Sri CH.A.N.Murthy

OS No.72 of 2008 1 Dt:3-5-2017

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE AT

SHADNAGAR.

Wednesday the 3rd day of May, 2017

Present: Sri. Ch. A. N. Murthy, Prl. Junior Civil Judge, Shadnagar.

O.S.No.72 of 2008

Between:

1.Ginkuntla Pentaiah @ Buyyani Pentaiah S/o late B.Balaiah, Age.50 years, Occ: Business, R/o Bhoodevinagar, Alwal, Secunderabad.

2.Ginkuntla Venkatesh @ Buyyani Venkatesh S/o late Balaiah, Age.47 years, Occ; Private work, R/o Patel nagar, Amberpet, Hyderabad.

3.Ginkuntla Mallesh @ Buyyani Mallesh S/o late Balaiah, Age.44 years, Occ: Private work, R/o 2-3-790/20/39. 6 number bus stop, Amberpet, Hyderabad, New Tulsiramnagar, Golnaka, Hyderabad.

4.B.Suvarna W/o B.Raghu, Hindu, aged 38 years, Occ: House wife R/o 2-3-790/20/39, New Tulsiram-nagar, 6 number bus stop, Amberpet, Hyderabad, Golnaka, Hyderabad.

… Plaintiffs.

And

1.Buyyani Narsimlu S/o late Venkatesh, Aged.53 years, Occ: Business.

2.Buyyani Manemma W/o Bheemaiah, Age.48 years, Occ: House wife/Agrl., labour.

Both resident of Muttupoor village of Kondurg Mandal, Mahabubnagar District.

... Defendants.

Sub:- Suit for cancellation of sale deeds and recovery of possession.

***

This suit is coming before me on 06-03-2017for disposal in the presence of Sri K.V.D Chary, Advocate for Plaintiffs, and of Sri

M.A Kareem, learned counsel for Defendants 1 and 2 and upon perusing the material papers and documents on record and the matter having been stood over for consideration, this court delivered the following.

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J U D G E M E N T

1. Suit filed by the plaintiffs against the defendants seeking cancellation of sale deeds and recovery of possession of the suit property by metes and bounds.

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

Plaintiffs are the owners and successors of the suit land admeasuring Ac.3-35 gts., in Sy.No.279, situated at Mutpur village,

Kondurg Mandal, Mahabubnagar District. Originally their paternal grand-mother viz., Ginkuntla Sayamma @ Buyyani Sayamma w/o late Machaiah was the owner and possessor of the suit property and she enjoyed the said property during her life time by cultivating the same with the assistance of his only son Ginkuntla @ Buyyani Balaiah, who also residing with his mother. Sayamma died long back and during her life time, out of natural love and affection, got transferred the said property in the name of his only son Buyyani Balaiah @ Ginkuntla Balaiah, father of the plaintiffs herein and mutated the said property in favour of the said

Ginkuntla @ Buyyani Balaiah in the concerned Revenue records.

Subsequent to the death of the said Ginkuntla @ Buyyani

Sayamma, the only son of her by name Ginkuntla @ Buyyani

Balaiah and the plaintiffs became the joint owners and possessors of the said property and due to professional, employment and business purposes, the plaintiffs 1 to 3 left the suit schedule area and settled down in twin cities of Hyderabad and Secunderabad long back, and their father looked after the suit schedule property and cultivating the same during his life time. Since 1988, the father

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of the plaintiffs affected with mental disorder and taking medical treatment, and the plaintiffs frequently visiting their father and looked after his ill-health father. Plaintiffs’ father is an illiterate person and not keeping good health and suffering from mental disorder, their father Ginkuntla @ Buyyani Balaiah died intestate in the year 1997 leaving behind the deceased, the plaintiffs herein as his sole legal heirs and successors. During the life time of

Buyyani Balaiah, he has neither alienated nor transferred nor conveyed the said property in any body’s favour, as everybody knows that the Buyyani Balaiah is a mentally disabled person, and further every person knows that the plaintiffs are the sole legal heirs and joint owners of the suit schedule property. Subsequent to the death of the father of the plaintiffs herein, due to the business/professional affairs of the plaintiffs 1 to 3, and 4th plaintiff who is only daughter and house wife and due to her household activities, they did not visit the suit property.

In the first week of December, 2007, when the plaintiffs 1 to 3 visited the suit property to supervise the same and to lease out the suit schedule property to a tenant, who knows the cultivation, but to the utter shock, dismay and surprise of the plaintiffs herein, the defendants 1 and 2 and their henchmen by colluding with each other and under the influence of manpower and muscle power, and also taking undue advantage of the absence of the plaintiffs in the suit property, illegally and forcibly occupied the suit schedule property, and when the plaintiffs questioned the illegal occupation of the suit property, the defendants and their henchmen, threatened the plaintiffs with dire consequences. The plaintiffs also

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lodged a complaint to the concerned police officials against the defendants, but the police are hand-in-glove of the defendants, did not take any action and advised the plaintiffs to approach the court of law for necessary reliefs.

The plaintiffs are the only legal heirs and successors of their maternal-grand-mother and father, and hence they are only owners of the suit schedule property, and the defendants forcibly and under forged and fabricated documents occupied the suit property, hence the plaintiffs seeking directions from the court to the defendants, directing them to vacate and handover the vacant possession of the suit schedule property in favour of the plaintiffs herein. Hence the suit.

3. After service of summons, the defendants entered appearance and filed their written statement denying the material allegations contained in the plaint. The contentions of D1 and D2 in brief are as follows:

One Ginikunta Sayamma was the owner and possessor of the agricultural land of suit schedule property for an extent of Ac.03-35 gts, situated at Mutpoor village, Kondurg Mandal, Mahabubnagar

District, that during the life time of said Ginikuntla Sayamma transferred the suit schedule property to her son Ginikuntla

Balaiah, who is a father of the plaintiffs herein. After the above said transfer the said Ginikuntla Balaiah got mutated the same in revenue records as pattedar and possessor of the suit schedule property and enjoyed the lands till 1990. In the month of April, 1990 to meet the pressing family necessities the said Balaiah sold the suit schedule property to the defendants through registered

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sale deeds vide document No.700/90, dated 06-04-1990 for an extent of Ac.01-37 gts., of Southern side portion to the defendant no.1 and vide document no.699/90, dated 06-04-1990 for an extent of Ac.01-38 gts., i.e., Northern side portion to the Defendant

No.2 and delivered the peaceful vacant possession of the same to the defendants herein. Since the date of purchase, the defendants herein are in possession and enjoyment of their respective portions to the knowledge of one and all including the plaintiffs. These defendants have got mutated their names as pattedars and possessors for their respective portions in revenue records and the

Revenue authorities have also issued the pattedar pass books and title deeds to these defendants.

The said Balaiah after becoming the absolute owner and possessor of the suit schedule property to meet his family necessities sold the suit schedule property as stated supra to these defendants and delivered the peaceful vacant possession to them during his life time itself. As such the question of “testamentary”, “Intestate”, “Succession does not arise.

The plaintiffs have no right to seek any cancellation of the registered sale deeds in respect of the suit schedule property. The plaintiff filed the present suit only to extract money from the defendants. The plaintiffs have no locus standi to institute the suit and hence the suit is liable to be dismissed.

4. Basing on the above pleadings the following issues are settled for trial.

1.Whether the plaintiffs are entitled for the declaration that the sale deed No.699/90 dated 6-04-1990 executed by late

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Gunikuntla @ Buyyani Balaiah in favour of D2 is null and void and not binding on the plaintiffs?

2. Whether the plaintiffs are entitled for the declaration that the sale deed No.700/90 dated 6-04-1990 executed by late Gunikuntla @ Buyyani Balaiah in favour of D1 is null and void and not binding on the plaintiffs?

3.Whether the plaintiffs are entitled to recover the possession of the suit land from the defendants as sought for?

4.Whether the purchase of the suit land by the D1 and D2 under the sale deeds No.699/90 and 700/90 dated 6-04- 1990 are supported by family necessities of the vendor Giinkuntla @ Buyyani Balaiah?

5.Whether the suit is barred by limitation?

6.To what relief?

5. To prove the case, the plaintiff no.1 is examined as P.W.1 and

Ex.A1 to A11 are marked, and P.Ws.2 and 3 are examined on behalf of the plaintiffs. On behalf of the Defendants, D.Ws.1 to

D.W.3 were examined and got marked Ex.B1 to B39 documents.

