Smt. D. Soujanya

O.S.NO. 195/20211Fair Judgment

PJCJC/BML Dated :05.05.2026

APVS050009482021

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (JUNIOR DIVISION) :

BHEEMUNIPATNAM

Present: -Smt.D.Soujanya,

Principal Civil Judge (Junior Division), Bheemunipatnam

Tuesday, this the 05th day of May,2026

O.S.No.195/2021

Between:

1. Yavarna Rajeswari, W/o late Yavarna Rama Krishna,

Age 59 years, D.No.20-105/2, Golla Narayanapuram,

Prahladapuram, Visakhapatnam District.

2. Yavarna Triveni, W/o B.Raghu,

Age 34 years, D.No.45-55-1/3,

Akkayyapalem, Visakhapatnam District.

3. Yavarna Lavanya, W/o K.Rajesh,

Age 32 years, D.No.45-55-1/3,

Akkayyapalem, Visakhapatnam District.

4. Yavarna Ganesh, S/o late Yavarna Rama Krishna,

Age 30 years, D.No.20-105/2, Golla Narayanapuram,

Prahladapuram, Visakhapatnam District. ... Plaintiffs

O.S.NO. 195/20212Fair Judgment

PJCJC/BML Dated :05.05.2026

And:

1. Vadlamani Chitti Subrahmanyam, S/o late Narayana Swamy,

Age 55 years, D.No.20-104, Golla Narayanapuram,

Prahladapuram, Visakhapatnam District.

2. Kottapalli Satyanarayana Raju, S/o Sri Kasi Viswanadhara Raju,

Age 62 years, D.No.20-106, Golla Narayanapuram,

Prahladapuram, Visakhapatnam District.

(amended as per the orders in IA.514/2021 dt.14.12.2021)

3. Greater Visakhapatnam Municipal Corporation,

Represented by it’s Commissioner, Visakhapatnam District.

... Defendants

This suit coming on 07.04.2026 for final hearing and disposal

before me in the presence of Sri DVVR.Pratap and Smt. R.Sarada, learned

counsels for the Plaintiffs and of Sri V.Trinadharao, learned counsel for the

Defendants No. 1 and 2 and Sri V.C.R, learned counsel for the defendant no.3 and the matter is having stood over for consideration till this day, this Court made the following:

JUDGMENT

1.This suit is filed by the plaintiffs against the defendants seeking prohibitory injunction restraining the defendants and their henchmen from ever interfering with the peaceful possession and enjoyment of the plaint schedule property of the plaintiffs in any manner and for costs of the suit.

O.S.NO. 195/20213Fair Judgment

PJCJC/BML Dated :05.05.2026

2.The necessary pleadings of both parties to the suit are narrated succinctly, as follows:

For plaintiff:

a)The 1st plaintiff is the wife of the deceased Yavarna Rama

Krishna who died intestate on 5.4.2005 leaving behind him two daughters and one son i.e., plaintiffs No. 2 to 4 and they are the successors of the estate of the deceased Rama Krishna. The plaintiffs no. 2 and 3 are married daughters of the 1st plaintiff and the 3rd plaintiff is residing in USA and as such she executed GPA in faovur of 2nd plaintiff to look after the property affairs of 3rd plaintiff.

b)During the life time of the husband of 1st plaintiff he purchased the plaint schedule vacant land to an extent of 247.3 square yards in survey No.151/1A in patta No.36 in Vepagunta village on 11.4.1989 vide sale deed document No.

3348/1989 for valid sale consideration from his vendors and thereafter he constructed ACC roofed building and in occupation of the same by paying property tax and water tax to the Municipal authorities and he was allotted with D.No.20- 105/2. The deceased husband of 1st plaintiff also paid land regularization charges to Sri Varaha Lakshmi Nasrasimha Swamy Devasthanam and the said

Devasthanam issued LR certificate vide it’s LRC No.59/2000 on 20.01.2004.

c)After demise of the husband of 1st plaintiff, the plaintiffs no. 2 and 3 intended to develop their father’s property and accordingly they applied for plan

before the 3rd defendant’s authority for making house construction i.e., stilt, ground,

first and second floors residential building in the place of existing ACC sheet roof building and accordingly the 3rd defendant’s authority issued building permit order andcertifiedtheapprovedplanvideBuildingPermit

No.1086/3238/B/Z-VI/EGE/2019 to the 1st plaintiff.

O.S.NO. 195/20214Fair Judgment

PJCJC/BML Dated :05.05.2026

d)The 1st defendant is the southern side neighbour of the plaintiff and the 2nd defendant is northern side neighbour of the plaintiffs building and the defendants no.1 and 2 by colluding with each other made false complaints before the 3rd defendant authority and through the authority they are trying to stop the construction work and due to false complaints of the defendants no.1 and 2, the 3rd defendant authority also trying to interfere with the construction activity of the plaintiffs. The plaintiff reported the same at Pendurty police station, but the defendants no. 1& 2 not stopped their illegal activities. Hence, the suit.

Summons were served to the defendants No. 1 to 3 and they appeared

before the court. Defendant no.2 filed written statement and the same was adopted

by the defendant no.1. Defendant no.3 filed it’s written statement. They denied the averments made in the plaint and contended that:

For defendant Nos. 1 & 2:

a)The plaintiffs are constructing the building without leaving set backs as per the approved plan and causing damage to the property of 1st defendant and as such, the 1st defendant gave complaint to the 3rd defendant authority and after inspection, the 3rd defendant authority gave notice to the plaintiffs to rectify the violations, but the plaintiffs did not respond to the said notice issued by 3rd defendant authority and then it had issued another notice to the plaintiff to stop further construction as the same is not being constructed as per the approved plan.

b)The defendants no. 1 & 2 never interfered with the plaintiffs possession over the plaint schedule property and they have given complaint before 3rd defendant authority since the plaintiffs violated the plan issued by 3rd defendant authority and is constructing the building illegally without leaving set backs and

O.S.NO. 195/20215Fair Judgment

PJCJC/BML Dated :05.05.2026 causing nuisance and damage to the neighbouring properties of these defendants.

The suit for mere injunction without challenging the notice of the 3rd defendant authority to stop the constructions is not maintainable and hence prays to dismiss the suit.

For Defendant No.3:

The plaintiffs had constructed with deviations from the approved building plan and then notice was served with regard to the said illegal construction and they stopped the said construction. Since the plaintiffs admitted that no notice issued to the defendant corporation prior to filing of the suit as required under section 685 of

HMC Act, 1955 which is mandatory, the suit itself is not maintainable under Law for want of statutory notice. Hence, prays to dismiss the suit.

3. As both parties did not arrive at any settlement under section 89 of

Code of Civil Procedure, on the basis of pleadings of both parties, the following issues have been settled for trial.

Issue No.1: Whether the plaintiffs are in lawful possession and enjoyment of the plaint schedule property by the date of institute of the suit or not?

Issue No.2: Whether the plaintiffs are entitled for the relief of permanent injunction against the defendants as prayed for or not?

Issue No.3: To what relief ?

O.S.NO. 195/20216Fair Judgment

PJCJC/BML Dated :05.05.2026

4.During trial the 1st plaintiff herself is examined as PW.1 and got exhibited EXs.A.1 to A.16 on their behalf. The cross examination of PW.1 is recorded Nil as there was no representation from the defendants No. 1 to 3. Since there was no representation for defendants No. 1 to 3, the defendants side evidence is closed.

5. Heard arguments of the learned counsel for the plaintiffs. The defendants did not choose to adduce their arguments inspite of several adjournments given by this court. As this is an identified matter, the arguments on behalf of the defendants no. 1 to 3 are treated as nil and the matter is posted for judgment.

6. Issue No.1 and 2 :

In view of the contentions put forth by the plaintiff and the defendant as to their respective pleadings, now the issues are taken up for discussion in order to find out whether the plaintiff established the suit claim.

The specific contention of the plaintiffs are that during the life time of the husband of 1st plaintiff he purchased the plaint schedule vacant land to an extent of 247.3 square yards in survey No.151/1A in patta No.36 in Vepagunta village on 11.4.1989 vide sale deed document No. 3348/1989 and he constructed

ACC roofed building and used to pay property tax and water tax to the Municipal authorities and he was allotted with D.No.20-105/2. The deceased husband of 1st plaintiff also paid land regularization charges to Sri Varaha Lakshmi Nasrasimha

Swamy Devasthanam and the said Devasthanam issued LR certificate vide it’s

LRC No.59/2000 on 20.01.2004. After demise of the husband of 1st plaintiff, the plaintiffs no. 2 and 3 intended to develop their father’s property and accordingly they applied for plan before the 3rd defendant’s authority for making house construction i.e., stilt, ground, first and second floors residential building in the place

O.S.NO. 195/20217Fair Judgment

PJCJC/BML Dated :05.05.2026 of existing ACC sheet roof building and accordingly the 3rd defendant’s authority issued building permit order and certified the approved plan vide Building Permit

No.1086/3238/B/Z-VI/EGE/2019 to the 1st plaintiff. The defendants no. 1 & 2 being the southern and northern neighbours of the plaintiffs building by colluding with each other made false complaints before the 3rd defendant authority and through the authority they are trying to stop the construction work.

It is the specific contention of the defendants No. 1 & 2 that the plaintiffs are constructing the building illegally without leaving set backs and causing nuisance and damage to the neighbouring properties of these defendants. The defendants no. 1 & 2 never interfered with the plaintiffs possession over the plaint schedule property and they have given complaint before 3rd defendant authority since the plaintiffs violated the plan issued by 3rd defendant authority. The suit for mere injunction without challenging the notice of the 3rd defendant authority to stop the constructions is not maintainable.

It is the specific contention of the defendant no.3 authority that it is noticed that the plaintiffs had constructed the building with deviations while inspected with the approved building plan and then notice was served with regard to the said illegal construction and stopped the said construction. The suit itself is not main table under Law for want of statutory notice. Hence, prays to dismiss the suit.

Discussion:

7.It is settled principle that a suit for permanent injunction, the burden is on the plaintiffs to establish that they are in the possession and enjoyment over the plaint schedule property as on the date of filing of the suit by adducing cogent and convincing evidence. It is not only suffice, the plaintiffs have to further establish that

O.S.NO. 195/20218Fair Judgment

PJCJC/BML Dated :05.05.2026 the defendants are interfering with their peaceful possession and enjoyment of the plaint schedule property without having any right or title.

8.From the oral and documentary evidence placed on the record, it is manifest that the plaintiffs are claiming their possession over the plaint schedule property by virtue of Exs. A.1 to A.16. Ex.A.1 is the attested copy of the death certificate of the husband of the 1st plaintiff which discloses that the husband of the 1st plaintiff died on 9.4.2006. On perusal of Ex.A.3, it is noticed that the plaint schedule property was purchased by the husband of the 1st plaintiff under registered sale deed dt.11.4.1989. Ex.A.2 is the original GPA executed by 3rd plaintiff in favour of 2nd plaintiff.

