Sri B. Sivanagi Reddy

SESSIONS CASE NO.10/2011 Page No.1

IN THE COURT OF SPL.JUDGE FOR ELECTRICITY ACT CASES -

CUM – I ADDITONAL SESSIONS JUDGE, ONGOLE.

Present: Sri B.Siva Nagi Reddy, B.Sc., LL.M,

Spl.Judge for Electricity cases-cum-I Addl. Sessions Judge, Ongole

Thursday, this the 22nd day of March, 2012.

SESSIONS CASE NO.10/2011

Between :

State : Inspector of Police, Vigilance & Anti Power Theft Squad, APSPDCL, Ongole.Complainant

And

1.Panuganti Ranga Rao S/o.Galaiah,24 years, Caste by Rajaka, Near Big Mosque, Sunnipenta, Kurnool District 2.Mendraguthi Bala Venkateswara Rao @ Balu S/o.Rosaiah, 29 years, Caste by Erukala, Nallaguntla Village, Dornala Mandal, Prakasam District 3.Nallabothula Hari Babau @ Babu S/o.Ramulu, 24 years, Caste by Erukala, Sundaraiah Colony, Dornala,Prakasam District 4.Mata Mallikarjuna @ Malli S/o.Subba Rayudu, 19 years, Caste by Erukala, Near Anjaneya Swamy Temple, Sunnipenta, Kurnool District 5.Mata Subbarayudu S/o.Bushaiah, 50 years, Caste by Erukala,

Near Anjaneya Swamy Temple, Sunnipenta, Kurnool District .. Accused

This Sessions Case came on 13.3.2012 for final hearing before me in the presence of the Addl. Public Prosecutor for State/Complainant and Sri K.Subrahmanyam, Advocate for the accused, on perusal of material on record and upon hearing the counsel for both parties, this Court pronounced the following:

// JUDGMENT//

1.The Inspector of Police, Vigilance and Anti Power Theft Squad (V & APTS) P.S.,

Andhra Pradesh State Power Distribution Corporation Limited (APSPDCL) filed charge sheet against A1 to A5 in Cr.No.2396/2009, for the offence U/Sec.136 of Electricity

Act, 2003 (hereinafter, “the Act”).

As per the case of prosecution, on the intervening night of 24.7.2009 some unknown offenders broke SS-6, 25 KVA DTR Transformer situated in the fields

Thangedumalli village of Santhamagulur Mandal and committed theft of copper winding wire worth Rs.48,000/-. On information given by P.W.6 Muppalla Sivaramaiah, a villager of Thangedumalli, P.W.5 Thaniparthy Subbareddy, lineman of Chavalapalem village, visited the scene of offence and later on, gave Ex.P5 report along with Ex.P6 report of P.W.6 to P.W.4 Javvaji Nataraj, the Assistant Engineer APSPDCL,

Santhamagulur, who in turn visited the scene of offence and gave Ex.P7 report along with Exs.P5 and P6 reports to P.W.8 Sk.Bilaluddin, the Inspector, V & APTS P.S.,

SESSIONS CASE NO.10/2011 Page No.2

APSPDCL, Ongole, who in turn registered a case in Cr.No.2396/2009 U/Sec.136 of the

Act of his station and submitted Ex.P10 original FIR to the Court and copies of the same to all concerned officers and examined P.Ws.4 and 5 in the police station.

Thereafter, he went to the scene of offence, whereat he examined P.W.6 and prepared

Ex.P11 rough sketch of the scene of offence. The prosecution is alleging that on credible information on 17.12.2009 P.W.7 D.Prakasarao, the then Sub Inspector of

Tadivaripalli P.S., along with P.W.2 K.Narasimharao and P.W.3 U.Kotireddy, L.W.8

M.Muralikrishna the Sub Inspector of Police, Marripudi P.S., and L.W.9 N.Srikantha

Babu, Sub Inspector of Police, Medarametla P.S., went to Thummalacheruvu cross- roads by 1.00 p.m., whereat he arrested A1 to A5 and interrogated them in the presence of mediators. A1 to A5 confessed this offence and other offences and stolen properties concerning to Cr.Nos.67 and 70 of 2009 of T.V.Palli P.S., were recovered from them under cover of mediatornama, duly attested by mediators. Ex.P8 is the certified copy of the said panchanama. A1 to A5 also confessed that they sold the copper wires in the shop of P.W.1 Syed Mahaboob Basha alias Soda Basha at

Sunnipenta of Kurnool District. In pursuance of the confession, P.W.7 took A1 to A5 to the house of A1 at Sunnipenta, whereat A1 brought out two gunny bags containing aluminum wires and 8 copper blocks. A1 stated from which places those properties were stolen. P.W.7 got weighed the gunny bags and copper blocks and noted their weights in panchanama. As per the confession of A1 to A5, P.W.7 came to know that those properties were relating to Cr.Nos.87/2009, 112/2009 of Ballikurava P.S.,

