Smt. J. Maithreyi

IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE: MANCHERIAL

Present: - Smt. MAITHREYI, I Addl. District Judge, Mancherial

TUESDAY THE 18 TH DAY OF APRIL 2023

C.M.A.No. 02 OF 2020

Between:

1)Katikeneni Ram Mohan Rao S/o late Venkateshwar Rao, 48 years, Businessman, R/o H.No.1-25, Ayyannapalem village, Bollapalli Mandal, Guntur District, AP State

2)Katikeneni Ravindra Babu S/o late Venkateshwar Rao, 45 years, Businessman, R/o H.No.1-28, Ayyannapalem village, Bollapalli Mandal, Guntur District, AP State

3)Katikeneni Hanmantha Rao S/o Late Papa Rao, 74 years, Agriculturist, R/o H.No.4-43, Naspur village, R/M Mancherial, District Mancherial, Telangana State

4)Katikeneni Janardhan Rao S/o Late Papa Rao, 70 years, Businessman, R/o Chennur Gate, Mancherial, District Mancherial, Telanagana State … APPELLANTS AND

1) Puppireddy Thirupathi Reddy S/o Raji Reddy, 41 years, R/o Neelwai, R/M Vemanpalli, District Mancherial

2) Thatikonda Laxmi W/o Vidya Sagar, 48 years, Business, R/o H.No.5-237, Indira Nagar, District Mancherial

I ADJ, MNCL

2C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial

3) Ayitha Sudhakar Reddy S/o Rajam, 45 years, R/o Plot No.4, Street No.7, Aditya Nagar, Dr. A.S. Rao Nagar, Kisara Hyderabad

4) Santhosham Ramakrishna Reddy S/o Bapu Reddy, 39 years, Co. Ratna Madhukar Reddy, Tilak Nagar, Reddy Kirana Store, Mancherial, District Mancherial

5) Chindam Lavanya W/o Shashi Kumar, 38 years, C/o Reddy Kirana Store, Thilak Nagar, Hamaliwada, Mancherial, District Mancherial

6) P. Venu Rao S/o Mohan Rao, 42 years, Government Employee, R/o Qr.No.D/A Zone, Ramakrishna, R/M Mandamarri, District Mancherial

7) Chippa Laxmaiah S/o Rayalingu, 52 years, Employee, R/o H.No.7-330, Teegalpahad, R/M Mancherial, District Mancherial

8) Katti Mallesham S/o Ramaswamy, 58 years, R/o H.No.7-131, Post Srirampur, R/M Mancherial, District Mancherial

9) Neerati Narsaiah S/o Chinna Rajam, 55 years, Singareni employee, R/o Q.No.D-2877, CCC Naspur, R/M Naspur

10) Gandham Laxman S/o Rajaram, 44 years, Tailoring business, R/o H.No.8-146/1, Teegalpahad, R/M Naspur, District Mancherial

11) Peddapalli bapu S/o Venkata Narsaiah, 55 years, Singareni employee, R/o H.No.5-35/7, Krishana colony, Srirampur, R/M Naspur

I ADJ, MNCL

3C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial

12) Ratnam Santhosh Kumar S/o Madhukar Reddy, 32 years, Businessman, R/o H.No.23/12/19, Reddy Kirana Stores, Thilak nagar, Mancherial

13) Kashetty Venkatesham S/o Chinna Bapu, 58 years, Singareni employee, R/o H.No.1-18, Katapally village and mandal

14) Gourishetty Bhaskar S/o Narayana, 40 years, Agriculturist, R/o H.No.1-84, Venkataraopet, R/M Luxettipet, District Mancherial

15) Bachalu enkata Ramana S/o Rajaiah, 43 years, Teacher, R/o H.No.1-104, Belal, R/M Kadam, District Nirmal

16) Vanarasi Gangamma W/o Uppalaiah, 52 years, Housewife, R/o H.No.19-500/9, NTR Nagar, Mancherial, District Mancherial … RESPONDENTS

ON APPEAL AGAINST THE ORDER AND DECREE DATED 227.03.2018

PASSED BY THE PRINCIPAL JUNIOR CIVIL JUDGE, MANCHERIAL

IN

I.A.No. 115 OF 2017

IN

O.S.No. 26 OF 2017

Between:

Katikeneni Ram Mohan Rao and 3 others … PETITIONERS AND Puppireddy Thirupathi Reddy and 15 others … RESPONDENTS

I ADJ, MNCL

4C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial

This Civil Miscellaneous Appeal is coming on before me for final hearing on 16.03.2023 in the presence of Sri G. Kota Mallaiah, Advocate for appellants, Sri P. Lalitha Prasad, Advocate for respondents No.2, 7, 10 to 12, and 14; Sri M. Ravinder Rao, Advocate for respondents No.6, 8 and 16; Sri Kotha Sathaiah and Smt. K.Satyasrilatha, Advocate for respondents No.4 and 13 and on hearing both sides and perusal of the material on record and this matter having stood over for consideration till this day, this Court delivered the following:

O R D E R

1) This Civil Miscellaneous Appeal is filed against the order and decree dated 27.03.2018 passed by the Principal Junior Civil Judge, Mancherial dismissing the petition in IA 115 of 2017 in OS 26 of 2017 filed under Order 39 Rule 1 CPC.

2) The appellant herein is the petitioner in IA 115 of 2017 and plaintiffs in OS 26 of 2017, while the appellants herein is the petitioners and plaintiffs in the said petition and suit respectively. For the sake of convenience, the parties herein are referred to as they are arrayed before the Court below.

The facts of the case in brief are as follows: 3)

i) One Katikaneni Papa Rao was the original owner and possessor of petition schedule property. The said Papa Rao was having three sons i.e.,

Katikaneni Venkateshwar Rao, the father of petitioner Nos.1 and 2, Hanumanth

Rao (petitioner No.3) and Janardhan Rao (petitioner No.4). The petition schedule property was in exclusive possession and enjoyment of Katikaneni Papa Rao

I ADJ, MNCL

5C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial during his life time and after his death, the legal heirs of Papa Rao i.e., father of petitioner Nos.1 and 2 by name Venkateshwar Rao and petitioner Nos.3 and 4 have succeeded the petition schedule property and ever since they have been in the possession and enjoyment of the same as true owners. After death of

Katikaneni Papa Rao, the patta of the petition schedule property is mutated in favour of Katikaneni Venkateshwar Rao, being elder and kartha of joint family property.

ii) Thereafter, on 22-11-2003 the petition schedule property was partitioned into three equal shares by metes and bounds and it was reduced into a partition deed vide registered document No.6776/2003 of Sub-Registrar,

Mancherial. Thereafter, the father of petitioner Nos.1 and 2 and petitioner Nos.3 and 4 names were mutated in the revenue records as owners and possessors, further they are in the continuous possession over the schedule property without interference of any other person. Though the land was partitioned, all the petitioners are in the joint possession of the petition schedule property. While the things stood so, the respondent Nos. 1 to 6 have no manner of right or interest over the petition schedule property have started interfering over the peaceful possession and enjoyment of the petitioners/plaintiffs and started encroaching

I ADJ, MNCL

6C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial the petition schedule property, by saying their land abutting to the petition schedule property. When the petitioners resisted the illegal acts of the respondents, the respondents gave evasive reply and tried to interfere in the petition schedule property. The respondents/defendants are highly influenced persons of the locality and some of the respondents are having real estate back ground and with the help of other different persons working on daily wage basis, they are trying to interfere in the possession and enjoyment of the petitioners.

Thereby on 15-1-2017 with an ulterior motive the respondents have tried to interfere with peaceful possession of petitioners over the petition schedule property, however with the help of neighbourers, the petitioners have resisted the illegal acts of the respondents.

iii) On 30-1-2017 the petitioners have approached the police, Mancherial and requested for their help to stop the illegal acts of the respondents in encroaching and interfering into the petition schedule property, but the police have expressed their inability to take any action against the respondents by stating that the matter is civil in nature and advised the petitioners to approach the court for their redressal. It is the further case of petitioners that they are having prima face case and balance of convenience in their favour and the illegal interference of the respondents can be stopped only by order of civil court.

I ADJ, MNCL

7C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial

Accordingly they have filed the main suit for partition pending disposal of the main suit.

4) On registering the petition, notices were ordered to the respondents/defendants. Out of them, except respondent Nos.3, 5 and 9, the remaining respondents made their appearance through their advocates, accordingly respondent Nos.3, 5 and 9 remained exparte.

