidental and it is only suicidal death. Therefore, the contention of the defence counsel that the death of Purna is accidental, cannot be accepted.

14.According to the prosecution, the said woman Purna resorted to end her life only due to dowry harassment meted out to her by her husband and 9 parents-in-law ie., the accused herein. To establish the alleged demand of

additional dowry, the prosecution is relying on the evidence of P.W.1 and P.W.10.

The prosecution examined father of the deceased, who is the defacto-complainant herein as P.W.1. He deposed to the effect is that “my deceased daughter

Purnamma married A.1 on 29.06.2005 at Venkateswara swamy temple,

Amadalavalasa. I gave at the time of marriage of my deceased daughter with A.1 cash of Rs.1,50,000/- and house hold articles worth Rs.50,000/- and 5 tolas gold ornaments. A.1 looked after my deceased daughter very well for 3 years and son and daughter were born. The accused harassed my deceased daughter subsequently by demanding additional dowry by stating that the dowry given already was not sufficient. They also beat my deceased daughter. My deceased daughter informed me about the same on two occasions and I told her that I will talk to A.1 to A.3. A dispute raised before elder Killi Lakshmanarao(P.W.10). He called A.1 to A.3 and us and enquired about the harassment of my deceased daughter. There, ourselves and A.1 to A.3 agreed the advise of Killi

Lakshmanarao to send my deceased daughter to the house of accused. He has stated that he will look after my daughter very well. Thereafter, we have sent my deceased daughter to the house of accused. Subsequently, for 10 days accused did not do anything to my deceased daughter, but thereafter they harassed her by beating and by abusing her”.

15.The said elder who settled the dispute and advised wife and husband to lead marital life happily, is examined as P.W.10. He deposed to the effect is that “I know the families of accused and P.W.1. About 3 years back A.1 to A.3 came to my house and told that at the time of marriage it was agreed to give 2 tolas of gold ornament and the same was not given. They also stated to me to solve the dispute since both families are known to me very well. Then I called P.W.1 who came alone to my house and told me that at the time of marriage the said two tolas gold ornament was already given. I told the accused when they meet me first time that I will call them later on. P.W.1 again after 15 days came along with 3 elders 10 of the marriage to my house and informed the same. Then I called A.1 and A.2 to come to my house after 15 days. A.1 and A.2 came to my house after 3 days and I told them to take back wife of A.1 to their house. A.1 and A.2 agreed for the same and left my house. After one month, P.W.1 came to my house and told me that A.1 and A.2 did not take back his daughter to their house. On the next day on my request A.1 came alone to my house and I asked him as to why he did not take back his wife and he promised that he will take back his wife. After 15 days P.W.1 came to my house at Amadalavalasa and informed me that A.1 had taken back his daughter”

16.With regard to the alleged demand of additional dowry, the evidence of both these witnesses ie., P.W.1 and P.W.10 is contradicting to each other.

P.W.1 stated as if accused persons harassed his daughter demanding additional dowry. He did not even disclose about the quantum of the alleged additional dowry demanded by the accused persons. On the other hand, the evidence of

P.W.10 did not say anything about demand of additional dowry. His evidence shows that a dispute arose with regard to 2 tolas of gold ornaments agreed to be given by P.W.1 at the time of marriage. In the chief-examination itself, he stated that he does not know the cause of death of deceased Purna. His evidence does not show that the dispute between couple is with regard to demand of additional dowry. He did not say that the deceased resorted to commit suicide due to dowry harassment. As rightly argued by learned defence counsel if really there is any demand for additional dowry from the accused persons either P.W.1 or his daughter would have approached police to complain the same to police. The evidence of other witnesses examined by the prosecution as P.Ws.3,5 to 9 not show that the accused persons subjected deceased Purna to cruelty demanding

additional dowry. Though they are same villagers, they are silent about the

allegation that accused persons harassed deceased Purna demanding additional dowry. Therefore, without any hesitation, it can be held that the prosecution has 11 failed to establish that the accused persons subjected deceased Purna to cruelty making illegal demand of additional dowry.

17.According to the prosecution, on the date of death of deceased herein in the noon time, accused persons picked up quarrel with the deceased in their agricultural fields and they beat her with clay balls and abused her for not bringing additional dowry from her parents and for that reason, she felt humiliated and she resorted to commit suicide and she went to railway track and stood in the middle of the track against a running train which crushed her into pieces on the same day in the evening time. To establish the same, the prosecution has examined

P.Ws.3 and 7 stating that they witnessed the alleged beating incident that took place in the noon time in the fields of accused. P.W.3 deposed to the effect is that “on 02.03.2010(date of death) I was in the land of Killi Narasingarao in order to carry the cut and remove green gram crop at about 3 p.m and at that time I saw the accused 1 to 3 working in some other land situated after 2 or 3 other lands from the land in which I was there. I saw the deceased Purna coming towards our land in order to go to the village and she was weeping at that time. I asked her about why she was weeping. She told that she had a galata with A.1 to A.3. I told her to go to village and inform to the elders. Thereafter, she had gone towards our village situated at a distance of 3 kms. Likewise, P.W.7 deposed to the effect is that “about 3 years back on one day I was doing cultivation in the land of Nanupatruni

Satyam. A.1 to A.3 were also cultivating their land called as Palem land and on that day they were cutting and removing green gram crop. I saw the deceased

Purna at that time going from the land of the accused on the way which leads to

Ramachandrapuram by covering her head with sari. She had gone through railway track situated at Amadalavalasa. At that time, she was weeping. I did not ask her anything.”

18.Though the prosecution examined these two persons(P.Ws.3 and 7) as eye witnesses to the alleged beating incident that allegedly took place on the date of death in the noon time in the fields of the accused, these two witnesses did 12 not support the case of the prosecution. They only stated that they noticed deceased Purna while she was going towards their village and she was weeping.

Though the prosecution examined these two witnesses as eye witnesses to the alleged beating incident few hours before death, these witnesses did not support the case of the prosecution in respect of the alleged beating incident. They are silent about what had happened at the said fields. The prosecution examined

R.Bodemma as P.W.12 stating that she also witnessed the alleged beating incident in the said fields, but she did not support the case of the prosecution and turned hostile. Except marking her 161 Cr.P.C statement as Ex.P5 and suggesting that she is deposing false, nothing is elicited during cross-examination made by learned

Additional Public Prosecutor. Therefore, without any hesitation it can be held that

prosecution has failed to establish that soon before death of the deceased herein, she was subjected to cruelty or harassment by the accused persons particularly for dowry.

