Shri. B. Syam Sunder

Page No.1 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

IN THE COURT OF THE METROPOLITAN SESSIONS JUDGE,

VIJAYAWADA.

PRESENT:- SRI B.SYAMSUNDER,

METROPOLITAN SESSIONS JUDGE.

Monday, this the 11th day of April, 2022

CRIMINAL APPEAL No.167 OF 2018

C.C.No.236/2016 ON THE FILE OF VII METROPOLITAN MAGISTRATE-

CUM-JUNIOR CIVIL JUDGE, VUYYURU

1.Name and descriptionThungala Pradeep Kumar, S/o.China of theAppellant/Ramaiah, Hindu, Aged 32 years, AccusedR/o.Near Kapula Ramalayam, Vuyyuru village and mandal, Krishna District.

2.Name and descriptionThe State: SI of Police, Vuyyuru Town of the RespondentPolice Station, Vijayawada City, Rep. by its Addl.Public Prosecutor, MSJ Court, Vijayawada.

3.Sentence and orderThe accused is found guilty for the and the Law underoffence punishable U/s.338 IPC and which it was imposedSection 134 (a) & (b) r/w.187 of M.V.Act. Accordingly he is convicted for the said offences U/s.255(2) Cr.P.C. and the accused is sentenced to stand till the rise of the Court and alsodirectedtopayvictim compensation of Rs.20,000/- on or

before 28.06.2018 for the offence

U/s.338 IPC. In default, he shall undergo simple imprisonment for a period of Three months. The accused is further sentenced to pay a fine of Rs.100/-each for the offence U/s. 134

(a) & (b) r/w.187 of M.V.Act.

4.Whethermodified,

Reversed

confirmed,or reversed. If modified, thedetailsof modification.

5.Presentation of the17-07-2018 Appeal.

6.Filing of the appeal17-07-2018

7.Date of hearing21-03-2022

8.Date of Judgment11-04-2022

Page No.2 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

This appeal coming before me for final hearing on 21-03-2022 in the presence of Sri M.Venkateswara Rao, Advocate for Appellant/ Accused and of Sri V.Rajendra Prasad, Addl., Public Prosecutor for respondent/State, and upon hearing arguments on both sides and upon perusing the grounds of appeal and other connected material papers on record and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This Criminal appeal is filed under Section 374 of Criminal Proce- dure Code is directed against the Judgment, dt.18.06.2018 passed in

CC.No.236/2016 by the learned Junior Civil Judge-cum-VII Metropolitan

Magistrate, Vuyyuru wherein and whereby the appellant/ accused was

found guilty for the offences punishable U/s.338 of Indian Penal Code (in short IPC) and sentenced to stand till rising of the Court and also di- rected to pay compensation of Rs.20,000/- to the victim. In default, to undergo simple imprisonment for a period of Three months and also sentenced to pay a fine of Rs.100/-each for the offences punishable U/ s.134 (a) & (b) r/w.187 of M.V.Act.

2)The accusation which lead to the trial of the appellant/accused is that 03.04.2016 at 6.30 p.m the accused being driver of motor cycle bearing No.AP 16 BE 3646 driven the vehicle in a rash and negligent manner and dashed PW.2 Akbar Khan and caused grievous injuries to him and the accused also failed to inform the incident to the police people and failed to provide first aid to the injured.

3)The appellant hereinafter will be referred to as accused as arrayed

before the trial Court.

4)The case of the prosecution projected in brief, as unfolded during the course of trial is as follows:-

Page No.3 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

On 03.04.2016 being Sunday, PW.2 Akbar Khan, PW.3 N.Datha

Raghunandhan, PW.4 L.Visal went to ground to play a cricket and in the evening they were returning to the house on motorcycle bearing No.AP 16 CK 0015 driven by PW.3 N.Raghunandhan. It is alleged that when

PWs.2 to 4 were proceeding on their motorcycle at about 6.30 p.m., evening the accused being rider of motorcycle bearing No.AP 16 BE 3646 along with PW.5 R.Srinivas came in opposite direction in drunken state on road opposite to Excise police station in a rash and negligent manner without blowing horn, dashed the motorcycle, wherein PWs.2 to 4 were proceeding due to that PWs.2 to 4 fell down on the road and

PW.2 sustained grievous injuries, which also witnessed by LW.5

S.Narayana Murthy. Then immediately after the accident, PW.1 father of PW.2 came there and shifted the injured to hospital at Vijayawada.

On receiving hospital intimation, PW.9 Head Constable of Penamaluru police station came and recorded the statement of PW.1 on 04.04.2016 mid night and forwarded the same to PW.8 Station House Officer,

Vuyyuru Town PS who received the same on 04.04.2016 at 11.00 a.m., and registered the case against rider of motorcycle bearing No.AP 16 BE 3646 for the offence punishable U/s.338 IPC. After that PW.10 Assistant

Sub Inspector of police took up further investigation who visited the scene of offence, where he prepared rough sketch and also recorded the statements of PWs.1 to 4, LW.5 S.Narayana Murthy and PW.5

R.Srinivas. Then, PW.7 Medical Officer who treated PW.2 issued wound certificate with an opinion that PW.2 sustained grievous injuries and on request by the Station House Officer, PW.6 Motor Vehicle Inspector inspected the motorcycle bearing No.AP 16 BE 3646 and issued Ex.P2 report. Then on 20.04.2016 at 10.00 p.m., PW.10 Assistant Sub

Inspector of police arrested the accused and released him on bail and

Page No.4 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

after receiving wound certificate and after completion of usual investigation, PW.11 SI of police filed charge sheet against the accused.

5)In order to prove the guilt of the accused, the prosecution ex- amined PWs.1 to 11 and got marked Exs.P1 to P6. On behalf of de- fence, the accused himself examined as DW.1 and Ex.D1 portion of Sec- tion 161 Cr.P.C statement of PW.2 marked in his cross-examination and

Ex.D2 copy of SSC certificate of PW.3 marked in the evidence of ac- cused who is examined as DW.1. (The learned trial Judge failed to note in the Judgment and also in the appendix of evidence with regard to ex- amination of the accused as DW.1 though stated that Exs.D1, D2 marked on behalf of defence)

6)After conclusion of trial, the learned trial Judge found the accused guilty for the offence punishable U/s.338 IPC and U/s.134 (a) & (b) r/ w.187 of M.V.Act and accordingly convicted and sentenced him as stated supra.

7)Assailing the correctness of the conviction and sentence imposed by the learned trial Judge, the accused preferred the present criminal.

8) I have heard learned Advocate for the appellant/accused as well as learned Addl., Public Prosecutor who have taken me the entire evidence and findings recorded by the trial Court.

9)The learned Advocate for the appellant mainly contended that the trial Court failed to appreciate the evidence in proper manner and came to erroneous conclusion basing on conjectures, which is not tenable. He submits that prosecution failed to prove that accused was the rider of motorcycle and the evidence of PW.2 shows that he is not a truthful witness who denied triple riding on the motorcycle, where he was

Page No.5 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

proceeding though admitted the same by PW.1, PW.3 and PW.4. He argued that Ex.P2 MVI report shows that PW.6 Motor Vehicle Inspector inspected the vehicle bearing No.AP 16 BE 3646 said to be driven by

Akbar Khan who is PW.2 herein. He further argued that the trial Court not considered the fact that prosecution not examined the owner of the said motorcycle to prove that said vehicle was driven by accused at the time of alleged accident and the trial Court failed to consider Ex.D2 which clearly shows that PW.3 was minor on the date of accident due to that reason only a false case has been foisted against wrong person to claim motor vehicle compensation by the injured. He prays to allow the appeal and acquit the accused.

10)The learned Addl., Public Prosecutor for prosecution mainly contended that the evidence of PWs.2 to 4 an eye witnesses to the accident clearly shows that the accused was the rider of motorcycle who caused the accident and he was in drunken state. He submits that PW.3 and PW.4 have identified the accused in the Court which also can be considered. He prays to dismiss the appeal.

11)In view of the rival submissions and in the facts and circumstances of the case, the point to be determined is:- “Whether the prosecution has proved the case beyond reasonable doubt to bring home the guilt of the accused for the offences punishable U/s.338 of Indian Penal Code and U/ s.134 (a) & (b) r/w.187 of M.V.Act and whether the Judgment of the trial Court is legal, correct and based on the evidence adduced by the prosecution”?

12) POINT:

This is a case of alleged rash and negligent act of the accused which caused grievous injuries to PW.2 and accused said to be rider of motorcycle bearing No.AP 16 BE 3646 failed to inform the same to

Page No.6 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

police and failed to provide medical aid to the PW.2 injured who sustained injuries in the motorcycle vehicle accident.

13)Before going to the merits of the case, it would be beneficial to quote Section 338 of IPC, which reads as under:

“Section 338. Causing grievous hurt by act endangering life or personal safety of others:- Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both”.

14)To prove the offence punishable U/s.338 IPC, the prosecution shall establish:- (1) that the accused committed the act in question; (2) that it was done rashly or negligently; (3) that it was such as to endanger life or personal safety of others; (4) that such act caused grievous hurt to injured.

15)It has been held in catena of decisions of Hon’ble higher Courts that merely because the prosecution proves that the vehicle left the road and met with an accident, there can be no presumption of rash and negligent driving requiring the accused to prove that he has not driven the vehicle in a rash and negligent manner at the time of accident. It is also settled law that every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, said principle forms the basis of criminal jurisprudence. (vide decision in

Babu vs. State of Kerala, (2010) 9 SCC (Criminal) page 189) It is also settled law that suspicion, however grave it may be, cannot take the place of legal proof. It is reiterated by the Hon’ble Apex Court in Sujith

Page No.7 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

Biswas. Appellant vs. State of Assam. Respondent in Criminal Appeal

No.1323/2011, Judgment dated 28.05.2013 that “suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ‘may be’ proved, and something that ‘will be proved’. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof”.

16) The Hon’ble Apex Court in Kamlesh Prabhudas Tanna & Another.

Appellants vs. State of Gujarat. Respondent in Criminal Appeal

No.1517 of 2007, Judgment dated 26.08.2013 explained the duty of appellate Court by referring precedent law, which reads as under:

“It is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate Court in drawing inference from proved and admitted facts. It must be remembered that the appellate Court, like the trial Court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial Court”. [Emphasis supplied]

17)Bearing in mind, the above principles of law enunciated by the

Hon’ble Higher Courts, I shall examine the evidence adduced by the

prosecution in the present case.

18)PW.1 Y.Khan father of the injured, i.e., PW.2 has deposed that on 03.04.2016 at about 6.30 to 7.00 p.m., PW.5 R.Srinivas informed him that PW.2 met with an accident and then immediately he rushed to the place of accident, which is near Church and also nearer to Excise police

Page No.8 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

station, Vuyyuru, but by that time PW.2 was shifted to hospital at

Vijayawada, where he went there and Medical Officer informed that

PW.2 has to undergo surgery who sustained grievous injuries on his face. He deposed that police people came to hospital and recorded

Ex.P1 statement and he came to know through his colleague that accident occurred due to negligence of the accused. In his cross- examination, he admitted that Ex.P1 was lodged before Station House

Officer on the next day of the accident and his son was conscious when he was admitted in the hospital, but not in a position to speak. The said witness is not an eye witness to the occurrence who also admitted that there is a curve near the scene of offence and his son was sitting in the middle seat of the triple riding bike and at that time PW.3 was the rider of motorcycle.

19)PW.2 Akbar Khan who is injured has deposed that on 03.04.2016 at 6.30 p.m., he along with his friend PW.3 Raghunandan were proceeding on motorcycle towards KCP Colony and when they reached near Excise police station the accused came in their opposite direction in a rash and negligent manner on motorcycle bearing No.AP 16 BE 3646 and hit their motor cycle due to that they both fell down and he sustained injuries all over his face and lost his six tooth, his nostril was broken, his left upper jaw was which dislocated and he sustained fracture injury behind left eye. It is the evidence of PW.2 that one

Mr.Sivaji who is their relative called Abdul Subhani to whom informed about the accident who shifted him to Time hospital, Vijayawada. He further deposed that on the next day police people came and tried to examine him but he was not in a position to speak, but he gave signals and informed to police what all happened and he underwent surgery

Page No.9 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

and he was inpatient in the hospital for the period of 15 days. In detailed cross-examination, he deposed that he was shifted to hospital by Mr.Abdul Khadar in his car as there was delay in reaching 108

Ambulance and he was conscious through out 15 days during his stay at hospital and he typed message in his mobile phone to explain manner in which accident occurred to police and also informed the name of the accused and registration number of the offending vehicle. He categorically deposed that he was pillion rider of the motorcycle and he sustained many injuries, whereas rider of motorcycle not sustained any major injuries. He denied the suggestion about portion of statement

before police as in Ex.D1, which is portion of his Section 161 Cr.P.C

statement, wherein he has stated that himself, PW.3, PW.4 were proceeding on motorcycle in triple riding at the time of accident. He categorically admitted that he was not having any licence to drive motorcycle and he does not know whether PW.3 is having any licence or not. He also admitted that there is a curve near the scene of offence and he does not know whether police have examined his relatives by name Abdul Subhani, Abdul Khadar and Mr.Shivaji. He further admitted that both the motorcycles were present at the scene of offence on the date of accident, but he does not know with regard to damages to both vehicles. He categorically denied that himself fell down from the motorcycle as they were proceeding at high speed in triple riding. It is the evidence of PW.2 that PW.4 Visal who is his friend was not on motorcycle at the time of accident. He also admitted that he was not wearing helmet at the time of accident and his face hit PW.3 head which was due to collusion of two bikes and both bikes were damaged in the accident.

Page No.10 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

20)PW.3 N.Datha Raghunandan has deposed that on 03.04.2016 after playing cricket he along with PW.2 and PW.3 were proceeding on motorcycle and then accused came in a rash manner on a motorcycle in drunken state due to that he slowed down his vehicle and crossed the parked lorry due to that he came on the middle of the road and then the accused came in opposite direction and dashed them in spite of they were driving slowly, which happened near Excise police station at

Vuyyuru. He deposed that he tried to avert accident, in spite of it the accused dashed them, as a result of which he fell down on the right side and he also sustained fracture on his right cheek bone and PW.2 sustained fracture of jaws and PW.4 not sustained any injuries. He deposed about registration number of accused vehicle and then

Maternal Uncle of PW.2 came to the scene of offence and shifted PW.2 to private hospital at Vijayawada and he was also shifted to hospital at

Vijayawada by his father and brother. In his cross-examination, he categorically admitted that he was not having any licence to drive motorcycle and he was not wearing helmet and he does not know whether his vehicle is having coverage of insurance policy. He admitted that he remembered the face of the accused on the date of accident, but he came to know that the name of accused as ‘Pradeep’ subsequently. He further admitted that there is curve at the scene of offence and he went to Neuro hospital in the evening hours on the date of accident and vehicle wherein he was proceeding stands in the name of his father.

21)PW.4 L.Visal has deposed that on 03.04.2016 at 6.00 p.m., when himself and PW.2 were standing, then PW.3 stopped his motorcycle, where they both boarded as pillion riders who were proceeding near

Page No.11 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

Excise police station and at that time the accused came in their opposite direction by riding motorcycle along with pillion rider. He further deposed about registration number of accused motorcycle as 3646 and identified the accused in the Court during the course of his evidence. It is the evidence of PW.4 that PW.2 sustained bleeding injuries on the nose and jaws, whereas PW.3 sustained injury on his left cheek, but he has not sustained any injuries. In his cross-examination, he categorically deposed that he does not remember whether accused is the rider of crime vehicle not but he was present at the scene of offence.

22)PW.5 R.Srinivasa Rao has deposed that about two years back, he received phone call from PW.3 phone stating that he met with an accident and asked him to come to the spot and then he went there, by that time PW.3 was bleeding at right cheek having abrasion over the legs and he saw one more motorcycle apart from the motorcycle of

PW.3, which is bearing No.AP 16 3646 and on his enquiry he came to know that one person in a drunken state hit his relative, i.e., PW.3 and then immediately he took PW.3 along with his brother to Government

General hospital, Vuyyuru where first aid was provided and thereafter

PW.3 was shifted to hospital at Vijayawada. In his cross-examination, he deposed that PW.3 was treated at Government General hospital,

Vuyyuru and at the time of his visit to the scene of offence, he has not seen PW.4. He also deposed that he does not know whether PW.3 is a minor or not and admitted that both motorcycles were at the police station when he was examined by the police. He further admitted that he came to know that PW.3 was in triple riding.

Page No.12 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

23)PW.6 J.Narayana Swamy, Motor Vehicle Inspector has deposed that on 20.04.2016 at 4.00 p.m., he received requisition from SI of police, Vuyyuru Town police station to inspect the motorcycle bearing

No.AP 16 BE 3646 and accordingly he inspected the vehicle on the same day at 4.30 p.m., in the police station premises and found damages to the vehicle, which he noted in Ex.P2 report. He deposed that he is of an opinion that accident was not due to any mechanical defects of the vehicle and issued Ex.P2 report. In his cross-examination, he admitted that PW.2 was rider of motorcycle bearing No.AP 16 BE 3646 as per requisition given to him due to that he mentioned in Column No.16 (b) of his report and he has not received any requisition from the police with regard to other motorcycle involved in the accident if any. He admitted that there is every possibility of damages to the vehicle which he noted in Ex.P2 if a person fell down without any other vehicle collusion.