9.It is the contention of the defendants no.1 & 2 that the plaintiffs are constructing the building illegally without leaving set backs and causing nuisance and damage to the neighbouring properties of these defendants and they violated the building plan. However, it is clear that the defendants no. 1 & 2 did not choose to cross examine PW.1 to disprove the contention of the plaintiffs.

9.Regarding the claim against the defendants No. 1 & 2, to discredit the testimony of PW.1, coupled with Exs.A.1 to A.16, the defendants did not produce any scrap of document and did not choose to cross examine PW.1. If at all, the plaintiffs are constructing the building illegally without leaving set backs and causing nuisance and damage to the neighbouring properties of the defendants no. 1 & 2 and since the plaintiffs violated the plan issued by 3rd defendant authority, they have given complaint before the 3rd defendant authority, they would have entered into the witness box and would have contested the matter. But, no such exercise was made by the defendants No.1 & 2.

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PJCJC/BML Dated :05.05.2026

10.Further the defendant no.3 authority contended in its written statement that it is noticed while inspection that the plaintiffs had constructed the building with deviations from the approved building plan and then it served notice on the plaintiffs and stopped the said construction, but to substantiate the same, defendant no.3 authority did not venture to get the documents exhibited. However, the defendant no.3 did not cross examine Pw.1 and did not venture to adduce any evidence on its behalf.

11.If at all, the plaintiffs deviated the approved plan issued by 3rd defendant authority and causing nuisance to the defendants would have adduced cogent evidence and would have cross examined PW.1 to substantiate their plea as mentioned in the written statements. But, surprisingly, the defendants did not venture to cross examine PW.1 and also did not file any evidence in-support of their contention. Since no evidence has been adduced by the defendants to prove their contention, it can be held that the case of the plaintiffs remained unchallenged.

On perusal of the record, it is crystal clear that the defendants did not adduce any evidence and did not adduce arguments on their behalf inspite of several opportunities granted by this court.

12.In a case between Vidhyadhar Vs. Manikrao reported in AIR 1999

SC 1441 wherein it was held by the Hon’ble Supreme Court that:

“ a presumption can be drawn against the parties who did not enter into the witness box that what he pleas is not correct. When a party to a suit does not appear into the witness box and state his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case taken by him would not correct”.

O.S.NO. 195/202110Fair Judgment

PJCJC/BML Dated :05.05.2026

13.Except pleadings by way of written statements, the defendants did not venture to disprove the case of the plaintiffs and they did not appear into the witness box to fortify their contentions. Further, the defendants did not place any substantial material to prove their contention. Law is well settled that having not entered into the witness box and having not presented themselves for cross examination, an adverse presumption has to be drawn against them on the basis of the law laid down in the illustration (g) of Section 114 of the Indian Evidence

Act.

14.EXs. A.4 to A.6 discloses that the plaintiffs are in possession and enjoyment of the plaint schedule property. Ex.A.8 is the downloaded copy of the building permit and Ex.A.15 is the original tax pass book issued by the 3rd defendant in favour of 1st plaintiff. Admittedly in the present case also the defendants failed to enter into the witness box to state their case in order to adduce any evidence on its behalf. In such a case, this court cannot believe the version of the defendants that the plaintiffs are constructing the building illegally without leaving set backs by violating the plan issued by the 3rd defendant authority and causing damage and nuisance to the neighbouring properties of the defendants no.

1 & 2. The only filing of the written statements is no useful to the case of the defendants.

15.The testimony of PW.1 coupled with Exs.A.1 to A.16, discloses that the plaintiffs being the legal heirs, the suit schedule property was devolved upon them from the deceased husband of 1st plaintiff. It is clear from the evidence of PW.1 coupled with Exs. A.1 to A.16 that the plaintiffs could establish that prima facie is in their favour and balance of convenience is in their favour and that if injunction is not granted in their favour, they would suffer irreparable loss. More over, the plaintiffs are also established by way of exhibiting Exs. A.1 to A.16 that they are in the

O.S.NO. 195/202111Fair Judgment

PJCJC/BML Dated :05.05.2026 peaceful possession and enjoyment of the plaint schedule property as on the date of the filing of the suit and as such, the plaintiffs successfully established their case by way of exhibiting Exs. A.1 to A.16.

16.In the light of the foregoing discussion under the issues No.1 and 2 and conclusion arrived thereunder, the plaintiffs are entitled for permanent injunction.

Accordingly, these issues are answered in favour of the plaintiffs and against the defendants.

17.ISSUE NO.3: In view of the conclusion arrived under Issues

No.1 and 2, the plaintiffs are entitled for the permanent injunction restraining the defendants and their henchmen from ever interfering with the peaceful possession and enjoyment of the plaint schedule property of the plaintiffs in any manner.

18.In the result, the suit is decreed with costs in favour of the plaintiffs and against the defendants by restraining the defendants and their henchmen from ever interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property.

Typed by Stenographer on my dictation, corrected, signed and pronounced by me in the open Court on this the 5th day of May,2026.

Sd/-D.Soujanya

Principal Civil Judge (Junior Division)

Bheemunipatnam. Appendix of Evidence

Witnesses Examined :

For the Plaintiffs :

PW.1 : Yavarna Rajeswari

For the Defendants : Nil

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PJCJC/BML Dated :05.05.2026

Exhibits Marked :

For the Plaintiffs :

Ex.A1:Attested copy of death certificate of husband of 1st plaintiff by name

Y.Rama Krishna dt.9.4.2006.

Ex.A2:Original GPA executed by 3rd plaintiff in favour of 2nd plaintiff dt.

12.5.2014.

Ex.A3:Original registered sale deed of husband of 1st plaintiff dt. 11.4.1989

Ex.A4:Original house tax pass book assessed in the name of 1st plaintiff for the year 2007.

Ex.A5:Original house tax receipt paid by 1st plaintiff dt. 7.4.2021.

Ex.A6:Original electrical consumption bills, dt.24.5.2021.

Ex.A7:Original Land Regularization certificate vide its LRC No. 59/2000 issued by Sri Varaha Lakshmi Narasimha Swamy Devasthanam in favour of husband of 1st plaintiff dt. 20.01.2004.

Ex.A8:Attested net download copy of building permit order issued by GVMC in favour of 1st plaintiff dt. 13.11.2019.

Ex.A9:Original building approved plan dt.1.11.2019

Ex.A.10:Original photographs (4 in number) with pen drive dt.20.06.2021

Ex.A.11:Attested copy of medical records of 1st plaintiff dt.3.5.2021

Ex.A.12:Original medical photographs of 1st plaintiff

Ex.A.13:Attested copy of legal heir certificate for the year 2005

Ex.A.14:Attested copy of death certificate of Yavarna Narayanamma dt.

5.11.2012

Ex.A.15:Original tax pass book issued by the 3rd defendant in favour of 1st plaintiff.

Ex.A.16:Original electrical consumption bills.

O.S.NO. 195/202113Fair Judgment

PJCJC/BML Dated :05.05.2026

For the Defendants : Nil

Sd/-D.Soujanya

Principal Civil Judge (Junior Division)

Bheemunipatnam.

Date of presentation:26.06.2021Date of filing:20.07.2021

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (JUNIOR DIVISION) :

BHEEMUNIPATNAM

Present: -Smt.D.Soujanya,

Principal Civil Judge (Junior Division), Bheemunipatnam

Tuesday, this the 05th day of May,2026

O.S.No.195/2021

Between:

1. Yavarna Rajeswari, W/o late Yavarna Rama Krishna,

Age 59 years, D.No.20-105/2, Golla Narayanapuram,

Prahladapuram, Visakhapatnam District.

2. Yavarna Triveni, W/o B.Raghu,

Age 34 years, D.No.45-55-1/3,

Akkayyapalem, Visakhapatnam District.

3. Yavarna Lavanya, W/o K.Rajesh,

Age 32 years, D.No.45-55-1/3,

Akkayyapalem, Visakhapatnam District.

O.S.NO. 195/202114Fair Judgment

PJCJC/BML Dated :05.05.2026

4. Yavarna Ganesh, S/o late Yavarna Rama Krishna,

Age 30 years, D.No.20-105/2, Golla Narayanapuram,

Prahladapuram, Visakhapatnam District. ... Plaintiffs

And:

1. Vadlamani Chitti Subrahmanyam, S/o late Narayana Swamy,

Age 55 years, D.No.20-104, Golla Narayanapuram,

Prahladapuram, Visakhapatnam District.

2. Kottapalli Satyanarayana Raju, S/o Sri Kasi Viswanadhara Raju,

Age 62 years, D.No.20-106, Golla Narayanapuram,

Prahladapuram, Visakhapatnam District.

(amended as per the orders in IA.514/2021 dt.14.12.2021)

3. Greater Visakhapatnam Municipal Corporation,

Represented by it’s Commissioner, Visakhapatnam District.

... Defendants

This suit is filed by the plaintiffs against the defendants seeking prohibitory injunction restraining the defendants and their henchmen from ever interfering with the peaceful possession and enjoyment of the plaint schedule property of the plaintiffs in any manner and for costs of the suit.

Value of the suit for the purpose of Court fee and jurisdiction is

Rs.3,00,000/- and a Court fee of Rs.5,426/- is paid U/Sec.26 (c) Sch-I, Art.I(b) & (c) of A.P.C.F. and S.V.Act.

This suit coming on 07.04.2026 for final hearing and disposal before me in the presence of Sri DVVR.Pratap and Smt. R.Sarada, learned counsels for the

O.S.NO. 195/202115Fair Judgment

PJCJC/BML Dated :05.05.2026

Plaintiffs and of Sri V.Trinadharao, learned counsel for the Defendants No. 1 and 2 and Sri V.C.R, learned counsel for the defendant no.3 and the matter is having stood over for consideration till this day, this Court doth order and passed the following :

D E C R E E

It is hereby ordered and decreed that -

i)the suit be and the same is hereby allowed in favour of the plaintiffs and against the defendants ; ii)the defendants and their henchmen be and are hereby restrained from interfering with the peaceful possession and enjoyment of the plaintiffs over the plaint schedule property; and iii)the defendants do pay an amount of Rs.20,000/- to the plaintiff towards costs of the suit.

(A copy of the suit schedule is herewith attached)

Given under my hand and the seal of this Court, this the 05th day of May,2026.

Principal Civil Judge (Junior Division)

Bheemunipatnam.

