Sri Ch Madhu Babu

C.C.No.19/2017 of PJCJ/PVP 1Dated 20-03-2020

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE -CUM-JUDICIAL

MAGISTRATE OF THE FIRST CLASS, PARVATHIPURAM.

Present : Ch. Madhu Babu

Principal Junior Civil Judge-cum-Judicial

Magistrate of the First Class,

Parvathipuram

Friday, this the 20th day of March, 2020

C.C.No. 19/2017

Between:

State represented by the Sub-Inspector of Police, Komarada Police Station.

......Complainant

And

Ramji Prasad Yadav, S/o Surja Prasad Yadav, C/o Nilamabhada Behera, Aged about 55 years, Yadav, 2/3 Matri Mandir Line, Kolkatta – 106, B.T. Road, Kolkata. Driver of lorry bearing No. WB 23 B 2362.

..… Accused

This case is coming on 19-03-2020 for final hearing before me in the presence of Asst., P.P., Grade-II for complainant and of Sri S. Prabhakara Rao, Counsel for the accused and the matter having stood over for consideration to this day, this court delivered the following:

J U D G M E N T

1.The state represented by its Sub-Inspector of Police, Komarada

Police Station laid a charge sheet against the accused in Cr.No.99/2016 for the offence punishable u/s. 304-A of I.P.C alleging that –

On 27-11-2016 morning at about 11:00 hours Nagireddi Hari

Krishna “herein after referred to as deceased” left his house on his motor cycle bearing No. AP 35 H 3793 to meet his friends in Parvathipuram. After, completion of meeting, while he was returning back to his house, when he reached near Enela Gedda turning at about 15:00 hours, at the same time, the accused driver of lorry bearing No. WB 23 B 2362 came in opposite direction I.e., from Rayagada to Parvathipuram, in a rash and negligent manner, without blowing horn and dashed the deceased motor cycle. As a result, the deceased received severe injury and died instantly. On coming to

C.C.No.19/2017 of PJCJ/PVP 2Dated 20-03-2020 know about the incident, the L.W.1 rushed to the spot and shifted the dead body to Area Hospital, Parvathipuram. Basing on the report of Nagireddi

Tirupathinaidu/L.W.1, the S.I of police, Komarada Police Station registered as a case in Cr.No.99/2016 under Section 304-A of I.P.C and investigated into.

Hence, charge sheet.

2. Basing on the charge sheet allegations and on perusal of other material available on record, this court took cognizance of the offence U/s.

304-A of I.P.C against the accused.

3. On appearance of the accused before this court, the relevant copies of documents were furnished to the accused as contemplated U/s.207 Cr.P.C.

4.On appearance and consideration, the accused was examined u/s.251 Cr.P.C and the sum and substance of the charge sheet under Section 304-A of IPC is read over and explained to him in Telugu, for which, the accused pleaded not guilty and claimed to be tried.

5.To prove its case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P-1 to P-8 on its behalf, the details of which are mentioned hereunder in Appendix of Evidence.

6. On being closed the prosecution side evidence, the incriminating circumstances that appearing in the testimony of the prosecution witnesses were explained to the accused u/s. 313(1)(b) Cr.P.C, for which the accused denied the incriminating circumstances from the testimony of the prosecution witnesses.

7. Heard both sides.

8. Now the point for consideration that would arise for determination of the case is :

1) Whether lorry bearing No. WB 23 B 2362 involved in the accident ?

2) Whether the accused is the driver of the lorry bearing No. WB 23 B 2362 at the time of accident?

3) Whether the accused drove the crime vehicle rashly and negligently and caused death of Nagireddy Hari Krishna?

4) Whether the prosecution has proved the guilt of the accused

C.C.No.19/2017 of PJCJ/PVP 3Dated 20-03-2020 beyond all reasonable doubt ?

5) To what order?

10. In order to prove the case of prosecution, it has examined P.Ws 1 to 10 out of 17 cited witness and got marked Ex.P.1 to 8. The evidence of

L.Ws 3, 4, 6, 9, 10, 11 and 13 is closed by this Court. P.W.1 is the de-facto complainant and elder brother of the deceased. P.W.2 is eye witness P.W.3 is the wife of the deceased. P.Ws.4 and 5 are inquest panchayatdars. P.W.6 is the scene observation mediator. P.W.7 is the medical officer, who conducted autopsy over the dead body of the deceased and issued Post Mortem

Certificate. P.W.8 is Motor vehicle Inspector, who examined crime vehicle and issued accident report. P.W.9 is the photographer who took photographs.

P.W.10 is Investigating Officer, who registered the FIR conducted investigation, visited the scene of crime, prepared the rough sketch, got photographed the scene of offence in the presence of L.W.6 and Samala

Kameswara Rao/L.W.13, held inquest panchanamma over the dead body of the deceased, sent the accused to judicial remand, addressed to M.V.

Inspector to inspect the crime vehicle, received Postmortem certificate from medical officer, photographs from the photographer and filed charge sheet.

11. Point Nos.1 to 3 :-The case of prosecution is that on 27-11- 2016 at around 03:00 pm while the deceased Nagireddi Hari Krishna was coming from Parvathipuram to Chollapadam on his Hero Honda Passion Plus bearing No. AP 35 H 3793 and when he reached near Enela Gedda turning the accused driver of the lorry bearing No. WB 23 B 2362 came in opposite direction from Rayagada to Parvathipuram and drove his lorry in rash and negligent manner, without blowing horn and dashed the deceased bike heavily, as a result, he sustained severe head injury and died instantaneously. Hence, the charge.

12. As per the case of prosecution case, P.W.2 is sole eye witness to the occurrence. Hence, the evidence of eye witness is taken for consideration at the outset.

13. i) P.W.2, who is working as RTC Driver and who is on rest on that

C.C.No.19/2017 of PJCJ/PVP 4Dated 20-03-2020 day, deposed evidence that on 27-11-2016 while he was proceeding to

Cholapadam Village from Parvathipuram Town on a RTC Bus, around 02:30 pm when the bus reached Enela Gedda turning one lorry came with over speed in a negligent manner and dashed the bike. He further testified that the said lorry bearings registration number WB 23 B 2362 and he identified the accused at the time of giving his deposition. He further testified that the deceased was proceeding in front of the bus, in which, he was traveling, he further deposed evidence that he get down from the bus and verified whether the deceased received any injuries. He further stated that he get down from the bus as the head of Nagireddy Hari Krishna was broken and blood was oozing out and he verified that whether the said Hari Krishna was alive or not. He further stated that he called Hari Krishna as Master since he known to him there is no response and he found that said Hari Krishna died.

Immediately, he ran up to 100 and later informed the incident to P.W.1.

ii) During the cross-examination he deposed that on the date of offence, since his wife requested him to take her to Sivalayam on the occasion of last Karthika Somavaram, he proceeded to Cholapadam Village.

He further stated that he has no idea as to the registration number of the RTC bus in which he traveled on the date of offence. He admitted that the accident spot is single turning and there are no up and downs. He further admitted that the scene of offence is an accident zone. He further admitted that there is a bus stop at the accident spot to proceeded to Kotipam Village.

He further stated that the accident spot is at a distance of one furlong from the outskirts of Enela Gedda Village. He admitted that Aadhaar Card was issued to him and he do not have any idea about his Aaadhara number. He further stated that the lorry dashed against the front portion of the motor bike and the bike of the deceased was badly damaged on the front side and it fell down towards the left side of the road. During his evidence he disclosed the bike number of the deceased as AP 35 H 3793. He further categorically stated that after he get down from the bus the lorry was not stopped as the lorry was not across the road and not stopped at the accident spot. He denied

C.C.No.19/2017 of PJCJ/PVP 5Dated 20-03-2020 a suggestion that he has seen the accused for the first time in the Court hall.

He further testified that he remained at the accident till 04:00 pm and the

P.W.1 came to the accident spot around 03:30 pm. He further stated that by the time P.W.1 came to the accident spot the SI of Police was present. He denied a suggestion that on the date of offence the Police never examined him at the accident spot and he being the same Villager and close relative of the deceased he is deposing false evidence. He further denied a suggestion that he has not seen the accident.

14.i) P.W.1 the elder brother of the deceased deposed evidence that on 27-11-2016 at 03:00 pm the accident took place at Enela Gedda Village.

He further testified that on the date of accident the deceased started from

Cholapadam and proceeded towards Parvathipuram on a motor bike and while he was returning from Parvathipuram to home and when he reached

Enela Gedda Main Road one lorry was coming in opposite direction from

Rayagada to Parvathipuram, with a over speed, the driver of the said lorry dashed against the motor bike which is driven by his younger brother and caused the accident. He further testified that P.W.2 who is driver coming from

Parvathipuram to Cholapadam witnessed the accident and informed him. He further stated that P.W.2 informed him that the crime lorry bears registration number WB 23 B 2362, immediately, he rushed to accident spot and found the crime lorry and motor bike and dead body of the younger brother. He further testified that his brother received head injury. He submitted that he reported the matter to the Police. He further stated that the dead body of the deceased shifted to Area Hospital, Parvathipruam, and he was present at the time of conducting inquest over the dead body of the deceased.

ii) During the course cross-examination he did not personally witness the accident. He further deposed that P.W.2 informed him that the front portion of the crime lorry came in contact with the victim bike. He further admitted that P.W.2 was not on the duty on the date of offence. He further stated that P.Ws2, 3 and L.W.3/Narigeddy Rama Krishna, Mandala

Mohana Das/L.W.4 have seen the crime vehicle and the victim vehicle at the

C.C.No.19/2017 of PJCJ/PVP 6Dated 20-03-2020 accident spot. He further admitted that the accident spot is slight tuning and not a straight road. He further admitted that there are no ups and downs in the accident spot and the accident place is a plain one. He denied a suggestion that there is no possibility to drive the vehicle speedily at the accident spot. He further stated that there is banyan tree at the accident spot. He further stated that the distance between the banyan tree and the accident spot is 400 yards. He denied a suggestion that since the deceased being his younger brother he is deposing false evidence. He further denied a suggestion that P.W.2 never informed him as to the accident and he never gone tot he accident spot and never seen both victim and the crime vehicle.

15.P.W.3 the wife of the deceased deposed evidence that on 27-11- 2016 she was informed over the phone about the accident by the SI of Police.

Immediately, she rushed to the accident spot and came to know that while he husband was proceeding on a motor cycle one lorry came and dashed him. She further deposed that by the time she reached the accident spot her husband died. She further deposed that her husband received head injuries.

During the cross-examination she admitted that Enela Gedda is a accident zone of Kotipam Village. She further admitted that Enela Gedda is near to Kotipam Village. She further admitted that there is a rice mill and residential houses near the accident spot. She further admitted that there are tea stall and buddy shops near the accident spot. She further admitted that by the time she reached the accident spot the crime lorry was not there. She admitted that the she reached the accident spot at 04:00 pm but she do not know what happened to the said lorry. She further admitted that by the time she reached the accident spot the president of Cholapadam viz., Maradana

Krishnam Naidu was present. She further admitted that she do not know the registration number of both the crime and victim vehicles.

16.i) P.W.4 deposed that on 27-11-2016 P.W.2 informed him over phone about the accident and the deceased used to work in a college at

Parvathipuram. He further deposed that he along with the Village elders viz.,

C.C.No.19/2017 of PJCJ/PVP 7Dated 20-03-2020

Kethireddi Chandra Mouli gone to the accident spot and the deceased was shifted to the Area Hospital, Parvathipruam. He further testified that in the presence of Panchayatdars inquest was conducted on 27-11-2016 and they resolved that due to accident caused by the lorry deceased sustained head injuries, which resulted in his death. P.W.4 proved the contents of the inquest panchanamma besides his signature. Hence, the inquest panchamma/Ex.P.2 was exhibited by the prosecution.

ii) During the cross-examination he stated that he along with

Kethreddy Chandramouli and his brother have come to the accident spot and thereafter many villagers came to the accident spot. P.W.4 admitted the he subscribed his signature at 12:30 hours, he denied a suggestion that he was not present at the time of inquest over the dead body of the deceased.

17. i) P.W.5 the inquest panchayatdar deposed that on 28-11-2016 he came to mortuary of Area Hospital, Parvathipuram and he attended the inquest panchanamma of Nagireddi Hari Krishna and the inquest panchayat dars resolved that the deceased died due to injuries sustained in lorry accident. He further stated that the head of the deceased was broken severely and the legs and the hands were also broken. P.W.5 also proved the contents of inquest panchanamma/Ex.P.10.

ii) During the cross-examination he admitted that he did not visit the scene of crime, but attended inquest panchanamma. He denied a suggestion that he subscribed his signature on the inquest report at the PS., he further denied a suggestion that he was in the habit of visiting Komarada

PS., and signed on paper at the request of police frequently.

18.i) P.W.6 the scene observation mediator deposed evidence that on 27-11-2016 at 04:30 pm he has gone to Enela Gedda Village, which is situated in between Kotipam and Gumada Villages. He further testified that the SI of Police drafted a report, wherein he stated the boundaries of the scene of crime. P.W.6 proved the contents of the scene observation report

dated 27-11-2016, as such, the prosecution exhibited scene observation

report as Ex. P.3.

C.C.No.19/2017 of PJCJ/PVP 8Dated 20-03-2020 ii) During the cross-examination he admitted that except himself and SI of Police and another mediator no others were present at the time of observing the scene. After some time he stated that many people were present at the scene of crime. He further categorically admitted that the relatives of the deceased were not present at the time of observing the scene,. He further stated that he do not remember whether he was present at the time of drafting the rough sketch. He further admitted that one has to drive cautiously at Enela Gedda Village. He further admitted that there is a rice mill near the scene of offence. He denied a suggestion that he never called by the SI of Police and he never went to Enela Gedda Village along with the mediators and never signed on the scene observation report and he is deposing false evidence. He admitted that L.W.3 is his natural father, whereas P.W.3 is his sister-in-law. He further denied that he is deposing false evidence with the help of P.W.3 though nothing was happened.

19.PW.7 the Medical Officer, deposed evidence that she has examined the dead body of Nagireddi Hari Krishna at 11:10 am on 28-11- 2016 and found open skull fracture, brain matter expand out, abrasion of 3x5 cm over chin and abrasion over right thigh, right hand and she is of the opinion that the death is due to head injury. She issued Ex. P.4 Postmortem examination.

20.i) P.W.8 the Motor Vehicle Inspector, deposed evidence that on 29- 11-2016 he received requisition from the SI of Police, Komarada PS., to inspect the accident vehicle bearing No. WB 23 B 2362 and accordingly he inspected the said vehicle in Komarada Police Station premises and found no damages and the breaks are in good and efficient condition. He opined that the accident was not occurred not due to mechanical defects of the vehicle.

He has proved the contents of Ex. P.5 accident report.

ii) During the course of cross-examination he admitted that the SI of Police, submitted a requisition to inspect the crime vehicle only.

21.i) P.W.9 the Photographer deposed evidence that he took photographs at the scene of crime viz., Eenala Gedda covering lorry and

C.C.No.19/2017 of PJCJ/PVP 9Dated 20-03-2020 dead body at Area Hospital, Parvathipruam and he handed over the photographs to the SI of Police, along with the CD.

ii) During the course of cross-examination he admitted that 6 or 7 persons were present at the time of taking photographs and he stated that the crime vehicle is on the edge of the road, when he took photographs of the crime vehicle only. He further admitted that he did not observe the presence of any other vehicles.

22. i) P.W.10 the Investigating Officer, deposed that basing on the strength of the report lodged by the P.W,.1 at 04:00 pm on 27-11-2016 he issued FIR and forwarded the same before the Court and copies to the concerned. He further stated that he has examined P.Ws 1 and 2 at the scene of crime in the presence of P.Ws 6 and L.W.13 and got photographed the scene of crime through P.W.9. He admitted that he stated that he took photographs in the presence of mediators and conducted inquest panchanamma in the presence of P.W.3, L.W.3, 4 and 6. He further deposed that he conducted inquest over the dead body of the deceased in the presence of Panchayatdar viz. P.Ws 4, 5 and L.W.9 to 11. He further stated that after receipt of the PM Certificate, M.V.I. Report and photographs he filed charge sheet.

ii) During the cross-examination he admitted that at the time of his visit to the scene of crime, P.Ws1 and 2 and L.W.3 were present. He further admitted that he reached the scene of crime the victim vehicle and crime lorry were shifted to the Police Station. He further stated that there is a damages in front of the victim vehicle. He further admitted that P.W.2 did not state before him, where he sat in the RTC bus, during his examination. He further stated that he has not examined the bus driver or the RTC bus conductor, when he examined the P.W.2. He denied a suggestion that he suppressed the report lodged by the P.W.2, L.W.3 and Ex. P.1 was brought in to the existence to file a false case against the accused. He further categorically admitted that nobody stated to him that accused is the driver of the lorry at the time of accident.