5) The respondent Nos.2, 7, 10, 11 and 14 have filed counter. The respondent

Nos.1, 4, 9 and 12 have a memo adopting the counter of respondent Nos.2, 7, 10, 11 and 14. The counter of these respondents shows that they have denied the averments of affidavit, further Katikaneni Papa Rao was the original pattadar of the petition schedule property and after his demise, his sons have succeeded the petition schedule property. It is also denied by these respondents that on 22-11- 2003 a partition was effected and a registered partition deed was executed between the sons of Paparao by name Venkateshwar Rao, Hanumanth Rao and

Janardhan Rao. According to these respondents, only to grab the properties of the respondents, the said collusive partition deed is introduced for preparing entries in the revenue records and it has no validity in the eye of Law. These respondents also contended that the petitioners never in the possession of petition schedule

I ADJ, MNCL

8C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial property. According to respondents, the total extent of land in Sy.No.328 of

Garmilla is about Ac.28-00 gts. and the total land was alienated by Katikaneni

Venkateshwar Rao for his necessities of his family. One Boddula Ramaswamy has purchased Ac.1-14 gts. of land from Marishetti Komuralah and Katikaneni

Venkateshwar Rao. Since 1980 onwards the said Boddula Ramaswamy became absolute owner and possessor of Ac.1-14 gts. Of land in Sy.No.328 of Garmilla and even revenue records were also ated 30-4-2001. Katikaneni Venkateshwar

Rao further sold Ac.0-31 gts. of land to Sathini Rajamallu, Sathini Lingaiah and

Sathini Rajesham, who in turn sold the land to one Katikahen Hasmukhlal

Rathod with the consent and knowledge of Venkateshwar Rao and they have executed registered sale deed vide document No.2412/L/86, dated 7-8-1986 in favour of Hasmukhlal Rathod. However by the time of registration of sale deed, the said Katikaneni Venkateshwar Rao was not available, as such he could not sign in the sale deed. But subsequently he raised objection basing on the entries of his name in the revenue records. In order to avoid unnecessary litigations, the purchaser Hasmukhlal Rathod paid him the share in the sale consideration and got executed registered sale deed again with Katikaneni Venkateshwar Rao through registered deed No.2448/98, dated 17-9-1998. Later on the purchaser

Hasmukhlal Rathod has sold the same to Boddula Ramaswamy and the said

I ADJ, MNCL

9C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial transaction was recognized by the revenue authorities vide proceedings

No.ROR/6A/Garmilla/340/2001. The purchaser Boddula Ramaswamy was also issued pattadar pass book No.439964 by the revenue authorities concerned. Thus

Boddula Ramaswamy became absolute owner and peaceful possessor of land to an extent of Ac.1-14 gts, abutting to the land an extent of Ac.0-31 ¼ gts. of land in

Sy.No.328 of Garmilla and was enjoying the same as owner and possessor of the same without interruption of any other person including the petitioners herein. In addition to this, the said Boddula Ramaswamy has also purchased Ac.2-12 gts. of land in Sy.No.326, JUDGE Garmilla which is abutting to the land purchased by him in Sy.No.328 and soon after purchase of the said land, the pattadar Boddula

Ramaswamy has divided it into house plots and converted into residential one.

The respondent No.7/Chippa Laxmalah has purchased one of the plot No.19 to an extent of 200 sq. yds. from Boddula Ramaswamy vide document No.87/2001,

dated 11-1-2001 for a valid consideration of Rs. 20,000/- and another plot bearing

No.31 vide document No.92/2001, dated 11-1-2001 for a valid consideration of

Rs.26,100/-. Since Boddula Ramaswamy received sale consideration from respondent No.7, he delivered the possession of open plots i.e., No.19 and 31.

Subsequently the respondents have constructed the houses in the purchased plots and let out a house to tenants. In the second house, the daughter of Boddula

I ADJ, MNCL

10C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial

Ramaswamy is residing. Since the date of purchased, the respondent No.7 is enjoying the said houses and its plots as owner and possessor without interruption of anybody. Even mutation is also effected in the revenue records in favour of the purchaser confirming the sale transaction. The houses constructed by the respondent No.7 are numbered as H.No.27- 395/15-21 and 27-395/15-32 of

Mancherial.

6) The respondent No.2/Thatikonda Laxmi has purchased 234.26 sq. yds. of land in Sy.No.328 vide plot No.16 from Boddula Ramaswamy through registered sale deed vide document No.15/2001, dated 2-1-2001 and after paying sale consideration, she was inducted in the possession of the said property and since then she has been enjoying the same. The revenue records were also mutated in favour of respondent No.2 vide proceedings No.ROR/38/2002, dated 5-8-2002, later on the respondent No.2 gifted her plot to her son by Jume Ashok vide registered sale deed No.1753/2015, dated 11-2- 2015 thus said Ashok became owner of the said plot.

7) The respondent No.14/Gourishetti Bhaskar has purchased plot No.32 to an extent of 268 sq, yds. in Sy.No.328 of Garmilla from Boddula Ramaswamy vide

I ADJ, MNCL

11C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial registered document No.13/2001, dated 2-1-2001. Later he was inducted in the possession, ever since the date of purchase he has been enjoying the same and even mutation was 1889 favour vide proceeding No.ROR/40/2002, dated effected 5-8-2002 Later respondent No.14 has constructed a house No.27-395/15-27 of

Mancherial and let out to tenants. The respondent No.10/Gandham Laxman has purchased two plots i.e., 20 and 21 to an extent of 405 sq. yds. in Sy.No.326 from

Boddula Ramaswamy vide registered sale deed No.94/2001, dated 11-1-2001, later he was inducted into possession, ever since the date of purchase the respondent No.10 has been enjoying the same as owner and possession, even

ROR proceedings also mutated in his favour vide No.185/2001, dated 17-11-2001.

Later the respondent No.10 has constructed basement around his plot. The respondent No.11/Peddapalli Bapu has purchased 210 sq. yds. in Sy.No.326 from one Thakur Harika through registered sale deed No.12500/2012, dated 17-12- 2012. Thakur Harika has purchased 410.4 sq. yds. from one Therala Anthaiah through registered sale deed No.1994/2012, dated 18-2-2012. Therala Anthaiah purchased said plot from Chippakurthi Rajesham vide registered sale deed

No.2695/2005, dated 19-4-2005. Chippakurthia Rajesham has purchased the said property from Boddula Ramaswamy. Thus, the respondent No.11 has became owner and possessor of 210 sq. yds. of land in Sy.No.326 of Garmilla and ever

I ADJ, MNCL

12C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial since he has been enjoying the same. Even the revenue records mutated in his favour and respondent No.11 constructed the measuring No.21-395/15-29 of

Mancherial and paying the taxes to the Municipality, Mancherial. According to these respondents, the property of respondents and others are within the suit schedule boundaries. It is submitted that earlier two suits were filed i.e., OS

No.73/2014 on the file of this court and OS No.173/2009 on the file of Hon'ble

Senior Civil Judge's Court, Mancherial against these respondents and some others

in respect of suit land seeking injunction. The said suits were dismissed by the said courts. Now the petitioners have invented false story and filed the main suit and came up with present petition for wrongful gain. The respondents also contended that earlier on 5-1-2014 some realtors namely Ellasani Srinivas and

Surmilla Prasad have trespassed into the properties of purchasers and dismantled some of the basements constructed around the plots. In this regard the police

Mancherial has registered a case in Cr.No.7/2014 for the offence u/sec.447, 427 r/w.34 IPC. Since the offence is well established, the police have arrested the said culprits and sent them for judicial custody. The said fact clearly goes to show that much prior to the suit itself, the respondents have constructed basements around their respective plots and some the respondents have constructed houses therein, thus they are in physical possession, which are clubbed into the suit property.

I ADJ, MNCL

13C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial

When the respondents have constructed the basements and house in their plots in the year 2013 itself, and when they are residing therein, the question of trying to dispossess the petitioners either on 15-1-2017 or 29-1-2017 does not arise. It is also case of the respondents that the petitioners very well knew about the physical possession of the respondents over their purchased property within the schedule boundaries, having knowledge the same, the petitioners intentionally suppressed the real facts and represented the court as if the petition schedule property is agricultural land. Hence, the petitioners are not entitled for equitable relief of injunction, more particularly when the petitioners are out of possession. It is also the case of respondents that most part of the Petition schedule property area is already covered with houses and Received basements, which shows the petition schedule property is not in the possession of petitioners. There are some more persons, who are actually owned part of petition schedule property in bits, who constructed houses and who are not made as parties to these proceedings. In order to create troubles to the respondents and blackmail them and to extort money, the present petition is filed by creating bogus and sham documents.