19.According to the learned defence counsel dispute between accused family and P.W.1 family that has arisen is with regard to Ac.1.01 cents land given to deceased Purna at the time of marriage and the accused persons never demanded any additional dowry from P.W.1. He submitted that P.W.1 executed a document in respect of extent of Ac.1.01 cents in favour of deceased Purna as

Pasupu kunkuma, but P.W.1 with the help of his supports started cultivating the said extent forcibly and in that connection a dispute arose and for that reason the deceased Purna might have felt humiliated for the high handed act of her father.

During 313(1)(b) Cr.P.C examination, the said fact was stated by A.1 and he filed zerox copy of pattadar pass-book issued in favour of his wife Purnamma. As rightly pointed out by the learned defence counsel P.W.1 is silent about giving this

Ac.1.01 cents of land to his deceased daughter Purna. However, his son, who is examined as P.W.2 stated in his cross-examination that they are cultivating

Ac.1.00 land alleged to be given to his sister since the date of her death. The said 13 circumstance shows that a dispute arose between accused and P.W.1 with regard to cultivation of said Ac.1.01 cents of land given to deceased Purna.

20.Coming to the other argument of the learned defence counsel that the accused were roped into this case after more than two months from the date of said death, the material available on record shows that on 02.03.2010 the fatal incident in this case took place and on the next day railway police registered crime as suspicious death under section 174 Cr.P.C and on 19.05.2010 ie., after more than two months investigation officer(P.W.22) took up investigation in this case basing on memo received from Superintendent of police, Srikakulam and then he examined witnesses and recorded their statements. The investigation officer(P.W.22 deposed to the effect is that “on 19.05.2010 I received a memo from S.P,Srikakulam for further investigation in this case along with Case Diary file. In turn I sent the Case Diary file to Sub-Inspector of police, Sarubujjili for re- registration of this case. On 20.05.2010 at 8.00 hours the Sub-Inspector of police,

Sarubujjili registered the case in Cr.No.27/2010 under section 304B and submitted the express First Information Report to the concerned. On 21.05.2010 I have received the express First Information Report and proceeded to Srikakulam road railway station. I secured the presence of P.W.14 and P.W.15 and examined them and recorded their 161 Cr.P.C statements. Afterwards, I visited the scene of offence. I did not prepare the scene observation report and rough sketch of scene of offence as they were already prepared by Government Railway Police.

Afterwards I secured the presence of P.W.1, Pydi Damayanthi, P.W.2, Kothakota

Vishnu, P.W.4, P.W.3, P.W.12, P.W.5, Pydi Appalanaidu, P.W.6, P.W.7,

Thammineni Trinadharao, Pydi Kameswararao, P.W.9 and examined them and recorded their statements.”

21.The evidence of the investigation officer(P.W.22) clearly shows that in between 02.03.2010 and 20.05.2010 no investigation was made by the investigation agency. Therefore, the contention of the learned defence counsel that after due deliberations this case is foisted against the accused, cannot be ruled out.

14

The evidence of the investigation officer(P.W.22) shows that he did not care to even visit scenes of offences. In the chief-examination itself, he stated that he did not prepare scene observation report and rough sketch of scene of offence as they were already prepared by Government railway police. According to prosecution, just before death an altercation took place between deceased woman and accused person in the fields. But neither railway police who started investigation in this case nor this investigation officer(P.W.22) visited the said place.

22.No doubt, the said Purna resorted to commit suicide and her death is unnatural and is untimely death. But there is no cogent evidence to connect the same to the accused persons. The prosecution failed to establish even the said death is the result of the harassment meted out to the deceased by the accused persons.

23.Keeping the above said facts and circumstances, I am of opinion that the prosecution has filed to establish this case against the accused for the offences under sections 498A and 304B of Indian Penal Code.

24.In the result, I find the accused Nos.1 to 3 not guilty for the offences under sections 498A and 304B of Indian Penal Code and I acquit them as per section 235 (1) of Cr.P.C. The bail bonds of the accused shall stand cancelled after expiry of six months.

Dictated to the Stenographer-Gr.I, transcribed by him, corrected and

pronounced by me in Open Court, this the 6th day of November, 2015.

JUDGE, FAMILY COURT-CUM-

III ADDL.DISTRICT AND SESSIONS JUDGE,

SRIKAKULAM.

Appendix of evidence.

Witnesses examined

For Prosecution:- For Defence:

PW.1: Pydi Ranga Rao. - NONE - PW.2: Pydi Venkatanarayana PW.3: Urajana Ramakrishna. PW.4: Kothakota Revathi. PW.5: Pydi Simhachalam. PW.6: Pydi Chandra Rao. PW.7: Mamidi Tulasi Rao.

15

PW.8: Birlangi Bhudevamma. PW.9: Pydi Srinivasarao,s/o.late Narasimhulu. PW.10: Killi Lakshmana Rao. PW.11: Dumpala Srinivasarao. P.W.12:Rakoti Bodemma. P.W.13: Pydi Srinivasarao,s/o.Krishna Murty. P.W.14: Ramakrishna Biswal, Railway station Superintendent. P.W.15: M.A.N.Ali, Railway Station Master, Dusi P.W.16: Dr.Y.S.S.U.V.Prasad, Associate Professor. P.W.17: Gondu Jayaram, Deputy Tahsildar P.W.18: Nanupatruni Laxmi P.W.19: K.Arjuna Rao, Head Constable 938 P.W.20: Ch.Rudra Sekhar, the then S.I of police,G.R.P, Palasa P.W.21: M.V.Ramana Murthy, the then S.I of police, Sarubujjili P.W.22: T.Panasa Reddy, the then S.D.P.O, Srikakulam.

Documents Marked. For Prosecution:

Ex.P.1/03.03.2010: Statement of P.W.1recorded by Deputy Tahsildar, Srikakulam. Ex.P.2/03.03.2010: zerox copy of Statement of P.W.1. Ex.P.3/03.03.2010: Scene observation report. Ex.P.4/03.03.2010: Inquest report. Ex.P.5/21.05.2010: 161 Cr.P.C statement of P.W.12. Ex.P.6/02.03.2010: Message sent to officer in-charge of G.R.P.police by P.W.14. Ex.P.7/03.03.2010: Post-mortem certificate. Ex.P.8/03.03.2010: First Information report in Cr.No25/10 of G.R.P, Palasa P.S. Ex.P.9/ -- : Photographs (six in number). Ex.P.10/03.03.2010 : Memo of the order of Superintendent of police along with zerox copy of FI.R in Cr.No.25/10 of G.R.P, Palasa and copy of statement of P.W.1 and alteration memo details. Ex.P.11/21.05.2010 : First information report in Cr.NO.27/10 of Sarubujjili P.S. Ex.P.12/03.03.2010 : Statement of P.W.1 recorded by railway police. Ex.P.13/03.03.2010 : First information report in Cr.No.25/2010.