C.C.No.19/2017 of PJCJ/PVP 10Dated 20-03-2020

23.On analyzing the evidence of P.Ws1 to 10, P.W.2 is the sole eye witness for the prosecution to prove the offence. He admitted that, he has been working in driver in APSRTC, but on 27-11-2016 he was on rest or off duty. The learned counsel for the accused suggested, as to why, he was going to Cholapadam on that day, though the P.W.2 is resident of

Parvathipuram. P.W.2 explained that at the request of his wife on the occasion of auspicious day of last Karthika Somavaram he proceeded to Cholapadam from Parvathipuram and boarded the RTC bus. During the cross-examination

P.W.2 failed to disclose the registration number of the RTC bus, in which, he deposed evidence that he was travelling on the date of offence.

24.In this context the learned counsel for the accused raised a suspicion that P.W.2 is a planted witness to the prosecution case. The learned counsel for accused would contend that if really the accident occurred in front of a RTC Bus that was plying from Parvathipuram to Cholapadam certainly the driver of the RTC bus shall be the competent person to speak about the occurrence. He further argued that neither the conductor nor any passengers were cited or examined by the prosecution in this case. As can be seen that no document is produced by the prosecution to show that the P.W.2 was travelling in the RTC bus.

25.The evidence of P.W.2 did not disclose the seat at which the P.W.2 alleged to have been sat in the RTC bus is also not forthcoming. When, the defence counsel posed a question the Investigating Officer stated that P.W.2 did not state before him where did P.W.2 sit in the RTC bus during his examination.

26.The learned counsel for the accused further argued that P.W.2 stated before this Court that as the head of the Nagireddy Hari Krishna was broken he get down from the bus. As per the case of prosecution both the victim vehicle and the RTC bus are moving in the same direction opposite to the crime vehicle and the victim vehicle is proceeding in front of the RTC Bus.

Doubt may crop up as to how the PW.2 identified the deceased without going to the accident spot and seeing back of the deceased. As can be seen from

C.C.No.19/2017 of PJCJ/PVP 11Dated 20-03-2020 the evidence of P.Ws1 to 5 they have not stated about the plying of RTC bus behind the victim vehicle but simply stated that a lorry dashed victim bike as informed by P.W.2.

27.P.W.2 who is the eye witness as per the prosecution case deposed evidence that he has seen the occurrence and identified the accused. In this context it is pertinent to refer the cross-examination of P.W.2 that after getting down from the bus the crime lorry was not stopped at the accident spot. P.W.2 categorically stated in the chief examination that the driver of the crime lorry drove it with a over speed and in negligent manner and dashed the bike. When, the crime vehicle was coming in such a over speed, as to how, the P.W.2 was in a position to have a good look at the accused. More over the accused is resident of West Bengal.

28.P.W.2 himself admitted that the crime lorry was not stopped at the accident spot. So, it is a case of hit and run. As can be seen from the photographs taken by the P.W.9 crime lorry front portion are visible and the remaining photos the head and leg injuries sustained by the deceased can be seen and victim vehicle are not seen in the photographs. P.W.9 admitted that he has taken the photographs of the deceased in the Mortuary of Area

Hospital, Paravathipuram, whereas the photos of crime lorry are taken at one

Gedda.

29.The scene observation mediator has stated he along with another mediator and SI of Police, were only present at the time of drafting the scene observation report. After some time he corrected his version that some others were also present.

30.As per the evidence of Investigating Officer, in the cross- examination by the time he reached the scene of crime the victim vehicle, as well as, the crime vehicle are shifted to the Police Station premises by one constable. The said constable has not taken the photographs of the scene of crime which can depict the crime vehicle, the victim vehicle and the dead body of the deceased. There is no explanation from the prosecution that, as

C.C.No.19/2017 of PJCJ/PVP 12Dated 20-03-2020 to why, the photographs of the scene of crime containing the crime lorry, victim vehicle and the dead body of the deceased were not taken. The said constable was not cited in the memo of evidence, nor examined in this case.

It is the duty of the Investigating Officer or prosecution as the case may be to show the exact scene of crime by taking the photographs. The scene observation mediator deposed evidence that he is not aware of the drafting of the rough sketch. When, the rough sketch is perused the presence of victim vehicle, crime vehicle and the dead body of the victim were not shown.

31.P.W.6 the scene observation mediator categorically admitted the relatives were not present at the scene of crime. As per the evidence of P.W.1 he remained at the accident spot till 04:00 pm and P.W.1 arrived the scene of crime by 03:30 pm. As per the version of the wife of the deceased, she reached the accident spot by 04:00 pm and she is not aware what happened to the crime lorry. As per the scene observation report, it is drafted at 04:30 pm in SH-36. P.W.6 is the scene observation mediator has stated that the relatives of the deceased were not present at the scene of crime. The learned counsel for the accused relied upon a decision reported in 2006 (1) ALT (Crl.) 182 (AP) between Suruvu Parashaiah Vs. State of A.P., of our Honouable High

Court wherein it was held that :

“The trial Court failed to realize the scene of offence panchanamma is not substantive evidence and without there being evidence the contents of the panchanamma cannot be relied upon and the contents cannot be used only to corroborate the oral testimony given in the

Court”.

32.As can be seen from the evidence of P.W.1, P.Ws 2, 3 and L.W.3 and 4 have seen the crime lorry at the accident spot. The evidence of P.W.2 reveals that the crime lorry was not stopped at the accident spot. P.W.3 says she is not aware, what happened to the crime lorry. The prosecution mainly relied upon Ex.P.1 report lodged by the P.W.1 and the accident report issued by the M.V. Inspector to show that accused is the owner-cum-driver of the

C.C.No.19/2017 of PJCJ/PVP 13Dated 20-03-2020 crime lorry. When, the case of prosecution is scrutinized with reference to the oral evidence, let in by the prosecution, P.Ws1 and 3 are the hear say witnesses and they have deposed evidence before this court basing on the information furnished by the P.W.2. P.W.2 deposed evidence stating that he has seen the crime lorry and the driver, but on one hand he is saying that the crime lorry was not stopped at the accident spot and on the other hand he is also stating that the crime lorry was moving with over speed and negligent manner. P.W.2 is not in a position to say the registration number of the RTC bus boarded by him and his Aadhaar Card number, but he is able to say the exact registration number of the crime vehicle, as well as, victim vehicle.

Naturally, if accident was occurred in front of an RTC bus, the driver, conductor and the passengers have an opportunity to observe the occurrence, but they have not cited in this case and trip sheet of the RTC bus was seized and produced before this Court to believe the version of prosecution. Admittedly, the deceased is proceeding singly towards

Cholapadam from Parvathipuram. No pillion rider was proceeding on the bike of the deceased. If the accident occurred the vehicles which are plying in the same road naturally stops and observe the after effects of accident and comes to the rescue. But, no such person who are making journey were cited and examined in this case. Except, the oral evidence of P.W.2 there is no iota of evidence in the prosecution case to say that the driver of the crime vehicle drove in rash and negligent manner. P.W.8 the Motor Vehicle Inspector categorically admitted that he has not inspected the crime vehicle at the scene of crime, so the Motor Vehicle Inspector had no occasion to observe any skid or tire marks. The learned counsel for the accused relied upon a decision reported in 2004 (2) ALD (Crl.) 88 (AP) K. Dhannjaya Rao Vs. State of A.P., wherein it was held that “Unless the property is produced no purpose will be served. In view of grave defects found the benefit of doubt as to be given to the accused since prosecution miserable failed to show that the accused was riding the motor

C.C.No.19/2017 of PJCJ/PVP 14Dated 20-03-2020 cycle and caused the accident, but giving a dash to cycle. Hence, this Court can give benefit of doubt and acquit him on the charge”.

33.Admittedly, both vehicles are not produced before this Court. As per the evidence of P.W.8, he has examined the crime vehicle and opined that there are no damages on the vehicle. As per the evidence of Investigating

Officer, by the time he has gone to the scene of crime,. the victim vehicle was shifted to the PS., As per the evidence of P.W.2, the front portion of the deceased bike was badly damaged. The Investigating Officer has stated that the front side of the victim vehicle was damaged. But, however both vehicles were not produced before this Court. The victim vehicle was not shown in the photographs, except reciting the same in the documents of the prosecution.

The prosecution also failed to establish that the deceased was proceeding on a Hero Honda Passion Motor Cycle bearing No. AP 35 H 3793. For rashness or negligence there is no direct evidence, except P.W.2, whose evidence is not trustworthy and unbelievable. In view of the aforesaid discussion this Court holds that the prosecution failed to prove the crime vehicle WB 23 B 2362 involved in the accident and that the accused is the driver at the time of accident and he has driven the crime vehicle in a rash or negligent manner and caused the accident. Accordingly, points 1 to 3 are answered in favour of the accused and against the prosecution.

34.Point No.4 :- By examining P.Ws4 and 5 and P.W.7 the prosecution has proved that the deceased Nagireddi Hari Krishna died in a lorry accident. The prosecution has proved the cause of death. The case of prosecution is that on account of negligence on the part of the accused, the accident occurred. But, except the evidence of P.W.2 there is no direct evidence as to rashness or negligence. The evidence of P.Ws1 and 3 is hearsay evidence and cannot be taken into account. As per the evidence of

P.W.3 there is a rice mill, residential houses, Tea stall and buddy shops near the scene of crime, but those witnesses are not cited in the memo of evidence or in the rough sketch to ascertain the rashness on the part of the driver of the crime vehicle. As per the evidence of P.W.8 no skid or tire marks

C.C.No.19/2017 of PJCJ/PVP 15Dated 20-03-2020 are produced to ascertain the rashness or negligence. The defence of the accused is that he is no way connected with the crime and he was falsely roped into this case and that the accused is unaware, as to how, the accident took place. Rashness or negligence cannot be inferred from the facts basing on the gravity of the injuries, but the prosecution has to prove the rashness or negligence on the part of the driver of the crime vehicle. Since, this Court did not believe that the accused is the driver at the time of accident, hence he cannot be held liable for the rashness or the negligence. The learned counsel for the accused relied upon a decision reported in 2006 (1) ALT (Crl.) 73 AP in between Markapudi Krishna Rao Vs. State of A.P., wherein it was held that “Where the evidence does not disclose that the accused drove the bus in rash and negligent manner, resulting the death of the deceased conviction and sentence to be set aside”.

35.The prosecution failed to prove the rashness or negligence on the part of the driver of the crime vehicle. In view of the aforesaid discussion this court is of considerable view that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and the benefit of doubt shall be extended to the accused in the interest of justice.

36.Point No. 5 :- In the result, the accused is found not guilty for the offence punishable under Section 304-A of IPC. Accordingly, he is acquitted under section 255 (1) Cr.P.C. The accused shall execute bond for

Rs. 10,000/- (Rupees Ten thousand only) under Section 437-A Cr.P.C., to appear before the Appellate Court, if any appeal is filed.

Typed to my dictation, by the Stenographer Grade- III, corrected and pronounced by me in the open court on this the 20th day of March, 2020.

Sd/-Ch. Madhu Babu

Principal Junior Civil Judge-cum-

Judl. Magistrate of First Class, Parvathipuram.

C.C.No.19/2017 of PJCJ/PVP 16Dated 20-03-2020

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION DEFENCE

P.W.1 : Nagireddi Tirupathinaidu - None -

P.W.2 : Bonthu Dhananjaya

P.W.3 : Nagireddi Lakshmi

P.W.4 : Maradana Krishnam Naidu

P.W.5 : Kethireddi Chandra Mouli

P.W.6 : Nagireddi Rajesh

P.W.7 : Dr G. Vagdevi, CAS, Area Hospital, Parvathipuram

P.W.8 : N. Srinivasa Rao, M.V. Inspector, Parvathipruam

P.W.9 : Alluri Pera Raju

P.W.10: P. Dinakar, SI of Police, Komarada PS.,

DOCUMENTS MARKED

PROSECUTION DEFENCE

Ex.P.1: Report of P.W.1 given to police dated 27-11-2016. - Nil -

Ex.P.2: Inquest report dated 27-11-2016.

Ex.P.3: Scene observation report dated 27-11-2016.

Ex.P.4: Postmortem Certificate of deceased/ Nagireddi Hari Krishna

dated 27-11-2016.

Ex.P.5: M.V.I. Report dated 29-11-2016.

Ex.P.6: 5 colour positive photographs along with CD.

Ex.P.7: Original FIR in Cr.No.99/2016 of Komarada PS.,

Ex.P.8: Rough sketch dated 27-11-2016.

MATERIAL OBJECTS

-Nil -

Sd/-Ch. Madhu Babu

Principal Junior Civil Judge-cum-

Judl. Magistrate of First Class, Parvathipuram.

C.C.No.19/2017 of PJCJ/PVP 17Dated 20-03-2020

CALENDAR AND JUDGMENT

Calendar cases tried by the Court of Principal Junior Civil Judge-cum- Judicial

Magistrate of First Class, Parvathipuram.

Date of Offence : 27-11-2016 Date of report or Complaint : 27-11-2016 Date of apprehension of accused : 08-12-2016 Date release on bail, if any: 08-12-2016 Date of commencement of trail : 10-03-2017 Close of trial : 19 -03-2020 Date of sentence or other order : 20-03-2020 Explanation of delay and remarks : The case underwent several adjournments, as the prosecution did not produce it witness

Calendar and Judgment in C.C.No. 19/2017 on the file of Principal Junior Civil

Judge-cum-Judicial Magistrate of I Class, Parvathipuram.

Complainant : State represented by the Sub-Inspector of Police, Komarada Police Station, in Cr.No.99/2016 u/s 304-A of IPC.

Name of the accused, Fat./Hus. name, Aged, Calling, Religion, Village and Mandal.

Ramji Prasad Yadav, S/o Surja Prasad Yadav, C/o Nilamabhada Behera, Aged about 55 years, Yadav, 2/3 Matri Mandir Line, Kolkatta – 106, B.T. Road,

Kolkata. Driver of lorry bearing No. WB 23 B 2362.

Offence :Causing death by negligence punishable under Section 304-A of IPC.

Finding : Not guilty

Sentence :The accused is found not guilty for the offence punishable under Section 304-A of IPC. Accordingly, he is acquitted under section 255 (1) Cr.P.C. The accused shall execute bond for Rs.

10,000/- (Rupees Ten thousand only) under Section 437-A Cr.P.C to appear before the Appellate Court, if any appeal is filed.

Sd/-Ch. Madhu Babu

Principal Junior Civil Judge-cum-

Judl. Magistrate of First Class, Parvathipuram.

C.C.No.19/2017 of PJCJ/PVP 18Dated 20-03-2020

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-JUDICIAL

MAGISTRATE OF THE FIRST CLASS, PARVATHIPURAM.

Present : Ch. Madhu Babu

Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Parvathipuram

Thursday, this the 19th day of March, 2020

C.C.No.337/2017

Between:

State represented by the Sub-Inspector of Police, Chinamerangi Police Station.

......Complainant

And

Botcha Ram Mohan Rao, S/o Sangam Naidu, Aged about 37 years, K. Velama, R/o Jogavanipalem, Maruthi Nagar, Gajuwaka, Visakhapatnam, N/o Venkatarajapuram Village, Jiyyammavalasa Mandal. Cell No. 99488 57023. ....… Accused

This case is coming on 16-03-2020 for final hearing before me in the presence of Asst., P.P., Grade-II for complainant and of Sri R. Sesi Bhusana Rao learned counsel for accused and the matter having stood over for consideration to this day, this court delivered the following:

J U D G M E N T

01.The state represented by its Sub-Inspector of Police,

Chinamerangi Police Station laid charge sheet against sole accused person in

Cr.No.55/2016 under Section 498-A IPC and Section 3 and 4 of Dowry

Prohibition Act, 1961 with the following allegations.

