Smt. G. Spandana

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE AT CHEEPURUPALLI

Present: Smt.G.Spandan Junior Civil Judge, Cheepurupalli.

Friday, the 14th day of July, 2017

O.S.No.64/2009

Between:

1) Vatsavai Samba Murthy Raju, S/o late Narayana Murthy Raju, Aged about 63 years, Hindu, N/o Konuru village of Garividi Mandal, Vizianagaram District, presently residing at Visakhapatnam.

2) Vatsavai Ramachandhra Raju, S/o late Narayana Murthy Raju, Aged about 52 years, Hindu, N/o Konuru village of Garividi Mandal, Vizianagaram District.

3) Vatsavai Sanyasi Seetharama Raju, S/o late Narayana Murthy Raju, Aged about 50 years, Hindu, N/o Konuru village of Garividi Mandal, Vizianagaram District.

....Plaintiffs.

A n d : Borra Chandhra Sekhara Rao, S/o late Chinnayya, aged 58 years, Hindu, N/o Konuru village, Garividi Mandal, Vizianagaram District.

....Defendant.

This suit is coming on this day for hearing before me in the presence of Sri L.Naga Raju, Advocate for the plaintiffs and of Sri B.Ravi and Sri D.R.P.Naidu, Advocates for the defendant and as the defendant’s counsel filed memo reporting no instructions, the defendant called absent and set exparte, this Court delivered the following:

JUDGMENT

This suit is filed by the plaintiffs 1 to 3 against the defendant for grant of permanent injunction restraining the defendant, his men and agents from interfering with the peaceful possession and enjoyment of the plaintiffs over the plaint schedule land and for costs of the suit.

2.The breif averments of the plaint:

The plaintiffs 1 to 3 are sons of late Vatsavai Narayana Murthy Raju S/o late

Sri Ram Chandhra Raju. Originally the plaint schedule land is government land fully covered with shrubs and bushes. The father of the plaintiffs cleared the said shrubs and bushes by investing huge amounts out of his sweat and labour and //2// made it fit for cultivation. It is further contended that the government recognized the possession of the father of the plaintiffs as he is landless poor, issued D.Form patta to him but unfortunately D.Form patta was misplaced and and it was not traced. The father of the plaintiff Vatsavai Narayana Murthy Raju paid land revenue to the government during his life time and obtained receipts. The father of the plaintiff with the assistance of his sons who are plaintiffs herein, cultivated the plaint schedule land by raising crops and enjoyed the same. The father of the plaintiff obtained Pattadar pass book and title deed books in his name for the plaint schedule land. It is further contended that the father of the plaintiff

Vatsavai Narayana Murthy Raju died about 15 years back leaving behind the plaintiffs as his legal heirs. After the death fo the father of the plaintiffs, the plaintiffs succeeded to the plaint schedule lands from their father and they have been enjoying the same by planting Sarugudu sapplings. The Revenue authorities after conducting inquiry, issued pattadar pass book and Title deeds in the name of plaintiffs equally i.e., 1/3rd share each as Pothi Case and also incorporated the names of the plaintiffs in the Revenue records such as Fair Adangal and V.A.No.3

Adangals. It is further contended that the defendant is landed rich having vast lands in and around and he is having political and muscle power. The defendant has no manner of right, title and possession over the plaint schedule land. the defendant asked the plaintiffs to sell away the plaint schedule land to the defendant, for which the plaintiffs refused to sell the same. On that the defendant bore grudge and taking advantage of the weakness of the plaintiffs, trying to interfere with the possession and enjoyment of the plaintiffs over the plaint schedule land by creating collusive and false documents and also influenced the police officials by giving false report. The plaintiffs got issued a legal notice through courier service to the defendant not to do such activities, the defendant received the said notice, failed to give any reply. Hence the plaintiffs // 3 // filed this suit for grant of permanent injunction against the defendant restraining him from interfering with the peaceful possession and enjoyment of the plaintiffs over the plaint schedule land.

3.On receipt of summons the defendant made his appearance and Sri B.Ravi and Sri D.R.P.Naidu, advocates filed Vakalatnama on behalf of the defendant. The defendant filed his detailed written statement denying all the allegations made in the plaint. In such written statement, he contended that the boundaries given the plaint schedule are created for the purpose of the suit. He further contended that the plait schedule land is not a government land and it is a Zeroithy land of Raja

Vasthava Narayanamurthyraju. The said Narayanamurthyraju to discharge his debts agreed to sell away Ac.3.00 cents of land to Borra Jaya Lakshmi who is nothing but wife of the defendant for a consideration of Rs.105/- for each cent. It is further contended that the said Narayanamurthyraju received an amount of

Rs.15,000/- from Borra Jaya Lakshmi as an advance on 3.8.1991 and executed an agreement of sale in favour of of said Jayalakshmi on the same day i.e., 3.8.1991 and also agreed to settle the dispute with regard to the boundaries with his own cost. Since then the said Borra Jayalakshmi is in possession and enjoyment of the land in S.No.161/26 and 27 by raising coconut tope and as it is not fit for the land, she removed the tope and raised cashew tope for the land situated in S.No.161/26 and 27. It is contended that towards east originally Gadi Asiriramulu is situated and he used to raise wet crops by converting the land into wet and to the south of said land the land belongs to the defendant and the land of Gadi China Satyam is situated. To the west of the said land, water channel is situated and to north of the said land, dry land of Gadela Suryanarayana, Alamanda Surappadu is situated. It is further contended that the plaintiffs are not residents of Konuru village and they never in possession and enjoyment of the land in S.No.161/26 and 27 at any time. The plaintiffs are heavy influenced persons in the // 4 // locality wheras the defendant belongs to minor community without any support.

Even according to the plaint, the plaintiffs separated long back and enjoying the property separately and as such a single suit by paying a single court fee is not according to law and as such the suit is not maintainable under law. It is further contended that the plaintiffs are not in possession of the plaint scheudle land at any time and as such suit for simple injunction is not maintainable. The suit is not maintainable for non-joinder of necessary parties as Borra Jayalakshmi is necessary party to the suit. Hence he prays to dismiss the suit with costs.

4.Basing on the pleadings of both parties, my learned Predecessor settled the following issues for trial:

1) Whether the plaintiffs are in possession and enjoyment of the plaint schedule property?

2) Whether the plaintiffs are entitled for permanent injunction against the defendant as prayed for?

3) To what relief?

5.During the course of trial, the plaintiffs examined PW-1 and got marked

Ex.A-1 to Ex.A-12. Even though several opportunities were given to the defendant and to cross examine PW-1 and PW-2 and even on imposing costs of Rs.100/-, the defendant failed to cross examine Pws 1 and 2. On 30.6.2017 the defendant’s counsel filed a memo reporting no instructions on behalf of the defendant. Costs also not paid by the defendant. Hence this Court made the defendant exparte to the proceedings on the said date by recording the memo. The 3rd plaintiff was examined as PW-2 and got marked Ex.A-13 to A-20. The plaintiffs reported no further evidence.

6.Issues Nos. 1 and 2:

1) Whether the plaintiffs are in possession and enjoyment of the plaint schedule property?

2) Whether the plaintiffs are entitled for permanent injunction against the defendant as prayed for?

