Sri D. Ravindra Sharma

1 S.C.No. 457/2012

IN THE COURT OF II ADDL. ASST. SESSIONS JUDGE, WARANGAL

Friday, this the 15th day of May, 2015

Present: D. Ravindra Sharma, II Addl. Asst. Sessions Judge, Warangal.

Sessions Case No.457/2012

(P.R.C.No.12/2012 on the file of IV Addl. JFCM, Warangal

1. Name and description : The State of A.P through of the Complainant. SHO of P.S Ghanpur (Wgl)

2. Name and description :

A.1. Sura Venkataiah S/o. Mallaiah, Age: 75 yrs, Caste: Waddera, Occ: Agriculture, R/o. Rajavaram Village of Ghanpur (Wgl) Mandal. (Case A.1 against A.1 abetted as died)

A.2. Sura Yellaiah, S/o.Venkataiah, Age: 30 yrs, Caste: Waddera, Occ: Agriculture, R/o.Rajavaram Village of Ghanpur (Wgl) Mandal now at Dubagunta Road, Rangasaipet, Warangal.

A.3.Sura Mallaiah, S/o. Venkataiah, Age: 35 yrs, Caste: Waddera, Occ: Agriculture, R/o.Rajavaram Village now at near Gudimalkapur market, Mehadipatnam, Hyderabad.

3. Offence with which charged : u/s.307 r/w 34 IPC.

4. Plea of the accused: Pleaded not guilty.

5. Finding of the Judge: Accused found guilty.

6. Sentence or Order

The accused Nos. 2 and 3 are convicted under section 235(2) of Cr.P.C for the offence punishable under section 324 I.P.C. They are sentenced to undergo Rigorous Imprisonment for a period of 15 days each and to pay a fine of Rs.5,000/- each in default of payment of fine, they shall undergo Simple Imprisonment for 2 months each. The non valuable properties i.e., MO1 to MO7 shall be destroyed, after appeal time is over.

The period of remand during the course of investigation i.e 27.12.2011 to 18.1.2011 (23 days) shall be set off under Section 428 of Cr.P.C.

7. Prosecution conducted by : Sri Ch.Ravi Kumar, Addl. Public Prosecutor.

2 S.C.No. 457/2012

8. Accused defended by: Sri E.Venugopal Rao, Advocate.

This case coming up for final hearing on 15.5.2015 and disposal in the presence of Sri Ch.Ravi Kumar, Additional Public Prosecutor, and of Sri E.Venugopal Rao, counsel for the accused and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

In this case, the accused Nos. 1 to 3 are alleged to have attempted to kill the victim Bori Mogiliah on 19.12.2012 at 5.00 p.m, at the outskirts of Rajavaram Village with sticks, axe and stone, thereby they are punishable u/s.307 r/w 34 IPC.

2. The brief facts of the case are that:

The victim Dori Mogulaiah along with his wife are living in

Rajavaram Village. He got one acre 12 guntas of land in his village and there are land disputes with the accused persons for the last four years.

In view of land disputes, the accused persons on 19.12.2011 at about 5.00 p.mwhile the victim was returning from his toddy tapping work while he was crossing Girni Thanda, late accused No.1 along with his sons (accused Nos. 2 and 3), have attacked the victim with axe, stick and stone indiscriminately on head and other parts of the body. They also fisted him. Thus, they attempted to kill the victim, who fell unconscious. The villagers have shifted the victim to MGM Hospital,

Warangal for treatment. The complainant Dori Srinu, the son of victim had lodged the complaint with police Ghanpur (Wgl). In the course of investigation, the police registered case and investigated into it, in which they found that the accused persons and victim had land dispute for the last four years. The accused persons threatened the sons of victim to handover the land. In that connection, there were disputes and filing of criminal case. In view of the same the accused persons have decided to kill the victim, therefore, they attacked victim with

3 S.C.No. 457/2012

sticks, axe and stone. In the course of further investigation, A.1 to A.3 were apprehended and produced before the Court and they confessed the offence before the panchas. The investigation revealed that the accused Nos. 1 to 3 have committed offence punishable u/s.307 r/w 34

IPC, therefore, filed charge sheet.

3. After taken cognizance of the case for the offence under sections 307 r/w 34 by the learned IV Addl. Judicial I Class Magistrate,

Warangal, vide P.R.C.No.12/2012 and after compliance of Section 207 to 209 Cr.P.C., the case was committed to the Court of Sessions, numbered as S.C. No. 457/2012 and made over to this Court as per the proceedings of the Hon’ble District and Sessions Judge, Warangal.

4. The accused No.1 is reported to have died, therefore, the case against A.1 is abated. After hearing the Addl.P.P., and the accused Nos.

2 and 3, charges under section 307 r/w 34 IPC are framed against the accused Nos. 2 and 3 read over and explained to them in Telugu language, for which, they pleaded not guilty and claimed to be tried.

5. Then, the schedule for commencement of trial has been issued, witnesses PW1 to PW11 were examined and Ex.P1 to P.9 and M.Os. 1 to 7 are marked, as indicated in the appendix of evidence.

6.The accused Nos. 2 and 3 are examined u/s. 313 Cr.P.C by explaining the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. The accused Nos. 2 and 3 denied the same and reported no defence evidence.

7. Heard arguments on both sides.

8. Now the point for determination is:

4 S.C.No. 457/2012

“Whether the prosecution has proved the guilt of the accused Nos. 2 and 3 for the offence u/s. 307 r/w 34 IPC beyond all reasonable doubt?”

POINT :

9. The Public Prosecutor contends that the prosecution proved the guilt of the accused Nos. 2 and 3 for the offence u/s.307 IPC beyond all reasonable doubt. The plea of the accused Nos. 2 and 3 is one of total denial and false implication of them in this case.

10. The prosecution to prove the guilt of the accused has examined

Dori Srinu, who is the complainant and son of victim as P.W.1. As per his evidence on 19.12.2011 at about 5.30 p.m, he received information about the attack on his father, he Immediately came to MGM

Hospital, Warangal, where the victim was taking treatment. After enquiry with the victim he lodged complaint with police.

11. The victim Dori Mogiliah is examined as P.W.2. As per his evidence he is living in Rajaram Village with his wife, Uppalamma, by doing agriculture in his Ac.01-12 guntas of land and by toddy tapping. There is a civil dispute pending between himself and the accused for the last four years in the Court. The said case was disposed of in his favour. On 19.12.2011, at 5.00 p.m, while he was returning from toddy tapping work at his village shivar and reached area between Girni Thanda on his bicycle, A.1 to A.3 waylaid and attacked him. The accused No.1 beat with stick on his head three times, accused No.2 beat with stone on head and Accused No.3 beat with handle stick of the axe (Goddali

Kama) on his head. They also pressed his neck, therefore, he lost conscious and fell down. Narayana brought water and sprinkled on his face, therefore, he regained conscious and he was shifted to MGM

Hospital, where he was treated for 10 days. He received injuries on his head, last two teeth and right ear lobe was cut in the attack by the

5 S.C.No. 457/2012

accused persons. He identified M.O.1 as the stick used by A.1, M.O.2 as the stone used by A.2 and M.O.3 as the axe used by A.3 in the attack and that the police also seized his blood stained clothes M.O.4 and 5.

12. The wife of victim D.Uppalamma is examined as P.W.3. She deposed that she is living with P.W.2 in the village by cultivating land and P.W.2 is also attending taddy tapping work. About one year back on one day at about 5.00 p.m, when she was in her house, a boy came and informed her about the attack on P.W.2 and receiving of injuries. She immediately went to the spot along with Sudershan, Auto Driver to the spot where she found B.Narayana and Chandraiah beside P.W.2 and the victim was unconscious and he was with grievous injuries. He regained conscious when water was sprinkled on him and he narrated about the attack on his life. Then he was shifted to MGM Hospital. She stated that the accused persons beat P.W.2 due to civil disputes.

13. Bollepally Narayana who is the circumstantial witness and the villager of the victim is examined P.W. 4. He deposed that while he was returning from toddy tapping work, he found P.W.2 unconscious with injuries. He sprinkled water on him, he woke up and then he gave information to the family members of the victim, then, P.W.3 came in the auto of B.Sudershan and they shifted the injured to MGM Hospital.

14. The auto driver B.Sudershan, who shifted the injured, along with

P.Ws. 3 and 4 to the Hospital is examined as P.W.5. As per his evidence, about two years back on one day while he was waiting in his auto on the road, P.W.3 called him and asked to accompany her to shift P.W.2 (injured) to the Hospital. They went to thanda and found P.W.2 on the road with injuries in unconscious stage. Beside victim P.W.4 and

6 S.C.No. 457/2012

Chandraiah was also present. In the meantime, the injured was shifted into auto, on the way 108 ambulance came and they taken the injured to MGM Hospital. He stated that he did not enquire about the reason and how P.W.2 received injuries.

15. Banoth Raju, the witness who observed the escaping of accused

Nos. 1 to 3 from the scene is examined as P.W.6. He did not support the version of the prosecution by saying that he does not know anything about this case and police did not record his statement. He was declared as hostile.

16. Vatla Srinu, who is the witness for confession of accused Nos. 2 and 3 leading to recovery of weapons is examined as P.W.7. As per his evidence about two years back on one day at 9.30 a.m while he was going to Chinnapendyal to Ghanpur (Station) for attending mason work and standing at Bus stand police Ghanpur called him. At tht time accused Nos. 2 and 3 were in the custody of police. On his questioning the police stated that the accused persons beat somebody and they were fleeing off. Therefore, they apprehended the accused and he does not know whom the accused beat. He further stated in the cross- examination by the Addl.P.P that, the S.I interrogated the accused and they stated that the accused persons beat some person in Rajavaram

Village. The accused revealed about the offence in interrogation.

17. S.Ravinder, the panch for CDF and seizure of blood stained earth and controlled earth is examined as P.W.8. As per him, on 20.12.2011 at 8.00 a.m, S.I of Police, Ghanpur (Wgl) had called him and L.W.2-

Veeraiah to Mulkapur Road outskirts of their village, in their presence police collected blood stained earth samples and controlled earth from

7 S.C.No. 457/2012

the scene of offence. The police seized the same and obtained their signatures on panchanama. In their presence, the police sealed the recovered material and drafted rough sketch.

18. The panch for confession of A.2 and A.3 and recovery of stick, stone and axe (M.Os. 1 to 3) at their instance is examined as P.W.9.

As per his evidence, he is working as VRO as Rajavaram Village. That in his presence and in the presence of Shaga Gopal-L.W.16 on 27.12.2011 at 9.45 a.m, the S.I of Police, Ghanpur Station called them to Bus stage of Chinnapendyal, where A.2 and A.3 were in their custody. On the enquiry, the accused Nos. 2 and 3 confessed to have committed the offence and taken them to Sub-Station of Rajavaram, where they have produced one stone, one axe and a stick from the bushes. The police seized the same under the cover of panchanama by affixing panch slips on the seized material.