The marriage of Botcha Jyothi/L.W.1 was performed with accused on 15-08-2013 in the presence of elders Penta Dhaunujaya Naidu, Dasari

Simhachalam Naidu and Bhupathi Sithamnaidu (L.Ws2 to 4) at Sri

Venkateswara and Kodanda Rama Swamy Devasthanam, Thotapalli. At the time of marriage the parents of L.W.1 gave dowry of Rs.2,00,000/-, 2 tulas of gold and one Hero Honda bike and Rs.50,000/- for Paraphernalia to the accused. After, marriage the accused took the L.W.1 to Gajuwaka,

Visakhapatnam, for conjugal life and subjected her to severe cruelty there

C.C.No.337/2017 of PJCJ/PVP2Dated 19-03-2020 and the accused used to come to the house in drunken state and beat the

L.W.1 black and blue by demanding additional dowry from her parents and the accused addicted to bad vices and did not take care of L.W.1 and use to abuse her by damaging her prestige and subjected her to cruelty. After one year of their marriage, the L.W.1 blessed with son and while she was carrying the accused use to beat her and abuse her in filthy language ans sent her to her parentage forcibly. The accused did not take care about her or her son and in the presence of elders also the accused used to utter harsh words and insulted her causing damage to her prestige and left her and her son to their fate demanding additional dowry. That basing on the report of Botcha

Jyothi/L.W.1, the SI of Police, Chinamerangi PS., registered a case in

Cr.No.55/2016 under Section 498-A of IPC and Section 3 and 4 of Dowry

Prohibition Act, 1961 and investigated into. Hence, the charge.

02. Basing on the charge sheet allegations and on perusal of other material available on record, this court took cognizance of the offence under

Section 498-A of IPC against the accused.

03.On appearance of accused, copies of documents were furnished to them as contemplated under Section 207 of Code of Criminal Procedure, 1973 (herein after referred to as 'Cr.P.C' for the sake of brevity). As per the proceedings of the Honourable District Court, Vizianagaram, in

P.R.No.218/2019-A dated 28-11-2019 communicated in Dis.No.4302 dated 28-11-2019 the entire case recorded in C.C.No.337/2017 is transferred from

Court of I Additional Junior Civil Judge-cum-I Additional Judicial Magistrate of

First Class, Parvathipuram to Principal Junior Civil Judge-cum-Judicial

Magistrate of First Class, Parvathipuram.

04.The accused was examined under section 239 of Cr.P.C., he denied the substance of accusation. After perusing the entire material on record and hearing both sides, charges have been framed against the accused under section 498-A of IPC, which was read over and explained to

C.C.No.337/2017 of PJCJ/PVP3Dated 19-03-2020 him in Telugu, for which, he pleaded not guilty and claimed the case to be tried.

05.To prove it's case, the prosecution has examined P.Ws.1 to 7 and got marked Exs.P-1 to P4 and on its behalf and the details of which are mentioned hereunder in Appendix of Evidence and for defence the accused examined himself as D.W.1 none were examined but got exhibited Ex.D.1 to

D.5.

06. On being closed the prosecution side evidence, the incriminating circumstances that appearing in the testimony of the prosecution witnesses were explained to the accused u/s. 313 (1) (b) Cr.P.C, for which the accused denied the incriminating circumstances from the testimony of the prosecution witnesses.

07.Now the points germane for determination are that :

1) Whether the prosecution has proved the guilt of the accused for the offence under Section 498-A of IPC beyond all reasonable doubt?

2) What order?

08. In order to bring home the guilt of the accused, the prosecution has examined P.Ws1 to 7, out of 16 cited witnesses and relied upon the documentary evidence of Exs P.1 to P.4. This Court has closed the evidence of L.Ws 2, 6, 7 and 9 to 14. P.W.1 is the de-facto complainant. P.W.2 and 3 are the elders of Kannapudoravalasa Village. P.W.4 is the mother of the P.W.1 and

P.W.5 is the co-brother of the accused. P.W.6 is the Head Constable who registered the FIR and conducted some part of investigation. P.W.7 is the

Investigating Officer, who served notice u/s 41-A Cr.P.C and filed charge sheet. The accused examined one Botcha Madhava Rao, who is cited as

L.W.9 by the prosecution, as D.W.1 on behalf of the accused. Ex.D.1 to D.5 are exhibited by the accused.

09.Point No.1 :- Whether the prosecution has proved the guilt of the accused for the offence under Section 498-A of IPC beyond all reasonable doubt?

C.C.No.337/2017 of PJCJ/PVP4Dated 19-03-2020

In order to prove the offence u/s 498-A of IPC the prosecution mainly relied upon the evidence of P.Ws1 to 5 coupled with Exs.P.1 to P.4.

10.i) To substantiate the offence u/s 498-A of IPC the P.W.1 deposed evidence that her marriage with accused was solemnized on 15-08-2013 at

Venkateswara Swamy Temple, Thotapalli as per the Hindu rites and caste customs. At the time of marriage, her parents gave dowry of Rs.2,00,000/- 2 tulas of gold, Hero Honda Bike and Rs.50,000/- towards house hold articles.

She further testified that after marriage she joined the accused at Gajuwaka,

Visakhapatnam and they lead conjugal life happily for a period of 9 months.

Subsequent there to the accused used to come house late in the night in a drunken state and used to beat and abuse her in a filthy language. She further stated that the accused used to heed the words of his family members and used to harass her. She further testified that subsequently, she conceived pregnancy and gave birth to a baby boy.

P.W.1 further stated that during her pregnancy time the accused and her family members used to harass her and failed to provide proper food. She further stated that she was beaten up and necked out her from the accused house and they have sent her to parents house. She further stated that they have raised dispute before the elders 3 times, but there is no response from the in-laws, for which, she approached the Police,

Chinnameerangi PS., and lodge a report. She further testified that she identified her signature on the report given to the police. Hence, the prosecution exhibited the said report as P.W.1.

ii) The learned counsel for accused cross-examined P.W.1 by put forthing the defence of the accused. During the cross-examination the P.W.1 stated that the marriage negotiations were held 3 months prior to their marriage and the dowry and other articles were given to marriage elders of the accused. She further testified that her mother/P.W.4 gave remaining dowry and other articles to the elders at the time of marriage. She further stated that the accused and his family members had not shown her the

C.C.No.337/2017 of PJCJ/PVP5Dated 19-03-2020 divorce papers with his first wife. She further stated that after marriage she has joined her in-laws, who are native of Venkatarajapuram at

Visakhapatnam.

P.W.1 denied that the accused and her parents were never resided under one roof at any time. She further stated that she lived at

Visakhapatnam until the dispute arose between the accused and herself.

She further stated that all the incidents occurred in Visakhapatnam.

She further admitted that after lodging the report, the accused never came to her parents Village. She further admitted that her brother-in- laws were married by the time of their marriage and they are residing in

Visakhapatnam, due to their employment. She further stated that her- brother-in-law used to come to their house occasionally. She further admitted that she being the 2nd wife of the accused he gifted some land to her and the possession was not delivered to her. She further admitted that the son born out of 1st marriage, used to reside along with them.

She denied a suggestion that she insisted the accused not to allow his relatives to their residence. She further denied that she demanded the accused to put up separate family and the accused refused on account of that, she filed this false case.

11.P.W.2, the elder of Kannapudoravalasa Village, deposed evidence that the marriage of P.W.1 was solemnized with the accused at Thotapalli

Devastanam and he attended the same on 15-08-2013. he further testified that at the time of marriage, Rs.2,00,000/- was given as dowry, 2 tulas of gold and Rs.50,000/- for purchase of motor bike were given. The said dowry and marriage presentations were given by the P.W.4 to the accused and his parents. After marriage P.W.1 was sent to her husband’s house, as the accused was doing some work. He further testified that after some time out of their wedlock they were blessed with a male child and thereafter the accused started harassing the P.W.1 demanding additional dowry and he further testified that the accused beat the P,.W.1 and locked the doors and

C.C.No.337/2017 of PJCJ/PVP6Dated 19-03-2020 sent her away. Thereafter, P.W.1 came to her parent’s house. He further testified that after coming to her parents house, since he acted as elder to the marriage of P.W.1, he conducted a panchayat for 2 or 3 sittings and the accused agreed to look after P.W.1 nicely, but did not keep his words and sent back the P.W.1. Hence, he advised the P.W.1 to lodge a complaint. He further stated that he was examined by the police and stated that the accused was harassing the P.W.1 by demanding additional dowry.

ii) P.W.2 during the cross-examination admitted that at the time of marriage negotiations, the accused did not show any papers to say that he got divorce from the 1st wife. He further testified that one week prior to the marriage, the dowry and marriage presentations were given to the accused.

He further stated that Pentadhanunjaya Naidu P.W.4 and himself were present at the dowry and marriage presentations. He further stated that no the date of marriage, no dowry and marriage presentations were given. He further stated that P.W.1 and the accused after marriage lived happily for a period of 2 years at Visakhapatnam. He denied a suggestion that he had knowledge of the offence only through P.W.1 and added that P.W.1 made a phone call to him. He further admitted that he did not personally did not go to Visakhapatnam and raised dispute before the elders.

He further admitted that either himself or P.W.1 did not lodge a report before the Visakhapatnam Police. He further stated that he held a panchyat 3 years prior to the date of giving deposition at Kannapudoravalasa

Village, at the house of P.W.1. On the 2nd time when the accused send back the P.W.1 to the parental house they straight away lodged the report.

ii) During the cross-examination he admitted that the accused family agreed to convey some extent of land to P.W.1, but did not choose to do so. The contradictory statements of P.W.2 which are inconsistent with the evidence are marked as Ex.D.1 and D.2. P.W.2 also denied the suggestion that the P.W.1 requested the accused to leave his parents and brother to set

C.C.No.337/2017 of PJCJ/PVP7Dated 19-03-2020 up a separate family and on account of his refusal, she harassed the accused.

12.i) P.W.3, another elder of Kannapudoravalasa Village, deposed evidence that the marriage of P.W.1 was solemnized with the accused in the year 2013 and he attended the same. He further testified that at the time of marriage, the mother of the P.W.1 gave Rs.2,00,000/- cash, 2 tulas of gold and Rs.1,00,000/- towards house hold articles and purchase of the vehicle.

He further testified that the marriage was solemnized at Thotapalli

Devastanam. He further deposed that after marriage the P.W.1 and accused lead happy martial life for a period of 1 ½ year. He further stated that thereafter the accused and his parents, brothers harassed the P.W.1 on account of in adequate dowry presented and asked her to bring additional dowry. He further stated that the family members of the accused used to beat and abuse the P.W.1. He further stated that he came to know about the same when the P.W.1 called him over phone. He further stated that the accused and family members driven out with empty hands and on that P.W.4 gone to Visakhapatnam and brought the P.W.1 to their house. He further stated that when questioned the accused, he did not give reply.

ii) P.W.3 during the cross-examination admitted that it is the 2nd marriage for the accused. He further admitted that dowry and marriage presentations were given one week prior to the marriage. He further stated that at the time of presenting dowry and marriage presentations both the family members were present. He further admitted that he has not gone to

Visakhapatnam and raised any dispute before the elders. He further stated that after coming back to Kannapudoravalasa Village, the P.W.2 and

Pentadhanunjaya Naidu and himself raised a dispute. The contradictory statements of P.W.3 which are contradictory evidence to Ex.D.3 and D.4.

13.P.W.4 the mother of P.W.1 deposed evidence that the marriage of

P.W.1 was solemnized with accused around 5 years back. At the time of marriage the accused was given 2 tulas of gold and RS.50,000/- for the

C.C.No.337/2017 of PJCJ/PVP8Dated 19-03-2020 purchase of vehicle and Rs.2,00,000/- towards dowry and Rs.50,000/- towards house hold articles. She further stated that one day the accused driven out the P.W.1 and locked the doors. She further stated that the parents of accused used to call him over phone with a demand for additional dowry. She further stated that they have raised panchayat for 3 or 4 times.

The accused agreed to take back the P.W.1 to the PS., She further stated that

P.W.1 conceived pregnancy and the accused demanded the P.W.1 to leave him. She further testified that after the birth of baby boy they held panchyat, but the accused did not heed their words, though he agreed to take back the

P.W.1, but did not do so.

During the cross-examination P.W.4 admitted that it is the 2nd marriage for accused and one Penta Dhanunjaya Naidu/L.W.2 and P.W,.2 and 3 are elders on her behalf and the accused family members and Datti laxmana Rao, who is resident of Venkatarajapuram are the elders on the behalf of the accused. She further stated that the dowry and other marriage presentations were given one week prior to the marriage. She further admitted that at the time accused driven out she was at the matrimonial home and residing at Visakhapatnam and she further admitted that she has not lodged any report before the Police at Visakhapatnam and did not raise panchayat before the elders at Visakhapatnam. The contradictory statements of P.W.4 which are inconsistent with her evidence is marked as

Ex.D.5. P.W.4 admitted that P.W.3 is her brother-in-law and his wife and herself are own sisters.

14. i) P.W.5, co-brother of accused deposed evidence that the marriage of P.W.1 with the accused 15-08-2013 at Thotapalli Devastanam and he attended the same. At the time of marriage, one gold chain, ½ tula ring and an amount of Rs.2,00,000/- towards marriage were given by P.W.4 to the accused. After, marriage the P.W.1 and the accused used to reside in

Gajuwaka which is 1 KM away from his house. He further testified that accused and the P.W.1 were happy for 2 years and thereafter disputes

C.C.No.337/2017 of PJCJ/PVP9Dated 19-03-2020 between them. On that the brothers of the accused and himself pacified the dispute. The learned APP declared the P.W.5 hostile.

ii) During the cross-examination of learned APP nothing was elicited. During the cross-examination by accused P.W.5 admitted that except brother of the accused and himself nobody was present, when they held panchayat at Gajuwaka. He further admitted that they did not lodge any report before the Police at Gajuwaka. He further admitted that some property was conveyed by the accused to P.W.1 since it is a second marriage.

15.i) P.W.6 the Head Constable deposed evidence that on 22-12- 2016 while he was present in the PS., the P.W.1 came to the PS., and presented Ex.P.1 report. Basing on the said report, he regd. a case in

Cr.No.55/2016 u/s 498-A of IPC and Section 3 and 4 of Dowry Prohibition Act, 1961. He further stated that he visited the parents house of P.W.1 in

Kannapudoravalasa Village and examined P.Ws1 to 4 and L.W.3/Penta

Dhanunjaya Naidu and thereafter the investigation was taken up by the

P.W.7.

ii) During the course of cross-examination he admitted that P.W.1 alone came to the PS., and lodged a report. He further admitted that P.Ws1 to 3 and L.W.2 did not state before him that the in-laws of the P.W.1 have spoken gullible words. He further admitted that P.Ws2 and 4 and L.W.2 stated

before him that the accused obtained divorce and he shown divorce papers

prior to marriage.

16.i) P.W.7 the Investigating Officer, deposed evidence that he verified the investigation conducted by the P.W.6 and he examined P.W.5,

L.W.6 and 7 and addressed a letter to the Executive Officer, Thotapalli and

Panchayat Secretary to Kannapudoravalsa to get the marriage certificates.

He further stated that the accused and P.W.1 stayed at Gandhi Nagar,

Joguvanipalem, Visakhapatnam. He further testified that during the course of his investigation he examined L.Ws12 to 14 and served a notice under

C.C.No.337/2017 of PJCJ/PVP10Dated 19-03-2020

Section 41 (a) of Cr.P.C., on the accused and after completion of investigation he filed charge sheet.

ii) During the course of cross-examination he admitted that all the witness have not spoken anything about the harassment meted out by the parents of P.W.1lhe further stated that the accused parents stated before him that the harassment subjected by the accused. He further admitted that no date of harassment was stated by the witnesses, but the time is mentioned as the pregnancy time of P.W.1. He denied a suggestion that he has conducted table investigation.