24)PW.7 Medical Officer has deposed about treatment provided to

PW.2 in their hospital on 03.04.2016 at 7.30 p.m., and issued Ex.P3 wound certificate and sent Ex.P4 intimation letter to police. In his cross- examination, he admitted that injuries shown in Ex.P3 are possible if any person fell down from a motorcycle. He admitted that as per Ex.P3 wound certificate, the patient by name Akbar Khan was admitted at 7.50 p.m., on 03.04.2016 who brought by his Uncle Abdul Subhan.

(rank of witness is wrongly recorded by the learned trial Judge as PW.3 instead of PW.2 without mentioning name of the witness).

25)PW.8 Police Head Constable has deposed that on 04.03.2016 he received hospital intimation and Ex.P1 statement of PW.1 from

Page No.13 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

Penamaluru police station and then he registered the case and handed over investigation to PW.10 Assistant Sub Inspector.

26)PW.9 the then Police Constable of Penamaluru police station has deposed that on 04.04.2016 he received hospital intimation from Time hospital, Vijayawada and then he went to the hospital, where he recorded the statement of PW.1 and sent the same to Vuyyuru police station. In his cross-examination, he admitted that he recorded the statement of PW.1 in the presence of Duty Doctor, at that time PW.2 was in Intensive Care Unit, but he has not taken any signature of

Medical Officer in Ex.P1. He deposed that PW.2 was not in a position to talk and he was not in conscious state.

27)PW.10 the then Assistant Sub Inspector of police has deposed that he received FIR from PW.8 Head Constable and recorded the statements of PWs.1 to 3 and then visited the scene of offence, where he prepared rough sketch and recorded the statements of PW.4, PW.5,

LW.5 S.Narayana Murthy and handed over the C.D file to PW.11 SI of police. Ex.P6 rough sketch marked in his evidence. In his cross- examination, he admitted that his investigation shows that PW.1, 2 were in triple riding at the time of accident (Again rank of witness wrongly noted by the learned trial Judge in the deposition). He admitted that he examined PWs.1 to 3 on 04.04.2016 and examined PW.2 at

Intensive Care Unit in the hospital who gave statement with great difficulty, at that time Duty Nurse was present, but he has not taken her signature. He further admitted that PW.2 not conveyed any message by typing in his mobile and PW.2 stated that they were proceeding in triple riding at the time of accident and he also not enquired whether PW.2 was minor or major. He deposed that he visited

Page No.14 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

the scene of offence in the evening hours on the date of examination of

PWs.1 to 3, by that time he found both the vehicles, but he has not given requisition to PW.6 Motor Vehicle Inspector to inspect PW.3 Motor

Cycle and he has not examined the Paternal Uncle of PW.2 and any person by name Abdul Subhan. He admitted that there is a deep curve at the scene of offence which is a busy locality and a residential area.

28)PW.11 the then SI of Police has deposed that on 20.04.2016 he received case records from PW.10 Assistant Sub Inspector and then he served 41-A notice to the accused and after receiving Ex.P2 MVI report and Ex.P3 wound certificate, he filed charge sheet. In his cross- examination, he categorically admitted that he has not done any investigation, but he only collected Exs.P2, P3 and verified the investigation done by his staff and filed charge sheet. He further admitted that he has not collected any document to know that whether

PW.3 was minor or major at the time of accident and he has sent requisition to Motor Vehicle Inspector for inspecting the vehicle and as per Ex.P2 MVI report, the vehicle was driven by PW.2 at the time of accident. It is also the evidence of PW.11 SI of police that accused was absconded from the date of offence and subsequently when he was caught with the bike, the vehicle was sent for inspection to Motor

Vehicle Inspector and he has not found any damages to PW.3’s bike due to that he has not sent requisition to Motor Vehicle Inspector for inspection of vehicle. He further admitted that entire investigation shows that victims were driving in triple riding at the time of accident.

29)After completion of evidence of prosecution witnesses, the accused reported defence evidence and he himself examined as DW.1, wherein he has deposed that he was not a rider of motorcycle on

Page No.15 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

03.04.2016 and he worked in KCP Sugar Factory, Vuyyuru where PW.1 was also working due to that there were disputes between them with regard to Trade Union matter. He categorically deposed that the vehicle bearing No.AP 16 BE 3646 not belongs to him and he also produced

SSC certificate of PW.3 to show that he was minor on the date of accident. Ex.D2 copy of SSC certificate of PW.3 marked in his evidence.

In his cross-examination, he denied the suggestion that he caused the accident, now denying the same and he is having habit of consuming alcohol (In the evidence of DW.1, ‘not true’ noted as if he admitted that he is having habit of consuming alcohol, but in the next sentence he denied the suggestion that accident occurred as he driven the vehicle in drunken state)

30) After perusing the evidence of above referred prosecution witnesses, which clearly shows that either PW.10 Assistant Sub

Inspector or PW.11 SI of police have not made any efforts to know who is owner of motorcycle bearing No.AP 16 BE 3646 and they also not examined the owner of said motorcycle. But in the trial Court records,

Photostat of certificate of registration of the vehicle bearing No.AP 16

BE 3646 is available, wherein the name of owner is Sri D.S.Jawahar

Babu having endorsement that the consequent death of Sri D.S.Jawahar

Babu, the vehicle is transferred in the name of D.Madhavi of Vuyyuru and her house door number is also mentioned. But the reasons best known to them either PW.10 or PW.11 not chosen to examine said

Ms.Madhavi to prove that she entrusted her vehicle to the accused herein. It is also not explained by the prosecution whether Ms.

D.Madhavi is any way related to accused herein. When accused is specifically denying the riding the said motorcycle, it is for the

Page No.16 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

prosecution to prove that accused was rider of motorcycle on the date of alleged motor vehicle accident. It is not the contention of the prosecution that PWs.2 to 4 got prior acquaintance with accused who also deposed that they identified the accused in the Court and PW.2 deposed that on the date of accident, he was not aware the name of the accused which he subsequently came to know. The evidence of PW.10

Assistant Sub Inspector who is the Investigating Officer shows that both the vehicles were found at the scene of offence when he visited the scene of offence and the evidence of PW.5 colleague of PW.1 shows that when he was examined in the police station, both the vehicles were in the police station. But the reasons best known to PW.11, he gave requisition to PW.6 Motor Vehicle Inspector to inspect the vehicle bearing No.AP 16 BE 3646 only not the vehicle which PW.3 was rider along with PW.2 and PW.4. It is peculiar to note that Ex.P2 MVI report with regard to his inspection of vehicle bearing No.AP 16 BE 3646 shows that rider of motorcycle is PW.2 Akbar Khan who is injured in the motorcycle accident. But the case projected by the prosecution is that

PW.3 was rider of motorcycle bearing No.AP 16 CK 0015 belongs to his father, wherein he was proceeding along with PW.2 and PW.4 and at that time the accused said to be rider of motorcycle bearing No.AP 16

BE 3646 came in a rash and negligent manner in drunken state and dashed opposite motorcycle.

31)Though, all other prosecution witnesses have deposed that PW.3 was proceeding in triple riding at the time of accident, the reasons best known to him, PW.2 Akbar Khan who is injured has deposed that himself and PW.3 were alone proceeding on motorcycle at the time of accident. Admittedly, PW.3 was not having driving licence to drive

Page No.17 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

motorcycle and his evidence also shows that he crossed the parked lorry due to that he came middle of the road, then accused vehicle came in opposite direction and dashed his vehicle. It is peculiar to note that PW.3 not sustained grievous injuries but said to be sustained fracture of right cheek bone, but no wound certificate is produced and major injuries sustained by PW.2 Akbar Khan who said to be proceeding as first pillion rider in the motorcycle driven by PW.3 i.e.,. in the middle between two persons. Even the accused has produced Ex.D2 SSC certificate of PW.3 which shows his date of birth as 13.04.1998 and accident occurred on 03.04.2016, by that time admittedly PW.3 was minor who said to be driven the motorcycle of his father. But peculiarly either PW.10 Assistant Sub Inspector or PW.11 SI of police have not enquired that aspect and not collected documents pertaining to the vehicle, wherein PWs.2 to 4 were proceeding.

32)The learned trial Judge reproduced the contents of charge sheet and evidence adduced by the prosecution upto page No.8 and jumped into the conclusion that the presence of the accused was established by the evidence of PWs.2 to 5. When accused was available at the scene of offence as per the evidence of PW.5 R.Srinivas why he was not taken to police station to get him examined by medical officer to prove that he was in drunken state. It is elicited from all prosecution witnesses that there is a deep curve at the scene of offence, but on perusal of Ex.P6 rough sketch, which not shows any curve at the scene of offence, which also shows that it is a highway road. It is also peculiar to note that the learned trial Judge applied principle of ‘res ipsa loquitur’ basing on injuries sustained by the injured by observing that the injuries themselves speaks about the speed of the crime vehicle. But in India,

Page No.18 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

the rules of evidence were governed by the Indian Evidence Act, 1872, under which general rule was that the burden of proving negligence as to the cause of that accident lay on the party who alleged it but that party could take advantage of presumptions, which might be available to him to lighten the burden. They are (i) permissive presumptions or presumptions of fact; (ii) rebuttable presumptions of law; and (iii) irrebuttable presumptions of law. Presumption of fact were inferences of certain fact patterns drawn from the experience and observation of the common course of nature, the constitution of the human mind, the springs of human action and the usages and habits of society and ordinary course of human affairs. Section 114, Evidence Act, was a general section dealing with presumptions of that kind. The Court had discretion on the facts of each case to draw such presumptions of fact.

There was no such discretion in case of presumptions of law. In criminal cases, because of the rules of burden of proof, presumption of innocence and proof beyond reasonable doubt, the maxim res ipsa loquitur could only create an aid in the evaluation of evidence, an application of the general method of inferring one or more facts in issue from circumstances proved in evidence.

33)In the present case, basing on injuries sustained by PW.2 one cannot jump into the conclusion that the accused was rider of motorcycle without any legally acceptable evidence and Ex.P2 MVI report filed by the prosecution itself shows that rider of offending vehicle was PW.2 himself who denied even triple riding at the time of accident though admitted by other prosecution witnesses. Further more, on perusal of undisputed Ex.D2 and also evidence of PW.3 and PW.5 clearly shows that rider of motorcycle, wherein PW.2 was proceeding

Page No.19 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

minor who was not having driving licence. All these factors will create any amount of doubt with regard to case projected by the prosecution and which also suggest that prosecution suppressed the facts with regard to manner in which accident occurred and also person who was rider of motorcycle. The investigation in this case done by PW.10

Assistant Sub Inspector and PW.11 SI of police in perfunctory manner, they failed to collect material evidence, i.e., ownership of offending vehicle and not examined the owner of offending vehicle though

Photostat copy of registration certificate containing the name of the owner is available in case records and simply PW.10 accepted the surrender of accused and projected him as rider of motorcycle without any legal evidence. For which, the learned trial Judge quoted the

Judgment of Hon’ble Apex Court in Hema vs. State. AIR 2013 SC 1000 that lapses on the part of the Investigating Officer shall not make a ground to made the victim to suffer. But it is not known under what circumstances, the Hon’ble Apex Court observed the same, which also not discussed by the learned trial Judge. The learned trial Judge also discussed about the plea of alibi, which is not raised by the accused during the course of cross-examination and discussed precedent law on the plea of alibi though it is not the defence of the accused.

34)The prosecution though proved that PW.2 sustained injuries in the motor vehicle accident, failed to prove that accused was rider of motorcycle bearing No.AP 16 BE 3646 on the date of accident. The evidence adduced by the prosecution, i.e., evidence of PW.3 also not suggest any rash and negligent driving of rider of motorcycle who came in opposite direction to them as he himself stated that after he crossed the parked lorry came on the middle of the road, then accused came in

Page No.20 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

his opposite direction and dashed his motorcycle. The said version is contra to the contents of Ex.P6 rough sketch, which shows the accident occurred on the left side of the road on northern side not on the middle of the road. The learned trial Judge also observed that material available on record shows that PWs.2 to 4 were triple riding though it is denied by PW.2 and also observed that DW.1 produced identification certificate of PW.2 marked as Ex.D2, which again mistake as accused produced Ex.D2 belongs to PW.3 not belongs to PW.2. Even the evidence of accused as DW.1 not discussed by the learned trial Judge.

35)In view of discussion in preceding paragraphs, this Court is of an opinion that the prosecution failed to prove the guilt of the accused beyond reasonable doubt for the offences punishable U/s.338 IPC and

U/s.134 (a) & (b) r/w.187 of M.V.Act. The learned trial Judge failed to properly appreciate the evidence adduced by the prosecution and defence and came to erroneous conclusion and convicted the accused due to that the Judgment of trial Court is not sustainable in law and also on facts, which is liable to be set aside.

36)In the result, the Criminal Appeal is allowed. The appellant/ accused is acquitted U/s.386 (b) of Cr.P.C for the offences punishable

U/s.338 IPC and U/s.134 (a) & (b) r/w.187 of M.V.Act. The bail bonds of the appellant/accused if any shall continue for a period of Six months U/ s.437-A Cr.P.C. The fine amount and compensation amount paid by the appellant/accused if any shall be refunded to him after revision time is completed.

Dictated to the Stenographer of this Court, transcribed by him,

corrected and pronounced by me in open, on this the 11 th day of April, 2022.

Sd/-B. Syamsunder

METROPOLITAN SESSIONS JUDGE,

VIJAYAWADA.

Page No.21 of 21 Crl.A.167/2018

Dt:11.04.2022. MSJ Court,VJA.

APPENDIX OF EVIDENCE

FOR APPELLANT: FOR RESPONDENT:

-No additional oral or documentary evidence was adduced on either side-

Sd/-B. Syamsunder

METROPOLITAN SESSIONS JUDGE,

VIJAYAWADA.

Copy to The Junior Civil Judge, Vuyyuru. Now designated as VII Metropolitan Magistrate, Vuyyuru.

Prepared by me //True Copy//

Sd/-xxxx

(T.Bosu Babu)

Typist

Page No.1 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

IN THE COURT OF THE METROPOLITAN SESSIONS JUDGE:

VIJAYAWADA

Present: B.Syamsunder

Metropolitan Sessions Judge

Monday, this the 18th day of April, 2022

SESSIONS CASE NO.198/2018

(Cr.No.83/2018 of Ibrahimpatnam PS)

COMPLAINANT:The State, Inspector of Police, Ibrahimpatnam PS, Vijayawada City.

NAME OF THE ACCUSED:- Jagannadham Peddi Raju, S/o.Murali, 26 years, Yerukula, R/o.ST Colony, Kondapalli village, Ibrahimpatnam mandal. OFFENCE CHARGED: U/s.333 of IPC.

PLEA OF THE ACCUSED: Pleaded not guilty

This Sessions Case is coming on 25.03.2022 before me for final hearing in the presence of Sri V.Rajendra Prasad, Addl., Public Prosecutor for the State and of Sri B.David Ratna Kumar, Advocate

for accused, and upon hearing and considering the material on record

and the matter having stood over till this day for consideration, this Court delivered the following:-

JUDGMENT

The accused Jagannadham Peddi Raju, S/o.Murali, aged 26 years, a R/o.Kondapalli village of Ibrahimpatnam mandal, Krishna District stands charged U/s.333 of Indian Penal Code (In short IPC) for voluntarily causing grievous injuries to PW.1 Ramavathu Tirupathaiah a

Police Constable on 24.01.2018 at 11.00 p.m., near the house of the accused.

2)The admitted facts of the case in brief are that the accused is a R/ o.ST colony, Kondapalli village of Krishna District, whereas PW.1-

R.Tirupathaiah, PW.6-E.Siva Shankar are working as Police Constables and PW.2-K.Srinivasa Rao is working as Home Guard in Police

Department.

3)The matrix of the prosecution case is as under:-

Page No.2 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

On 24.01.2018 at about 9.15 p.m., PW.1, PW.2 and PW.6 were instructed by the Inspector of police to cause enquiry about the accused who also involved in Crime No.480/2017 for the offence punishable

U/s.324 r/w.34 IPC and issued duty passport to them to enquire about the accused. Then, PW.1, PW.2 and PW.6 who came to know that accused was present at his house and they all went to the house of accused at 11.00 p.m., night and on seeing them the accused himself hit his head against the wall due to that PW.1 Police Constable tried to stop him but accused hit his head against head of PW.1 forcibly due to that PW.1 sustained bleeding injuries on his nose and also on upper lip.

After that accused pushed PW.1, PW.2 and PW.6 aside and ran away.

Then, PW.1 returned to police station and lodged Ex.P1 report before

PW.9 SI of police at 11.30 p.m., who registered the case against accused for the offence punishable U/s.332 IPC and sent FIR to all concerned. The SI of police sent PW.1 to Government General hospital,

Vijayawada where PW.3 Medical Officer treated him and issued Ex.P2 wound certificate. After that PW.7 Inspector of police took up investigation who visited the scene of offence, where he prepared rough sketch and recorded the statements of PW.1, PW.2, PW.4 and PW.5.

During the course of further investigation, PW.8 Inspector of police arrested the accused on 02.03.2018 at 11.00 a.m., in Kondapalli village and after medical examination, he was sent to Court for judicial remand. After receiving wound certificate of PW.1, wherein it is shown that PW.1 sustained grievous injuries, a memo filed by PW.8 to alter

Section of law from Section 332 IPC to Section 333 IPC. After usual investigation, the Inspector of police filed charge sheet against the accused.