MEMORANDUM OF COSTS

For Plaintiff For Defendant

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PJCJC/BML Dated :05.05.2026

Vakalat2.00– not filed --

Stamp on plaint5426.00

Process55.00

Petition stamps50.00

Advocate fee10700.00

Junior Advocate fee3567.00

Type charges200.00

Costs allowed20000.00

Principal Civil Judge (Junior Division)

Bheemunipatnam.

CC No.898/2020 1 Fair Judgment

APVS050019702020 Dated.1.05.2025

CALENDAR AND JUDGMENT

IN THE COURT OF XV ADDL. JUDICIAL FIRST CLASS MAGISTRATE ::

BHEEMUNIPATNAM

Date of offence : 30.11.2019

Date of Report by Complainant : 01.12.2019

Date of apprehension of accused : Section 41-A Cr.P.C notice

Date of accused released on bail : Does not arise

Date of commencement of trial : 22.07.2024

Date of closure of trial : 23.04.2025

Date of sentence or order of court : 01.05.2025

Explanation for delay and remarks :Non production of witnesses by the police

Calendar and Case number : 898/2020

Crime Number : 254/2019

Name and address of the complainant : State Represented by Sub Inspector of Police, Anandapuram PS, Visakhapatnam City.

Name and address of the accused :

Chandaka Pydisetty, s/o Pentayya, 36 years, T.Kapu caste, Silapalem village, Anandapuram Mandal, Visakhapatnam city.

Section of Law : Section 304-A & 337 of The Indian Penal Code, 1860 and Section 122 of M.V. Act.

Finding of the Court : The accused is found not guilty for the offence underSection 304-A, 337 IPC and under Section 122 of M.V. Act and accordingly he is acquitted under Section 255(1) of Cr.P.C.,

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APVS050019702020 Dated.1.05.2025

Sentence or order of the Court:

The accused is acquitted under section 255 (1) of The Criminal Procedure Code, 1973 for the offence punishable under section 304-A of The Indian Penal Code, 1860.

XV Addl. Judicial First Class Magistrate,

Bheemunipatnam.

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APVS050019702020 Dated.1.05.2025

IN THE COURT OF XV ADDL. JUDICIAL FIRST CLASS MAGISTRATE,

BHEEMUNIPATNAM

Present:- D.Soujanya,

XV Addl. Judicial First Class Magistrate, Bheemunipatnam. Thursday, this the 1st day of May, 2025

C.C. 898/2020

Between:

The State Represented by the Sub Inspector of Police, Anandapuram PS,

Visakhapatnam City. .... Complainant

And :

Chandaka Pydisetty, s/o Pentayya, 36 years, T.Kapu caste, Silapalem village, Anandapuram Mandal, Visakhapatnam city. .… Accused

This case is coming before me for final hearing on 25.04.2025 in the presence of learned Assistant Public Prosecutor for the prosecution and Sri. P. Sunder Singh, learned counsel for the accused having heard and stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Sub Inspector of Police, Anandapuram Police Station filed charge sheet against the above named accused in Crime No.254/2019 for the offence punishable under section 304-A of The Indian Penal Code, 1860 and Section 122 of M.V. Act.

2. The brief facts of the charge sheet are--

On 30.11.2019 the cousin of PW1 by name i.e., PW2 Kandi

Sankararao proceeding on his motor cycle bearing No.AP 35 Aq 5679 towards Parawada from Vizianagaram to attend his duty and on the mid-

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APVS050019702020 Dated.1.05.2025 way when he reached near Neelakundeelu junction he picked up one

Kanaka Raju (here-in-after referred as deceased) as pillion rider and when they both reached Sarttaruvu junction, Anandapuram mandal,

Visakhapatnam the accused being the driver of the lorry bearing NoAP 31

TP 4299 drove the same in a rash and negligent manner and dashed his motor cycle without blowing horn from back side. As a result, both PW2 and pillion rider i.e., the deceased fell on the road and the rider received cut injury on his left eye, contusion and abrasion injuries and the pillion rider received injury on his head and immediately they shifted to KGH for treatment and the pillion rider was in unconscious state. Basing on the statement of PW1 a case in Cr.No.354/2019 under Section 338, 337 IPC was registered by PW11 and investigated into.

During the course of investigation, PW11 visited the scene of offence, examined the scene in the presence of mediators, prepared scene observation report, prepared rough sketch of scene of offence, seized driving licence of accused and other relevant documents and as the accused absconded from the scene of offence, he shifted the crime vehicle to the police station. Later, PW11 issued Section 41-A Cr.P.C., notice on the accused and in the meantime on 9.12.2019 PW9-N. Ganesh, SI received death intimation of deceased Kanaka Raju and as such he altered the

Section of law from Section 338, 337 IPC to Section 304-A abnd 338 IPC and took up investigation. PW9 held inquest over the dead body of the deceased in the presence of inquest panchayatdars and got inspected the crime vehicle through PW7 MV Inspector. Later PW8 conducted postmortem over the dead body of the deceased and issued postmortem certificate. PW10 issued wound certificate of PW2. As the accused wrongly parked the crime vehicle on the road without signal light during night time,

PW11 added Section 122 of M.V. Act and filed charge sheet against the

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APVS050019702020 Dated.1.05.2025 accused for the offence under Section 304-A, 337 IPC and Section 122 of

M.V. Act.

3. This case was taken on file by my learned Predecessor for the offence punishable U/Sec.304-A, 337 of IPC and Section 122 of M.V. Act against the Accused.

04. On appearance of the accused, copies of documents were furnished to him as required U/Sec.207 of Cr.P.C.

05. Accused was examined U/Sec.251 of Cr.P.C., and the accusations of the charge sheet are read over and explained to the accused in Telugu for which he denied the accusations in the charge sheet, pleaded not guilty, and claimed to be tried.

06.In support of its case, the prosecution has examined P.Ws 1 to 11 and got marked Exs.P1 to P.11

07.After completion of the prosecution evidence, the accused was examined U/Sec.313 Cr.P.C and the incriminating evidence of the prosecution witnesses is read over and explained to him in Telugu and he denied the said evidence and claimed the same to be false and did not adduce any evidence on his behalf.

08.Heard the arguments of both sides. Perused the material on record.

9.Now the point for consideration is:

Whether the prosecution has proved the guilty of the accused

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APVS050019702020 Dated.1.05.2025 for the offence punishable under section 304-A, 337 of the Indian Penal

Code, 1860 and 122 of M.V. Act beyond all reasonable doubt or not?

10. Point :

The learned Assistant public prosecutor advanced the arguments by submitting that the evidence of the prosecution witnesses establishes that the accused parked the crime vehicle without giving any signals and without taking proper precautions and that the postmortem certificate and the inquest report establishes that the deceased died due to road traffic accident. It is further submitted that P.W.2 sustained injuries on account of the negligent act of the accused and argued that the prosecution proved the case against the accused beyond all reasonable doubt and prayed to convict the accused.

11.On the other hand, the learned defence counsel advanced the arguments and submitted that there are many discrepancies in the evidence of the prosecution witnesses and submitted that the evidence of

PW2 reveals that the scene of offence is a busy area and that as the crime vehicle was parked beside the road, and the driver of the lorry was having food inside the cabin of the lorry and the lights are on in the cabin and without proper precautions the deceased and P.W.2 proceeded on motor bike without observing the crime vehicle. It is further argued that the crime vehicle was parked at the edge of the left side of the road and that there is no obstruction for the vehicles proceeding on the road and the deceased proceeded on a two wheeler without noticing the crime vehicle. It is submitted that there are many contradictions in the evidence of prosecution witnesses and that the prosecution could not prove the case beyond

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APVS050019702020 Dated.1.05.2025 reasonable doubt and prayed to acquit the accused.

12. In order to prove the guilt of the accused, the prosecution examined P.Ws 1 to 11 and got marked exhibits P.1 to P.11 documents.

P.W.1 is the de-facto complainant and relative of the deceased, P.W.2 is the injured and eye witness. PW3 to P.W5 are the corroborative witnesses.

PW6 is the inquest panchayatdar. PW7 is the M.V. Inspector. PW8 is the doctor who conducted postmortem, P.W.9 is the mediator to the scene observation report. PW10 is the doctor who issued wound certificate of

PW2 and P.W.11 is the Investigating Officer in this case.

13. What is required to be proved by the prosecution in the case of road traffic accident causing death or injuries to any person is that the accident so caused which led to the death of the deceased or injuries to the injured is the proximate result of rash or negligent driving of the driver of the crime vehicle.

14. In order to sustain the accusation against the accused for the offence under section 304-A of Indian Penal Code, the prosecution is expected to prove the following three points:

1) The death of the deceased.

2) That the accused is the driver of the crime vehicle at the relevant point of time.

3) The incident occurred due to the rash and negligent act of the driver of the crime vehicle.

15.In this context P.W.1 who is the defacto complainant and the cousin brother of the injured, testified that on 29.11.2019 his cousin brother

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APVS050019702020 Dated.1.05.2025 by name Shankararao went to Sarikagundalapeta village to attend a function, on the next day he received a phone call and was informed that his cousin gave lift on his motor bike to another person and they dashed a lorry which was stationed beside the road without any signals at

Neelakundeelu junction. His cousin brother was admitted at K.G.H.

Visakhapatnam and after three days he came to know that the other person died.

PW2 is the injured and eye witness, he stated that on 28.11.2019 he went to Vizianagaram and on the next day while he was returning from Vizianagaram, one person asked him to give lift, he offered the lift on his motor bikeand while they were proceeding on Simhachalam road they dashed one lorry which was stationed beside the road at 8.30 p.m., He along with deceased sustained injuries. Later he came to know that Kanakaraju died while taking treatment. The driver of the lorry took his mobile and made a phone call to his relatives. He identified the accused.

He stated that the accident took place as the lorry was stationed beside the road without taking precautions and without any indications. During his cross examination he stated that the vehicles frequently proceed on the scene of offence road to reach Simhachalam. On the date of offence it was dark. He admitted that he stated before police that as it was dark and he was not able to see properly and dashed the stationed lorry. He denied the other suggestions posed by the learned defence counsel.

PW3 is the brother of the deceased. He stated that he was informed about the accident and his brother died on 8.12.2019 while taking treatment. He gave report to the police after the death of his brother.

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APVS050019702020 Dated.1.05.2025

P.W.4 and P.W.5 are the corroborative witnesses, they stated that the crime vehicle was parked beside the road and two persons proceeded on a two wheeler and dashed the lorry, they were shifted to hospital.

P.W.6 is the Inquest mediator. He stated that he attended the inquest that was conducted over the body of the deceased Kanaka Raju at

KGH, Visakhapatnam. He opined that the deceased died due to road traffic accident.