17.The defence of the accused is that he married the P.W.1 after giving divorce to his first wife without taking dowry and marriage presentations and also agreed to convey some property to P.W.1 as it was his second marriage. It is also the defence of the accused that the P.W.1 requested the accused to put up separate family and not to allow his relatives to his house on account of his refusal P.W.1 filed this false case against him. It is also the case of the accused that since the property was not delivered to the P.W.1 as agreed this false case is foisted against him.

18.As can be seen from the evidence of P.Ws1 to 5 they have spoken as to giving of dowry and marriage presentations. No document is produced by the prosecution to show that Rs.2,00,000/- was given as dowry and 2 tulas of gold, Hero Honda Bike and Rs.50,000/- towards house hold articles was given to the accused. The prosecution mainly relied upon the evidence of P.W.1 and his mother P.W.4 and the marriage elders P.Ws2 and 3.

As can be seen from the evidence of P.W.1 only omnibus statements are given by the P.Ws1 to 4 and they have spoken as to demanding of dowry by accused as he became awful drunkard and used to come to home late nights and use to beat P.W.1 and abuse her in filthy language. P.Ws1 to 4 and 7 categorically admitted that the incidents of cruelty were taken place in

Visakhapatnam.

C.C.No.337/2017 of PJCJ/PVP11Dated 19-03-2020

19. P.Ws2 and 3 categorically admitted that they have not gone to

Visakhapatnam or Gajuwaka and held panchayat before the elders when

P.W.1 told them that the accused harassed her. P.Ws 2 and 3 further admitted that no report has been lodged before the Visakhapatnam Police.

P.Ws2 and 3 stated that they had knowledge of the cruelty subjected to P.W.1 by the accused through P.W.1 over phone. Admittedly, the neighbours of the accused house though cited, but not examined by the prosecution as to the alleged commission of offence by the accused.

20.P.W.5 who is the co-brother of the accused deposed evidence that the brothers of the accused and himself pacified the disputed between

P.W.1 and the accused and other witness stated in a similar fashion. P.W.5 alleged to be 1 KM away from the house of accused is the best person to speak about the alleged incidents of violence or cruelty subjected by the accused to P.W.1.

21.But P.W.5 turned hostile and nothing could be elicited by the learned Public Prosecutor in favour of prosecution. P.Ws3 and 4 stated that the accused and his family members driven out the P.W.1 and closed the doors. Thereafter, P.W.4 gone to the house of accused and brought the P.W.1 to the parental house and thereafter raised a dispute before the P.Ws2, 3 and

L.W.2. P.Ws.2 and 3 stated before this Court that the accused did not heed their words and take back P.W.1 and her son to the matrimonial home. They did not state that the accused demanded additional dowry.

22.P.W.1 categorically admitted that after lodging the report the accused did not visit her parents house, in such situation the raising of panchayat before elders of Kannapudoravalasa Village viz., PWs2, 3 and

L.W.2 does not arise.

23.The prosecution witnesses admitted that it is the second marriage for the accused, whereas the first marriage for the P.W.1. The prosecution witnesses P.Ws2 and 5 categorically stated that the accused

C.C.No.337/2017 of PJCJ/PVP12Dated 19-03-2020 agreed to convey some property to P.W.1 in the marriage negotiations. As per the evidence of P.W.2 the property was not conveyed to P.W.1 as agreed.

24.As can be seen from the prosecution witness the accused and the P.W.1 lead happy martial life for a period of 1 ½ year to 2 years after marriage. As per the prosecution case, the accused by addicting to vices harassed the P.W.1 by beating her up and abusing her in a filthy language.

The said allegation was leveled against the accused, while the P.W.1 was conceived pregnancy.

25.It is the case of prosecution that after one year the P.W.1 and the accused blessed with a baby boy and after the birth of the body the accused started demanding additional dowry. As can be seen from the evidence of prosecution witnesses, no specific amount of additional dowry is mentioned by any witness. Moreover, there is no persist demand for dowry soon before lodging Ex.P.1.

26. The P.W.1 deposed before this Court that the accused and her parents has not shown the divorce papers with the first wife and deceived her, but as can been seen from the ExsD.1 and 3 the accused has shown the divorce papers to the elders of P.W.1. As can been seen from the prosecution witness no specific over acts can be found or the dates at which the alleged driving of P.W.1 from the matrimonial home and closing of the doors by the accused.

27.The Investigating Officer deleted the case against the parents and brothers of the accused and filed charge sheet only against the accused.

The prosecution let in evidence that all the accused driven away the P.W.1 from the matrimonial home. The learned counsel for the accused elicited contradictions from the versions of the prosecution witness and got marked the part recitals of the 161 (3) Crpc statements ad Exs.D.1 to D.5. Among them ExsD.2, D.4 and D.5 shows that there is no involvement of the parents and brothers of the accused and they never demanded additional dowry. In

C.C.No.337/2017 of PJCJ/PVP13Dated 19-03-2020 so far as Exs.D-1 and D-3 is concerned P.Ws1 and 3 have stated before the police as to the divorce papers shown by the accused to the marriage elders.

28.The evidence let in by the prosecution is consisting of improvements and embellishments besides contradictory statements. Hence, this Court is of the considerable view that the prosecution witnesses themselves destroyed the case of prosecution. As can be seen from the record, there is no alleged incident to say that the accused subjected the

P.W.1 to cruelty to drive the P.W.1 in such a manner to commit suicide or to cause grave injury to life or limb. There is no material evidence available on record to show that the accused subjected to P.W.1 to cruelty with a view to coercive P.W.1 or her mother to meet unlawful demand for property or valuable security.

29.All the prosecution witnesses admitted it is the second marriage

for the accused and he agreed to convey some property to P.W.1 because of

his second marriage. The prosecution version that the accused was given

Rs.2,00,000/- towards dowry and 2 tulas of gold and one Hero Honda bike and Rs.50,000/- towards for house hold articles is not believable. Moreover, petty quarrels between the wife and husband cannot be termed as cruelty unless and until the cruelty is established as contemplated in the explanation appended to Section 498-A of IPC.

This court relied upon following decisions reported in

i) 2003 lawsuit (AP) 39 Bomma Ilaiah Vs. The State of A.P., decided on 09-01-2003 wherein it was held that “In order to constitute cruelty under clause (a) it is not enough that the conduct of the accused is willful and offensively unjust to a woman, but it is further necessary that the degree of the intensity of such unjust conduct on the part of the accused is such as is likely to drive the woman to commit suicide or such conduct is likely to cause grave injury or danger to her life or limb, or to her mental or

C.C.No.337/2017 of PJCJ/PVP14Dated 19-03-2020 physical health”.

ii). Honourable Supreme Court in between 2009 AIR 2056 Manju Ram Kalita Vs. The State of Assam, decided on 29-05-2009 wherein it was held that “It is to be established that the woman has beensubjectedtocruelty continuously/persistently or at least in close proximity of time of lodging the complaint.

Petty quarrels cannot be terms as ‘cruelty’ to attract the provisions of Section 498-A of IPC causing mental torture to the extent that it becomes unbearable may be termed as cruelty”.

iii). 2010 lawsuit (Mad) 4258 Murugesa Pandian Vs. The State of A.P., decided on 02-02-2010 wherein it was held that “Even assuming that there was some demand for money, that to some time back, long before her commission of suicide on account of some financial stringency, it cannot be said that there was harassment or cruelty inflicted on the deceased for dowry”.

iv). Ragupathy (A-1) Vs. The State by Inspector of Police, decided on 31-07-2019 wherein it was held that “Cruelty for the purpose of Section 498-A IPC is to be established in the context of Section 498-

A IPC as it may be different from other statutoryprovisions.Itistobe determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his act and to find out as to whether it is likely to drive the woman to commit suicide, etc. It is to be established that the woman has beensubjectedtocruelty continuously/persistently or at least in close proximity of time of lodging the complaint.

Petty quarrels cannot be termed as cruelty to attract the provisions of Section 498-A IPC causing mental torture to the extent that it

C.C.No.337/2017 of PJCJ/PVP15Dated 19-03-2020 becomes unbearable may be termed as cruelty.”

v). Honourable Supreme Court of 2013 AIR 3055 India Kantilal Martaji Pandor Vs. The State of Gujarat, decided on 25-07-2013 wherein it was held that “Wherein it has been held that for holding an accused guilty under Section 498-A IPC it can be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time to the lodging of the complaint and petty quarrels cannot be termed as cruelty to attract the provisions of Section 498-A IPC, though mental torture to the extent that it becomes unbearable may be termed as cruelty”.

In view of the matter, the prosecution miserably failed to prove the offence under Section 498-A of IPC beyond all reasonable doubt. In the circumstances, this court is of the considerable opinion that the accused is entitled for benefit of doubt and an order of acquittal.

30. Point No.2 :- To what order.

In the result, the accused is found not guilty for the offence punishable under section 498-A of IPC. Accordingly he is acquitted under 248 (1) of Cr.P.C. The accused shall execute bond for Rs. 10,000/- (Rupees Ten thousand only) each under Section 437-A Cr.P.C., to appear before the Appellate

Court, if any appeal is filed.

Typed to my dictation by the Stenographer Grade-III, corrected, singed and pronounced by me in the open Court, this the 19th day of March, 2020.

Sd/-Ch. Madhu Babu

Principal Junior Civil Judge-cum-Judl.

Magistrate of First class, Parvathipuram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTIONDEFENCE

P.W.1 : Botcha Jyothi D.W.1 : Botcha madhavarao

P.W.2 : Bhupathi Sithamnaidu

C.C.No.337/2017 of PJCJ/PVP16Dated 19-03-2020

P.W.3 : Dasari Simhachalam Naidu P.W.4 : Batu laxmi P.W.5 : Dwarapureddi Sankara Naidu P.W.6 : N. Satyam Naidu, HC-444, Chinamerangi PS., P.W.7 : V. Paparao, SI of Police, Chinamerangi PS.,

DOCUMENTS MARKED

PROSECUTION

Ex.P.1: Report of P.W.1 given to police dated 22-12-2016. Ex.P.2: Original FIR in Cr.No.55/2016 of Chinnamerangi PS.,

Ex.P.3 & Ex.P.4: Part recitals in 161 Cr.P.C.statement of D.W.1.

DEFENCE

Ex.D.1 : Part recital contradictory 161 (3) Crpc statement of P.W.2 dated 22- 12-2016. Ex.D.2 : Part recital contradictory 161 (3) Crpc statement of P.W.2 dated 22- 12-2016.. Ex.D.3 : Part recital contradictory 161 (3) Crpc statement of P.W.3 dated 22- 12-2016. Ex.D.4 : Part recital contradictory 161 (3) Crpc statement of P.W.3 dated 22- 12-2016. Ex.D.5 : Part recital contradictory 161 (3) Crpc statement of P.W.4 dated 22- 12-2016.

MATERIAL OBJECTS

-Nil –

Sd/-Ch. Madhu Babu

Principal Junior Civil Judge-cum-Judl.

Magistrate of First class, Parvathipuram

C.C.No.337/2017 of PJCJ/PVP17Dated 19-03-2020

CALENDAR AND JUDGMENT

Calendar cases tried by the Court of Principal Junior Civil Judge-cum- Judicial

Magistrate of First Class, Parvathipuram.

Date of Offence : 22-12-2016 (prior to) Date of report or Complaint : 22-12-2016 Date of apprehension of accused : - - Date release on bail, if any : - - Date of commencement of trail : 12-06-2019 Close of trial : 16-03-2020 Date of sentence or other order : 19-03-2020 Explanation of delay and remarks : The case underwent several adjournments, as the prosecution did not produce it witness.

Calendar and Judgment in C.C.No. 337/2017 on the file of Principal Junior

Civil Judge-cum- Additional Judicial Magistrate of First Class, Parvathipuram.

Complainant : State represented by the Sub-Inspector of Police, Chinamerangi Police Station in Crime No. 55/2016 u/s 498-A of I.P.C.

Name of the accused, Fat./Hus. name, Aged, Calling, Religion, Village and Mandal.

Botcha Ram Mohan Rao, S/o Sangam Naidu, Aged about 37 years, K. Velama, R/o Jogavanipalem, Maruthi Nagar, Gajuwaka, Visakhapatnam, N/o Venkatarajapuram Village, Jiyyammavalasa Mandal.Cell No. 99488 57023.

Offence : Husband or relative of husband of a woman subjecting her to cruelty punishable under Section 498-A of IPC.

Finding : Not guilty

Sentence : The accused is found not guilty for the offence punishable under section 498-A of IPC. Accordingly he is acquitted under 248 (1) of Cr.P.C.

The accused shall execute bond for Rs. 10,000/- (Rupees Ten thousand only) each under Section 437-A Cr.P.C., to appear before the Appellate Court, if any appeal is filed.

Sd/-Ch. Madhu Babu

Principal Junior Civil Judge-cum-Judl.

Magistrate of First class, Parvathipuram

1

IN THE COURT OF THE I ADDITIONAL JUDICIAL MAGISTRATE OF THE FIRST CLASS,

PARVATIPURAM.

Present : Sri Ch. Madhu Babu, I Additional Judl. Magistrate of the First Class, Parvathipuram

Saturday, this the 4th day of May, 2019

C.C.No. 132/2012

Between :

The State represented by the Inspector of Police, Parvathipuram Circle. …… Complainant

And

A-1. Ragolu Sunitha, W/o Sankararao, Aged about 38 years, T.Kapu, Kosuru Vari Veedhi, Jagannadhapuram, Parvathipuram.

A-2. Behara Nagamani, W/o Visweswara Rao, Aged about 35 years, Sistakaranam by caste, Kosuruvari Veedhi, jagannadhapuram, Parvathipuram.

A-3. Ragolu Sankararao, S/o Chandrudu, Aged about 43 years, T.Kapu, Kosuru Vari Veedhi, Jagannadhapuram, Parvathipuram.

A-4. Buridi Ramakrishna Naidu, S/o late Satyam Naidu, Aged about 60 years, T.Kapu, Kotipam Village, Komarada Mandal.

….… Accused

This case is coming before me for final hearing on 30-04-2019 in the presence of Smt. G. Priyadarshini, learned Assistant Public Prosecutor for the Complainant and Sri G. Murali Mohana Rao, learned counsel for A-1, A-3, and A-4 and of Sri S.Prabhakara Rao Advocate for A-2, upon hearing both sides and the matter having stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Sub-Inspector of police, Parvathipuram Town Police Station filed a charge sheet against four accused persons in Cr.No.88/2010 under sections 420, 120-B R/W 34 of IPC(herein after referred to as 'IPC' for the sake of brevity) and Section 4 and 5 R/W 75 of Chit Fund Act, 1982.

02.The case of the prosecution, succinctly, is that:

i) The A-1 and A-2 and one Kona Jyothi, W/o Satyanarayana (who died by committing suicide along with her husband and son) organized chits in Parvathipuram Town since 5 years with the help of A-3 and A-4 without any license or any registration. All the accused organized 15 groups with a period of 20 months duration in five ranges viz., 1) Rs.50,000/- group (Rs.2,500/- 2 per month). 2) Rs.1,00,000/- group (Rs.5,000/- per month). 3) Rs.1,50,000/- group (Rs.7,500/- per month). 4) Rs.1,80,000/- group (Rs.9,000/- per month).