19. Dr.T.Naveen Kumar, who treated the injured is examined as P.W.10.

AS per his evidence on 19.12.2011 at 7.20 p.m, the injured P.W.2 was brought by his brother-in-law for treatment. On his examination of patient P.W.2, he found five simple injuries which are mentioned in

Ex.P.6-Medical Certificate. That he advised for X-Ray of skull and basing upon the radiologist report and X-Ray he found no fracture.

20. The Investigation Officer of this case I.Santhosh, the then S.I of

Police, Ghanpur who investigated the case and filed charge sheet is examined as P.W.11. As per his evidence on 19.12.2011 he received complaint from P.W.1, basing on it he registered a case and issued FIR, recorded the statements of the witnesses, conducted scene of offence panchanama and seized controlled earth and blood stained earth, got

8 S.C.No. 457/2012

photographed the scene of offence. He apprehended the accused persons and seized M.Os. 1 to 3, recorded the confessional statements of the accused and produced the accused persons before the Court and after completion of investigation, filed charge sheet.

21. Basing on the evidence on record, the victim Dori Mogulaiah had one acre 15 guntas of land in his village Rajavaram. The accused Nos. 1 to 3 and victim got disputes with regard to land and a civil case was pending. These facts are not in dispute. The injured-P.W.2 on 19.12.2012 at 5.00 a.m went to to outskirts of Rajavaram and returning after toddy tapping work., the accused Nos. 1 to 3 have attacked the victim. A.1 attacked with M.O.1-Stick on the head, A.2 took M.O.2-Stone available at scene and beat P.W.2 on head and accused No.3 attacked with wooden handle of M.O.3-Axe and beat P.W.2 on his head. The accused also pressed the neck of the victim, therefore, he lost conscious and fell down. Then P.W.4 came and sprinkled water on victim and gave water to him. L.W.5-Chandraiah informed to P.W.3 (wife of victim) about the incident. Then P.W.3 came in the auto of P.W.5 to spot and with his help she shifted P.W.2 to MGM Hospital, Warangal, where he was treated. P.W.1 came to MGM Hospital after due enquiry with P.W.2 he lodged complaint with police.

The victim in his evidence clearly spoken about the overt acts of the A.1 to A.3 by using M.O.1 to 3. P.Ws. 4 and 5 also found the victim P.W.2 with head injuries at the scene of offence. The evidence of Doctor

P.W.10 and his MLC Report-Ex.P.6 also corroborate receiving of injuries by P.W.2. The injuries received by the injured are caused by a blunt object. The accused Nos. 2 and 3 in the offence used handle of axe-

M.O.3, stick-M.O.1, and the stone-M.O.2 which are blunt objects. P.W.2

9 S.C.No. 457/2012

stated about pressing of neck in his evidence but pressing of neck is neither mentioned in the complaint-Ex.P.1 nor found in the 161 Cr.P.C statement of P.W.2. However, P.W.1 mentioned in complaint-Ex.P.1 and in statement under Section 161 Cr.P.C of P.W.2 it is found that the accused fisted on his ears, chin, neck. Thus, P.W.2 totally contradicted with regard to pressing of neck by accused. Therefore, pressing of neck by the accused to kill P.W.2 cannot be believed.

22. There is no evidence produced by the prosecution to show that the victim (P.W.2) lost two teeth and cut of ear lobe as stated by P.W.2 in his evidence. The losing of teeth is not supported by the evidence of

P.W.10 doctor and the wound certificate-Ex.P.6. Therefore, the loss of teeth of P.W.2 cannot be believed. It is not in dispute that the victim (P.W.2) and accused are having land disputes for the last four years.

This fact is not specifically denied by the accused. Though all the witnesses were cross-examined at length except some minor contradictions, omissions and additions nothing could be elicited in their cross-examination by the defence counsel so as to disbelieve the evidence of the prosecution witnesses. Thus, the evidence on record is consistent and proves that the accused Nos. 2 and 3 with A.1 have beat P.W.2 with M.os. 1 to 3 on his head causing simple injuries. The evidence of P.W.2 is corroborated by P.Ws. 3, 4 and 5. The evidence of

P.W.10-Doctor is corroborating the fact of simple injuries received by

P.W.2. The evidence of the investigating officer-P.W.11 is also supporting the case and recovery of M.Os. 1 to 3 used by the accused in the offence. Thus, the evidence on record is clearly proving that the accused used deadly weapons M.Os. 1 to 3 in beating P.W.2 and caus simple injuries to him.

10 S.C.No. 457/2012

23. The injuries as per Ex.P.6-Medical Certificate are simple in nature.

The accused also used the M.Os. 1 to 3 in such a way which shows that they got no intention to kill the victim, otherwise they could have used the sharp edge of axe directly and caused the death. The above reasons and the facts and circumstances shows that the offence committed by the accused Nos. 2 and 3 attracts the offence punishable under section 324 IPC but not Section 307 IPC. As per Section 222 (2) of the Code of Criminal Procedure, when the offence charged against the accused Nos. 2 and 3 is Section 307 IPC and they are found guilty for a lesser serious offence u/s. 324 IPC, there is no need to frame fresh charge for the offence u/s. 324 IPC. Therefore, no fresh charge is framed for the offence u/s. 324 IPC.

24. For these reasons, I believe the evidence of the prosecution and hold that the prosecution proved the guilt of accused Nos. 2 and 3 for the offence u/s. 324 IPC beyond reasonable doubt, and hence they are convicted u/s. 235 (2) Cr.P.C.

(Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in the Open Court on this the 15 th day of May, 2015)

Sd/-

II ADDL. ASST. SESSIONS JUDGE,

WARANGAL.

ORDER ON THE POINT OF SENTENCE

25. Having regard to the gravity of offence proved and the victim (P.W.2) being a old old man, therefore, it is not desirable to invoke the benevolent provisions of the Probation of Offenders Act to the offenders of this case.

26. The accused Nos. 2 and 3 stated that they are having two children each and mother depending on them. Considering mitigating circumstances put forth by the accused Nos. 2 and 3 and also keeping

11 S.C.No. 457/2012

in view of the gravity of offence proved against them, I am of the opinion that the ends of justice would meet, if accused Nos. 2 and 3 are sentenced to Rigorous Imprisonment for 20 days and with a fine of

Rs.5,000/- each.

27. In the result, the accused Nos. 2 and 3 are convicted u/s. 235 (2)

Cr.P.C for the offence punishable u/s. 324 IPC and sentenced to undergo

Rigorous Imprisonment for 20 days each and to pay a fine of Rs.5,000/- (Rs. Five Thousand each). In default of payment of fine they shall suffer simple imprisonment for two months each. Out of fine amount either paid by accused Nos. 2 and 3 or forieted from them, Rs.6,000/- shall be paid as compensation to the victim (P.W.2) u/s. 357 of Cr.P.C after expiry of appeal time. The period of remand of accused Nos. 2 and 3 during the course of investigation from 27.12.2011 to 18.1.2012 (23 days) shall be given set of under Section 428 Cr.P.C. M.Os.1 to 7 non valuable property shall be destroyed after appeal time.

28. The accused Nos. 2 and 3 are apprised of their right to prefer an appeal against the judgment before the Court of Sessions, Warangal, within 30 days from this day.

29. The accused Nos. 2 and 3 are also apprised of their right to have free legal aid from District Legal Services Authority by making application before the appellate authority, if they require any such legal aid and advise.

(Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in the Open Court on this the 15th day of May, 2015)

Sd/-

II ADDL. ASST. SESSIONS JUDGE,

WARANGAL.

12 S.C.No. 457/2012

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence

PW1 – D.Sreenivas. PW2 – D.Mogulaiah. -None- PW3 – D.Uppamma. PW4- B.Narayana. PW5- B.Sudershan. PW6- B.Raju. PW7- V.Srinu. PW8- S.Ravinder. PW9- G.Sampath Reddy. PW10- Dr.T.Naveen Kumar. PW11- R.Santhosh.

EXHIBITS MARKED

For Prosecution Ex.P1: Complaint dt. 19.12.2011. Ex.P2: u/s. 161 Cr.P.C Statement of P.W.6 dt. 20.12.2011. Ex.P3: u/s. 161 Cr.P.C Statement of P.W.7 dt 27.12.2011. Ex.P4: Crime Details form dt. 19.12.2011. Ex.P5: Seizure panchanama dt. 27.12.2011. Ex.P6: Medical Certificate dt. 19.12.2011. Ex.P7: First Information Report dt. 19.12.2011. Ex.P8: Portion of confession of A.1 leading to recovery dt. 27.12.2011. Ex.P9: RFSL Report.

For Defence:

Ex.D.1: Relevant portion in Section 161 Cr.P.C Statement of P.W.4 dt.20.12.2011. Ex.D.2: Relevant portion in Section 161 Cr.P.C Statement of P.W.5 dt. 20.12.2011.

MATERIAL OBJECTS MARKED

M.O.1: Stick. M.O.2: Stone. M.O.3: Axe. M.O.4: Blood stained banian of the victim. M.O.5: Blood stained shirt of victim. M.O.6: Blood stained earth. M.O.7: Controlled earth.

Sd/-

II ADDL. ASST. SESSIONS JUDGE,

WARANGAL.

13 S.C.No. 457/2012

CALENDER EXTRACT

JUDGMENT IN TRIAL SESSIONS CASE NO. 457/2012 ON THE FILE OF II- ADDL. ASST. SESSIONS JUDGE, WARANGAL: PRELIMINARY REG.CASE NO. 12/2012 ON THE FILE OF IV ADDL, JUDICIAL MAGISTRATE OF I CLASS,

WARANGAL.

1. Name of the Police station : Ghanpur (W).

2. Name of the accused :

A.1. Sura Venkataiah (died case against him is abated) A.2. Sura Yellaiah S/o. Venkataiah, Age: 30 yrs, Caste: Waddera, Occ: Agriculture, R/o. Rajavaram Village of Ghanpur - Warangal, Mandal now at Dubagunta Road, Rangasaipet Warangal. A.3. Sura Mallaiah S/o. Venkataiah, Age: 35 yrs, Caste: Waddera, Occ: Agriculture, R/o. Rajavaram Village now at near Gudimalkapur, Mehadipatnam, Hyderabad.