P.W.7 is the M.V. Inspector who testified that he inspected the crime vehicle in the premises of Anandapuram P.S., and issued the M.V.

Inspector Report.

P.W.8 is the doctor who conducted postmortem over the dead body of deceased and issued Ex.P.5.

P.W,.9 is the mediator to the scene observation report, he stated that the police observed the scene of offence in his presence and prepared the scene observation report. Ex.P.6 is the scene observation report.

P.W.10 is the doctor who examined P.W.2 and issued Ex.P.7.

P.W.11 is the Investigating Officer whose evidence discloses that the case was registered by him basing on the MLC statement of PW1.

He examined the witnesses and recorded their statements. He prepared rough sketch and scene observation report, he conducted inquest, issued

Section 41-A Cr.P.C notice to the accused. He altered the Section of law from Section 337 IPC to Section 304-A IPC. He issued requisition to M.V.

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APVS050019702020 Dated.1.05.2025

Inspector to inspect the crime vehicle and received the P.M. Report, M.V.

Inspector report and after completing the investigation and after completing the investigation and he filed the charge sheet before this Court.

During his cross examination he stated that he did not obtain the photographs of the crime vehicle which was parked. He stated that the scene of offence is a single road. He did not issue any requisition to M.V.

Inspector, Two wheeler. Generally mercury stickers will be affixed on the back side of the vehicles and they will reflect the lighting. He denied the other suggestions posed by the learned counsel for accused.

DISCUSSION:

16. As per the evidence of P.Ws.1 and 2, it is clear that an accident took place near Neelakundeelu junction. Anandapuram mandal.

PW1 was informed about the accident and he visited the scene of offence.

As seen from the evidence of the prosecution witnesses, it is clear that

P.Ws.1 and 2 deposed about the manner of accident and about the death of deceased and with regard to sustaining of injuries by PW2. As PW1 is the hear-say witness, his evidence can be considered to the extent of the occurring of the accident. Therefore, it can be held from the evidence of

PW1 that his cousin (PW2) sustained injuries and that the deceased

Kanaka Raju died due to road traffic accident.

17.No doubt, the deceased Kanaka Raju died in the road accident which is evident from exhibit P.3(inquest report) and Ex.P.5 (postmortem report), but it is also equally important for the prosecution to place all the positive material that the accident took place only on account of the rash and negligent act of the accused. As PW2 is the sole eye witness to the

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APVS050019702020 Dated.1.05.2025 incident, his evidence has to be carefully scrutinized. As seen from the evidence of PW2 it is noticed that he categorically stated about the manner of accident and he also identified the accused in the open Court.

18.It is the argument of the learned defence counsel that there major contradictions in the evidence of prosecution witnesses and submitted that PW2 proceeded on the two wheeler without observing the crime vehicle which was parked beside the road and that the accident happened due to the negligent act of PW2. As seen from the rough sketch it is noticed that the crime vehicle was parked at the edge of the road and further the evidence of the Investigating Officer also discloses that the crime vehicle was parked beside the road. It is not the contention of the prosecution that the crime vehicle was parked in a no parking area.

19.It is argued by the learned defence counsel that the driver of the lorry and cleaner of the lorry were having food inside the cabin of lorry and the lights of the cabin were on and PW2 without observing the lorry proceeded on a two wheeler and dashed the lorry.

20.As per Ex.P.1 the statement of PW1 the lorry was parked beside the road near Satteruvu junction, at that time PW2 drove the two wheeler in a rash and negligent manner without blowing horn, as a result

PW2 and the deceased fell from the motor bike and sustained injuries.

Totally contrary to this, Section 161 Cr.P.c., statement of the witnesses reveals that the crime vehicle was parked beside the road and that PW2 dashed the crime vehicle as a result the accident happened. Therefore, it can be held that the contents of Ex.P.1 are totally different from the contents of 161 Cr.P.C., statement of witnesses with regard to the manner

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APVS050019702020 Dated.1.05.2025 of accident. As the above discussed discrepancy is major in nature as it is related to the manner of occurring of the accident itself, it can be held that there is no clarity in the case of prosecution itself.

21. Apart from this, the contents of the charge sheet reveals that on the date of accident the driver of the lorry drove the lorry in a rash and negligent manner and dashed the two wheeler from its back side, without blowing horn the accident took place. The manner of accident as mentioned in Ex.P.1, the charge sheet, the Sec.161 Cr.P.C., statement of witnesses is of different versions, it can be held that the case of the prosecution itself is doubtful.

22.As per section 134 of Indian Evidence Act, no particular number of witnesses are required for the proof of any fact. It is settled Law that conviction can be based even on the evidence of solitary eye witness, but at the same time such a course can be adopted only if the evidence entered by such a witness is credible, reliable, in tune with the case of the prosecution and inspires implicit confidence. On perusal of the cross examination of PW2, it is noticed that the scene of offence is a busy road and the vehicles frequently proceed on the road to reach Simhachalam, even as per the case of the prosecution if the crime vehicle was parked beside the road, the lights of the two wheeler will be on and there will be every possibility for the rider of two wheeler to observe the lorry. Further , as the driver and the cleaner of the lorry were inside the cabin of lorry and there is every chance for the lights to be on in the cabin of lorry, it is the duty of PW2 to observe the vehicles parked by the side of the road and to proceed on the road. More over, as the vehicles are frequently moving on the road it can be held that if at all the crime vehicle was parked by the side

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APVS050019702020 Dated.1.05.2025 of the road, there will be no hinderance for the vehicles to move freely on the road. Therefore, it can be considered that the crime vehile was parked on the left edge of the road and that the accused did not commit any negligent act.

23. Thus, it can be held that though the prosecution placed evidence on record that the accused was the driver of the crime vehicle at the relevant point of time but at the same time the prosecution is expected to prove beyond all reasonable doubt that the accident occurred on account of the rash and negligent act fo the accused.

24. On the conjoint perusal of the evidence on record, and in view of the foregoing discussion an inescapable conclusion can be arrived at that the prosecution is not successful in bringing home the guilt of the accused for the accusation leveled against him under sections 304-A of

IPC beyond all reasonable doubt, hence the accused is entitled for benefit of doubt.

25. In the result, the accused is found not guilty for the offence under sections 304-A, 337 of Indian Penal Code and under Section 122 of M.V.

Act. Accordingly, he is acquitted under Section 255(1) of Criminal

Procedure Code. The accused is directed to execute bond for Rs. 10,000/- (Rupees ten thousand only) under Section 437-A Criminal Procedure Code to appear before the Appellate Court, if any appeal is preferred.

Typed by my stenographer on my dictation, corrected, signed and

pronounced by me in the open court on this the 1st day of May, 2025.

XV Addl. Judicial First Class Magistrate, Bheemunipatnam

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APVS050019702020 Dated.1.05.2025

Appendix of Evidence

Witnesses Examined

For prosecution :

P.W.1 :Sarika Gowri

P.W.2:Kandi Shankara Rao

PW.3:I. Prasad

PW.4:K. Venkatarao

PW.5:B. Venkanna

PW.6:U. Sundar Rao,

P.W.7:M. Anil Kumar

P.W.8: Dr.Chandra Sekhar

P.W.9: K. Jagadeesh

P.W.10 Dr.Bhanu Prakash

P.W.11 D. Srinivasarao,

For Defence : Nil

Exhibits marked :

For Prosecution:

Ex.P1: is the statement of PW1 recorded by Police, 1.12.2019, Ex.P.2: is the death intimation Report given by PW3, dt.9.12.2019 Ex.P.3: is the Inquest report, dt. 9.12.2019, Ex.P.4: is the M.V. Inspector report, dt.3.12.2019, Ex.P.5: is the postmortem certificate, dt.12.2019 Ex.P.6: is the scene observation report,1.12.2019 Ex.P.7 is the wound certificate of PW2, dt.5.2.2020, Ex.P.8 is the First Information Report in Cr.No.254 dt.1,12,2019, Ex.P.9 is the rough sketch of scene of offence, Ex.P10 is the section alteration memo dt.9.12.2019 Ex.P.11 CD with two photos

For Defence : Nil

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APVS050019702020 Dated.1.05.2025

Material Objects:

NIL

XV Addl. Judicial First Class Magistrate,

Bheemunipatnam.

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APVS050019702020 Dated.1.05.2025

APVS050015972019 1 Fair Calendar and Judgment

CALENDAR AND JUDGMENT

Calendar case tried by the Court of the XVI Addl. Metropolitan

Magistrate Bheemunipatnam

Date of Offence : Between 11 p.m. on 5.11.21 to 6.00 a.m,. on 6.11.2021 Date of report or Complaint : 06.11.2021 Date of apprehension of accused : 08.11.2021 Date release on bail, if any: In Jail. Date of commencement of trial : 08.11.2024 Close of trial : 11.04.2025 Date of sentence or other order: 28.04.2025 Explanation of delay and remarks : The matter under went several adjournments as prosecution did not produce the witnesses.

Calendar and Judgment in C.C.No.490 of 2022 on the file of the XVI Additional Metropolitan Magistrate, Bheemunipatnam

Complainant: State represented by Sub Inspector of Police, Bheemunipatnam Visakhapatnam city in Crime No.472/2021 u/s.457 or 380 and 411 IPC. ======================================================= Name of the accused, Father/Husband, Aged, Calling, Religion,Village and Mandal.

Yerninti Krishna Babu, s/o China Pydi Naidu, Age: 21 years, R/o Gandayyapalem village, Modavalasa, Vizianagaram District. -------------------------------------------------------------------------------------------------

Offence : Under Sections 457, 380 and 411 IPC.

Finding: The accused is found not guilty for the offence punishable Under Sections 457 and 380 of IPC and the accused is acquitted under Section 248(1) of Cr.P.C. Further, the accused is found guilty for the offence punishable under Section 411 of IPC and accordingly he is convicted U/Sec.248(2) of Cr.P.C., for the said offence

APVS050015972019 2 Fair Calendar and Judgment

Sentence : In view of the facts and circumstances of the case and keeping in view of the submissions made by the accused, the accused is sentenced to undergo Simple imprisonment for a period of One Year for the offence punishable under section 411 of IPC. The remand period of the accused i.e., from 9.11.2021 to 03.1.2022 and from 27.09.2024 to till date shall be given set off under section 428 of Criminal Procedure Code. The accused is apprised about his right to appeal in the Hon’ble

Sessions Court, Visakhapatnam against the calendar and judgment of

this Court. The accused is apprised of his right to legal aid counsel before the Hon’ble Sessions Court, Visakhapatnam. The interim custody orders in respect of M.Os.1 to 8 which were given to PW2-Sesha Saila as per the orders in Crl.M.P.No.2829/2024 dt.27.11.2024 holds good, after expiry of appeal time The free copy of the judgment is served to the accused with acknowledgment.