For defence :

Ex.D1/ ---: Relevant portion in 161 Cr.P.C statement of P.W.2. Ex.D2/ --- : Relevant portion in 161 Cr.P.C statement of P.W.2.

JUDGE, FAMILY COURT-CUM-

III ADDL.DISTRICT AND SESSIONS JUDGE,

SRIKAKULAM.

16

IN THE COURT OF THE SESSIONS: SESSIONS DIVISION::

SRIKAKULAM.

BEFORE THE SESSIONS JUDGE, SRIKAKULAM.

PRESENT: V.APPA RAO.

SESSIONS JUDGE, SRIKAKULAM.

DATED THIS THE THURSDAY, THE 8TH DAY OF OCTOBER, 2015.

SESSIONS CASE No.70 of 2015

(PRC No.10/2013 on the file of the Judicial Magistrate of First Class, Rajam, arising out of Crime No.32 of 2013 of Rajam Police Station)

Between:-

State represented by the Inspector of Police, Rajam Circle.. Complainant. And:

4. Yedla Appanna, S/o late Sadu @ Sadubabu, 22 years, Yatha by caste, Yatha street, Boddam village, Rajam Mandal.

5. Vanumu Appanna, S/o late Ramulu, 45 years, Yatha by caste, Yatha street, Boddam village, Rajam Mandal.

6. Vanumu Rambabu, S/o Appanna, 23 years, Yatha by caste, Yatha Street, Boddam village, Rajam Mandal. Accused.

Date of offence: 17.02.2013 at 16.00 hours.

Date of report/complaint: 20.02.2013 at 20.00 hours.

Date of appearance of the accused: 04.07.2013 17

Date of commitment: 18.11.2013

Date of commencement of trial: 07.09.2013

Date of sentence or order: 08.10.2015.

Explanation for the delay:

a) In the committal court : ( Vide separate docket extract of the lower court)

b) In this Court :

After receiving the record from the committal court, the case was taken on file on 08.05.2015 and summons issued to the accused. The accused has appeared on 12.06.2015. On 26.06.2015 charge under Sections 302 of the

Indian Penal Code against A.1 and charge under section 302 read with 34 of the Indian Penal Code against A.2 and A.3 were framed. Therefore, the case underwent some adjournments at the request of the defence. On 17.07.2015 trial schedule was fixed from 07.09.2015. On 07.09.2015 PWs.1 to 3, on 08.09.2015 PWs.4 and 5; on 09.09.2015 PWs.6 to 8; on 10.09.2015 PWs.9 and 10; on 14.09.2015 PWs.11 and 12; on 15.09.2015 P.W.13; on 21.09.2015

P.W.14 and on 28.09.2015 P.Ws.15 and 16 were examined respectively, and prosecution evidence was closed. On 29.09.2015 the accused were examined under section 313 of Cr.P.C., On 07.10.2015 defence side arguments heard and on 08.10.2015 the judgment is pronounced.

PRINCIPAL DISTRICT AND SESSIONS JUDG,

SRIKAKULAM.

BEFORE THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL

- CUM- 1 ST ADDITIONAL DISTRICT JUDGE, SRIKAKULAM.

Present: Sri B. GAUTAM PRASAD,

The Chairman, Motor Accidents Claims Tribunal –cum- 1st Addl. District Judge, Srikakulam.

MONDAY, THIS THE 31st DAY OF DECEMBER, 2018

M.V.O.P.No. 328/2017

Between:

1.Giduturi Rambai, W/o late Rama Rao, Aged 44 years, Hindu, Caste by Padmasali, Household duties, Resident of D. No.4-1-2/7, Near Sivalayam, Vyshnava Veedhi, Srikakulam town, mandalam and district.

2.Kalluri Trinadha Rao, S/o late Satyam, Aged 30 years, Hindu, Caste by Padmasali, Business, Resident of D. No.4-1-2/7, Near Sivalayam, Vyshnava Veedhi, Srikakulam town, mandalam and district.

Petitioners. And:

1.Tholati Appa Rao, S/o Appayya, Aged 30 years, SC Mala by caste, Driver of Tractor Bearing No. AP 27 X 1057-cum-Trailer No. AP 30 X 0985, Resident of D.No. 5-39, Pogiri village, Rajam Mandalam, Srikakulam district.

2.K. Ammanna, S/o Suribabu, Aged 40 years, Hindu, Owner of Tractor bearing No. AP 27 X 1057-cum-Trailer No. AP 30 X 0985, Door No. 2-6, Kotha street, Krishnapuram village, Ponduru Mandalam, Srikakulam district.

3.Reliance General Insurance Company Ltd., represented by its Branch Manager, Branch Office, Dwarakanagar, Visakhapatnam town and district.

Respondents.

This petition is coming on 28.12.2018 for final hearing before me in the presence of Sri T.Khagendra Nath, learned Advocate for the petitioners and Sri M. Janarhana Rao, learned Advocate for 3rd respondent-insurer and the respondents 1 and 2 remained ex parte and having heard both sides and stood over till this day for consideration, this court made the following:

…..2….. MVOP No. 328/2017 Dated. 31.12.2018 MACT- cum -1st ADJ Court, Srikakulam.

O R D E R

01. This claim petition is filed by the petitioners under Section 166 of Motor Vehicles Act, 1988, claiming compensation of

Rs.17,00,000/- for the death of deceased Giduturi Rama Rao, S/o late

Appanna, due to the injuries received in the accident took place on 20.05.2013 at about 9.30AM, on Tar road, near Lolugu High school,

Ponduru village limits.

02. The facts set out in the petition, in brief, are as follows:

The petitioners are the wife and son-in-law of the deceased

Giduturi Rama Rao. The sole daughter of the deceased and wife of the 2nd petitioner was predeceased the deceased herein. 1st respondent is the driver of Tractor & Trailer bearing No. AP 27 X 1057 & AP 30 X 0985 and 2nd respondent is the owner of said Tractor & Trailer ( accident vehicle). 2nd respondent insured the said accident vehicle with the 3rd respondent vide Policy No. 1802722343002097 valid from 21.02.2013 to 20.02.2014. On 20.05.2013 at about 07.00AM, the deceased-Giduturu

Rama Rao boarded an auto bearing No. AP 30 W 2402 at Chilakapalem junction to go to State Bank of India, Ponduru to withdraw his salary and at about 09.30AM when the said auto reached near the place of accident i.e., near High School, Lolugu, 1st respondent being the driver of the said accident vehicle while coming in the opposite direction of the said auto i.e., from Ponduru side to Chilakapalem side, drove the accident vehicle in a rash and negligent manner at high speed and dashed the said auto and as a result the auto was crushed and deceased died on the spot due to the injuries received in the accident. The Station

House Officer, Ponduru police station registered a case against 1st …..3….. MVOP No. 328/2017 Dated. 31.12.2018 MACT- cum -1st ADJ Court, Srikakulam.

respondent in Crime No. 55/2013 under Section 304 (A) Indian Penal

Code and after investigation filed charge sheet in CC No.410/2014 on the file of Judicial Magistrate of 1st Class, Rajam.