3. Date of offence : 19.12.2011

4. Date of report : 19.12.2011

5. Date of arrest : 27.12.2011

6. Date of release on bail : 18.01.2012

7. Date of commitment : 24.05.2012

8. Date of commencement of trial : 21.06.2013

9. Date of close of trial : 25.08.2014

10. Date of sentence or order : 15.05.2014

11. Sentence or order :

The accused Nos. 2 and 3 are found guilty for the offence punishable u/s. 324 IPC and they are convicted u/s. 235 (2) Cr.P.C. A.2 and A.3 are sentenced to undergo Rigorous Imprisonment for 20 days each and to pay a fine of Rs.5,000/- each indefault Simple Imprisonment for 2 months each. Out of the fine amount, if paid/realised, a sum of Rs.6,000/- shall be paid as compensation to the victim- P.W.2-Dori Mogulaiah S/o. Yadagiri, Aged: 70 yrs, R/o. Rajavaram Village Ghanpur (Warangal) under Section 357 after expiry of appeal time. The M.Os. 1 to 6 shall be destroyed after appeal time.

The accused appeared before this Court on 20.9.12. Charges were framed on 23.5.13. The prosecution evidence commenced on 21.6.13. Then the accused was not present and NBWs was issued on 22.8.2013 and recalled on 8.10.2013. The prosecution evidence was closed on 25.8.2014. The accused Nos. 2 and 3 were examined u/s. 313 Cr.P.C on 24.9.2014. The arguments were heard on 15.5.2015 judgment was pronounced on the same day. Hence no delay.

II-Addl. Asst. Sessions Judge, Warangal.

14 S.C.No. 457/2012

1 O.S.223/2008

IN THE COURT OF II ADDL. SENIOR CIVIL JUDGE AT WARANGAL

Saturday, this the 30th day of May, 2015

Present:- D. Ravindra Sharma, II Addl. Senior Civil Judge, Warangal.

O.S.No.223/2008

Between:

K.Padmakar Reddy S/o. Bhumi Reddy, Aged: 50 yrs, Occ: Agriculture, R/o. H.No. 2-4-894, Gokulnagar, Hanamkonda, Dist. Warangal.

..Plaintiff.

AND

Byreddy Balaji Rao S/o. Venkata Ramana Rao, Aged; 35 years, Occ: Business, R/o.H.No.10-42, Huzurabad Village and Mandal, Dist. Warangal.

..Defendants

This suit is coming up for hearing before me in the presence of Sri K.Narsimha Rao, counsel for the Plaintiffand Sri T. Venkateshwar Rao, Counsel for the defendant and the matter having stood over for consideration till date, this Court made the following:

J U D G M E N T

This suit is filed for specific performance of contract dated 31.1.2006 with regard to Schedule `A' consisting of 1780 Sq. yards and

Schedule `B' consisting of 350 Sq. yards both out of Survey Numbers 271/A1, 277/A2, 277/A.3 situated at Waddepally Village, Hanamkonda

Mandal, Warangal District herein after termed as `A' and `B' suit schedule properties and alternatively for refund of earnest money of

Rs.3,51,000/- with interest @ 24% per annum and for costs of the suit.

2.The averments of plaint in brief are that:

The defendant is acquainted with the plaintiff and in pursuance of the said acquaintance the defendant for his necessities entered into an agreement of sale dated 31.1.2006 to sell 'A' and 'B'

Schedule properties for a total consideration of Rs.9,00,000/-. The defendant received an amount of Rs.2,30,000/- as advance and acknowledged the same under the agreement. Out of the said amount

2 O.S.223/2008

Rs.1,90,000/- was paid through D.D drawn in Katatiya Grameena Bank,

Hanamkonda in favour of the defendant vide D.D.No. 532981 and

Rs.40,000/- by way of cash. The defendant is the registered GPA Holder for the 'A' Schedule property vide registered GPA NO. 8933/2005 dated 6.1.2005 and got right to alienate the property from the original owners, namely, Erra Ilaiah, Erra Samuel, Erra Ramesh, Erra Kanakaiah,

Erra Vardaraj, Erra Narayana and Erra Sunder of Lashkar Singaram

Village, Hanamkonda for the `A' schedule property. That he had exclusive right over the B Schedule property to get registered sale deed by paying balance sale consideration to the defendant. The defendant went on postponing and avoiding to execute the registered sale deed.

The defendant had also made believe the plaintiff about filing of the suit

O.S.No. 522/2005 on the file of this Court and obtaining of injunction

order and subsequently stated that it was compromised in respect of the

Schedule 'A' property of the agreement. The defendant by his deceptive means had entered into agreement and even thereafter also the defendant in consequence of his evil desire had further received

Rs.1,00,000/- on 28.2.2006 from the plaintiff by executing the receipt acknowledging in all Rs.3,30,000/- by 28.2.2006. Thereafter also the defendant with an oblique motive again requested the plaintiff to pay balance sale consideration. Therefore, the plaintiff in order to fulfill his legal obligation accrued under agreement of sale with all bonafides drawn one Banker cheque and Demand Draft dated 17.7.2006 in the name of defendant for Rs.3,00,000/- banker cheque No. 544761 drawn in Kakatiya Grameena Bank, Hanamkonda and Rs.2,00,000/- vide

D.D.No. 238680 drawn on Andhra Bank, Collectrate Branch,

Hanamkonda. After drawing two DDs in the name of defendant, the plaintiff learnt about the cancellation of GPA in favour of the defendant in respect of 'A' schedule property. Therefore, he questioned the

3 O.S.223/2008

defendant about his bonafides but the defendant did not give any reply.

The registered GPA executed in favour of the defendant was canceled by his Principal on 18.11.2005. The defendant by suppressing the fact had mislead the plaintiff and illegally parted with consideration though he got no right or power as on the date of agreement. Thus, he got no right or power as on the date of agreement under the GPA as it was cancelled vide registered cancellation GPA bearing No. 954/2006 dated 18.11.2005 and also another cancellation deed vide document No. 10766/2005

dated 14.12.2005. As such, the defendant knowing fully well that he got

no right to alienate the property with ugly haste has executed agreement of sale in favour of the plaintiff dated 31.1.2006 by make believing the plaintiff that he got right over the property to enter into agreement of sale in respect of `A' schedule property and thus put the plaintiff in dark.

The defendant also suppressed the death of Erra Iylaiah on 15.12.2005 one of the attorney, who executed the registered GPA in his favour so as to defraud the plaintiff. Thus, it is suffice to say that the defendant though got no right had committed acts of breach of trust and cheating. Therefore, the plaintiff approached the police but they did not take any action, therefore, he filed complaint u/s. 200 Cr.P.C before the IV Addl. JFCM, Warangal. Again the defendant represented the plaintiff by asserting that he got alienation right over the suit schedule 'B' property as there is no legal impediment and made believe the defendant on 21.1.2008 and received Rs.20,000/- through cheque No.

554657 of State Bank of India towards balance sale consideration. The plaintiff credited the said amount in his account in order to realise the cheque but the defendant could not realise the said cheque for some reason and again requested to pay amount directly. Therefore, the

4 O.S.223/2008

plaintiff paid Rs.20,000/- on 7.2.2008 by crediting the amount to the account of the defendant vide account No. 52194261931. The defendant in total received Rs.3,51,000/- from the plaintiff on different dates in pursuance of the agreement. Inspite of that the defendant making hectic efforts to alienate the suit schedule properties in favour of the third parties by suppressing the factum of agreement of sale.

Though the plaintiff was ready and willing to pay the balance sale consideration but the defendant is not ready to perform his part of contract. Therefore, the plaintiff had no other remedy except to approach this Court for grant of specific performance of contract dated 31.1.2006.

3.The defendant filed written statement by denying all the plaint allegations. He denied the acquaintance with the plaintiff and execution of the agreement of sale dated 31.1.2006 for total sale consideration of Rs.9,00,000/- with regard to `A' and `B' schedule properties. He further submitted that he never executed the suit agreement of sale in favour of the plaintiff within the meaning of Law.

The suit is bad for non joinder of necessary parties i.e the owners of the suit schedule property by names, Erra Ilaiah, Erra Samuel, Erra Ramesh,

Erra Kanakaiah, Erra Varadaraj, Erra Narayana and Erra Sunder.

Therefore, the suit is liable to be dismissed for non joinder of necessary parties. The defendant explained the surrounding circumstances under which the agreement of sale was prepared and the object of preparing the said sale agreement though there was no execution of contract within the meaning of law. He explained about filing of O.S.No.

522/2005 by the defendant against 1. Mulkuri Vijender Reddy, 2. Mulkuri

Sumati, 3. Chada Bapu Reddy, 4. Chandupatla Sudeshna in respect of 3 pieces of land of 350 Sq. yards, 311.11 Sq. yards and 2000 Sq. yards as

5 O.S.223/2008

A, B and C schedule properties. The husband of third defendant therein

Mr. C.Janga Reddy is practically and personally looking after the defence of the said defendants in that suit. Though there was injunction subsisting in the matter till this date, the said C.Janga Reddy had misutilised his enormous influence and prevailed over some of the vendors of this defendant to execute the deed of cancellation purporting to cancel the registered sale agreement-cum-GPA dated 6.10.2005 registered as document No. 8933/2005 standing in the name of the defendant. The said unilateral cancellation of sale deed is invalid in the eye of Law. The said Janga Reddy tried to pressurise the defendant in number of ways and methods to agree to his terms and come down for a compromise. In that attempt, he offered to pay the defendant a sum of

Rs.9,00,000/- for 350 and 2000 Sq. yards and to tempt this defendant to agree for the compromise he went on spotting the the Banker's cheque No. 532981 dated 10.1.2006 for Rs.1,90,000/- drawn on

Kakatiya Grameena Bank, Hanamkonda Branch said to have been obtained by him and further tempted the defendant to pay Rs.40,000/- in cash and balance of Rs.6,70,000/- within 70 days after recording compromise by the Court. To inculcate confidence in the mind of the defendant, the said Janga Reddy gave a photostat copy of the said

Banker's cheque. As the defendant was indebted to several persons and he was lured by the said Janga Reddy with his influence and also with a hope of getting payment of Rs.6,00,000/- more and he brought pressure and influence for compromise of the suit dispute. However, the defendant had already sold even prior to that suit a piece of land of 220

Sq. yards out of the suit land to the third parties. That he erroneously filed the suit in respect of the entire land including that sold piece in view of his failure to inform that aspect to his counsel when getting that suit drafted and because of the great hurry in which he had to file that

6 O.S.223/2008

suit. In the first week of January 2006, the husband of the fourth defendant brought draft memorandum of compromise and an agreement of sale in favour of the defendant and insisted the defendant for signing the papers and to accept bankers cheque and cash of

Rs.40,000/- towards the payments of the part amount of consideration for the compromise and brought pressure and handedover the draft memorandum of agreement. When the defendant contacted with the counsel and came to know the compromise was for the whole land.