6. Heard both sides,

7. Issue Nos.1 to 3:-

1. Whether the plaintiffs are entitled for the declaration that the sale deed No.699/90 dated 6-04-1990 executed by late Gunikuntla @ Buyyani Balaiah in favour of D2 is null and void and not binding on the plaintiffs?

2. Whether the plaintiffs are entitled for the declaration that the sale deed No.700/90 dated 6-04-1990 executed by late Ginukuntla @ Buyyani Balaiah in favour of D1 is null and void and not binding on the plaintiffs?

3. Whether the plaintiffs are entitled to recover the possession of the suit land from the defendants as sought for?

It is the case of the plaintiffs that the father of the plaintiffs

Ginukunta @ Buyyani Balaiah is an illiterate person and not

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keeping good health and suffered mental disorder, that the plaintiffs' father died intestate in the year 1987 leaving behind him the plaintiffs herein as his legal heirs and successors and during his life time, he neither alienated nor transferred nor conveyed the suit schedule property in anybody’s favour and everybody knows about the mental disorder of the plaintiffs father and it is to the knowledge of every one that the plaintiffs are the sole legal heirs and joint owners of the suit schedule property that the defendants 1 and 2 colluded together and illegally and forcibly occupied the suit property prior to December 2007, that the plaintiffs 1 to 3 visited the suit lands and came to know about the illegal occupation of the suit lands by D1 and D2. Accordingly to the plaintiffs, on 24-12-2007, a registered legal notice was issued by the defendants calling upon to vacate and hand over the suit schedule property within 15 days from the date of receipt of legal notice. The defendants received the said notice and got issued reply on 31-12-2007 with false and baseless allegations, that the defendants taking undue advantage of the mental ill-health of the plaintiffs father created the sale deeds vide document no.700/90 (Ex.A5) and 699/90 (Ex.A6) dated 6-04-1999 with a malafide intention to grab the suit schedule property by forging the signatures of plaintiffs’ deceased father and thus the said sale deeds Exs.A5 and A6 are null and void and liable to be cancelled and consequently the plaintiffs are entitled for recovery of the possession of the suit schedule land from the defendants.

From a perusal of the plaint averments, it is crystal clear that the plaintiffs father Ginukuntla Balaiah died intestate in the year

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1997 and it is the admitted case of the plaintiffs that 7 years prior to the death of the plaintiffs' father Exs.A5 and A6 appeared to have been executed by the said Balaiah. Nowhere in the plaint it was mentioned that the plaintiffs father was suffered ill-health mentally from such and such a date prior to his death and it is the admitted case of the plaintiffs that only in the year 2007, the plaintiffs came to know about the alleged execution of such sale deeds by their father about 20 years back. It was averred in the plaint as if, the plaintiffs father was affected and suffered mental disorder since 1988. It is the admitted case of the plaintiffs, that without executing any documents in respect of the suit schedule property, the plaintiffs' father died, but from the very plaint averments it is crystal clear that by the year 1997, the plaintiffs' father has already alienated the suit schedule property about 7 years back.

To substantiate the contentions of the alleged mental illness of the plaintiffs father, the plaintiffs have exhibited the Medical

Certificate issued by Dr.KTR Swamy dated 20-12-2008 as Ex.A10 and they have also exhibited a Book containing Medical

Prescriptions issued by the said Doctor on different dates from 07- 06-1988 till 14-10-1994 as Ex.A11. But curiously the plaint averments nowhere reveals such minute details about the mental ill-health suffered by the plaintiffs’ father and about the issuance of

Medical Certificate by the said Doctor. A perusal of Exs.A10 and

A11 reveal as if the plaintiffs father Ginukunta Balaiah has suffered Mental depression with nurosis and he was under his treatment and care with effect from 07-06-1989 to 14-10-1994. If

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really as on the date of filing of the suit, Exs.A10 and A11 are in existence, such documents ought to have been filed along with the plaint and the plaintiffs ought to have mentioned those medical details of the plaintiffs’ father in the plaint averments itself and the absence of such details in the plaint speaks volumes about the manner in which Exs.A10 and A11 were brought into existence and the conduct of the plaintiffs is very much doubtful.

The second plaintiff, who is examined as Pw.1 during the course of his cross-examination stated at one breath that his father died in the year 1997, but at another breath he stated that his father died in the year 1997 or 1998. Pw.1 volunteers that he left the village since his father looked after his welfare after his mother's death on 28-05-1970. At another breath, Pw.1 stated that his father became sick in the year 2004 or 2005 and then he started providing medicine to him and he admits that he has not mentioned in Ex.A7 legal notice dated 24-12-2007 about the mental illness of his father, but he volunteers that even prior to that his father suffered mental illness.

A perusal of the recitals of Ex.A7 Legal notice, no-where reveals about the unsoundness of mind of the plaintiffs father and nowhere in Ex.A7 Legal notice, it was mentioned that plaintiffs father G.Balaiah suffered mental illness and the said plea was taken by the plaintiffs for the first time in the plaint and it can clearly be said that the plaintiffs have taken such a plea as an afterthought to substantiate their contentions. If really, the plaintiffs’ father suffered mental illness and Exs.A10 and A11 were issued by the concerned doctor, it would have been mentioned in

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Ex.A7 Legal notice as well as in the plaint. A perusal of Ex.A7 only reveals that plaintiffs' father was an illiterate person and taking advantage of the same, under the influence of man and muscle power, the defendants have created forged and fabricated documents. Taking contradicting stands by the plaintiffs at their will and wish at different stages i.e., at the time of issuance of

Ex.A7 notice, at the time of filing of the suit and at the time of evidence, would only show the conduct of the plaintiffs in coming up with the instant claim in the suit lands, that too after a long lapse of time and that is the reason why, in the earlier paragraphs of the Judgment, this court made an observation that the very existence of Exs.A10 and A11 i.e. Medical Certificate and Medical

Prescription Book dated back to 23-12-2008 is very much doubtful.

The plaintiffs, apart from exhibiting Exs.A5 to A11 documents, have also exhibited Exs.A1 to A4 pahanies, which are the pahanies for the years 1984-85,1972-73, 1989-90, 203-04.

A perusal of Exs.A1 and A2, which reveal the name of Plaintiffs’ father G.Balaiah as the Pattedar and Possessor in respect of the suit lands and there is no dispute with regard to the ownership of the suit lands prior to the alienation in favour of the defendants.

Ex.A3 is the R.O.R for the year 1989-90, which clearly reveals the names of D1 and D2 as pattedar and possessor and in column no.10, the sale deed numbers were clearly mentioned and the said sale deeds were executed by the plaintiffs father as long back as in the year 1990 were respectively marked as Exs.A5 and A6.

Thus the documentary evidence adduced by the plaintiffs clearly substantiate as to how the defendants 1 and 2 have

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acquired the suit lands from the plaintiffs father as long back as in the year 1990 as per Exs.A5 and A6 and the plaintiffs taking different stands at different times by playing the game of convenience at their will and wish as regards the execution of

Exs.A5 and A6 in favour of D1 and D2 and with regard to the mental condition of the plaintiffs father at that time by exhibiting

Exs.A10 and A11 as an afterthought, will no way come to the rescue of the plaintiffs in establishing their case in the suit land.

On the other hand, it is the specific case of the defendants that they are the exclusive owners and possessors of the suit schedule land, since the date of its acquisition as per Exs.B1 and

B2 (Exs.A5 and A6) and as to how they have been in possession and enjoyment of the same since 1990 till date and the defendants have exhibited Ex.B3 to B34 pahanies which clearly reveal the continuous and uninterrupted possession of the defendants 1 and 2 in the suit schedule land since date of Exs.B1 and B2 till the date of filing of the suit and also subsequently and Exs.B35 to B37 Land

Revenue receipts would show the payment of land revenue by the defendants and Exs.B38 and B39 are the legal notice and postal acknowledgement, which are nothing but a replica of Exs.A7 and

A9.

Thus the documentary evidence adduced by the defendants vide Exs.B1 to B39 clinchingly establishes the absolute ownership and continuous and uninterrupted possession of the defendants 1 and 2 in the suit schedule lands and disproves the claim of the plaintiffs in the suit schedule property as averred in the plaint and it can safely be said the mental illness pleaded by the plaintiffs

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coupled with the Medical Certificate and Medical Prescription vide

Exs.A10 and A11 is only with a malafide intention to grab the suit lands from the defendants 1 and 2, which they are acquired validly and legitimately and I see every force in the contentions advanced by the learned counsel for the defendants that the plaintiffs filed this suit only due to escalation of land values.