// 5 //

7.To prove the case of the plaintiffs, the 1st plaintiff-Samba Murthyraju filed his chief affidavit in lieu of his examination in chief. In such evidence he reiterated the contents of the plaint and deposed that he and plaintiffs 2 and 3 are sons of late Vatsavai Narayana Murthy Raju S/o late Sri Ram Chandhra Raju. He deposed that originally the plaint schedule land is government land fully covered with shrubs and bushes and that his father cleared the said shrubs and bushes by investing huge amounts out of his sweat and labour and made it fit for cultivation.

He further deposed that the government recognized the possession of his father as he is landless poor, issued D.Form patta to him but unfortunately D.Form patta was misplaced and and it was not traced. He deposed that his father paid land revenue to the government during his life time and obtained receipts. He deposed that his father with their assistance, cultivated the plaint schedule land by raising crops and enjoyed the same. He further deposed that his father obtained Pattadar pass book and title deed books in his name for the plaint schedule land. He further deposed that his father died about 15 years back leaving behind them as his legal heirs. He further deposed that after the death of his father, they succeeded to the plaint schedule lands from their father and they have been enjoying the same by planting Sarugudu sapplings. He further deposed that the

Revenue authorities after conducting inquiry, issued pattadar pass book and Title deeds in their names equally i.e., 1/3rd share each as Pothi Case and also incorporated the their names in the Revenue records such as Fair Adangal and

V.A.No.3 Adangals. He further deposed that the defendant is landed rich having vast lands in and around and he is having political and muscle power. He further deposed that the defendant has no manner of right, title and possession over the plaint schedule land, the defendant asked them to sell away the plaint schedule land to the defendant, for which they refused to sell the same. He further // 6 // deposed that on that the defendant bore grudge and taking advantage of their weakness, trying to interfere with their possession and enjoyment over the plaint schedule land by creating collusive and false documents and also influenced the police officials by giving false report. He further deposed that they got issued a legal notice through courier service to the defendant not to do such activities, the defendant received the said notice, failed to give any reply. Hence they filed this suit for grant of permanent injunction against the defendant restraining him from interfering with their peaceful possession and enjoyment over the plaint schedule land. To prove his case the PW-1 filed and got marked Raithu Pass book issued in favour of his father as Ex.A-1, Land revenue receipts (12 in number) issued in the name of his father as Ex.A-2, Pattadar pass book issued in his favour as Ex.A-3,

Title deed book issued in his favour as Ex.A-4, Copy of I-B issued in his name obtained from Mee-seva as Ex.A-5, Copy of Pahani issued in favour plaintiffs for

S.No.161-26 as Ex.A-6, Copy of Pahani issued in favour plaintiffs for S.No.161-27 as Ex.A-7, Land revenue receipt issued in his name as Ex.A-8, Pattadar pass book issued in the name of 2nd plaintiff as Ex.A-9, Title deed book issued in the name of 2nd plaintiff as Ex.A-10, Lane revenue receipts (3 in number) in the name 2nd plantiff as Ex.A-11 and Copy of I-B in favour of 2nd plaintiff as Ex.A-12.

8.The 3rd plaintiff-Vatsavai Sanyasi Seetharama Raju also filed his chief affidavit in lieu of his examination in chief which is nothing but a reiteration of the contents of the chief affidavit of PW-1. Hence this Court is not inclined to narrate the contents of the chief affidavit of PW-2. To prove his case, PW-2 filed and got marked Pattadar pass book issued in his favour as Ex.A-13, Title deed book issued in his favour as Ex.A-14, Copy of Pahani in S.No.161-26 as Ex.A-15, Copy of Pahani in S.No.161-27 as Ex.A-16, Copy of V.A.No.3 Adangal for Fasali 1418 as Ex.A-17,

Land revenue receipts (3 in number) issued in his favour as Ex.A-18, Copy of legal notice dated 5.6.2009 as Ex.A-19 and Two courier receipts as Ex.A-20.

// 7 //

9.As noted above, even though several opportunities were given to the defendant, the defendant did not turn up for cross examination of PW-1 and PW-2 and as such this Court made the defendant set exparte to the suit proceedings.

Hence the evidence of plaintiffs is unchallenged and uncontroverted. Hence the plaintiffs are in possession and enjoyment of the plaint scheule property and they and they are entitled for grant of permanent injunction as prayed for. Issues 1 and 2 are answered in favour of plaintiffs and against the defendant.

10.Issue No.3.

Since the issues 1 and 2 are answered in favour of plaintiffs and against the defendant, the suit is liable to be decreed in favour of the plaintiffs and against the defendants.

11.Result:

In the result, the suit is decreed with costs in favour of plaintiffs and against the defendant by granting permanent injunction restraining the defendant, his men and agents from interfering with the peaceful possession and enjoyment of the plaintiffs over the plaint schedule land.

Typed to my dictation by the Steno on computer, corrected and pronounced by me in open Court, this the 14th day of July, 2017.

Sd/- G.Spandana

JUNIOR CIVIL JUDGE,

CHEEPURUPALLI.

APPENDIX OF EVIDENCE

Witnesses examined.

For Plaintiffs: For Defendant:

PW-1: Samba Murthy RajuNone. PW-2: Vatsavai Sanyasi Seetharama Raju // 8 //

DOCUMENTS MARKED

For Plaintiffs: Ex.A-1: Raithu Pass book issued in favour of father of plaintiffs. Ex.A-2: Land revenue receipts (12 in number) issued in the name of father of plaintiffs. Ex.A-3: Pattadar pass book issued in favour PW-1. Ex.A-4: Title deed book issued in favour PW-1. Ex.A-5: Copy of I-B issued in the name PW-1 obtained from Mee-seva Ex.A-6: Copy of Pahani issued in favour plaintiffs for S.No.161-26. Ex.A-7: Copy of Pahani issued in favour plaintiffs for S.No.161-27. Ex.A-8: Land revenue receipt issued in the name of PW-1 Ex.A-9: Pattadar pass book issued in the name of 2nd plaintiff. Ex.A-10: Title deed book issued in the name of 2nd plaintiff. Ex.A-11: Lane revenue receipts (3 in number) in the name 2nd plaintiff. Ex.A-12: Copy of I-B in favour of 2nd plaintiff. Ex.A-13: Pattadar pass book issued in the name 3rd plaintiff. Ex.A-14: Title deed book issued in favour PW-2. Ex.A-15: Copy of Pahani in S.No.161-26. Ex.A-16: Copy of Pahani in S.No.161-27. Ex.A-17: Copy of V.A.No.3 Adangal for Fasali 1418. Ex.A-18: Land revenue receipts (3 in number) issued in favour PW-2. Ex.A-19: Copy of legal notice dated 5.6.2009. Ex.A-20: Two courier receipts.

For Defendant: Nil.

Sd/- G.Spandana

JUNIOR CIVIL JUDGE,

CHEEPURUPALLI.

1

IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE,

CHEEPURUPALLI

Present: Smt. G. Spandana

Judicial Magistrate of First Class, Cheepurupalli.

Monday, 16th day of September, 2019

C.C.No.1/2016

Between:

State represented by the Sub-Inspector of Police, Cheepurupalli Police station. …Complainant. A n d :

Devada Sreeramulu, S/o Appala Ramulu, 35 years, Rajaka by caste, Vinayaka Colony, Shreeramnagar,

Garividi Village and Mandal, Vizianagaram District …..Accused.