Sd/- D. Soujanya

XV Addl. Judicial Magistrate of First Class Bheemunipatnam.

//True Copy//

II Addl. Judicial Magistrate of First Class Bheemunipatnam

APVS050015972019 3 Fair Calendar and Judgment

IN THE COURT OF XV ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS AT BHEEMUNIPATNAM

Present:- Smt.D.Soujanya, XV Addl. Judicial Magistrate of First Class Bheemunipatnam Monday, this the 28th day of April, 2025

CALENDAR CASE NO.490/2022

Between:-

State represented by the Sub Inspector of Police, Bheemunipatnam Police Station, Visakhapatnam City. … Complainant. And:- Yerninti Krishna Babu, s/o China Pydi Naidu, Age: 21 years, R/o Gandayyapalem village, Modavalasa, Vizianagaram District. … Accused.

This case is coming before me for final hearing on 23.4.2025 in the presence of Assistant Public Prosecutor for complainant and Sri K.V. Chandra Sekhar Rao, Advocate for the Accused and upon having stood over till this day for consideration, and this Court delivered the following:-

J U D G M E N T

1.The Sub Inspector of Police, Bheemunipatnam Police Station has filed Charge Sheet against the Accused for the offence punishable under Section 457, 380 and 411 IPC in Crime Number 472/2021 of

Bheemunipatnam P.S.,

2. The case of the Prosecution in brief is as follows:

APVS050015972019 4 Fair Calendar and Judgment On 6.11.2021 at 2000 hrs., PW1 came to Police station and presented a report alleging that he is working as Security in-charge at

Oakridge School and on 6.11.2021 at 6.10 hrs., his security supervisor

K.V. Reddy called him and informed that the school boundary wall was in broken condition near Laundry area. Immediately, he went there and checked the surrounding area and found some clothes missing and his boarding staff informed him that her hand bag which had Rs.7,000/- cash was missing and also 2 pairs of students shoes are missing. Later they all came to know that some unknown culprits entered into their school premises and committed theft of cash of Rs.7,000/-, 6-T Shirts containing

Oakridge School Name, Shirts-1, Track pant-1 and 2 pair students shows.

Basing on the above report, LW7- S. Santosh Kumar, SI registered a case in Cr.No.472/2021 for the offence under Section 457, 380 IPC and endorsed the same to PW5 for investigation.

During the course of investigation PW5 visited the scene of offence, prepared rough sketch of the same, examined the witnesses and recorded their statements. Further, on 8.11.2021 PW5 arrested the accused in the presence of mediators and recorded the confession of accused and recovered the stolen property from him and sent him to judicial custody and after completion of entire investigation, LW9 G.

Nagamani, SI filed charge sheet against the accused for the offence under Section 457, 480 and 411 IPC.

3.The case is taken on file against the accused for the offence under sections 457, 380 and 411 IPC.

APVS050015972019 5 Fair Calendar and Judgment

4. The accused is produced from Central Prison, Visakhapatnam and the case copies were furnished to the accused as required under Section 207 of Criminal Procedure Code.

5.The accused is examined examined under Section 239 of Criminal

Procedure Code explaining the substance of the charge sheet contents in

Telugu for which he denied the same and claimed to be tried. Charge under sections 457, 380 or 411 IPC. were framed, read over and explained to the accused in Telugu language.

6.In the course of trial on behalf of the Prosecution, P.Ws 1 to 5 were examined. Exs.P1 to P4 and M.Os.1 to 8 were marked.

7. Upon closure of Prosecution side evidence, Accused was examined U/sec. 313 Cr.PC, during which he denied the incriminating material that appeared against him in the evidence of Prosecution. On enquiry, Accused reported no defence evidence on his behalf.

8. Heard arguments on both sides.

9. Now the point for determination is:

Whether the prosecution established the guilt of accused for the offence punishable under Sections 457, 380 and 411 of Indian Penal Code beyond all reasonable doubt ?

10. POINT:

It is the argument of the learned APP that the accused is involved in many cases, he is habitual offender. It is further submitted that

APVS050015972019 6 Fair Calendar and Judgment from the evidence of prosecution witnesses, it is clinchingly established that the stolen property was recovered from the possession of the accused and that the accused did not furnish any account for the possession of the stolen property. It is submitted that the evidence of mediator is totally corroborating with the evidence of investigating Officer with regard to the recovery of M.Os.1 to 8 from the possession of the accused and prayed to convict the accused.

On the other hand, the learned counsel for the accused argued that there is no direct evidence on record to establish that the accused committed theft of M.Os.1 to 8 and that there are many contradictions in the evidence of prosecution witnesses. It is further submitted that the VRO (Mediator) is a stock mediator and that his evidence cannot be taken into consideration and prayed to acquit the accused.

11.P.W.1 is the de-facto complainant, he stated that he is working as Security In-charge at Oakridge school, Visakhapatnam. ON 6.11.2021 he received phone call and was informed that the compound wall of the school was damaged and they found some clothes of the boarding staff were missing and they noticed one hand bag along with cash of Rs.7,000/-was missing. They searched for the same but could not find, they have report to the police.

P.W.2 is the Principal of the Oakridge school. She stated that on 6.11.2021 at morning hours she woke up and noticed that her hand

APVS050015972019 7 Fair Calendar and Judgment bag was missing. She further found that the door of her quarters of the balcony was opened. Some of the clothes of the hostel mates were missing. She came to know about the recovery of the property.

P.W.3 is the corroborative witness and he also stated in the same lines of P.Ws.1 and 2 and further stated that he verified the CC Tv footages and noticed that one person intruded into the school campus and committed theft. During his cross examination he stated that he cannot identify the person who committed theft as the image of the person was blurred in the CC Tv footages.

P.W.4 is the VRO, who is the mediator. He stated that on 8.11.2021 he went to Tagarapuvalasa junction along with the police, police caught hold of one person and questioned him. He disclosed his name and particulars. The police verified his bag and noticed some clothes, one hand bag and cash of Rs.7,000/-. The said person confessed about the offence. The mediators report was prepared in his presence. He identified the accused.

P.W.5 is the investigating officer whose evidence disclosed that the case was registered by LW7 and he was endorsed to investigate the case. He recorded the confession of the accused and seized the stolen property from the possession of the accused under the cover of mediators report. He stated that the accused was arrested and produced

before the Court for judicial remand and that after completing the

investigation, the charge sheet was filed before this Court by LW9.

APVS050015972019 8 Fair Calendar and Judgment

12.Adverting to the charges under sections 457 and 380 of

Indian Penal Code:

In order to sustain the charges under sections 457 and 380 of IPC, the prosecution has to prove that the accused was caught while committing lurking house trespass or house breaking by night in order to committing of theft. The evidence of P.Ws.1 to 3 who is the de-facto complainant and the corroborative witnesses discloses that theft was committed in the premises of Oakridge International School,

Tagarapuvalasa by unknown offender. It is not their evidence that they witnessed the accused at the time of committing the theft.

13.As contended by the defence counsel, the investigating officer also failed to collect the finger prints or the chance prints at the scene of offences and did not choose to inform about the theft to the finger prints or chance prints experts. More over the investigation officer did not choose to conduct the test identification parade of the accused and Pws.1 to 3 did not identify the accused in the open court. Hence, it can be safely considered that the prosecution could not adduce any direct or indirect evidence on record to establish that the accused committed the offence under sections 457 and 380 of Indian Penal Code. In the present set of facts, it is not the case of the prosecution that the accused was caught while committing the theft of the property therefore it can be safely held that the charges sections 457 and 380 of Indian Penal Code are not sustainable against the accused.

APVS050015972019 9 Fair Calendar and Judgment

14.Adverting the charge under section 411 of Indian Penal

Code:

It is the case of the prosecution that they seized the case property from the possession of the accused under the cover of confession report. P.W.4 is the mediator in whose presence the property is alleged to be seized from the possession of the accused and in whose presence the accused was arrested categorically stated about the particulars of the property seized from the possession of the accused. He also stated the other particulars with regard to the confession of the accused. Apart from this, he clearly identified the accused in open court.

As P.W.4 is the V.R.O, it cannot be held that he falsely deposed against the accused against whom he did not have any previous acquaintance.

Moreover, it is not contention of the accused that there is any previous animosity between P.W.4 and the accused. Even, no suggestion was posed by the learned defence counsel with regard to this aspect. In such a scenario, it can be safely held that P.W.4 will not have any necessity to depose against the accused and to secure conviction to the accused.

15.The evidence of the mediator is totally corroborating with the evidence of P.W.5, the investigating officer in all material aspects with regard to the seizure and confession of the accused. Though, the mediator and the investigating officer were cross examined by the learned defence counsel, but nothing could be elicited to disprove the seizure of the material object from the possession of the accused. Therefore, it can be safely held that the prosecution is able to prove the seizure of M.Os.1 to 8 from the possession of the accused beyond all reasonable doubt.

APVS050015972019 10 Fair Calendar and Judgment

16.Where the accused is found in the possession of the stolen property and he is unable to furnish account for the same, the legal presumption under section 114(a) of the Indian Evidence Act, can be drawn against the accused that he is either a thief or the receiver of the stolen property knowing it to be stolen and the accused can be convicted under Section 411 of IPC. Dishonest intention is a sin qua non i.e., to be inferred from the substances and usually the possession of the stolen property knowing it to be stolen property is suffice to draw an inference of dishonest intention.

17.Be that, as it may it is not the contention of the accused that the property which was seized from his possession is his own property.

Under these circumstances, a considerable opinion can be drawn that the prosecution could adduce cogent and convincing evidence on record to establish that the stolen property was seized by the police from the possession of the accused for which he could not furnish any account.

18.The learned defence counsel argued that there are many discrepancies in the evidence of prosecution witnesses as such the case of prosecution is doubtful. In this regard, this court fortifying on the following citation. In Polepaka Praveen @ Pavan Vs. State of

Telangana in 2020 (2) ALD Criminal 141 (75)- it was held by the Hon’ble

High Court of Telangana that “minor discrepancies does not cast shadow on the veracity of the prosecution case”.

APVS050015972019 11 Fair Calendar and Judgment 19.When the property recovered from the possession of the accused is satisfactorily proved to be the stolen property, it can be considered that the accused was in possession of the stolen property knowing or having reason to believe it to be the stolen property. In the instance case and the stolen property was recovered from the possession of the accused, there is no question that the confession report of the police is hit by Sec. 26 and 27 of Indian Evidence Act.

20.In view of the above discussion and on conjoint perusal of the entire evidence on the record, and inescapable conclusion can be drawn by the testimonies on the record that the prosecution could establish the case against the accused beyond all reasonable doubt for the offence under section 411 Indian Penal Code beyond all reasonable doubt. Accordingly the point is answered in favour of the prosecution and against the accused.