Cr.No.75/2009 of Marripudi P.S., Cr.No.113/2009 of Konakanamitla P.S.,

Cr.No.202/2009 of Addanki P.S., Cr.No.181/2009 of Podili P.S., Cr.Nos.121/2009 and 126/2009 of Konakanamitla P.S., Cr.No.215/2009 of Addanki P.S., and seized those properties under cover of a panchanama duly signed by himself, two other Sis', mediators and A1. Ex.P9 is the certified copy of the said panchanama. P.W.7 arrested and sent A1 to A5 to the judicial custody In Cr.Nos.67 and 70/2009 of T.V.Palli P.s., and handed over the properties to the concerned SHOs'. On 18.12.2009 P.W.8

Sk.Bilaluddin, the then Inspector of Police, V & APTS P.S., Ongole, received information about the arrest of A1 to A5 and their confession before P.W.7 about many

SESSIONS CASE NO.10/2011 Page No.3

offences including this offence, obtained copies of Exs.P8 and P9 and thereafter he collected mediators – P.W.2 K.Narasimharao and P.W.3 U.Kotireddy –, went to the shop of P.W.1 at Sunnipenta whereat he examined and recorded the statement of

P.W.1 and seized 20 Kilos of scrap of copper wire which is the stolen property of cases relating to Addanki P.S., and other police stations and seized the said scrap under cover of Ex.P12 panchanama. P.W.1 stated that A1 to A5 sold the said scrap wire to him. Thereafter, P.W.8 obtained P.T. Warrants against A1 to A5 from this Court and sent them to judicial custody in this case. As per P.W.8, 2 ½ Kgs of copper wire scrap is relating to this case. After completion of investigation P.W.8 filed charge sheet.

3.The charge sheet was taken on file against A1 to A5 for the offence U/Sec.136 of Electricity Act.

4.After appearance of A1 to A5 before this Court, copies of charge sheet and documents were furnished to them as provided U/Sec.207 Cr.P.C.,

5.After hearing the additional Public prosecutor and the learned counsel of accused, charges U/Secs.136 (a) and 136 (b) of Electricity Act, 2003 were framed, read over and explained to A1 to A5 in Telugu. A1 to A5 pleaded not guilty and claimed to be tried.

6.To prove its case, prosecution examined P.Ws.1 to 8 and marked Exs.P1 to P12 and M.O.1. Additional Public prosecutor gave up other witnesses.

7.After closure of the prosecution evidence, A1 to A5 were examined

U/Sec.313 Cr.P.C., by explaining the incriminating evidence against them. A1 to A5 denied the evidence and reported no defence evidence.

8.Arguments of Additional Public Prosecutor and learned counsel of the accused are heard.

9.Prosecution is alleging that A1 to A5 broke SS-6, 25 KVA DTR Transformer in the fields of Thangedumalli village and committed theft of winding wire worth

SESSIONS CASE NO.10/2011 Page No.4

Rs.48,000/- and basing on the confessions of A1 to A5, part of that winding wire was recovered from the shop of P.W.1. Whereas, A1 to A5 are denying the same.

10.In view of the rival contentions now the points that arise for determination are :

1) Whether the prosecution proved that A1 to A5 committed theft of copper winding wire from the transformer and sold the same to P.W.1 ?

2) Whether the prosecution proved its case beyond reasonable doubt ?”

11. Point No.1:

P.Ws.4 to 6 in their evidence stated about the theft of copper winding wire from the transformer in the fields of Thangedumalli village and about their giving reports under Exs.P5 to P7. As per the prosecution, P.W.7 arrested A1 to A5 and interrogated them in the presence of mediators P.Ws.2 and 3, whereat A1 to A5 confessed this offence and other offences. P.Ws.2 and 3 in their evidence did not support the case of the prosecution. Signatures of P.W.2 in the meditornamas, dated 16.12.2009, 17.12.2009 and 18.12.2009 are marked as Exs.P2 to P4, whereas P.W.3 is a thumb impressionist. Both of them in their evidence stated that the Inspector enquired them about the theft of copper wire from the transformer of their village and they confirmed the theft and then the Inspector obtained the signatures of P.W.2 and thumb impressions of P.W.3 on a written paper. They were treated as hostile by the prosecution and were cross examined wherein they denied the case of the prosecution.

P.W.7, who arrested A1 to A5, in his evidence supported the case of the prosecution.

P.W.8 is stating that by knowing about the arrest of A1 to A5 by P.W.7 and confession of A1 to A5, he obtained copies of Exs.P8 and P9 and thereafter went to P.W.1 and recovered 20 Kgs of copper wire, alleged to have been sold by A1 to A5 to P.W.1.

P.W.1 in his evidence deposed that he got facial acquaintance with A1 to A5. But he has no acquaintance with them and he never purchased any old articles from A1 to A5.

He was treated as hostile by the prosecution. In the cross examination he denied to the suggestion that he stated to the Sub Inspector of Police, V & APTS P.S., as in Ex.P1, in his Sec.161 Cr.P.C., statement that he used to purchase old aluminum copper wires and that on 22.8.2009 A1 to A5 came to his shop and shown old copper wires and then

SESSIONS CASE NO.10/2011 Page No.5

he enquired them where from they got them. Then they stated that they used to collect pieces of copper wire and old iron articles from the motor winding shops and motor mechanic shops and they came to him to sell old wires and that he purchased the said wires for Rs.5,000/-. As per P.W.8, P.W.1 produced 20 Kgs of scrap copper wire, which he seized under cover of Ex.P12 panchanama in the presence of P.Ws.2 and 3. P.Ws.2 and 3 in their evidence denied the same. As per P.W.8, M.O.1 is the copper scrap wire of 2 ½ Kgs (out of 20 Kgs) relating to this case. Learned Additional Public Prosecutor submitted that A1 to A5 gained over the mediators and so the mediators did not support the case of the prosecution, but the prosecution through the evidence of P.W.7 and 8, proved its case and there is nothing to disbelieve their evidence. He submitted that due to the theft of copper wire from the transformer by A1 to A5, ryoths suffered a lot. He prayed for convicting A1 to A5.