5) Rs.2,00,000/- group (Rs.10,00/- per month) and 6) Rs.3,00,000/- group (Rs.15,000/- per month).

ii) The L.Ws 1, 10, 11, 20, 39, 43, 48 to 50, 52 (Vavilapalli Laxmi,

Ejjipurapu Polinaidu, Kota Devi, Pinninti Ramanamma, Suvvana jagadeeswari,

Suvvana Ramanamma, Pudi Savithri, Rogolu Usha, Ganteda Adilaxmi,

Ramannamma) were joined as members in Rs.1,00,000/- group with an agreement to pay Rs.5,000/- per month. The L.Ws2, 3, 5, 7, 12, 13, 25, 32 to 36, 38, 41, 47 and 49 (Potnuru Simhadramma, Pyla kanchamma, Padala srinu. Rogolu Simhachalam, Suvvanna Jagadhi, Rogolu Usha, Gantyada

Adilaxmi, Seemala Srirama Murthy, Pathivada Ramadevi, Seshapu

Mangamma, Kumili Parvathamma, and Potnuri Pakeeru, Reddy Sridevi, Pudi

Sri devi and Ragolu Usha) were joined as members in Rs.1,50,000/- group with an agreement to pay Rs.7,500/- per month. The L.Ws2, 12, 16, 19, 20, 23, 27, 31, 37, 44, 46 to 49 and 53 (Potnuru Simhadramma, Suvvana

Jagadhi, Ragolu Suresh Kumar, Ragolu Mangamma, Pinninti Ramanamma,

Rogolu Laxmi, Shikha Nirmala, Kota Devi, Vavilapalli Padmavathi, Yarpati

Laxmi, Pudi Srinivasa Rao, Pudi Sri Devi, Pudi Savithri, Ragolu Usha and Karri

Sankara Rao) and were joined as members in Rs.2,00,000/- group with an agreement to pay Rs.10,000/- per month. The L.W.28 joined as members in

Rs.2,50,000/- group with an agreement to pay Rs.12,500/- per month. The

L.Ws4, 6, 8, 9, 14, 15, 20, 22, 26, 30, 46, 48 (Pathivada Gouri Sankara Rao,

Gorli Seetharam, Pathivada Satyavathi, Palakonda Raja Sekhar, Padala Jaya,

Pinninti Ramanamma, Pinninti Ramanamma, Mulla Chinnari, Padala

Satyavathi, Ranaberi Pentamma @ Parvathi, Pudi Srinivasa Rao, and Pudi

Savithri)were joined as members in Rs.3,00,000/- group with an agreement to pay Rs.15,00/- per month. The L.Ws20 to 24, 40, 42, 45, 52 (Pinninti

Ramanamma, Muguli Sarada, Mullu Chinnari, Ragolu Laxmi and Pothula

Trinadha, Ragolu Simhachalam, Raghu Srinu, Buri Ramesh and Ramanamma) were joined as members in Rs.50,000/- group with an agreement to pay 3

Rs.2,500/- per month. The L.Ws17 and 18 (Gara Laxmi and Nelli Uma) were joined as members in Rs.60,000/- group with an agreement to pay Rs.3,000/- per month. The above said victims paid all the monthly subscriptions regularly after deduction of bonus amount to the accused.

iii) All the accused with intention cheat to get wrongful gain from

L.Ws1 to 76 and others by enrolling their names as subscribers in the chits and false names up to 10 chits without notice to L.Ws1 to 76 and other members. The accused used to conduct auction at the house of A-1 regularly on 10th of every month and they used to bid the chit amount with heavy loss by raising auction amount to high level for first 10 chits and shared the bid amounts equally to A-1 and A-2 and the deceased. After the auction of 10 chits the accused made believe the bidders that they would give higher interest than banks and keeping the amount with them and shared the amount. Whenever any subscriber insists them to pay the chit amount they used to drag the matter to some pretext or other. A-3 and A-4 also used to collect the chit amounts from the subscribers and swallowed the chit amount of Rs.3,00,00,000/- by cheating the subscribers without any license.

iv) A-1 also took an amount of Rs.50,000/- each from L.W.3, 45 and 51; Rs.80,000/- from L.W.40; Rs.1,00,000/- each from L.W.2, 27, 31 and 36; Rs.1,20,000/- from L.W.39, Rs.1,50,000/- from L.W.37, Rs.3,50,000/- from

L.w.5 and Rs.5,50,000/- from L.W.48 as deposits with a false promise to pay high rate of interest more than banks, for which, the L.Ws believed the words of A-1 and gave the above huge amounts aspiring that they will get more interest, but A-1 not re-pay either interest or principal towards the L.Ws in spite of repeated request and warnings.

v) That basing on the report of (L.W.1), the S.I. of Police,

Parvathipuram Town PS., (L.W.83) registered a case in Cr.No.88/2010 and arrested the A-1 to A-3 on 10-08-2010 and A-4 on 12-08-2010 and A-5 on 12- 08-2010 and sent them to judicial remand and investigated into. Hence, the charge sheet.

4

03.On receipt of charge sheet, the case was taken on file against the accused for the offences under sections 420, 120-B R/W 34of IPC and

Section 4 and 5 R/W 75 Chit Fund Act, 1982.

04.On appearance of accused, copies of documents were furnished to him as contemplated under Section 207 of Code of Criminal Procedure, 1973 (herein after referred as 'Cr.P.C' for the sake of brevity).

05.The accused was examined under section 239 of Cr.P.C., he denied the substance of accusation. After perusing the entire material on record and hearing both sides, charges had been framed against the accused under sections 420, 120-B R/W 34of IPC and Section 4 and 5 R/W 75 Chit

Fund Act, 1982, which was read over and explained to him in Telugu, for which, he pleaded not guilty and claimed the case to be tried.

06.To prove it's case, the prosecution has examined P.Ws.1 to 64 and got marked Exs.P-1 to P-15 on its behalf, the details of which are mentioned hereunder in Appendix of Evidence.

07. On being closed the prosecution side evidence, the incriminating circumstances that appearing in the testimony of the prosecution witnesses were explained to the accused u/s. 313 (1) (b) Cr.P.C, for which the accused denied the incriminating circumstances from the testimony of the prosecution witnesses.

08.The learned APP argued that P.Ws1 to 4 fully supported the case of prosecution and the prosecution able to prove the guilt of the accused beyond all reasonable doubt. Per-contra the learned counsel’s for the A-1 to

A-4 vehemently argued that the prosecution failed to prove the guilt of the accused. The arguments of the learned defence counsels will be discussed at relevant point of time.

09. The point germane for determination is:

“Whether the prosecution is successful in bringing home the guilt of the accused for the charges framed against 5 him under sections 420, 120-B R/W 34of IPC and

Section 4 and 5 R/W 75 Chit Fund Act, 1982 beyond all reasonable doubt?”

10. Point :- To bring home the guilt of the accused, the prosecution has examined P.Ws 1 to 64 and exhibited Exs.P.1 to P.15 to substantiate it contention.

11.P.Ws1 to 50, 56 to 61 are the victims whereas P.Ws 51 to 55 & 62 are mediators. P.W.63 is ASI of Police, who registered the FIR. P.W.64 is the

Inspector of Police, who conducted investigation, and seized Exs.P.6, 9 from the possession of the accused.

12. The prosecution mainly relied upon the evidence of P.Ws 1 to 4, 51 to 55 and 62 to 64 to substantiate its contention. The remaining witnesses are the victims. P.Ws1 to 3 are the persons who lodged the FIR

before the Police of Parvathipuram Town PS., stating that A-1, A-3 and A-4

deceived them by collecting Rs.8,00,000/-, Rs.6,00,000/- and Rs.5,00,000/- respectively towards chit amounts and prayed to punish them accordingly.

13.P.W.1 deposed evidence that 7 years back she joined as a member of Rs.1,00,000/- chit member and paid an amount of Rs.5,000/- in 20 equal monthly installments and thereafter she assured to return back the chit amount in 3 months. But, she did not return the same and again she assured to repay the said amount and did not gave any amount to her and hence she lodged a report before the Police.

14.P.W.2 deposed evidence that she joined as a chit member and paid an amount of Rs.5,000/- for 25 installments and A-1 stated to her that she will pay Rs.1,50,000/-. She further testified that after paying chit amount for 25 months she demanded money from A-1 to A-3. Thereafter, A-1 to A-3 kept that amount with A-1 and promised to give 2% interest and subsequently to keep the promise, then she approached the Police.

6

15.P.W.3 deposed evidence that she paid chit amount of

Rs.3,00,000/- to A-1 for monthly installment of Rs.15,000/- and he paid the said amount for a period of 20 months and thereafter he asked A-1 to return the said amount. She stated that she will return the money with interest.

Again he asked for return of amount, but A-1 did not return back. Hence, he informed the Police.

16.P.W.4 deposed evidence that he subscribed chit amount of

Rs.4,50,000/- and he also gave an amount of Rs.3,00,000/- on interest to A-1, after the term he asked to return the amount, but A-1 did not return and dragged the matter. He further testified that when he questioned about the interest, the A-1 used to drag on the matter.

17. P.W.1 admitted in cross-examination that she used to do cultivation and her husband owns Ac.1.00 cents of land and she further admitted that she cannot say whether the A-1 is running the chit by showing the display board. He further stated that he do not know the chit number issued by the A-1 and he do not have chit pass book in his possession and he did not submit the same and he further admitted that the A-1 did not issue any receipt with regard to payment of chit.

18. P.W.2 during the course of cross-examination admitted that her husband is fruit seller and she do not have own house and she is white card holder and she did not state the chit number and registration of the chit number to the Police. He further stated that she do not remember the date and year from which, she is paying the chit.

19.P.W.3 admitted in the cross-examination that his chit transaction is completed in the year 2008.

20.P.W.4 admitted in the cross-examination that generally promissory note will be executed on lending the amount.

21. P.W.63 is the ASI of Police, who registered the FIR in this case.

When P.Ws1 to 3 came to the Police Station and presented a written report, 7 he further submitted as per the instructions of SDPO, Parvathipuram, he handed over the investigation to P.W.64.

22. At this juncture it is pertinent to go through the evidence of

P.W.64. He deposed evidence that as per the instructions of the SDPO,

Parvathipruam, he took up investigation and visited the scene of offence and recorded the statements of witnesses. He further stated that he addressed a requisition to Thasildar, Parvathipuram, to depute Officials. He further stated that he addressed a letter to Superintendent of Police, Vizianagaram, requesting him to address a letter to Register of Chits, Vizianagaram, not to allow the accused to make further transactions. He further stated that he also addressed a letter to S.B.I. Parvathipuram, not to permit the accused for further transactions. He further deposed that on 10-07-2011 he searched the house of A-4 and seized documents viz., Sale Deed bearing No. 4037/2007.

He further stated that on 10-08-2010 A-1, A-3 and A-4 surrendered before him and on that he recorded their confession statement. He further stated that on 13-07-2010 he searched the house of A-4 in the presence of P.Ws.53 and 54 and seized note books (Ex.P.4). On 12-08-2010 he arrested the A-2 in the presence of mediators.

23.The mediators P.Ws.51 to 53 turned hostile and they did not support the case of prosecution. Nothing material could be elicited by the prosecution from their evidence.

24. P.W.54 the VRO, who acted as mediator stated that the CI of

Police on 13-07-2010 took him to Buridi Rama Krishna (A-4) house and searched and seized check books and registered document in the name of 3rd party.

25.P.W.55 another mediator who is a VRO deposed evidence that in the month of July-2010 the Police searched the house of A-1 and seized 12 books in his presence.

8

26.P.W.62 another mediator deposed evidence that 12-08-2010 A-2 came to Police Station and surrendered and she suffered the disclosure statement that she raised chits for Rs.50,000/- Rs.1,00,000/-, Rs.2,00,000/- and Rs.3,00,000/- with 20 members. P.W.62 further stated that he along with

A-1 and wife of Kona Satyanarayana used to conduct chit fund business and revealed that people of Nagamani used to be binnami members and the chit amount was given to those 10 persons that first and since more profits were derived from the 11th chit on wards they told that they would give more money if prized amounts was kept with them.

27.The remaining witnesses are the victims who stated before this

Court that they subscribed chit with A-1 and some of the accused and after payment of the full amount for 20 installments A-1 did not repay the chit amount. Some of the victims also stated that they have lent amounts to A-1 and some of the accused on interest basis.

28.During the cross-examination of remaining victims/witnesses they categorically admitted that no chit series is given to them and no chit pass book is issued to them or any receipt to show the payment of the installment to the accused. The admitted that they posses white ration card issued by the Government. Some of the witnesses stated that they are the poorest of the poor and the Government had issued Anthyodaya Ration Card to them.

29.The main defence of the accused is that the present case is registered at the instance of P.Ws1 to 3 and all the witnesses are residents of

Jaganadhapruam and the Police has taken 6 months time to examine them.

The learned counsel for the accused argued that in the 161 (3) Cr.P.C., statements of P.Ws. 1 to 3, they did not refer the names of other victims. As per the evidence of P.W.64 he recorded the evidence of the victims by going to their houses, for which, the learned counsel for the accused argued that how the Investigation Officer could know the names of the victims is very doubtful. If, the victims themselves approach the Police Station and in such 9 circumstances the Investigation Officer recorded the statements of such witness then the prosecution case is believable. The P.Ws1 to 3 lodged a report against A-1, A-3 and A-4. But, the Investigation Officer exaggerated the offence and tried to depict the offence as a serious offence and involved crores of rupees. The learned counsel argued that P.W.64 himself admitted that P.W.63 did not handed over any chit pass book chit receipt or payment receipt issued by the accused in favour of the victim. In view of the arguments advanced by the learned counsel for A-1, A-3 and A-4 this Court wants to examine the cross-examination of P.W.64 (Investigating Officer).

30.The Investigating Officer (P.W.64) categorically admitted that he did not seize anything connected with the crime at the time drafting scene observation report. The Investigation Officer stated that the scene of offence place is situated at Jagannadhapuram, but he cannot say particular area. He further admitted that he did not file the letter correspondence made with the

Tahsidlar or the Superintendent of Police, Vizianagaram. He cannot say whether the chit run by the accused is registered with the Register of chits or not. He further categorically admitted that he has seized the cheque book and register sale deed pertains Chintala Srinivasa Rao on 10-07-2011 at the house of A-4 and those documents have nothing to do with the present crime. The Investigating Officer categorically admitted that the seized items of documents do not contain his signature. The learned counsel for the accused further argued that the Investigating Officer utterly failed to identify exact scene of offence, he states that it is Jagannadhapruam, but cannot say the particular area. Whether the chit run by accused is registered with

Register of Chit or Private Chit is not known by the Investigation Officer. He further argued that Exs.P.6 and 9 are nothing to do with the present crime.

The Investigating Officer did not follow the procedure contemplated under

Cr.P.C., he did not get the search warrant or took consent of the accused when he searched the houses of A-1, A-3 and A-4, which is nothing but the offence as per law. After taking long time nothing material could be seized by the Investigation Officer and it is totally futile exercise. He further argued 10 that P.W.64 says that at the directions of SDPO, Parvathipuram, he conducted investigation in this case, but he did not follow the procedure and seized the documents which prove the complicity of the accused with the crime.

31.It is pertinent to highlight the admission made by P.W.64 that no evidence is available in the documents seized from the house of A-4 to show the complicity of the accused with the crime. This Court perused the Exs.P.6 and 9 documents. Ex.P.6 is the ICICI Bank Pass book in the name of Kanti

Srinivasa Rao. The prosecution failed to disclose how Ex.P.6 is relevant to the present facts of the case. It has failed to prove the nexus of Kanti Srinivasa

Rao with the crime. Exs.P.9 are 14 books, out of them 7 books are pass books issued by Sri Sai Srinivasa Real Estate in the name of A-3 and his daughters and sons in connection with payment of installments. Whereas, one book the Canara Bank Pass Book in the name of A-1 and another is Pass

Book of A-1 as a subscriber in the name of Sriram Chits Private Ltd., Five long not books containing the chits conducted, but does not disclose how many members in the chit and which chit group they said amounts are prized. The prosecution except filing the long note books they did not obtain the signatures of the accused to the FSL. These books appear to be private books, but do not disclose who made entries in these books. There is no sufficient information as to the bid in various chit groups alleged to be conducted by the accused.

32.The prosecution filed charge sheet against A-1 to A-4 by stating that A-1 and A-2 and one Kona Jyothi ran chit funds and A-3 and A-4 supported them. As per the prosecution case all of them conspired together to deceived the subscribers of the chits. As could be seen that A-1, A-3 and

A-4 are inter related. A-1 is the wife of A-3 and daughter of A-4. The prosecution failed to prove that there is an agreement between A-1 to A-4 to raise the chits and deceive the victims by doing chit business by illegal means. The prosecution failed to prove that whether the accused ran un- authorized chit or registered chit business, except 5 long note books, in 11 which, no comprehensive material available. No other record is placed by the prosecution to show that the accused ran chit business and the victims subscribed chits with them. As per the prosecution story the accused with an intention to cheat and with wrongful gain enrolled the victim as subscribers and cheated them without paying the chit amounts. No witness is stated in his evidence that about the chit pass book, series number and the name of the chit fund company run by the accused. All the victims stated that they paid installments of chits with the accused more than their financial capacity.