21. In the result, the accused is found not guilty for the offence punishable Under Sections 457 and 380 of IPC and the accused is acquitted under Section 248(1) of Cr.P.C. Further, the accused is found guilty for the offence punishable under Section 411 of IPC and accordingly he is convicted U/Sec.248(2) of Cr.P.C., for the said offence.

Typed to my dictation by the Stenographer Grade-II, corrected and pronounced by me in the open Court, this the 28th day of April, 2025.

Sd/- D. Soujanya

XV Addl. Judicial Magistrate of First Class Bheemunipatnam.

APVS050015972019 12 Fair Calendar and Judgment When the accused is questioned about the quantum of sentence, he stated that he is married and having children and he has to take responsibility of his family members, as there is no other elder male member in his family and pleaded mercy of the Court. Having regard to the facts and circumstances and the nature of the offence, this court is not inclined to invoke provisions of Probation of offenders Act to the accused .

In view of the facts and circumstances of the case and keeping in view of the submissions made by the accused and as it is submitted by the learned APP that the accused is habitual offender and is involved in many crimes, the accused is sentenced to undergo Simple imprisonment for a period of One Year for the offence punishable under section 411 of IPC.

The remand period of the accused i.e., from 9.11.2021 to 03.1.2022 and from 27.09.2024 to till date shall be given set off under section 428 of Criminal Procedure Code. The accused is apprised about his right to appeal in the Hon’ble Sessions Court, Visakhapatnam against the calendar and judgment of this Court. The accused is apprised of his right to legal aid counsel before the Hon’ble Sessions Court,

Visakhapatnam. The interim custody orders in respect of M.Os.1 to 8 which were given to PW2-Sesha Saila as per the orders in

Crl.M.P.No.2829/2024 holds good, after expiry of appeal time

The free copy of the judgment is served to the accused with acknowledgment.

Pronounced by me in open Court this the 28th day of April, 2025.

Sd/- D. Soujanya

XV Addl. Judicial Magistrate of First Class Bheemunipatnam.

APVS050015972019 13 Fair Calendar and Judgment Appendix of Evidence

Witness Examined

For prosecution: P.W1/Y. Apparao P.W2/B. Sesha Shaila P.W3/S. Narasinga Rao P.W4/K. Veera Venkata Srinivas, P.W5/R.S.V.S.N. Murthy,

For Defence: -- NIL –-

Exhibits Marked

For Prosecution: Ex.P.1: Report given by PW1, dt, Ex.P.2: Mediators report dated Ex.P.4: FIR in crime No.472/2021 of Bheemunipatnam P.S., Ex.P.5: Rough sketch

For Defence: NIL

Material Objects :

MO1 College Bag, MO2 – Four (4) T. Shirts -Jerkin MO3 – Two (2)-T shirts MO4 – one (1) Shirt gray in colour, MO5- Full Track MO6-2 Pairs of shoes MO7-is one hand bag MO8- cash of Rs.7000/-

Sd/- D. Soujanya

XV Addl. Judicial Magistrate of First Class //True Copy// Bheemunipatnam.

APVS050015972019 14 Fair Calendar and Judgment XV Addl. Judicial Magistrate of First Class Bheemunipatnam

APVS050015972019 15 Fair Calendar and Judgment

Fair Judgment 1CC 138/2024

XIV AJFCM/BML Dt.14.05.2026

APVS050010492024

IN THE COURT OF THE XIV ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS

AT BHEEMUNIPATNAM

Present: Smt.D.Soujanya,

XIV Addl. Judicial Magistrate of First Class ,

Bheemunipatnam.

Thursday, this the 14th day of May,2026

Calendar Case No.138/2024

Between:

The State represented by the Sub Inspector of Police,

Padmanabham Police Station, Visakhapatnam city. … Complainant.

And:

1. Avanapu Appalaswamy @ Billa, S/o Krishna,

Age 25 years, Kondala Street, Jarajapu Peta village,

Nellimarla Mandal, Vizianagaram District.

2. Bugatha Rajesh, S/o late Narayanrao,

Age 35 years, R/o Raja Street, Jarajapu Peta village,

Nellimarla Mandal, Vizianagaram District. … Accused No.1 & 2

This case is coming on 12.05.2026 for final hearing in the presence of Assistant Public Prosecutor for complainant/State and Smt. K.Manjula, legal aid counsel for accused no.1 and Sri P.Ravi, learned counsel for accused No.2 and having stood over for consideration to this day, the Court delivered the following:

Fair Judgment 2CC 138/2024

XIV AJFCM/BML Dt.14.05.2026

J U D G M E N T

1. The State represented by the Sub-Inspector of Police, Padmanabham

Crime P.S., filed charge sheet against the above named accused in Cr.No.84/2023 of Padmanabham Police Station (Crime), Visakhapatnam city for the offence punishable under Sections 454 and 380 of IPC.

2. The case of the prosecution in brief is that:

On 27.09.2023 at about 4.00 p.m. LW.1 Sarika Jayaram heard some sounds at his own house and then he along with his wife went to their house and noticed the locks of the main door was broke open and theft of home theater by throwing house hold articles in pell mell condition. Basing on the report, LW.7 registered the same as a case in Cr.No.84/2023 under sections 454 and 380 of IPC and endorsed the same to LW8 for investigation and during investigation, LW8 visited the scene of offence, examined the same in the presence of mediators, prepared rough sketch and scene observation report, examined witnesses and recorded their statements. He arrested A1 and A2 and recovered the stolen property from the possession of the accused and after completion of investigation, filed charge sheet against the accused no. 1 & 2.

3. This case was taken on file by my learned predecessor against the accused No. 1 & 2 for the offence under sections 454 and 380 of IPC.

4. On appearance of the accused No.1 & 2 case copies were furnished to them as required under Section 207 of Cr.P.C .

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XIV AJFCM/BML Dt.14.05.2026

5. Accused No.1 & 2 were examined under Section 239 of Cr.P.C explaining the substance of the charge sheet contents in Telugu for which they denied the same and claimed to be tried. Charges under sections 454 and 380 or 411 of IPC were framed, read over and explained to them in Telugu language.

6. In order to prove the guilt of the accused No.1 & 2, the prosecution examined P.Ws.1 to 4 and got marked Exs. P.1 to P.5 and M.O.1 .

7. After completion of the prosecution evidence accused No.1 & 2 were examined under Section 313 of Cr.P.C , for which they denied the incriminating evidence made out against them in the evidence of prosecution witnesses and reported no defence evidence on their behalf.

8. Heard arguments of the learned APP and learned counsel for the accused no.2 and written arguments filed by the legal aid counsel for the accused no.1 and the learned APP.

9. Now the point for determination is:

Whether the prosecution established the guilt of accused No.1 & 2 for the offence punishable under Sections 454 and 380 of IPC beyond all reasonable doubt ?

10. POINT:

P.W.1 is the de facto complainant, he testified that two months back, they shifted from their own house to the rented house and left some house hold articles in their house on 27.09.2023 at 4.00 p.m. they heard sounds at their house and noticed that the locks of their house were broke opened, the almirahs were opened and some unknown offenders committed theft of home theaters and two

Fair Judgment 4CC 138/2024

XIV AJFCM/BML Dt.14.05.2026 speakers. He noticed two persons from their back side, they left their motor bike bearing Registration No. AP 39 CJ 0748 and escaped. PW.2 is the wife of PW.1, she also deposed in the same lines of Pw.1.

11.Pw.3 is the mediator, he stated that on 28.09.2023 he along with LW.4 acted as mediators, they went to Chinnapuram village and noticed two persons in a suspicious manner. The police caught hold of them and enquired them. The police prepared confession report. He identified both the accused. The police observed the scene of offence and prepared scene observation report.

12.PW.4 is the then SI of police, Padmanabham P.S and he stated that during course of investigation, he examined witnesses and recorded their statements, prepared rough sketch in the presence of mediators. On 28.09.2023 he along with PW.3 and LW.4 went to Chinnapuram village,c aught hold the accused no. 1 & 2 and seized one home theater from their possession. He arrested the accused and produced him before this court for judicial remand. After completion of investigation, he filed charge sheet against the accused.

13. Adverting to the charge under sections 454 and 380 of IPC

In order to sustain the charge under sections 454 and 380 of IPC, the prosecution has to prove that the accused committed lurking house trespass or house breaking in order to commit any offence punishable with imprisonment and further the prosecution has to establish that the accused were caught while committing theft of the property. The evidence of P.Ws.1 and 2 discloses that theft was committed in their house by some unknown offenders and that home theater and speakers were stolen. Further, it is apparent from the evidence of the other prosecution witnesses that they noticed two persons from their back side

Fair Judgment 5CC 138/2024

XIV AJFCM/BML Dt.14.05.2026

Therefore, it is clear that there is no possibility for Pws. 1 & 2 to look at the faces of the accused and to identify them. Further, it is also not their evidence that they witnessed both the accused at the time of committing the theft.

14. As contended by the defence counsel, the investigating officer also failed to collect the finger prints or the chance prints at the scene of offence and did not choose to inform about the theft to the finger prints or chance prints experts. In the present set of facts, it is not the case of the prosecution that the accused were caught while committing the theft of the property or that the accused were noticed while committing lurking house trespass or house breaking. Hence, it can be safely considered that the prosecution could not adduce any direct or indirect evidence on record to establish that the accused committed the offence under sections 454 and 308 of IPC.

15. Adverting the charge under section 411 of IPC:

It is the case of the prosecution that they seized the case property from the possession of both the accused under the cover of mediators report. P.W.3 is the mediator in whose presence the property is alleged to be seized from the possession of the accused and in whose presence the accused were arrested.

Therefore, his evidence is to be carefully scrutinized as he is the crucial witness to the case of prosecution. It is noticed from the evidence of PW3 that he acted as a mediator and that both the accused confessed the offence in his presence and the police seized the stolen property in his presence and he also identified both the accused.

16. As per the evidence of the prosecution, the investigating officer seized the stolen property from the possession of both the accused at Chinnapuram village. It is the argument of the learned counsel for the accused that the police

Fair Judgment 6CC 138/2024

XIV AJFCM/BML Dt.14.05.2026 failed to follow the mandatory provisions of search and seizure as contemplated under Cr.P.C and that they did not affix identity slips on MO.1 as such, the entire procedure of the alleged search and seizure is vitiated. On careful perusal of the evidence of Pw.3, the mediator, it could be espoused that he did not receive any summons from the police to act as mediator and the police did not affix any identity slips on the seized property. Even PW.4 the investigating officer also stated that he does not remember whether they affixed identity slips on the seized property.