In this back drop, we have to scan through the oral evidence adduced by both parties. Though Pw.1, who is the second plaintiff stated in his chief examination as if the defendants colluded and forcibly occupied the suit land and got created Exs.A5 and A6 sale deeds, as stated by me earlier, the plaintiffs have taken inconsistent stands at different points of time only to suit their case with a malafide intention to grab the suit land and the averments mentioned in the chief affidavit of Pw.1 are nothing but a reiteration of the plaint averments. During the course of cross- examination, Pw.1 categorically stated that he left for Hyderabad for his livelihood in the year 1970 and in the year 1974, he came back to Muthpur village and stayed there for one month and thereafter, he used to visit Muthpur once in a month or once in two months. Pw.1 categorically stated that during his visits to Muthpur village since 1990, he never enquired about the details of the suit lands and it is his evidence that subsequent to 1998 till 2007, he never visited Muthpur. Pw.1 in his own words stated that he came to know about the possession of D1 and D2 in the suit land for the first time in the year 2008. In such circumstances, as to how the plaintiffs issued legal notice Ex.A8 on 31-12-2007 itself and he categorically stated that he has not mentioned about the mental

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illness in Ex.A7 Legal notice. Pw.1 categorically stated that he has not filed any document to show their possession in the suit lands subsequent to the year 1990.

It is the admitted case of the plaintiffs that the father of the plaintiffs has suffered mental illness since 1989 and they have filed

EXs.A10 and A11 to substantiate the said aspect. In such circumstances, as to why the plaintiffs never taken care of their father till his last breath and it is highly incredible that the plaintiffs are unaware of the lands owned by the plaintiffs’ father from 1988 till 1997 and the sale transactions made by their father.

Pw.2 also reiterated the case of the plaintiffs in his chief examination by stating as if the plaintiffs’ father never sold the property to anybody. During the course of cross examination, Pw.2 categorically stated that their enquiries revealed that the defendants 1 and 2 have been in possession and enjoyment of the suit lands since 1981 by virtue of a registered sale deed obtained by them. If that be so, as to why the plaintiffs did not challenge the

Exs.A5 and A6 from 1991 till 2007 is a thousand dollars question which was left un answered.

Pw.2 deposed that he does not know in which hospital, the plaintiffs father Balaiah was treated and he came to know the said fact through Pws.1 to 3 and it is his evidence that prior to filing of this suit itself, the plaintiffs got treated their father Balaiah as he suffered from illhealth, but it is his evidence that the plaintiffs did not inform him about the illhealth of Balaiah, when he suffered such illhealth. If really the plaintiffs father suffered ill-health mentally at the time of execution of Exs.A5 and A6, the plaintiffs

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would have mentioned the said fact in the registered legal notice issued by them, but a perusal of Ex.A7 nowhere reveals the mental illness of plaintiffs father and as such it can be said that the plaintiffs father has executed Exs.A5 and A6 voluntarily with free will and volition, but not with an unsound mind as pleaded by the plaintiffs.

Pw.3 deposed in his cross-examination that the suit is filed by the plaintiffs as some third persons have created one registered sale deed in respect of the suit land illegally and he came to know through plaintiffs that the plaintiffs’ father Balaiah become mentally sick person. Pw.2 has gone further and stated as if he has observed the said Balaiah when he was kept in a room. Pw.3 is speaking falsehood by deposing exaggerated his version than that of the case of the plaintiffs themselves.

Thus the oral evidence of Pws.1 to 3 no way substantiate the claim of the plaintiffs in the suit lands.

The first defendant examined himself as D.W.1, who categorically stated, as to how himself and his wife have purchased the suit lands more than 27 years back and as to how they are in possession and enjoyment of suit lands.

Nothing incriminating has been elicited from the cross examination of D.W.1 to discard the testimony of Dw.1. For most of the suggestions put by the learned defence counsel, the witness

Dw.1 denied the same. Dw.1 denied a suggestion that he has mentioned in Ex.A8 that prior to alienation of the land in an extent of Ac.01-37 gts., in his favour, the plaintiffs father has already sold the suit land in an extent of Ac.01-38 gts., to D2. Thus the

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evidence of Dw.1 no way enriches the case of the plaintiffs in any manner.

D.W.2 stated in his cross-examination that he has acquaintance with D1 and D2 since childhood and except the suit lands, he has no knowledge about the other lands owned by plaintiffs father Balaiah. Dw1 clearly stated that in the year 1990

Exs.B1 and B2 was executed and after going through the contents only, he has signed on the said documents.

Dw.2 also clearly stated that the scribe of the documents read over the contents of Exs.B1 and B2 to him and then only he has signed in the presence of scribe and after the sale consideration amount was paid, then only, himself and other attestor have signed as attesting witnesses and the total amount of Rs.9,600/- was paid to Balaiah by both D1 and D2. Thus the evidence of Dw.2 in crystal clear terms explains the validity and genuineness of Exs.B1 and B2 (Exs.A5 and A6).

The evidence of Dw.3 nowhere reveals his knowledge about

Exs.B1 and B2 transactions and that he does not know the details of the lands owned and possessed by the said Balaiah and he does not know from whom D1 and D2 have purchased the suit lands.

Thus the evidence of Dw.3 neither proves the claim of the plaintiffs nor weakens the case of the defendants.

Thus the oral evidence let in through Dws.1 and 2 coupled with the voluminous documentary evidence exhibited by the defendants 1 and 2 coupled with the oral evidence of Pws.1 to 3 and the plaint averments and the contents of Ex.A7 legal notice disproves the claim of the plaintiffs and it is doubtful as to why the

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plaintiffs never looked after the welfare of their father during his life time, when admittedly, the plaintiffs father G.Balaiah has suffered mental illness from 1989 to 1997 as opined by the medical officer

Ex.A10 and such theory put forth by the plaintiffs as regards the mental illness at the time of execution of Exs.A5 and A6 (Exs.B1 and B2) as an afterthought is palpably false and baseless and invented for the purpose of this suit. Thus issue numbers 1 to 3 are answered in favour of the plaintiffs and against the defendants.

8. Issue No.4:-

Whether the purchase of the suit land by the D1 and D2 under the sale deeds No.699/90 and 700/90 dated 6-04- 1990 are supported by family necessities of the vendor Ginukuntla @ Buyyani Balaiah?

A perusal of the recitals of Exs.B1 and B2 clearly reveals that the suit schedule lands have been alienated by the plaintiffs father

G.Balaiah for his family necessities and also reveal the receipt of total sale consideration by him and delivery of possession of the suit lands covered under Exs.B1 and B2 in favour of the Vendees, who are the defendants herein and as such this issue is answered in favour of the defendants and against the plaintiffs.

9. Issue no.5:- Whether the suit is barred by limitation?

Admittedly, the plaintiffs father has executed Exs.B1 and B2 (Exs.A5 and A6) as long back as in the year 1990 i.e., 18 years prior to the filing of the suit. It is the specific grievance of the plaintiffs that the plaintiffs father suffered mental illness from 1989 till 1997 and it is evidence of Pw.1 as if, he has visited to Muthpur to see his father, who suffered mental illness and in such circumstances, as to how the plaintiffs are kept quiet from 1989 till 2007 is very much doubtful. The plaintiffs virtually slept over the

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matters from 1990 till 2007 and suddenly woke up and came up with this suit claiming the cancellation of Exs.B1 and B2 after long lapse of time, and as rightly contented by the learned counsel for the defendants, the plaintiffs might have filed this suit in the year 2007 may be due to escalation of high land values due to real estate boom and as such it can be said that the suit is hopelessly barred by limitation. Accordingly, this issue is answered in favour of the defendants and against the plaintiffs.

In view of my findings on issue Nos.1 to 5 this suit is dismissed with costs.

Typed to my dictation by the Stenographer Gr-II, transcribed and typed by her, corrected and pronounced by me in the open court this the 3rd day of May 2017.

Prl.Junior Civil Judge, Shadnagar

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For PLAINTIFF: For DEFENDANTs

Pw.1 G.Venkatesh Dw.1 B.Narsimulu Pw.2 P.Anjaiah Dw.2 Donuru Anjaneyulu Pw.3 S.Srinivas Dw.3 Gudem Mallaiah

EXHIBITS MARKED.