4)The case was taken on file by the learned IV Addl., Chief

Page No.3 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

Metropolitan Magistrate, Vijayawada against the accused for the offence punishable U/s.333 of IPC and committed the case to this Court with an opinion that the offence punishable U/s.333 IPC is exclusively triable by the Court of Sessions.

5)On production of the accused and after hearing on both sides, my learned Predecessor has framed a charge U/s.333 of IPC against the accused, which read-over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

6)On behalf of prosecution, PWs.1 to 9 were examined. Exs.P1 to P7 were marked.

7)After closure of prosecution evidence, accused was examined

U/s.313 of Cr.P.C, for which he denied the incriminating evidence and reported no defence evidence. The accused has stated that he being

Police informer as he was not furnishing any information, a false case has been foisted against him.

8)I have heard both sides.

9)The learned Addl., Public Prosecutor for prosecution mainly contended that there is no dispute that PW.1 worked as Police

Constable in Ibrahimpatnam police station who went to the house of accused along with PW.2 and PW.6 to enquire about accused as he involved in Crime No.480/2017 for the offence punishable U/s./324 r/w.34 IPC. He submits that accused who was involved in many criminal cases who also a ferocious person after noticing police party hit his head against a wall of his house, which PW.1 tried to stop him and then accused hit his head forcibly against the head of PW.1, thereby caused

Page No.4 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

grievous injuries as per Ex.P2 wound certificate. He argued that there is no delay in lodging report by PW.1 and there is no reason for PW.1,

PW.2 and PW.6 to depose false against the accused. It is the contention of the learned Addl., Public Prosecutor for prosecution that medical evidence is corroborating the ocular evidence deposed by PW.1, PW.2 and PW.6 about manner in which accused caused injuries to PW.1. He prays to convict the accused.

10)The learned Advocate for the accused mainly contended that

PW.1, PW.2 and PW.6 are police personnel and no independent witnesses of the scene of offence though available not enquired by the

Inspector of police. He submits that PW.4, PW.5 said to be residents of

Kondapalli village have not supported the case of prosecution. It is the contention of the learned Advocate for the accused that there was no necessity for the police personnel to visit the house of accused at 11.00 p.m., and no search proceedings issued and they were also not having any arrest warrant. He argued that PW.8 deposed that there were no injuries to accused when he was arrested which falsifies the contention of the prosecution that after noticing police party accused hit his head against the wall. He argued that there are material omissions and improvements in the evidence of PW.1, PW.2 and PW.6 with regard to alleged incident which also elicited in the evidence of PW.8 Investigating

Officer. He further submits that as accused was criminal history sheeter, police have foisted a false case against him. He prays to acquit accused.

11)Now the point for determination is:- “Whether the prosecution able to prove the guilt of the accused beyond reasonable doubt for the offence punishable U/s.333 IPC” ?

Page No.5 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

12) POINT:-

Before going to the merits of the case, it would be beneficial to

quote Section 319, 320 and 333 of IPC, which reads as under:

“Section 319. Hurt:- Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt”.

“Section 320. Grievous hurt:- The following kinds of hurt only are designated as ‘grievous’-

First:- Emasculation.

Secondly:- Permanent privation of the sight of either eye.

Thirdly:- Permanent privation of the hearing of either-ear.

Fourthly:- Privation of any member or joint.

Fifthly:- Destruction or permanent impairing of the powers of any member or joint.

Sixthly:- Permanent disfiguration of the head or face.

Seventhly:- Fracture or dislocation of a bone or tooth”.

“Section 333.Voluntarily causing grievous hurt to deter public

servant from his duty: Whoever voluntarily causes hurt to any person being a public servant, in the discharge of his duty as public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

13)To prove the offence U/s.333 IPC, the prosecution must establish that:- (1) that the accused voluntarily caused grievous hurt; (2) that the person so hurt was a public servant; (3) that such public servant was then discharging his duty as such; (4) that the accused did so with intent to prevent or deter such public servant from discharging his duty and caused grievous hurt.

Page No.6 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

14)It is settled law that the evidence cannot be weighed in golden scales. It shall have to be appreciated with reference to the probabilities. Having regard to the scheme of the Evidence Act, the

Court shall proceed firstly to see whether the evidence sought to be adduced is relevant and the relevant evidence is admissible and that evidence is proved. In the case of oral evidence, the Court has to see further the witnesses who want to depose before the Court on oath are competent to give evidence. The witnesses are the eyes and ears of justice due to that importance and primacy of the quality of the trial process and eye witnesses account would require a careful independent assessment and evolution for their credibility which should not be adversely prejudged making any otherwise evidence, including medical evidence, as the sole touch stone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story, consistency with the account of other witnesses held to be creditworthy, consistency with the undisputed facts, the credit of the witnesses, their performance in the witness box, their power of observation. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

(vide decision in State of Madhya Pradesh vs. Dharkole (2004) 13 SCC

308)

15)When the witness himself is injured in the incident, the Court should bear in mind that:

(1) their presence at the time and place of the occurrence cannot be doubted; (2) they do not have any reason to omit the real culprits and implicate falsely the accused person; (3) the evidence of the injured witness is of great value to the prosecution and it cannot be doubted merely on some supposes,

Page No.7 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

natural conduct of a person during the incident or after the incident, because it is difficult to imagine how a witness would act or re-act to a particular incident. His action depends upon a number of imponderable aspects; (4) if there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence.

16)Bearing in mind the above principles of law enunciated by the

Hon’ble higher Courts with regard to appreciation of evidence of injured

witnesses in criminal cases, I shall examine the evidence adduced by the prosecution in this case.

17)PW.1 R.Tirupathaiah, the then Police Constable of

Ibrahimpatnam police station has deposed that on 24.01.2018 at 9.15 p.m., he along with PW.2, PW.6 as per instructions of PW.7 Inspector of

Police visited ST colony of Kondapalli village to verify about the presence of accused who involved in Crime No.480/2017 of

Ibrahimpatnam police station and then when they went to the house of accused at 11.00 p.m., at that time the accused who was sitting in front of his house after noticing them started beating his head against the wall and then they approached the accused and tried to prevent him and then immediately the accused hit his head on his nose due to that he sustained bleeding injury on the lips and blood came out from his nose and from upper lip. He further deposed that PW.2 and PW.6 came to his rescue and then the accused pushed him aside and ran away and after that they returned to police station and lodged Ex.P1 report before

PW.7 Sub-Inspector of Police and then he was sent to Government

General hospital, Vijayawada for medical examination. In his cross- examination, he admitted that he does not know the date of registration of case in Crime No.480/2017 and details of that case. He categorically deposed that passport for arrest of accused was issued to them on

Page No.8 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

24.01.2018 at 9.00 p.m., and the scene of offence is at a distance of 7 k.m., from the police station, where they reached within half an hour by traveling in a motorcycle. He deposed that he saw photograph of the accused in the police station before visiting the scene of offence and they went to scene of offence to enquire about the address. He admitted that no search proceedings were given to them and they went to scene of offence at 11.00 p.m., after receiving information about availability of accused. He denied the suggestion that he has not stated

before Inspector of police in his Section 161 Cr.P.C statement that

accused was sitting in front of the house and accused pushed him aside.

He denied the suggestion that he sustained injury in darkness but foisted a false case implicating the accused as per instructions of

Inspector of police as accused is having suspect sheet in their police station.

18)PW.2 K.Srinivasa Rao working as Home Guard also deposed about visit of house of accused at 11.00 p.m., on 24.01.2018 as per instructions of Inspector of police along with PW.1 and PW.6 and at that time the accused was sitting in front of his house after noticing them started beating his head to the wall and then they approached him and then immediately the accused dashed his head on the nose of PW.1 who sustained bleeding injury. He deposed that the accused pushed them aside and ran away and then they returned to the police station and

PW.1 lodged a report before SI of police. He further deposed that PW.1 was sent to Government General hospital, Vijayawada for medical examination. In his cross-examination, he categorically admitted that he had no prior acquaintance with accused whom he saw first time on the date of incident and he also does not know the details of case in

Page No.9 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

Crime No.480/2017 which was filed against the accused. He deposed that he know the house of the accused and then they enquired about the whereabouts of the accused and then they went to the house of accused, but they were not having search warrant and arrest warrant.

He denied the suggestion that he has not stated in his statement

Section 161 Cr.P.C that the accused was sitting in front of the house but suppressing the truth he is deposing false as per instructions of

Inspector of Police.

19)PW.6 E.Siva Shankar Police Constable also deposed that on 24.01.2018 at 9.15 p.m., Inspector of Police issued passport to them to go to the house of accused to secure his presence and then they went to the house of accused situated in ST colony of Kondapalli village where the accused was present and after noticing them, he started beating his head against the wall, then they tried to stop the accused due to that accused beat PW.1 on his nose who sustained bleeding injury and thereafter accused pushed them aside and ran away, which incident occurred at 11.00 p.m. In his cross-examination, he also admitted that accused alone involved in Crime No.480/2017 of

Ibrahimpatnam police station and they were not having any arrest warrant or search warrant. He further admitted that he does not know the details of case in Crime No.480/2017. He denied the suggestion that he has not visited the house of accused and deposing false at the instance of Inspector of police.

20)PW.4 M.Krishna and PW.5 I.Kiran who are residents of ST colony of Kondapalli village though deposed that accused is their neighbour, they have not supported the case of prosecution. In their cross- examination, their statements before Inspector of police marked as

Page No.10 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

Exs.P3, P4.

21)PW.3 Dr.Md.Haseena Begum has deposed that on 24.01.2018 at 03.02 a.m., she examined PW.1 R.Tirupataiah and found following injuries:

i) Mucosal contusion of size 2X1 cm at center of inner aspect of upper lip.

ii) Bleeding from right nostril.

She deposed that she advised PW.1 to take X-ray of nasal bones to find out fracture bodies of both nasal bones. She gave opinion that the injuries might have been caused by a blunt object or fisting by force on nose. She opined that Injury No.1 is simple in nature and

Injury No.2 is grievous in nature and age of the wound is 4 to 6 hours prior to her examination and she issued Ex.P2 wound certificate. In her cross-examination, she admitted that Kondapalli village is at a distance of 20 k.m from Government General hospital, Vijayawada and she does not know the status of PW.1, which she also not mentioned in Ex.P2 wound certificate and she has not enquired PW.1 how he sustained injury. She deposed that colour of injury was red at the time of her examination. She denied the suggestion that she has not examined

PW.1 and issued Ex.P2 wound certificate as per instructions of superior

Officers.

22)PW.9 Mr.R.Sreenu, the then SI of police Ibrahimpatnam police station has deposed that on 24.01.2018 at 11.30 p.m., night when he was present in the police station, PW.1 came and lodged Ex.P1 report and then he registered the case for the offence U/s.332 IPC and issued

Ex.P7 FIR sent to the Court marked in his evidence. In his cross- examination, he admitted that in column No.6 of Ex.P7 he has not

Page No.11 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

noted occupation or designation of PW.1 and also deposed that

Inspector of police sent PW.1 to the hospital for medical treatment.

23)PW.7 the then Inspector of police, Ibrahimpatnam police station has deposed that on 24.01.2018 at 11.30 p.m., SI of police received report from PW.1 and registered the case and then he took-up further investigation and visited the scene of offence, which is the house of the accused situated at ST colony of Kondapalli village, where he prepared

Ex.P5 rough sketch and recorded the statements of PW.1, PW.2, PW.4,

PW.5 and PW.6 at the scene of offence. In his cross-examination, he admitted that he has not issued any passport to the Constable for arrest of accused, which was issued by Sub-Inspector of Police in his absence, which also made entry in General Diary. He admitted that no search proceedings were issued to the Police Constable to search the house and no arrest warrant endorsed to the Police Constable to arrest accused. It is the evidence of PW.7 that he does not know the date of registration of FIR in Crime No.480/2017 and he has not examined all neighbours whom he has shown in Ex.P5 rough sketch. He admitted that PW.1 has not stated before him that accused was sitting in front of his house. He denied the suggestion that they foisted a false case against the accused as the accused not obliged them though suspect sheet was pending against the accused. He further denied the suggestion that PW.1 sustained injury as he dashed wall in the darkness.

24)PW.8 V.Pavan Kishore, the then Inspector of police also has deposed that on 02.02.2018 he received case file and took up further investigation in this case. He further deposed that on 02.03.2018 he arrested the accused and received wound certificate of PW.1 and then

Page No.12 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

filed Ex.P6 Section alteration memo and filed charge sheet. In his cross- examination, he admitted that the present case incident occurred on 24.01.2018 and they arrested the accused on 02.03.2018, at that time the accused was not having any injuries. He also admitted that Ex.P2 wound certificate of PW.1 not shows that he is Police Constable and how he sustained injuries. He denied the suggestion that they caused injuries to accused and to cover-up the same, they foisted a false case against the accused and Ex.P2 wound certificate is not pertaining to

PW.1, which belongs to some other person.

25)After perusing the evidence of prosecution witnesses, in particular the evidence of PW.1 who categorically deposed that when he went to

ST colony of Kondapalli village to enquire about the accused who involved in Crime No.480/2017, the present case incident occurred, for which it is suggested to PW.1 injured and also PW.8 Investigating Officer in their cross-examination that PW.1 sustained injury in darkness. It is not suggested to PW.1 that he has not sustained any injuries in the alleged incident. It is also not suggested to PW.1 injured or PW.3

Medical Officer that Ex.P2 wound certificate is not pertaining to PW.1.

But it is suggested to PW.8 Inspector of police who collected Ex.P2 that which is not pertaining to PW.1. It is also not the contention of the accused in his Section 313 Cr.P.C examination that PW.1 not sustained any injuries. Though, it is suggested to PW.8 Inspector of police that they caused injuries to accused and to cover-up the same they foisted a false case against the accused, which is not stated by the accused in his

Section 313 Cr.P.C examination or not suggested to PW.1, PW.2, PW.6,

PW.7 and PW.9 in their cross-examination.

26)The present case records also having remand report of the

Page No.13 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

accused, wherein it is stated that the accused is crime suspect sheet- holder of Ibrahimpatnam police station who previously involved in five criminal cases, which includes property offences. Prior to sending the accused to judicial remand in the present case, he was also subjected to medical examination on 02.03.2018 and out-patient medical examination record is available which shows that the accused is having laceration of measuring 1x0.1 c.m over forehead. Which supports the contention of the prosecution that when PW.1 along with PW.2 and PW.6 went to the house of accused, he himself hit his head against the wall.

Admittedly, the accused was arrested on 02.03.2018 and alleged incident occurred on 24.01.2018. It is suggested to PW.8 Inspector of police that they caused injuries to the accused. All these factors clearly supports the contention of the prosecution that some incident occurred at the house of accused, which deposed by PW.1, PW.2 and PW.6. It is not suggested to PW.1 that he has not sustained any injuries and it is also not suggested to him that he is not a Police Constable. Even, it is not suggested to PW.1 and other Police witnesses that the accused not involved in Crime No.480/2017, which supports the contention of the prosecution that PW.1 along with PW.2 and PW.6 went to the house of accused to enquire him. It is also not in dispute that the accused is having crime suspect sheet against him in Ibrahimpatnam police station and he involved in property offences, which also shown in his remand report due to that there is no strange in PW.1, PW.2 and PW.6 visiting the house of accused at 11.00 p.m., to enquire about availability of the accused. Further more, PW.1 admittedly injured witness in the incident due to that the testimony of PW.1 considered to be very reliable as he is a witness who comes within an inbuilt guarantee of his presence at scene of crime and there is no reason for him to implicate the accused

Page No.14 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

to leave actual assailant.

27)The medical evidence and Ex.P2 wound certificate also supports the contention of prosecution that though PW.3 Medical Officer deposed that Ex.P2 not contains how PW.1 sustained injuries, on careful perusal of Ex.P2 which shows that he was examined at 3.02 a.m., on 25.01.2018 who said to have been sustained injuries on 24.01.2018 at 11.00 p.m., due to assault. It is no doubt true that PW.7 Investigating

Officer has shown the residential houses in Ex.P5 rough sketch and he also examined PW.4, PW.5 but they have not supported the case of prosecution who also deposed that they are neighbours of accused. In similar circumstances, the Hon’ble Apex Court in State of Uttar

Pradesh, appeallant vs. Anil Singh, respondent. AIR 1983 Supreme

Court 1998, wherein it is held at para 13, 14 and 15 which reads as under:

“13) Of late this Court has been receiving a large number of appeals against acquittal and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come-forward to depose before the Court. It is therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The privy Council had an occasion to observe this. In Bankim Chander vs. Matagini 24 CasI, WN 626 (AIR 1919 PC 57) the privy Council had this to say (At.P.628) (of CLL WN) (At.P.158 of AIR).

That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence”.

“14) In Abdul Gani vs. State of Madhra Pradesh, AIR 1954 SC 31 Mahajan.J Speaking for this Court deprecated the tendency of Courts to take an easy course of holding the evidence discrepant and

Page No.15 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the true from falsehood and to sift the grain from the chaff”.

“15) It is also out experience that invariably the witnesses add embroidery to prosecution story perhaps for the fear of bearing disbelieved. But that it no ground to throw the case overboard. If true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggests of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterity to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform”.