(b) The deceased was working as Office Subordinate (Attender) in Govt. High School, Etcherla and he was earning Rs.26,234/- per month as salary. The deceased was hale and healthy. Due to the sudden demise of the deceased, the petitioners suffered lot of pain and mental agony. The only daughter of the deceased was predeceased the deceased herein and her husband is added as 2nd petitioner. The petitioners are the dependants on the earnings of the deceased.

(c). 1st respondent-driver of accident vehicle has valid driving licence vide DLRAP030001454462011 authorized to drive HGV, HPV,

LMV (Transport) and the same was valid up to 01.07.2014. 2nd respondent insured the said tractor with the 3rd respondent and the policy was in force as on the date of accident. Hence, this petition.

03. 1st and 2nd respondents remained ex parte. 3rd respondent/ insurer filed its written statement. The brief averments of it in brief are as follows:

The alleged accident vehicle was not involved in the accident as on the date of alleged accident. The petitioners herein created a false story and filed this petition to claim compensation illegally. The person driving the accident vehicle has "no driving licence" to drive the same as on the date of accident. It is the allegation that as per the crime record, the accident occurred due to the sole rash and negligent act of the auto driver, in whose auto bearing No. AP 30 W 2402 the deceased was travelling as passenger. The said auto has no valid documents and the …..4….. MVOP No. 328/2017 Dated. 31.12.2018 MACT- cum -1st ADJ Court, Srikakulam.

auto driver has also no driving licence. The petition is not maintainable for non-joinder of necessary and proper parties since the petitioners did not add the driver, owner and insurer of the said auto. 2nd petitioner is not the dependent on the earnings of the deceased. There is contributory negligence on the part of the deceased and his negligence is also greater extent. The compensation claimed is very excessive and so also interest.

Hence, prays to dismiss the petition.

04. Upon the above pleadings, the following issues and additional issue were settled for trial:

1. Whether the deceased-Giduturi Rama Rao, S/o late Appanna died due to rash and negligent act of 1st respondent-Driver of Tractor-cum-Trailer bearing No. AP 27 X 1057 and AP 30 X 0985?

2. Whether the petitioners are entitled to claim compensation for the death of the deceased- Giduturi Rama Rao, S/o late? If so to what amount and from which of the respondents?

3. Whether the petition is bad for non-joinder of necessary parties?

4. To what relief?

05. On petitioners’ side, P.Ws.1 to 3 are examined and Exs.A.1 to

A.4 and Exs.X.1 and X.2 documents are filed. 3rd respondent-insurer reported no evidence on its side and it filed the insurance policy copy in respect of the accident vehicle which is marked as Ex.B.1.

06. On the application of R.3-Insurance Company in I.A.No.516 of 2018 U/sec.170 of M.V.Act, it is permitted to raise all the defences that are available under M.V.Act as per order dt:14.12.2018.

07. Heard the petitioners and 3rd respondent filed memo of written arguments.

…..5….. MVOP No. 328/2017 Dated. 31.12.2018 MACT- cum -1st ADJ Court, Srikakulam.

08. ISSUE No.1 :

1st petitioner -wife of the deceased is examined as P.W.1 and she filed her chief-examination affidavit. According to her, on 20.05.2013 in the morning her husband was proceeding in the auto bearing No. AP 30 W 2402 to go to Ponduru to draw his salary and when the said auto reached near the place of accident i.e., on tar road near Govt. High

School, Lolugu, 1st respondent being the driver of the said accident vehicle, drove the same in a rash and negligent manner at high speed and dashed to the said auto in which the deceased was travelling and as a result the auto was crushed and the deceased died on the spot.

According to them, this accident took place due to rash and negligent driving of the accident vehicle driven by the 1st respondent herein.

Admittedly, she is not the eye witness to the accident. During her cross examination she stated that she did not witness the accident in this case. She filed the certified copies of First Information report, Charge sheet, Motor Vehicles Inspector Report and Postmortem certificate of the deceased, which are marked as Exs.A.1 to A.4.

09. It is not disputed by 3rd respondent/insurer about the accident, involvement of the accident vehicle and the death of deceased due to the injuries received in the said accident. It is its case that the accident took place due to rash and negligent driving of the auto by its driver but not due to rash and negligent driving of the accident vehicle by the 1st respondent herein. The petitioners got examined the auto driver as PW.3 in whose auto the deceased was travelling as passenger at the relevant time. Ex.A.2 charge sheet goes to show that this witness is cited as eye witness to the accident. During his cross-examination he stated …..6….. MVOP No. 328/2017 Dated. 31.12.2018 MACT- cum -1st ADJ Court, Srikakulam.

that he was driving the said auto and he denied that the accident in this case was due to his rash and negligent driving of the said auto. He stated that he obtained driving licence earlier to this accident and his auto was insured with some insurance company and nobody sat beside him while driving his auto and 4 persons occupied back seat. He denied the suggestion that this accident took place due to overload of the auto and that the deceased sat beside him. 3rd respondent-insurer did not elicit anything during the cross-examination of this witness shows that this accident took place only due to his negligent driving of the auto and 1st respondent is not responsible for the accident. Even 3rd respondent did not choose to examine any witness on its behalf and moreover it reported no evidence on its side. Admittedly, the police registered the case against 1st respondent-driver of accident vehicle and after investigation filed charge sheet against him as he is responsible for the accident. The contents of written complaint basing on which Ex.A.1 First Information

Report was registered go to show that 1st respondent drove the accident vehicle in a rash and negligent manner and dashed to the auto. Ex.A.4

Postmortem Examination report goes to show that the deceased died due to the injuries received in road accident. So, without any hesitation it can be held that this accident took place due rash and negligent driving of the accident vehicle i.e., Tractor -cum Trailer by the 1st respondent herein only, resulting in spot death of deceased due to the injuries received in the accident.

Accordingly, this issue is answered.

…..7….. MVOP No. 328/2017 Dated. 31.12.2018 MACT- cum -1st ADJ Court, Srikakulam.

10. ISSUE No.2:

1st petitioner is the wife and 2nd petitioner is her son-in-law.

The wife of the 2nd petitioner i.e., daughter of the deceased was predeceased the deceased herein. 2nd petitioner being son-in-law is not a dependent on the earnings of his father-in-law and so he is not entitled to any compensation. Only, 1st petitioner being wife is entitled to compensation.