17.It is settled principle that when a specific procedure is contemplated under Law, the investigating officer is duty bound to follow the said procedure.

Though it is held in catena of decisions that the minor investigating irregularities does not effect the case of the prosecution, but in the present case on hand the non following of the procedure for search and seizure is the major investigation latches.

It is the argument of the learned APP that as Pws. 1 & 2 are husband and wife and that as they are interested witnesses, their evidence cannot be discarded in toto.

As rightly argued by the learned APP, merely because the witnessed are interested, their evidence cannot be discarded in toto but the court must carefully circumspect their evidence.

18. In our present case, it is not in dispute that Pws. 1 & 2 are husband and wife, but their evidence is clear only to the extent of committing theft in their house by some unknown persons. They categorically deposed that they saw two persons from the back side, they left their motorbike bearing registration No. AP 39

CJ 0748. But, that itself is not suffice, the prosecution must be able to establish the nexus that the said motorbike which was left by the accused was seized by the police under the cover of confession report. But, surprisingly there is no whisper in

Fair Judgment 7CC 138/2024

XIV AJFCM/BML Dt.14.05.2026 the charge sheet with regard to the said motorbike and whether the investigating officer investigated about the ownership of the said motorbike.

19.Mere seizure of the motorbike by the investigating officer without establishing the nexus as to how both the accused are related to the said motorbike is of no use to the case of the prosecution. As rightly argued by the learned defence counsels, PW.1 failed to produce the bills pertaining to MO.1 and even there is no whisper in the evidence of Pws. 1 and 2 with regard to the description, the manufacturing details and the year of purchase of MO.1. Further, the investigating officer also admitted that he did not collect any bills pertaining to

MO.1.

20.Where the accused is found in the possession of the stolen property and he is unable to furnish account for the same, the legal presumption under section 114(a) of the Indian Evidence Act, can be drawn against the accused that he is either a thief or the receiver of the stolen property knowing it to be stolen and the accused can be convicted under Section 411 of IPC. Dishonest intention is a sin qua non i.e., to be inferred from the substances and usually the possession of the stolen property knowing it to be stolen property is suffice to draw an inference of dishonest intention.

21. In our present case, the alleged seizure of the property by the police from the possession of both the accused is not proved by the prosecution and a serious doubt is cast on the case of the prosecution with regard to the presence of

P.W.3 at the time of the alleged seizure of M.O.1 from the possession of both the accused.

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XIV AJFCM/BML Dt.14.05.2026

22.When the property recovered from the possession of the accused is satisfactorily proved to be the stolen property, it can be considered that both the accused were in possession of the stolen property knowing or having reason to believe it to be the stolen property. In the instant case, it is clear that the prosecution could not establish that MO.1 was recovered from the possession of both the accused.

23.It is well settled principle that the burden heavily rests on the prosecution to prove the case by leading cogent and convincing evidence so as to prove the guilt of the accused beyond all reasonable doubt. The accused cannot be convicted on mere probabilities or presumptions. Suspicion, however grave cannot take place of proof. On cumulative assessment of the testimonies on record, an inescapable conclusion can be drawn by the Court that the prosecution miserably failed to adduce any direct or indirect evidence to substantiate that both the accused committed the offence punishable under sections 454 and 380 or 411 of

IPC beyond all reasonable doubt. Accordingly, the Accused No.1 & 2 are entitled for the benefit of doubt. Point is answered accordingly.

24. In the result, the accused No. 1 & 2 are found not guilty for the offence under sections 454 and 380 or 411 of IPC and accordingly, they are acquitted under section 248 (1) of IPC for the charges leveled against them. The accused

No. 1 & 2 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. M.O. 1 which was given for interim custody to PW.1 as per the orders in Crl.M.P.115/2026, dt.31.03.2026 is holds good after expiry of appeal time. Accused no.1 is directed to be released forthwith if not required in any other cases.

Fair Judgment 9CC 138/2024

XIV AJFCM/BML Dt.14.05.2026

Typed to my dictation by the Stenographer Grade II, corrected and

pronounced by me in the open Court, this the 14th day of May,2026.

Sd/- D.Soujanya

XIV Addl. Judicial Magistrate of First Class Bheemunipatnam

Appendix of Evidence

Witnesses examined

For Prosecution: For Defence

P.W.1: S.JayaramNIL

P.W.2: S.Lavanya

P.W.3: N.Venkatarao,

P.W.4: R.Malleswarrao, SI of Police, Padmanabham P.S

Documents Marked

For Prosecution

Ex.P.1 : is the report given by P.W.1

Ex.P.2 : is the confessional statement dt.28.9.2023

Ex.P.3 : is the scene observation report dt.28.9.2023

Ex.P.4 : is the First information report

Ex.P.5 : is the rough sketch

For Defence: Nil.

Material Objects

M.O.1 :Home theater with two speakers

Sd/- D.Soujanya

XIV Addl. Judicial Magistrate of First Class

Bheemunipatnam.

Fair Judgment 10CC 138/2024

XIV AJFCM/BML Dt.14.05.2026

CALENDAR AND JUDGMENT

Calendar case tried by the Court of the XIV Addl. Judicial Magistrate of First

Class, Bheemunipatnam

Date of Offences : 27.09.2023

Date of report or Complaint : 27.09.2023

Date of apprehension of accused : 28.09.2023

Date release on bail, if any: A.1 is in jail & A2 is on bail

Date of commencement of trial : 30.03.2026

Close of trial : 30.04.2026

Date of sentence or other order:14.05.2026

Explanation of delay and remarks : The matter under went several adjournments as prosecution did not produce the witnesses.

Calendar and Judgment in C.C.No.138/2024 on the file of the XIV Additional

Judicial Magistrate of First Class, Bheemunipatnam

Complainant : State represented by the Sub Inspector of Police, Padmanbham in

Crime No.84/2023 U/sec. 454 and 380 of IPC.

Name of the accused: 1. Avanapu Appalaswamy @ Billa, S/o Krishna,Age 25 years, Kondala Street, Jarajapu Peta village,Nellimarla Mandal, Vizianagaram

District.

2. Bugatha Rajesh, S/o late Narayanrao,Age 35 years, R/o Raja Street, Jarajapu

Peta village,Nellimarla Mandal, Vizianagaram District.

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XIV AJFCM/BML Dt.14.05.2026

Offence: U/secs. 454 and 380 or 411 of IPC. For gaining entry into a house by broke opening the lock and committing theft of home theater and for dishonestly receiving or retaining stolen property, knowing or having reason to believe the same to be stolen property.

Finding: In the result, the accused No. 1 & 2 are found not guilty for the offence under sections 454 and 380 or 411 of IPC and accordingly, they are acquitted under section 248 (1) of IPC for the charges leveled against them. The accused

No. 1 & 2 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. M.O. 1 which was given for interim custody to PW.1 as per the orders in Crl.M.P.115/2026, dt.31.03.2026 is holds good after expiry of appeal time. Accused no.1 is directed to be released forthwith if not required in any other cases.

Sd/- D.Soujanya

XIV Addl. Judicial Magistrate of First Class

Bheemunipatnam.

Fair Judgment 12CC 138/2024

XIV AJFCM/BML Dt.14.05.2026

Judgment 1 C.C.No.372/2019

IN THE COURT OF XVI ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS

BHEEMUNIPATNAM.

Present:- Smt.D.Soujanya, XV Addl. Judicial Magistrate of First Class, Bheemunipatnam FAC XVI Addl. Judicial Magistrate of First Class, Bheemunipatnam.

Tuesday, this the 15th day of April, 2025

CALENDAR CASE NO.372/2019

Between:

State represented by the Sub Inspector of Police, P.M. palem Police Station, Visakhapatnam City

...Complainant.

And:

Reddy Venkata Rao, S/o Late Guraiah, Aged 55 years, Kapu by caste, D.No.8-18-128, Indiranagar, Visakhapatnam city. …Accused

This case is coming before me on 10.04.2025 for final hearing in the presence of the learned Asst., Public Prosecutor for the State and of Sri.T.Srinivasa Rao, Advocate 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 :::

01.The Sub Inspector of Police, P.M. Palem Police Station has filed charge sheet against the above accused in Crime No.95/2018 for the offence punishable U/Sec.304-A of IPC.

02.Case of the prosecution :

On 28.02.2018 at 08.00 a.m., LW1/Gabu Rajashekar Reddy came to police station and presented a report alleging that on 27.02.2018 at 08.30 p.m., his father Gabu Suryanarayana Reddy, S/o Late Rami Reddy (here- in-after referred as “deceased”) met with an accident near Carshed

Judgment 2 C.C.No.372/2019

Junction, P.M. Palem that while his father was crossing the road, the accused being the driver of a lorry bearing No. AP 16 TV 5307 drove in a rash and negligent manner with high speed and dashed his father, resulting which he was received injuries and shifted to Ujwala Hospital with the help of local people and from there while he was shifting to

K.G.Hospital, his father died on the way. Basing on the report of L.W.1, a case in Cr.No.95/2018 was registered by LW17/K.Lakshmana Murthy,

Inspector of Police, P.M. palem police station, under Section 304-A IPC and endorsed the same to L.W.18/B.B.S.Ganesh, Sub Inspector of Police,

P.M. Palem P.S. (here-in-after referred as P.W.9) for further investigation.

(b)During the course of investigation, P.W.9 visited the scene of offence, prepared rough sketch of scene and scene observation report, examined the witnesses and recorded their statements, held inquest over the dead body of the deceased in the presence of panchayatdars and sent the dead body for conducting autopsy. P.W.6/Dr.P.Venkata Ramana Rao conducted postmortem over the dead body of the deceased and issued postmortem certificate. P.W.7 M.V. Inspector inspected the crime vehicle and after verifying the crime vehicle, issued Motor Vehicle Inspector report.

P.W.9 issued notice u/s 41-A Cr.P.C. to the accused. The investigation reveals that the accused being driver of the crime vehicle i.e., lorry bearing

Registration No. AP 16 TV 5307 drove in a rash and negligent manner and dashed the deceased and caused the death of deceased. After completion of entire investigation, P.W.9 filed charge sheet against the accused for the offence under Section 304-A IPC.

03.This case was taken on file for the offence punishable U/Sec.

304-A of IPC against the Accused.

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04. On appearance of the accused, copies of documents were furnished to him as required U/Sec.207 of Cr.P.C.

05. Accused was examined U/Sec.251 of Cr.P.C., and the accusations of the charge sheet are read over and explained to the accused in Telugu for which he denied the accusations in the charge sheet, pleaded not guilty, and claimed to be tried.

06.In support of its case, the prosecution has examined P.Ws 1 to 9 and got marked Exs.P1 to P7.