28)In the present case, simply because PW.4, PW.5 have not supported the case of prosecution that itself is not a ground to disbelieve the version of PW.1 injured witness corroborated by medical evidence and other circumstances of the case. The prosecution able to prove that the accused voluntarily caused hurt to PW.1 who is Police

Constable when he went to the house of accused to enquire him as accused involved in Crime No.480/2017 of Ibrahimpatnam police station and he also without cooperating the Police personnel pushed them aside and ran away as Ex.P2 wound certificate shows that X-ray of nasal bones of PW.1 shows fracture bodies of both nasal bones, which also deposed by PW.3 Medical Officer. But the reasons best known to them, the prosecution has not produced the X-ray film or Radiologist report to support their contention that PW.1 sustained grievous injuries. The evidence of PW.3 Medical Officer is only based on X-ray film, which not produced by the prosecution. In similar circumstances, the Hon’ble High

Court of Andhra Pradesh in Bandela Daveedu vs. State of Andhra

Pradesh, 2011 (1) ALD (Crl.) Page 723 (AP) held that “in the absence of X-ray report and examination of radiologist, the offence said to have committed punishable U/s.326 r/w.34 of IPC is converted into Section

Page No.16 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

324 r/w.34 of IPC and converted sentence of jail term to fine of

Rs.1,000/-.“

29)The ratio laid down by the Hon’ble High Court of Andhra Pradesh in the above referred decision is also applicable to the facts of the present case. In the present case also though the prosecution is able to prove that the accused voluntarily caused hurt to PW.1 Police Constable while discharging public duties, but failed to prove that the accused caused grievous hurt as they have not produced the X-ray film or radiologist report and not examined the Radiologist to prove that PW.1 sustained grievous injuries. The learned Advocate for the accused is relying on omissions which elicited in the evidence of PW.1, PW.2 and admitted by PW.7 Investigating Officer with regard to accused was sitting in front of his house at the time of alleged incident. Though, it is admitted by PW.7 Investigating Officer that PW.1 not stated before him that accused was sitting in front of his house, which is not material omission amounts to contradiction to doubt the entire case of prosecution. There is no delay in lodging FIR, The ocular evidence of

PW.1, PW.2 and PW.6 manner in which accident occurred corroborated by the medical evidence. The prosecution able to prove the guilt of the accused beyond reasonable doubt for the offence punishable U/s.332

IPC.

30)In the result, accused is convicted U/s.235 (2) Cr.P.C for the offence punishable U/s.332 IPC.

Dictated to the Stenographer of this Court, transcribed by him,

corrected and pronounced by me in open Court, on this the 18 th day of April, 2022.

Sd/-B. Syamsunder

METROPOLITAN SESSIONS JUDGE,

VIJAYAWADA.

Page No.17 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

31) When accused is questioned about quantum of sentence to be imposed on him, he pleaded that he has got mother who is blind whom he has to look after and prays mercy of the Court.

32)This Court also called for report from the District Probationary

Officer who submitted his first report on 08.03.2022, wherein he mentioned that there is no criminal history against the accused. For which, this Court called the Addl., District Probationary Officer enquired them about contents of his report, then he again sent another report on 28.03.2022, wherein he has stated that the accused is having criminal history who involved in eight criminal cases, which are property offences out of them in two cases, the accused was acquitted and other cases ended in compromise. The Addl., District Probationary Officer though noted in his second report about criminal cases which were pending against the accused, again he has noted in the report that no criminal records against him in the past and accused is sole bread winner of the family. He recommended for release of accused on probation of good conduct. The report of Addl., District Probationary

Officer shows that he has not properly enquired and routinely filed report, which cannot be considered when accused already previously involved in property offences though ended in acquittal and ended in compromise. Further, PW.1 being a public servant who is a servant of society who needs social protection so that he is not demoralized in the performance of his duty and he shall be allowed to serve free from fright. Though, the Addl., District Probationary Officer recommended for release of accused on probation of good conduct, this Court is of an opinion that it is not a fit case to extend benefit of Probation of

Offenders Act to the accused and sentence of imprisonment alone would

Page No.18 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

meet the ends of justice and not to release on probation.

33)In the result, accused is convicted for the offence punishable

U/s.332 IPC and sentenced to undergo Rigorous Imprisonment for a period of One Year and he shall pay a fine of Rs.1,000/- (Rupees One thousand only). In default, he shall undergo Simple Imprisonment for a period of One month for the offence punishable U/s.332 IPC. The remand period of the accused, i.e., from 02.03.2018 to 08.10.2018 shall be set off U/s.428 Cr.P.C. The Office is directed to furnish free copy of Judgment to the accused today itself and it is also informed to the accused that he has got right of appeal against the Judgment of this

Court before the Hon’ble High Court of Andhra Pradesh at Nelapadu of

Amaravati.

Typed to my dictation by the Typist of this Court, corrected and

pronounced by me in open Court, on this the 18 th day of April, 2022.

Sd/-B. Syamsunder

METROPOLITAN SESSIONS JUDGE,

VIJAYAWADA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHLAF OF

FOR PROSECUTION FOR DEFENCE

PW.1: R.Tirupathaiah. --None-- PW.2: K.Srinivasa Rao. PW.3: Md.Haseena Begum. PW.4: M.Krishna. PW.5: I.Kiran. PW.6: E.Shiva Sankar. PW.7: D.Chavan. PW.8: V.Pavan Kishore. PW.9: R.Sreenu.

DOCUMENTS MARKED ON BEHALF OF PROSECUTION:

Ex.P1 Report given by PW.1, dt.24.01.2018. Ex.P2 Wound certificate. Ex.P3 161 Cr.P.C statement of PW.4. Ex.P4 161 Cr.P.C statement of PW.5. Ex.P5 Rough sketch. Ex.P6 Section alteration memo. Ex.P7 FIR in Cr.No.83/2018 of Ibrahimpatnam PS.

Page No.19 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

DOCUMENTS MARKED ON BEHALF OF DEFENCE : -Nil-

MATERIAL OBJECTS MARKED: -Nil-

Sd/-B. Syamsunder

Metropolitan Sessions Judge, Vijayawada.

Prepared by me //True Copy// xxxx (T.Bosu Babu) Typist

Page No.20 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

TABULAR FORM TO BE APPENDED TO THE JUDGMENT AS

PER RULE 67 OF THE CRIMINAL RULES OF PRACTICE

SC.No.198/2018

(Crime No.83/2018 of Ibrahimpatnam Police Station, Vijayawada)

01.Serial No.:--

02.Sessions Case No.:S.C.NO.198/2018

03.P.R.C.No.:33/2018 of IV ACMM Court, Vijayawada.

04.Crime No. & Name of:83/2018 of Ibrahimpatnam PS. the Police Station.

05.Description of the accused:

Jagannadham Peddi Raju, S/o.Murali, 26 years, Yerukula, R/o.ST Colony, Kondapalli village, Ibrahimpatnam mandal.

06.Date ofa) Offence:24.01.2018

b) Complaint:24.01.2018

c) Apprehension:02.03.2018

d) Released on Bail:08.10.2018

e) Commitment:12.04.2018

f)Commencementof:21.10.2019 trial

g) Closure of trial:25.03.2022

h) Sentence of Order:18.04.2022

07.RESULT:-

In the result, accused is convicted U/s.235 (2) Cr.P.C for the offence punishable U/s.332 IPC and sentenced to undergo RI for a period of One Year and he shall pay a fine of Rs.1,000/-. In default, he shall undergo SI for a period of One month for the offence punishable U/s.332 IPC. The remand period of the accused, i.e., from 02.03.2018 to 08.10.2018 shall be set off U/s.428 Cr.P.C. The Office is directed to furnish free copy of Judgment to the accused today itself and it is also informed to the accused that he has got right of appeal against the Judgment of this Court before the Hon’ble High Court of Andhra Pradesh at Nelapadu of Amaravati.

Page No.21 of 21 SC.No.198/2018 Dt.18.04.2022 MSJ Court, VJA.

08.Explanation for the Delay: This case was taken on file on 09.04.2018 by IV Addl., Chief Metropolitan Magistrate, Vijayawada as PRC No.33/2018 and committed the case on 12.04.2018. On 20.04.2018 this Court numbered the said PRC as SC.No.198/2018. On 26.07.2018 accused was examined and framed charge against him for the offence U/s.333 IPC, read over and explained to him for which he pleaded not guilty and claimed to be tried.

On 21.10.2019 PWs.1, 2 were examined and Ex.P1 was marked. On 22.10.2019 PW.3 was examined and Ex.P2 was marked. On 06.11.2019 PWs.4, 5 were examined and Exs.P3, P4 were marked. On 26.11.2019 PW.6 was examined. On 05.12.2019 PW.7 was examined and Ex.P5 was marked. After that due to not producing PWs.8, 9 and due to Covid-19 situation, the case is being adjourned from time to time upto 18.10.2021. Later on 21.12.2021 PW.8 was examined and Ex.P6 was marked. On 07.01.2022 PW.9 was examined and Ex.P7 was marked. On 02.03.2022 accused was examined U/s.313 Cr.P.C. On 25.03.2022 the arguments heard and Judgment pronounced on 18.04.2022. Hence, the delay.

Sd/-B. Syamsunder

Metropolitan Sessions Judge, Vijayawada. To

The Registrar (Judicial),

Hon’ble High Court of Andhra Pradesh, Nelapadu, Amaravathi.

Copy to

1) The Director of Prosecutions, R&B New Buildings, 1st Floor, Room No.109, M.G.Road, Vijayawada.

2) The Addl., Public Prosecutor, M.S.J Court, Vijayawada.

3) The SHO, Ibrahimpatnam PS, Vijayawada City.

Page No.1 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

BEFORE THE II ADDL. DISTRICT JUDGE-CUM-CHAIRMAN, MOTOR VE-

HICLE ACCIDENTS CLAIMS TRIBUNAL::VIJAYAWADA

PRESENT: B.SYAMSUNDER,

CHAIRMAN, MACT-CUM-

II ADDITIONAL DISTRICT JUDGE.

Friday, this the 6th day of May, 2022

M.V.O.P.NO.393/2015

Between:- 1.Kale Mounika. 2.Kale Keerthi Lakshmi Prasanna. 3.Kale Radha Krishna. ….Petitioners. A N D

1. Ponugumati John. (R1)

2. Kondisetty Krishna Durga Sambasiva Rao. (R2)

3. Shriram General Insurance Company Limited, Vijayawada, Rep. by its Branch Manager. (R3) …. Respondents.

This petition is coming on 21.03.2022 before me for final hearing in the presence of Sri Ch.Uma Maheswar Reddy, Advocate for the pe- titioners and of Sri R.V.Rama Krishna, Advocate for respondent No.2, Sri T.Veerabhadra Rao, Advocate for respondent No.3 and respondent No.1 remained ex-parte, and upon hearing and upon perusing the ma- terial on record and the matter having stood over for consideration till this day, the Tribunal made the following:-

J U D G M E N T

This petition is filed by the petitioners under Section 140 and 166 of the Motor Vehicles Act, 1988 claiming compensation of

Rs.1,00,00,000/- for the death of Smt Bonkuri Venkata Rama Devi (hereinafter called as deceased) in a motor vehicle accident that occurred on 23.09.2014 at 10.00 a.m., on NH-5 road, in front of

Geetha Chicken center, Gannavaram village and mandal of Krishna

District.

2)The case of the petitioners in brief is that the petitioners 1 and 2 are daughters and 3rd petitioner is the husband of the deceased and they are all residents of house bearing Door No.11-53, Bosubomma

Page No.2 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

street, Gannavaram of Krishna District. They submits that R1 is the driver and R2 is the owner and R3 is the insurer of lorry bearing No.AP 07 TU 4984 and policy valid from 04.06.2014 to 25.09.2014. It is the contention of the petitioners that the deceased was working as Senior

Assistant in Sri Venkateswara Veterinary University, NTR College of

Veterinary Sciences, Gannavaram and she was drawing salary of

Rs.23,855/- per month. They submits that the deceased used to attend the college by traveling in motor bus or auto rickshaw. The petitioners submits that as usual, on 23.09.2014 at 10.00 a.m., when the deceased was waiting for motor bus to attend her Office, at that time Smt

P.Padmaja (PW.2) who is also working as Superintendent in the

Veterinary College, Gannavaram came on her Honda Activa motorcycle bearing No.AP 16 CJ 7341 and the deceased boarded the said motorcycle and traveled as a pillion rider. They submits that when PW.2

P.Padmaja and the deceased were proceeding on NH-5 road, in front of

Geetha Chicken centre, Gannavaram at that time lorry bearing No.AP 07

TU 4984 came from Eluru side driven by R1 in a rash and negligent manner without blowing horn, dashed Honda Activa motorcycle on its behind due to that the deceased and rider of motorcycle fell on the road and the deceased received head injury and died on the spot. After that

PW.2 P.Padmaja lodged a report before Gannavaram police station who registered the case against R1 for the offence punishable U/s.304-A

IPC. Then, the Station House Officer conducted inquest over the dead body of the deceased and it was also subjected to postmortem examination by the Community Health Centre, Gannavaram wherein the

Medical Officer issued certificate that the deceased died due to head injury. It is also the contention of the petitioners that accident occurred only due to rash and negligent driving of R1 due to that SI of police

Page No.3 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

visited the scene of offence, where he prepared observation report, rough sketch and filed charge sheet against R1. The petitioners have stated that due to the sudden death of the deceased, they lost their sole bread winner and 1st petitioner who got married on 20.02.2014 lost support of her mother and 2nd petitioner was a student, whereas 3rd petitioner is a private employee, but now he is suffering from paralysis since 22.02.2013 who lost his wife and support, as there was no female to look after him, one servant-maid was engaged to attend the needs of the 3rd petitioner to whom they are paying Rs.5,000/-. The petitioners have claimed compensation of Rs.1,00,00,000/- for the death of the deceased in the motor vehicle accident on various heads.

3)The 1st respondent/driver of offending vehicle remained ex-parte and not chosen to contest the case.

4)The 2nd respondent/owner of offending vehicle filed counter, denying the negligence on the part of R1 for the cause of accident. He submits that accident occurred due to act of God not due to the negligent driving of R1. He further submits that his vehicle insured with

R3 Insurance Company and the policy was in force from 04.06.2014 to 25.09.2014 and R1 was having valid driving licence. It is the contention of R2 that the compensation if any payable to the petitioners, R3 alone is liable. He prays to dismiss the petition.

5)The 3rd respondent/Insurance Company filed counter, denying the accident, manner in which it was occurred, age and income of the deceased prior to the accident. They submits that they are not liable to pay compensation to the petitioners as it is a case of hit and run, but false case foisted against R1. They submits that there was no rash and negligent driving on the part of R1 and petition is bad for non-joinder of

Page No.4 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

owner and insurer of vehicle bearing No.AP 16 CJ 7341 who driven the vehicle without valid and effective driving licence. They further submits that the deceased was not wearing helmet at the time of alleged accident and contributed for the cause of accident. They further stated that the claim of the petitioners is highly excessive and prays to dismiss the petition.

6)On the basis of above pleadings, my learned Predecessor has framed following issues:- (1)Whether the accident occurred due to the rash and negligent driving of AP 07 TU 4984 by the 1 st respondent?

(2) Whether the petitioners are entitled for compensation, if so, the quantum and by whom payable?

(3) To what relief?

7)On behalf of the petitioners, PWs.1 to 4 were examined. Exs.A1 to 18 and Exs.X1 to X11 were marked. On behalf of R2 and R3, RWs.1 to 3 were examined. Exs.B1 to B3 were marked. The Advocate for R3 also filed petition U/s.170 of MV Act and the same was allowed by my learned Predecessor.

8)I have heard both sides.

9)The learned Advocate for the petitioners mainly contended that the deceased was working in Veterinary College on the date of accident who died due to rash and negligent driving of R1. He submits that criminal case records supports the contention of the petitioners and the petitioners also filed medical records of the 3rd petitioner to show that he is seriously ill and he was totally depending upon the deceased. He argued that the evidence of PWs.1 to 4 coupled with service register and salary certificate of the deceased supports the contention of the

Page No.5 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

petitioners. He prays to allow the petition.

10)The learned Advocate for R3 mainly contended that 1st petitioner is a married daughter and the petitioners have already received the death benefits and 3rd petitioner is getting family pension of the deceased and 2nd petitioner got employment on compassionate grounds which they suppressed in the petition. He submits that the evidence of

RW.2 and RW.3 shows that there was contributory negligence on the part of rider of motorcycle, wherein the deceased was pillion rider who was not wearing helmet. He prays to dismiss the petition.

11) ISSUE NO.1:-

PW.1 K.Mounika/1st petitioner has stated on oath in her chief- examination affidavit with regard to averments in the petition. The chief-examination affidavit of PW.1 is replica of contents in the petition.