Therefore, the petition is liable to be dismissed.

I ADJ, MNCL

14C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial

8) The respondent No.13 has filed the counter denying the petition averments. According to him, the alleged interference of the respondents either on 15-1-2017 or 29-1-2017 is false and created for the purpose of the suit.

According to him, there is no prima facie case or balance of convenience in favour of the petitioners and petitioners have filed the petition with false and baseless allegations. According to respondent No.13, he is the absolute owner of 220 sq.

yds. of land in Sy.No.328 situated at Garmilla bounded by:

Thereby the boundaries of petition schedule property and the boundaries of the open plot of respondent No.13 is not one and the same. According to respondent No.13, one Rudrangi Ramulu and one Gopagoni Janardhan have sold 12622 sq. yds. of land in Sy.No.328 of Garmilla to one Dikonda Radha Krishna

Murthy and three others vide registered sale deed No.2024/2005, dated 22-3-2005 and immediately the purchasers were inducted in the possession of the land purchased by them. Later on the said Dikonda Radha Krishna Murthy and others have executed General Power of Attorney in respect of the said land to one

Madasu Venugopal, S/o. Bapu, R/o.Mandamarri vide registered document

No.135/2006, dated 1-12-2006 and the said GPA holder has sold out 220 sq. yds.

of land in Sy.No.328 of Garmilla in favour of respondent No.13 vide registered

I ADJ, MNCL

15C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial sale deed No.9809/2006 and he was inducted into possession and ever since he has been in the peaceful possession over his piece of land. Thus the land of petitioners and the land of respondent No.13 are quite different from each other, having different boundaries. The petitioners have not concerned with regard to the land of respondent No.13 and the present petition is filed only with an ill intention to grab the land of respondent No.13 under the guise of suit by obtaining exparte orders and further by suppressing the real facts.

9) The respondent Nos.6, 8, 15 and 16 have filed the joint counter denying the petition averments. These respondents contended that the contention of the petitioners about acquisition of petition schedule property by Katikaneni Papa

Rao and after his demise his three sons by name Katikaneni Venkateshwar Rao,

Hanumanth Rao and Janardhan Rao have partitioned the land under registered partition deed vide document No.6776/2003 and mutation in their favour is

TSESSION false. These respondents have also denied that they ever tried to interfere with the peaceful possession and enjoyment over petition schedule property or even made such attempts. According to them, the persons are never in the possession over the petition schedule property and on the other hand respondent No.6 is in the possession and enjoyment of 289 sq. yds., having

I ADJ, MNCL

16C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial purchased the same from Aula Ramaswamy through registered sale deed

No.1405/2002 and the said sale deed is implemented in the revenue records vide proceedings No.ROR/6A/Garmilla/151/2002.

According to respondent No.8, he has also purchased Ac.0-12 gts. of land from the owner Enagandula Lingaiah through registered sale deed No.4334/2003,

dated 1-7-2003 and the same was implemented in the revenue records vide

proceedings No.ROR/6A/724/2004, dated 31-3-2004. Subsequently the respondent No.8 has sold some land to others by taking consideration and now the purchasers of respondent No.8 are in the possession of the same.

The respondent No.15 has also purchased 220 sq. yds. of land from its owner vide registered sale deed No.2109/2006, dated 13-3-2006. The respondent

No.16 has purchased 926.86 sq. yds. of land from its owner Bheemireddy Venkata

Reddy through registered sale deed No.8269/2011, dated 2-11-2011 and the sale deed was implemented in the revenue records vide proceedings

No.ROR/6A/Garmilla/283/2012, dated 19-3-2012. The vendor of respondent

No.16 has purchased the said land along with other lands from Mekala Srinivas and Namani Sammaiah through registered sale CIVIL deed No.810/2003, dated

I ADJ, MNCL

17C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial 4-2-2003 and the said document was implemented in the revenue records vide

Proceedings No.ROR/6A/Garmilla/830/2003, dated 31-8-2003. The said Mekala

Srinivas and Namani Sammaiah have purchased the lands from Bodduna

Ramaswamy through registered sale deed No.138/2001, dated 19-1-2001 and the said document was implemented in the revenue records vide proceedings

No:ROR/6A/Garmilla/339/2001, dated 30-4-2001. These respondents further submitted that as a matter of fact the pahanies filed by the petitioners itself shows that the land in suit survey number has got more than 18 acres and there are various individuals also having title, even according to the pahanies filed by the petitioners and the pahanies also shows that the names of vendors of respondent

Nos.6, 8, 15 and 16 as pattadars and subsequently the respondents. Thereby the petition is liable to be dismissed.

10) During enquiry, the petitioners got marked Exs.P.1 to P.30, while the respondents got marked Exs.R.1 to R.31 on their behalf.

11) After hearing both sides and on consideration of the documentary evidence the trial Court dismissing the petition in IA 115 of 2017 on 27.03.2018.

I ADJ, MNCL

18C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial

12) Aggrieved by the said order, the petitioners filed this Civil Miscellaneous

Appeal and urged the following, apart from other usual grounds:

i) The order of trial Court is erroneous and contrary to law and the order is neither sustainable in law nor on facts.

ii) The lower Court failed to observe that the Respondents are in the habit of purchasing non existing lands and creating trouble to the real and original land owners.

iii) The trial Court failed to evaluate the possession of the parties and the conclusion made by him is utterly false and baseless and against the existing real facts. In a case for Bare Injunction, the main criterion to be looked is the possession of the land evidenced by the documentary records.

The lower Court failed to notice that the Appellants ownership and possession are fully established by the registered documents and revenue records.

iv) The Appellants submit that that the lower court wrongly taken support to his conclusion on mere presumptions and assumptions.

v) The trial Court grossly erred that the suit land is converted into residential plots though there is no proof and evidence to that effect and came to wrong conclusion. The total suit land was alienated by Katikeneni

Venkateshwar Rao who is the father of the Appellants No. 1 and 2 and brother of Appellants No. 3 and 4 though the revenue records evidence

I ADJ, MNCL

19C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial otherwise showing the Prima Facie title and possession of the Appellants.

vi) The trial Court grossly erred and come to wrong conclusion R.O.R.

Proceedings cannot be taken into consideration in case of open agriculture lands and that the Appellants failed to prove their possession over the suit schedule property since all pahanies filed by the appellants show that suit schedule property is kept as “Padava”.

vii) The trial Court failed to come wrong conclusion that no Injunction can be granted when petitioners have not led any evidence to prove their claim that the respondents are trying t to interfere in their peaceful possession and that respondents succeeded that they are in possession of respective lands and granting temporary Injunction in favour of Appellants would cause irreparable loss to the Respondents rather than Appellants.

viii) The trial Court grossly neglected the revenue and R.O.R Proceedings and the panchanama drafted by Mandal surveyor which are marked as

Exhibit P- 1.P-2 and Ex-P3 and the certified copies of pahanies pertaining to the year from 1955-1958 to 2015-2016 are all certified copies which are marked as Ex-P4 to P- 30 issued by the revenue and public authority could

Prima Facie evidence the title and possession of the Appellants over the suit schedule property. The Pahanies filed by the Appellants clearly show the established Patta and title of the Appellants and the suit land was kept un-cultivated and the possession Colum in pahanies naturally left as "PADAVA" which means fallow.

I ADJ, MNCL

20C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial ix) The trial Court failed to notice the source of ownership and possession of the Appellants in a suit for Bare Injunction in the presence of clear revenue records and registered documents.

Hence, the order of the trial Court is devoid of merits and it may be set aside.

Neither of the parties to this appeal adduced any evidence in this appeal. 13)

Heard both sides. 14)

Now the points that arise for determination in this Appeal are: 15)

1) Whether the impugned order and decree dated 27.03.2018 in IA 115 of 2017 in OS 26 of 2017 passed by the learned Principal

Junior Civil Judge, Mancherial is sustainable or it requires any interference of this Court while sitting in appeal, if so, with what observations?

2) To what relief?

POINT No.1:

16) This petition is filed seeking relief of temporary injunction, so the petitioners have to prove that prima facie case, balance of convenience is in

I ADJ, MNCL

21C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial favour of petitioners, if injunction is not granted, there is every possibility of causing irreparable loss to the petitioners.