Therefore he informed on telephone the husband of the fourth defendant in that suit and questioned about the draft of the compromise. He replied to the defendant that it must be a mistake on the part of his counsel and offered to correct the same. Unable to trust him in the matter, this defendant offered to bring another draft memorandum of compromise from Hyderabad. Ultimately the proposed compromised was failed. Though the defendant signed on draft compromise, he did not receive any single pie from the plaintiff towards sale consideration. The signature appearing on the suit sale agreement is a forgery. At any rate, since the compromise failed, the agreement of sale cannot be enforced. Thus, it can be stated that in the circumstances the suit sale agreement was never executed by the defendant at any point of time and the plaintiff is a stranger to him. The husband of the fourth defendant in that suit again in the year 2008 tried for a compromise and for payment but no cash was paid to the defendant till this date. Thus, the plaintiff is guilty for suppression of the fact and false implication of the material facts and filing of forged documents. Therefore, he is not entitled for equitable relief of specific performance of contract. There is no cause of action for the suit.

Therefore,he prayed for dismissal of the suit.

7 O.S.223/2008

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

1.Whether the agreement of sale dated 31.1.2006 is true, valid and binding the defendants ?

2.Whether the plaintiff is entitled for specific performance of contract as prayed for ?

3.Whether the plaintiff is entitled for alternative remedy in the event of rejecting the prayer of plaintiff with regard to specific performance of contract ?

4.To what relief ?

5.The plaintiff to prove his case has examined himself as P.W.1 and he reiterated all the plaint averments once again in his sworn chief affidavit. To avoid repetition they are not extracted again. The plaintiff filed Exs.A.1 to A.8 are marked. Ex.A.1 is the certified copy of agreement of sale dated 31.1.2006. Ex.A.2 is the receipt. Ex.A.3 is the

Sale Agreement-cum-General Power of Attorney dated 6.10.2005. Ex.A.4 is the Original sale deed dated 17.6.2005. Ex.A.5 is the voucher of

State Bank of India. Ex.A.6 is the receipt dt. 21.1.2008. Ex.A.7 is the

Receipt dt. 21.1.2008. Ex.A.8 is the draft application form dated 7.2.008.

6.The defendant to prove his contention had examined himself as D.W.1. He too reiterated all the written statement averments in his chief-affidavit. Therefore, they are not extracted once again to avoid repetition. No documents are marked on behalf of the defendant.

7. Issue No.1: The plaintiff contends that he entered into agreement of sale as under Ex.A.1 with defendant for purchase of suit schedule `A' and `B' properties for Rs.9,00,000/- and paid Rs. 2,30,000/- under Ex.A.1 and Ex.A.2-Receipts. That the defendant got right to sell the property under Ex.A.3-Registered GPA. But Erra Iyalaih, one of the

8 O.S.223/2008

executants of the registered GPA-Ex.A.3 died on 15.12.2005 and the defendant sold part of land to third parties. The GPA in favour of the defendant is also cancelled by the principal on 18.11.2005 by supressing all the facts, the defendant entered into agreement of sale. Therefore, the defendant had no right to enter into agreement of sale. The defendant tried to alienate land to others, though the plaintiff is ready to perform his part of contract, hence he filed this suit for specific performance of contract.

8. The defendant contends that he did not enter into agreement of sale. The signatures found in Ex.A.1 are forgery. He also contends that though he signed in Ex.A.1 at the pressure and inducement of the husband of D.4 (C.Janga Reddy) in O.S.No. 522/2005 it does not amount to execution of agreement as he had no intention to enter into agreement of sale with plaintiff. That he did not receive any advance as stated by the plaintiff. Therefore, the plaintiff is not entitled to any relief and the suit is liable to be dismissed. The defendant tried to alienate land to others, though the plaintiff is ready to perform his part of contract, hence he filed this suit for specific performance of contract.

9.The defendant admitted to have signed in Ex.A.1 agreement of sale and in terms of compromise in O.S.No. 522/2005 and receipt for Rs.40,000/- cash on the date of agreement. Basing upon

Ex.A.3-GPA, he executed Ex.A.1 in respect of item No.1 of the Suit schedule properties. That he handed over Exs.A.1 and A.4 to one

Narender in the year 2005. But the said fact is not referred in his written statement. He did not take any action against anybody in that regard. The defendant did not initiate any proceeding against the said

C. Janga Reddy, husband of defendant No.3 in O.S.No. 522/2005 or for

9 O.S.223/2008

cancellation of Ex.A.1. The defendant did not try to prove the contention in that regard. The defendant as D.W.1 in his cross-examination admitted to have signed in Ex.A.2 and nobody forged his signature in the documents filed by the plaintiffs. Though original agreement of sale is not filed since the parties to the suit are admitting the signatures, the defendant in his cross-examination admitted the signatures and receipt of amounts from the plaintiff. The defendant did not take any action against anybody including the husband of D.3 in O.S.No. 522/2005, namely, C.Janga Reddy or against the plaintiff or anybody. The agreement of sale Ex.A.1 is duly executed by the defendant. If really the defendant had not executed Ex.A.1 or signed in the agreement forcibly, he should have taken action against C.Janga Reddy or atleast could have taken steps for cancellation of the Ex.A.1, but he did not do so. In these circumstances, it can be said that the defendant had executed Ex.A.1 and received the amounts of Rs.2,30,000/- as earnest money on 31.1.2006 i.e the date of Ex.A.1 and Rs.1,00,000/- on 28.2.2006 and executed Receipt and received Rs.20,000/- on 21.1.2008 under Ex.A.6, Rs.1,000/- on 21.1.2008 under Ex.A.7. Thus, totally he received Rs.3,51,000/-.

10.The defendant did not deny that the death of the executant

No.1 of GPA-Ex.A.3 namely Erra Iylaiah on 15.12.2005 prior to the date of Ex.A.1 and also about the cancellation of the GPA. The plaintiff also averred the same in his plaint in para No.5 that the defendant had no capacity to execute registered sale agreement Ex.A.1 in favour of the plaintiff for the item No.1 of the suit schedule property. In view of these admissions, it can be concluded that the defendant had no capacity as on the date of Ex.A.1 to enter into agreement of sale for selling item No.

'A' of the suit schedule property.

10 O.S.223/2008

11.With regard to the suit schedule 'B' property, it is an exclusive property of the defendant having purchased by him through

Ex.A.4 dated 17.6.2005 from Erra Iylaiah and others. In agreement of sale Ex.A.1, there is no mention about the rate fixed for item No.B schedule property and rate per square yard is also not mentioned for the item Nos. A and B items of the suit schedule. There is no evidence lead by the plaintiff to prove the rate of 'B' Schedule property. Therefore, in these circumstances, the rate of 'B' schedule property cannot be arrived or fixed. Thus, it can be concluded that the rate of suit schedule property of item No.B cannot be separately arrived to pay to the defendant by the plaintiff. Therefore, in these circumstances it can be said that the agreement of sale though it is true, valid but in view of the circumstances it cannot be implemented. Therefore, the issue No.1 is answered accordingly by holding that the agreement of sale Ex.A.1 cannot be implemented.

12.Issue No.2: In view of the above findings, the defendant had no capacity to enter into agreement of sale with regard to `A' schedule property and also the plaintiff failed to prove the rate separately for the 'B' schedule property so as to fix its consideration, therefore, this Court is unable to arrive to a conclusion to fix the rate for

B Schedule property. Therefore, the plea of specific performance of contract cannot be granted. The issue No.2 is answered by holding that the plaintiff is not entitled for specific peformance of contract.

13.Issue No.3: In the light of the above findings, the plaintiff is not entitled for specific performance of contract. The defendant had received the amounts of Rs.2,30,000/- as earnest money on 31.1.2006

11 O.S.223/2008

i.e the date of Ex.A.1 and Rs.1,00,000/- on 28.2.2006 and executed

Receipt and received Rs.20,000/- on 21.1.2008 under Ex.A.6, Rs.1,000/- on 21.1.2008 under Ex.A.7. Thus, the defendant in total received

Rs.3,51,000/- as contended by the plaintiff and he is liable to return the same to plaintiff as he failed to execute the registered sale deeds as agreed under Ex.A.1 in the circumstances explained above and due to the fault of the defendant. Therefore, the plaintiff is entitled to receive back the advance amount from the defendant with interest. Therefore the plaintiff is entitled for alternative remedy to recover the amount as prayed by him. The issue No.3 is decided in favour of the plaintiff by holding that the defendant is directed to pay Rs.3,51,000/- with interest @ 12% per annum from date of filing of the suit till this date and @ 6% per annum from the date of decree till the date of realisation.

14. In the result, the suit is partly decreed with costs by granting alternative remedy for refund of the advance amount paid by the plaintiff. The defendant is directed to pay Rs.3,51,000/- with interest @ 12% per annum from date of filing of the suit till this date and @ 6% per annum from the date of decree till the date of realisation within two months from this day failing which the plaintiff can approach the Court for execution of the decree.

(Dictated to the Stenographer, corrected and pronounced by me in the Open Court on this the 30th day of May, 2015) Sd/­

II ADDL.SENIOR CIVIL JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendants:

P.W.1: Kamidi Padmakar Reddy. D.W.1:Byreddy Balaji Rao.

EXHIBITS MARKED

12 O.S.223/2008

For Plaintiff

Ex.A.1: Certified copy of agreement of sale dated 31.1.2006. Ex.A.2: Receipt. Ex.A.3:Sale Agreement-cum-General Power of Attorney

dated 6.10.2005.

Ex.A.4 : Original sale deed dated 17.6.2005. Ex.A.5 : voucher of State Bank of India. Ex.A.6 : Receipt dt. 21.1.2008. Ex.A.7 : Receipt dt. 21.1.2008. Ex.A.8: Draft Application form dated 7.2.008.

For defendant: -Nil-

Sd/-

II ADDL.SENIOR CIVIL JUDGE,

WARANGAL.

IN THE COURT OF THE I ADDITIONAL SESSIONS JUDGE,

WARANGAL.

Monday, this the 26th day of November, 2018

PRESENT: D.Ravindra Sharma, II Additional Sessions Judge, FAC. I Addl. Sessions Judge, Warangal.

SESSIONS CASE NO.116/2017

(in PRC No. 54/2016 on the file of III Addl. Judicial Magistrate of I Class, Warangal)

1.Name and description of the :The State of Telangana rep. by complainantS.H.O of P.S.Mamnoor.

2.Name and description of the :A.1. Lavudya Homji, S/o.Dasirya, accusedAge: 35 years, Caste: Lambada, Agriculture, R/o. Kasnathanda, H/o.AmanagalVillageof Mahabubnabad Mandal. A.2. Banoth Ramulamma W/o. Late Bixapathy @ Bichu, Age: 50 years, Caste: Lambada, Occ: Coolie, R/o. mangalammakunta, H/o. Timmapur Vilalge of Hanamkonda Mandal. A.3.LavudyaSunithaW/o. Homji, Age: 30 yrs, Caste: Lambada, Occ: Coolie, R/o. Kasnathanda, H/o. Amanagal Vilalge of Mahabubad Mandal.