Whereas, learned counsel of the accused submitted that there is no connecting material to show that M.O.1 – 2 ½ Kgs scrap copper wire were the stolen copper wire from the transformer of this case. Both the mediators, in whose presence A1 to A5 said to have confessed this offence and other offences, in their cross examination did not support the case of the prosecution. P.W.1 who was said to have purchased the stolen copper wires from A1 to A5, also did not support the case of the prosecution. In these circumstances, it is not desirable to rely on the evidences of P.Ws.7 and 8 to convict

A1 to A5. He prayed for acquittal of A1 to A5.

12.As rightly contended by learned counsel of A1 to A5, there is no connecting material that M.O.1 is the stolen property of this case. The said M.O.1 was not recovered from the possession of A1 to A5 and it was alleged to have been recovered from P.W.1. As per the case of the prosecution, P.W.1 alleged to have purchased 20

Kgs of copper wire from A1 to A5. The said P.W.1 did not support the case of the prosecution. P.Ws.2 and 3, the mediators who were said to have been present when

A1 to A5 confessed this offence and other offences in the presence of P.W.7, also did not support the case of the prosecution. As both P.Ws.2 and 3 did not support the case of prosecution, the evidence of P.Ws.7 and 8 can not be basis for convicting A1 to A5

SESSIONS CASE NO.10/2011 Page No.6

for the above said offence. Thus, the prosecution failed to prove its case against A1 to

A5.

13. Point No.2:

In the 1st point itself, it is held that prosecution failed to prove its case and so there is no question of proving its case beyond reasonable doubt.

As the prosecution failed to prove its case beyond reasonable doubt, A1 to A5 are found not guilty for the offence U/Sec.136 (a) and 136 (b) of Electricity Act, 2003 and they are entitled for acquittal.

14.In the result, A1 to A5 are found not guilty and they are acquitted for the offence

U/Secs.136 (a) and 136 (b) of Electricity Act, 2003, U/Sec.235 (1) Cr.P.C., Bail bonds of

A1 to A5 shall stand cancelled. M.O.1 shall be returned to the Assistant Engineer,

APSPDCL, Santhamagulur after appeal time. Obtain bail bonds from A1 to A5 to appear before the appellate Court.

Dictated to shorthand writer, transcribed by him, corrected and pronounced by

me in Open Court, this the 22nd day of March, 2012.

Spl.Judge for Electricity cases-cum- I Addl. Sessions Judge, Ongole

Appendix of Evidence

For Prosecution : For Defence : None

P.W.1 Syed Mahaboob Basha @ Soda Basha P.W.2 K.Narasimha Rao P.W.3 U.Kotireddy P.W.4 J.Nataraj P.W.5 T.Subba Reddy P.W.6 M.Sivaramaiah P.W.7 B.Prakasa Rao, the then SI of Police. P.W.8 Sk.Bilaluddin then then Inspector of Police.

Documents Marked

For Prosecution :

Ex.P1 : 161 Cr.P.C., statement of P.W.1 Ex.P2 : Signature of P.W.2 in meditornama, dated 16.12.2009 Ex.P3 : Signature of P.W.2 in meditornama, dated 17.12.2009 Ex.P4 : Signature of P.W.2 in meditornama, dated 18.12.2009 Ex.P5 : Report of lineman given to P.W.4 Ex.P6 : Report of L.W.3 given to P.W.4

SESSIONS CASE NO.10/2011 Page No.7

Ex.P7 : Report of L.W.4 given to police Ex.P8 : C/c of mediatornama, dated 16.12.2009 Ex.P9 : C/c of mediatornama, dated 17.12.2009 Ex.P10:Original FIR Ex.P11:Rough Sketch of the scene of offence Ex.P12:Mediatornama, dated 18.12.2009

For Defence : - Nil-

Material Objects Marked

M.O.1 : Scrap copper wire

Spl.Judge for Electricity cases-cum- I Addl. Sessions Judge, Ongole

SESSIONS CASE NO.10/2011 Page No.8

Calender and Judgment

IN THE COURT OF SPL.JUDGE FOR ELECTRICITY ACT CASES -

CUM – I ADDITONAL SESSIONS JUDGE, ONGOLE.

Present: Sri B.Siva Nagi Reddy, B.Sc., LL.M,

Spl.Judge for Electricity cases-cum-I Addl. Sessions Judge, Ongole

Thursday, this the 22nd day of March, 2012.