This case coming on 12.09.2019 for final hearing before me in the presence of A.P.P. for the State and of Sri B. Ravi, 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

1.The then Sub Inspector of Police, Cheepurupalli Police Station filed charge sheet against the accused in Cr.No.132/2015 for the offence punishable under Sec. 304-A of IPC with the following allegations:

That on 26.09.2015 at about 16.00 hours, the deceased/Amballa

Suryanarayana, L.Ws. 4 and 5.Meesala Satyam and Yandrapu Ramulu went to coolie works for weighing the ground nut at Penubarthi village and after completion of the work, they loaded ground nut bags in Tractor bearing No. AP 35 X 4629 and transporting the same to Cheepurupalli, the deceased and L.Ws. 4 and 5 were sat on the Tractor Load in the Tailer, when the Tractor reached on the road near Venkateswara Colony Speed

Breakers, the accused driver of the Tractor drove the vehicle in rash and negligent manner, at a high speed and could not observe the speed breakers and run over the speed breaker with high speed, as a result of which the trailer of Tractor become one side and the deceased fell on the road and sustained bleeding injuries on right below the buttock to thigh 2 and below the right side chest with lacerated wound, immediately L.Ws. 4 and 5 shifted him to Community Health Center, Cheepurupalli, but he died. Basing on the report given by L.W.1.Amballa Manikanta,

L.W.14.M.Nageswara Rao, SI of Police registered a case in Cr.No.132/2015 under Section 304-A of IPC was registered against the accused and during the course of investigation, sent requisition to Motor Vehicle

Inspector inspect the crime vehicle, the Medical Officer conducted autopsy over the dead body of the deceased and after completion of investigation, filed charge sheet against the accused.

2. Upon consideration of the material placed before the Court, cognizance for the offence punishable u/sec.304-A of IPC was taken against accused. On appearance of the accused, he was supplied with the copies of case documents as required u/sec.207 of Criminal

Procedure Code (for short Cr.P.C.) and he was examined u/sec.251 Cr.P.C.

and the contents of charge sheet are read over and explained to him in

Telugu for which he denied the same, pleaded not guilty and claimed to be tried.

3.The Prosecution in order to prove its case against the accused, has examined PWs 1 to 9 and marked Exs.P1 to P10. The rest of the witnesses i.e., LWs 3 and 8 to 10 were given up by the learned APP. After closure of the Prosecution evidence, Accused is examined u/sec.313

Cr.P.C. explaining the incriminating evidence against him in the

Prosecution evidence, for which he denied as being false and pleaded not guilty and reported no defence evidence.

4.Heard arguments of learned Assistant Public Prosecutor and learned counsel for the accused.

5.Now the point for consideration is whether the Prosecution is

able to prove its case against accused for the offence

punishable u/sec 304-A IPC, beyond all reasonable

doubt?

3

6.POINT: Unfolding the case of the prosecution, PW1, A.Manikanta deposed that the deceased was his father and on 26.09.2015 at 9.30 pm,

L.W.6. informed him about the accident, his father L.Ws. 4 and 5 returning from Penubarti to Cheepurupalli in a Tractor/AP 35 X 4629 by sitting in Trailer containing ground nut and due to your rash and negligent driving of the driving, the Trailer moved one side and his father, L.Ws. 4 and 5 fell down and his father sustained bleeding injury over his back bone and L.Ws. 4 and 5 sustained small injuries, by the time he reached there his father was dead and L.Ws. 4 and 5 shifted his father to

Community Health Center, Cheepurupalli and he lodged report/Ex.P.1 and present at the time of inquest

During the course of cross examination, PW1 stated that he drafted the Ex.P.1 report and he did not witness the Tractor and Trailer numbers while coming from Penubarthi and he does not know the details of the

Inquest Report, but he signed the same.

7. P.W.2.A.Laxmi, wife of the deceased deposed that she was informed by P.W.1 that on 26.09.2015 at 9.30 pm, her husband was travelling in a

Tractor from Penubarthi and he fell down from the Tractor due to the negligence of Driver of the Tractor.

8. P.Ws. 3 and 4. Y. Ramudu and Meesala Satyam deposed that while they along with the Accused went to Coolie works and while they were returning from the works and reached near Venkateswara Colony Speed

Breakers, the Tractor fell down on the road and they sustained injuries.

Since both P.Ws. 3 and 4 deviated from their earlier version, the learned

APP cross-examined them and they denied that they stated before the

Police as in Exs. P.2 and P.3 respectively.

9. P.W.5.A.Satyam deposed that about three years on the next day of the Accident, the Police called him to act as mediator and from Police

Station, they went to scene of offence and in his presence, the Police observed the scene and prepared scene observation report/Ex.P.4.

4

During the cross-examination, P.W.5 stated that he does not remember where he put his thumb impression in the Police Station or scene of offence and he signed at the request of Police since the deceased is his brother, but he does not know the contents of Ex.P.4.

10. P.W.6.G.Rambabu deposed that on 26.09.2015 while he was going from Penubarthi to Cheepurupalli, the deceased along with three others were going in a Tractor bearing No.AP 35 X 4629 and they sat on the ground nut bags loaded in the Trailer and while they reached near

Venakteswara Colony Speed Breakers, the driver of the crime vehicle applied sudden brakes due to over speed, as a result of which the Trailer fell down to one side, the deceased along with others fell down and the deceased sustained bleeding injuries and sustained injury on his head, then he called 108 Ambulance and the injured was died on the way to

Hospital, he informed the same to P.W.1.

During his cross-examination, P.W.6 stated that the Trailer was fully loaded ground nut bags and the Tractors with heavy load goes in a low speed near speed breakers and the deceased belongs to his caste, he was not present at the scene of offence since there is fifty meters distance from his bike and the Tractor.

11. P.W.7.Amballa Gowri Naidu deposed that the deceased was his cousin, who died in a Tractor accident and on 26.09.2015 at about 9.00

PM, while the deceased along with L.W.5 and another person were going in a Tractor, which was loaded with groundnut bags and the deceased and two others sat on the bags, the accused did not observe the speed breakers and drove the same very negligently near Venkateswar nagar

Colony, which results the trailer was fell to one side and the deceased fell on the road and sustained injuries on the body, he received phone call from P.W.1, then he went to the spot, by the time he reached there, the deceased was shifted to the Hospital and he observed the Tractor fell on one side and he was present at the time of inquest/Ex.P.5.

5

During Cross-examination, P.W.7 deposed that he came to the offence after fifteen minutes of the accident and he does not know where the deceased sustained injuries since the injuries were not mentioned in

Ex.P.5.

12.P.W.8.B.Raja Rao, M.V.Inspector deposed that on 30.09.2015 he inspected the Tractor bearing No. AP 35 X 4629 upon the requisition from

Cheepurupalli Police Station and found no damages to the vehicle and upon road test, the vehicle system is satisfactory and the accident is even action and issued M.V.I.Report/Ex.P.6 opining that the accident was not due to any mechanical defect of the vehicle.

During the cross-examination, P.W.8 stated that there was no trailer to the Tractor when he went for inspection, he examined only Tractor but not the Trailer.

13.P.W.9.A.Naarimani, Civil Assistant Surgeon deposed that on 27.09.2015 at about 11.00 am, she conducted postmortem examination over the body of Ambaala Suryanarayana, aged 50 years and opined that the deceased was died due to cardio-respiratory arrest due to complete transaction of spinal card and internal hemorrhage and issued

Postmortem Certificate/Ex.P.7.