17) It is the case of the petitioners that one Katikaneni Papa Rao was the original owner and possessor of petition schedule property. The said Papa Rao was having three sons i.e., Katikaneni Venkateshwar Rao, the father of petitioner

Nos.1 and 2, Hanumanth Rao (petitioner No.3) and Janardhan Rao (petitioner

No.4). The petition schedule property was in exclusive possession and enjoyment of Katikaneni Papa Rao during his life time and after his death, the legal heirs of

Papa Rao i.e., father of petitioner Nos.1 and 2 by name Venkateshwar Rao and petitioner Nos.3 and 4 have succeeded the petition schedule property and ever since they have been in the possession and enjoyment of the same as true owners.

The father of petitioner Nos.1 and 2 by name Venkateshwar Rag was the elder son of Papa Rao. Said K.Papa Rao was in the possession and enjoyment of petition schedule property during his life time and after his death, the father of petitioner Nos.1 and 2 being Kartha of joint family, looked the affairs of suit land.

After his death, the property was divided among the petitioners by way of registered partition deed vide document No.6776/2003, the land was divided into three equal shares and the names of Venkateshwar Rao, petitioner Nos.3 and

I ADJ, MNCL

22C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial 4 names were implemented in the revenue records, however the properties continued to be remained joint. The respondent Nos.1 to 16 without interest or title over the petition schedule property have tried to interfere in the possession of petitioners, and in spite of reporting the matter to the police, the police have failed to take any actions against the respondents and advised the petitioners to approach the civil court for redressal as the matter is civil in nature. Accordingly they filed the main suit for perpetual injunction and present application for temporary injunction pending disposal of the main suit.

18) In support of their case, Ex.P1 to P30 are marked on behalf of the petitioners. Ex.P1 is the copy of order of appeal passed by the Revenue Divisional

Officer, Mancherial vide Rc.No.G/2809/2013, dated 28-6-2014, in which the

Revenue Divisional Officer after full- fledged enquiry passed orders directing the

Tahsildar, Mancherial to implement the names of the petitioners/plaintiffs in the revenue records. Ex.P2 is the proceedings of Tahsildar, Mancherial, dated 01.09.2014, the MRO passed orders to enter the names of petitioners herein for

Sy.No.328/2 extent Ac.1.38 ¾ guntas by deleting the names of old pattadars.

I ADJ, MNCL

23C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial

Ex.P3 is the copy of panchanama conducted by Mandal Surveyor, as per panchanama, they visited Sy.No.328 and fixed the boundaries for Sy.No.328, the location sketch map also prepared. Ex.P4 is the certified copy of pahani for the years 1955 to 1958 in respect of Sy.No.328/A of Garmilla, in which the name of

Katikaneni Papa Rao is shown as pattedar, in column No.16 the name of Bala

Narsaiah is shown.

Ex.P5 is the certified copy of pahani for the year 1959-60 it shows the name of Katikaneni Paparao as pattadar. Ex.P6 is the certified copy of pahani for the year 1961-62, it reflects the name of Katikaneni Paparao as pattedar, the same entries found in Ex.P7 CC of pahani for the year 1963-64, Ex.P8 pahani for the year 1965-66, Ex.P9 pahani for the year 1971-1972.

Ex.P10 pahani for the year 1981-1982 in which the name of Katikaneni

Venkateshwar Rao is shown as pattedar, in possessory column the name of

Kummari Raju, Marishetti Komuraiah is mentioned. The same entries found in

Ex.P11 pahani for the year 1982-1983, Ex.P12 pahani for the year 1983-1984.

Ex.P13 pahani for the year 1984- 1985, it reflects the name of Katikaneni

Venkateshwar Rao is shown as pattedar and possessory column. The same entries found in Ex.P14 pahani for the year 1985-86, Ex.P15 pahani for the year 1986-1987, Ex.P16 pahani for the year 1988-1989, Ex.P17 pahani for the year 1990-

I ADJ, MNCL

24C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial 1991, Ex.P18 pahani for the year 1991-1992, Ex.P19 pahani for the year 1992-1993,

Ex.P20 pahani for the year 2000-2001.

Ex.P21 pahani for the year 2001-2002 in which in pattedar column the name of Katikaneni Venkateshwar Rao is mentioned but in the possessory column GPA No.1/2013 is mentioned and the name of Md. Zaheer Ahmed is shown as possessor. The same entries found in Ex.P22 certified copy of pahani for the year 2002-2003, Ex.P23 certified copy of pahani for the year 2003-2004.

Ex.P24 is the pahani for the year 2009-2010, it shows for Sy.No.328/2 the names of R. Chandramouli, Mohd. Ghouse, Mohd. Reshma, MA Khadeer are mentioned. Ex.P25 is the pahani for the year 2013-2014, it shows the names of petitioners shown as pattedars. Ex.P26 is the pahani for the year 2014-2015, it reflects the same entries mentioned in Ex.P25. Ex.P27 is the proceedings of

Tahsildar dated 09.10.2016 by entering the names of petitioners herein as pattedars for Sy.No.328/2 extent Ac.1.38 ¾ gunta. Ex.P28 is the pahani for the year 2015-2016, it reflects the names of petitioners in pattedar column. Ex.P29 is the encumbrance certificate it shows the partition deed among the petitioners herein vide document no.6776/2003 for the period from 01.01.2017 to 01.02.2016.

Ex.P30 is partition deed among the petitioners herein in respect of suit schedule property.

I ADJ, MNCL

25C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial

18) Ex.R1 certified copy of registered sale deed shown one Hasmukhlal Rathod has purchased Ac.0-31 gts. of land in Sy.No.328 of Garmilla from Shathini

Rajamallu,, Shathini Lingaiah, Shani Rajesham for Rs.19,200/-. Ex.R2 certified copy of registered sale deed vide document No.15/2001, dated 2-1-2001 shows

Boddula Ramaswamy has sold 234.26 sq. yards of land in Sy.No.328 of Garmilla to Thatikonda Laxmi (R2). Ex.R3 certified copy of registered sale deed vide document No.87/2001, dated 11-1-2001 shows Boddula Ramaswamy has sold 261 sq. yds. of land in Sy.No.328 of Garmilla to one Chippa Laxmaiah(R7) for

Rs.26,100/-. Ex. R4 is Encumbrance Certificates showing the execution of sale deed under Ex.R3. Ex.R5 and Ex.R6 special notice of property tax issued to respondent No.7 in respect of H.No.27-395/15-21 of Hamaliwada, Mancherial.

Ex.R7 is bunch of electricity bills (6) in respect of respondent No.7 to show that house No.27-395/13-21 is having service connection No.63118-38863 and payment of electricity bill for his service connection.

Ex.R8 and R9 computerized pahanies for the fasli 1425 shows the name of respondent No.7 as owner and possessor of land in Sy.No.328/7/1 to an extent of 0.0380 sq. yards.

Ex.R10 certified copy of registered sale deed No.941/2005, dated 11-1-2001 shows Boddula Ramaswamy has sold plot Nos.20 and 21 to respondent

I ADJ, MNCL

26C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial

No.10/Gandham Laxman for valid consideration of Rs.40,500/-. Ex.R11 is copy of

ROR proceedings in the name of respondent No.10. Ex.R12 certified copy of registered sale deed vide document No.12500/2012, dated 17-12-2012 shows one

Takhur Harika has sold 210.4 sq. yards of land in Sy.No.326 of Garmilla to one

Peddapalli Bapu (R11). Ex.R13 certified copy of registered sale deed

No.2695/2005, dated 20-4-2005 shows one Chippa Rajesham has sold 410.4 sq.

yds. of land in Sy.No.326 of Garmilla to Therala Anthaiah.

Ex.R14 certified copy of agreement of sale-cum-GPA (with possession) vide document No.1994/2012 shows GPA is executed by Terala Anthaiah in favour of

Takur Harika in respect of 410.4 sq. yards in Sy.No.326 of Garmilla. Ex.R15 is another registered sale deed vide document No.5806/2012, dated 9-5-2012 executed by Therala Anthaiah in favour of Takur Harika in respect of 210.4 sq.

yards of land in Sy.No.326 of Garmilla.

Ex.R16 is the computerized pahani for the fasli year 1424 in respect of 173 sq. yds. in Sy.No.326/44/1 of Garmilla in respect of Peddapalli Bapu. Ex.R17 is the ROR proceedings in favour of Peddapalli Bapu in respect of 210.4 sq. yds. in

Sy.No.326 of Garmilla.