SESSIONS CASE NO.10/2011

Between : State : Inspector of Police, Vigilance & Anti Power Theft Squad, APSPDCL, Ongole.Complainant

And

1.Panuganti Ranga Rao S/o.Galaiah,24 years, Caste by Rajaka, Near Big Mosque, Sunnipenta, Kurnool District 2.Mendraguthi Bala Venkateswara Rao @ Balu S/o.Rosaiah, 29 years, Caste by Erukala, Nallaguntla Village, Dornala Mandal, Prakasam District 3.Nallabothula Hari Babau @ Babu S/o.Ramulu, 24 years, Caste by Erukala, Sundaraiah Colony, Dornala,Prakasam District 4.Mata Mallikarjuna @ Malli S/o.Subba Rayudu, 19 years, Caste by Erukala, Near Anjaneya Swamy Temple, Sunnipenta, Kurnool District 5.Mata Subbarayudu S/o.Bushaiah, 50 years, Caste by Erukala,

Near Anjaneya Swamy Temple, Sunnipenta, Kurnool District .. Accused

1.Date of occurrence:24.07.2009 2.Date of Complaint:08.09.2009 3.Date of apprehension of accused:17.12.2009 4.Date of commencement of trial:11.01.2012 5.Date of close of trial:23.02.2012 6.Date of sentence or order:22.03.2012

In the result, A1 to A5 are found not guilty and they are acquitted for the offence U/Secs.136 (a) and 136 (b) of Electricity Act, 2003, U/Sec.235 (1) Cr.P.C., Bail bonds of A1 to A5 shall stand cancelled. M.O.1 shall be returned to the Assistant Engineer, APSPDCL, Santhamagulur after appeal time. Obtain bail bonds from A1 to A5 to appear before the appellate Court.

Explanation for the delay :

On 6.8.2011 this case was taken on file U/Sec.136 of Electricity Act, 2003 in Cr.No.2396/09 of V & APTS P.S., Ongole, and was numbered as S.C.10/2011 and posted the case to 12.9.2011 for appearance of accused. On 29.9.2011 accused appeared before this Court. On 4.11.2011 copies were furnished to the accused. On 18.11.2011 charges were framed and this case was posted for trial. On 11.1.2012 P.Ws.1 to 3 were examined and Exs.P1 to P4 were marked. On 31.1.2012 P.Ws.4 to 6 were examined and Exs.P5 to P7 were marked. On 23.2.2012 P.Ws.7 and 8 were examined and Exs.P8 to P12 and M.O.1 were marked and prosecution evidence was closed. On 2.3.2012 accused were examined U/Sec.313 Cr.P.C., On 13.3.2012 heard arguments. On 22.3.2012 Judgment was pronounced. Hence, the delay.

Spl.Judge for Electricity cases-cum- I Addl. Sessions Judge, Ongole Copy submitted to : The Hon’ble Registrar (Judl.,) Hon’ble High Court of A.P., Hyderabad. Copy to :

1) The Addl.Public Prosecutor, Ongole.

2) The Inspector of Police, V & APTS, Ongole.

SESSIONS CASE NO.10/2011 Page No.9

C.M.A.16/2012 Page No.1

IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE : ONGOLE

Present : Sri B.Siva Nagi Reddy, B.Sc.,LL.M., I Addl.District Judge, Ongole, Thursday, this the 29th day of March, 2012

C.M.A.16/2012

Between :

Nagasuri Ramesh Babu S/o.Ranganadham, aged about 35 years, Hindu,Business, Resident of Tangutur (V) & (M),Prakasam District … Appellant/Petitioner/Plaintiff

And

1.Dogiparthi Venkateswarlu S/o.Not known, aged about 55 years, Hindu 2.Dogiparthi Subbaratnam W/o.Venkateswarlu, aged about 50 years, Hindu, 3.Dogiparthi Krishna Vamsi S/o.Venkateswarlu, Aged about 23 years, Hindu… Respondents/Respondents/Defendants (All are residents of Sivalayam Street, Tangutur (V) & (M) Prakasam District, Presently residing in the house of Ravuri Venkateswarlu as tenants in Rajiv Colony, Tangutur village)

Civil Miscellaneous Appeal filed against the Order and Decretal Order,

dt.30.01.2012 in I.A.567/2011 in O.S.580/2011 on the file of I Additional Junior

Civil Judge, Ongole,

Between

Nagasuri Ramesh Babu S/o.Ranganadham, aged about 35 years, Hindu,Business, Resident of Tangutur (V) & (M),Prakasam District … Petitioner

And

1.Dogiparthi Venkateswarlu S/o.Not known, aged about 55 years, Hindu 2.Dogiparthi Subbaratnam W/o.Venkateswarlu, aged about 50 years, Hindu, 3.Dogiparthi Krishna Vamsi S/o.Venkateswarlu, Aged about 23 years, Hindu … Respondents

This Appeal came on 22.2.2012 for final hearing before me in the presence of Sri A.Radhakrishna Murthy, Advocate for the appellant and Sri R.Sai Babu, Advocate

for the Respondent, on hearing the arguments of counsel for both parties; and having

stood over for consideration till this day, this Court pronounced the following:

J U D G M E N T

01.This Civil Miscellaneous Appeal is filed by the appellant, aggrieved by the Order and Decretal Order,dated 30.01.2012 in I.A.567/2011 in O.S.580/2011 on the file of I

Additional Junior Civil Judge, Ongole, wherein where under his petition for temporary

injunction was dismissed. The petitioner in I.A.567/2011 is plaintiff in O.S.580/2011 whereas respondents herein are the respondents in the I.A and defendants in the suit.