14.P.W.10. M.Nageswara Rao, Inspector of Police deposed that on 26.09.2015 at about 11 PM, he received written report from PW1, registered the same as case in Cr.No.132/2015 under Section 304-A of

IPC, sent the original FIR/Ex.P.8 to the Court, recorded the statement of

P.W.1, on the next day visited the scene by securing mediators, recorded the statements of L.Ws. 2 to 5, prepared rough sketch/Ex.P.9 and scene observation report and also photographed the scene/Ex.P.10, conducted inquest over the dead body of the deceased, sent the dead body for postmortem examination, on the next day, recorded statements of L.W.6, who is the eye witness, served notice to the Accused under Section 41(a) 6 of Cr.P.C and after receipt of Postmortem Report and MVI Report, filed the chargesheet.

During the cross-examination, P.W.10 stated that none of the

Prosecution Witness stated the name of the accused or identified him.

15. After going through the prosecution witnesses none of the witnesses identified the accused nor even stated the name of the accused, moreover there is no consistency in the evidence of Prosecution

Witnesses and there is no eye witness to the accident. P.Ws. 3 and 4 are cited as list of witnesses to speak about their to know about the occurrence of accident and shifted the deceased to the Community

Health Center, Cheepurupalli by 108 Ambulance and present at the time of inquest, they stated that they went for coolie works and while returning the deceased sustained injuries by falling down from the Tractor and thus they did not support the case of prosecution and denied their prior statements as in Exs.P.2 and P.3 respectively.

Through the evidence of P.W.1 and other Prosecution Witnesses, the accident was proved near Venkateswara Colony Speed Breakers.

P.W.8, who is the Motor Vehicle Inspector stated that there was no trailer to the Tractor when he went for inspection, he examined only Tractor but not the Trailer and he did not state where he examined the crime vehicle and he particularly stated that he has not inspected the trailer, which was involved in the accident. P.W.5, who is said to have cited as Mediator stated that the scene was observed in his presence and police obtained his signature on Ex.P.4.Scene Observation Report, but he stated during his cross-examination that he does not remember where he affixed his thumb impression whether at Police Station or Scene of offence and he also stated that he does not know the contents of Ex.P.4, which creates doubt in the mind of the Court. Moreover P.Ws.1 and 2, who are the wife and son of the deceased are came to know witnesses and none of the witnesses identified the accused, though P.Ws.3 and 4 are cited eye 7 witnesses and to speak about the occurrence of offecne, they did not depose anything incriminating material against the accused. It is the case of the prosecution that due to negligent driving of the Accused, the deceased fell down from the Trailer and he succumbed to injuries, but during the cross-examination of P.W.1, he specifically stated that the

Trailer was fully loaded ground nut bags and the Tractors with heavy load, how it is possible to sit on the load when the Trailer is with heavy load and how can anyone balance by sitting on the Trailer, if anybody sat on the load in the Trailer, it will be negligence on their part. and goes in a low speed near speed breakers and the deceased belongs to his caste and moreover P.W.6 stated that he did not witness the occurrence of accident and he might have imagine the accident.

The identity of the accused was missing in this case, hence through the foregoing reasons, this court is inclined to give the accused benefit of doubt to the accused beyond all reasonable doubt.

16.In the light of the above discussion, this court is of the considered opinion that the prosecution failed to prove that the accused caused the accident in rash and negligent manner and caused death of the deceased. Accordingly this point is answered.

17. In the result, Accused is found not guilty for the offence punishable under Section 304-A of Indian Penal Code and he is accordingly acquitted under Section 255(1) of Cr.P.C. The bail bonds of the accused shall stand canceled. Accused is directed to execute bond for Rs.5,000/- under

Section 437-A of Cr.P.C. to appear before Appellate court, if any appeal is preferred. Unmarked property if any shall be destroyed after expiry of appeal time.

Typed to my dictation to Stenographer Grade III, corrected and

pronounced by me in open Court, this the 16th day of September, 2019.

Sd/- G.Spandana

8

JUDICIAL MAGISTRATE OF FIRST CLASS,

CHEEPURUPALLI.

APPENDIX OF EVIDENCE

Witnesses examined. For Prosecution: For Defence:

PW1: Amballa Manikanta -None-

PW2: Amballa Lakshmi

PW3: Meesala Satyam

PW4: Y.Ramudu

PW5: Amballa Satyam

PW6: G.Rambabu

PW7: Amballa Gowrinaidu

PW8: B.Rajarao, Motor Vehicle Inspector

PW9: Dr. Narimani, Civil Assistant Surgeon

PW10: M. Nageswara Rao, SI of Police

DOCUMENTS MARKED

For Prosecution:

Ex.P1: Report of PW1.

Ex.P2: 161 Cr.P.C Statement of P.W.3

Ex.P3: 161 Cr.P.C Statement of P.W.3

Ex.P4: Scene Observation Report

Ex.P5: Inquest Report

Ex.P6: M.V.I.Report

Ex.P7: Postmortem Certificate

Ex.P8: FIR

Ex.P9: Rough Sketch

Ex.P10: Photographs with CD

For Defence: Nil.

MATERIAL OBJECTS MARKED

NIL.

Sd/- G.Spandana

JUDICIAL MAGISTRATE OF FIRST CLASS,

CHEEPURUPALLI.

IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE,

CHEEPURUPALLI

Present: Smt. G. Spandana Judl. I Class Magistrate, Cheepurupalli.

Friday, the 3rd day of May, 2019

C.C.No. 28 of 2016

Between:

State represented by the Sub­Inspector of Police, Gurla Police station. …Complainant.

A n d :

Seera Ramesh, S/o Sominaidu, age 28 years, T.Kapu by caste, Driver of Auto bearing No.AP35 V 9756, Kella Village, Gurla Mandal.

…..Accused.

This case coming on 30.04.2019 for final hearing before me in the presence of A.P.P. for the State and of Sri K. Jagadeeswara Rao, Advocate for the Accused and the matter having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

1.The Sub­Inspector of Police, Gurla Police Station laid charge sheet against the accused in Cr.No.95/2015 for the offences punishable under

Sec.338, 337 IPC and Sec.196(a) of M.V.Act with the following allegations that :

PWs 2 and 3 are working in Nellimarla Jute Mill and on 11.11.2015 they attended to Mill for work. After completion of their work they returned to their village Kella on PW2’s cycle, and when they reached near new bridge located near Gurla Village at about 19.00 hours, the accused driver of auto rickshaw bearing No.AP35 V 9756 while proceeding on same direction from

Vizianagaram side towards Cheepurupalli drove the auto in a rash and negligent manner with high speed and hit their cycle, resulted both fell down on road and sustained injuries. LWs 4 and 6 and PW5 witnessed the incident.

PW1 shifted the injured to hospital. On statement of PW1, a case was registered and investigated into. After completion of investigation filed charge sheet against accused. 

2. Upon consideration of the material placed before the Court, cognizance for the offence punishable u/sec.338, 337 IPC and Sec.196 of M.V.Act was 2 taken against accused. On appearance of the accused, he was supplied with the copies of case documents as required u/sec.207 of Cr.P.C and he was examined u/sec.251 Cr.P.C. and the contents of charge sheet are read over and explained to him in Telugu for he denied the same, pleaded not guilty and claimed to be tried.

3.The Prosecution in order to prove its case against the accused, has examined PWs 1 to 6 and marked Exs.P1 to P5. The evidence of LWs 4, 5 and 8 were given up by the learned APP. After closure of the Prosecution evidence,

Accused are examined u/sec.313 Cr.P.C. explaining the incriminating evidence against him in the Prosecution evidence, for which he denied as being false and pleaded not guilty and reported defense evidence.