3.Offence charged:offences punishable under Sections 302, 201 read with 34 of the Indian Penal Code.

4.Plea of the accused:Pleaded not guilty

5.Finding of the Court: In the result, the accused Nos. 1 to 3 are found not guilty of the offences punishable under Sections 302, 201 read with 34 of the Indian Penal Code and accordingly they are acquitted under Section 235 (1) of the Code of Criminal Procedure. The bail bonds of accused Nos. 1 to 3 shall stand cancelled. M.O.1-black Colour cycle of Atlas Company shall be returned to A.1 after expiry of appeal time. M.Os. 2 to 4 shall be destroyed after expiry of appeal time.

 (2 of 10) (S.C.No. 116 of 2017)

7.Name of the Counsel for the :Addl.P.P. prosecution

8.Name of the Counsel for :Sri N.Sekhar Rao. accused

This case coming on this day for final hearing before me in the presence of Additional Public Prosecutor for the State/complainant and of Sri N.Sekhar Rao, Counsel for the accused Nos. 1 to 3 and having stood over for consideration till this day, the Court delivered the following:

:: J U D G M E N T ::

The Sub-Inspector of Police, Mamnoor filed charge sheet against the accused Nos. 1 to 3 in Crime No. 95/2016 for the offences punishable under Sections 302, 201 read with 34 of the Indian Penal

Code.

2. The brief facts of the prosecution case are as follows:

The L.W.1-Banothu Ramulamma i.e. wife of the deceased Banoth

Bixapathi @ Biche along with family were eking their livelihood by growing Rose Flower Garden. The accused/A.1 to A.3 keeping the previous grudges with regard to land disputes in mind, with an intention to kill him, A.1 beat deceased with pestle on his head thrice.

While A.1 to A.3 caught hold him, due to which he fell on the ground, then A.1 pressed the throat of deceased, as a result, the deceased died on the spot. Later A.1 to A.3 took the dead body to the outskirts of

Ramgopalpur on their cycle and threw it into the agriculture well and buried the body by covering with soil and bushes.

3. The learned III Addl. Judicial First Class Magistrate,

Warangal on compliance of Section 207 of the Code of Criminal

Procedure committed PRC No.54/2016 to the Sessions Division at

Warangal since the offence u/s. 302 IPC is exclusively triable by the

Court of Sessions. Later same is numbered as S.C.No. 116/2017 and  (3 of 10) (S.C.No. 116 of 2017) was made over to the Court of III Addl. Sessions Judge, Warangal, for disposal according to law.

4.After appearance of the accused, the State Brief Counsel and the Additional Public Prosecutor were heard with regard to charge, charges under Sections 302, 201 read with 34 of the Indian Penal

Code was framed against the accused Nos. 1 to 3, read over and explained to them in Telugu, they denied the charges, pleaded not guilty and claimed to be tried.

5. Later as per proceedings of the Sessions Court vide Dis.No.

1679/2018 dt. 16.3.2018, the case is transferred to this Court.

5. During the course of trial, the prosecution examined P.Ws.1 to 22 and got marked Exs.P.1 to P.32 and M.Os.1 to 4.

6. After the prosecution evidence was closed, the accused Nos. 1 to 3 were examined u/s.313 Cr.P.C by explaining the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. They denied he same and reported no defence evidence.

7. Arguments of both sides were heard.

8. Now the point for determination is:

Whether the prosecution proved the guilt of the accused for the offences punishable u/ss. 302,201 read with 34 of the Indian Penal Code beyond all reasonable doubt?

 (4 of 10) (S.C.No. 116 of 2017)

9. POINT :

The accused is alleged to have beat the deceased Banoth

Bixapathy with pestle on his head and also pressed throat of the deceased resulting his instantaneous death. The accused took the body to the outskirts of Ramgopalpur Village on their cycle and throw it in the agricultural well, and also covered it with soil and bushes.

Then the accused No.2 herself has lodged the complaint, which was investigated into by the police, in which they found the accused have caused the death of the deceased. Therefore, the police apprehended the accused persons, produced them before the Court and after completion of investigation they filed charge sheet.

10. The prosecution to prove the guilt of accused has examined P.W.1-B.Mankthu, P.W.2-N.Laxman, P.W.3-Banoth Ram Lal,

P.W.4-Nunavath Mangy, P.W.5-Dharavath Dasru, P.W.7-Tejavath,

P.W.9-L.Divya, P.W.10-Yadala Raghu, P.W.13-Banoth Baloji and

P.W.14-Banoth Ram Koti, who were the circumstantial witnesses. All these witness turned hostile to the case of the prosecution. They all disowned their respective statements Exs.P.1 to P.5, P.7, P.11, P.12,

P.16 and P.17 recorded by the police under Section 161 of the Code of

Criminal Procedure.

11. The child witness Lavudya Ram Charan is examined as P.W.6 and he examined after taking all precautions. He deposed that he does not know how his grand father Bixapathy died and he did not witness the incident at all and that he did not inform anybody about the death of the deceased that he did not give any statement either to the police or to the Magistrate. Thus, his evidence is also not helpful in proving the case of the prosecution.

 (5 of 10) (S.C.No. 116 of 2017)

12. P.W.8 is the photographer. His evidence is to the effect that he took photographs of the dead body of the deceased in the well and after removing the dead body from the well. Ex.P.9 is the three photographs of the dead body of the deceased along with C.D.

13. P.W.11-Sahaik Basha Miya, who is alleged to be the circumstantial witness, before whom the accused made extra judicial confession. He stated that in the month of July, 2016 on one day A.2 came to his house situated at Mangalammakunta and told him that her husband is missing upon which he himself and accused No.2 went to police station, Mamnoor and A.2 gave complaint. After one week P.W.5 informed him that the husband of A.2 died and his dead body was found in a well and he went to the well at Ramgopalapuram and the dead body of the deceased Bixapathy was taken out from the well by

P.W.8. The police took the dead body of the deceased to MGM

Hospital, Warangal for postmortem examination report and he does not know the cause of the death of the deceased.

14. As per the prosecution, P.W.12-Nunavath Ashok conducted panchayats between the deceased and A.1 and after death of the deceased he is alleged to have enquired about the killing of deceased by A.1 to A.3 and the accused made extra judicial confession before him. But this witness turned hostile by stating that no panchayat was conducted by him and no extra judicial confession was made by the accused. He also denied to have stated before police in his statement-

Ex.P.15 under Section 161 of the Code of Criminal Procedure.

15. P.W.15-Yadala Hariprasad, who is one of the panch witnesses for inquest and scene of offence panchanama, Exs.P.18 and 19 stated that police asked him to put his signature on two blank  (6 of 10) (S.C.No. 116 of 2017) papers and he does not know the contents of the said paper. His evidence is not helpful to the prosecution. He turned hostile to the case of the prosecution.

16. P.W.16-Mattepally Venkateshwarlu, V.R.O,who is another panch witness for inquest and scene of offence panchanama stated that in his presence the dead body of the deceased was taken out from the dilapidated well. The police have conducted scene of offence panchanama and inquest panchanama, Exs.P.20 and 21. In his cross- examination on behalf of accused, he admitted that he does not know the cause of death of the deceased and denied the suggestion that no panchanama was conducted in his presence.

17. P.W.17-Orsu Raju, who is the panch witness for confession and recovery panchanama turned hostile to the prosecution by stating that no confession and recovery panchanama was conducted in his presence and in the presence of Pucha Kumaraswamy-L.W.17.

18. P.W.18-P.Raj Kumar, Tahsildar, deposed that on 28.7.2016 at 1.00 p.m, he received a requisition from S.I. of Police, Mamnoor for conducting inquest panchanama over the dead body of the deceased near the dilapidated well of Laxminarayana situated in Ramgopalpet

H/o.Thimmapur. Upon which on the same day at 2.30 p.m, he reached the said place and conducted inquest panchanama for which, P.Ws. 15 and 16 stood as panch witnesses. The dead body of the deceased was found in the said well. The relatives of the deceased Mangthu and

Laxman identified the dead body as that of the deceased. The body was in decomposed condition and he got the dead body removed from the well and kept beside the well through village servants of

Thimmapur. He further deposed that he came to know through the  (7 of 10) (S.C.No. 116 of 2017) relatives of the deceased-Bixapathi that Ramcharan aged 6 years, grand son of the deceased, told them that the accused Nos. 1 to 3 killed the deceased by beating him in the house of the deceased. They packed the dead body in a jute bag and shifted it on a bicycle and thrown in to a well. The dead body of the deceased was decomposed.

That he concluded inquest panchanama at 5.00 p.m and the police shifted the dead body of the deceased to MGM Hospital, Warangal for postmortem examination.

19. P.W.19-Dr. Shaik Khaja, Associate Professor, FMD, Osmania

Medical College, Hyderabad deposed with regard to his conducting autopsy and finding one ante-mortem injury over the head of the deceased and sent stomach contents to RFSL, Warangal. He issued

Postmortem Examination report dt. 29.7.2016. He gave his final opinion dt. 21.9.2016 opining that the cause of death of due to head injury. Ex.P.24 is the postmortem Examination Report dt. 29.7.2016.

Ex.P.25 is the requisition of Tahasildar, Hanamkonda dt. 28.7.2016.

Ex.P.26 is the RFSL Report dt. 21.9.2016 and Ex.P.27 is the Final

Opinion given by him on 21.9.2016.

20. P.Ws. 20 and 22, A.Ram Prasad and P.Srinivas are the investigating officers and their evidence is with regard to their investigation.

21. P.W.21-Y.Neeraja is the Scientific Officer, RFSL, Warangal. She deposed that the item Nos. 1 to 4 received by her are analysed but no poisonous substance is found in Ethyl Alcohol is also not found in them.

Ex.P.26 is the report dt. 21.9.2016.

 (8 of 10) (S.C.No. 116 of 2017)

22. Since the material witness PW1 to 6 and circumstances witness PWs7, 9, 10, 13 and 14 also turned hostile and did not support the case. The only evidence of investigation officers, Doctors will not prove the guilty of accused. The prosecution has not produced any other cogent and convincing ocular or documentary evidence to establish that the accused Nos. 1 to 3 are involved in the alleged offence. The prosecution failed to establish the ingredients of Section 302 and 201 of the Indian Penal Code. The prosecution failed to establish the guilt of accused Nos. 1 to 3 for the offences punishable under Sections 302, 201 read with 34 of the Indian Penal Code beyond all reasonable doubt. The point is answered accordingly by holding that the accused No.1 to 3 are entitled for acquittal.