11. According to the petitioners, the deceased was 54 years olf and he was working as Office Subordinate (Attender) in Govt. High

School, Etcherla and he was drawing salary of Rs. 26,234/- per month.

The petitioners got examined the Senior Assistant of District

Educational Office, Srikakulam as PW.2. He states that as per register, the salary of the deceased was Rs.27,340/- per month and as per the service register, the date of birth of deceased was 13.09.1955. Ex.X.1 is the authorization letter of District Educational Officer, Srikakulam authorizing PW.2 to give evidence before this Tribunal and Ex.X.2 is the last pay certificate of the deceased. The deceased died on 20.05.2013.

So, the deceased was 57 years and 8 months i.e., within age group of 56- 60years. PW.2 states that the deceased has got 2 years and 2 months service as the retirement age of Class -IV Employee is 60 years.

12. PW.1 admitted during her cross-examination that she got job on compassionate grounds and she is getting salary of Rs.15,000/- per month and also getting Rs.10,000/- per month as pension of her husband and she received Rs.7,00,000/- to Rs.8,00,000/- towards death benefits of her husband. It is the case of 3rd respondent that 1st petitioner got job as Attender on compassionate grounds and she is …..8….. MVOP No. 328/2017 Dated. 31.12.2018 MACT- cum -1st ADJ Court, Srikakulam.

getting pension of her husband and also received death benefits and hence the benefits received by the 1st petitioner on account of death of her husband, have to be duly considered while fixing compensation and he relied on a decision of Hon'ble Two Judges Hon'ble Apex Court between "Bhakra Beas Management Board Vs. Kanta Aggarwal and others" reported in "2008 ACJ 2372", wherein it is observed at Para 12 that:

" But we find that the High Court lost sight of the fact that the benefits which the claimant receives on account of the death or injury have to be duly considered while fixing the compensation. It is pointed out that respondent No.1 was getting Rs.4,700/- p.m. and a residence has been provided to her and actually the compassionate appointment was given immediately after the accident".

13. The learned counsel for the petitioners contended that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased and he relied on recent judgment of Hon'ble Three Judges of our Hon'ble Apex Court between "Sebastiani Lakkra and others Vs. National Insurance Company

Ltd,. & Another" reported in "2018 SAR (Civil) 1270" wherein it is held that:

"The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or an account of pensionary benefits or gratuity or grant of employment to a kin of the deceased- The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependants are entitled to 'just compensation' under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident - Therefore, the natural …..9….. MVOP No. 328/2017 Dated. 31.12.2018 MACT- cum -1st ADJ Court, Srikakulam.

corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependants only after his death."

14. By following the above recent decision of our Hon'ble Apex

Court in "Sebastiani Lakkra and others", this Tribunal is of the view that it is not proper to deduct the pensionary benefits or gratuity or grant of employment to the 1st petitioner from the amount of compensation awarded.

15. It is the case of 3rd respondent that the deceased was 58 years and he has two years and two months of service only and hence split multiplier method has to be adopted for assessment of loss of dependency. He relied on a decision of Honourable High Court of

Calcutta in between "Gita Mondal and others Vs. Jagga Singh and another" reported in "2016 ACJ 1785", wherein it is held that "the court has to come conclusion that in case of a government employee, the unexpired period of service should be taken into consideration for assessment of loss of dependency and not the age of the victim".

16. The learned counsel for the petitioners contended that spilt multiplier method cannot be applied and he relied on recent decision of

Hon'ble High Court of Karnataka in between " Oriental Insurance

Company Ltd., Vs. Mallikarjun, s/o Awappa Hariwal" in " M.F.A.

No.25829/2011 (MV) decided on 07.02.2018, wherein it is held by following the decision of Honourable Apex Court between "Puttamma

Vs. K.L.Narayana Reddy and another" reported in "AIR 2014 SC 706 that:

…..10….. MVOP No. 328/2017 Dated. 31.12.2018 MACT- cum -1st ADJ Court, Srikakulam.

"14. Nextly, it was argued by the learned counsel for the Insurer that split multiplier has to be applied considering the age of the deceased. Indisputably, the deceased was aged about 58 years at the time of the accident. It is true that she had another two years of service. But, the question would be whether split multiplier is applicable to the facts and circumstances of the case. To answer this question, it is worth referring to the judgments of the Hon'ble Apex Court and this Court holding the field.

15. In the case of Puttamma Vs. K.L.Narayana Reddy and another reported in AIR 2014 SC 706, the Hon'ble Apex Court while dealing with the split multiplier in paragraphs 32 and 34 has held thus:

"32. For determination compensation in motor accident claims under Section 166 this Court always followed multiplier method. As there were inconsistencies in selection of multiplier, this Court in Sarla Verma prepared a table for selection of multiplier based on age group of the deceased/victim. Act, 1988 does not envisage application of split multiplier.

34. We, therefore, hold that in absence of any specific reason and evidence on record the Tribunal or the Court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in the case of Sarla Verma (supra) as affirmed in the case of Reshma Kumari (supra)."

17. In the case on hand, admittedly, the deceased was 58 years and he has two years and two months of service In the above decision also, the deceased was 58 years and he had two years of service. 3rd respondent herein did not assign any reason and adduce evidence on record. Therefore, in view of the above decision followed by the Hon'ble

Apex Court, this Court is of the view that it is not proper to apply the split multiplier in this case.

18. As per Ex.X.2 pay certificate and evidence of PW.2, the deceased was working as Office Subordinate and was getting

Rs.27,340/- per month. The learned counsel for the petitioners submits that the deceased was a government employee and he requested …..11….. MVOP No. 328/2017 Dated. 31.12.2018 MACT- cum -1st ADJ Court, Srikakulam.

this Tribunal to add 15% of salary to his earnings of Rs.27,340/- per month, as he is aged between 51-60 years, as per the decision of the

Hon'ble Apex Court in National Insurance Company Limited Vs.

Pranay Sethi and Others reported in 2017 ACJ 2700, wherein our

Honourable Apex Court observed that an addition of 50% of actual salary

to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made, the addition should be 30%, if the age of the deceased was between 40 to 50 years and in case the deceased was between the age of 50 to 60 years, the addition should be 15%. In this case the deceased was permanent employee and was aged between 50 to 60 years and therefore 15% should be added to his actual salary. As already stated above, the deceased was earning salary at Rs.27,340/- per month. After deducting Rs.200/- towards profession tax, his salary was Rs.27,140/.

So, as per the above decision, if 15% is added to his salary, his salary wound be Rs.31,211/- per month (Rs.27,140/- + Rs.4,071/-).