For Plaintiff:

Ex.A1 Pahani for the year 1984-85 Ex.A2 Pahani for the year 1972-73 Ex.A3 Pahani for the year 1989-90 Ex.A4 Pahani for the year 2003-04 Ex.A5 C.C of Registered Sale Deed Doc.No.700/90, dt.06-04-1990 Ex.A6 C.C of Registered Sale Deed Doc.No.699/90, dt.06-04-1990 Ex.A7 Legal Notice, dt.24-12-2007 Ex.A8 Reply of D1, dated 31-12-2007 Ex.A9 Acknowledgment Card, dated 26-12-2007 Ex.A10 Medical Certificate Ex.A11 Medical Prescription

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For Defendants:-

Ex.B1 Original Registered Sale Deed Doc.No.700/90, dt.06-04-1990 Ex.B2 Original Registered Sale Deed Doc.No.699/90, dt.06-04-1990 Ex.B3 C.C of Pahani for the year 1988-89 Ex.B4 C.C of Pahani for the year 1989-90 Ex.B5 C.C of Pahani for the year 1990-91 Ex.B6 C.C of Pahani for the year 1991-92 Ex.B7 C.C of Pahani for the year 1992-93 Ex.B8 C.C of Pahani for the year 1993-94 Ex.B9 C.C of Pahani for the year 1994-95 Ex.B10 C.C of Pahani for the year 1997-98 Ex.B11 C.C of Pahani for the year 1998-99 Ex.B12 C.C of Pahani for the year 1999-2000 Ex.B13 C.C of Pahani for the year 2000-01 Ex.B14 C.C of Pahani for the year 2001-02 Ex.B15 C.C of Pahani for the year 2002-03 Ex.B16 C.C of Pahani for the year 2003-04 Ex.B17 C.C of Pahani for the year 2004-05 Ex.B18 C.C of Pahani for the year 2005-06 Ex.B19 C.C of Pahani for the year 2006-07 Ex.B20 C.C of Pahani for the year 2007-08 Ex.B21 C.C of R.O.R for the year 1989-90 Ex.B22 C.C of Pahani for the year 2008-09/D1 Ex.B23 C.C of Pahani for the year 2009-10/D1 Ex.B24 C.C of Pahani for the year 2008-09/D2 Ex.B25 C.C of Pahani for the year 2009-10/D2 Ex.B26 C.C of Pahani Fasli 1421/D1 Ex.B27 C.C of Pahani Fasli 1422/D1 Ex.B28 C.C of Pahani Fasli 1423/D1 Ex.B29 C.C of Pahani Fasli 1424/D1 Ex.B30 C.C of Pahani Fasli 1420/D2 Ex.B31 C.C of Pahani Fasli 1421/D2 Ex.B32 C.C of Pahani Fasli 1422/D2 Ex.B33 C.C of Pahani Fasli 1423/D2 Ex.B34 C.C of Pahani Fasli 1424/D2 Ex.B35 Land Revenue Receipt for the year 1998-99 Ex.B36 Land revenue Receipt for the year 1998-99 Ex.B37 Land Revenue Receipt for the year 1999-2000 Ex.B38 Original Legal Notice, dt.24-12-2007 Ex.B39 Postal Acknowledgment Card, dt.07-01-2008

Prl. Junior Civil Judge, Shadnagar.

1

IN THE COURT OF THE Prl. JUNIOR CIVIL JUDGE-CUM-JUDL.

MAGISTRATE OF FIRST CLASS :: AT SHADNAGAR

Tuesday, the 2nd day of May, 2017

PRESENT: SRI CH.A.N. MURTHY,

PRL.JUNIOR CIVIL JUDGE-CUM-

JUDL.MAGISTRATE OF FIRST CLASS,

SHADNAGAR

C.C.No.58 of 2015 Between:- State represented by Sub Inspector of Police, P.S. Kothur

...Complainant

And

Syed Khaleel S/o Syed Nazeer, Age.57 years, Caste:Muslim, Occ: Driver of DCM No.AP 13 X 8706, R/o H.No.13-5-610/25/B, Yousufnagar, Tappachabutra, Hyderabad. … Accused. * * *

This case is coming on 01-05-2017 for final hearing before me in the presence of learned A.P.P. appearing on behalf of the State and of Sri.

Syed Shoukath Ali, learned counsels appearing on behalf of the accused, upon perusal of the material on record and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The Sub Inspector of Police, P.S. Kothur filed the charge sheet against the accused in Cr.No.171/2011, for the offence under section 304-A and 337 of IPC, the brief facts of which are narrated hereunder:

On 17-09-2011 at 08.30 a.m., the informant Vallaboju Shashidher (Lw.1) lodged a written report stating that on the night of 16/17-09-2011 while he was doing patrolling duty on National Highway No.7, at about 00-30 hours near Aryam Steels Company, on N.H.7 road, in the limits of

Rangapur village, one Driver of DCM bearing No.AP13 X 8706 was proceeding towards Hyderabad and drove his vehicle in a rash or negligent manner with high speed and dashed another DCM bearing

No.AP04TT-2477 from back side, which was proceeding in front of the 2

DCM No.AP13X8706 and thereby Kurva Bhemanna and Mohd.Kaleem

Kureshi who were travelling have sustained severe bleeding injuries.

They removed with the help of Crane and shifted to the Government

Hospital, Shadnagar for treatment. Further they were shifted to Osmania

General Hospital, Hyderabad for better treatment. While undergoing treatment, Kurva Bheemanna died on 17-09-2011 at 04-45 hours at

Osmania General Hospital, Hyderabad. The informant requested for legal action against the driver of DCM No.AP13X8706.

2. Basing on the said report, a case in Cr.No.171/2011 was registered

U/s 304-A and 337 of IPC and investigated into, the investigation reveals that on 17-09-2011 midnight at 00-30 hours i.e. 12.30 a.m., while the complainant was conducting Highway patrolling duty near Steels company in Rangapur village limits, the accused driver drove the DCM van bearing No.AP13X8706 in a rash or negligent manner with high speed and dashed another DCM bearing No.AP04TT 2477 from back side which is proceeding in front of him while over taking the a Lorry from wrong side and as a result, the occupants of DCM No.AP13X8706 i.e.

deceased (Kurva Bheemanna) and the injured Mohd.Kaleem Kuresh (Lw.4) sustained severe bleeding injuries, that they were shifted to

Government hospital, Shadnagar for treatment and from there the injured were referred to Osmania General Hospital, Hyderabad for better treatment and while undergoing treatment, the deceased Bheemanna succumbed to injuries, whether Mohd.Kaleem Kuresh (Lw.4) sustained injuries and thus the accused is liable for punishment for the offence

U/Sec.304-A and 337 of IPC.

3. This case was taken on file U/S.304-A and 337 of IPC against accused and after the appearance of the accused before this court, he furnished with copies of documents as required U/s. 207 Cr.P.C. and the 3 accused is examined U/s. 251 Cr.P.C., explaining the substance of accusation appearing against the accused for the offences U/Ss.304-A and 337 of IPC and when questioned the accused denied the offence and claimed to be tried.

4. The prosecution had examined PWs.1 to 6 and got marked Exs.P-1 to P-10 documents and closed the evidence.

5. After the closure of prosecution evidence, the accused was examined U/s 313 Cr.P.C. The accused denied the incriminating evidence put to him and did not choose to examine any defence evidence.

6. Heard the arguments of the learned APP for the state and of Sri.

Syed Shoukath Ali, learned counsels appearing on behalf of the accused.

7. Now the point that arises for consideration in this case is:

Whether the prosecution has established the guilt of the accused for the offence U/S.304-A and 337 of IPC beyond all reasonable doubt or not?”

8. Point:According to the prosecution, on 17-09-2011 midnight at 00-30 hours i.e. 12.30 a.m., while Pw.1 was conducting Highway patrolling duty near Steels company in Rangapur village limits, the accused driver drove the DCM van bearing No.AP13X8706 in a rash or negligent manner with high speed and dashed another DCM bearing

No.AP04TT 2477 from back side which was proceeding in front of him while over taking the a Lorry from a wrong side and as a result, the occupants of DCM No.AP13X8706 i.e. deceased (Kurva Bheemanna) and the injured Pw.5 sustained severe bleeding injuries, that they were shifted to Government hospital, Shadnagar for treatment and from there the injured were referred to Osmania General Hospital, Hyderabad for better treatment and while undergoing treatment, the deceased 4

Bheemanna succumbed to injuries, whereas Pw.5 sustained injuries and thus the accused is liable for punishment U/Ss.304-A and 337 of IPC.