Ex.A1 certified copy of FIR, Ex.A2 certified copy of MVI report, Ex.A3 certified copy of P.M.report, Ex.A4 certified copy of charge sheet, Ex.A5

Photostat copy of driving licence of R1, Ex.A6 photostat copy of policy of the crime vehicle, Ex.A7 death certificate of deceased-Venkata Rama

Devi, Ex.A8 service certificate of the deceased issued by Sri

Venkateswara Veterinary University, Ex.A9 salary certificate of the deceased, Ex.A10 discharge summary of 3rd petitioner who was hospitalized for paralytic stroke, Ex.A11 final bill for the treatment of 3rd petitioner issued by Suraksha hospital, Ex.A12 OP card of 3rd petitioner issued by NRI hospital, Ex.A13 Physically handicapped certificate issued by Dr.Y.Narasimha Rao for 3rd petitioner, Ex.A14 Allotment letter of 2nd petitioner for E-CET admission of the year 2013, Ex.A15 Marriage card of 1st petitioner along with wedding invitation cover, two photos of the marriage of the 1st petitioner and Ex.A16 household card of 1st petitioner

Page No.6 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

marked in her evidence. In her cross-examination by the learned

Advocate for R2, she admitted that deceased is her mother who was working woman for past 17 years prior to her death and rider of two wheeler on which her mother was traveling at the time of accident was having valid driving licence. She further admitted that R2 vehicle insured with R3 Insurance Company who are liable to pay compensation. In further cross-examination by the learned Advocate for

R3, she admitted that she completed M.Pharmacy, she is also having

PAN card and she is filing Income Tax returns and her husband is doing on-line business at Hyderabad. She also admitted that 2nd petitioner completed Polytechnic course and discontinued B.Tech course and denied the suggestion that 2nd petitioner got employment after completion of B.Tech course. It is the evidence of PW.1 that herself or 2nd petitioner not made any efforts to have compassionate appointment after the death of their mother and death benefits of her mother, a sum of Rs.5,00,000/- credited to the account of their father, but she admitted that she was not an eye witness to the accident. She denied the suggestion that R3 is not liable to pay compensation as R1 had no valid driving licence.

12)PW.2 P.Padmaja/rider of motorcycle and an eye witness to the accident has deposed that she is working as Superintendent in

B.Section of Veterinary College and she used to attend her Office at 9.45 a.m., to 10.00 a.m., by riding on her motorcycle and accordingly on 23.09.2014 at 9.45 a.m., she started from her house to go to

College and when she reached Buddavaram bus stop, where she found the deceased who is her colleague was waiting for bus who asked lift and then the deceased traveled along with her as pillion rider and when they proceeded about 7 meters, one lorry came from Eluru city side

Page No.7 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

proceeding towards Vijayawada city side driven by its driver in a rash and negligent manner, dashed her bike due to that she sustained simple injuries and the deceased fell under the lorry who also sustained head injury and died on the spot. In her cross-examination, she admitted that place of accident is a National Highway which runs South to North and her College is facing towards East and to attend her Office, she has to proceed from North to South and then to West. She also admitted that there is divider on the National Highway road and she crossed the

Highway at Airport gate, where there is no divider. She has admitted about topographical features of place of accident and deposed that the right shoulder of the deceased came into contact with the left side of the lorry, due to negligence of driver of lorry, accident occurred. She denied the suggestion that to escape from her liability, a false case has been filed against driver of lorry. Advocate for R2 adopted the cross- examination done by the Advocate for R3.

13)PW.3 A.Purnachandra Rao working as Administrative Officer, NTR

College of Veterinary Science, Gannavaram summoned by the petitioners who deposed that the deceased worked as Senior Assistant in their College who joined in service on 15.09.2000 as Animal

Attendant Class–IV and he produced Ex.X1 true copy of salary certificate of the deceased for the month of August, 2014. He also produced service particulars of deceased, which is marked as Ex.X2and he produced copy of service certificate of deceased, which is marked as

Ex.X3. He produced copy of appointment letter of the deceased, which is marked as Ex.X4 and true copy of Last Pay Certificate of the deceased marked as Ex.X5. Ex.X6 is G.P.F account slip copy for the year 2013-2014 of the deceased produced by the witness. He produced

Ex.X7 true copy of G.P.F statement of the deceased. Ex.X8 leave

Page No.8 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

encashment proceedings, Ex.X9 pension Orders, Ex.X10 copy of letter, dt.19.11.2021 and Ex.X11 true copy of letter to show that original service register sent to Sri Venkateswara Veterinary University, Tirupati on 06.06.2016. It is the evidence of PW.3 that if the deceased would have alive, she would have continued in service upto 31.03.2032.

Exs.X1 to X11 marked subject to objection by the Advocate for R3 as those are true copies, but it is produced with the signature of PW.3 who admittedly working as Superintendent in Office, where the deceased worked who authorized to sign in the documents due to that objection of learned Advocate for R3 is not sustainable. In his cross-examination by the learned Advocate for R3, he categorically deposed that his evidence is based on records, but he has not verified original Service

Register of the deceased and deposed that original records of Exx.X1 to

X11 are available in his Office and then he obtained Photostat copy, attested and produced the same before this Court. He denied the suggestion that Exs.X1 to X11 are not true copies of original. He further admitted that as per Ex.X1, the net salary of the deceased was

Rs.20,430/- and the husband of the deceased is receiving family pension, which is 50% of the last pay and they also provided employment to PW.4-Keerthi Prasanna Lakshmi, who is 2nd petitioner herein, on compassionate grounds.

14)PW.4 K.Keerthi Lakshmi Prasanna/2nd petitioner has deposed that as per Orders of her College, she went to Sri Venkateswara Veterinary

University, Tirupati and brought original Service Register of her mother sent along with covering letter and produced attested copy of Service

Register of her mother. Ex.A17 letter issued by the Registrar, Sri

Venkateswara Veterinary University and Ex.A18 attested Photostat copy of Service Register of the deceased, which compared with original and

Page No.9 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

returned to the witness consisting of pages 1 to 31 marked in her evidence.In her cross-examination by the learned Advocate for R3, she admitted that she got employment on compassionate grounds after the death of her mother. She also admitted that she had no personal knowledge about details mentioned in Ex.A18 Service Register of her mother.

15)Against aforesaid evidence of the petitioners, RW.1/ K.K.D.

Sambasiva Rao/2nd respondent has stated on oath in his chief- examination affidavit with regard to contents in his counter. He deposed that he is owner of lorry bearing No.AP 07 TU 4984, which involved in accident, wherein one woman died and accident occurred due to act of

God, but driver of his lorry was arrested and he was charged for the offence U/s.304-A IPC. He deposed that R1 who is driver of his lorry had valid driving licence at the time of accident and his vehicle was also insured with R3 Insurance Company and the policy is valid till 25.09.2014. He further deposed that as his vehicle insured with R3, he is not liable to pay compensation. Ex.B1 insurance policy, dt.04.06.2014 and Ex.B2 Photostat copy of driving licence of R1 marked in his evidence. In his cross-examination by the learned Advocate for R3, he admitted that after motor vehicle accident, he visited the place of accident and came to know that the deceased and driver while crossing the road from left side came into contact with lorry fell down after applying brake to the Honda Activa and there was no negligence on the part of the driver of lorry. In his cross-examination by the learned

Advocate for the petitioners, he denied the suggestion that accident occurred due to negligence of R1.

16)RW.2/D.K.Jitendra Kumar who is working as Legal Officer in R3

Page No.10 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

Insurance Company has stated on oath in his chief-examination affidavit that there is no rash and negligent driving on the part of driver of vehicle bearing No.AP 07 TU 4984 and petition is bad in law for not adding owner and insurer of the vehicle bearing No.AP 16 CJ 7341 and accident occurred due to negligence of rider of motorcycle and the deceased who was not wearing the helmet, which is violation of Section 129 of the Motor Vehicles Act who materially contributed for the cause of the accident. He denied the age and income of the deceased and deposed that the petitioners have not filed Income Tax returns of the deceased and the petitioners are not entitled to claim One crore as a compensation. He prays to dismiss the petition. In his cross- examination by the learned Advocate for the petitioners, he categorically admitted that hewas not an eye witness to the accident and not produced any document to show that the deceased was not wearing helmet at the time of accident and he does not know anything about criminal case records. In further cross-examination by the learned Advocate for R2, he pleaded ignorance about conviction R1 in criminal case registered U/s.304-A IPC.

17)RW.3/P.John/1st respondent summoned by R3 who deposed that he is working as a driver of the vehicle of R2 and he has got valid driving licence and the vehicle also got valid permit and policy on the date of accident. He deposed that on the date of accident, he was driving the vehicle from Hanuman Junction to Vijayawada and he saw red signal was on, due to that all the vehicles stopped on the road and as soon as green signal was on the vehicles were moving slowly and he was also driving his lorry in a less speed and when crossing the junction, a motorcycle came at high speed from the sideline and hit his lorry on the left side, due to that the pillion rider’s head hit against the

Page No.11 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

body of the lorry and accident occurred due to the negligence of rider of two wheeler. In his cross-examination by the learned Advocate for the petitioners, he admitted that criminal case registered against him, wherein he was convicted by Judicial Magistrate of First Class,

Gannavaram.

18)After perusing the evidence on both sides and also the evidence of

PW.2 who was an eye witness to the accident who categorically deposed that manner in which accident occurred. Ex.A1 copy of FIR which shows that it was lodged immediately after the accident, wherein it is categorically mentioned that the driver of offending vehicle came behind the motorcycle, wherein the deceased was proceeding as a pillion rider and left side of the vehicle touched the right shoulder of the PW.2 due to that she fell down and after that accident she fell on the left side of the road, whereas the deceased fell on the right side of the road who sustained head injury and died on the spot. It is not in dispute that R1 who also examined as RW.3 convicted in criminal case registered against him, which is conclusive proof of rash and negligent driving on his part for cause of the accident. Even otherwise, admittedly the deceased was not rider of motorcycle to attribute contributory negligence and manner in which accident occurred deposed by PW.2 coupled with criminal case records supports the contention of the petitioners.

19)In motor vehicle accident claims strict proof of the accident caused in particular manner may not be possible to be done by the claimant as the claimants are merely to establish their case only on touchstone of preponderance of probability and standard of reasonable doubt could not been applied. Further, though proof of negligence is a

Page No.12 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

sine-que-non to maintain a petition U/s.166 of Motor Vehicles Act, when criminal case records proved on record, if remain un-rebutted and unchallenged can be taken to be sufficient, to establish the rash and negligence on the part of the driver of the offending vehicle. Even when any party wants the Court to believe that there was a contributory negligence on the part of the victim, it has to prove the same by adducing cogent evidence and Court cannot substitute its own

Judgment with that of the witness. (vide decision in Bimla Devi and

others, Appellants vs. Road Transport Corporation and others,

Respondents. Supreme Court in Civil Appeal No.2538 of 2009,

Judgment dated 15.04.2009) followed in Anita Sharma and others Vs

The New India Assurance Co. Ltd., Civil Appeal Nos.4010-4011 of

2020, Judgment dated 08.12.2020, wherein the Hon’ble Apex Court reiterated the dictum that the standard of proof in motor vehicle accident cases is on the touchstone of preponderance of probabilities rather than beyond reasonable doubt. The petitioners able to prove that accident occurred due to rash and negligent driving of R1, wherein the deceased died. Hence, this issue is answered in favour of the petitioners against the respondents.

20) ISSUE NO.2:-

The Judicial dictum evolved on the principles of assessing compensation is under the following heads:-

(i) loss of dependency, (ii) loss of consortium, loss of estate and funeral expenses and (iii) contributory negligence if any.

21) The Hon’ble Apex Court in Smt.Sarla Verma and others,

Appellants Vs. Delhi Transport Corporation & another, Respondents,

AIR 2009 SC 3104, laid down that the important factors to be considered while assessing compensation are:-

Page No.13 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

(a) age of the deceased at the time of his death;

(b) income of the deceased at the time of death ; and

(c) the number of dependents left behind.

To adequately take into account all these factors in calculating loss of dependency, the following methodology was adopted:-

Actual income of the deceased per annum (-) personal and living expenses of the deceased (+) future prospects (x) multiplier.

The actual income is based on income less tax if the income is within taxable. The Hon’ble Apex Court Constitutional Bench in National

Insurance Company Limited Vs. Pranay Sethi and others, 2017 ACJ

2700,approved most of the ratio and multiplier as held in Smt.Sarla

Verma’s case referred supra. Now, it would be beneficial to quote para ‘16’ of Pranay Sethi’s casewhich reads as under:- “[61] In view of the aforesaid analysis, we proceed to record our conclusions:-

(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.

(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.

(iii) While determining the income, 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. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.

Page No.14 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.

(vii) The age of the deceased should be the basis for applying the multiplier.

(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs.40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.”

22)It is not in dispute that petitioners 1 and 2 are daughters and 3rd petitioner is the husband of the deceased, who are legal heirs of the deceased who died in a motor vehicle accident due to that they are entitled to file claim application. It is no doubt true that the 1st petitioner is married daughter, 2nd petitioner got employment on compassionate grounds after the death of the deceased and the 3rd petitioner is husband who is getting family pension after the death of his wife in motor vehicle accident. But that itself is not a ground to reject the claim of the petitioners, as they admittedly legal representatives of the deceased who lost love, affection and care of mother and 3rd petitioner lost consortium and care-taker who was admittedly permanent employee in Veterinary College. It is also not in dispute that the 3rd petitioner is suffering from ill-health and the petitioners also produced Exs.A10 to A13 medical certificates of the 3rd petitioner to show that he is suffering from paralytic stroke. PW.4 who is 2nd petitioner and one of the daughter of the deceased who got employment on compassionate grounds produced Ex.A17 and Ex.A18

Service Register of the deceased, which is not in dispute. On perusal of

Ex.A18 which shows that the date of birth of the deceased is 02.03.1972 and the date of accident is 23.09.2014 due to that on the date of accident, the deceased was aged 42 years. Exs.X1 to X11 and the evidence of PW.3 authorized person shows that the deceased was getting salary of Rs.25,400/- per month, which works out to

Page No.15 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

Rs.3,04,800/- per annum. On perusal of Exs.X1 to X11 coupled with

Ex.A18 and the evidence of PW.3 clearly shows that the deceased though joined as Animal Attendant was working as Senior Assistant in the Veterinary College on the date of her death who was permanent employee. As per the ratio laid down by the Hon’ble Apex Court in

Pranay Sethi’s case referred supra 30% has to be added towards future prospects of the income of the deceased, which is Rs.91,440/-. Then, the income of the deceased per annum comes to Rs.3,96,240/-, out of which 1/3rd of the income has to be deducted towards her personal and living expenses, the remainder is Rs.2,64,160/- (396240 x 1/3 = 2,64,160/-). After considering the age of the deceased as 42 years, the proper multiplier to arrive loss of dependency is ‘M14’ as per the

Column No.4 in the Table shown in the decision of Hon’ble Supreme

Court in Smt.Sarla Verma and others, vs. Delhi Transport Corporation & another, AIR 2009 SC 3104. When Rs.2,64,160/- is multiplied with ‘14’, which comes to Rs.36,98,240/-. All the petitioners are entitled to claim a sum of Rs.40,000/- each towards loss of consortium and parental care. A sum of Rs.15,000/- towards loss of estate and a sum of Rs.15,000/- towards funeral expenses. In total, the petitioners are entitled to claim compensation of Rs.38,48,240/-,which is rounded upto Rs.38,48,000/- for the death of the deceased in the motor vehicle accident.

23)As admittedly, the policy was in force for offending vehicle on the date of accident as seen from Exs.B1, B3 and also R3 failed to prove any violation of conditions of the policy, all the respondents are jointly and severally liable to pay the compensation to the petitioners. Hence, this issue is answered accordingly.

Page No.16 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

24) ISSUE NO.3:-

In the result, petition is allowed in part awarding compensation of

Rs.38,48,000/- (Rupees Thirty Eight Lakhs and Forty Eight Thousand only) to the petitioners with interest at 9% p.a., from the date of petition till the date of realization. All the respondents are jointly and severally liable to pay compensation to the petitioners with proportionate interest and costs, which they shall deposit within 30 days from the date of this Award. On such deposit, the compensation amount is apportioned among the petitioners as follows:-

(i) first petitioner/married daughter:- a sum of Rs.9,48,000/- with proportionate interest,

(ii) second petitioner/employed daughter:- a sum of

Rs.9,00,000/- with proportionate interest and costs,

(iii) third petitioner/husband who is suffering from ill-health:- a sum of Rs.20,00,000/- with proportionate interest.

On such deposit, the petitioners are permitted to withdraw a sum of Rs.5,00,000/- each with proportionate interest and rest of their compensation amount, a sum of Rs.4,48,000/-, Rs.4,00,000/- and

Rs.15,00,000/- with proportionate interest shall be deposited in a nationalized Bank for a period of three years and thereafter they are entitled to withdraw the same with accrued interest. The rest of the claim of the petitioners is dismissed, but in the circumstances of the case no order as to costs. Advocate fee is fixed at Rs.10,000/-. The petitioners shall pay Court Fees within 10 days.

Dictated to the Stenographer of this Court, transcribed by him,

corrected and pronounced by me in open Court, on this the 6 th day of May, 2022.

Sd/-B. Syamsunder

Chairman, MAC Tribunal-cum- II Addl. District Judge,

Vijayawada.

Page No.17 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF

PETITIONERS:-

PW.1: K.Mounika. PW.2: P.Padmaja. PW.3: A.Purnachandra Rao. PW.4: K.Keerthi Lakshmi Prasanna.

RESPONDENT NOs.2 and 3:-

RW.1: K.K.D.Sambasiva Rao. RW.2: D.K.Jitendra Kumar. RW.3: P.John.