I ADJ, MNCL

27C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial

Ex.R18 is the ROR proceedings in favour of Thakur Harika in respect of 210.4 sq. yds. of land in Sy.No.326 of Garmilla. Ex.R19 is the ROR proceedings in favour of Terala Anthaiah in respect of 410.4 sq. yds. in Sy.No.326 of Garmilla.

Ex.R20 is the certified copy of registered sale deed vide document

No.13/2001, dated 2-1-2001 executed by Boddula Ramaswamy in favour of

Gourishetti Bhaskar in respect of 268 sq.yds., plot No.32 in Sy.No.328 of Garmilla.

Ex.R21 is the registered sale deed vide document No.1275/2000, dated 9-5-2000 executed by Hasmukhlal Rathod in favour of Boddula 18-2019 Ramaswamy in respect of land in Ac.0-31 4 gts. of land in Sy.No.328/2A of Garmilla.

Ex.R22 is the ROR proceedings in favour of G.Bhaskar in respect of 268 sq.

yds. of land in Sy.No.328/15 of Garmilla. Ex.R23 is the computerized pahani for the fasli year 1426 in respect of 221 sq. yds. in Sy.No.328/8 in favour of

Gourishetti Bhaskar. Ex.R24 is the special property tax in respect of Gourishetti

Bhaskar pertaining to H.No.27-395/15-27,

Ex.R25 is the copy of ROR proceedings in favour of Gourishetti Bhaskar.

Ex.R26 is the certificate in favour of Boddula Ramaswamy. Ex.R27 is the copy of

ROR proceedings in favour of Boddula Ramaswamy in respect of Ac.0-31 gts. of land in Sy.No.328/2 of Garmilla. Ex.R28 is the ROR proceedings in favour of

Hasmukhlal Rathod in respect of Ac.0-31 1/4 gts. of land in Sy.No.328/2 of

I ADJ, MNCL

28C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial

Garmilla. Ex.R29 is the docket order in O.S.No.171/2009 on the file of Hon'ble

Senior Civil Judge, Mancherial, in which declaration suit filed by Renikindi

Chandramouli and others against Sunkari Ammakka and others, was dismissed for default.

Ex.R30 is the special notice for property tax in favour of Peddapalli Bapu for H.No.27-395/15-29 of Hamaliwada, Mancherial. Ex.R31 is the certified copy of registered sale deed vide document No.2448/98, under which Hasmukhlal

Rathod has purchased Ac.0-31 ¼ gts, of land in Sy.No.328 of Garmilla from one

Katikaneni Venkateshwar Rao.

19) The above discussion shows that the source of claiming title by the petitioner and by the respondents herein is of ultimately from K. Venkateshwar

Rao. The petitioners claimed it from K. Papa Rao who is father of petitioner No.3 and 4 and grandfather of petitioner No.1 and 2. The property was mutated on the name of father of petitioner No.1 and 2 after death of K. Papa Rao. Though the property stands on the name of K. Venkateshwar Rao being elder son of K. Papa

Rao but the petitioner No.3 and 4 who are own brothers of K. Venkateshwar Rao are also having share in the suit property. The petitioners are not disputing their rights over the suit land according to them, it is their joint family property, so that

I ADJ, MNCL

29C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial they got partitioned the suit land under partition deed document No.6776/2003 under Ex.P30.

20) Further, it is clear from the record that K. Venkateshwar Rao being elder son of Papa Rao executed GPA in favour of one Mohd Jaffar Ahmed, however, he cancelled said GPA. In spite of cancellation of GPA, Mohd. Jaffar Ahmed knowing the fact that of cancellation of GPA, he has filed suits OS 39 of 2004 and also OS 934 of 2005 before Junior Civil Judge, Luxettipet and the said suits are dismissed for default. In the year 2006, he sold away the said land to one R.

Chandramouli, Md. Ghouse, Md. Reshma, MA Khadeer and patta was implemented vide proc.No.ROR/Garmilla/202/2006.

21) The document Ex.P1 and Ex.P2 shows that the petitioners herein have disputed the mutation of land on the name of purchasers from GPA holder

Mohd. Jaffar Ahmed. On that the RDO has conducted enquiry, in the enquiry he has given a specific finding that proceedings of Tahsildar, Mancherial mutating the names of purchasers from GPA holder is set aside and Tahsildar is directed to make necessary entries in revenue record and to delete the names of purchasers and enter the names of petitioners herein. In view of orders of RDO under Ex.P1,

I ADJ, MNCL

30C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial the Tahsildar has issued proceedings under Ex.P2 by deleting the names of purchasers and the names of father of petitioner No.1 and 2, the petitioner No.3 and 4 are entered for Ac.1.38 3/4th gunta. Thereafter, the panchanama was conducted under Ex.P3 and the boundaries are fixed, the location sketch also annexed to the Ex.P3 showing the suit land.

22) The petitioners have filed the documents which clearly show that the name of Katikaneni Papa Rao is shown as issadar in the pahani from the year 1955 to 1958 under Ex.P4, the name of one Bala Narsaiah is shown as possessor. Further, in the pahani for the year 1959-1960, pahani for the year 1961-1962, pahanies for the years 1963-1964, 65, 66, 71-72, 81-82 under Ex.P4 to Ex.P10, the name of Papa

Rao is recorded pattedar and possessor. Thereafter pahanies under Ex.P11 to

Ex.P21, pahanies from the year 1982-1983 to 2001-2002 reflects the name of K.

Venkateshwar Rao father of petitioner No.1 and 2 as owner and possessor.

Ex.P22 CC of pahani for the year 2002-2003, shows the land in Sy.No.328 of

Garmilla was divided into sub divisions, the land in Sy.No.328/2 extent Ac.1.38 3/4th gunta was in possession of K. Venkateshwar Rao, whereas the other sub divisions of Sy.No.328 in the name of several persons.

I ADJ, MNCL

31C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial

23) Ex.P23 pahani for the year 2003-2004, the name of K. Venkateshwar Rao shown as owner and in the possessory column the name of Mohd. Jaffar Ahmed is mentioned in possessory column, in the reference column the name of Jaffar

Ahmed was mentioned. Later, Ex.P24 pahani for the year 2009-2010 shows the names of R1 to R4 in possessory column. Thereafter, in view of Ex.P1 and Ex.P2 the names of K. Venkatwhwar Rao, petitioners No.2 and 3 are recorded in the pahani for the year 2013-2004 under Ex.P25, under Ex.P26 pahani for the year 2014-2015, Ex.P27 the ROR proceedings, Ex.P28 CC of pahani for the year 2015- 2016 also reflects the names of petitioners herein. Ex.P30 is registered partition deed showing the partition of suit land among the petitioners herein.

24) The documents clearly shows that initially the land stands on the name of

K. Papa Rao, later on after his demise it was mutated on the name of K.

Venkateshwar Rao, he executed registered GPA so the name of GPA holder

Mohd. Jaffar was recorded in possessory column. Later on, as per the orders of

RDO, the purchasers from Mohd. Jaffar was deleted and again the names of petitioners are entered.

25) When we comes into the case of respondents, the careful scrutiny of counters of respondents shows that one Boddula Ramaswamy purchased Ac.1.14

I ADJ, MNCL

32C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial gunta from Marishetti Komuraiah and K. Venkateshwar Rao (father of petitioner

No.1 and 2) in the year 1980, so that the name of Boddula Ramaswamy has been entered in the revenue record vide Proc.No.ROR/6A/Garmilla/340/2001 dated 30.04.2001. Since 1980 onwards said Boddula Ramaswamy became owner and possessor of Ac.1.14 gunta in Sy.No.328. Further, K. Venkateshwar Rao sold

Ac.0.31 1/4th gunta to Sattini Rajamallu, Sattini Lingaiah and Sattini Rajeshwar, who sold said land to one Hasmukhlal Rathod under registered sale deed document No.2412/86, subsequently said purchaser got registered sale deed for the same land from A. Venkateshwar Rao under registered sale deed No.2448/98

dated 17.09.1998 under Ex.R31. Said Hasmukhlal Rathod sold it to Boddula

Ramaswamy. Therefore, his name was mutated for the extent of Ac.0.31 1/4th gunta vide ROR proc.No.6/A/Garmilla/340/2001, pattedar passbook and title deed passbook also issued in his favour.

26) It is to be noted that there is no dispute with regard to ownership of

Boddula Ramaswamy over Ac.2.12 gunta in Sy.No.328, Ac.0.31 1/4th gunta in

Sy.No.328. The respondents have contended that said Boddula Ramawamy have purchased some more extent of land i.e., Ac.2.12 gunta in Sy.No.326 abutting to land purchased by him in Sy.No.328, he made plots and converted into

I ADJ, MNCL

33C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial residential one. However, they have not mentioned what was the mode of acquisition of land extent Ac.2.12 gunta in Sy.No.326. The respondents without mentioning the same contended that Boddula Ramaswamy purchased this land.