19. As stated above, 1st petitioner was the only dependent on the earnings of the deceased. So, 1/2nd income has to be deducted from the earnings of the deceased towards his personal expenses and maintenance. After deducting 1/2nd of the income out of Rs.31,211/-, an amount of Rs.15,605-50ps has to be taken into account per month, to assess the loss of the dependency of 1st petitioner, which would come to Rs.1,87,266/- per annum.

20. For a person aged in between 56-60 years, the multiplier as per the table given in Sarla Verma & Others Vs. Delhi Transport

Corp. & Anr. reported in 2009 (3) ALD 83 (SC), is “9”. If the amount of …..12….. MVOP No. 328/2017 Dated. 31.12.2018 MACT- cum -1st ADJ Court, Srikakulam.

Rs. 1,87,266/- is multiplied by ‘9’, it comes to Rs. 16,85,394/- (Rs.1,87,266/- x 9) which would be just and reasonable to be awarded to the 1st petitioner towards loss of her dependency in future on account of sudden demise of the deceased in this motor vehicle accident. In addition to the said amount, 1st petitioner is entitled to Rs.15,000/- towards funeral and transport charges and an amount of Rs.25,000/- towards consortium.

Thus, in all 1st petitioner is entitled to Rs.17,25,394/- (Rs.16,85,394/- + Rs.15,000/- + Rs.25,000/-). Since the petition is filed for Rs.17,00,000/- the claim is restricted to Rs.17,00,000/-.

21. Now coming to liability aspect, it is the case of petitioners that 1st respondent has valid driving licence to drive the accident vehicle i.e., tractor & trailer vide DL DLRAP030001454462011 and the 2nd respondent-owner insured the same with the 3rd respondent and the policy was in force. It is the case of 3rd respondent that driver of accident vehicle has no valid driving licence to drive the same as on the date of accident. Except self serving statement, 3rd respondent did not choose to examine any witness from RTA Officials and even it did not file any document. Ex.A.3 MVI Report goes to show that 1st respondent has valid driving licence. 3rd respondent filed Ex.B.1 insurance policy copy in respect of the accident vehicle stating that the accident vehicle was covered by insurance coverage as on the date of accident. So, respondents 1 to 3 being driver, owner and insurer of the accident vehicle in question jointly and severally are liable to pay the compensation awarded to the 1st petitioner.

Accordingly, this issue is answered.

…..13….. MVOP No. 328/2017 Dated. 31.12.2018 MACT- cum -1st ADJ Court, Srikakulam.

22. ISSUE No.3:

In the 1st issue it is held that this accident took place due to rash and negligent driving of the Tractor & Trailer by the 1st respondent only.

Therefore, this petition is not bad for non-joinder of necessary parties.

Accordingly, this issue is answered.

23. ISSUE No.4:

In the result, the petition is allowed in part granting compensation of Rs.17,00,000/- (Rupees Seventeen lakhs only) to the 1st petitioner together with costs of petition and subsequent interest at 7.5% per annum from the date of filing of petition i.e., 24.07.2017 till the date of realization.

The petition of 2nd petitioner is dismissed. Respondents 1 to 3 jointly and severally are ordered to deposit the said amount into

Tribunal within one month from the date of this order. On such deposit, 1st petitioner is permitted to withdraw half of the amount and accrued interest thereon and the remaining amount shall be kept in Fixed

Deposit in any Nationalized Bank for a period of 3 (three) years and thereafter she is entitled to receive the same.

1st petitioner is directed to deposit the deficit court fee of

Rs.8.180/- and the office is directed to issue certified copy of decree to her only after deposit of the said deficit court fee into Tribunal.

Advocate fee is fixed at Rs.10,000/-.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open court, this the 31st day of December, 2018.

Chairman, Motor Accidents Claims Tribunal –cum- 1st Addl. District Judge, Srikakulam.

…..14….. MVOP No. 328/2017 Dated. 31.12.2018 MACT- cum -1st ADJ Court, Srikakulam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioners For Respondents:

PW.1: G.Rambai NONE PW.2: T.Bhaskara Rao PW.3: Gadidesi Sanyasi

DOCUMENTS MARKED

For petitioners:

Ex.A.1/ 20.05.2013 : Certified copy of First Information Report in Crime No.55/2013 of Ponduru police station Ex.A.2/ ... : Certified copy of charge sheet in CC 410/2014 on the file of Judicial

Magistrate of 1st Class Court, Rajam.

Ex.A.3/ : Certified copy of Motor Vehicle Inspector Report. Ex.A.4/ : Certified copy of Postmortem report of the deceased. Ex.X.1 : Authorization of letter of District Educational Officer, Srikakulam authorizing PW.2 to give evidence before this Tribunal.

Ex.X.2/ : Pay particulars of the deceased.

For Respondents:

Ex.B.1/ Insurance policy copy.

Chairman, Motor Accidents Claims Tribunal –cum- 1st Addl. District Judge, Srikakulam.

BEFORE THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL

- CUM- 1 ST ADDITIONAL DISTRICT JUDGE, SRIKAKULAM.

Present: Sri B. GAUTAM PRASAD,

The Chairman, Motor Accidents Claims Tribunal –cum- 1st Addl. District Judge, Srikakulam.

FRIDAY, THIS THE 28th DAY OF DECEMBER, 2018

M.V.O.P.No. 18/2018

Between:

1.Pragada Sailaja, W/o Ashok, Hindu, Aged about 24 years, Household duties, Residing at Door No. 844, BC Colony, Nandigam village and Mandalam, Srikakulam district.

2.Pragada Ashok, S/o Prakash Rao, Hindu, Aged about 30 years, Employee, Residing at Door No. 844, BC Colony, Nandigam village and Mandalam, Srikakulam district. Petitioners. And:

1.V. Madhava Rao, S/o Tatayya, Hindu, Aged 45 years, Driver of the Bus A.P. 30-X-4849, Residing at Door No. 1-9-69, Gulla Veedhi, Ichapuram town, Srikakulam district.

2.Labala Samanthakamani, S/o late Dayanidi, Hindu, Aged 55 years, Owner of the Bus AP 30 X 4849, Residing at Door No. 4- 1-18, Main Road, Ichapuram town, Srikakulam district.

3.The New India Assurance Company Limited, represented by its Divisional Manager, Govt. College Road, Srikakulam town and district. Respondents.

This petition is coming on 24.12.2018 for final hearing before me in the presence of Sri L.Govinda Rajulu, learned Advocate for the petitioners and Sri K. Jeevaratnam, learned Advocate for 3rd respondent and the Respondents 1 and 2 remained ex parte and having heard both sides and upon consideration this court made the following:

ORDER

01. This claim petition is filed by the petitioners under Section 166 of Motor Vehicles Act, 1988, claiming compensation of

Rs.5,00,000/- for the death of their deceased daughter Poojitha, aged 4 years, due to the injuries received in a road accident that took place on 31.08.2017 at about 6.45hours on Service Road of Palasa and …..2….. MVOP No. 18/2018, dt. 28.12.2018 MACT- cum -1 st ADJ Court, Srikakulam.