Documents marked on behalf of the petitioners:-

Ex.A1 Certified copy of FIR. Ex.A2 Certified copy of MVI report. Ex.A3 Certified copy of P.M.report. Ex.A4 Certified copy of charge sheet. Ex.A5 Photostat copy of driving licence of R1. Ex.A6 Photostat copy of policy of the crime vehicle. Ex.A7 Death certificate of deceased-Venkata Rama Devi. Ex.A8 Service certificate of the deceased issued by Sri Venkateswara Veterinary University. Ex.A9 Salary certificate of the deceased. Ex.A10 Discharge summary of 3rd petitioner who was hospitalized for paralytic stroke. Ex.A11 Final bill for the treatment of 3rd petitioner issued by Suraksha hospital. Ex.A12 OP card of 3rd petitioner issued by NRI hospital. Ex.A13 Physically handicapped certificate issued by Dr.Y.Narasimha Rao for 3rd petitioner. Ex.A14 Allotment letter of 2nd petitioner for E-CET admission of the Year 2013. Ex.A15 Marriage card of 1st petitioner along with wedding invitation cover, two photos of the marriage of the 1st petitioner. Ex.A16 Household card of 1st petitioner and other petitioners. Ex.A17 Letter issued by Registrar, Sri Venkateswara Veterinary University, dt.09.12.2021. Ex.A18 Attested Photostat copy of service register of Smt B.V.Ramadevi (consisting of pages 1 to 31)

Ex.X1 True copy of salary certificate of Smt B.V.Ramadevi for the month of August, 2014. Ex.X2 Service particulars. Ex.X3 True copy of service certificate, dt.24.02.2014. Ex.X4 True copy of appointment Order. Ex.X5 True copy of last pay certificate. Ex.X6 General Provident Fund account slip true copy for the year 2013-2014. Ex.X7 True copy of GPF statement. Ex.X8 Leave encashment proceedings. Ex.X9 Pension orders. Ex.X10 Copy of letter, dt.19.11.2021.

Page No.18 of 18 MVOP 393/2015.

Dt:06.05.2022. II ADJ Court, VJA.

Ex.X11 True copy of letter.

Documents marked on behalf of the respondent Nos.2 and 3:-

Ex.B1 Insurance policy, dt.04.06.2014. Ex.B2 Photostat copy of driving licence of R1. Ex.B3 Policy copy.

Sd/-B. Syamsunder

Chairman, MAC Tribunal-cum- II Addl. District Judge, Vijayawada. Prepared by me

Sd/-xxxxx

(B.Srinivas) Stenographer

Page No.1 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

IN THE COURT OF THE METROPOLITAN SESSIONS JUDGE-CUM-

SPL. JUDGE FOR TRIAL OF NDPS ACT OFFENCES: VIJAYAWADA

Present: B.Syamsunder

Metropolitan Sessions Judge

Wednesday, this the 4th day of May, 2022

SESSIONS CASE NO.183/2017

(Cr.No.106/2017 of Proh & Excise Station, Bhavanipuram, Vijayawada)

COMPLAINANT:The State, Proh & Excise Inspector, Proh & Excise Station, Bhavanipuram, Vijayawada.

NAME OF THE ACCUSED:- 1.Sarat Patra, S/o.Maguni Patra, 44 years, Rajput, R/o.Badapori village, Tangi PS, Khudra District, Orissa State. (A1) 2.Praphulla Chandra Patra, S/o.Shiba Prasad Patra, 33 years, Rajput, R/o.Badapori village, Tangi PS, Khudra District, Orissa State. (A2)

OFFENCE CHARGED: U/s.8 (c) r/w.20 (b) (ii) (C) of NDPS Act, 1985. PLEA OF THE ACCUSED: Pleaded not guilty.

This Sessions Case coming on 18.04.2022 before me for final hearing in the presence of Sri T.R.Ashok Kumar, Spl., Public Prosecutor for the State and of Smt M.V.L.Gayatri, Advocate for A1 and A2, and upon hearing and considering the material on record and the matter having stood over till this day for consideration, this Court delivered the following:-

J U D G M E N T

A1-Sarat Patra, S/o.Maguni Patra, aged 44 years and A2-Praphulla

Chandra Patra, S/o.Shiba Prasad Patra, aged 33 years and both are residents of Badapori village, Tangi PS area, Khudra District of Orissa

State stands charged U/s.8 (c) r/w.20 (b) (ii) (C) of NDPS Act as they said to be found in possession of 22 kgs of Ganja on 18.09.2017 at 4.00 p.m., near exit gate of West-South corner of Railway booking counter of

Vijayawada city Railway station.

2)The admitted facts of the case in brief are that both the accused are residents of same village of Orissa State.

3)The matrix of the prosecution case is as under:-

Page No.2 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

On 18.09.2017 at 4.00 p.m., on information about transporting of

Ganja, the Proh & Excise Inspector, Bhavanipuram contacted the mediators over a phone and obtained their consent who also came to

Excise Station at about 4.00 p.m., and then Proh & Excise Inspector,

Proh & Excise Sub-Inspector along with his staff and mediators proceeded to West gate of Vijayawada Railway station in Bhavanipuram and when they were searching for Ganja offenders near the exit gate of

West Railway booking counter, where they found 2 persons with luggage bags on their shoulders and anxiously coming from exit gate and on suspicious they were stopped with the assistance of staff and noticed that one black colour bag with first person and another black colour bag with second person who said to be confessed that they are in possession of Ganja. It is alleged that in the presence of mediators, both the persons were enquired separately who revealed their names, who are accused herein said to be served notice to them U/s.50 of

NDPS Act for which A1, A2 said to be consented for search in the presence of Proh & Excise Inspector, who is said to be Gazetted Officer.

Then, both the accused were searched in the presence of Proh & Excise

Inspector and found that bag carrying by A1 is having two packets of

Ganja wrapped with brown colour tape weighing 14 kgs, i.e., 7 kgs each packet and then bag carrying by A2 also searched, where they found one packet of Ganja weighing 8 kgs. The Proh & Excise Inspector also personally searched both the accused and seized a sum of Rs.1,000/- from A1 and one blue colour mobile phone and a sum of Rs.800/- and one mobile phone from A2 by drafting Mahazar. It is alleged that A1, A2 who got acquaintance with each other used to purchase Ganja and accordingly they purchased Ganja for Rs.18,000/- in Neugada from an unknown person and transporting the same to Noida by traveling via

Page No.3 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

Palasa, Visakhapatnam, Vijayawada to hand over the same to A3

Mr.Pradeep Sahu at Noida of Uttar Pradesh who in turn used to sell

Ganja for Rs.5,000/- per kg. A1, A2 said to be confessed about mobile phone number of A3, which is 9870470318. On the basis of mediator report, a case in Crime No.106/2017 for the offence punishable U/s.8

(c) r/w.20 (b) (ii) (C) of NDPS Act, 1985 registered against A1 to A3 and A1, A2 were sent to the Court for judicial remand. The sample drawn from Ganja seized from A1, A2 sent to chemical analysis and received report that it is ‘Ganja’. As A3 could not be traced who is shown as absconding Investigating Officer filed charge sheet against

A1, A2 after usual investigation. Hence, the charge.

4)This Court has taken the cognizance of the case against A1, A2 for the offence punishable U/s.8(c) r/w.20 (b) (ii) (C) of NDPS Act.

5)On production of accused, copies of records furnished to them

U/s.207 Cr.P.C and after hearing both sides, my learned Predecessor has framed a charge against A1, A2 for the offence punishable U/s.8 (c) r/w.20 (b) (ii) (C) of NDPS Act, read-over and explained to them with the help of Translator by name Sri K.Naresh, Advocate, for which they denied the offence and claimed to be tried.

6)On behalf of prosecution, PWs.1 to 3 were examined. Exs.P1 to P5 and MOs.1 to 8 were marked.

7)After closure of prosecution evidence, the accused were examined

U/s.313 Cr.P.C with the help of Sri G.S.Subrahmanyam, Advocate who knows Oria language, who read over the same to accused, for which they denied the incriminating evidence and reported no defence evidence.

Page No.4 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

8)I have heard both sides.

9)The learned Special Public Prosecutor for prosecution filed written arguments. The learned Special Public Prosecutor for prosecution mainly contended that the accused who belongs to Orissa State purchased Ganja from an unknown person which they were transporting to Noida to hand over the same to A3 which seized by the

Excise police on 18.09.2017 at out gate of Railway station, which is not within the jurisdiction of Government Railway Police. He submits that the evidence of PW.2 and PW.3 who are Proh & Excise Sub-Inspector and Proh & Excise Inspector is corroborative in all material aspects who categorically deposed manner in which Ganja has been seized from both the accused. He argued that nothing is elicited by the defence

Counsel in the cross-examination of PW.2 and PW.3 to disprove the contention of prosecution. He prays to convict the accused.

10)The learned Advocate for the accused mainly contended that Proh & Excise Police have registered false case against the accused for statistical purpose and they violated mandatory provisions of Section 42, 50 and 57 of NDPS Act. She submits that the person in whose presence, i.e., Proh & Excise Inspector said to be Gazetted Officer, both the accused searched is also Investigating Officer, which itself shows that a false case has been foisted against the accused. She argued that

PW.1 one of the mediator projected different version, which is contra to the version of the prosecution, which clearly shows that entire proceedings drafted in Excise Station. It is the contention of the learned

Advocate for the accused that both mediators are stock witnesses and no independent witnesses though available nearby scene of offence called to act as mediators. She prays to acquit the accused.

Page No.5 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

11)Now the point for determination is:- “Whether the prosecution has proved the guilt of both accused beyond reasonable doubt for the offence punishable U/s.8 (c) r/w.20 (b) (ii) (C) of NDPS Act ” ?

12) POINT:-

Before going to the merits of the case, it would be beneficial to

quote Section 42, 50, 52A and 57 of Narcotic Drugs and Psychotropic

Substances Act (In short NDPS Act), which reads as under:- “42. Power of entry, search, seizure and arrest without warrant or authorization.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, -

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the

Page No.6 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

rank of sub-inspector:

Provided further that] if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2)Where an officer takes down any information in writing under sub- section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior”.

“50. Conditions under which search of persons shall be conducted.- (1)When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2)If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3)The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4)No female shall be searched by anyone excepting a female.

(5)When an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6)After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior”.

“52A. Disposal of seized narcotic drugs and psychotropic

substances.— [(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified].

Page No.7 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any

Magistrate for the purpose of —

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or

(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

(3) Where an application is made under sub-section (2), the

Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence”].

“57 .Report of seizure of property of the person arrested by the notified officer.-

Whoever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior”.

13)To prove the charge framed against the accused, the prosecution is relying on the evidence of PW.1, one of the mediator and PW.2, PW.3

Investigating Officers.

14) PW.1 G.Sivaji who is working as an Electrician and residing in

Bhavanipuram area of Vijayawada city has deposed that he got acquaintance with LW.1-G.Nagi Reddy whom he saw in the year 2016 in

I Town Police Station. He also deposed that he came to know that LW.1-

Page No.8 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

G.Nagi Reddy died in the last month due to paralysis. It is the evidence of PW.1 that on 18.09.2017 at 3.00 p.m., when he was present in I

Town Police Station, Vijayawada LW.1-G.Nagi Reddy called him over a phone and asked him to come to Excise Police Station, Bhavanipuram of

Vijayawada city, where he went there at about 4.00 p.m., and at that time LW.1 Mr.Nagi Reddy was present in the Excise Station. He deposed that A1 present in the Excise Station holding two bags and then woman

Sub-Inspector of Police has shown the accused and informed him that they detained them and Ganja was found in their possession and asked him to attest the report prepared by them due to that himself and LW.1

Mr.Nagi Reddy have subscribed their signatures on the report. The signature of PW.1 marked as Ex.P1 He categorically deposed that he cannot identify the bags as incident occurred in the year 2017. The said witness is declared as hostile witness. In his cross-examination by the learned Additional Public Prosecutor, he denied the suggestion that on 18.09.2017 at 5.30 p.m., Excise Police have arrested the accused at

South corner of booking counter of Vijayawada Railway station in his presence and searched them and seized Ganja and prepared mediator's report. In further cross-examination by the learned Advocate for the accused, he also admitted that he acted as mediator in 4 or 5 cases pertaining to Excise Police Station of Bhavanipuram and he has not seen the accused till the date after he saw them in the year 2017. He denied the suggestion that he identified the accused as they were shown to him by the police.

15)PW.2 the then Sub-Inspector of Proh & Excise, Bhavanipuram has deposed that on 18.09.2017 at 4.00 p.m., PW.3 Inspector called her over a phone and informed her that he received information about

Page No.9 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

illegal transport of Ganja and asked her to secure mediators for search proceedings and then she secured the presence of PW.1 and LW.1 Mr.

Nagi Reddy and then they all proceeded to West side booking counter of

Railway station, Vijayawada, where they reached at 4.15 p.m., and noticed A1, A2 are coming out from Railway station with two bags, who tried to skulk away and they were stopped. She deposed that Inspector questioned and interrogated the accused who confessed that they are in possession of Ganja and then Inspector informed the accused about search before Gazetted Officer who is also a Gazetted Officer and then accused gave consent to search before Inspector and thereafter the bags in possession of A1, A2 opened, where they found Ganja which they seized and also they personally searched A1, A2 and seized cash of

Rs.1,000/- and mobile phone from A1 and cash of Rs.800/- and a mobile phone from A2. She also admitted that they have not seized any train tickets. MO.1, MO.2 black colour bags and MOs.3 to 8 sample

Ganja packets marked in her evidence. Ex.P2 mediator’s report also marked in her evidence. In her cross-examination, she denied the suggestion that both the accused does not know any other language, except Oriya language. She admitted that both the mediators knows only Telugu language and Ex.P2 not contains recitals that both the accused knows Hindi language. She further admitted that the scene of offence is a busy locality, where they have not tried to get mediators and mediators whom they signed in Ex.P2 acted as mediators in two other cases registered in their police station. She denied the suggestion that no notice in writing served on the accused about the search by the

Gazetted Officer and they have not mentioned details of person who weighed contraband in Ex.P2. She denied the suggestion that they prepared Ex.P2 in police station and foisted a false case against the

Page No.10 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

accused. It is also admitted by PW.2 that wax seal not affixed on MOs.1 and 2 bags.

16)PW.3 J.Ramesh, the then Proh & Excise Inspector, Bhavanipuram has deposed that on 18.09.2017 at 3.00 p.m., he got information about transportation of Ganja at Vijayawada Railway station and then he called mediators through phone who came to Excise Station at 4.00 p.m., and they all rushed to Railway station at Vijayawada, where they conducted search at South-West booking counter and found two persons were moving in suspicious manner who tried to ran away after noticing them, but they were detained. He further deposed that said persons were holding two black bags in their hands, on enquiry they confessed that they are in possession of Ganja and thereafter he enquired details of said two persons who informed that they came from

Odisha State. It is the evidence of PW.3 that PW.2 Sub-Inspector served

Section 50 notice on accused who also consented that they can be searched before him and thereafter the bags which were holding by them were searched, where they found Ganja and in total 22 kgs of

Ganja seized from both the accused, from which samples were drawn and drafted mediator report. He categorically deposed that he sent

Ex.P3 FIR to Court and also gave information to his superior Officer with regard to arrest and seizure of Ganja from the accused. He further deposed that he sent sample Ganja for chemical analysis through Excise

Superintendent, received Ex.P4 report and he also drafted Ex.P5 rough sketch of scene of offence. In his cross-examination, he admitted that he has not mentioned in Ex.P2 who weighed Ganja. He denied the suggestion that they have not followed Section 52-A of NDPS Act. He admitted that they have not mentioned the details of mediators in Ex.P2

Page No.11 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

mediator report. He also admitted that he has received information, he seized Ganja, drawn the samples and investigated the case.

17)After perusing the evidence of above referred prosecution witnesses, which shows that before this Court, both the accused were examined by my learned Predecessor with the help of Mr.K.Naresh,

Advocate who acted as translator. Further, at the time of 313 Cr.P.C examination also the accused were examined with the help of translator by name Mr.G.S.Subrahmanyam, Advocate who knows Oria language. It is admitted by PW.2 Sub-Inspector that it is not mentioned in Ex.P2 mediator report that contents of it read over to the accused in Oria language and she also admitted that both mediators knows only Telugu language. On perusal of Ex.P2, which shows that it is in Telugu language as if it contents stated by both the mediators and then it is drafted by Sub-Inspector of Police at the time of alleged seizure of

Ganja, cash and mobile phones from the accused. It is only mentioned in Ex.P2 mediator report that contents of mediator report read over by

PW.3 Inspector of police to both the accused in Hindu. It is also not the evidence of PW.3 Inspector of police that he himself translated the contents of Ex.P2 to the accused in Hindi language.

18) Further more, Ganja alleged to have been seized from the accused in the presence of two mediators who admittedly previously acted as mediators in the same police station. Even otherwise, PW.1 one of the mediator gave different version and he has not deposed about arrest and seizure of Ganja from the accused as mentioned in

Ex.P2 mediator report. Though, PW.3 Inspector of police denied the suggestion that they have not followed Section 52-A of NDPS Act. No document is produced before this Court to show that inventory

Page No.12 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

proceedings have been conducted, which is mandatory provision which came into force on 01.05.2014 itself. No document is filed to show that either PW.2 or PW.3 have complied Section 42 of NDPS Act informing the information which they received to immediate Superior within 72 hours and they have also not filed any document to show that after search, it was informed to the immediate Superior within 72 hours as per Section 50 (6) of NDPS Act. They have not filed any document to show that they have complied Section 57 of NDPS Act to show that within 48 hours of arrest either PW.2 or PW.3 informing the same to immediate Superior. Admittedly, PW.3 is said to be Gazetted Officer in whose presence, both the accused were searched and he is also an

Investigating Officer. No document is produced before this Court to show that the accused have consented to be searched before PW.3.