Respondents 1 and 2 are husband and wife, whereas respondent No.3 is their son.

C.M.A.16/2012 Page No.2

The parties will be hereinafter referred as they are arrayed in the I.A., for the sake of convenience.

02. The factual matrix of this case is as follows :

There are A,B & C properties as shown in the plaint plan. The plaint schedule property is X,X1 wall with a width of 18 ft as shown in the plaint plan which is in between B & C schedule properties. A,B & C schedule properties were originally belonged to the family of Jamjam Satyanaryana and his brother Jamjam Subbarayudu.

As per the admitted case the father of the plaintiff purchased A and B marked properties of the plaint plan under a registered sale deed, dated 24.12.1980 from Jamjam

Satyanarayana and his wife Jamjam Chenchamma. (Ex.P1 is the registration copy of the said sale deed) A marked property is a tiled house whereas B marked property is a vacant site. In the said sale deed the boundaries of the A & B schedule properties are mentioned as follows :

East :Side canal of 26' 6” in public road South :Joint wall in between the vacant site of Ex.P1 property and house of Subbarayudu,the joint brother of vendor under Ex.P1 registered sale deed 25' 0” West :Wall in between the tiled house of Ex.P1 and backyard of Jamjam Subbarayudu 25' 0” North :Side canal of the road 20' 0”.

Petitioner constructed a terraced building in A marked property. B marked vacant site is continued vacant site. Respondent No.2 purchased C marked tiled house which is towards south of B marked site and eastern side of A marked house. under a registered sale deed, dated 5.10.1990 fro (1) Jamjam Satyanarayana and (2) his brother Jamjam Subbarayudu and sons of Subbarayudu. Ex.R1 is the registered copy of the said sale deed. As per the said sale deed we can know that Jamjam

Satyanarayana and Jamjam Subarayudu are brothers and they are sons of one

Jamjam Venkata Subbaiah. The boundaries of Ex.R1 property are as follows :

East: Raaza Veedhi South : Raaza Veedhi West : Wall of Ex.R1 property North : Wall of Ex.R1 property

By the date of Ex.R1 the roof of the old tiled house collapsed and there were only

C.M.A.16/2012 Page No.3 walls of the tiled house.

The petitioner is claiming that as per Ex.P1, the southern boundary of B marked property covered by Ex.P1 is joint wall in between his site i.e., B marked property and house property of his vendors brother Subbarayudu covered by Ex.R1. He alleged that recently respondents 1 to 3 wanted to demolish their tiled house and to construct a terraced building in the place of tiled house and they are proclaiming that X,X1 marked wall is not joint wall and that they are the absolute owners of X,X1 marked wall and so they are trying to encroach upon X,X1 wall and they wanted to demolish the same for the purpose of constructing their terraced building by erecting pillars in X,X1 wall and to make it as northern side wall for their proposed terraced building. So, he filed this suit for permanent injunction to restrain the respondents from interfering with the joint possession and enjoyment of X,X1 wall and consequently preventing them from demolishing and erecting pillars in X,X1 wall. Along with the suit he filed I.A.567/2011 for temporary injunction.

3.The said petition was contested by respondents 1 and 2, whereas Respondent

No.3 remained ex parte. Respondent No.2 filed counter and the same was adopted by respondent No.1. In her counter respondent No.2 denied all the allegations of the petition and submitted that she purchased C marked tiled house under Ex.R1 and were living in that house, which was constructed about 50 years ago by the family members of her vendors. She submitted that with an intention to construct a new house in the place of old tiled house, they started removing the old house and at that time the petitioner requested them to construct their house by leaving two feet on the western side of the C marked property. But they did not agree for it. So, the petitioner bore grudge against them. In the recent past when they were not in town, the petitioner encroached the property of them and raised a wall to a height of 3 feet in between B and C marked properties and fixed an iron gate to the northern wall of C marked property, which is the own wall of the respondents. On the next day itself the petitioner filed this petition and obtained status quo orders. She also submitted that on 9.9.2008 the father of the petitioner with respect to northern side wall of them executed an agreement in favour of the 2nd respondent and the same is within the knowledge of the

C.M.A.16/2012 Page No.4 petitioner also. She further submitted that that there is no joint wall for the 4 cents of C marked property and the four walls are their own walls. She prayed for dismissal of the petition with costs.

During the enquiry, the petitioner marked Ex.P1 registered sale deed, dated 24.12.1980, whereas the respondents marked Exs.R1 sale deed and R2, encumbrance certificates. In I.A.567/2011, an advocate Commissioner was appointed and he submitted his report Ex.C1 and rough sketch Ex.C2.

4.After hearing both parties counsel the learned Junior Civil Judge framed the following point for determination as :

“Whether the petitioner is entitled for the relief of temporary injunction as prayed for ?