9. To substantiate the case of the prosecution, the prosecution has examined Pws.1 to 6. Pw.1 is the informant, who alleged to have lodged

Ex.P1 report, at the earliest point of time, Pw.2 is the wife of the deceased and Pw.3 is the brother of the deceased and eyewitness, Pw.4 is the owner of the crime vehicle. Pw.5 is the injured and eyewitness and

Pw.6 is the panch witness for scene of offence and inquest panchanama through whom Exs.P5 and P6 got marked.

10. It is the specific case of the prosecution as if, the informant/Pw.1 who lodged Ex.P1 report has witnessed the occurrence of the accident, but it is his evidence that at the time of accident, he was in Kothur and after receiving the phone call about the accident, within the 15 minutes he reached the spot and rescued both the injured from the lorry cabin.

Pw.1 deposed that he has seen both the injured on the date of accident, but he cannot say their names. Curiously, Pw.1 deposed that the driver whom he has seen on the date of accident was not present in the court and the witness is unable to identify the accused stating in the court as the person as the driver of the crime vehicle DCM on the date of accident.

11. During the course of cross-examination by the learned APP Pw.1 in crystal clear terms deposed that he was in Kothur at the time of accident and after 15 minutes, he reached the spot. During the course of cross- examination by the defence counsel, the Pw.1 admitted that he does not know as to how the accident had taken place.

12. Pw.3 is another eyewitness according to the prosecution, he also deposed about the manner of accident and as to how the DCM Driver tried to over take another DCM, but Pw.3 categorically stated that he has 5 not seen the driver of crime DCM and as such he cannot identify him.

Pw.3 is also unable to identify the accused as the driver of the crime

DCM, which resulted in the death of the deceased Bheemanna and injuries to Pw.5.

13. It is curious to note that the injured Pw.5 himself did not support the prosecution case as regards the identity of the accused as the driver of the crime vehicle at the time of accident, but Pw.5 deposed in a clear cut manner, as to how the accident occurred due to the rash or negligent driving of the DCM by the driver of the crime vehicle.

14. Pw.5 was treated hostile by the learned APP and cross-examined him. During the course of cross-examination by the learned APP Pw.5 denied a suggestion put by the learned APP that he has stated before police as in Ex.P4, 161 Cr.P.C statement recorded by the police.

15. Thus the crucial evidence of the prosecution witnesses Pws.1,3 and 5 no way supports the prosecution story in establishing the rash or negligent driving attributed to the driver of the crime vehicle DCM, which resulted in the death of the deceased Bheemanna and caused injures to

Pw.3.

16. The prosecution has also examined the owner of the crime vehicle as Pw.4 who has completely pleaded ignorance about the accused working as a driver on his DCM and his 161 Cr.P.C statement is marked as Ex.P3. Thus the evidence of Pw.4 is also no way helpful to prosecution in establishing the guilt against the accused. Admittedly, Pw.2 who is the wife of the deceased Bheemanna and she is not the direct eyewitness to the occurrence of the accident and at best her evidence can be treated as circumstantial evidence.

6

17. Pw.6 is the panch witness for scene of offence panchanama and drafting of rough sketch, through whom Ex.P5 crime details form got marked and he is also the panch witness for inquest panchanama of the deceased Bheemanna, through whom Ex.P6 inquest panchanama got marked. But in the absence of any evidence from the direct eyewitness to the incident Pws.1, 4 and 5 to establish the rash or negligent driving attributed to the accused driver of the crime DCM and also to establish the identity of the accused as the driver of the DCM at the time of the accident. The evidence of Pws.2 and 6, which is more of circumstantial in nature is of no consequence in order to bring home the guilt of the accused for the offence U/Sec.304-A IPC to base a conviction.

18. The learned APP submits that in view of the evidence deposed by the Principal witnesses Pws.1 to 6, the official witnesses need not be summoned and examined and the admitted documents viz., Printed First

Information Report, Wound certificate, Post Mortem Examination Report and Motor Vehicle Inspector report can be marked with the consent of the defence counsel, as per Sec.294 (3) Cr.P.C., for which defence counsel express no objection. Hence Exs.P7 to P10 are marked. But in the absence of any evidence from the the direct eye witnesses to the incident to establish the rash or negligent driving attributed to the accused-driver of the DCM and also in order to establish the identity of the accused as the driver of the DCM at the time of accident, the documentary evidence vide Ex.P7 to P10 is of no consequence and the evidence of P.Ws. 1 to 6 is no way helpful to the prosecution in establishing the guilt against the accused.

19. Thus the prosecution had miserably failed to establish the guilt alleged against the accused for the charge under Section.304-A and 337 7

IPC beyond all reasonable doubt and accordingly the accused is entitled benefit of doubt.

In the result, the accused is found not guilty for the offence under section 304-A and 337 of IPC and accordingly he is acquitted Under

Sec.255 (1) Cr.P.C. The bonds and bail bonds of the accused shall remain in force for a period of six months U/s 437 (a) Cr.P.C.

Typed to my dictation by the Stenographer on the computer , corrected and pronounced by me in open court, on this the 2nd day of May 2017.

Prl.Judl.Magistrate of First Class, Shadnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION DEFENCE

P.W.1: V.Shashider None P.W.2 : Shankaramma P.W.3 : Bheemanna P.W.4 : Syed Abbas P.W.5 : Kaleem Kureshi P.W.6: Krishna Murthy

DOCUMENTS MARKED FOR

PROSECUTION: Ex.P-1: Report Ex.P-2: Some portion in 161 Cr.P.C statement of Pw.1 Ex.P-3: 161 Cr.P.C statement of Pw.4 Ex.P-4: Some portion in 161 Cr.P.C statement of Pw.5 Ex.P-5: Crime details form Ex.P-6 : Inquest Report Ex.P-7: First Information Report Ex.P-8 Medical Certificate Ex.P-9: Post Mortem Examination Report Ex.P-10: Motor Vehicle Inspector Report.

DEFENCE: -Nil-

MATERIAL OBJECTS: -Nil-

Prl.Junior Civil Judge-cum- Judl.Magistrate of I Class, Shadnagar.

8

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE AT SHADNAGAR

Present: Sri. Ch.A.N.Murthy,

Prl.Junior Civil Judge,

Shadnagar.

O S No. 100 of 2014

Monday, this the 1 st day of May,2017

Between:

P.Pavan Kumar Reddy, S/o Chelma Reddy, aged 25 years, Occ: Private Service, R/o H.No.5-36, Buchiguda village of Faruqnagar Mandal, Mahabubnagar District.

… Plaintiff

A N D.,

Nayani Krishna Reddy S/o Venkat Reddy, Aged 30 years, Occ: Agril., R/o H.No.3-47, Vishwanathpur village, Kondurg Mandal, Mahabubnagar District.

...Defendant

***

This suit coming before me on 28-04-2017 for final disposal in the

presence of Sri. N.Venu Gopal Rao, Advocate for Plaintiff, and of

Sri.B.Chandraiah, Advocate for the defendant, and upon perusing the material

papers and documents, the matter having been stood over for consideration, this court delivered the following.

J U D G M E N T

Plaintiff filed the suit seeking to recover sum of Rs.90,000/- from the defendant subsequent interest and costs.

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

Plaintiff and defendants are well known to each other and with that intimacy, the defendant approached the plaintiff and availed hand loan of Rs.90,000/- from the plaintiff on 20-09-2012 and executed a demand promissory note in favour of the plaintiff in the presence of attesting witnesses. The defendants promised to re pay the said loan amount from the plaintiff within three months from that date along with interest. In spite of repeated demands made by the plaintiff and even after issuance of legal notice dated 24-12-2010 calling upon the defendant to re pay the said hand loan amount along with agreed interest within 15 days from the date of receipt of the said legal notice, the defendant did not repay the loan amount.

2

Instead, the defendant approached the plaintiff and requested to grant six months more time for repayment of the loan amount, but the defendant failed to repay the loan amount covered under the demand promissory note. Hence the suit.