23. In the result: the accused Nos. 1 to 3 are found not guilty of the offences punishable under Sections 302, 201 read with 34 of the

Indian Penal Code and accordingly they are acquitted under Section 235 (1) of the Code of Criminal Procedure. The bail bonds of accused

Nos. 1 to 3 shall stand cancelled. M.O.1-black Colour cycle of Atlas

Company shall be returned to A.1 after expiry of appeal time. M.Os. 2 to 4 shall be destroyed after expiry of appeal time.

(Typed to my dictation, corrected and pronounced by me in Open Court on this the 26th day of November, 2018)

Sd/-

FAC. I-ADDITIONAL SESSIONS JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

PW1 : Banoth Mankthu. PW2 : Nunavath Laxman. PW3 : Banoth Ramlal. PW4 : Nunavath Mangya.

 (9 of 10) (S.C.No. 116 of 2017)

PW5 : Dharavath Dasru. PW6 : Lavudya Ramcharan. PW7 : Tejavath Achu. PW8 : Byri Ramesh. PW9 : Lavudya Divya. PW10: Yadala Raghu. PW11: Sk. Bhashamiya. PW12: L.Ashok Naik. PW13: Banoth Balaji. PW14: Banoth Ramkoti. PW15: Yadala Hariprasad. PW16: M.Venkateshwarlu. PW17: Orsu Raju. PW18: P.Raj Kumar. PW19: Dr. Sk. Khajamohinuddin. PW20: A.Ram Prasad. PW21: Y.Neeraja. PW22: P.Seenivas.

FOR DEFENCE:

-None-

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P.1: Statement under Section 161 of the Code of Criminal Procedure of P.W.1 dt. 28.7.2016. Ex.P.2: Statement under Section 161 of the Code of Criminal Procedure of P.W.2 dt. 28.7.2016. Ex.P.3: Statement under Section 161 of the Code of Criminal Procedure of P.W.3 dt. 28.7.2016. Ex.P.4: Statement under Section 161 of the Code of Criminal Procedure of P.W.4 dt. 28.7.2016. Ex.P.5: Statement under Section 161 of the Code of Criminal Procedure of P.W.5 dt. 28.7.2016. Ex.P.6: Statement under Section 161 of the Code of Criminal Procedure of P.W.6 dt. 28.7.2016. Ex.P.7: Statement under Section 164 of the Code of Criminal Procedure of P.W.6 dt. 15.10.2016. Ex.P.8: Statement under Section 161 of the Code of Criminal Procedure of P.W.7 dt. 28.7.2016. Ex.P.9: 3 photos with C.D. Ex.P.10: Statement under Section 161 of the Code of Criminal Procedure of P.W.9 dt. 29.7.2016. Ex.P.11: Statement under Section 164 of the Code of Criminal Procedure of P.W.9 dt. 15.10.2016. Ex.P.12: Statement under Section 161 of the Code of Criminal Procedure of P.W.10 dt. 29.7.2016 Ex.P.13: Statement under Section 164 of the Code of Criminal Procedure of P.W.11 dt. 15.10.2016. Ex.P.14: Statement under Section 164 of the Code of Criminal Procedure of P.W.12 dt. 15.10.2016. Ex.P.15: Statement under Section 161 of the Code of Criminal Procedure of P.W.13 dt. 29.7.2016. Ex.P.16: Statement under Section 161 of the Code of Criminal Procedure of P.W.13 dt. 29.7.2016.

 (10 of 10) (S.C.No. 116 of 2017)

Ex.P.17:Statement under Section 161 of the Code of Criminal Procedure of P.W.14 dt. 29.7.2016. Ex.P.18: Signature of P.W.15 on Crime details form dt. 25.7.2016. Ex.P.19: Signature of P.W.15 on inquest panchanama dt. 28.7.2016. Ex.P.20: Crime Detaisl Form dt.28.7.2016. Ex.P.21: Inquest panchanama dt. 28.7.2016. Ex.P.22: Signature of P.W.16 on Crime Details From dt.28.7.2016. Ex.P.23: Signature of P.W.16 on inquest panchanama dt.28.7.2016. Ex.P.24: Post Mortem Examination Report dt. 29.7.2016. Ex.P.25: Requisition to Tahsildar. Ex.P.26:RFSL Report dt. 21.9.2016. Ex.P.27: Final Opinion Ex.P.28: Complaint given by A.2 dt. 25.7.2016. Ex.P.29: First Information Report. Ex.P.30: Alteration Memo. Ex.P.31: Confession panchanama dt. 31.7.2016. Ex.P.32: Recovery panchanama dt. 31.7.2016.

FOR DEFENCE:

-Nil-

MATERIAL OBJECTS MARKED

M.O.1: Black Colour Atlas Company Cycle. M.O.2: One Pestle 30 inches length. M.O.3: Iron Spade. M.O.4: Red Colour saree with blue flower design.

Sd/-

FAC. I ADDITIONAL SESSIONS JUDGE,

WARANGAL.

1 of 11 MVOP 27/2013

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS

TRIBUNAL – CUM- II ADDITIONAL DISTRICT JUDGE:: WARANGAL

Wednesday, this the 28th day of November, 2018

PRESENT:D.Ravindra Sharma

II MACT-cum-II Addl. District Judge, FAC. I MACT-cum- I Addl. District Judge, Warangal.

M.V.O.P.No. 27/2013

Between :

Dasu Murali. ..Petitioner.

A N D

1. K.Surender Reddy.

2. Bajaj General Insurance Co. Ltd rep. by its Branch Manager, Local Branch Office situated at Loyal Arcade, Adalath, Hanamkonda, Warangal District.

3. Sunkara Srikanth S/o.Venkanna, Age: 20 yrs, Caste: Munnurukapu, R/o. H.No.1-7-897/6, Hunter Road, Hanamkonda, Diver of Trolley Auto No. AP 36 Y 4804. (Amended as per Order of Hon'ble High Court vide MACMA No. 188/2014 dt. 16.10.2014)

..Respondents.

This petition coming up for final hearing today before me in the presence of Sri G.Jagadeeshwar advocate for petitioner and Sri T.Ravinder Rao, advocate for the respondent No. 2 and respondent Nos.1 and 3 remained ex parte, and having stood over till this day for consideration, this Tribunal delivered the following :

:: A W A R D ::

This is a claim petition filed under Sections 166 (1) (a) of Motor

Vehicles Act, 1988 r/w rule 455 of the A.P.M.V. Rules, 1989 by the petitioner/injured claiming a compensation of Rs.1,50,000/-.

2. a) The averments of the petition in brief are as follows:

On 29.8.2012 afternoon the petitioner on his personal work was proceeding from Warangal to Hanamkonda via Hunter Road on his Motor 2 of 11 MVOP 27/2013

Cycle bearing No.AP 36 AP 4405 on the way when reached in front of

Zoo Park (Vana Vignana Kendram) Hunter Road, Hanamkonda at about 13.30 hours in the mean time the driver of Auto Trolley bearing NO.AP 36 Y 4804 drove his trolley in a rash and negligent manner at high speed while he was coming from Adalath Junction going towards

Warangal side dashed against the motor cycle of the petitioner and caused the accident negligently, as a result the petitioner along with his motor cycle fell down on the road, sustained fracture injuries on his right foot fingers and the motor cycle of the petitioner is damaged considerably. The petitioner was immediately shifted to Uday Clinic,

Hanamkonda for treatment.

(b) On the complaint the Police, Kazipet Traffic registered a case in

Crime NO. 106/2012 and on completion of investigation, the police filed charge sheet u/s.338 IPC against the driver of the Auto Trolley bearing

No.AP 36 Y 4804.

3. The first respondent is the owner of the offending vehicle and the third respondent is the driver of the offending vehicle remained ex parte and the second respondent/ Insurance Company alone filed its written statement resisting the petitioner's claim generally denying the averments of the petition and the averments of the written statement filed by the second respondent are as follows:

The petitioner has to prove the manner of the accident, injury sustained and treatment taken and expenditure involved. The petitioner must also prove that the driver of the said offending vehicle was having driving licence and it was contended that the driver of the 3 of 11 MVOP 27/2013 offending vehicle was not holding a valid and effective driving licence at the time of alleged accident. The offending Auto Trolley is registered as a Goods Carriage Transport Vehicle to drive the same Light Motor

Vehicle driving licence with Transport Endorsement is required, but as per the Driving Licence extract issued by the Additional Licence

Authority at Warangal, it is clear that the driver of the vehicle Auto

Trolley bearing No. AP 36 Y 4804 by name S.Srikanth is having only LMV

Driving licence with Non Transport endorsement only, which is not a valid and effective driving licence to drive the vehicle Auto Trolley bearing No. AP 36 Y 4804. The petition is bad for non joinder of necessary parties i.e. the owner and insurer of the Motor cycle bearing

NO. AP 36 AP 4405 on which the petitioner was travelling. There is two days delay in lodging the complaint.

It is further contended that there was no compliance of Section 134

(c) and 158 (6) of the M.V. Act, 1988. The petitioner has to further establish that there was no breach as per A.P.M.V.Rules. The petitioner has to further establish that there was no rash and negligence on the part of the rider of the motor cycle. The petitioner's claim for compensation is highly excessive. The petitioner has to prove that he used to earn Rs.10,000/- per month with authentic documentary evidence and hence the petition is liable to be dismissed.

4. Basing on the above pleadings, the following issues have been settled for trial:

1. Whether the accident took place due to

rash and negligent driving of vehicle

bearing No.AP 36 Y 4804 (Auto) driven by its

4 of 11 MVOP 27/2013 driver ?

2. Whether the petitioner is entitled for

compensation? If so, to what extent and

from whom?

3. To what relief?

5. To prove his claim, the petitioner examined himself as P.W.1 and the doctor, who treated him as P.W.2 and got marked Exs.A.1 to

A.5. On respondents side, the second respondent got examined R.Ws.

1 and 2 and exhibited Exs.B.1 to B.6. During examination of P.W.2,

Ex.C.1-Case sheet relating to P.W.1 is marked.

6. The respondent No.2/Insurance Company filed a petition under

Section 170 of the Motor Vehicles' Act vide I.A.No. 325/2017 and the same was allowed on 12.4.2017.