27) Further, the respondents have submits R7 purchased 200 sq.yards of land in plot No.19, another plot No.31, under registered sale deeds docu.No.87/2001 under Ex.R3, document No.92/01 from Boddula Ramaswamy and R7 constructed the houses bearing No.27-395/15-21 and 27-395/15-32. The R7 is also claiming the land from Ramaswamy. The respondent No.2 purchased plot No.16 extent 234.26 sq.yards from Boddula Ramaswamy under sale deed No.15/2001, R2 gifted this land to his son under gift deed No.1753/2015 dated 11.02.2015. The respondent No.2 also claiming the land from Ramaswamy. The respondent

No.14 claimed plot No.32 268 sq.yards under sale deed No.13/2001 under Ex.R21 from Ramaswamy. He constructed the house also bearing No.27-395/15-27. R10 purchased 405 sq.yards plot No.20 and 21 under sale deed No.941/2005 under

Ex.R10 from Boddula Ramaswamy and constructed basement. R11 purchased 210 sq.yards from Thaqur Harik under sale deed No.12500/2012 under Ex.R12, said Harik purchased 410.4 sq.yards from one Anthaiah under sale deed

No.1994/2012 under R14, said Anthaiah purchased from Rajesham under sale

I ADJ, MNCL

34C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial deed No.2695/2005 under Ex.R13, said Rajesham purchased from Boddula

Ramaswamy. R11 also claiming title from Boddula Ramaswamy.

28) R13 purchased 220 sq.yards from one Rudrangi Ramulu, one Gopagiri

Janardhan, they sold 126.22 sq.yards to one Deekonda Radhakrishna Murthy and 3 others vide registered sale deed No.2024/2005, they executed GPA in favour of one M. Venu Gopal under docu.No.135/2006, said GPA holder sold out 220 sq.yards in favour of R13 under sale deed No.9809/2006.

29) Further, R6 purchased 289 sq.yards from Boddula Ramaswamy under sale deed No.1405/2002, R8 purchased 0.12 gunta of land from Enagandula Lingaiah under sale deed No.4334/2003. R8 has sold some extent of land to others. R15 purchased 220 sq.yards under registered sale deed No.2109/2006, R16 purchased 926.86 sq.yards from Bheemireddy Venkat Reddy under sale deed No.8269/2011.

His vendor purchased said land from Mekala Srinivas, N. Sammaiah, said persons purchased the land from Boddula Ramaswamy under sale deed no.138/2001.

30) The contention of the respondents is that the lands of petitioners and the lands of respondents are quite different. The boundaries are also different. The

I ADJ, MNCL

35C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial petitioners are no way concerned with the lands of respondents. As from the averments in the petition, the petitioners claimed the land in Sy.No.328. The documents i.e., Ex.R1, R2, R3 shows the purchase of land in Sy.No.328. However, the registered sale deed under Ex.R12, R13, R14, R15, shows they claimed the land in Sy.No.326. Further, the ROR proceedings under Ex.R17, R18, R19, shows it is pertaining to Sy.No.326. Further, Ex.R20 is pertaining to Sy.No.328. Ex.R21 is the registered sale deed executed by Hasmukhlal Rathod in respect of Ac.0.31 1/4th gunta in Sy.No.328/2A. This 0.31 1/4th gunta is not the suit subject matter herein, this land was sold by K. Venkateshwar Rao in favour of Hasmukhlal Rathod under sale deed No.248/1998. So, this land is not subject matter herein. Further,

Ex.R23 is pahani in respect of Sy.No.328 extent 221 sq.yards, in favour of

Gourishetti Bhaskar. He has constructed the house No.28-395/15-27, he paid property tax under Ex.R24. It means the constructions are there.

31) The above documents clearly show that the respondents herein are claiming the land in Sy.No.326 and 328. The suit subject matter herein is

Sy.No.328 only. The documents of respondents containing the Sy.No.326. At first, the petitioners have to establish though the respondents are claiming the land in Sy.No.326 but it is pertaining to Sy.No.328 only. The respondents claimed that Boddula Ramaswamy made plots in his purchased land and sold the plots to

I ADJ, MNCL

36C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial the respondents herein. However, they did not file any single document to show that the plots were made and the extent of it. The layout is the proper document to prove that the plots were made. They did not file approved or unapproved layout. No doubt, the ROR proceedings have been issued in favour of petitioners in respect of Ac.1.38 3/4th gunta of land. The sale deeds filed by the respondents’ shows that they are claiming the land from Boddu Ramaswamy only. The appeal

before the RDO is filed against one Zaheer Ahmed, Chandramouli, Md. Ghouse,

Reshma, MA Khadeer. The respondents herein never stated they purchased the land from the respondents under Ex.P1 so as to say that in spite of cancellation of

GPA, the GPA holder executed sale deeds, the respondents herein have purchased their lands from the respondents in RDO appeal under Ex.P1, so that they cannot claim title from them. Under such circumstances, this Court cannot say the land under Ex.P1 and Ex.P2, and the subject matter herein is one and the same. At first, the petitioners have to prove that the property purchased by the respondents and the property under Ex.P1 and Ex.P2 are one and the same. From the documents it is not clear the property is one and the same. Moreover, the

Sy.No is also not tallying. There is no such material before the Court that the properties are one and the same. The respondents have filed the documents to show that the houses are constructed in the suit property and they paid property

I ADJ, MNCL

37C.M.A.No. 2 of 2020 On the file of I Addl.District Judge, Mancherial taxes. Unless it is proved by the petitioners that the lands possessed by the respondents are covered under petition schedule property no injunction can be granted in favour of petitioners. The respondents proved their possession since 2003, so there is no question of interference in the year 2018 as contended by the petitioners herein. There are so many triable issues, a detailed enquiry should be conducted, after trial only, the Court can come to the conclusion that who is having valid title and who has been in possession. So there is no prima facie, balance of convenience in favour of petitioners. The trial Court has rightly passed the order, so there is no question of interference. Point No.1 is answered accordingly.

POINT NO.2:

24) IN THE RESULT, this CMA is dismissed by confirming the order and decree dated 27.03.2018 passed by the Principal Junior Civil Judge, Mancherial in

IA 115 of 2017 in OS 26 of 2017. Both the parties shall bear their own costs.

Typed by the Stenographer to my dictation and after correction

pronounced by me in open Court on this the 18th day of April 2023.

I ADDITIONAL DISTRICT JUDGE

MANCHERIAL

I ADJ, MNCL

ND SC.No.10 of 2022 Page 1 of 27

IN THE COURT OF I ADDITIONAL SESSIONS JUDGE, AT MANCHERIAL

Present: Smt.J.Maithreyi, I Additional Sessions Judge, Mancherial

Tuesday the 18th day of April 2023

ND SC No. 10 of 2022

Name of the Complainant State represented by Circle Inspector of Police, PS Mancherial Rural

Name of the Accused A1 Madavi Manik Rao S/o Chandu, 46 years, Kolam, Agriculturist, R/o H.No.4- 82, Nagapur village, Danthanpally GP, Utnoor Mandal, District Adilabad

A2 Athram Sone Rao S/o Kondu, 38 years, Kolam, Tractor driver, R/o H.No.4-68, Kolamguda village, Shampur GP, Utnoor Mandal, District Adilabad

A3 Nathari Vamshi S/o Gattaiah, 24 years, Madiga, Coolie, R/o H.No.9-49/2, Vidyanagar, CCC Naspur

Offence under section 20(a)(b)(i)(ii)(B) read with Section 8(c) of NDPS Act

Plea of the accusedNot Guilty

Finding Not Guilty

Sentence or OrderIn the result, A1 to A3 are not found guilty of the offence punishable under Section 20(a)(b)(i)(ii)(B) read with Section 8(c) of NDPS Act and accordingly, they are acquitted of the charge under section 235(1) Criminal Procedure Code. The bail bonds of the accused shall be in force for a period of six months as mandated under

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 2 of 27 section 437-A of Cr.P.C. MO1 and MO2 shall be destroyed after appeal time is over. MO3 shall be confiscated to state.