Most of the victims are coolie doing cultivation, drivers and vegetable merchants, house wife, private employee, milk vendor and supporting staff, kalasi, gold smith, masonry workers, tailors and agents in the private companies.

33.During the course of cross-examination the leaned counsel for accused destroyed the prosecution story and the witness categorically admitted that they have no financial capacity to pay the chit installments what they stated before this Court that they subscribed chit with the accused. No cogent and convincing material is placed by the prosecution agency to believe its version. The material with which the case is relied upon is not sufficient to base a conviction. The prosecution failed to prove the guilt of the accused beyond all reasonable doubt and the accused are entitle for an order of acquittal.

34.In the result, the A-1 to A-4 are found not guilty for the charge punishable under sections 420, 120-B R/W 34of IPC and Section 4 and 5 R/W 75 Chit Fund Act, 1982. Accordingly, they are acquitted under section 248 (1) Cr.P.C., The accused shall execute bond for Rs. 10,000/- (Rupees Ten thousand only) each under Section 437-A Cr.P.C., to appear before the

Appellate Court, if any appeal is filed.

Typed to my dictation to Stenographer Grade-III (on deputation), 12 corrected, signed and pronounced by me in the open court on this the 4th day May, 2019.

Sd/- Ch. Madhu Babu

I Addl. Judl. Magistrate of the First Class, Parvatipuram

APPENDIX OF EVIDENCE

WITNESS EXAMINED

For Prosecution For Defence

P.W.1: Vavilapalli Laxmi - None -

P.W.2: Pyla Kanchamma

P.W.3: Pathivada Gouri Sankara Rao

P.W.4: Padala Srinu

P.W.5: Ejjipurapu Polinaidu

P.W.6: Suvvana Jagadhi

P.W.7: Ragolu Suresh Kumar

P.W.8: Padala Jaya

P.W.9: Nelli Uma

P.W.10: Potnuru Durga Rao

P.W.11: Ragolu Laxmi

P.W.12: Pothula Trinadha

P.W.13: Gantyada Adilaxmi

P.W.14: Padala Satyavathi

P.W.15: Palakonda Raja Sekhar

P.W.16: Kota Devi

P.W.17: Pathivada Ramadevi

P.W.18: Budithi Srinivasa Rao

P.W.19: Shikha Nirmala

P.W.20: Seshapu Mangamma

P.W.21: Kumili Parvathamma

P.W.22: Vavilipalli Mangamma

P.W.23: Vavilapalli Padmavathi

P.W.24: Vavilipalli Alivelu

P.W.25: Nalli Rama Devi

P.W.26:Porana Tulasi

P.W.27: Suwada Gangamma

P.W.28: Ragolu Simhachalam

P.W.29: Pudi Srinivasa Rao

P.W.30: Pudi Savithri

P.W.31: Tamada Vijaya

P.W.32: Ragolu Kanchayya

P.W.33: Buri Ramesh 13

P.W.34: Ragolu Prasad

P.W.35: Bhogila Roja

P.W.36: Maroju Gangamma

P.W.37: Gedela Krishna Veni

P.W.38: Baleti Padma

P.W.39: Pathivada Aruna

P.W.40: Potnuru Simhadramma

P.W.41: Ragolu Venkata Ramana

P.W.42: Pathivada Satyavathi

P.W.43: Manna Gowriswara Rao

P.W.44: Ranaberi Pentamma @ Parvathi

P.W.45: Ragolu Mangamma

P.W.46:Pinninti Ramanamma

P.W.47:Mullu Chinnari

P.W.48: Betapu Satyanarayana

P.W.49: Porana Ana Suya

P.W.50: Sadu Laxmamma

P.W.51: Sathivada Srinivasa Rao

P.W.52: Alluvada Sankara Patnaik

P.W.53: Kota Babu Rao

P.W.54: Belagam Rama Sankara Rao

P.W.55: Penda Ramamurthy

P.W.56:Suvvana Jagadeswari

P.W.57: Suvvana Ramanamma

P.W.58: Poranna Chinnamamulu

P.W.59: Devala Pydamma

P.W.60: Raghu Srinu

P.W.61: Sadhu Bhavani

P.W.62: Komati Venkata Rao

P.W.63: Y. Jagadeeswara Rao, ASI-169, Parvathipruam Town PS.,

P.W.64: A. Radha Krishna, Inspector of Police, Parvathipuram Circle.

EXHIBITS MARKED

For Prosecution

Ex.P.1: Report of P.W.1 given to police dated 11-07-2010.

Ex.P.2: 161 (3) Cr.P.C., statement of P.W.15 dated 11-07-2010.

Ex.P.3: 161 (3) Cr.P.C., statement of P.W.44 dated 11-07-2010.

Ex.P.4: Signature of P.W.51 on the mediators report dated 10-08-2010.

Ex.P.5: Signature of P.W.52 on five long note books white papers, short books, one SB Account Pass Book of R. Suneetha (A-1) issued by Canara Bank, Chit

Pass Book of A-3 issued by Srirama Chit Funds Company, Parvathipuram.

14

Ex.P.6: ICICI Cheque book.

Ex.P.7: Signature of P.W.53 on the mediators report dated 10-08-2010.

Ex.P.8 : Signature of P.W.54 on the mediators report dated 13-07-2010.

Ex.P.9 : 14 books (Small and Big size).

Ex.P.10: 161 (3) Cr.P.C., statement of P.W.56 dated 01-08-2010.

Ex.P.11: 161 (3) Cr.P.C., statement of P.W.584 dated 11-07-2011.

Ex.P.12 : Mediators report dated 12-08-2010 at about 11:00 am.

Ex.P.13 : Original FIR in Cr.No. 88/2010 of Parvathipuram Town PS.,

Ex.P.14 : Mediators report dated 27-10-2010 at 09:00 am drafted at the house of A-1.

Ex.P.15 : Relevant portion in Page No.3 of mediators report dated 10-08-2010 at 10:00 am at Parvathipuram Town PS.,

For Defence

Ex.D.1 : underline portion of 161 (3) Crpc statement of P.W.18 dated 11-07- 2010.

Ex.D.2 : underline portion of 161 (3) Crpc statement of P.W.43 dated 11-07- 2010.

MATERIAL OBJECTS

- Nil –

Sd/- Ch. Madhu Babu

I Addl. Judl. Magistrate of the First Class, Parvathipuram

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE-CUM-JUDICIAL MAGISTRATE OF

I CLASS, PARVATHIPURAM.

Present: Sri Ch. Madhu Babu

I Addl. Junior Civil Judge-cum- I Addl. Judl.

Magistrate of First class, Parvathipuram

FAC/ Principal Junior Civil Judge-cum- Judl.

Magistrate of First class, Parvathipuram

Saturday, this the 19th day of January, 2019.

O.S.NO. 3/2017

Between:

Maradan Babiji Naidu, S/o Gowru Naidu, Aged 60 years, Door No.1-47, Pedamerangi Village, Jiyyammavalasa Mandalam, Vizianagaram District. Cell No. 9701615892. …... Plaintif

And

1. Routhu Dhanunjaya Naidu, S/o late Narayanaswamy, Aged 55 years, Cultivation, Residing at Door No.1-58, Pedamerangi Village, Jiyyammavalasa Mandalam, Vizianagaram District.

2. Routhu Santosh Kumar, S/o Dhanunjaya Naidu, Aged 30 years, - Rest do –

3. Bantu Gowru Naidu, S/o Swamy Naidu, Aged 40 years, Cultivation, Residing at Door No.1-28, Venkatarajapuram Village, Jiyyammavalasa Mandalam, Vizianagaram District.

4. Marrapu Satyam Naidu, S/o late Chinapothi Naidu, Aged 50 years, Cultivation. Rest do -

…... Defendants

This suit coming before me on 21-12-2018 for final hearing in the presence of Sri Itham Vasudeva Rao,Advocatefor the plaintif and Sri T. Joga Rao, Advocate for defendants No.1 to 4 and upon hearing arguments, upon considering the material available on record and the matter having stood over for consideration, till this day, the Court delivered the following:

J U D G M E N T

1.This is a suit filed by the sole plaintif against the defendants

No.1 to 4 for grant of permanent injunction from ever interfering with peaceful possession and enjoyment of the plaint schedule vacant house site of the plaintif, for costs of the suit and other reliefs.

2. The factual background in narrow compass is as follows: That the plaintif states in the plaint that originally one Reddi Atchannamma, W/o late Naram Naidu of Peddamerangi Village of Jiyyammavalasa Mandal had 2 got ancestral dry land in Sry.No.113/1 part to an extent of Ac.0.18 cents. The said Reddi Atchannamma had sold away the land to Meriyala Kalayani Priya,

W/o Chandra Sekhara Rao of Kannapurodoravalasa Village, Jiyyammavalasa

Mandalam in Sry.No.113/1 part to an extent of Ac.0.18 cents under Register

Sale Deed dated 26-07-2008 for a valid consideration of Rs.18,000/- and immediately she has put it in her possession and enjoyment, as such, she became absolute owner of the Ac.0.18 cents land in Sry.No.113/1 part thereafter the said Meriyala Kalyani Priya divided her land into house sites in

Sry.No.113/1 part to an extent of Ac.0.18 cents pursuant to the Register Sale

Deed dated 26-07-2008. The plaintif had purchased the schedule mentioned vacant site in survey number 113/1 part for valid consideration of

Rs.50,000/- to an extent of 65 feet length from East to West and 17 feet in width from North to South and 37 feet length from East to West and 10 feet width from North to South. Thereby the complainant had purchased the total vacant site to an extent of 1475 feet under document number 171/2009 from out of Ac.0.18 cents from the said Meriyala Kalyani Priya and that he has been in possession and enjoyment of schedule mentioned vacant site, in which, he intended to construct house. The defendants has nothing to do with the plaint schedule site and for the last 6 months they have been asking the plaintif to sell away the plaint schedule suit site and plaintif has refused the same as he wants to construct a house thereon. Having bore grudge against the plaintif, two months prior to the date of filing of the suit they threatened the plaintif to trespass and occupy the plaint schedule vacant site and that with great difficulty he resisted the same. Hence, the suit.

3. (i) Contravening the averments the 4th defendant filed written statement and inter-alia maintained that Revenue Department has assigned some land to one Reddi Thavitamma, who is none other than the mother of the Routhu Somulamma and Marrapu laxmi, who are no other then the wives of the 1st defendant and the 4th defendant respectively. During the life time of said Reddi Thavitamma she enjoyed the said land with absolute rights, 3 without any let or hindrance. Subsequent, to her death her daughters viz.,

Routhu Somulamma W/o defendant No.1 and Marrapu Lakshmi W/o defendant No. 4 have succeeded to the said property being the Class-I legal heirs and thus they have been in possession and enjoyment of the said land with absolute rights and their names were mutated in all the Revenue records like I-B and also Adangal (cultivation account) besides issuing

Pattadar Pass Book and Title Deed separately to each of them. The defendant No.4 maintains the land covered under Sry.No.113/1 part to an extent of Ac.0.30 cents is only a Government land but not a jeryothi land.

The defendant No.4 pleaded neither Reddi Atchannamma, thereafter

Meriyala Kalyani Priya nor the plaintif herein were in possession and enjoyment of the schedule mentioned property and they did not acquire any sort of title in the said land. It is further averred that to show that the plaint is in possession and enjoyment as owner he did not file any scrap of paper and his name is not mutated in the Revenue Records by the date. It is averred that the plaintif has suppressed the real state of afairs and furnished false particulars in respect of nature of land, and that the plaintif approached the Court with unclean hands. It is also averred that the suit is defective for non joinder of necessary parties. Hence, prayed to dismiss the suit with exemplary costs.

(ii)The defendants No.1 to 3 adapted the written statement filed by D-4 and there is no conflict in their defence.

4.Basing on the pleadings, the following issues were settled for trial.

1) Whether the plaintif is in possession and enjoyment of schedule property as on the date of suit?

2) Whether the defendant invades or threatens to invade the plaintif’s right to or enjoyment of property?

3) Whether the plaintif is entitled for permanent injunction against defendants?

4) To what relief ?

4

5.P.W.1, Maradana Babji Naidu, filed proof affidavit in lieu of the chief examination and reiterated by and large averments made in the plaint, in order to support his contention he examined P.Ws2 to 4 and got marked

Exs.A-1 to A-4 on his behalf. While the defendant No. 4 examined himself as

D.W.1 in order to fortify their contention and got marked Exs.B.1 to B.6. The defence also examined D.W.2 and D.W.3 in support of their contention. The court eschewed the evidence of P.W.3 and D.W.2 and they could not attend

before the Court to face the cross-examination.

6. On the aforesaid mentioned evidential back drop, the learned counsel for the plaintif Sri I. Vasudeva Rao filed written arguments that the plaintif’s Vendor Meriyala Kalyani Priya converted the agricultural land into the house sites, as such, in Ex.A.1 Sale deed it was mentioned as house site in two items. He argued that because the suit property comprises house sites only there cannot be naturally any more other documents, moreover, possession follows title as the principal of law and thus P.W.1 got possession as per Ex.A.1. Sale Deed. He further argued that as per the admission of

P.W.1 in cross-examination the total extent of land in Sry.No.113/1 part is

Ac.1.34 cents and that the plaintif knows only about Ac.0.18 cents. The total extent in Sry.No.113/1 part is not merely Ac.0.18 cents, but total extent is Ac.1.34 cents, but the said fact is not denied by the defendant in the evidence adduced by them. The learned counsel for the plaintif placed reliance on ExsA.3 and A.4 dated 28-11-2017 that is I-B namona (ROR) shows that the wife of D-1 and D-4 got no land in Sry No.113/1 part and that the defence fabricated ExsB.1 to B.6 to suit their case and even Exs B.1 to 6 did not prove that the suit house site belongs to them. The learned counsel for plaintif also impressed upon the cross-examination of D.W.1 by stating that D.W.1 did not know, in which, year the Government had issued patta and the patta number and boundaries of the land assigned to Reddi

Thavatamma his mother-in-law. He further argued that D.W.1 admitted in the cross-examination that he had never seen the patta issued to Reddi 5

Thavatamma and that the Ex.B.1 to B.6 are merely marked on behalf of the defence, but no evidence is given by D.W.1 or D.W.3 during their evidence and that mere filing of the documents does not amount to evidence of their contents. He further argued that the defendant failed to show how much extent of property from out of the total extent of Sry.No.113/1 part was devolved on the daughters of Reddi Thavitamma was not spoken by D.W.1 and D.W.3 including boundaries. The learned counsel for the plaintif argued that there is no absolute proof or evidence that the plaint schedule house site belongs to defendants, as such, he prayed to Decree the suit with costs.

7. Countering the submissions, the learned counsel for D-1 to D-4 sri T. Joga Rao, filed written arguments the zist of the arguments of the defence is that in the schedule furnished by the plaintif, the nature of land whether it is jeroythi or government land is not mentioned, except the two sale deeds Ex.A-1 and A-2, no other documents showing possession or title or his vendor filed along with the suit. He further argued that the plaintif has not filed even a scrap of paper to show that he is in possession and enjoyment of the suit schedule mentioned vacant site with absolute rights or any relevant Revenue records showing that it is jeroythi land, that he is in possession and enjoyment of the schedule mentioned vacant site like

Adangal, I-B register abstract showing the title plaint in schedule mentioned property. He further argued that since the schedule mentioned land is part and parcel of Ac.0.30 cents is purely government land and for the said reason the Government Authorities did not mutate the name of the plaintif in their records. In connection with Ex.A.3 and 4 the learned counsel for the defence argued that no positive evidence to establish that the plaintif name is mutated and he is in possession of suit site were not filed. He further argued that no cancellation proceedings regarding the names of Rothu

Somulamma, W/o D-1 and Marrapu Lakshmi, W/o D-4 to support the contention of the plaintif was filed before the Court. He further argued that 6 even if registration of D Patta land as jeroythi land, such documents will not confer any title in the Government land and the D Patta holder will not lose the right in the said land. He further argued that the plaintif must establish his case by filing reliable and relevant records showing his possession, as well as, the suit schedule property vacant site is jeroythi land when he is seeking the equitable reliable of Decree of permanent injunction. The learned counsel for the defence further argued that the plaintif has utterly failed to prove his possession in the suit schedule vacant site as on the date of filing of the suit and absolute is not entitled to Decree of permanent injunction.