4.Heard arguments of learned Assistant Public Prosecutor and learned counsel for the accused.

5.Now the point for consideration is whether the Prosecution is 

able to prove its case against accused for the offence

punishable u/sec 338, 337 IPC and Sec.196 of M.V.Act,

beyond all reasonable doubt?

6.POINT: The prosecution has examined PWs 1 to 6 in support of its case.

PW1 during his chief examination deposed in the lines of his report and further stated PW3 contacted him over cell phone and informed about the accident. He also witnessed the auto at the scene of offence. Ex.P1 is his report. During cross examination, he stated that he did not witness the incident. It is true that by the time of accident, it was dark outside and there are no lights at the scene of offence. He was examined by the police after 24 hours of the accident. He alone went to the scene of offence in one auto from his village. Thus, as admitted by PW1 itself, he did not witness the incident directly and he is came to know witness. Hence, his testimony cannot be completely reliable. 

7.PW2 and PW3 are the victims who sustained injuries in the said incident. PW2 during his chief examination deposed that the auto came in a rash and negligent manner with high speed and hit their cycle, as a result, 3 they both fell down on the road and sustained injuries all over the body and also auto ran away on his stomach. He stated that driver of the crime vehicle is

Seera Ramesh who is villager and he witnessed the accident. But he do not remember the vehicle number of the accused. He do remember when he was examined in hospital or not. Whereas during his cross examination he stated that scene of offence is busy locality. Furthermore he was not in conscious after receiving injuries. He was shifted to the hospital in an auto. He gained conscious after one month of accident. He also did not state before the police about the crime vehicle number. After he gained conscious, police examined him in Gurla Police Station. He also admitted that it is true that one cannot see the vehicle coming on his behind. The evidence of PW2 itself is in multiple versions, he during his chief examination confidently stated that he witnessed the accident, whereas during his cross examination he again in another voice stated that he was not in conscious state after incident and he gained conscious after one month of the accident which is not trustworthy. He himself admitted one cannot see the vehicle coming on his behind, if such is the case, he would not definitely witnessed the crime vehicle which hit him. The multiple versions of PW2 itself hit the case of the prosecution.

8.Coming to the evidence of PW3, he during his chief examination deposed that he called PW1 and informed about the accident. PW2 sustained injuries on his abdomen as the auto ran away on his abdomen portion and also small injuries on his head. He do not remember whether he was examined by police or not. The driver of crime vehicle is one Seera Ramesh. During his cross examination, he stated that there are no street lights near the scene of offence.

Scene of offence is a busy locality. There are nearly 40 to 50 cycles going on the road by the time of the incident. He admitted that PW1 and 2 are his brothers. LWs 4 to 6 are his villagers and he has no disputes with them. It is true that he cannot see the vehicles coming on his behind and also cannot see the road properly as there were no lights at the scene of offence. He did not state before police, the directions on which he is going on cycle. PW2 gained conscious after four days of the incident. He gained re­conscious on next day 4 morning of the accident. From the above evidence of PW3, it can be made clear that scene of offence is a busy locality, as such there are 40 to 50 cycles going on the road by the time of incident. But in the case on hand, not even a single eye witness was examined in support of the case of prosecution. Though stated that LWs 4 and 5 witnessed the incident, they were given up by the learned

APP to the reasons best known to him. PWs 2 and 3 are victims and they are highly interested witnesses. The prosecution did not make any efforts to secure as many as possible eye witnesses who witnessed the incident. PW3 also admitted that he cannot see the road properly as there were no lights at the scene of offence and PW2 went to unconscious state after the incident, so he is the only one who can witness the crime vehicle after the incident, but he did not even state the number of the crime vehicle and further he stated that he do not remember whether he was examined by police or not. But he clearly stated that driver of the crime vehicle as one Seera Ramesh. 

9.PW4 Dr. T. Venkateswararao deposed that on 12.11.2015 at about 07.45 p.m., he examined PW2 and found 4 injuries out of which 3 injuries are simple in nature and last injury is grievous in nature. On the same day he examined PW3 at about 2 p.m., and found injuries which are simple in nature.

Accordingly he issued Ex.P2 and P3. According to FIR, the incident occurred on 11.11.2015, whereas according to Ex.P2 and P3, PWs 2 and 3 were examined on 12.11.2015 after delay of one day. PW4 during his cross examination stated that he do not know whether complainant went to police station or not prior to his examination. He do not know whether PW2 and 3 took treatment prior to his examination in any other hospital or not and he did not enquire them in that aspect. He also stated injuries in Ex.P2 and 3 can be sustained if any one falls on hard surface. 

10.PW6 M. Sanyasirao deposed that PW1 informed him about the accident and he went to scene of offence and shifted them to hospital. He came to know the driver of the crime vehicle is Seera Ramesh. During his cross examination, he stated that the scene of offence is busy locality. There are no lights at the scene of offence and it was dark at the time of accident. He stated before police 5 that the driver of the crime vehicle is Seera Ramesh. He clearly admitted that he did not witness the accident. 

11.PW6 and 7 are Investigating Officers. PW6 stated that on 18.12.2015 he received wound certificate from PW4 and on 22.12.2015 he received wound certificate of PW3 from PW4 and after completion of investigation filed charge sheet. PW7 deposed that on 13.11.2015 he received a telephone information from PW2 and he recorded the statement and others and registered a case.

During his cross examination he stated that the distance between scene of offence and police is 100 meters, as such, report was lodged on 13.11.2015 i.e., after delay of 2 days. 

12.Our High Court in the decision reported in State of AP rep. by the Public

Prosecutor, High Court of A.P., Hyderabad v. Katukuri Jeevarathnamma and another1 observed that “In the absence of any explanation for delay in registering the FIR and delay in reaching the court is fatal to the case of the prosecution.”

In the said case, the incident was occurred on 11.11.2015 at 19.00 hours and the FIR was registered basing on the medical intimation i.e., on 13.11.2015 at 19.00 hours and the distance between the place of occurrence is about 100 meters from the police station as stated by PW7. Observing all these infirmities in the case of prosecution, the Honourable High Court held that “In the absence of explaining the delay in FIR and delay in reaching FIR to the court is fatal to the case of prosecution.”

13.In the present case, as stated supra, the scene of offence is situated at a distance of 100 meters from police station and one can give the report to the police within ten minutes. But there is delay of 2 days in registering the FIR. The prosecution failed to give any proper explanation for the inordinate delay. Further, even though there are many co workers who observed the incident, but the prosecution could not able to secure any independent witnesses who directly witnessed the incident as to prove that the accused is the person who negligently drove the vehicle and responsible for the 1 2013(1) ALT (Crl) 152-(DB)(AP) 6 accident. PWs 1 and 4 are came to know witnesses and they did not witness the incident directly. PWs 6 and 7 are highly interested witnesses. Thus, in the absence of any independent witnesses, it is unsafe to hold that accused is the person who is responsible for the accident. 

14.From the foregoing discussions, this court is of the considered opinion that the prosecution failed to prove the essential ingredients of rash and negligence on the part of the accused and the accused should be given benefit of doubt which leads to his acquittal.

15.In the result, Accused is found not guilty of the offences punishable u/sec.338, 337 IPC and Sec.196 of MV Act and accordingly he is acquitted u/sec.255(1) Cr.P.C for the respective offences. Bail bonds of accused shall stand canceled. Accused is directed to execute bond for Rs.5,000/­ u/sec.437­

A Cr.P.C. to appear before Appellate court, if any appeal is preferred. 