Tekkali lane of NH-16 road, Flyover bridge, at Nandigam village and mandalam, Srikakulam district.

02. The facts set out in the petition, in brief, are as follows:

The petitioners are the mother and father of the deceased girl. 1st respondent is the driver and 2nd respondent is the owner of the accident bus bearing No. AP 30 X 4849. 2nd respondent insured the said accident bus with the 3rd respondent-insurer vide Policy No.

62010631160100000585 valid from 29.09.2016 to 28.09.2017. On 31.08.2017, the deceased girl and her mother-1st petitioner were walking on the left side of the road margin on service road of Palasa and Tekkali lane of NH 16 road fly over bridge at Nandigam village and at that time 1st respondent being the driver of the accident bus while coming in the same direction i.e., from Ichapuram side to

Srikakulam side, drove his bus in a rash and negligent manner and dashed to the deceased girl. As a result, the deceased girl fell down and sustained injuries. Immediately she was taken to Area Hospital,

Tekkali for first aid and later she was shifted to KGH, Visakhapatnam and while undergoing treatment, she succumbed to the injuries on 03.09.2017 at about 7.15PM. The petitioners spent an amount of

Rs.10,000/- towards medical expenses. The petitioners spent an amount of Rs.25,000/- towards funeral and transport expenses.

Initially, the Station House Officer, Nandigam police station registered the case against the 1st respondent in Crime No.75/2017 for the offence under Section 338 IPC and later altered the FIR for the offence under Section 304 (A) IPC and after investigation filed charge …..3….. MVOP No. 18/2018, dt. 28.12.2018 MACT- cum -1 st ADJ Court, Srikakulam.

sheet against 1st respondent before the court of Judicial Magistrate of 1st Class, Tekkali.

The deceased girl was studying LKG at Private Covent,

Nandigam and she was a clever and active student and if the deceased did not meet the accident, she would have get good job after completion of her studies. The petitioners lost their bright future and dependency and lost their love and affection and lost their expectations and they suffered great mental agony. Hence, they filed this petition claiming compensation of Rs.5,00,000/-.

03. Respondents 1 and 2 remained ex parte. 3rd respondent/ insurer filed its written statement. The averments of it, in brief, are as follows:

All the allegations leveled in the petition are not correct.

Petitioners must prove those allegations. This accident took place due to own negligence of the deceased. The deceased along with her mother negligently crossed the NH 16 road and met with an accident.

There is contributory negligence on the deceased and her mother and their negligence is at greater extent. The deceased is only 4 years olf girl and no earnings can be expected from the deceased girl. The petitioners are not the dependents of the deceased and hence they are not entitled to claim compensation. The 1st respondent-bus driver has no driving licence as on the date of accident to drive the said bus.

The compensation claimed is very excessive and so also interest.

Hence, prays to dismiss the petition.

…..4….. MVOP No. 18/2018, dt. 28.12.2018 MACT- cum -1 st ADJ Court, Srikakulam.

04. Upon the above pleadings, the following issues and

additional issue were settled for trial:

1. Whether the deceased - Pragada Poojitha, D/o Pragada Ashok, died due to rash and negligent driving of 1st respondent-driver of bus bearing No.AP 30 X 4849?

2. Whether the petitioners are entitled to claim any compensation for the death of the deceased Pragada Poojitha, D/o Pragada Ashok? If so to what amount and from which of the respondents?

3. To what relief?

05. On the Application of R.3-Insurance Company in

I.A.No.542of 2018 U/sec.170 of M.V.Act, it is permitted to raise all the defences that are available under M.V.Act as per order dt:

24.12.2018.

06. On petitioners’ side, PW.1 is examined and Exs.A.1 to

A.6 documents are filed. PW.1 is the 1st petitioner. No evidence is adduced by the 3rd respondent.

07. Heard the petitioner and 3rd respondent-insurer filed memo of written arguments.

08. ISSUE No.1 :

1st petitioner-mother of the deceased and eye witness to the accident is examined as P.W.1. According to her on 31.08.2017, she and her deceased girl were walking on the left side of the road margin on service road of Palasa and Tekkali lane of NH 16 road fly over bridge at Nandigam village and at that time 1st respondent being the driver of the accident bus while coming in the same direction i.e., from Ichapuram side to Srikakulam side, drove his bus in a rash and …..5….. MVOP No. 18/2018, dt. 28.12.2018 MACT- cum -1 st ADJ Court, Srikakulam.

negligent manner and dashed to her deceased girl and as a result her daughter-deceased fell down and sustained injuries and while undergoing treatment her daughter-deceased succumbed to injuries in KGH, Visakhapatnam on 03.09.2017. She filed attested copies of

First Information Report, Postmortem report of the deceased girl,

Motor Vehicles Inspector Report, Inquest report, charge sheet and the insurance policy copy in respect of accident bus.

09. As stated above, respondents 1 and 2/driver and owner of bus remained ex parte. There is no dispute about the accident, involvement of the bus and the death of deceased girl due to the injuries received in the accident. It is the case of 3rd respondent- insurer that the deceased girl and her mother suddenly crossed the road without observing the vehicles on the road and due to their negligence only this accident took place. Except the said self serving statement, 3rd respondent did not adduce any evidence on that aspect. PW.1 during her cross-examination denied that this accident took place due to negligence of the deceased herein as she and her mother suddenly came to the National Highway and that 1st respondent was not negligent in his driving. Admittedly, FIR was registered against the 1st respondent and after investigation police filed charge sheet against him as he is responsible for the accident.

3rd respondent did not choose to summon and examine the 1st respondent- bus driver who is proper person to narrate the manner of the accident. The contents of First Information Report (Ex.A.1) and the Inquest report go to show that the deceased and her mother/PW.1 were proceeding on the service road by the side of …..6….. MVOP No. 18/2018, dt. 28.12.2018 MACT- cum -1 st ADJ Court, Srikakulam.

National Highway road but they are not crossing the National

Highway road as contended by the 3rd respondent. They further go to show that the 1st respondent drove the bus in a rash and negligent manner at high speed and dashed to the deceased girl from her back side. Ex.A.3 MVI Report goes to show that the accident was not due to any mechanical defects of the accident bus. Ex.A.2 Postmortem report goes to show that the deceased girl died due to the injuries received in road accident. Therefore, in view of the above discussion, without any hesitation it can be held that this accident took place due to rash and negligent driving of the accident bus by the 1st respondent, resulting in death of the deceased girl.