The learned counsel further argued that the plaintif, stand or fall on the strength of his own case, but he cannot rely or depend on the weakness of the case of the defence, which is well established Principal of Law. The learned counsel argued that the plaintif utterly failed to prove his possession and also title in the suit schedule vacant site. Hence, he prayed to dismiss the suit with exemplary costs.

8.Issue No.1 :- Whether the plaintif is in possession and enjoyment of schedule property as on the date of suit?

The plaintif pleaded that after he purchased the suit schedule property from his vendor viz., Meriyala Kalyani Priya he has been in possession and enjoyment of the same, on which, he intended to construct a house. P.Ws2 and 4 asserted the same in their chief examination.

Admittedly, the documents relied upon by the plaint are the sale deed executed by his vendor on 03-03-2009 vide document number 171/2009 in respect of suit schedule property in Sry.No.113/1 part to an extent of 1475 square feet. The plaintif also exhibited the link documents Ex.A.2 sale deed

dated 26-07-2008 executed by Reddi Atahcannamma in favour of his vendor

in Sry.No.113/1 part to an extent of Ac.0.18 cents. After P.W.1 has been examined in cross-examination by the counsel for the defence, the plaintif got filed Exs.A.3 and 4 which are 1-B Register issued in favour of wives of D-1 and D-4. Exs.A.3 and 4 disclose that Roughtu Somulamma, W/o D-1 Marrapu 7

Lakshmi, W/o D-4 did not possess any land in Sry.No.113/1. During the courses of cross-examination the plaintif/P.W.1 categorically admitted that except, sale deed, Exs.A.1 and A2 he has not filed any other documents evidencing his possession. The learned counsel for the defence argued that except Exs.A.1 and A-2 the plaintif had no documents to show his possession on the date of filing of suit. He further argued that Exs.A.3 and A- 4 are obtained on 29-11-2017 i.e., after filing of the suit and that the plaintif has not come up with positive evidence that he has been in possession of the suit schedule property as on the date of filing of the suit. Whereas, the learned counsel for the plaintif argued that his vendor by viz., Meriyala

Kalyani Priya converted the property into house site and she sold away

Ac.0.18 cents of land to the plaintif herein. The learned counsel for the plaintif argued that since the suit schedule property comprised house sites only there cannot be naturally any more other documents, in respect of vacant sites the possession follows title is the principal of law. As can be seen from Ex.A.1 the suit schedule property is a vacant site, in so far Ex.A.2 is concerned the property is jeroythi land. For conversion of agricultural land into non agricultural land, the owner has to apply to the Revenue Authorities.

The plaintif did not file any documents to show that the jeroythi land was converted by his vendor into the non agricultural lands that is to say the vacant site. As seen from the Ex.A.2 the property is a jeroythi land. The argument of the plaintif is that as per the evidence of P.W.1 in his cross- examination, the total extent of Sry.No.113/1 Part is Ac.1.34 cents and the defendants failed to prove that the suit schedule sites belongs to them.

Except, the oral evidence of P.Ws1, 2 & 4 there is no documents to shows that P.W.1 has been in possession and enjoyment of the suit schedule vacant site as on the date of filing of suit. The argument that the plaintif vendor converted the jeroythi land into vacant sites is without any evidence and it appears that only to claim the possession such a pleading has been taken by the plaintif in the plaint. The pleading that the suit schedule property is a vacant site is not supported by any document proof. In such circumstances, 8 this Court is left with no option except to hold that the plaintif failed to prove the possession of the suit schedule property as on the date of filing of the suit. Accordingly, this point is answered in favour of the defendant and against the plaintif.

9.Issue No.2 :- Whether the defendant invades or threatens to invade the plaintif right to or enjoyment of property?

It is averred in the plaint that the defendants have nothing to do with the plaint schedule site and they are asking the plaintif to sell away the plaint schedule site and the plaintif refused the same as he wants to construct a house there on. Owing to the refusal by the plaintif the defendants are threatening the plaintif to trespass and occupy the plaint schedule vacant site. The plaintif/P.W.1 as well as P.Ws2 and 4 deposed the same in their chief examination. The plaintif did not file any documents to show that the defendants asked him to sell away the suit schedule vacant site to them. No agreement of sale has been entered into by the plaintif with the defendants in respect of the plaint schedule property for the purchase of the same. As per the plaint averments no dispute has been raised before the village elders or neighbouring ryots in respect to the alleged interference by the defendants over the plaint schedule property. No report is given to police to show that the defendants tried to interfere with the peaceful possession and enjoyment of the plaint schedule property. If really the defendants tried to interfere with the peaceful possession and enjoyment of the suit schedule vacant side the plaintif would have examined neighbours of the vicinity. The P.W.2 is not the neighbour and

P.W.4 deposed that he purchased the land near the site of plaintif but admitted he did not verify the revenue records. As such, this Court holds that there is no invasion or threat to invade the plaintif right to or enjoyment of the plaint schedule property by the plaintif. Accordingly, this point is answered in favour of the defendants and against the of plaintif.

10.Issue No.3 :- Whether the plaintif is entitled for permanent injunction against defendants ?

9

In the written statements filed by the defendants, it is averred that the plaintif has suppressed the real state of afairs and furnished false particulars in respect of the nature of land and that the plaintif approached the Court with unclean hands. The other contents of the defendants is that either Reddi Atchannamma or the plaintif vendor viz., Meriyala Kalyani

Priaya never been in possession and enjoyment of the plaint schedule mentioned property and that they did not acquire any sort of title in the said land. The defence counsel vehemently argued that the schedule property is assigned land and even the register document is obtained, it will not confer any title in the Government land. He further argued that in respect of

Exs.A.3 and 4 the plaintif obtained I-B register by playing fraud and that no cancellation proceedings are filed by the plaintif to show that Rothu

Somulamma, W/o D-1 and Marrapu Lakshmi, W/o D-4 have no lands in

Sry.No.113/1 part. The learned counsel also argued that the plaintif shall stand or fall on strength of his own legs, but not rely or depend on the weakness of the case of the defence which is well established principal of law. He further argued that relying on the stray and immaterial admissions made by D.Ws.1 & 2 are not suffice to prove the case of the plaintif. The learned counsel for the defendant argued that the plaintif must establish his case by adducing positive and relevant documentary evidence to show his possession that the suit vacant site is jerothi land.

11. On perusal of the documents, Exs.B.1 and B.4 go to show that

Rothu Somulamma and Marrapu Lakshmi that is wives of D-1 and D-4 has got

Ac.0.15 cents of dry land each in Sry.No.113/1 part and they acquire the said property by succession. Ex.B.2 and B.3 the I-B register go to show that the nature of the land is D patta, and the extent is Ac.0.15 cents of land each to

Routhu Somulamma and Marrapu lakshmi. As per the recitals of Exs.B.2 and

Ex.B.3, the katha number of Routhu Somulamma is 306 whereas the katha number of Marrapu Laxmi is 362. Ex.B.5 shows that Marrapu Laxmi possess

D-Patta in Sry.No.113/1 part having katha number 362 to an extent of 10

Ac.0.15 cents which is acquired by her by succession. Ex.B.6 goes to shows that 113/1 part is D Patta and Rothu Somulamma and Marrapu Lakshmi are having Ac.0.15 cents each in katha number 306 and 362. In view of the recitals of Exs.B.1 to B.6 the averments that the suit schedule property is a jerothi land which is converted into the house sites is nullified. The learned counsel for the defendant argued that the suit schedule property is part and parcel of Ac.0.30 cents of government land. Hence, the Revenue Authorities did not mutate the name of the plaintif in the records. As seen from the evidence, the defence successfully shows that the suit schedule property is a

D-Patta land and they have acquired the same by succession and they have been in possession. Whereas, the plaintif failed to prove his possession and show that plaint schedule vacant sites or previously jerothi lands. The plaintif also contended that total extent of Sry.No.113/1 part is Ac. 1.34 cents, except the evidence of P.W.1 there is no documentary evidence to show that the total extent of Sry.No.113/1 is Ac.1.34 cents. The plaintif did not choose to call any revenue official as witness to cause production of relevant revenue records to prove that the schedule property is a vacant site or previously jeryothi land and the total extent comprised in Sry no. 113/1 is

Ac. 1.34 cents.

12. In a suit for equitable relief permanent injunction the plaintif has to prove his possession as on the date of filing of suit and it is for the plaintif to establish his case by producing cogent and convincing evidence to show his possession and he cannot rely upon the strength or weakness of the case of the defendants. It settled law that the civil cases have to be decided on the touch stone of preponderance of probabilities. The evidence on record shows the preponderance of probabilities are leaning towards the case of the defendants and not in favour of the plaintifs. In the present case the plaintif failed to prove his possession as on the date of filing of the suit, as such, he is not entitled to a Decree of permanent injunction. Accordingly, this suit of the plaintif is liable to be dismissed and is dismissed.

11

13.In the result, this suit is dismissed without costs.

Dictation to the typist, transcribed by him , corrected, signed and

pronounced by me in the open Court on this the 19th day of January, 2018.

Sd/- K.Srarda

I Addl. Junior Civil Judge-cum- I Addl. Judl.

Magistrate of First class, Parvathipuram

FAC// Principal Junior Civil Judge-cum-Judl.

Magistrate of First class, Parvathipuram

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintif :

P.W.1 : Maradana Babiji Naidu

P.W.2 : Akkena Appala Naidu

P.W.3 : Akkena Trinadha Rao(ESchewed)

P.W.4 : Marrapu Pappi Naidu

For Defendants:

D.W.1 : Marrapu Satyam Naidu

D.W.2 : Lanka Chiranjeevulu

D.W.3 : Bantu Gowru Naidu

EXHIBITS MARKED

For Plaintif : Ex.A.1: Registered sale deed dated 03-03-2009 vide document No.171/2009 executed by Miriyala Kalyani Priya in favour of the plaintif in respect of the suit schedule house site bearing survey No. 113/1 part to an extent of 1475 Sq. feet.

Ex.A.2 : Register sale deed dated 26-07-2008 vide document No. 721/2008 executed by Reddi Atchannamma in favour of Meriyala Kalyana Priya for survey No.113/1 an extent of Ac.0.18 cents (link document to Ex.A.1)

Ex.A.3 : Copy of I-B namuna dt 28-11-2017 issued in the name of Routhu

Somulamma.

Ex.A.4 : Copy of I-B namuna dt 28-11-2017issued in the name of Marrapu

Lakshmi.

For Defendants:

Ex.B.1: Pattadar pass book stands in the name of Routhu Somulamma 12 pertaining to Sry.No.113/1 p (Dry land).

Ex.B.2 : I-B extract in the name of wife of D.1 namely Routhu Somulamma in respect of Sry.No.113/1 obtained from Mee-Seva.

Ex.B.3 : Adangal in the name of Routhu Somulamma, W/o D-1 in respect of Sry.No.113/1.

Ex.B.4 : Pattadar pass book issued in the name of Marrapu Lakshmi, W/o D-4 pertaining to Sry.No.113/1 p (dry land)

Ex.B.5: I-B extract stands in the name of Marrapu Lakshmi W/o D.4 in respect of Sry.No.113/1 obtained from Mee Seva.

Ex.B.6. : Adangal stands in the name of Marrapu Lakshmi, W/D.4 in respect of Sry.No.113/1.

Sd/- K.Srarda,

I Addl. Junior Civil Judge-cum- I Addl. Judl.

Magistrate of First class, Parvathipuram

FAC// Principal Junior Civil Judge-cum-Judl.

Magistrate of First class, Parvathipuram.

13 14

1

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE-CUM-I ADDITIONAL

JUDICIAL MAGISTRATE OF THE FIRST CLASS, PARVATIPURAM.

Present:Sri Ch. Madhu Babu, I Addl. Junior Civil Judge-cum-I Addl. Judl.

Magistrate of the First Class,

Parvatipuram

Thursday, this the 9th day of August, 2018

C.C.No. 56/2016

Between:

State represented by the Sub-Inspector of Police, Parvathipuram Rural Police Station.

......Complainant

And

A-1. Allu Jayamma, W/o Satyam, Aged 45 years, K. Velama by caste, Antivalasa Village, Jammidivalasa Panchyat, Parvathipuram Mandal.

A-2. Allu Satyam, S/o late Chellam Naidu, Aged 50 years, K. Velama by caste, Antivalasa Village, Jammidivalasa Panchyat, Parvathipuram Mandal. Phone Nos. 9985226538 and 9010632877. ....… Accused

This case is coming on 01-08-2018 for final hearing before me in the presence of Asst., P.P., Grade-II for complainant and of Sri D.Santhi Raju and K. Krishna, Counsel for the accused and the matter having stood over for consideration to this day, this court delivered the following:

J U D G M E N T

01.The state represented by its Sub-Inspector of Police,

Parvathipuram Rural Police Station laid a charge sheet against the two accused persons in Cr.No. 141/2015 for the offence punishable u/s. 354, 324, 323 R/W 34 I.P.C alleging that –

On 10-10-2015 at about 05:00 hours while Allu Ravanamma (L.W.2) who is wife of Allu Simhachalam (L.w.1) and A-1 were drawing water from the public tap, both quarreled with each other and A-1 caught the tuft of hair of L.W.2 and dragged her. In the meanwhile, A-2 intervened and beat

L.W.2 with stick over her forehead and body indiscriminately and caused bleeding injury. When, the L.W.1 went to rescue his wife, the A-2 also beat him with a stick over his head, right hand and waist and caused bleeding 2 injuries. The Allu Sriram, Mandala Rama Murthy and Allu Venkataramana and Allu Murali (L.Ws3 to 6) witnessed the same. That basing on the statement of Allu Simhachalam (L.W.1), the S.I of police, Parvathipuram Rural

P.S., registered as a case in Cr.No.141/2015 under Section 354, 324, 323 R/W 34 I.P.C., and investigated into. Hence, charge sheet.

02. Basing on the charge sheet allegations and on perusal of other material available on record, this court took cognizance of the offence U/s.

354, 324, 323 R/W 34 I.P.C., against the accused.

03.On appearance of accused, copies of documents were furnished to them as contemplated under Section 207 of Code of Criminal Procedure, 1973 (herein after referred as 'Cr.P.C' for the sake of brevity).

04.The accused were examined under section 239 of Cr.P.C., they denied the substance of accusation. After perusing the entire material on record and hearing both sides, charges had been framed against the accused under section 354, 324, 323 R/W 34 of IPC, which was read over and explained to them in Telugu, for which, they pleaded not guilty and claimed the case to be tried.

05.To prove it's case, the prosecution has examined P.Ws.1 to 10 and got marked Exs.P-1 to P-7 and M.O.1 on its behalf and the details of which are mentioned hereunder in Appendix of Evidence.

06. On being closed the prosecution side evidence, the incriminating circumstances that appearing in the testimony of the prosecution witnesses were explained to the accused u/s. 313 (1) (b) Cr.P.C, for which the accused denied the incriminating circumstances from the testimony of the prosecution witnesses.

07.Heard both sides.

08. The point germane for determination is:

“Whether the prosecution has proved the guilt of the accused for the charges framed against them under sections 354, 324, 323 R/W 34 of IPC beyond reasonable doubt?” 3

09. In order to bring home the guilt of the accused, the prosecution has examined P.Ws1 to 10 and to substantiate its case and also relied upon the strength of Exs.P.1 to P.7 and M.O.1. P.Ws.1 and 2 are the victims out of which, P.W.1 is the de-facto complainant. P.Ws 3 to 6 are direct witnesses.

P.Ws.7 and 8 are the mediators to the scene observation report. P.W.9 is the

Medical Officer, who examined the P.Ws1 and 2 and issued wound certificates. P.W.10 is the Investigating Officer, who registered the FIR and conducted investigation and filed charge sheet.