Typed to my dictation to Stenographer Grade III, transcribed by him, corrected and pronounced by me in open Court, this the 3 rd day of May, 2019.

Sd/­ Smt. G. Spandana

JUDL. I CLASS MAGISTRATE, 

CHEEPURUPALLI. 

APPENDIX OF EVIDENCE

Witnesses examined. For Prosecution: For Defence: PW­1: M. Ramunaidu ­ None ­ PW­2: M. Swaminaidu PW­3: M. Satyam PW­4: Dr. T. Venkateswararao PW­5: M. Sanyasirao PW­6: K. Narayanarao PW­7: T.V.Tirupathi Rao 

DOCUMENTS MARKED

For Prosecution: Ex.P­1: Report. 

Ex.P­2: Ex.P2 Wound Certificate of PW2. 

Ex.P­3: Ex.P3 Wound Certificate of PW3.

Ex.P­4: FIR in Cr.No.95/2015. 

Ex.P­5: Rough Sketch. 

For Defence: NIL 

MATERIAL OBJECTS MARKED

NIL.

Sd/­ Smt. G. Spandana

JUDL. I CLASS MAGISTRATE, 

CHEEPURUPALLI. 

1

IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE,

CHEEPURUPALLI

Present: Smt. G. Spandana Judl. I Class Magistrate, Cheepurupalli.

Monday, the 7th day of August, 2018.

C.C.No.232 of 2012

Between:

State reptd. by the Sub Inspector of Police, Cheepurupalli Police Station. ….Complainant

A n d

1.Kondru Bhaskararao

2.Kondru Bodayya

3.Kondru Narasimhamurthy.... Accused.

This case is coming on 01.08.2018 for final hearing before me in the presence of learned Asst. Public Prosecutor for Prosecution and of Sri L.Nagaraju, Advocate for the accused and having 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, Cheepurupalli Police Station laid charge sheet against the accused u/s.447 , 324 and r/w. 34 of IPC in Cr.No.123/2012 with the following allegations that:

The Accused A1 to A3 and PW1 to PW3, PW6, LW4 and LW6 are the residents of

Gunidam village of Cheepurupalli. The village Gunidam is remote and troublesome village where two groups among the yadava community and they used to come into frequent clashes over petty issues. The lands of PW1 and accused are located side by side, but there were some ill feelings between them. While So, on 29.09.2012 at about 6.30 hours when

PW1 went to his land for weed-ling, then due to ill feelings, the accused trespassed into the land of PW1 and beat him with sticks and caused injuries. A1 beat PW1 with a stick and caused injury on head, while A2 and A3 beat him with sticks on his back and right hand.

PW2, PW3, PW6 and LW4 witnessed the offence, while LW6 shifted PW1 to CHC

Cheepurupalli for treatment.

On receipt of hospital intimation, LW9 rushed to the hospital and recorded the statement of PW1. Basing on the report of PW1, PW5 registered the case and investigated 2 into. After completion of investigation filed charge sheet against the accused. Hence, the charge.

2. Upon consideration of the material placed before the Court, cognizance for the offence punishable u/sec.447 r/w 34, 447 of IPC., was taken against the accused. On appearance of Accused, they were supplied with the copies of case documents as required u/sec.207 of Criminal Procedure Code and they were examined u/sec.239 Cr.P.C. with reference to the allegations made in the charge sheet. Then charge u/sec.324 and 447 IPC., was framed against the accused for which they denied the same, pleaded not guilty and claimed to be tried.

3.The Prosecution, in order to prove its case against the accused has examined PW1 to 7 and got marked Ex.P1 to Ex.P6 marked. The evidence of LW4, LW6 and LW9 are given up. After closure of the Prosecution evidence, Accused was examined u/sec.313 Cr.P.C.

explaining the incriminating evidence against them in the Prosecution evidence, for which they denied as being false and pleaded not guilty and reported no defence evidence.

4.Heard arguments of learned Assistant Public Prosecutor and learned counsel for the accused.

5.Now the point for consideration is:

Whether the prosecution has proved the guilt of the accused for the offence punishable u/sec. 324 and 447of IPC beyond all reasonable doubt?

6.POINT:-The prosecution has examined the PW1 namely Kona Apparao deposed that he know A1 to A3 , in the month of September, 2012 he went to his fields at about 6.30 a.m., so as to look after his agricultural land works and at that time, all the accused abused him in filthy language with the words “Lanja Kodaka” and that beat him with sticks and A1 beat him on right side of head and A2 beat him on his right hand and A3 beat on his waist.

PW1 further deposed that PW2 witnessed the same and called his nephew (sister’s son) by name Ramalaxmana (PW3) and he came to him and gave some water and shifted him in an auto to CHC, Cheepurupalli, and later he was shifted to Government Hospital, Vizianagaram for better treatment, that police recorded his statement, and put his thumb mark, Ex.P1 is the statement, police examined him, he can identity the sticks used by accused 1 to 3 , MO1 is bamboo stick used by accused while committing the offence against him.

3

7.During the course of cross examination he deposed that they are six brother and P.w.2 is his brother in law by courtesy and PW3 and PW6 are his parents and it was also revealed that he one of the accused along with PW7 prior to this case filed by the accused. He further stated that earlier two cases were filed against him alleging that he beat one Thammina

Krishnarao and there was also another case against him alleging that he burnt the casurina tope. He denied the suggestions put forth by the accused counsel that he did not state before the police that accused abused him in filthy language with the words “Lanja Kodaka” and beat him with sticks and also A.2 and A.3 beat him on his right hand and on his waist. He further stated that PW2 was at a distance of 10 to 15 feet at the time of incident. He denied that he did not state before the police that PW2 witnessed incident and called PW3 and he came to give some water and shifted in an auto to CHC, Cheepurupalli.

8. PW2 namely Y. Appalaswamy deposed that he know PW1 and accused 1 to 3, that about 5 or 6 years back at 06.30 a.m., while he was coming from his fields, he noticed PW1 lying on road with head injury, then PW1 requested him for water but he could not give him but PW3 fetched water for PW1 and he took him to CHC, Cheepurupalli, police examined him.During his cross examination he deposed he was not examined by the police and he came to the court at the instance of P.w.1 and he did not know anything about this case.

9.PW3 namely Y. Ramalaxmana deposed that he know PW1, 2 and also accused 1 to 3 , that about 5 years back at 06.30 a.m., PW1 was lying at his cattle shed, PW2 asked him to bring water to PW1 when he fetched water and search for you and they found them in running stage, PW1 sustained head injury, PW3 shifted him to police station and on referred on CHC, Cheepurupalli. During his cross examination he stated that the distance between the scene of offence and his cattle shed is about 300 meters and after occurrence of the incident he reached scene of offence with water and it was also revealed that accused filed case against him and also at District Court along with PW1. He admitted that he did not witnessed the incident.

10.PW4 namely Dr. M. Geethabhavani, Contractor CAS, Cheepurupalli deposed that on 29.09.2012 he received a requisition from Cheepurupalli police to examined PW1 and found injuries i.e., 1. Laceration Y shape over scalp right side size 7cm x 1 cm active bleeding present, age of the wound is one to two hours prior to examination, x ray opinion – skull 4 lateral view, no bone injury, she is of opinion that injury is simple in nature, accordingly she issued wound certificate, Ex.P2 is wound certificate. During her cross examination she stated that she examined the injured person at about 7.45 am and she has not found any injury over the body of PW1.