3. The cause of action to the suit arose on 20-09-2012 at Buchiguda village when the defendant borrowed the suit amount of Rs.90,000/- and executed the suit promissory note and subsequently when the plaintiff made demands to the defendants for repayment of the loan amount and finally on 20-04-2012 and when the plaintiff caused register legal notice on the defendant.

4. After service of summons, the defendant entered appearance and filed the written statement denying the material allegations contained in the plaint.

5. The contentions of the written statement filed by the defendant, in brief, are as follows:-

The suit promissory note is a created one and the signature on the suit promissory note is forged by the plaintiff with a malafide intention for his wrongful gain. The defendant even did not saw the fase of the plaintiff till date of written statement. The suit promissory note is self created by the plaintiff by forging the signature of the defendant with active collusion of the attesting witnesses. The plaintiff never caused service of the registered legal notice on the defendant. There is no cause of action to the plaintiff for institution of this suit against the defendant.

The plaintiff did not approach this court with clean hands. Hence the suit is liable to be dismissed.

6. Basing on the above pleading the following issues are settled for trial.

(I)Whether the demand promissory note dated 20-04-2012 is true, valid and binding on the defendants? (II) Whether the suit promissory note is created and forged document as contended by the defendant? (III)To what relief?

7. Issue Nos.1 and 2:- 3 (I)Whether the demand promissory note dated 20-04-2012 is true, valid and binding on the defendants? (II)Whether the suit promissory note is created and forged document as contended by the defendant?

According to the plaintiff, he has advanced an amount of Rs.90,000/- to the defendant on 20-09-2012 and in turn the defendant has executed Ex.A1 promissory note in favour of the plaintiff on the same day, agreeing to repay the said amount along with interest within three months from 20-09-2012, but in spite of issuance of

Ex.A2 Legal notice, the defendant failed to repay the amount of Rs.90,000/- covered under Ex.A1.

A perusal of the contents of Ex.A2 Legal notice clearly reveals as to how the plaintiff got issued legal notice demanding to repay the amount under Ex.A1. It is grievance of the plaintiff that in spite of receipt of Ex.A2, the defendant did not repay the same. Though the plaintiff has adduced the documentary evidence by exhibiting

Exs.A1 and A2, but no contra evidence, what so ever, has been placed by the defendant to disprove the claim of the plaintiff and thus the evidence adduced by the plaintiff remained unchallenged.

The plaintiff himself has examined as Pw.1 and also examined Pw.2 who is one of the attestor on Ex.A1. Pws.1 and 2 in crystal clear terms deposed in their cross-examination as to how the plaintiff advanced an amount of Rs.90,000/- to the defendant on 20-09-2012 and as to how the defendant has executed Ex.A1 in favour of the plaintiff. Nothing incriminating has been elicited from the cross- examination of Pws.1 and 2 by the defendant's counsel to discredit their testimony.

The evidence of Pws1 and 2 is corroborating with each other on all material aspects and such evidence of Pws.1 and 2 is unshaken. Pw.1 also stated as to how

Ex.A2 was sent to the defendant by registered post. According to Pw.1, they have received the acknowledgment card showing the receipt of Ex.A2 legal notice to the defendant and he cannot say as to why the acknowledgment card was not filed into court.

4

The attestor on Ex.A1 promissory note namely Naresh, who is examined as

Pw.2 clearly deposed as to how Ex.A1 was prepared in their presence and as to how himself and another attestor Srisailam has attested on Ex.A1. Pw.2 clearly stated that the defendant borrowed an amount of Rs.90,000/- from the plaintiff on 20-09- 2012 and it is his evidence that at the time of Ex.A1 transaction, apart from the plaintiff and defendant, himself, Srisailam and Yadagiri were present. Pw.2 clearly deposed that the plaintiff paid Rs.90,000/- by way of one thousand rupee notes and

Ex.A1 was drafted and executed after the plaintiff gave an amount of Rs.90,000/-.

Pw.2 clearly stated that himself and Srisailam have put two signatures each on

Ex.A1 promissory note. Pw.2 clearly stated as to how the defendant has signed on the revenue stamp of Ex.A1 and later they put their signatures.

The evidence of Pws.1 and 2 coupled with the evidence of Exs.A1 and A2 clinchingly establishes the claim of the plaintiff in the suit amount. Though it was elicited by the defendant's counsel from the tongue of Pw.1 that Pw.1 has no objection if Ex.A1 is sent to an expert opinion to show the genuineness of the document, but the defendant never choosen to take such steps to establish that

Ex.A1 promissory note is a created and forged document. On the other hand Pw.1 has established the execution of Ex.A1 promissory note by examining the attestor

Pw.2. No evidence, what so ever, was let in by the defendant, either oral or documentary to disprove the claim of the plaintiff for recovery of the suit amount from the defendant. On the other hand, the plaintiff clinchingly establishes the advancing of an amount of Rs.90,000/- by the plaintiff to the defendant on 20-09- 2012 and execution of Ex.A1 promissory note by the defendant in favour of the plaintiff as per Ex.A1 through the evidence of Pws.1 and 2 and in spite of issuance of Ex.A2 legal notice, the defendant failed to repay the suit amount to the plaintiff and thus the plaintiff is entitled to recover the amount from the defendant as prayed for.

Though the plaintiff has claimed the interest, but there is no whisper in the plaint with regard to the aspect of interest and what was the contracted rate of interest between the parties. Further, no evidence was let in by either side on the 5 aspect of interest and hence the plaintiff is not entitled to the interest from the date of suit till date of decree at the contracted rate. However, the plaintiff is entitled to interest @ 6% per annum from the date of decree till realization. Accordingly, issue nos.1 and 2 are answered in favour of plaintiff and against the defendant.

8. Issue NO.3:- in view of my findings on issue nos.1 and 2, this suit is decreed with costs in favour of the plaintiff, directing the defendant to pay sum of

Rs.90,000/- to the plaintiff together with subsequent interest @ 6% per annum from the date of suit till realization.

Typed to my dictation by the Stenographer Gr.II, corrected and pronounced by me in the open court this the 1st day of May 2017.

Prl.Junior Civil Judge, Shadnagar

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For PLAINTIFF:

Pw.1 P.Pavan Kumar Reddy

Pw.2 Bangarampally Naresh Kumar

For DEFENDANT:

- None -

EXHIBITS MARKED

For Plaintiff:

Ex.A1 Original Promissory Note

Ex.A2 Office copy of Legal notice

For Defendant:- -Nil-

Prl. Junior Civil Judge, Shadnagar.

6 7

D E C R E E

IN THE COURT THE OF PRINCIPAL JUNIOR CIVIL JUDGE AT SHADNAGAR.

Present: Sri. Ch.A.N.Murthy, Prl.Junior Civil Judge, Shadnagar.

O S No. 100 of 2014

Monday, this the 1 st day of May,2017

Between: P.Pavan Kumar Reddy, S/o Chelma Reddy, aged 25 years, Occ: Private Service, R/o H.No.5-36, Buchiguda village of Faruqnagar Mandal, Mahabubnagar District. … Plaintiff

A N D.,

Nayani Krishna Reddy S/o Venkat Reddy, Aged 30 years, Occ: Agril., R/o H.No.3-47, Vishwanathpur village, Kondurg Mandal, Mahabubnagar District.

...Defendant

Sub:- Suit for recovery of amount of Rs.90,000/- [Rupees: Ninety thousand only] from the defendant.

Suit filed on : 09-12-2014

Suit registered on : 11-12-2014

Cause of action arose on : 20-09-2012

Suit valued at Rs:90,000/- upon which a court fee of Rs: 3,186-00 is paid U/sec. 20 of A.P.C.F. & S.V. Act.

@@@ This suit coming on 28-04-2017 before mefor final disposal in the presence of Sri. N.Venu Gopal Rao, Advocate for Plaintiff, and of Sri.B.Chandraiah, Advocate for the defendant and upon perusing the material papers and documents, the matter having been stood over for consideration till this day, the court doth order and decree as follows:

That the suit of the plaintiff be and is hereby decreed, with costs.

That the defendant herein to pay the suit amount of Rs.90,000/-[Rupees: Ninety thousand only] to the plaintiff together with subsequent interest @ 6% p.a., from the date of suit till date of decree and thereafter @ 6% p.a., till its realization.

That the defendant herein do pay a sum of Rs:6,228/- to the plaintiff towards cost of the suit.