19)In Union of India vs. Bal Mukund and others. 2009 (2) ALD (Crl.) 41 (SC), the Hon’ble Apex Court held that conviction on the basis of statement U/s.67 of NDPS Act without any independent corroboration is not sustainable, wherein it is also discussed the mandatory compliance of Section 42 of NDPS Act and held at para 28, which reads as under:- “28.This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right “that if he requires” to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As Page 2956 already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose – to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must think itself for its lapses. Indeed in every case the end result is important but the means to

Page No.13 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted”.

20) The Hon’ble Apex Court in Arif Khan @ Agha Khan. Appellant vs.

State of Uttarkhand in Crl.A.No.273/2007, Judgment dated

27.04.2018 by following the ratio laid down in State of Punjab vs.

Baldev Singh (1999) 6 SCC 172 held that compliance of Section 50 of

NDPS Act is mandatory and an obligation is cast upon Investigating

Officer to apprise the suspect of his right to be searched before a

Gazetted Officer or a Magistrate.

21)In Bahadur Singh. Appellant vs. State of Madhya Pradesh, AIR 2002 Supreme Court, 289, wherein it is held that search and seizure of narcotic drug when there is discrepancy in evidence in respect of recovery and seizure, the accused cannot be convicted on sole testimony of police witness. In the present case also, no document is filed to show that the prosecution complied mandatory provisions of

NDPS Act. The case as projected by the prosecution and deposed by

PW.1 one of the mediator is contradictory. Even, the prosecution not chosen to produce the mobile phones and cash said to be seized from the accused to support their contention. All these factors creates any amount of doubt with regard to case projected by the prosecution

before this Court. Therefore, this Court is of an opinion that the

prosecution failed to prove the guilt of the accused beyond reasonable doubt for the offence punishable U/s.8 (c) r/w.20(b)(ii) (C) of NDPS Act.

22)In the result, A1 and A2 are found not guilty for the offence punishable U/s.8 (c) r/w.20 (b) (ii) (C) of NDPS Act and accordingly

Page No.14 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

they are Acquitted U/s.235 (1) Cr.P.C. The bail bonds of A1 and A2 shall be in force for a period of Six months U/s.437-A Cr.P.C. MOs.1, 2 black colour bags and MOs.3 to 8 sample Ganja packets are ordered to be destroyed after appeal time is completed. The un-marked cash and two mobile phones are ordered to be confiscated to the State after appeal time is completed.

Dictated to the Stenographer of this Court, transcribed by him,

corrected and pronounced by me in open Court, on this the 4 th day of May, 2022.

Sd/-B.Syamsunder

Spl. Judge for Trial of NDPS Act Cases,

-cum-Metropolitan Sessions Judge,

Vijayawada.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHLAF OF

FOR PROSECUTION FOR DEFENCE

PW.1: G.Sivaji --None-- PW.2: A.Rama Devi. PW.3: J.Ramesh.

DOCUMENTS MARKED ON BEHALF OF PROSECUTION:

Ex.P1 Signature of PW.1 on mediator report, dt.18.09.2017 at 5.30 p.m. Ex.P2 Mediators report, dt.18.09.2017 at 5.30 p.m. Ex.P3 FIR in Crime No.106/2017. Ex.P4 Chemical examiner report. Ex.P5 Rough sketch.

DOCUMENTS MARKED ON BEHALF OF DEFENCE : -Nil-

MATERIAL OBJECTS MARKED:

MO.1 Black colour bag containing two bundles contraband. MO.2 Black colour bag containing one bundle contraband. MOs.3 to 8Sample Ganja packets six in number.

Sd/-B.Syamsunder

Spl. Judge for Trial of NDPS Act Cases,

-cum-Metropolitan Sessions Judge,

Vijayawada.

Prepared by me //True copy by Order//

Sd/-xxx

(B.Srinivas) Chief Administrative Officer Stenographer.M.S.J Court, Vijayawada.

Page No.15 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

TABULAR FORM TO BE APPENDED TO THE JUDGMENT AS

PER RULE 67 OF THE CRIMINAL RULES OF PRACTICE

SC.No.183/2017

(Crime No.106/2017 of Proh & Excise Station, Bhavanipuram, Vijayawada)

01.Serial No.:--

02.Sessions Case No.:S.C.NO.183/2017

03.P.R.C.No.: --

04.Crime No. & Name of:Crime No.106/2017 of Proh & Excise the Police Station.Station, Bhavanipuram, Vijayawada.

05.1.Sarat Patra, S/o.Maguni Patra, 44 years, Rajput, R/o.Badapori village, Tangi PS, Khudra District, Orissa State. (A1) 2.Praphulla Chandra Patra, S/o.Shiba Prasad Patra, 33 years, Rajput, R/o.Badapori village, Tangi PS, Khudra District, Orissa State. (A2)

06.Date ofa) Offence:18-09-2017

b) Complaint:18-09-2017

c) Apprehension:19-09-2017

d) Released on Bail:

e) Commitment:---

f)Commencementof:28-02-2020 trial

g) Closure of trial:18-04-2022

h) Sentence of Order:04-05-2022

Page No.16 of 16 SC.No.183/2017 Dt.04.05.2022 MSJ Court, VJA.

07.RESULT:- In the result, A1 and A2 are found not guilty for the offence punishable U/s.8 (c) r/w.20 (b) (ii) (C) of NDPS Act and accordingly they are Acquitted U/s.235 (1) Cr.P.C. The bail bonds of A1 and A2 shall be in force for a period of Six months U/s.437- A Cr.P.C. MOs.1, 2 black colour bags and MOs.3 to 8 sample Ganja packets are ordered to be destroyed after appeal time is completed. The un-marked cash and two mobile phones are ordered to be confiscated to the State after appeal time is completed.

08.Explanation for the Delay:

This case was taken on file on 13.12.2017. On 26.12.2017 copies of documents furnished to A1, A2. On 02.04.2017 A1, A2 were examined and framed charge against them for the offence U/s.8 (c) r/w. 20 (b) (ii) (C) of NDPS Act, 1985 read over and explained to them, for which they pleaded not guilty and claimed to be tried. On 08.01.2020 the schedule is fixed for trial.

On 28.02.2020 PWs.1 and 2 were examined and Exs.P1, P2 and MOs.1 to 8 were marked. After that due to Covid-19 situation, the case is being adjourned from time to time upto 18.10.2021. On 06.01.2022 PW.3 was examined and Exs.P3 to P5 were marked. On 23.02.2022 A1, A2 were examined U/s.313 Cr.P.C. On 18.04.2022 the arguments heard and prosecution evidence is closed. Judgment pronounced on 04.05.2022. Hence, the delay.

Sd/-B.Syamsunder

Spl. Judge for Trial of NDPS Act Cases,

cum-Metropolitan Sessions Judge, Vijayawada. To

The Registrar (Judicial),

Hon’ble High Court of Andhra Pradesh, Nelapadu, Amaravati.

Copy to

1) The Director of Prosecutions, R&B New Buildings, 1st Floor, Room No.109, M.G.Road, Vijayawada.

2) The Spl. Public Prosecutor, M.S.J Court, Vijayawada.

3) The S.H.O, Proh & Excise Station, Bhavanipuram, Vijayawada.

Prepared by me //True copy//

Sd/-xxx

(B.Srinivas) Stenographer.

Page No.1 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE:

VIJAYAWADA

PRESENT: B.SYAMSUNDER,

II ADDL. DISTRICT JUDGE

Thursday, this the 30th day of June, 2022

OS.No.373/2016

Between:-

Yagati Surya Prasad, S/o.Dr.Y.V.Raghava Rao, R/o.D.No.24B-17-7/1, 31st Division, Pathebad, Eluru – 534 002, West Godavari District, Andhra Pradesh. ….Plaintiff. AND 1.M.C.Christopher, S/o.Manohar, aged 58 years, Working as Deputy Commissioner of Labour, Office of the Commissioner of Labour, Andhra Pradesh, T.Anjaiah Workers Res House, Upstairs of Andhra Bank, Labour Commissioner Office Branch, Opp.Anjaneya Swamy Temple, Chikkadpally, Near RTC X Roads, Hyderabad – 500 020.

2.D.Vara Prasad, S/o.Narasimha Rao, Hindu, Aged 56 years, The Commissioner of Labour, Andhra Pradesh, T.Anjaiah Workers Res House, Upstairs of Andhra Bank, Labour Commissioner Office Branch, Opp.Anjaneya Swamy Temple, Chikkadpally, Near RTC X Roads, Hyderabad – 500 020.

3.The Principal Secretary, Labour, Employment, Training & Factories Department, Government of Andhra Pradesh, A.P.Secretariat, Hyderabad.

4.Asula Ranganayakulu, S/o.Rangaiah, Hindu, aged 50 years, R/o.Plot No.89, Visalandhra Colony, Payakapuram, Vijayawada. …Defendants.

Advocate for Plaintiff: Sri K.Subramanyeswara Swamy.

Advocate for Defendant Nos.1 to 3 : Sri N.Nageswara Rao.

Advocate for Defendant No.4: Exparte.

JUDGMENT

(DELIVERED ON THIS THE 30th DAY OF JUNE, 2022)

Page No.2 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA

1)This is a suit filed by the plaintiff against D1 to D4, claiming damages against D1, D2 only a sum of Rs.17,00,000/- with future interest.

2)The admitted facts of the case in brief are that the plaintiff worked as Additional Commissioner of Labour in the Office of

Commissioner of Labour, Andhra Pradesh at Hyderabad who applied permission to purchase plaint schedule property from D4 as he entered into an agreement of sale with D4 on 27.03.2015 after paying

Rs.17,00,000/- as an advance amount. It is not in dispute that D1 worked as Deputy Commissioner of Labour and D2 worked as

Commissioner of Labour at Hyderabad.

3)The case of the plaintiff in brief is that he is working as

Additional Commissioner of Labour in the Office of Commissioner of

Labour, Andhra Pradesh at Hyderabad and he is a Government servant.

The plaintiff submits that D4 offered to sell the plaint schedule property to him for a sale consideration of Rs.34,00,000/- and executed an agreement of sale on 27.03.2015 in his favour by receiving advance amount of Rs.17,00,000/- and agreed to receive balance of sale consideration amount of Rs.17,00,000/- and to execute registered sale deed within six months from the date of agreement of sale. It is the contention of the plaintiff that he being Government servant as per Rule 9 of AP Civil Services (Conduct) Rules, 1964, he has to obtain permission from Commissioner of Labour (D2) and then he submitted an application to D2 in Form-1 on 18.06.2015 seeking permission to acquire immovable property at Vijayawada which D2 has to grant permission within 30 days from the receipt of application or else it shall be deemed that the plaintiff is permitted to purchase the

Page No.3 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA property and he can go ahead with the transaction. He submits that

D1 is Deputy Commissioner of Labour dealing with administration and working in the same Office who is subordinate to him. He alleged that at the instance of D1, D2 returned his application, dt.18.06.2015, on 25.06.2015 stating that it is not in proper form and asked him to submit certain documents in proof of amounts required for meeting cost of the site which he re-submitted on 29.07.2015 enclosing material required which D2 has to grant permission within 30 days on or before 28.08.2015, even it is treated as fresh application. The plaintiff further submits that to cause loss to him and to obstruct him to purchase plaint schedule property, D1 got issued Memo, dt.14.08.2015 they sought for clarification from the Government and necessary Orders will be passed after receiving the clarification, which he brought to the notice of D2 by way of representation, dt.27.08.2015 that he furnished all particulars in view of Memo, dt.14.08.2015 and also stated in his representation that previously there is no precedent of asking clarification from the Government and if he failed to fulfill the promise made to D4, he will put to loss to a tune of Rs.17,00,000/- as per the terms and conditions of agreement of sale, dt.27.03.2015 and also informed that due to declaration of capital region at Vijayawada, the rates of immovable property has been escalated. He also submits that he requested D4 by addressing a letter on 11.09.2015 requesting two months time for completing sale transaction, for which D4 also replied refusing to grant time and asked him to fulfill the condition of paying balance of sale consideration amount otherwise advance amount will be forfeited. After that the plaintiff requested D2 on 13.09.2015 to furnish note file to know the reasons for seeking clarification from the Government, which clearly

Page No.4 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA shows that D1 acted independently while meddling with file by deviating the orders directions of D2 and asked clarification from the

Government and put the said note separately on 07.08.2015 and submitted file to D2 on 10.08.2015, wherein D2 directed D1 to remind the Government with regard to clarification and not passed any

Orders. He alleged that D1 mis-guided D2 as per note, dt.11.08.2015 that they reminded the Government with regard to clarification. He also alleged that D1 issued intimation, dt.14.08.2015 to him with a view to restrain him to proceed with sale transaction with D4 though he is entitled to proceed with transaction due to deemed clause. He further submits that after limitation period mentioned in the agreement of sale, he informed the real facts to D4 by letter, dt.10.10.2015 and requesting him to refund the advance amount, for which D4 isued reply on 15.11.2015 refusing to refund the advance amount due to failure to fulfill the condition in agreement of sale and he forfeited the advance amount paid by him. The main contention of the plaintiff is that though there is no procedure of seeking of clarification from the Government, D1, D2 kept the file pending till the date of agreement condition, i.e., 30.09.2015, but without getting any clarification from the Government, they granted permission to him to purchase property on 05.10.2015 though they go knowledge that it is not possible for him to proceed with the sale transaction with D4, thereby D1, D2 by their irregular and illegal action caused loss to him to a tune of Rs.17,00,000/- which amount forfeited by D4 as per the terms and conditions of sale agreement, dt.27.03.2015. The plaintiff submits that he issued notice under Section 80 CPC to D1 to D3, which is personally served in the Office on 05.10.2015 and having received the statutory notice, they have not issued any reply and kept quiet and

Page No.5 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA thereby after waiting 60 days, he filed suit for recovery of loss sustained by him due to illegal acts of D1, D2. It is the contention of the plaintiff that D1, D2 by their irregular and illegal actions caused loss to him and he added D3, D4 as proforma parties to the suit and no relief is claimed against them. He submits that as plaint schedule property is situated at Vijayawada and D4 is also residing within the jurisdiction of this Court, he filed the suit before this Court.

4)The 2nd defendant filed written statement which is adopted by D1 and D3 by filing a memo. The 2nd defendant denied the allegations made in the plaint though admitted about plaintiff applying for permission to purchase the plaint schedule property. It is the contention of D2 that suit filed by the plaintiff against D1, D2 in their individual capacity is not maintainable as they are not having any personal liability as alleged by the plaintiff. He submits that any

Government servant intended to purchase any immovable property, shall obtain permission from the competent authority as per Rule 9 of

AP Civil Services (Conduct) Rules, which reads as under:

“Rule 9 (i) of APCCS Rules, 1964, no Government employee shall, except after previous intimation to Government, acquire or dispose off or permit any member of his/her family to acquire or dispose off any immovable property by exchange, sale, purchase, gift or otherwise, either by himself or herself or through others. He submits that the said provision also provides that the Government employee shall submit the particulars prior intimation or seeking prior sanction in the format prescribed”.

5)He submits that the plaintiffshall explain whether he followed

Rule 9 and failing which suit with false allegations asking the

Government to pay a sum of Rs.17,00,000/- with interest is not maintainable. It is also the contention of D2 that the plaintiff agreed to

Page No.6 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA purchase the plaint schedule property from D4 for Rs.34,00,000/- and paying advance amount of Rs.17,00,000/- is not within their knowledge. He submits that the plaintiff is working as Class-I Officer as Assistant Commissioner of Labour who ought to have got knowledge about APCCS Rules. He submits that the plaintiff after entering into agreement of sale with D4 on 27.03.2015 filed an application seeking permission to purchase the plaint schedule property and after receiving the application, they returned the same with an objection to send the application with proper form and thereby the plaintiff sent another application on 29.07.2015 and thereby D2 made remarks and submitted the same to D1 who is dealing with administration and working in the Office of Commissioner of Labour. He submits that they sought permission from D3 who is having over all supervision in respect of administration of Department of Labour, employment and training. He further submits that there is a deemed provision in R9 of APCCS Rules due to that the allegation that because of non-receiving permission the plaintiff sustained loss of

Rs.17,00,000/- is false and incorrect. He submits that there is no clause in agreement of sale, dt.27.03.2015 entered by the plaintiff with D4 forfeiture of advance amount of Rs.17,00,000/- and even if that clause is there, which is not enforceable in law and the contents of agreement shows that the plaintiff has to pay balance of sale consideration of Rs.17,00,000/- to D4 within stipulated time, failing which he is liable to pay balance amount with interest at 24% per annum, but suppressing the same the plaintiff filed the suit with false allegations. He submits that the agreement of sale, dt.27.03.2015 is not time barred by the date of filing of the suit, but the plaintiff instead of agitating against D4 filed false suit against D1, D2 who are

Page No.7 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA

Government officials and discharged their legitimate duties and suit filed by the plaintiff is not maintainable. He submits that before instituting the suit, the plaintiff shall issue notice U/s.80 CPC by showing the details and particulars as per the said provision, which notice not served to them by the plaintiff. He further submits that the plaintiff who is working as Assistant Commissioner in the same

Department shall obtain permission from the Government while filing civil suit against the other Government Officers, which he failed to do so, which is violative of service rules. It is also the contention of D2 that there is no cause of action to file the suit. He prays to dismiss the suit.