11.PW5 namely S. K. Abdul Maroof deposed that on 29.09.2012 on receiving medical intimation from CHC, Cheepurupalli, LW9 went there and recorded the statement of PW1, he registered a case and immediately he visited the scene of offence and examined PWs 1 to 3, LW4, P.W4 and LW6 and recorded their detailed statements, in the presence of mediators

PW6 and PW7, he prepared rough sketch and scene observation report, that on 08.10.2012 you surrendered before him and he sent him to judicial custody, he received wound certificate and after completion of investigation he filed charge sheet.

12.During his cross examination he admitted that the offence took place at the land of

A.1 and complainant came to the filed of A.1 and beat him on his both hands. He also stated that he recorded the statement of A.1 at CHC, Cheepurupalli but he pleaded ignorance as to whether there are previous disputes between both the parties or not. He also denied that all the witnesses are villagers of p.w.1 and has not examined any independent witnesses. He further admitted that complaint himself used filthy language against the accused. He also admitted that this case was filed firstly and he denied that complainant filed false case against the accused a counter blast. PW6 and PW7 turned hostile.

13.After scrutinizing the entire prosecution witnesses it is clear that they failed to prove the guilt of the accused as there are material improvements in the version of PW1 as stating all the accused abused him in filthy language and that A.2 beat him on his right hand and A3 beat him on his waist and PW2 witnessed the same and PW3 pledged him with some water.

These are all improvements made by PW1 during his chief examination which were not in

Ex.P1 statement. PW2 stated that he did not know anything about the case and only at the instance of PW1 he is deposing evidence, so the evidence of PW2 is not much helpful to the case of prosecution. Further PW3 stated in his chief examination that he witnessed the accused running away but in the cross examination he admitted that distance between the scene of offence and his cattle shed is 300 meters and he reached the scene of offence after the incident within 20 minutes with water. That means accused waited at the scene of offence 5 according version of PW3. Further PW2 who stated that he found PW1 lying down on the road, whereas PW3 stated that he found him lying down at his cattle shed so there is no corroboration between the prosecution witnesses. Further more PW4 also stated that there are no swelling injuries on the body of P.W1 and also no injuries on his head, hands and waist, whereas PW1 stated that A1 beat him on his head, hand and A.3 beat him on his waist. This clearly shows that PW1 deposed falsehood before the court. Hence the evidence of PW4 and also Ex.P2 wound certificate also did not support the case of the prosecution. Moreover,

PW5 also stated that the offence took place at the lands of A1 and admitted that complainant came to the fields of A1 and beat him on his both hands and further admitted that complainant himself used filthy language against the accused. Thus, from the evidence of

PW5 it is clear that complainant is accuser in this case but not the accused. The fact that

PW6 and 7 are the mediators to the scene observation report also did not support the case of prosecution. Further there was also a counter case to this case and it is clearly evident that there are previously ill feelings to the parties and filed cases against each other and some are convicted and in some cases, appeal was preferred and the same are pending. In Catena of

Judgments the Honourable Supreme Court held that it is not safe to convict that if there is previous enemocity between the parties, as there is chance of false allegations when there are previous disputes against them. Moreover PW2 and PW3 are also close relatives to PW1, if then there is no corroboration between the parties and hence prosecution failed to bring home the guilt of the accused beyond the reasonable doubt and accused are entitled for acquittal.

Accordingly point is answered.

16.In the result, Accused A1 to A3 are found not guilty for the offence punishable u/sec.447, 324 IPC, and they are accordingly acquitted under section 248(1) Cr.P.C. The bail bonds of the accused, shall stand cancelled. Accused A.1 to A.3 are directed to execute bond for Rs.5,000/- each u/s 437-A Cr.P.C. to appear before Appellate court, if any appeal is preferred. Mo.1 in Item No.103/2012 shall be destroyed after expiry of appeal time.

Dictated to my Personal Assistant, transcribed by him, corrected and pronounced by

me in open Court, this the 7 h day of August, 2018.

Sd/- Smt. G. Spandana

JUDL. I CLASS MAGISTRATE,

CHEEPURUPALLI.

6

APPENDIX OF EVIDENCE

Witnesses examined. For Prosecution: For Defence:

PW1: Kona Apparao None.

PW2: Yerra Appalaswamy

PW3: Yerra Ramalaxmana

PW4: Dr.M.Geetha Bhavani

PW5: Shaik Abdual Maroof (SI)

PW6: Yerra Suryanarayana

PW7: Bammidi Simhachalam

DOCUMENTS MARKED

For Prosecution:

Ex.P1:Statement of PW1 Ex.P2:Wound certificate Ex.P3:Original FIR in Cr.No.123/2012 dt.29.09.2012.

Ex.P4:Medical Intimation Ex.P5:Rough sketch Ex.P6;161CrPc statement of PW6

For Defence:

Nil.

MATERIAL OBJECTS MARKED

MO.1 is Bamboo Stick .

Sd/- Smt. G. Spandana

JUDL. I CLASS MAGISTRATE,

CHEEPURUPALLI.

1

IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE,

CHEEPURUPALLI

Present: Smt. G. Spandana Jududicial Magistrate of First Class, Cheepurupalli.

Thursday, the 19th day of September, 2019

C.C.No.206/2017

Between:

State represented by the Sub-Inspector of Police, Gurla Police station.…Complainant.

A n d :

1) Amballa Venkata Ramana, S/o Atchiyya, 30 years, Driver, Penubarthy Village, Gurla Mandal, Vizianagaram District.

2) Kandivalasa SAntosh, S/o Appanna, 24 yefars, Rajaka, Chintalapeta Village, Gurla Mandal, Vizianagaram District

3) Bogirothu Srinivasarao, S/o Late Appalanaidu, 43 years, Kapu by caste, Goshada Village, Gurla Mandal, Vizianagaram District

4) Rongali Appalanarayana, S/o Late Appalaswamy, 40 years, T.Kapu, Samyavalasa Village, Padmanabham Mandal, R/o. Moida Narayanapatnam Village, Nellimarla Mandal,

Vizianagaram.... Accused.

This case is coming on 17.09.2019 for final hearing before me in the presence of learned A.P.P. for the State and of Sri M.Narasinga Rao, Advocate for the A1 to A4 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, Gurla Police Station filed charge sheet against A1 to A4 in Cr.No.91/2017 for the offences punishable under

Sec.447, 379 r/w 34 of IPC with the following allegations:

On 05.07.2017 at about 13.00 hours L.W.7.S.Ravi, Sub-Inspector of

Police/P.W.3 along with his staff L.Ws. 1 to 5 rushed to the Champavathi

River near SSR Peta Village in Gurla Mandal on reliable information and noticed two Tractors and Trailers i.e. AP 35 W 4181/AP 35 T 8714 and AP 35 Y 0730/AP35Y0731 and A1 and A2, who are the drivers of the said vehicles got loaded the sand into the trailers, they were taken into custody and seized the Tractors with Trailers loaded with sand under the 2 cover of occurrence report, the same was registered as a case in

Cr.No.91/2017 and during the course of investigation served notice under

Section 41(A) of Cr.P.C against A1 to A4, as A3 and A4 are the owners of the said vehicle and after completion of investigation, filed chare sheet against all the accused.

02.Upon consideration of the material placed before the Court, cognizance for the offence punishable u/sec.447, 379 IPC was taken against A1 to A4. After appearance of the accused, the copies of the charge sheet and other documents were furnished to A1 to A4 as required as under section 207 Cr.P.C., and examined the accused under section 239 Cr.P.C., for which the accused denied the offence. Charge under Sections 447, 379 read with 34 of IPC have been framed against A1 to A4, read over and explained to them in Telugu, for which they pleaded not guilty and claims to be tried.