Given under my hand and seal of this court on this the 1st day of May, 2017.

Prl.JUNIOR CIVIL JUDGE,

SHADNAGAR.

8

COSTS OF THE SUIT.

Sl.No. PARTICULARS PLAINTIFF DEFENDANT

1.Stamp on plaint 3,186-00--

2.Stamp on power 2-00

3.Stamp on exhibit----

4.Pleaders fee 3,000-00--

5.Process fee 40-00--

6.Miscellaneous: ----

TOTAL: 6,228-00-- [cost memo filed]

Prl.JUNIOR CIVIL JUDGE,

SHADNAGAR.

1

IN THE COURT OF THE Prl. JUNIOR CIVIL JUDGE-CUM-JUDL.MAGISTRATE

OF FIRST CLASS:: AT SHADNAGAR

Wednesday the 3rd day of May 2017

PRESENT: SRI CH.A.N. MURTHY,

PRL.JUNIOR CIVIL JUDGE-CUM-

JUDL.MAGISTRATE OF FIRST CLASS,

SHADNAGAR.

C.C.No. 23 OF 2016 Between:-

State represented by Sub Inspector of Police, P.S Kondurg.

...Complainant

And

Sakali Lingam S/o Hanmaiah, Age.39 years, Caste: Chakali, Occ: Agril., and Owner cum driver of the Tractor No.AP22-S-8242, R/o Kollur village of Nawabpet Mandal. …Accused.

This case is coming on 02-05-2017 for final hearing before me in the presence of learned A.P.P. appearing on behalf of the State and of Sri Y.Srinivas, learned counsel appearing on behalf of the accused, and upon perusal of the oral and documentary evidence on record and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The Sub Inspector of Police, P.S. Kondurg filed the charge sheet against the accused in Cr.No.134/2015, for the offence under section 379 IPC and

Sec. 3 of PDPP Act and Sec 21 (1) MMDR Act, the brief facts of which are narrated hereunder:

On 01-12-2015 at 6.00 a.m., on reliable information about illegal sand transportation, while L.W.8 M.Venkateshwarlu, S.I of Police along with the

L.W.1 T.Thirupathaiah and Lw.2 B.Satya Rao, Police Constables were proceeding to Agiryala village, on the same day at 6.30 a.m., on the way at

Godha Devi Agriculture land found one Sand loaded Tractor bearing No.AP- 22-S-8242 and numberless Trailer. On seeing the police, the tractor driver flew away from there by leaving his tractor on the spot. Immediately secured the presence of L.Ws.3 and 4 namely P.Pentaiah and A.Jagadishwara Reddy, conducted the seizure panchanama and seized the sand loaded tractor in the 2 presence of said mediators and brought to Police Station and requested to take legal action against the accused.

2. Basing on the said report, a case in Cr.No.134/2015 was registered U/s 379 IPC and Sec. 3 of PDPP Act and Sec.21 (1) MMDR Act and investigated into, that the investigation reveals that on 01-12-2015 at 06.00 a.m., the accused loaded the sand in his tractor illegally and without any valid permission at his village stream and left from there in order to sell the sand.

On the way, on seeing the police i.e., L.Ws.1, 2 and 8 the accused fled away from there by living the tractor on the spot. Thus the accused committed an offence punishable under section 379 IPC and Sec. 3 of PDPP Act and Sec 21 (1) MMDR Act. Hence charge.

3. This case was taken on file U/Ss. 379 IPC and Sec. 3 of PDPP Act and

Sec 21 (1) MMDR Act against accused and after the appearance of the accused before the court, he furnished with copies of documents as required

U/s. 207 Cr.P.C. and the accused is examined U/s. 239 Cr.P.C. Accused have denied the offence. Charges U/Ss. 379 IPC and Sec.3 of PDPP Act and

Sec 21 (1) MMDR Act have been framed against Accused read over and explained to him in Telugu and when questioned, Accused has pleaded not guilty and claimed to be tried.

4. The prosecution has examined PWs. 1 to 6 and got marked Exs.P-1 to P- 8 documents.

5. After the closure of prosecution evidence, the accused was examined

U/s 313 Cr.P.C. The accused denied the incriminating evidence put to him and did not choose to examine any defence evidence.

3

6. Heard the arguments of the learned APP for the state and of Sri

Y.Srinivas, learned counsel appearing on behalf of the accused.

7. Now the point that arises for consideration in this case is:

“Whether the prosecution has established the guilt of the

accused for the charges U/ss 379 IPC and Sec. 3 of PDPP

Act and Sec 21 (1) MMDR Act beyond all reasonable doubt

or not?”

8. Point:-It is the admitted case of the prosecution that the accused was found by Pws.1, 6 and Lw.1 Police Constable who are the police personnel while he was illegally transporting the sand in the Tractor bearing No.AP-22-

S8242 and numberless Trailer and on seeing the police, the accused person stopped tractor, got down from the tractor and fled away and could not be apprehended, that Pws.1, 6 and Lw.1 brought the said tractor loaded with sand to the police station and conducted Ex.P5 seizure panchanama in the presence of P.Ws.2 and 4. It is also the case of the prosecution that the accused was arrested by the Lw.7 S.Rajesh, A.S.I of Police and the accused was admitted his guilt and hence Lw.7 S.Rajesh has secured the presence of

P.Ws. 3 and 5 and conducted Ex.P7 confessional panchanama of the accused and according to L.W.7, the accused alleged to have confessed about the commission of theft of sand from a stream situated in the outskirts of Agiryala village and loaded his tractor and while he was proceeding to sell the sand and on the way he observed the police jeep and then he got down from the tractor and fled away.

9. Thus the entire case of the prosecution revolve round the presence of independent panch witnesses for seizure panchanama P.Ws.2 and 4 and

P.Ws. 3 and 5 who are the independent punch witnesses for the alleged confession made by the accused. But the evidence of P.Ws.1 and 6 are 4 otherwise. P.W.2 to 5 have completely pleaded ignorance about the conducting of Ex.P5 and P7 in their presence and it is their evidence that the police have merely obtained their signatures on white papers and their signatures on Exs.P5 and P7 are respectively marked as Exs.P1 to P4.

10. P.Ws. 2 to 5 stand in a line and denied a suggestion put by the learned

APP that they all are deposing falsehood in order to help the accused. Thus the evidence of P.Ws.1 and 6 no way establishes the complicity alleged against the accused.

11. In these circumstances, in the absence of any evidence from the independent punch witnesses P.Ws.2 to 5, to establish the contents of Exs.P5 and P7 seizure panchanama and confessional panchanama respectively, the evidence deposed by P.Ws.1 and 6, who admittedly is the police personnel is of no consequence and the identity of the accused spoken to by P.Ws.1 and 6 is also doubtful. Admittedly, Lw.7 S.Rajesh is none other than the subordinate of P.W.6 and P.W.6 himself is the investigating officer, who registered the case suomotu basing on Ex.P5 seizure panchanama and in the absence of any evidence from P.Ws.2 to 5, the alleged confession made by the accused in the presence of P.W.6, who is a police officer is entirely inadmissible in evidence as per section 25 of the Indian Evidence Act and in such circumstances, it is highly unsafe to rely upon the testimony of P.Ws.1 and 6 in order to base a conviction for the charges framed against the accused.

12. Thus the prosecution had miserably failed to establish the guilt of the accused for the charges U/s 379 IPC and Sec. 3 of PDPP Act and Sec 21 (1) MMDR Act beyond all reasonable doubt and accordingly Accused is entitled to benefit of doubt.

5

In the result, the accused is found not guilty for the charges under sections.379 IPC and Sec. 3 of PDPP Act and Sec 21 (1) MMDR Act and accordingly he is acquitted Under Sec.248(1) Cr.P.C. The bonds and bail bonds of the accused shall remain in force for a period of 6 Months as per

Sec.437-A Cr.P.C.

Typed to my dictation on the computer by the Stenographer, corrected and pronounced by me in open court, on this the 3rd day of May 2017.

Prl.Judl. Magistrate of First Class, Shadnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION DEFENCE

P.W.1: B.Satya Rao, P.C., None P.W.2 : Pittala Pentaiah P.W.3 : J.Bandulal P.W.4 : Jagadishwar Reddy P.W.5 : B.Shankar P.W.6 : M.Venkateshwarlu, S.I of Police.