6)D4 remained exparte and not chosen to contest the case.

7)On the basis of above pleadings, my learned Predecessor has framed the following issues:- (1)Whether the plaintiff has cause of action to file the suit, in the light of deeming provision on approval?

(2) Whether the plaintiff sustained any loss the delay for granting permission as there is interest clause in the agreement?

(3) Whether the suit is bad for non-compliance of Section 80

C.P.C?

(4) To what relief?

8)On behalf of the plaintiff, he himself examined as PW.1. Exs.A1 to A16 were marked. On behalf of D1 to D3, DW.1, DW.2 were examined, but no documents were marked.

Page No.8 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA

9)I have heard learned Advocate for D1 to D3 and learned

Advocate for plaintiff filed written arguments and also written reply arguments.

10)It is the contention of learned Advocate for the plaintiff that the plaintiff sought permission from D2 to purchase the plaint schedule immovable property by submitting an application in the proper form, which was returned and again he re-submitted the same in time for which though there is no practice of seeking clarification from the

Government, D2 with the instigation of D1 sought clarification from the

Government and not granted permission in time though the plaintiff requested for the same addressing a letter due to that the plaintiff who entered with Ex.A1 agreement of sale transaction with D4 sustained loss of Rs.17,00,000/-. He submits that D1 who is also examined as

DW.2 with a malafide intention and as he thought that the plaintiff is instrumental with regard to obstructing his promotion caused loss to the plaintiff due to that though D1, D2 are Government servants when their action is malafide, they are personally liable for their acts. He argued that the plaintiff put to loss of Rs.17,00,000/- due to malicious action of D2 supported by D1 against rules as they failed to accept or reject his permission application to purchase the plaint schedule property within 30 days. He further argued that it is a clear case of malicious and tortuous acts of D1 and D1 is liable for exemplary damages as a penalty to the extent of loss suffered by the plaintiff and interest and costs. He relied on commentary in the book of MP Jain &

SN Jain Principles of Administrative Law in 6 th Enlarged Edition 2007, wherein precedent law is shown, which is not placed before this Court for perusal though filed Photostat copy of said commentary in the book. It is also peculiar to note that along with written arguments, the

Page No.9 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA plaintiff filed copy of sale deed, dt.10.06.2013 stands in the name of

D4 in respect of plaint schedule property, which he has not exhibited in his evidence. The learned Advocate for the plaintiff prays to decree the suit.

11)The learned Advocates for D1 to D3 mainly contended that at the first instance, the plaint is filed in the official capacity, but it has been corrected by inserting the names to show that suit has been filed against D1, D2 in individual capacity but no initials are put to those corrections, due to that it is not known whether suit is filed against D1,

D2 in individual capacity or official capacity. They submits that at the time of filing of the suit the plaintiff was working as Additioinal

Commissioner of Labour who filed suit against the same Department without seeking permission which is against the service rules. They argued that there is no stipulation in Ex.A1 agreement of sale with regard to forfeiture of advance amount, but there is a recital with regard to payment of balance of sale consideration amount with interest at 24% per annum if it is not paid within the stipulated time.

They further argued that the plaintiff has to obtain prior permission from the Department before purchasing immovable property, even no permission is granted within 30 days, there is deemed clause due to that there is no obstruction for the plaintiff proceeding with transaction which plaintiff failed to do so and failed false suit against D1 to D3. It is the contention of the learned Advocates for D1, D2 that notice issued U/s.80 CPC is defective, which not contains details of D1, D2 as shown in the plaint and admittedly the Commissioner of Labour granted permission to the plaintiff on 05.10.2015 to purchase the property, but the plaintiff without proceeding against D4 by filing a suit

Page No.10 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA for specific performance, filed false suit against D1 to D3, which is liable to be dismissed with exemplary costs.

12) ISSUE NOs.1 AND 2:-

These issues are grouped-up together for the sake of brevity and convenience as discussion in Issue No.1 and 2 are interlinked.

13)The plaintiff is claiming damages from D1, D2 in their individual capacity on the allegations that with malafide intention, D1, D2 not granted permission to him in time to purchase the plaint schedule property due to that D4 forfeited the advance amount of

Rs.17,00,000/- paid to him, thereby he sustained loss and claiming damages from D1, D2. To substantiate his contention, the plaintiff himself is examined as PW.1 who filed his chief-examination affidavit, which contents are replica of contents in the plaint. He deposed that now he retired from service and stated that as per Ex.A16, the

Government entrusted all important subjects to the Additional

Commissioner of Labour including administration after he filed suit. He alleged that D1 acted with malafide intention beyond the purview of his powers as a public servant and liable for his tortuous actions and contention of D1 to D3 that he should proceed against D4 for specific performance of agreement of sale are all presumptory and invented to divert the focus on the tort committed by D1 which exposed by him by filing a suit. Ex.A1 agreement of sale executed by D4 in favour of plaintiff, dt.27.03.2015, Ex.A2 intimation given to the higher authorities seeking permission to purchase the schedule site, Ex.A3 memo issued by D2, dt.25.06.2014, Ex.A4 application seeking permission to purchase site, Ex.A5 memo, dt.14.08.2015, Ex.A6 representation submitted by plaintiff to D2, dt.27.08.2015, Ex.A7

Page No.11 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA letter addressed by plaintiff to D4, dt.11.09.2015, Ex.A8 reply notice, dt.19.09.2015, Ex.A9 memo issued by D2, dt.15.09.2015, Ex.A10 section 80 CPC notice, dt.01.10.2015, Ex.A11 memo, dt.05.10.2015,

Ex.A12 letter addressed by plaintiff to D4, dt.10.10.2015, Ex.A13 letter addressed by D4 refusing the request of plaintiff, dt.15.11.2015,

Ex.A14 office Order, dt.31.03.2016, Ex.A15 memo, dt.15.09.2015 and

Ex.A16 G.O.No.698, dt.17.11.2016 marked in his evidence. In detailed cross-examination, he admitted that he worked as Senior Government

Official and well acquainted with CCA rules and he entered into an agreement of sale to purchase property on 27.03.2015 and by the date of Ex.A1 the terms of sale have been settled and he paid

Rs.17,00,000/- to D4 as an advance. He categorically admitted that there is no clause in Ex.A1 agreement of sale with regard to forfeiture of advance amount, but there is a clause in Ex.A1 that if he failed to pay balance sale consideration amount within time, he supposed to pay the same with interest at 24% per annum. He further admitted that D4 executed agreement of sale on behalf of his daughter, but in

Ex.A1 the name of daughter of D4 is not mentioned. He denied the suggestion that he entered into agreement of sale with D4 prior to obtaining permission from the Government and paid sale consideration without seeking permission from the Government. He categorically admitted that from 1991 to 2001 he had purchased various movable and immovable properties, 14 in number after obtaining permission from the Department and deposed that neither he can admit or deny that the Deputy Commissioner of Labour can seek clarification from the Commissioner of Labour before giving permission. He further admitted that he re-submitted his application on 29.07.2015 attached his Bank statement due to that some delay occurred. He also admitted

Page No.12 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA that if the Department fails to accept or reject his application seeking permission within 30 days, it is deemed that permission has been granted for purchasing the property. He further admitted that in Ex.A7 that he has not mentioned that he is ready to enforce the agreement by paying interest for the default period and D4 not issued any re- joinder notice for the notice issued by him. He also admitted that on 10.10.2015 permission was granted to him by the Department to purchase plaint schedule property and added that the said permission granted after receiving Section 80 CPC notice. It is also admitted by

PW.1 that he has not initiated any legal action against D4 for forfeiture of his advance amount and he deposed that in the application submitted to the Department seeking permission, he has not mentioned the name of original owner and he has not obtained permission to file a suit, but till now he has not received any reply. He denied the suggestion that suit filed by him against D1, D2 in their individual capacity is not maintainable though admitted that there is no signature of scribe or attestor in Ex.A1 agreement of sale.

14) Against aforesaid evidence of plaintiff, DW.1/B.Ajay, the present

Additional Commissioner of Labour has stated on oath in his chief-

examination affidavit with regard to averments in the written statement of D2. He deposed that his evidence is based on records available in the Office and his Office has not taken any objection for non-enclosure of link document. He denied the suggestion that due to typographical mistake it is wrongly mentioned in Ex.A1 agreement of sale that D4 is executing the document on behalf of his daughter though he is actual owner. The said version suggested to PW.1 is contra to the evidence of PW.1. DW.1 admitted that they have not returned the file because the vendor of the plaintiff has got defective

Page No.13 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA title. He admitted that they have not received any clarification from the Government with regard to permission on application of plaintiff to purchase the plaint schedule property. He deposed that D1 retired from service and admitted about deemed clause in Rule 9 of APCCS rules. He further admitted that they received Section 80 CPC notice from the plaintiff, for which they have not issued any reply and by the date of receiving Section 80 CPC notice, his Department accorded permission to the plaintiff to purchase property. It is suggested to

DW.1 that the Hon’ble Supreme Court passed Orders in SLP that the promotion of D1 is illegal and then D1 filed Writ petition before Hon’ble

High Court of Andhra Pradesh and obtained stay, for which he pleaded ignorance. He denied the suggestion that D1 in collusion with D2 with malafide intention created troubles to plaintiff and he is not competent to depose in this case.

15)DW.2 Mr.Carl Christopher (D1) has stated on oath in his chief- examination affidavit with regard to averments in the written statement filed by D2. He deposed that the allegations made by the plaintiff against him in the plaint are baseless and suit is filed only to harass him, which is liable to be dismissed. In his detailed cross- examination, he admitted that he has not filed written statement as

D1 in this case but he knows the contents of written statement filed by

D2. He deposed that he retired from service on 30.11.2017 as Deputy

Commissioner of Labour in the Office of Commissioner of Labour at

Vijayawada, where he worked from June, 2013 till his retirement. He admitted about contents in Column No.13 in Ex.A2 about source of funds to purchase plaint schedule property by the plaintiff. He admitted about hand writing shown at page No.5 in paras 23 and 24, wherein he mentioned that they requested the Government to intimate

Page No.14 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA the action taken on the clarification sought by the Office and clarification is pending with the Government. He denied the suggestion that as plaintiff questioned certain acts made by him about his promotion, he bore grudge against him and issued Ex.A5 letter without any authority. He further denied the suggestion that he illegally issued

Ex.A5 to cause delay in issuing permission to purchase property by the plaintiff under Ex.A1, thereby he caused loss to the plaintiff and he is liable to pay compensation.

16)After perusing the evidence on both sides, it is pertinent to note that most of the documents which plaintiff has filed and marked as

Exs.A1 to A16 are not in dispute and contention of the plaintiff is that as delay occurred in granting permission to purchase plaint schedule property, he sustained loss and D1, D2 with a malafide intention not granted permission to purchase plaint schedule property, thereby he sustained loss as D4 forfeited his advance amount. The fact remains is that the contents of Ex.A1 clearly shows that there is no clause of forfeiture of advance amount said to be paid by the plaintiff to D4 and it is admitted by PW.1 that there is clause that if the advance is not paid in time, which has to be paid with interest at 24% per annum. It is also not in dispute that there is deemed clause in Rule 9 of AP Civil

Services (Conduct) Rules, 1964 when any Government employee could not get permission within 30 days though applied, it is deemed to have granted. If that is so, it is not known why the plaintiff though expiry of 30 days no permission is granted or rejected he has not proceeded with sale transaction with D4. The main cause of action for filing the suit is that D1, D2 have not granted permission within stipulated time due to that plaintiff said to be sustained loss. But the fact remains is that on 05.10.2015 permission has been granted though it is after

Page No.15 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA receiving notice issued by the plaintiff. Admittedly, after getting permission the plaintiff not proceeded with sale transaction and chosen to file the suit without proceeding against D4 if he is so advised.

17)It is no doubt true that suit is filed at the first instance in the official capacity against D1, D2 and after that names of D1, D2 in their individual capacity are inserted without any initials in the plaint and not filed any amended copy of plaint as rightly contended by the learned Advocates for D1 to D3. It is also not clear in the prayer portion of the plaint whether plaintiff is seeking decree against D1, D2 in their individual capacity or official capacity as he only mentioned that seeking decree against D1, D2. Further, it is not specifically stated in the plaint that D1 with a malafide intention put up note before D2 and D1, D2 having malafide intention not accorded permission within time. PW.1 admitted that previously he purchased 14 movable and immovable properties right from 1991 to 2001 and which contents admitted by DW.2 clearly shows that D1 to D3 sought clarification from the Government as plaintiff previously has purchased many immovable or movable properties due to that no malafide intention can be attributed against D1, D2 keeping the application of plaintiff as pending. Further, what all suggested to DW.2 with regard to intentionally delaying permission application due to allegation of plaintiff interfered with the promotion of D1 is not deposed by PW.1 and also not stated in the plaint. When the plaintiff got permission to purchase plaint schedule property before institution of suit, it is not known how the plaintiff has got cause of action to file a suit against the plaintiff and when there is no clause in Ex.A1 with regard to forfeiture of advance amount as alleged by the plaintiff. It is admitted by PW.1 that he being Government servant shall obtain permission

Page No.16 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA from the Department while purchasing any immovable property.

Admittedly, he entered into Ex.A1 agreement of sale transaction and said to be paid Rs.17,00,000/- to D4 without obtaining permission from the Department. The column shown in Ex.A4 with regard to source of income and attaching Bank statement not clear about payment of advance amount of Rs.17,00,000/- to D4. The pleadings and evidence adduced by both sides clearly shows that the plaintiff instead of proceeding against D4 in view of Ex.A1 transaction chosen to file suit against D1, D2 in their individual capacity though

Department has granted permission under Ex.A11, dt.05.10.2015.

Which also admittedly intimated by the plaintiff to D4, for which D4 said to be refused to perform his part of contract due to that relief for plaintiff is not by filing suit against D1, D2 and he can proceed against

D4 if he is so advised, which he failed to do so.

18)The ratio laid down in the decision relied on by the learned

Advocate for the plaintiff discussed in commentary on administrative law is not applicable to the facts of the present case in view of no pleadings with regard to alleged malice on the part of D1, D2 and even documentary evidence placed before this Court shows that there is no malafide intention on the part of D1, D2. Even the plaintiff could not get permission from D1, D2 in time, in view of deemed Clause under

Rule 9 C.C.A.rules, he ought to have proceed with transaction, which he failed to do so. Therefore, this Court is of an opinion that there is no cause of action to file the suit and plaintiff cannot seek any relief against D1, D2 in their individual capacity for his alleged loss as there is no Clause of forfeiture of advance amount in Ex.A1. Hence, these issues are answered in favour of D1, D2 against the plaintiff.

Page No.17 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA

19) ISSUE NO.3:-

It is the contention of D2 in his written statement that notice

U/s. 80 CPC is not issued to them due to that suit is not maintainable.

DW.1 categorically admitted that they received notice under 80 CPC from the plaintiff. Though Ex.A10 notice not contains details as required, but defect in notice will not go to the root of the case as plaintiff has mentioned all details in his notice. Therefore, though there is no cause of action to file a suit as held by this Court in Issue Nos.1 and 2 and due to the defect in Section 80 CPC notice, the suit is not bad. Hence, this issue is answered accordingly.

20) ISSUE NO.4:-

In the result, suit is dismissed with costs.

Dictated to the Stenographer of this Court, transcribed by him,

corrected and pronounced by me in open Court, on this the 30 th day of June, 2022.

Sd/-B. Syam Sunder

II Addl. District Judge,

Vijayawada.

Appendix of Evidence

Witnesses examined on behalf of

Plaintiff:- Defendants 1 to 3:-

PW.1 Y.Surya Prasad.DW.1 B.Ajay. DW.2 M.Carl Christopher.

Documents marked on behalf of plaintiff:-

Ex.A1 Agreement of sale executed by D4 in favour of plaintiff, dt.27.03.2015. Ex.A2 Intimation given to the higher authorities seeking permission to Purchase the schedule site. Ex.A3 Memo issued by D2, dt.25.06.2014. Ex.A4 Application seeking permission to purchase site. Ex.A5 Memo, dt.14.08.2015. Ex.A6 Representation submitted by plaintiff to D2, dt.27.08.2015. Ex.A7 Letter addressed by plaintiff to D4, dt.11.09.2015. Ex.A8 Reply notice, dt.19.09.2015. Ex.A9 Memo issued by D2, dt.15.09.2015. Ex.A10 Section 80 CPC notice, dt.01.10.2015. Ex.A11 Memo, dt.05.10.2015.

Page No.18 of 18 OS 373/2016 Dt.30.06.2022 II ADJ Court, VJA

Ex.A12 Letter addressed by plaintiff to D4, dt.10.10.2015. Ex.A13 Letter addressed by D4 refusing the request of plaintiff, dt.15.11.2015. Ex.A14 Office Order, dt.31.03.2016. Ex.A15 Memo, dt.15.09.2015. Ex.A16 G.O.No.698, dt.17.11.2016.

Documents marked on behalf of the defendants 1 to 3:- NIL.

Sd/-B. Syam Sunder

II A.D.J., VJA.

Prepared by me xxxxxx (B.Srinivas) Stenographer