7. Heard arguments on both sides. Perused the entire evidence available on record.

8. Issue No.1: To prove the manner of accident, the petitioner examined himself as PW1 and perusal of chief-affidavit in lieu of his chief-examination would show on 29.8.2012 afternoon the petitioner on his personal work was proceeding from Warangal to Hanamkonda via

Hunter Road on his Motor Cycle bearing No.AP 36 AP 4405 on the way when reached in front of Zoo Park (Vana Vignana Kendram) Hunter

Road, Hanamkonda at about 13.30 hours in the mean time the driver of

Auto Trolley bearing NO.AP 36 Y 4804 drove his trolley in a rash and negligent manner at high speed while he was coming from Adalath

Junction going towards Warangal side dashed against the motor cycle of the petitioner and caused the accident negligently, as a result the 5 of 11 MVOP 27/2013 petitioner along with his motor cycle fell down on the road, sustained fracture injuries on his right foot fingers and the motor cycle of the petitioner is damaged considerably. The petitioner was immediately shifted to Uday Clinic, Hanamkonda for treatment. On the complaint the Police, Kazipet Traffic registered a case in Crime NO. 106/2012 and on completion of investigation, the police filed charge sheet u/s.338

IPC against the driver of the Auto Trolley bearing No.AP 36 Y 4804. In his cross-examination, he further deposed that he was having driving licence but he did not file the same before the Court. He denied the suggestion that the accident occurred due to negligence driving on his part. The place of accident is situated on 100 ft. road. He further denied the suggestion that he did not incur that much of expenditure.

Here apart from the evidence of P.W.1 we have documentary evidence marked as Exs.A.1 to A.5 and nothing substantial is elicited in the cross- examination of P.W.1 to disprove the manner of the accident and thus this documentary evidence EXs.A.1 to A.5 coupled with the evidence of

P.W.1 establishes that the petitioner sustained injuries due to rash and negligent driving of Auto Trolley bearing No.AP 36 Y 4804 by his driver.

Accordingly, this issue is answered in favour of the petitioner.

9. Issue No.2: During the cross-examination of petitioner,

EXs.A.1 to A.5 are marked and the petitioner examined the Doctor as

P.W.2 and P.W.2 deposed that on 29.8.2012 the petitioner came to his hospital with the following injuries:

1. Fracture second II, III, IV, V right foot metatorls in right foot.

The petitioner was discharged on 7.9.2012 and he issued EXs.A.3 and

A.5. Ex.C.1 is the Case Sheet.

6 of 11 MVOP 27/2013

The contesting second respondent is not seriously disputing the genuineness of Ex.A.3-Certified copy of injury certificate and as such the same can be made basis for granting just compensation.

10. According to the petitioner he was first shifted to Uday Clinic and on the advise of the Doctor he underwent surgery for the fracture injury sdto his right foot i.e. II, III, IV and VMT (Rt.) foot and in view of the nature of the injuries, the petitioner must have taken follow up treatment for some time and in the normal circumstances, one cannot expect receipts from the auto drivers and preservation of bus tickets and so it is absurd to insist for documentary proof. Therefore, keeping in view the nature of injuries and cost of living during the relevant period, I am of the view that awarding sum of Rs.4,000/-(Rupees Four

Thousand Only) under the head of expenditure for transportation is just and reasonable.

11. Under the head of loss of earnings, the petitioner claimed a sum of Rs.20,000/-, and according to him he used to earn Rs.10,000/- per month as private employee and but there is no documentary proof regarding his earning of Rs.10,000/- per month as private employee and, therefore, relying on the recent ruling of the Apex Court in the case of Ramachandrappa v. Manager Royal Sunderan reported in 2011 ACJ 2436 (SC), I consider monthly income of the petitioner as

Rs.5,000/-. Considering the nature of injuries and avocation of the petitioner, I am of the considered opinion that two months complete rest is sufficient including the period of treatment and after treatment the petitioner could attend the normal works and during that period of two months, there is every chance of loss of earnings. Therefore under 7 of 11 MVOP 27/2013 the head of loss of earnings, the petitioner is entitled for a sum of Rs.

10,000/- (Rs.5000/- x 2 months = Rs.10,000/-) as compensation under the head of loss of earnings.

12. In the petition, the petitioner claimed a sum of Rs.56,000/- under the head of medical expenditure, extra nourishment, damage to clothing and damages to vehicle nd the petitioner has filed bunch of medical bills and prescriptions vide Exs.A.4 P.W.2 Doctor also confirmed the same and except a suggestion that they are fabricated nothing was elicited in the cross-examination of P.W.2. P.w.2 is a responsible Doctor and he would not go that extent of giving false evidence by creating false documents and further nothing was elicited in the cross- examination of P.W.2 to discredit his testimony. The total amount spent by the petitioner under Ex.A.4-Medical bills is Rs.2370/- and as such

Ex.A.4 need not be viewed with any suspicion and the petitioner must have taken extra nourishment and tonics after discharge from the

Hospital, and therefore under the head of medical expenditure, extra nourishment, treatment and private attendant, I am awarding a sum of

Rs.20,000/- which includes the amount spent under Ex.A.4.

13. In the petitioner, the petitioner claimed a sum of Rs. 50,000/- under the head of continuing or permanent disability but the petitioner has not filed any disability certificate and the doctor-P.W.2 who treated the petitioner has also not produced any disability certificate and as such I am not considering granting any compensation under the head of continuing and partial disability but it remains the petitioner sustained fracture i.e. fracture injury on his right foot i.e. II, III, IV and V

M.T. (RT.) foot and therefore, I am awarding a sum of Rs.25,000/- .

8 of 11 MVOP 27/2013

14. In the petition, the petitioner claims a sum of Rs. 20,000/- under the head of pain and suffering. Here as per Ex.A.3-Injury

Certificate, the petitioner sustained fracture injury on his right foot i.e

II, III, IV and V on right foot. As such, I am awarding an amount of

Rs.5,000/- under the head of pain and suffering.

15. This Tribunal did not observe any abnormality in the movements of the petitioner at the time of recording the evidence.

16. After considering all the heads, the petitioner is entitled to total compensation of Rs.64,000/- (Rs. Sixty Four Thousand Only).

17. The accident occurred due to rash and negligent driving of the third respondent i.e. driver of the first respondent and the contesting second respondent examined its Senior Executive and he deposed that the respondent No.3/driver of the aforesaid auto was not holding valid and effective driving licence to drive the said Auto at the time of the alleged accident. The auto trolley bearing No. AP 36 Y 4804 was registered as "THREE WHEELED GOODS VEHICLE-LMV" and to drive such vehicle lthe driver must possess a driving licence to driver AUTO RICKSHAW OR LIGHT MOTOR VEHICLE WITH

TRANSPORT ENDORSEMENT. But in this case the driver of the said

Auto was holding only a driving licence to drive AUTO RICKSHAW AND

LMV NON TRANSPORT ENDORSEMENT AND MOTOR CYCLE WITH

GEAR which is not a valid and effective driving licence.

18. The contesting second respondent also examined its Junior 9 of 11 MVOP 27/2013

Assistant as R.W.2 and he deposed that he produced B-Register Extract relating to 3-Wheeler goods vehicle i.e. Auto rickshaw bearing No.AP 36

Y 4804. Ex.B.5 is the B-Register Extract in Form No. 24. As per Ex.B.5

Kondeti Surender Reddy is its registered owner and he has also produced the extract of driving licence of S.Srikanth, S/o.Venkanna, the driver of offending vehicle. He is having non-transport Auto rickshaw and LMV Motor Cycle. The date of issuance of driving licence is 23.4.2012 and it is valid up to 22.4.2032. The driver of the offending vehicle is not competent to drive the offending vehicle as he is having non-transport driving licence. Ex.B.6 is the extract of driving licence of

S.Srikanth. The vehicle is registered as Three Wheeled Goods Vehicle

LMV. Therefore, the R.3 was not competent to dive the offending vehicle and as such, the second respondent is not liable to pay any compensation and first and 3rd respondents are liable to pay compensation to the petitioner. The petition against the second respondent is liable to be dismissed. Accordingly, this issue is answered.

19. Issue No.3: In the result, the petition is allowed in part with proportionate costs by granting compensation of Rs.64,000/- (Rs.

Sixty Four Thousand Only).

The petitioner is entitled to interest @ 7.5% per annum from the date of presentation of petition till the date of realization. The respondent Nos. 1 and 3 are jointly and severally liable to pay the compensation.

The petition against the respondent No.2/insurer is dismissed 10 of 11 MVOP 27/2013 without costs.

The rest of the claim is disallowed without costs.

On deposit the petitioner is entitled to withdraw the entire compensation amount.

The advocate fee is fixed at Rs.1000/-.

Time granted for deposit of the amount is 30 days from the date of this order.

(Typed to my dictation, corrected and pronounced by me in the Open Court on this the 28th day of November, 2018)

Sd/-

CHAIRMAN,

MACT-CUM-II-ADDL. DISTRICT JUDGE,

WARANGAL

APPENDIX OF EVIDENCE

Witnesses Examined

For Petitioner: For Respondents:

PW1 –D.Murali. R.W.1-J.Mahesh. PW2- Dr. R.Koteshwar Rao. R.W.2-M.Srihari.

EXHIBITS MARKED

For Petitioners :

Ex.A1 – Certified Copy of FIR along with complaint dt. 31.8.2012. Ex.A2 – C.C.of Charge Sheet. Ex.A3 – C.C.of Injury Certificate/MLC. Ex.A4 – Original Medical Bills. Ex.A5: Xerox copy of R.C of the crime vehicle.

X-Series:

Ex.C.1-Case Sheet.

11 of 11 MVOP 27/2013

For Respondents :

Ex.B1 – True copy of policy. Ex.B2- Notice to R.3. Ex.B3 - Driving licence of R.3. Ex.B4 - Authorisation Letter dt. 22.4.2017. Ex.B5 - Extract Copy of B-Register. Ex.B6 - Driving Licence of R.3.

Sd/-

CHAIRMAN

MACT-CUM-II- ADDL. DISTRICT JUDGE,

WARANGAL.

1 MVOP 223/2017

IN THE COURT OF THE CHAIRMAN, MOTOR VEHICLES ACCIDENT

CLAIMS TRIBUNAL-CUM-I-ADDITIONAL DISTRICT JUDGE

WARANGAL.

Wednesday, this the 28th day of November, 2018

PRESENT:D.Ravindra Sharma, Chairman, Motor Vehicles Accident Claims Tribunal- cum-II-Additional District Judge, FAC. Chairman, Motor Vehicles Accident Claims Tribunal- cum-I Additional District Judge,

Warangal.

M.V.O.P.NO.223/2017

BETWEEN:

Edla Venkatamma. ...Petitioner.

AND

1.Alikatte Ramesh.

2.Telangana State Road Transport Corporation rep. by its Managing

Director, Hyderabad. ...Respondents.