5.The learned Junior Civil Judge considered the boundaries of Exs.P1 and R1 documents and based on the boundaries in Ex.R1 and the report of the Commissioner, in para Nos.11 & 12 of the impugned order held as:

“11 : The boundaries mentioning the southern side boundary as a joint wall between the house of Jamjam Subbarao (Subbarayudu) and the vacant site is quite doubtful. Further Ex.R1 boundary recitals clearly shows northern side boundary is its own wall. As seen from Commissioner Report and sketch marked as Exs.C1 and C2, the Commissioner mentioned on the northern side top of X,X1 marked wall there is a 6” patti for the purpose of tiled Roof churu. He also found 2 wooden pegs 4” x 4” projected up to 6” from the X,X1 wall which shows that there was a roof on the wall in the recent past. The Commissioner report further shows that there is a galli between disputed wall and the B marked property with a newly built wall of the petitioner with iron gate, which appears that it was built recently. Therefore, the Commissioner report supports the version of Respondents that the petitioner made the said galli before filing the suit.

12 : The doubt arise before this Court is that mentioning a joint wall for a vacant site is not common. Ex.C1 also established that the roof of removed tiled house of Respondents was on the X,X1 wall. Further, the petitioner putting a gate, which is built recently according to Ex.C1 it is built just before filing the suit, is also doubtful. In these circumstances protecting the petitioner under the roof of injunction when there is no balance of convenience in favour of the petitioner to show that X,X1 marked wall is a joint wall of both petitioner and the Respondents is not safe. Hence, this Court is inclined to dismiss the petition” and dismissed the petition and ordered that both parties do bear their own costs.

6.Aggrieved by the said impugned order and decree, the petitioner filed this CMA mainly on the grounds that (1) the trial Court failed to consider the very scope and object of the suit of the injunction petition and the dismissal of the petition will

C.M.A.16/2012 Page No.5 jeopardize the very purpose of filing of the suit and (2) the trial Court failed to appreciate the documentary evidence properly.

7.Arguments of both parties counsel are heard.

8.Now the points that arise for consideration are :

“1. Whether the petitioner is having primafacie case that X,X1 marked wall is a joint wall ?

2. Whether the balance of convenience is in favour of the petitioner ?

3. To what relief ?”

9. Point No.1:

In Ex.P1 registered sale deed, the boundaries of A and B marked properties were mentioned. A & B marked properties are not contiguous properties. But, surprisingly, the boundaries were mentioned for both the properties. The southern boundary is relevant for this case, which is shown as joint wall in between the vacant site of Ex.P1 property and the house of Jamjam Subbarayudu. Under Ex.R1 registered sale deed, the 2nd respondent purchased the house of Jamjam Subbarayudu from the said Jamjam

Subbarayudu, his sons and brother Jamjam Satyanaryana. In Ex.R1, the northern boundary is shown as the wall of Ex.R1 property. Ex.P1 is registered sale deed, dated 24.12.1980 whereas Ex.R1 registered sale deed is dated 5.10.1990. By the date of both the documents, properties of Jamjam Satyanarayana and Jamjam Subbarayudu were joint. Both of them are the vendors under Ex.R1. As Ex.P1 is earlier in point of time to Ex.R1, we have to give more weight to the boundaries given in Ex.P1. Then, we can conclude that there was joint wall in between B & C marked properties i.e., X,X1 wall claimed by the petitioner-plaintiff. Even the Commissioner found the said wall was intact. The respondents-defendants are intending to demolish the wall and to construct a terraced building, the petitioner-plaintiff wants to keep that wall as boundary to B & C properties of the plaint plan. If the said wall is demolished, the very purpose of the suit will be defeated. In view of the documentary evidence i.e., Ex.P1 registered sale deed,

dated 24.12.1980, we can conclude that the petitioner is having prima facie case that

X,X1 wall is a joint wall of himself and respondents.

C.M.A.16/2012 Page No.6

10. Point No.2 :

If injunction is not granted, the respondents-defendants will demolish the joint wall and the very purpose of the suit of the petitioner-plaintiff will be defeated and the petitioner will suffer irreperable loss. Thus, the balance of convenience is in favour of the petitioner and against the respondents. As the prima facie case and the balance of convenience are in favour of the petitioner, the petitiner-plaintiff is entitled for injunction.

I am of the opinion that the trial Court ought to have given more weight to the recitals of Ex.P1 which is earlier in point of time to Ex.R1. Instead, the trial Court given preference to Ex.R1. In view of the above said finding, I hold that during the pendency of the suit, the petitioner is entitled for temporary injunction as prayed for and this Civil

Miscellaneous appeal has to be allowed and the impugned order has to be set aside and I.A.567/2011 in O.S.580/2011 on the file of I Additional Junior Civil Judge, Ongole has to be allowed .

11.In the result, this Civil Miscellaneous Appeal is allowed and the order, dated 30.01.2012 in I.A.567/2011 in O.S.580/2011 on the file of I Additional Junior Civil Judge,

Ongole is set aside and the said I.A. is allowed. Respondents-defendants 1 to 3 are restrained by means of temporary injunction from demolishing X,X1 wall as shown in the plaint plan, till the disposal of the suit. The Junior Civil Judge is directed to dispose the suit without being prejudiced by the observations made in this Civil Miscellaneous

Appeal.

Dictated to the shorthand writer, transcribed by him, corrected and pronounced

by me in Open Court, this the 29 th day of March, 2012.