Name of the counsel for prosecution Sri Puli Rajamallu, Addl. Public Prosecutor

Name of the counsel for DefenceSri N. Rajeshwar Rao, Advocate Sri Bheema Ranjith, Advocate

This case coming before me on 27.03.2023 for final hearing in the presence of Sri Puli Rajamallu, Additional Public Prosecutor for the State and of Sri N. Rajeshwar Rao, Advocate for A1 and A2 and Sri Bheema Ranjith, Advocate for A3 and on hearing both sides 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 Circle Inspector of Police, PS Mancherial Rural filed a charge sheet against the accused for the offences punishable under Section 20(a)(b)(i)(ii)(B) read with Section 8(c) of NDPS Act.

The story of prosecution as per charge sheet is that:- 2.

On 28.05.2018 at 1630 hours, the PW1/R. Uma Sagar, SIP, CCC Naspur received a reliable information that two persons came to Vidyanagar CCC

Naspur to sale dry Ganja. On that he secured the presence of the PW5/M. Jyothi,

Tahsildar, Naspur and two panchas i.e., PW4/Sanke Prathiba and

LW7/Surmilla Karthik went to Vidyanagar CCC Naspur with Police party i.e.,

PW2/K. Srinivas/PC, LW3/Ch. Thirupathi/PC and LW4/N. Srinivas/PC and photographer (PW3/Rachamalla Venkata Swamy) in Government Bolero vehicle at 1700 hours. On seeing the Police vehicle two persons started running

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 3 of 27 in order to escape. But the Police party apprehended them successfully. Then

PW5/M. Jyothi, Tahsildar enquired with accused about search then he found one person carrying a hand bag, on searching a hand bag found dry Ganja in a polythene cover. At the request of PW1/R. Uma Sagar, SIP and PW5/M. Jyothi,

Tahsildar, the PW4/Sanke Prathiba and LW7/Surmilla Karthik enquired the A1 & A2 separately, on that the two persons disclosed their identity as 1) Madavi

Manik Rao and 2) Athram Sone Rao. The first person confessed that he used to cultivate Ganja in his agriculture field and after making the wet Ganja dry he along with his brother-in-law i.e. A-2 used to sale. He along with Athram Sone

Rao/A2 earlier sold dry Ganja twice to one Nathari Vamshi/A3. Today also he along with Athram Sone Rao/A2 visited Vidyanagar CCC Naspur and Athram

Sone Rao/A2 sold 500 grams of dry Ganja to Nathari Vamshi/A3 for Rs. 1500/- and while he is carrying bag the Police seized one hand Bag containing 700 grams of dry Ganja. The confession of A1 recorded and seized 700 grams of dry

Ganja from his possession duly drawing 50 grams of sample dry Ganja for chemical analysis. Later the A-2 also confessed the same as stated by the A1 and got seized net cash Rs. 1500/- towards the sale proceeds of dry Ganja sold to A3.

The Police seed net cash Rs. 1500/- from the possession of A2 under cover of confession cum-seizure panchanama before the above mediators in the presence of the Tahsildar Naspur. The PW3/R. Venkata Swamy photographed the accused and Police party in presence of PW4/Sanke Prathiba and LW7/Surmilla

Karthik and PW5/M. Jyothi, Tahsildar. He noted the scene of offence particulars

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 4 of 27 in crime detail form before the PW4/Sanke Prathiba and LW7/Surmilla Karthik and drawn the rough sketch of crime scene. After completion of confession and seizure panchanamas of A1 & A2, then led the panchas, Tahsildar Naspur and

Police party and shown the house of A3 at Vidyanagar CCC Naspur where he apprehended the A3 and at his request, the punchas enquired with A3. On that,

A3 voluntarily confessed that he earlier purchased dry Ganja from A 1 & A2 on cheap rate and sold it on higher rate. Today he purchased 500 grams of dry

Ganja from A2 for Rs. 1500/- and got seized 500 grams of dry Ganja from his house. The confession of A3 recorded and seized one plastic bag containing 500 grams of dry Ganja from his house at the instance of A3 under a cover of confession cum-seizure panchanama duly drawing 50 grams of sample dry

Ganja for onward transmission for chemical analysis before the same mediators in presence of Tahsildar Naspur also photographed the A3 by the PW3 and the

LW9/V.R. Gunasheela, Assistant Dierctor, FSL, Hyderabad obtained signature of PW4/Sanke Prathiba and LW7/Surmilla Karthik after read over and explained it contents and noted the crime scene particulars in crime detail form

before the same mediators and also drawn the rough sketch of crime scene and

A1 to A3 brought to Police Station CCC Naspur along with seizure contraband and registered a case Suo-moto issued FIR in Cr. No. 83/2018 U/S 8(C) r/w 20(B) NDPS Act 1985 and handed over the CD file to PW6/S. Pramod Rao, CIP for further investigation.

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 5 of 27

Subsequently, PW6/S. Pramod Rao, CIP took up the investigation into this case. He examined and recorded the statements of PW2/K. Srinivas/PC,

LW3/Ch. Thirupathi/PC and LW4/N. Srinivas/PC and photographer (PW3/Rachamalla Venkata Swamy). He visited the scene of offence and also the house of A3 at Vidyanagar, CCC Naspur. He effected the arrest of A1to A3 on 28.05.2018 and sent them to concerned Court for judicial remand. He forwarded two sample seized Ganja to RFSL, Hyderabad for analysis.

Subsequently, on his transfer, LW11/Y. Krishna Kumar, CIP took up further investigation. He collected relevant documents and after completion of investigation, he has filed charge sheet.

3) The offence was taken cognizance by the I Additional Sessions Judge,

Adilabad for the offences punishable under Section 8(A) read with 20(B) of

NDPS Act against A1 to A3 and it was numbered as NDSC No.11 of 2019.

4) At the stage of framing of charges, due to establishment of this court, the case was made over to this Court from Special Judge for trial of Electricity Cases

Act –Cum- I Additional Sessions Judge, Adilabad vide proceedings

Dis.No.1926/2022/Admin, dated 01.06.2022 of Prl. District and Sessions Court,

Adilabad.

5) On appearance of the accused and on hearing the learned counsel and learned public prosecutor charge was framed for the offence under Section

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 6 of 27 20(a)(b)(i)(ii)(B) read with Section 8(c) of NDPS Act, read over and explained to the accused in vernacular language, they pleaded not guilty and claimed to be tried.

6) During the course of trial the prosecution examined PWs 1 to 6 and Exs.P1 to P9 are marked and MO1 to MO3 marked. PW1/R. Uma Sagar, SIP who detected and issued FIR. PW2/K. Srinivas, PC who assisted PW1 in apprehending the accused. PW3/Rachamalla Venkata Swamy is photographer.

PW4/Sanke Prathiba is panch for confession and seizure panchanama. PW5/M.

Jyothi, Tahsildar who recorded confession statement of accused and seizure of property. PW6/S. Pramod Rao is investigating officer who arrested A1 to A3.

7) On completion of prosecution evidence, accused are examined under

Section 313 Cr.P.C they denied the entire incriminating evidence on record against them, but has not chosen to adduce any evidence on their behalf. Case of accused are of total denial and they are innocents and reported no defence witnesses.

8) After hearing the arguments of both sides, today the matter stood for judgment.

Now the sole point that falls for consideration is: 9)

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 7 of 27 “Whether the prosecution could prove the charges against A1 to A3 for the offences punishable under Section 20(a)(b)(i)(ii)(B) read with Section 8(c) of NDPS Act, beyond all reasonable doubts or not?”

P O I N T:

10) The allegations of the prosecution is that A1 is found in possession of 700 grams of ganja, A2 confessed he already sold 500 grams of ganja to A3 and he got an amount of Rs.1,500/- from A3, in view of confession of A1 and A2, the investigating officer went to the house of A3 and seized 500 grams of ganja from the possession of A3.

11) The prosecution examined PW1/R. Uma Sagar, SIP, he deposed on 28.05.2018 at about 1600 hours on reliable information about selling of ganja illegally, he secured the presence of LW6/S. Prathiba and LW7/S. Karthik,

LW8/M. Jyothi, MRO went to Vidyanagar, CCC Naspur along with his staff and with photographer. At about 1700 hours, he reached near Sulab complex, CCC

Naspur. At that time, on seeing their police vehicle, two persons carrying hand bag started to run away. The police party apprehended them. The Executive

Magistrate/LW8/M. Jyothi enquired with accused. On enquiry, they disclosed

their names as Madavi Manik Rao and Athram Sone Rao. On search, they found dry ganja in a polythene cover. On enquiry, A1 confessed he cultivated the ganja in his house premises for the purpose of sale and getting money. A2 confessed A1 is his brother-in-law, they both are selling ganja for getting money.