This petition is coming on 26.11.2018 for final hearing before me in the presence of Sri N.Ravinder, Advocate for the petitioner and the respondents remained ex parte and having perused the material papers and having been stood over for consideration till this day, this Court delivered the following:

A W A R D ::

::

This is a claim petition filed under Sections 166 (1) ( c) of Motor

Vehicles Act, 1988 r/w rule 455 of the A.P.M.V. Rules, 1989 by the petitioner for compensation of Rs.1,00,000/- for the injuries received by the petitioner in the motor vehicle accident.

2. The averments of the petition in brief are as follows:

On the fateful day i.e. on 9.5.2016, the petitioner boarded the

TSRTC Bus bearing No. AP 36 Z 0020 of Bhupalpally RTC Bus Depot at

Uppal Bus Stand in order to reach her house, when the bus reached

Raghavapur Village, the driver of the said bus i.e. respondent No.1 drove the same in a rash and negligent manner with high speed and lost 2 MVOP 223/2017 control over the bus and dashed to a road side tree, due to which the petitioner including other inmates of the bus sustained severe injuries.

The petitioner sustained injuries of 1. Grievous tenderness over left arm,

2. Laceration of 5 x 3 x 2 cm over left frontal area just above left eye brow and other injuries all over the body. Immediately after the accident, the petitioner was shifted to MGM Hospital, Warangal, where

Dr. Anjaneyulu, Civil Assistant Surgeon, treated the petitioner and later she was shifted to NIMS, Hyderabad, where Dr. K.Sridhar Reddy treated the petitioner as inpatient from 22.10.2016 to 26.10.2016.

On the complaint made by the son of the petitioner by name Edla

Mahender, the police Ghanpur (W) registered a case in Cr.No.101/2016 and after investigation, the police filed charge sheet against the

R/1/driver of the offending bus.

3. The second respondent is Telangana State Road Transport

Corporation. The first respondent is the driver of the said bus. The respondent Nos. 1 and 2 remained ex parte.

4. The points for consideration are:

1. Whether the road traffic accident took

place on 9.5.2016 at Raghavapur village due

to rash and negligent driving of TSRTC Bus

bearing No. AP 36 Z 0020, by its driver ?

2. Whether the petitioner is entitled for

compensation? If so, to what extent and

from whom?

3. To what relief?

5. To prove her claim, the petitioner herself examined as P.W.1 and got marked EXs.A.1 to A.8 and as stated above, the respondent

Nos. 1 and 2 remained ex parte.

3 MVOP 223/2017

6. Heard arguments. Perused the entire evidence available on record.

7.Issue No.1: To prove the manner of accident, the petitioner examined herself as P.W.1. On perusal of the contents of chief-affidavit filed in lieu of her chief-examination shows that on 9.5.2016, the petitioner boarded the TSRTC Bus bearing No. AP 36 Z 0020 of

Bhupalpally RTC Bus Depot at Uppal Bus Stand in order to reach her house and when the bus reached Raghavapur Village, the driver of the said bus i.e. respondent No.1 drove the same in a rash and negligent manner with high speed and lost control over the bus and dashed to a road side tree, due to which the petitioner including other inmates of the bus sustained severe injuries. More particularly the petitioner sustained injuries of 1. Grievous tenderness over left arm, 2. Laceration of 5 x 3 x 2 cm over left frontal area just above left eye brow and other injuries all over the body. Immediately after the accident, the petitioner was shifted to MGM Hospital, Warangal, where Dr. Anjaneyulu, Civil

Assistant Surgeon, treated the petitioner and later she was shifted to

NIMS, Hyderabad, where Dr. K.Sridhar Reddy treated the petitioner as inpatient from 22.10.2016 to 26.10.2016. Due to laceration of 5x3x2 cm over left frontal area just above left eye brow, her eye sight was badly effected and her face is disfigured. In support of her contention, the petitioner filed EXs.A.1 to A.8. Ex.A.1 is the certified copy of FIR along with complaint. Ex.A.2 is the certified copy of charge sheet.

Ex.A.3 is the crime details form. Ex.A.4 is the certified copy of Medico

Legal Certificate. Ex.A.5 is the certified copy of Radiology Report.

Ex.A.6 is the bunch of medical bills (numbering 32), Ex.A.7 is the original discharge card dt.9.5.2016. Ex.A.8 is the original discharge card dt.22.10.2016.

4 MVOP 223/2017

8. The petitioner being the injured is the best person to speak about the manner of accident. Whereas to disprove her version there is no any contra evidence from the side of the respondents. Apart from the evidence of P.W.1 we have overwhelming documentary evidence marked as Exs.A.1 to A.8 which amply corroborates the version of the petitioner. The evidence of P.W.1 and Exs.A.1 to A.8 establishes that the petitioner received injuries on account accident caused due to clearly of rash and negligent driving of the TSRTC Bus bearing No. AP 36

Z 0020 by its driver-R.1. Accordingly, this point issue is answered infavour of the petitioner.

9 . Point No.2: During the cross-examination of petitioner,

EXs.A.1 to A.8 are marked of which Ex.A.4 is the certified copy of

Accident/MLC Register and the relevant portion of Ex.A.4 is as follows:

1. Laceration of 5 x 3 x 2 cm over left frontal area just above left eyebrow.

2. Tenderness over left arm.

Ex.A.5 is the certified copy of Medico Legal Certificate and the relevant portion of Ex.A.5 is as follows:

Fracture middle 3rd of humerur. (left arm).

It is evident that because of this accident, the petitioner developed eye problem and the respondents are not disputing and Ex.A.4-injury certificate and Ex.A.5-Medico Legal Certificate can be made basis to some extent to grant just compensation.

10. According to petitioner, immediately after the accident she was shifted to MGM Hospital, Warangal and from there to NIMS, 5 MVOP 223/2017

Hyderabad. According to petitioner and she sustained laceration over left eye brow and she was treated with various diagnosis upto 26.10.2016 and while discharging the Doctors advised her to take complete bed rest for one month and she incurred medical expenditure to a tune of Rs.30,000/-. She further deposed that due to laceration to left eye brow she developed eye sight problem. After treatment in

NIMS Hospital, Hyderabad, she was shifted to her house and for that purpose she must have spent some amount for transport. In view of the nature of the injuries, the petitioner must have taken follow up treatment for some time and in the normal circumstances, one cannot expect receipts from the auto drivers and preservation of bus tickets and so it is not proper to insist for documentary proof. Therefore, keeping in view the nature of injuries and cost of living during the relevant period, I am of the view that awarding sum of Rs.5,000/- under the head of expenditure for transportation is just and reasonable

Accordingly Rs.5,000/- is towards the transportation granted.

11. Under the head of loss of earnings, the petitioner claimed a sum of Rs.9,000/- PM. The petitioner is a coolie and keeping in view the ruling of the Hon'ble Apex Court in the case of ARUN KUMAR

AGARWAL VS. NATIONAL INSURANCE COMPANY reported in 2010 (6) SCJ 886, I consider the monthly income of the petitioner is

Rs.5,000/- as she being the coolie, considering the nature of the injuries and treatment taken by property. I am of the considered opinion that one month complete rest is sufficient including the period of treatment after treatment the petitioner could have attend the normal works.

During that period of one month, there is every chance of loss of earnings. Therefore, under the head of loss of earnings, the petitioner is 6 MVOP 223/2017 entitled for a sum of Rs. 5,000/- as compensation under the head of loss of earnings.

12. In the petition, the petitioner claimed a sum of Rs.30,000/- under the head of medical expenditure, extra nourishment, tonics, damage to clothing and private attendant and the petitioner has filed Ex.A.6-

Bunch of Medical Bills bills totalling to Rs.19,025/- but she has not filed corresponding prescriptions. The Doctor who treated her is also not examined and in the absence of any such evidence regarding the actual medical expenditure borne out by petitioner, but the fact remains as seen from Exs.A.4 and A.5. The petitioner developed eye sight problem due to injury to her eye. The petitioner also received fracture injury on her left fore arm and that she took treatment and after treatment. She must have taken follow up treatment. Keeping in view the medical expenditure during that period, I am awarding a sum of Rs.20,000/- under the head of medical expenditure, extra nourishment and private attendant.

13. In the petition, the petitioner claims a sum of Rs.25,000/- under the head of pain and suffering. Here as per Exs.A.4 and A.5 the petitioner developed eye sight problem due to injury to her eye and she also received fracture injury on her left fore arm As such, I am awarding an amount of Rs.25,000/- under the head of pain and sufferings.

14. In the petition, the petitioner claimed a sum of Rs.30,000/- under the head of continuing or permanent disability the petitioner did not file any disability certificate. In the absence of any disability certificate or the evidence of the Doctor, who treated petitioner or some 7 MVOP 223/2017 other person expert in that filed, I am not inclined to grant any compensation under the head of compensation for continuing and permanent disability.

15. This Tribunal did not observe any abnormality in the movements of the petitioner at the time of recording of the evidence.

16. After considering all the heads, the petitioner is entitled to total compensation of Rs.55,000/- (Rs. Fifty Five Thousand Only)

17. The accident occurred due to negligent driving of R.1-driver of

TSRTC Bus and as such, the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. Point No.2 is answered accordingly.

18. Point No.3: In the result, the petition is allowed in part with proportionate costs by granting the following reliefs:

The petitioner is entitled to a compensation of Rs.55,000/- (Rs.

Fifty Five Thousand Only).

The respondents 1 and 2 are jointly and severally liable to pay compensation.

The petitioner is entitled to interest @ 7.5% per annum from the date of presentation of petition till the date of realization.

The rest of the claim is disallowed without costs.

On deposit the petitioner is entitled to withdraw the entire compensation amount.

8 MVOP 223/2017

The advocate fee is fixed at Rs.1000/-.

Time granted for deposit of the amount is 30 days from the date of this order.

(Typed to my dictation, corrected and pronounced by me in the Open Court on this the 28th day of November, 2018)

Sd/-

FAC. CHAIRMAN,

MACT-CUM-I-ADDL. DISTRICT JUDGE,

WARANGAL

APPENDIX OF EVIDENCE

Witnesses Examined

For Petitioner: For Respondents:

PW1 –Edla Venkatamma. -None-

EXHIBITS MARKED

For Petitioners :

Ex.A1 – Certified Copy of FIR and complaint 10.5.2016. Ex.A2 – C.C.of Charge Sheet. Ex.A3 – Crime Details Form dt.10.5.2016. Ex.A4: C.C. of Medico Legal Certificate. Ex.A5: Certified copy of Radiologist Report. Ex.A6; Bunch of Medical Bills (32) Ex.A7: Original Discharge card dt. 9.5.2016. Ex.A8: Orginal Discharge card dt. 22.10.2016.

For Respondents :

-Nil-

Sd/-

FAC. CHAIRMAN,

MACT-CUM-I-ADDL. DISTRICT JUDGE,

WARANGAL.

9 MVOP 223/2017