IAddl. District Judge, Ongole,

C.M.A.16/2012 Page No.7

Crl.Appeal 41/2012 Page No.1

IN THE COURT OF THE SESSION : PRAKASAM DIVISION : ONGOLE

(BEFORE I-ADDITIONAL DISTRICT & SESSIONS JUDGE, ONGOLE )

Present: Sri B.Siva Nagi Reddy, B.Sc., LL.M., I - Addl. Sessions Judge, Ongole, Wednesday, this the 28th day of March, 2012.

Crl.Appeal 41/2012

(C.C.199/2011 of II Addl.Judicial I Class Magistrate, Ongole)

Between :

From what Court the appeal is :II Addl.Judicial I Class Magistrate, preferred Ongole

No. of case in lower Court :C.C.199/2011 No. of case in Appeal :Crl.Appeal 41/2012 Name & Description of the AccusedMallothi Naveen S/o.Jogya Naik, aged about 23 years, Lambadi by Caste, resident of T.K.Thana, Chennaraopet Mandal, Warrangal District (A2)

Name & Description of the State : Sub Inspector of Police, Ongole II complainantTown P.S., Represented by Public Prosecutor, Ongole

The sentence under which it was : In the lower Court accused is found imposed guilty for the offence punishable U/Sec.411 IPC and is convicted U/Sec.248 (2) to undergo simple imprisonment for one year. The remand period, if any, shall be given set off U/Sec.428 Cr.P.C.,

Whether confirmed, reversed or :Modified modified, if modified the modification In the result, this Criminal Appeal is partly allowed confirming the finding that Appellant/A2 is guilty for the offence U/Sec.411 IPC and conviction for the said offence in Judgment, dated 10.10.2011 in C.C.199/2011 on the file of II Additional Judicial I Class Magistrate, Ongole. But, the sentence is reduced from simple imprisonment of one year to the period of imprisonment already undergone by the appellant/A2. In this case A2 is in judicial custody from 12.3.2011tillthisday.The Superintendent, District Jail, Ongole, is directedtoreleasethis petitioner/Appellant-A2 if he is not required in any other case.

Date of Presentation :24.01.2012 Date of Filing :24.01.2012 Date of notice issued by Court to :12.03.2012 the Appellant Appellants ordered to be appeared :15.03.2012 Date of Hearing :22.03.2012 Date of Judgment :28.03.2012

Crl.Appeal 41/2012 Page No.2

This criminal appeal came before this court on 22.03.2012 for final hearing

before me, upon perusal of the grounds of appeal and record of evidence and

proceedings upon duly considering the same after hearing the arguments of Sri M.Krishna Rao, Advocate for accused and Addl.Public Prosecutor for State/Complainant/Respondent, having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

01.This Criminal Appeal is filed by the Appellant-A2 aggrieved by conviction and sentence imposed against him by Judgment, dated 10.10.2011 in C.C.199/2011 on the file of II Addl.Judicial I Class Magistrate, Ongole, wherein where under he was convicted and sentenced to undergo simple imprisonment for one year for the offence punishable U/Sec.411 IPC. The appellant will be hereinafter referred as A2.

02.The factual matrix of this case is as follows :

P.W.1 Dasari Sudhakar, who is working as Credit Officer in an Organization called as Spandana. He purchased M.O.1 Hero Honda Splendor Motorcycle bearing registration No.AP-16/BB-5623 from P.W.3 K.Dasaradha Ramaiah. After returning from work on 30.11.2011, he kept the motorcycle in the warandah of the office and slept along with P.W.2 Daddu Ramesh inside their office. On 1.12.2011 at 6.00 a.m., P.W.1 came out of the room and noticed that his motorcycle was stolen by some unknown offenders. Then he gave Ex.P1 report to police on 25.1.2011, basing on which, P.W.6 A.

Prabhakar, Head Constable 489 of Ongole I Town P.S., registered a case in

Cr.No.17/2011 for the offences U/Secs.457 and 380 IPC., submitted Ex.P3 original FIR to the Court and copies of the same to all concerned officers and examined the witnesses. Later on he went to the scene of offence and prepared Ex.P4 rough sketch of the scene of offence. Thereafter, P.W.7 M.Madhu Babu, the then Sub Inspector of

Police, Ongole II Town P.S., took up investigation. In the meanwhile P.W.5 K.Sravan

Kumar, the then Inspector of Police, Gudiwada Circle, on credible information along with mediators L.W.4 Md. Harish Basha, VRO of Gudiwada Urban and P.W.4 Y.V.Rama

Gopal VRO of Gudiwada, and his staff went to Bantumilli road of Gudiwada, found A1 and A2 in suspicious circumstances along with M.O.1 motoryccle. On enquiry by P.W.5,

A1 and A2 confessed that they committed theft of M.O.1 and also committed other offences. M.O.1 was seized from A1 and A2 under cover of original of Ex.P2

Crl.Appeal 41/2012 Page No.3 panchanama, duly signed by mediators and P.W.5. Thereafter, P.W.5 came to know that

M.O.1 is relating to Cr.No.17/2011 of Ongole II Town P.S., and handed over it to the

SHO of Ongole II Town P.S., Thereafter, after completion of investigation P.W.7 filed charge sheet against A1 and A2 for the offences U/Secs.457, 380 or 411 IPC.