10. Point :- In order to bring home the guilt of the accused, the prosecution has examined P.Ws1 to 10 and to substantiate it case the documents Exs.P.1 to P.7 and M.O.1 are marked. P.Ws.1 and 2 are the victims and P.W.1 is the de-facto complainant. P.Ws 3 to 6 are direct witness. P.Ws.7 and 8 are the mediators to the scene observation report. P.W.9 is the Medical

Officer, who examined the P.Ws1 and 2 and issued wound certificates.

P.W.10 is the Investigation Officer, who registered the FIR and conducted investigation and filed charge sheet.

11.(i) P.W.1, the de-facto complainant deposed that on 10-10-2015 at 05:00 am, the P.W.2 went to the public tap to collect water, and thereafter she collected bucket full of water and she also collected water in a water bottle, and on that, A-1 asked her, why she was collecting the water and thrown away the water bottle in a drainage, on that A-1 caught hold of hair of

P.W.2 and beat her. Thereafter, A-2 came and both accused caught hold of

P.W.2 and beat the P.W.2 with sticks. P.W.1 further deposed that by the time, he was at his house and he came to rescue P.W.2 on that A-2 beat him with a stick on his forehead, right hand wrist. He further deposed that A-1 and A-2 beat P.W.2 on her forehead and back. Thereafter, they were shifted to Area

Hospital, Parvathipuram for treatment in an ambulance.

4

(ii) During the course of cross-examination he admitted his relationship with L.Ws1 to 8. P.W.1 further admitted that his son Allu

Tirupathi Rao is working as Police Constable at Hyderabad. He further admitted that except this dispute there are no disputes between him and the accused. He categorically admitted that next to his house the house of one

Pudi Tirupathi, next Yella Appalaswamy and next one Paradi Sankara Rao,

Paradi Narayana Rao’s house and next the house of Mandala Ramu house is situated. He further deposed that on the eastern side the house of Allu

Venkataramana and the house of A-2 and next the cattle shed of Allu

Annapoornamma and the next house of Allu Venkataramana is situated and thereafter the house of Penta Gouramma and the cattle shed of Sivudunaidu and the house of Akkenna Parvathi and the next house of Allu Atchumunaidu is situated. He categorically admitted that three woman viz., Allu

Simmalamma, Akkenna Parvathi and Penta Gouramma woke up and were collecting the water from the public tap. He further admitted that offence occurred at 05:00 am and the nearby people woke up and 06:15 pm. He further admitted that he came to the Police Station and lodged a complaint at 07:00 am.

12. (i) P.W.2 another victim deposed that on the date of offence around 2 years back at about 05:00 am, the A-1 caught hold of her hair and thrown away the water bottle and did not allow her to collect the water in a pot. She further stated that A-1 caught hold of her hair and beat her thereafter A-2 beat her with stick on her forehead, back and on her body indiscriminately. Subsequently, P.W.1 came there and asked the accused, as to why, they were beating P.W.1. On that A-2 beat P.W.1 on his head, neck, back and right hand wrist. P.W.2 further deposed that she sustained injuries on her forehead and lower back. She further stated that when blood was oozing out, she fell down on the ground. On that one Mandala Ramu, Allu

Sriramulu, Allu Murali, and Allu Venkataramana bought her to the Verandah from the CC road.

5

(ii) During the course of cross-examination she admitted that she do not know what had happen subsequently due to oozing of blood she fell into unconsciousness. She further stated that the accused beat on her both wrist, both shoulders and lower and upper back. She further stated that the accused beat her on her knees, thighs and two legs. She further stated that both accused beat her with a stick on their hand and she further admitted that next to her house, the house of Pudi Tirupathi and next Yella

Appalaswamy are situated and that there is separate tap for Paradi

Sankararao, Paradi Savitramma, Paradi Narayanarao, Mandala Ramamurty.

She categorically admitted that when she went to the tap to collect water one Penta Gouramma, Akkena Parvathi and Allu Simallama woke up.

13. P.W.3 deposed that 10-10-2015 around 05:00 am the P.W.2 was collecting water at the panchayat public tap and A-1 came there and P.W.2 also came there and her turn is first to collect water and thereafter P.W.2 stated that she will collect the bottle of water and then she will give a chance to A-1 to collect water. Thereafter, the dispute arose between them and A-1 caught hold the hair of P.W.2 and pulled her to the ground. Thereafter, A-2 came to the scene of offence and beat P.W.2 on her head with a stick and on lower back and on hand. Thereafter, P.W.1 came to the scene of offence by asking why they were beat P.W.2. Thereafter, A-2 beat P.W.1 with stick on his head and hand.

(i) During the course of cross-examination he admitted that his house and the house of the accused are separated by 15 houses and the distance between his house and the house of the accused is around 100 yards. He further admitted that there is a separate public tap for him and the accused in the Village. He further admitted that there is no need for him go to the public tap at which the accused used to collect water, as the water supplied is sufficient to them. He admitted that the panchayat will supply water between 04:00 am to 05:00 am in the morning. He further added that 6 the water supply will be for a period of 1 to 1 ½ hours. He further admitted that the season at which the offence took place is winter and in the winter season there will be early sun set and late sun rise and it is very difficult to identify the persons even though he is present at a distance of 5 to 10 feet.

P.W.3 further admitted that by the time he reached the scene of offence Allu

Simhachalamma, Akkena Parvathi and Penta Gouramma were present at the scene of offence. He further admitted that Allu Simmhachalamma, Akkena

Parvathi and Penta Gouramma came to rescue P.Ws1 and 2.

14. (i) P.W.4 another witness deposed that A-1 and P.W.1 beat each other and thereafter A-2 went to the scene of offence, by the time he reached the scene of offence, both the parties quarrel with each other and fell down on the road. He further stated that he called the ambulance and shifted them to the hospital.

(ii) In the cross-examination he admitted that he is residing in a house opposite to the row of the accused and that there is a separate public tap for collection of water for them.

15. (i) P.W.5 deposed that on 10-10-2015 at 05:00 am while he was standing in front of the house he heard cries on that he went there and saw quarrel between A-1 and P.W.2. He further deposed that while P.W.2 collecting the water in the bucket from the panchayat water tap and she also tried to collect water in the water bottle. On that A-1 asked P.W.2 to collect water in the water bottle some time thereafter, on that there is a dispute between

P.W.2 and A-1. She further stated that A-1 caught hold the hair of P.W.2 and dragged her, on that A-2 came to the spot and beat P.W.2 on her forehead.

He further stated that on seeing the same P.W.1 came there and on that A-2 beat P.W.2 on his forehead and on the left hand wrist and on the back of

P.W.1. He further deposed that both the P.Ws1 and 2 fell down on the ground and they called ambulance and shifted them to hospital.

7

(ii) During the course of cross-examination he categorically admitted that he is residing opposite row of the accused and there were eight houses between his house and the house of the accused. He categorically admitted that he has no necessity to collect the water from the water tap, at which, the accused used to collect water. He further admitted that Akkena Parvathi, Penta Gouramma, Sivudunaiud, Akkena Anasuyya, Allu

Suryanarayana, Allu Venkataramana, Allu Simhachalam and Pudi Tirupathi collected the water from the public tap in question in the present case.

During the course of cross-examination P.W.5 further admitted that there were 16 houses between his house and the house of the accused. He further deposed that P.W.1 and A-1 were pushing each other’s and he watched quarrel and in that pushing P.W.2 fell down on the road. He further stated that A-1 caught hold hair of P.W.2 and dragged her. He further stated that the rest of women flock who were present on at the public tap for collecting water tried to separate P.W.2 and A-1. He further admitted that one Penta

Gouramma, Akkena Parvathi and Allu Simmalamma separated them. He deposed that he called 108 ambulance, but he cannot say the phone number from which he called the 108 ambulance. He further admitted that L.Ws1 to 7 are relatives to him.

16.P.W.6 turned hostile and did not support the case of prosecution.

P.W.7 one of the attestors to the scene observation report turned hostile and did not support the case of prosecution.

17. P.W.8, another attestor to the scene observation report deposed that at the request of Police, he acted as mediator to the scene observation report and the Police drafted a report and seized the sticks and obtained his signature. During the course of cross-examination he admitted that he do not know for that purpose the thumb impression was taken by the Police.

8

18.P.W.9 is Medical Officer, deposed that he examined P.Ws1 and 2 on 10-10-2015 at Area Hospital, Parvathipuram and found laceration on the left partial aspect of skull with ragged edges extending antrio postrigoly. He opined that the injuries received by P.W.2 are simple in nature and aged is less than 3 hours and caused blunt object. He further deposed that on the same day he also examined P.W.2 and found a laceration dragged edges on midline on forehead extending from careline up to globalla bleeding. He further stated that there is blood bleeding from both the nostles of P.W.2.

Doctors opinion that both the injuries sustained by P.Ws1 and 2 are simple in nature. During the course of cross-examination he admitted that both the injuries sustained by P.Ws1 and 2 can be caused if a person falls on a cement road.

19. (i) P.W.10 the Investigation Officer deposed that on 10-10-2015 while he was present in the Police Station he received statement of Allu

Simhachalam, basing on the statement he registered a case in

Cr.No.141/2015. He visited the scene of offence place and drafted the rough sketch of scene of offence and seized the bamboo sticks. He further stated that he recorded the statements of witness and issued notice to A-1 and A-2 under Section 41 (a) of Cr.P.C.,

(ii) During the course of cross-examination he categorically admitted that he do not know the name of the constable who recorded the statements of Allu Simhachalam. He further admitted that he cannot remember the name of the constable who bought the statement of Allu

Simhachalam to the Police Station. He categorically admitted that he did not show the head constable, who recorded the statements of P.W.1 or the doctor, who examined the Allu Simhachalam in the memo of evidence. The

Investigation Officer categorically admitted that the L.Ws 3 to 8 not used to collect the water from the disputed water tap. The Investigation Officer denied a suggestion that the L.Ws3 to 8 are set up witness and they are not in the use of collecting water from the disputed water tap.

9

20.On perusal of the evidence of P.Ws 1 to 10, it is the case of the prosecution that on 10-10-2015 at 5.00 a.m. at the time of collecting water from the public tab there was a dispute between A-1 and P.W.2 and on that A- 1 beat P.W.2 by caught holding of her hair and dragged her. Thereafter, the

A-2 came to the scene of offence and beat P.W.1 with stick on her forehead, on that she sustained bleeding injury. It is also the case of prosecution that while P.W.2 came to the scene of offence place A-2 also beat P.W.2 on his head. The defence of the accused is that the witnesses are set up witnesses and that the son of P.Ws 1 and 2 is Police Constable at Hyderabad. There are lapses on the part of Investigation Officer that he did not examine the persons, who are drawing water from the public tap at which the offence took place. The prosecution witnesses categorically admitted that Allu

Simmalamma, Penta Gouramma and Akkena Parvathi were present at the time of incident, but they were not shown in the memo of evidence by the

Investigation Officer. The prosecution witnesses categorically stated that apart from the 3 women stated by them, Allu Simhachalam, Yella

Appalaswamy, Pudi Tirupathi used to collect the water at which the dispute takes place. P.W.1 admitted in the cross-examination that there are no disputes between him and the brother of A-2. The evidence of P.W1 is corroborated by P.W2 as to the beating of P.Ws1 and 2 by the accused, but as per the evidence of P.W.2, A-1 and A-2 both of them beat her with stick on her head. But, the case of prosecution is that when A-1 and P.W.2 are disputing the A-2 came there and beat on her forehead with stick. There is a clear difference between the evidence deposed by P.Ws1 and 2. Now, it has to be seen whether the direct witnesses corroborated the evidence of the prosecution case. P.W.3 during the course of cross-examination deposed that his house and the house of the accused are separate by 15 houses and there is no need for him to go to the tap at which the accused used to draw water from the public tap. He categorically admitted that there is a distance of 100 yards between his house and the house of accused. He categorically 10 admitted that the offence took place in the winter season and one cannot identify a person even at a distance of 5 to 10 yards, as such, the presence of P.W.3 at the scene of offence is doubtful. P.W.4 during the cross- examination stated that he is residing opposite to the row, in which, the accused were residing. He deposed that both the dresses of the P.Ws1 and 2 are drenched with blood. But admitted that he did not state the same before the Police. So, the evidence of P.W.4 is inconsistent and not corroborative in nature. P.W.5 deposed that at the time of beating, P.W.1 received injury on his forehead and left hand wrist, but the prosecution case is different, the

P.W.1 received injury as per the prosecution case on his forehead right hand wrist and back. He categorically admitted that there is a distance of 16 houses between the house of accused and his house. He stated before the

Court that he called 108 ambulance through his mobile phone, but he is unable to say from which number he called 108 ambulance. He categorically admitted that the prosecution witnesses are related to him. P.W.6 turned hostile.

21.The case of the accused is that, no offence took place and the prosecution witness L.Ws 3 to 8 are relatives and they are set up witnesses and the witnesses examined by the Investigation Officer are not the persons, who used to collect water from the tap at which the offence took place. The direct witnesses are not residents of near the scene of offence place and the offence took place at winter season and as per the prosecution case the offence took place at 05:00 am. P.W.3 categorically admitted that one cannot identify anybody’s presence in the winter season even a distance of 5 to 10 feet. Hence, the evidence of P.Ws3 to 6 are not consistent, cogent and convincing. The Medical Officer, who issued wound certificate after examination as per his evidence the injuries are simple in nature.

22. As seen from the evidence, the prosecution failed to establish that A-2 outraged the modesty of P.W.2 and assaulted or used criminal force against her. The ingredients under Section 324, 323 are not established 11 beyond all reasonable doubt by the prosecution. Since the evidence of prosecution witnesses is inconsistant and the persons who used to collect water at the panchayat water tap were not examined by the Investigating

Officer, as such, the prosecution failed to bring home the guilt of accused beyond all reasonable doubt for the offence punishable under Section 354, 324, 323 R/W 34 of IPC. Hence, the accused are entitled for an order of acquittal on the ground of benefit of doubt.

23.In the result, the A-1 and A-2 are found not guilty for the offence punishable under Section 354, 324, 323 R/W 34 of IPC. Accordingly, they are acquitted under section 248 (1) Cr.P.C., The accused are directed to execute bond for Rs. 10,000/- (Rupees ten thousand only) each under

Section 437-A Cr.P.C., to appear before the Appellate Court, if any, appeal is preferred within six months. The M.O.1 (Stick) shall be destroyed after expiry of appeal time.

Dictated to the typist, transcribed by him, corrected, signed and

pronounced by me in the open court on this the 9th day of August, 2018.

Sd/- Ch. Madhu Babu

I-Addl. Junior Civil Judge-cum-I Addl. Judl.

Magistrate of the First Class, Parvatipuram

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTIONDEFENCE

P.W.1 : Allu Simhachalam - None -

P.W.2 : Allu Ravanamma

P.W.3 : Allu Sriram

P.W.4 : Allu Venkataramana

P.W.5 : Allu Murali

P.W.6 : Mandala Ramamurty

P.W.7 : Marrapu Tirupathi Rao

P.W.8 : Allu Suryanarayana

P.W.9 : Dr K. Santhosh Kumar, CAS, Medical Officer,

Area Hospital, Parvathipruam.

P.W.10 : V.N. Murthy, SI of Police, Parvathipuram Rural PS., 12

DOCUMENTS MARKED

PROSECUTION DEFENCE

Ex.P.1: Statement of P.W.1 dated 10-10-2015.- Nil-

Ex.P.2: 161 (3) Cr.P.C., statement of P.W.6 dated 10-10-2015.

Ex.P.3: Wound certificate of P.W.1 dated 10-10-2015.

Ex.P.4: Wound certificate of P.W.2 dated 10-10-2015.

Ex.P.5: Original FIR in Cr.No.141/2015 of Parvathipuram Rural PS.,

Ex.P.6: Rough sketch dated 10-10-2015.

Ex.P.7: Scene observation report dated 10-10-2015.

MATERIAL OBJECTS

M.O.1 : Bamboo stick.

Sd/- Ch. Madhu Babu

I-Addl. Junior Civil Judge-cum-I Addl. Judl.

Magistrate of the First Class,Parvatipuram

13