DOCUMENTS MARKED FOR

PROSECUTION: Ex.P-1: Signature of P.W.2 on seizure panchanama Ex.P-2: Signature of P.W.3 on seizure panchanama Ex.P-3: Signature of P.W.4 on confessional panchanama Ex.P-4: Signature of P.W.5 on confessional panchanama Ex.P-5 : Seizure panchanama Ex.P-6 : First Information Report Ex.P-7: Confessional panchanama Ex.P-8: Proceeding.

DEFENCE:

-Nil -

MATERIAL OBJECTS

-Nil-

Prl. Judl. Magistrate of I Class, Shadnagar.

6 7

1

IN THE COURT OF THE Prl. JUNIOR CIVIL JUDGE-CUM-JUDL.

MAGISTRATE OF FIRST CLASS :: AT SHADNAGAR

Wednesday, the 3rd day of May 2017

PRESENT: SRI CH.A.N. MURTHY,

PRL.JUNIOR CIVIL JUDGE-CUM-

JUDL.MAGISTRATE OF FIRST CLASS,

SHADNAGAR

C.C.No.554 of 2015

Between:-

State represented by Sub Inspector of Police, P.S. Kothur

...Complainant

And

Beri Narsimulu S/o Yerraiah, age. 24 years, Caste: SC Mala, Occ:Driver of Car Volkswagen bearing No.AP28BP-1008, R/o H.No.2-1-30, Jeedimetla village Quthbullapur Mandal, R.R District, Native Labara village, Pathapatnam Mandal, Srikakulam District.

… Accused.

* * *

This case is coming on 02-04-2017 for final hearing before me in the presence of learned A.P.P. appearing on behalf of the State and of

Sri. M.Mohan Rao, learned counsel appearing on behalf of the accused, upon perusal of the material on record and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The Sub Inspector of Police, P.S. Kothur filed the charge sheet against the accused in Cr.No.163/2013, for the offence under section 304-A of IPC, the brief facts of which are narrated hereunder:

On 07-09-2013 at 04.30 p.m., the informant Josep Jhan (Lw.1) lodged a written report stating that he is working in Knight Security

Pvt., Ltd., as field officer and their Security agency given security Guard

Mohd.Naseer, as usual on 07-09-2013 afternoon at about 3.30 p.m., 2

Naseer came Venkateshwara Hatcheries to attend of duty, on the way in front of Indian Oil Petrol Bunk, the Naseer crossing the road, meanwhile a Volkswagen Car bearing No.AP28 BP-1008 proceeding towards

Hyderabad and its driver drove his Car in a rash or negligent manner and dashed Naseer and as a result, Naseer sustained several bleeding injuries and died on the spot. Finally, the informant requested to take necessary action.

2. Basing on the said report, a case in Cr.No.163/2013 was registered U/s 304-A of IPC and investigated into, the investigation reveals that 07-09-2013 at about 3.30 p.m., the accused drove his

Volkswagen Car bearing No.AP28 BP-1008 in a rash or negligent manner with high speed in the limits of Thimmapur in front of Indian

Oil Petrol Bunk and dashed the deceased Naseer who is crossing the

NH-44 road, and as a result, the deceased Naseer received severe bleeding injuries and died on the spot and thus the accused is liable for punishment for the offence U/Sec.304-A of IPC.

3. This case was taken on file U/S.304-A of IPC against accused and after the appearance of the accused before this court, he furnished with copies of documents as required U/s. 207 Cr.P.C. and the accused is examined U/s. 251 Cr.P.C., explaining the substance of accusation appearing against the accused for the offence U/S.304-A of IPC and when questioned the accused denied the offence and claimed to be tried.

4. The prosecution had examined PWs.1 to 4 and got marked Exs.P-1 to P-8 documents and closed the evidence.

5. After the closure of prosecution evidence, the accused was examined U/s 313 Cr.P.C. The accused denied the incriminating 3 evidence put to him and did not choose to examine any defence evidence.

6. Heard the arguments of the learned APP for the state and of Sri.

M.Mohan Rao, learned counsels appearing on behalf of the accused.

7. Now the point that arises for consideration in this case is:

Whether the prosecution has established the guilt of the accused for the offence U/S.304-A of IPC beyond all reasonable doubt or not?”

8. Point: According to the prosecution, on 07-09-2013 at about 3.30 p.m., while the deceased Naseer was crossing the NH-44 road, the accused drove his Volkswagen Car bearing No.AP28 BP-1008 in a rash or negligent manner with high speed in the limits of Thimmapur in front of Indian Oil Petrol Bunk and dashed him and as a result the deceased

Naseer received severe bleeding injuries and died on the spot and thus the accused is liable for punishment for the offence U/Sec.304-A of IPC.

9. The prosecution has examined Pw.4 as the direct eyewitness to the accident, but Pw.4 has pleaded ignorance about his witnessing the occurrence of accident and it is his evidence that he cannot say at whose fault the accident occurred. Pw.4 was treated hostile by the learned APP and cross-examined him, during the course of cross- examination by the learned APP, Pw.4 denied a suggestion put by the learned APP that he has stated before police as in Ex.P8, 161 Cr.P.C statement recorded by the police.

10. Pw.3 is the wife of the deceased Naseer. Admittedly, Pw.1 is not the direct eyewitnesses to the occurrence of the accident. Though she 4 has deposed about the manner of accident, but at best her evidence can be treated as hearsay evidence as she is not the direct eyewitness to the occurrence of accident. Of course Pw.1 is none other than wife of the deceased.

11. Pw.1 is the panch witness for scene of offence panchanama and drafting of rough sketch, through whom Ex.P1 crime details form got marked and Pw.2 is the panch witness for inquest panchanama of the deceased Naseer, through whom Ex.P2 inquest panchanama got marked. But in the absence of any evidence from the direct eyewitness to the incident Pw.3 to establish the rash or negligent driving attributed to the accused driver of the crime vehicle and also to establish the identity of the accused as the driver of the crime vehicle at the time of the accident. The evidence of Pws.1 to 4, which is more of circumstantial in nature is no consequence in order to bring home the guilt of the accused for the offence U/Sec.304-A IPC to base a conviction.

12. The learned APP submits that in view of the evidence deposed by the Prl witnesses Pws.1 to 3, no useful purpose will be served by summoning and examining the official witnesses and instead of summoning them, he requested the court to mark the admitted documents, namely Report, Printed First Information Report, Post

Mortem Examination Report and Motor Vehicle Inspector Report with the consent of the defence counsel by invoking Sec.294 (3) Cr.P.C for which the defence counsel expresses no objection and fairly considered by stating that no prejudice would be caused to the accused by marking the admitted documents. Hence the said documents namely Reprt, 5

Printed First Information Report, Post Mortem Examination Report and

Motor Vehicle Inspector Report are respectively marked as Exs.P4 to P7.

But in the absence of any evidence from the direct eyewitness to the incident Pw.3, Exs.P4 to P7 are of no consequence in establishing the guilt alleged against the accused for the offence U/Secs.304-A of IPC to base a conviction against the accused.

13. Thus the prosecution had miserably failed to establish the guilt alleged against the accused for the charge under Section.304-A IPC beyond all reasonable doubt and accordingly the accused is entitled benefit of doubt.

In the result, the accused is found not guilty for the offence under section 304-A of IPC and accordingly he is acquitted Under Sec.255 (1)

Cr.P.C. The bonds and bail bonds of the accused shall remain in force for a period of six months U/s 437 (a) Cr.P.C.

Typed to my dictation by the Stenographer on the computer, corrected and pronounced by me in open court, on this the 3rd day of

May, 2017.

Prl.Judl.Magistrate of First Class, Shadnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION DEFENCE

P.W.1: Dhanraj Reddy None P.W.2 : M.Shankar P.W.3 : Faimida Begum P.W.4 : Kummari Yadagiri 6

DOCUMENTS MARKED FOR

PROSECUTION: DEFENCE

Ex.P-1: Crime details form -Nil- Ex.P-2: Inquest panchanama Ex.P-3: 161 Cr.P.C statement of Pw.3 Ex.P-4: Report Ex.P-5: First Information Report Ex.P-6: Post Mortem Examination Report Ex.P-7: Motor Vehicle Inspector Report Ex.P-8: 161 Cr.P.C statement of Pw.4

MATERIAL OBJECTS

-Nil-

Prl. Judl.Magistrate of I Class, Shadnagar.