3.After production of A1 and A2 before the Court, the Magistrate furnished copies of charge sheet and documents to them as provided U/Sec.207 Cr.P.C., The Magistrate framed charges U/Secs.457 and 380 or 411 IPC., against A1 and A2. When the charges were read over and explained, A1 and A2 pleaded not guilty and claimed to be tried.

4.To prove its case, prosecution examined P.Ws.1 to 7 and marked Exs.P1 to P4 and M.O.1.

5.After closure of the prosecution evidence, the learned Magistrate examined the accused under Sec.313 Cr.P.C., by explaining the incriminating evidence against them.

A1 and A2 denied the evidence and reported no defence evidence.

6.After hearing the arguments of both sides, the learned Magistrate framed the following point for consideration as:

“Whether the prosecution has proved its case beyond reasonable doubt for the offence punishable U/Sec.457 and 380 or 411 IPC against A1 and A2 and whether A1 and A2 are liable for punishment for the above said section of law?”

After appreciating the evidence, the learned Magistrate held that prosecution failed to establish the ingredients of Secs.457 and 380 IPC., but proved the ingredients of Sec.411 IPC. Then the Magistrate had taken the aid of presumption of Sec.114-A of

Indian Evidence Act to presume that A1 and A2 are either thieves of M.O.1 motorcycle or receivers of stolen property and as A1 and A2 failed to explain for possession of

M.O.1, found A1 and A2 are guilty for the offence U/Sec.411 IPC., and acquitted them for the offences U/Secs.457 and 380 IPC., U/Sec.248 (1) Cr.P.C., After hearing with regard to the quantum of sentence, the Magistrate convicted and sentenced A1 and A2 to undergo simple imprisonment for a period of one year for the offence U/Sec.411

Crl.Appeal 41/2012 Page No.4

IPC., The Magistrate ordered for set off the remand period of A1 and A2 and further ordered that M.O.1 shall be returned to P.W.3, its owner, after expiry of appeal time.

7.Aggrieved by the said conviction and sentence, A1 filed Criminal Appeal

No.213/2011. This Court by Judgment, dated 13.1.2012 partly allowed that appeal by confirming the finding and conviction of A1 for the offence U/Sec.411 IPC of the II

Additional Judicial Magistrate of I Class, Ongole, in the impugned Judgment, dated

10.10.2011 in C.C.199/2011, but reduced the sentence to period of imprisonment already undergone by A1.

8.This appellant-A2 filed this appeal on 30.1.2012 along with Crl.M.P.21/2012 to condone delay of 76 days in filing this appeal. That petition was allowed by the Principal

Sessions Judge, by order, dated 7.3.2012. Thereafter, this appeal was numbered on

9.3.2012 and was made over to this Court.

9.Arguments of learned counsel of accused and Additional Public Prosecutor are heard.

10.Learned counsel of the accused submitted that this accused is in judicial custody from 29.1.2011 till today. He prayed for ordering of set off period of remand from the period of imprisonment. Whereas, the Additional Public Prosecutor submitted that the accused is not entitled for any mercy and prayed for dismissal of the appeal.

11.This Court by Judgment in Criminal Appeal No.213/2011 confirmed the finding of guilty and conviction of A1 U/Sec.411 IPC of the trial Court, but reduced the sentence to the period of imprisonment already undergone by him. This appellant-A2 is also on the same footing. As in C.A.213/2011, in this appeal also this Court is confirming the finding that A2 is guilty and his conviction for the offence U/Sec.411 IPC in Judgment,

dated 10.10.2011 in C.C.199/2011 on the file of II Additional Judicial I Class Magistrate,

Ongole but reducing the sentence to the period of imprisonment already undergone by him. As per the conviction warrant, A2 is in judicial custody from 12.3.2011 to 10.10.2011. Even though he was given set off, the Jail authorities did not give set off the period of imprisonment already undergone by A2 from 12.3.2011 to 10.10.2011, the

Crl.Appeal 41/2012 Page No.5 date of conviction, as this appellant-A2 was convicted in other cases and there is no order that the sentences in other cases shall run concurrently along with this case. As already stated that the petitioner is in judicial custody in this case from 12.3.2011. Thus, he already undergone the sentence imposed by the trial Court in Judgment in

C.C.199/2011 on the file of II Additional Judicial Magistrate of I Class. In these circumstances, the sentence of this appellant-A2 is reduced to the period of imprisonment already undergone by him.

12.In the result, this Criminal Appeal is partly allowed confirming the finding that

Appellant/A2 is guilty for the offence U/Sec.411 IPC and conviction for the said offence in Judgment, dated 10.10.2011 in C.C.199/2011 on the file of II Additional Judicial I

Class Magistrate, Ongole. But, the sentence is reduced from simple imprisonment of one year to the period of imprisonment already undergone by the appellant/A2. In this case A2 is in judicial custody from 12.3.2011 till this day. The Superintendent, District

Jail, Ongole, is directed to release this petitioner/Appellant-A2 if he is not required in any other case.

Dictated to the shorthand writer, transcribed by him, corrected and pronounced

by me in Open Court, this the 28th day of March, 2012.

I ADDL. SESSIONS JUDGE,

ONGOLE.