03.The Prosecution in order to prove its case against the accused has examined PWs 1 to 3 and marked Ex.P1 to P4. The rest of witnesses i.e.,

LWs 2 to 5, 7 and 8 were given up by the learned APP. After closure of the prosecution evidence, the A1 to A4 were examined under section 313

Cr.P.C., by putting incriminating evidence available against them, for which they denied the same and pleaded not guilty and reported no defense evidence.

04.Heard arguments of learned Assistant Public Prosecutor and learned counsel for the accused.

05. Now the point for consideration is:

“Whether the Prosecution is able to prove its case against all the accused for the offence under Sections 447, 379 r/w 34 IPC, beyond all reasonable doubt?

06. Point:- The Prosecution has examined PWs 1 to 3 in support of its case. PW1/A.Satyanarayana, HC 127 deposed during his chief examination that on 05.07.2017, on information to PW3 SI of Police i.e.,

S.Ravi, they went to the Champavathi River near SSR Peta Village in 3

Gurla Mandal and found two tractors illegally loaded the sand into the

Trailers from the prohibited area without having any license, thus they arrested the drivers i.e. A1 and A2, on enquiry they revealed that A3 and

A4 are the owners of the said vehicles, then they seized the material and arrested the accused under the cover of occurrence report/Ex.P.1, which bears his signature.

During the cross-examination, he stated that there are MDO

Office and MRO Office situated beside the Police Station and they have to take mediators along with them to the scene of offence when they go for raid, but they rushed to the scene of offence without securing mediators and no mediators came forward at the scene of offence and the same 0was mentioned in Ex.P.1.

07.PW2/P.Mohan Krishna during chief examination stated that on 15.07.2017 at about 10.00 AM, himself and L.W.7.Y.Srinivasarao went along with the Police to Champavathi River, where the Police dumped two loads of sand of the Tractor into the river under the cover of Mediators

Report/Ex.P.2, which bears his signature.

During the Cross-Examination, he stated that there was no written notice to him but, he received phone call from unknown police constable from Gurla Police Station.

08.PW3/S.Ravi, Sub-Inspector of Police deposed that on 05.07.2017 on information he caught hold two tractors loaded with sand near Champavathi River at SSR Peta Village in Gurla Mandal, then he registered FIR/Ex.P.3 and seized the sand loaded Tractors and arrested all the Accused under the cover of Occurrence Report/Ex.P.1 and addressed a letter/Ex.P.4 to the Tahsildar to know whether the scene of offence is a prohibited area or not and after the completion of investigation filed charge sheet.

During the Cross-Examination, he stated that prior to proceeding to the scene of offence, they did not enquire whether the scene of offence is a prohibited area or not and the Ex.P.4 does not 4 disclose the survey number and specific area of scene of offence and he did not serve any notices to the mediators at the time of dumping.

09.PWs 1 to 3 were subjected to cross examination and P.W.1 stated that they tried to secure the mediators even before going to the scene or when seizing the vehicles and at the time of arrest of the accused and they have to take mediators along with them when they go for raid and he also stated that no one came forward to act as mediators.

P.W.2 is a mediator and he does not about the arrest and seizure of the crime vehicles and he stated only dumping of sand into the river by the Police and moreover he stated some unknown Police called him to act as mediator.

P.W.3/S.Ravi, Sub-Inspector of Police during cross examination admitted that he did not enquire while proceeding to the scene whether the scene of offence is prohibited area or not and he stated in his chief examination that he sent a letter/Ex.P.4 to the

Tahsildar to know about the scene of offence whether prohibited area or not, but in the cross-examination, he stated that he even did not mention the Survey number and specific area of the scene of offence, which arises doubt in the mind of the Court that how can a person or official assume about the nature of particular area without knowing its survey number or specific area. Moreover he stated that he did not serve any notices to the mediators about the dumping of sand and P.W.2 also stated the same.

The Police officials even did not try to secure mediators at the time of arrest of the accused and seizure of the vehicles and sand, which creates doubt on the arrest and seizure.

10. According to Sec.100(4) Cr.P.C., at the time of search and seizure, it is the obligation on the part of the officer who conducted the search and seizure to secure local inhabitants to prove the seizure and when the officials failed to secure the independent witnesses, the search and seizure is not free from doubt. In the case on hand, PWs 1 and 3 are

Investigating Agency and PW2 is VRO who is also an official Witness.

5

P.W.s 1 and 3 even did not state that were no mediators and they even did not try to secure mediators at the scene of offence, where the seizure taken place. The Prosecution also failed to examine L.W.8.Smt P.Adilaxmi,

Tahsildar of Gurla Mandal, who issued Certificate regarding the scene of offence is prohibited area and etc facts was not examined though the said witness is crucial in this case and LW.7, Y.Srinivasarao, who accompanied PW2 to the scene of offence, is also not examined by the

Prosecution and they were given up by the learned APP for the reasons best known to him. As can be seen from Ex.P1, the scene of offence is

Champavathi River near SSR Peta Village, which is generally a busy locality with many villagers, but PW3 did not make any effort to secure independent mediators at the place of offence or neither took pain to examine Village Thalayari or other officials to show as witnesses. Lack of independent witnesses is fatal to the prosecution case. Hence, basing on the evidence of PWs 1 to 3, it is not safe to conclude that the accused have committed the offence alleged by the prosecution. Thus, the prosecution case cannot be relied upon and court cannot convict the accused basing on the evidence of the official witnesses. Hence, there is any amount of doubt and suspicion in the prosecution case with regard to apprehension of accused at the scene of offence while loading the sand and therefore the accused are entitled for benefit of doubt. In the light of the above discussion, prosecution has utterly failed to prove its case against the accused beyond all reasonable doubt. Therefore, this court is of the considered opinion that accused are entitled for acquittal.

Accordingly, the point is answered against the prosecution and in favour of the accused.

11. In the result, A1 to A4 are found not guilty for the charges under

Sections 447, 379 read with 34 of IPC and they are accordingly acquitted under Section 248(1) Cr.P.C. The bail bonds of all the accused shall stand cancelled. A1 to A4 are directed to execute bond for Rs.5,000/- each under Section 437-A of Cr.P.C. to appear before Appellate court, if any 6 appeal is preferred. The Tractors and Trailers which were already given in interim custody shall hold good after expiry of appeal time.

Typed to my dictation to Stenographer Grade III, transcribed by him, corrected and pronounced by me in open Court, this the 19th day of September, 2019.

Sd/- G.Spandana

JUDICIAL MAGISTRATE OF FIRST CLASS,

CHEEPURUPALLI.

APPENDIX OF EVIDENCE

Witnesses examined.

For Prosecution: For Defence:

PW1: A.Satyanarayana, HC -None-

PW2: P. Mohan Krishna, VRO.

PW3: S. Ravi, SI of Police

DOCUMENTS MARKED

For Prosecution:

Ex.P1: Occurrence Report

Ex.P2: Mediators Report.

Ex.P3: F.I.R

Ex.P4: Letter issued to Tahsildar

For Defence: Nil.

MATERIAL OBJECTS MARKED

NIL.

Sd/- G.Spandana

JUDICIAL MAGISTRATE OF FIRST CLASS,

CHEEPURUPALLI.

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