07.After completion of the prosecution evidence, the Accused was examined U/Sec.313 Cr.P.C and the incriminating evidence of the prosecution witnesses is read over and explained to him in Telugu and he denied the said evidence and claimed the same to be false and did not adduce any evidence on his behalf.

08.Heard the arguments of both sides. Perused the material on record.

09.Now, the point for determination is :

“Whether the prosecution has proved the guilt of the Accused

for the offence under Section 304-A of IPC beyond all reasonable

doubt?“

10.The learned Assistant Public Prosecutor advanced the arguments by submitting that the evidence of the prosecution witnesses establishes that the accused drove the crime vehicle in a rash and negligent manner without taking proper precautions and that the postmortem certificate and the inquest report establishes that the

Judgment 4 C.C.No.372/2019 deceased died due to road traffic accident. It is further submitted that the prosecution proved the case against the accused beyond all reasonable doubt and prayed to convict the accused.

11. On the other hand the learned defence counsel advanced the arguments and submitted that there are many discrepancies in the evidence of the prosecution witnesses and submitted that prosecution witnesses turned hostile and did not support the case of the prosecution.

It is further submitted that none of the prosecution witnesses deposed about the manner of accident and also their evidence is silent with regard to the identification of the accused in the open court and submitted that the prosecution could not prove the case against the accused and prayed to acquit the accused.

Point:

12. In order to prove the guilt of the accused, the prosecution examined P.Ws 1 to 9 and got marked exhibits P.1 to P.7 documents.

L.W.1 is the son of the deceased and defacto complainant and he died.

P.W.1 is the brother of the deceased, P.W.2 is the eyewitness to the accident, P.Ws.3 and 4 are the inquest mediators, P.W.5 is the corroborative witness, P.W.6 is the doctor who conducted postmortem over the dead body of the deceased and issued P.M. certificate, P.W.7 is the

M.V. Inspector, P.W.8 is the mediator of the scene observation report.

P.W.9 is the investigating officer who investigated the case and filed charge sheet.

13. What is required to be proved by the prosecution, in the case of road traffic accident causing death or injuries to any person is that the accident so caused which led to the death of the deceased or injuries to

Judgment 5 C.C.No.372/2019 the injured is the proximate result of rash or negligent driving of the driver of the crime vehicle.

14. In order to sustain the accusation against the accused for the offence under section 304-A of Indian Penal Code, the prosecution is expected to prove the following three points:

1) The death of the deceased.

2) That the accused is the driver of the crime vehicle at the relevant point of time.

3) The incident occurred due to the rash and negligent act of the driver of the crime vehicle.

15. In this context P.W.1 who is the brother of the deceased, testified that on 27.02.2018 at night hours he received a phone call from the traffic S.I. and was informed that his brother met with an accident at

Carshed junction, Madhurawada, while his brother was crossing the road, the driver of the lorry proceeded in a rash and negligent manner and dashed his brother. He attended inquest of his brother. L.W.1 died and he identified the signature of L.W.1 on the report. During his cross examination, he stated that he has not witness to the accident.

16.P.W.2 is the eyewitness, who stated that on 27.02.2018 at 8.00 p.m., while he was giving signals to the vehicles which were proceeding from Visakhapatnam to Anandapuram, a lorry bearing

No.AP16 TV 5307 dashed an old man who was crossing the road. The said old man sustained injuries and was shifted to Ujwal hospital. Later the said old man died at K.G. Hospital, Visakhapatnam. He stated that the accident occurred due to the negligence driving of the lorry driver. He further stated that he cannot identify the driver of the lorry due to long gap

Judgment 6 C.C.No.372/2019 of time. During his cross examination, he stated that an old man crossed the road all of a sudden the accident took place. P.Ws.3 and 4 are the mediators to the inquest report. P.W.5 is the corroborative witness, he also stated in the same lines of P.W.1 about the accident. P.W.6 is the doctor who conducted autopsy over the dead body of the deceased and issued

Ex.P3, postmortem certificate. P.W.7 is the M.V. Inspector, who inspected the crime vehicle and issued Ex.P4 M.V. Inspector report. P.W.8 is the mediator to the scene observation report who stated that the police observed the scene of offence in his presence, prepared the scene observation report and seized the copies of insurance and the C-Book of the crime vehicle and driving license of the accused.

17.P.W.9 is the Investigating Officer whose evidence discloses that the case was registered by L.W.17. He stated that he examined the witnesses and recorded their statements. He prepared rough sketch, scene observation report, conducted inquest, issued Section 41-A Cr.P.C notice to the accused. He issued requisitions to conduct postmortem over the dead body of the deceased and to M.V. Inspector to inspect the crime vehicle and received the P.M. Report, M.V. Inspector report and after completing the investigation, he filed the charge sheet before this Court.

18.As per the evidence of P.Ws.1 and 2 it is clear that an accident took place at Carshed junction, P.M. Palem on the national highway road.

P.W.1 is the hearsay witness and he came to know about the accident through the traffic S.I. of P.M. palem P.S. therefore, it can be held that he is not a direct witness to the accident. Further, his evidence can be considered with regard to the occurring of the accident and with regard to death of the deceased. As seen from the evidence of P.W.2, it is found that he is the eyewitness to the accident, he also deposed about the manner of the accident. Therefore, it can be held that from the evidence of

Judgment 7 C.C.No.372/2019

P.Ws.1 and 2, the prosecution could establish that the accident occurred and that the deceased died due to the road traffic accident.

19.No doubt, the deceased died in the road accident which is evident from Exhibit P.2 (inquest report) and Ex.P.3 (postmortem report) that the deceased died in a road traffic accident, but it is also equally important to place all positive material that the accident took place only on account of the rash and negligent driving of the crime vehicle by the accused. None of the witnesses testified that the accused drove the vehicle in a rash and negligent manner as a result the deceased died due to the road traffic accident.

20.Even, there is no whisper in the evidence of the defacto- complainant and also in the evidence of other witnesses that the accused drove the vehicle in a rash and negligent manner and that as a result the deceased died. As P.W.2 is the eye witness to the accident, his evidence has to be carefully scrutinized. As seen from the evidence of P.W.2, it is noticed that that he categorically deposed about the manner of accident.

Further, there is no reason to doubt about the presence of P.W.2 near the scene of offence as he was working as a constable at P.M. Palem traffic

P.S. as on the time of alleged accident and he was on duty on the alleged accident.

21.It is the argument of the learned defence counsel that P.W.2 being eyewitness to the accident failed to identify the accused in the open court, it is certainly fatal to the case of the prosecution. As seen from the evidence of P.W.2, it is clear that though he deposed about the manner of accident, he failed to identify the accused in the open court. He further stated that he cannot identify the driver of the crime vehicle due to long gap of time. Therefore, it can be held that as the evidence of P.W.2 is

Judgment 8 C.C.No.372/2019 entirely silent with regard to the identification of the accused, his evidence can be considered to the extent of occurring of accident only. Though

P.W.2 is the eyewitness to the accident, his evidence cannot be taken into consideration with regard to the aspect that the accused was the driver of the crime vehicle on the date of accident.

22.On perusal of Ex.P4 the M.V.I report it clear that the crime vehicle involved in the accident. It is not suffice of the prosecution, if the involvement of the crime vehicle is established in the accident, further, the prosecution is supposed to establish that the accused is the driver of the crime vehicle at the time of alleged accident. Apart from this the burden lies on the prosecution to establish that the deceased died on account of rash negligent driving of the crime vehicle by the accused.

23.Apart from this, the evidence of all the prosecution witnesses is silent with regard to the identification of the accused in the open court. It is the argument of the learned defence counsel that the crime vehicle was inspected by the M.V. Inspector after the gap of four days from the date of accident and that there is every possibility of changing the features of the crime vehicle. As seen from the record, the accident happened on 27.02.2018 and the crime vehicle was inspected on 03.03.2018.

Admittedly, there is gap of four days from the date of accident to the date of inspection of the crime vehicle. The investigation officer did not offer any explanation with regard to the said delay in issuing requisition to the

M.V.I. to inspect the crime vehicle. Therefore, it can be held a doubt is cast on the case of the prosecution.

24.On cumulative assessment of evidence placed on record, it is clear that no iota of evidence placed on record by the prosecution to substantiate that the accused was the driver of the crime vehicle at the

Judgment 9 C.C.No.372/2019 relevant point of time and that he drove the same in a negligent manner. In these circumstances the remaining evidence let in by the prosecution is of no use to prove the guilt of the accused. Though it is inevitable to hold that the prosecution proved the death of the deceased but the prosecution could not establish that the accused was the driver of the crime vehicle at the relevant point of time and that he drove the vehicle in negligent manner to find him guilty for the offence under section 304-A of IPC.

25.On the conjoint perusal of the evidence on record, and in view of the foregoing discussion an inescapable conclusion can be arrived at that the prosecution is not successful in bringing home the guilt of the accused for the accusation leveled against him under sections 304-A of

IPC beyond all reasonable doubt, hence the accused is entitled for the benefit of doubt.

26.In the result, the accused is found not guilty for the offence under sections 304-A of Indian Penal Code. Accordingly, he is acquitted under Section 255(1) of Criminal Procedure Code. The accused is directed to execute bond for Rs.10,000/- (Rupees ten thousand only) under Section 437-A Criminal Procedure Code to appear before the Appellate Court, if any appeal is preferred.

Typed to my dictation by the Typist, corrected and pronounced by me in the open court, this the 15th day of April, 2025.

Sd/- D.Soujanya

XV Addl. Judl. Magistrate of First Class, (FAC) XVI Addl. Judl. Magistrate of First Class, Bheemunipatnam.

(P.T.O.)

Judgment 10 C.C.No.372/2019

Appendix of evidence

No. of witnesses examined for

Prosecution: Defence: Nil P.W.1-Gabu Annaji Reddy, P.W.2-Athava Ganesh, P.W.3-Nelli Varun Kumar, P.W.4-Gabu Viswanadha Reddy, P.W.5-Maddi Narendra Reddy, P.W.6-Dr.P.Venkata Ramana Rao, P.W.7-P.Sivarama Gopal, P.W.8-Kota Srikrishna Jayadev, P.W.9-B.B.S. Ganesh.

No. of exhibits marked for

Prosecution: Defence:Nil

EX.P1/ Report, Ex.P2/ Inquest Report, Ex.P3/ Report of Postmortem examination, Ex.P4/ M.V.I. Report, Ex.P5/ Scene Observation Report, Ex.P6/ FIR, Ex.P7/ Rough Sketch of scene,

Material objects NIL

No material object is marked on either side

Sd/- D.Soujanya

XV Addl. Judl. Magistrate of First Class, (FAC) XVI Addl. Judl. Magistrate of First Class, Bheemunipatnam.