Accordingly, this issue is answered.

10. ISSUE No.2:

Admittedly, 1st petitioner is the mother and 2nd petitioner is the father of deceased. Therefore, certainly, the petitioners are entitled to claim compensation on account of sudden death of their deceased girl due to the injuries received in the accident.

11. As per petition averments, the deceased girl in this case was 4 years old as on the date of accident. As per Ex.A.2 attested copy of First Information Report, she was 3 years old. As per the copy of ration card filed by the petitioners, the date of birth of deceased girl was 05.07.2014. So, the deceased was 3 years old as on the date of accident. There is no serious dispute with regard to the age of deceased girl.

…..7….. MVOP No. 18/2018, dt. 28.12.2018 MACT- cum -1 st ADJ Court, Srikakulam.

12. The learned counsel for the petitioners relied on a decision of the Honourable Apex Court in a case in Kishan Gopal and another Vsl. Lala and others" reported in "2013 ACJ 2594", wherein, the Honourable Apex Court taking into consideration of drastically falling rupee value, assessed the notional income of the deceased boy of 10 years at Rs.30,000/- per annum and adopted the multiplier of 15 and allowed Rs.4,50,000/- plus Rs.50,000/- under conventional heads towards loss of love and affection, funeral expenses and last rites and totally awarded Rs.5,00,000/-.

13. It is the contention of the learned counsel for the 3rd respondent/ insurer that the above judgment of Honourable Apex

Court relied upon by the learned counsel for the petitioners is not applicable to the facts of the present case because in that the deceased boy was 10 years old and he was assisting his father in agricultural work but in the instant case the deceased was girl was only aged 3 years. It is further case that even though 1st petitioner-

PW.1 during her cross-examination stated that the deceased was studying LKG in the convent and they paid fee to the said convent, admittedly she did not file any receipt to that effect and therefore no prospects can be expected from the said deceased minor girl. He relied on a decision of the Honourable High Court of Karnataka in between "The New India Assurance Co. Ltd., Vs Sri Ramakanth

and another" in MFA.NO.3924/2015 (MV) decided on '06th day

of March, 2017' and contended that the Honourable High Court of

Karnataka reduced the compensation of Rs.5,00,000/- to

Rs.3,75,000/- for the death of 4 years girl by following the decision of …..8….. MVOP No. 18/2018, dt. 28.12.2018 MACT- cum -1 st ADJ Court, Srikakulam.

Honourable Apex Court between "R.K. Malik and another Vs. Kiran

Pal and others" reported in "2009 ACJ 1924"

14. In the case of "The New India Assurance Co. Ltd., Vs

Sri Ramakanth and another" the Honourable High Court of

Karnataka held at para '8' that:

"The Tribunal relying upon the judgment of the Hon'ble

Supreme Court in KISHAN GOPAL case has awarded global compensation of Rs.5,00,000/- for the death of minor daughter. The facts in KISHAN GOPAL case and the facts in the case on had are entirely different. In the instant case, the deceased was aged about 4 years. Hence, the judgment relied upon by the Tribunal is not applicable to the facts of the present case."

15. Since the deceased girl herein was 3 years only, by following the decision in between "The New India Assurance Co.

Ltd., Vs Sri Ramakanth and another", this Tribunal is of the view that it is just and reasonable to award the petitioners a sum of

Rs.3,75,000/- towards compensation for the death of their deceased daughter aged 3 years. Thus, the petitioners are entitled to

Rs.3,75,000/- towards compensation.

16. Now coming to the liability aspect, the petitioners filed the insurance policy copy in respect of the accident bus, which is marked as Ex.A.6. There is no dispute about the insurance coverage of the accident bus with the 3rd respondent as on the date of accident. It is only the case of 3rd respondent that the 1st respondent has no valid and effective driving licence to drive the accident bus as on the date of accident. Except self serving statement, 3rd respondent did …..9….. MVOP No. 18/2018, dt. 28.12.2018 MACT- cum -1 st ADJ Court, Srikakulam.

not choose to examine any witness from RTA Office to prove that 1st respondent has no valid and effective driving licence. Ex.A.3 MVI

Report goes to show that the 1st respondent-bus driver has valid driving licence to drive the accident bus as on the date of accident.

Therefore, respondents 1 to 3, being the driver, owner and insurer of the accident bus are jointly and severally liable to pay the compensation awarded to the petitioners.

Accordingly, this issue is answered.

17. ISSUE No.3:

In the result, the petition is allowed in part granting compensation of Rs.3,75,000/- (Rupees three lakhs and seventy five thousand only) to the petitioners together with proportionate costs of the petition and subsequent interest at the rate of 7.5% per annum from the date of petition i.e., 08.12.2017 till the date of realization.

Respondents 1 to 3 jointly and severally are ordered to deposit the said amount into Tribunal within one month from the date of this order.

Out of the awarded compensation amount, an amount of

Rs.2,25,000/- is apportioned to the share of 1st petitioner/mother and the remaining amount of Rs.1,50,000/- is apportioned to the share of 2nd petitioner/father. Soon after the amount is deposited into Tribunal, the petitioners are permitted to withdraw the entire amounts apportioned to their respective shares along with accrued interest thereon.

…..10….. MVOP No. 18/2018, dt. 28.12.2018 MACT- cum -1 st ADJ Court, Srikakulam.

The petitioners are directed to deposit the deficit court fee of

Rs.2180/- and the office is directed to issue certified copy of decree to the petitioners only after deposit of the said deficit court fee into

Tribunal.

Advocate fee is fixed at Rs.4,000/-. (Rupees four thousand only)

Typed to my dictation, corrected and pronounced by me in open court, this the 28th day of December, 2018.

Chairman, Motor Accidents Claims Tribunal –cum- 1st Addl. District Judge, Srikakulam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioners For Respondents:

PW.1: Pragada Sailaja NONE

DOCUMENTS MARKED

For petitioners:

Ex.A.1/ 31.08.2017 : Attested copy of First Information Report in Crime No. 75/2017 of Tekkali police station.

Ex.A.2/ ..... : Attested copy of Postmortem certificate of the deceased. Ex.A.3/ .. : Attested copy of Motor Vehicles Inspector

Report.

Ex.A.4/ : Attested copy of Inquest Report.

Ex.A.5/ : Attested copy of charge sheet

Ex.A.6/ : Insurance policy copy in respect of accident bus.

For Respondents NIL

Chairman, Motor Accidents Claims Tribunal –cum- 1st Addl. District Judge, Srikakulam.

…..11….. MVOP No. 18/2018, dt. 28.12.2018 MACT- cum -1 st ADJ Court, Srikakulam.