Their confession statements were recorded, the MRO seized 700 grams ganja

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 8 of 27 from A1, A2 confessed he sold 500 grams of ganja to A3 and he got an amount of

Rs.1,500/-, so they seized the amount of Rs.1.500/- from A2. The panchanama was conducted out of seized property 50 grams of samples (1 in number) drawn for chemical analysis. They have conducted scene of offence panchanama and drawn rough sketch in the presence of same panch witnesses. Thereafter, A1 and A2 led them to the house of A3 at Vidyanagar, CCC Naspur. He apprehended A3. On enquiry, he confessed the offence that he purchased 500 grams of Ganja from A2 for an amount of Rs.1,500/-. The MRO, conducted panchanama and seized 500 grams of Ganja from the possession of A3 under cover of confession and seizure panchanama. They have drawn one sample i.e., 500 grams under cover of panchanama. They brought A1 to A3 to police station along with seized contraband and he suo moto registered the case in Cr.No.83 of 2018. He informed the matter to his higher officials. The remaining investigating done by LW10/S. Pramod Rao.

12) In the cross-examination, PW1 deposed at about 1600 hours on 28.05.2018 he received information. He got mentioned general diary number in the FIR i.e., entry No.12. There is a distance of half kilometer in between police station and

Sulab complex. No persons were present near Sulab complex. It is residential locality. On his request, the MRO deputed LW6 and LW7 as panch witnesses.

He know that the public are available at the alleged scene of offence. They went to the spot in police jeep. He did not give requisition in writing to MRO to visit

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 9 of 27 scene of offence. He had given oral intimation. The MRO has not given any information in writing to the accused by stating they are not bound to give any confession statement. The MRO came to scene of offence, they both are reached at the same time. The MRO drafted the contents of panchanama. He did not produce the accused before MRO, the MRO herself came to the spot. He has not issued any notices to the accused intimating that under NDPS Act they should be searched in the presence of Tahsildar or Gazetted Officer whether they want to make any search in their presence or not. The FIR was issued at about 1900 hours. He recorded confession statement of A1 to A3. The confession statements are in his handwriting. He denied suggestion that FIR was not issued at 1900 hours and it was about 1.00 pm on 29.05.2018. He denied suggestion that as per his own version by the time of issue of FIR the total investigation was completed. He denied suggestion that the FIR was issued at 1.00 pm, so it reached to the Court at 2.55 pm. He submitted his report in writing to his higher officials intimating the seizure of property. He denied suggestion that he has not followed the provisions under Section 57 of NDPS

Act.

13) PW2/K. Srinivas, PC deposed PW1 received information about selling of

Ganja illegally by two persons, immediately he intimated the matter to MRO and they went to Sulab complex Vidyanagar. They found two persons at the spot. One person was carrying one bag. On seeing them, they tried to fled

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 10 of 27 away. They caught hold said persons. The MRO, VRA searched the bag and found 700 grams of Ganja in the possession of A1. When they questioned A2, he informed he sold 500 grams of Ganja to A3 for Rs.1,500/-. The panchanama was conducted 700 grams of Ganja and 1,500/- were seized under cover of panchanama. A1 and A2 led them to the house of A3. They went to the house of A3. A3 was packing Ganja in small packets, immediately they apprehended

A3. The panchanama was conducted and seized Ganja.

14) In the cross-examination, PW2 deposed on 28.05.2018 at about 6.20 pm, his statement was recorded. After conducting panchanama, SI brought the accused to police station. FIR was not issued before conducting panchanama.

He admits in the panchanama and rough sketch, the FIR is mentioned. He denied suggestion that the panchanama was fabricated in the police station, so that the crime number is mentioned in the panchanama. He did not find contraband in the hands of A2. He denied suggestion that there are no such connections in between A1 to A3. He denied suggestion that the MRO did not come to scene of offence, the accused never confessed the offence. He denied suggestion that he blindly supporting his higher officials. There are houses around the house of A3. The neighbours of A3 were not examined. He denied suggestion that no panchanama was conducted.

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 11 of 27

15) PW3/R. Venkata Swamy, Photographer deposed the police called him to

Vidyanagar and asked him to take photographs. VRO, MRO, SIP and their staff were present. Three persons were in their custody. At present, he does not remember their names. The police seized Ganja from three persons and asked him to take photographs. On their instructions, he had taken photographs. In the cross-examination, he deposed at about 5.00 pm he was called to

Vidyanagar. He does not know from how many days the accused persons were in the custody of police. He admits the police called him when the offenders were asked to sat on the floor. He cannot identify the revenue official individually with their names. He denied suggestion that the police did not call him and nothing was seized.

16) PW4/S. Prathiba, Junior Assistant deposed when she was working as

VRO, the Tahsildar instructed her to go to police station. On 28.05.2018 at about 4.45 pm she went to police station along with LW7/S. Karthik. The police was having information about selling of Ganja. When they are getting down from jeep, they found A1 and A2 are trying to ran away from there. Then the police caught hold them. The MRO also came there. MRO and SI asked them to verify the bags of accused persons, on that they searched and found in the bag of A1, there was 700 grams of Ganja, when they enquired with A2, he said he already sold 500 grams of Ganja to A3 and he was having sale consideration of

Rs.1,500/- with him. The panchanama was conducted in the presence of MRO

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 12 of 27 and SI and seized 700 grams of Ganja from A1 and Rs.1,500/- from A2. Later, they went to the house of A3 and they found A3 was packing Ganja in small packets. A3 tried to escape from there, on seeing them, the police caught hold him. A3 confessed he purchased from A1 and A2. The police conducted panchanama and seized Ganja from A3 under cover of panchanama.

17) In the cross-examination, PW4 deposed on that day it was working day, on the oral instructions of MRO, they went there. A1 was carrying cover when he was trying to escape, the A2 was not holding anything. At present, she does not remember the description of bag of A1 in the panchanama. She does not remember whether it is plastic bag and jute bag. After seizure of Ganja from A1, one weighing machine brought from adjacent shop and it was weighed in their presence, so she said it was 700 grams of Ganja. She does not remember what was the shop adjacent to there. The note numbers of 1,500/- not mentioned but it has been written on white paper, it was enclosed to Rs.1,500/-. On verification, it found the note numbers are mentioned on separate slips and kept with Rs.1,500/-. One hour took place for conducting panchanama at Sulab complex and one hour at the house of A3. One police person who accompanied with them had written the contents of panchanama. She acted as panch witness in several cases. She denied suggestion that no panchanama was conducted in her presence.

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 13 of 27

18) PW5/Jyothi, Tahsildar deposed on 20.05.2018 at about 4.45 pm SI made phone call to her and asked her to send panch witnesses from her office. She send VRO/Prathiba, and VRA/Karthik to police station. Later, the police took panch witnesses and went to Sulab complex, Vidyanagar. Later, SI asked her to come to Vidyanagar. At about 5.15 pm she went to Vidyanagar. She found two persons are in the custody of police. On her enquiry, they disclosed their names as Manik Rao and Sone Rao. They found 750 grams of Ganja packet in the possession of A1. A2 confessed he sold the Ganja to one Vamshi and he got the amount of Rs.1,500/- and he was in possession of Rs.1,500/-. He further stated he can show the house of Vamshi. The police conducted panchanama in her presence and seized 700 grams of Ganja packet and Rs.15,00/- under cover of panchanama. After this panchanama, the accused led them to the house of A3, the house of A3 is situated at Vidyanagar. When they reached the house of A3, they found he was packing the Ganja in small packets on seeing them, he tried to escape but the police caught hold him. They found 500 grams of Ganja in his possession. They made enquiry with A3 and also conducted panchanama and seized one Ganja under cover of panchanama. The police had taken photographs at the time of panchanama.

19) In the cross-examination, PW5 deposed in the similar cases, the police asked her to send their employees to act as panch witnesses. She used to send her men to the police. Whenever the police called her, she used to go. Her

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 14 of 27 designation is higher than SIP. As Executive Magistrate, she can go to that place there is no need obtain permission from her higher officials. She does not know the ingredients of Section 50 of NDPS Act. The accused were persons were not produced in her office. She has not given notice to the accused intimating that she is Gazetted Officer and there is no such compulsion on them to give any statement. The police had written the contents of panchanama on her dictation.

She denied suggestion that she extended illegal cooperation to the police.

20) PW6/S. Pramod Rao deposed PW1/R. Uma Sagar, suo moto registered the case and produced the accused before him. He examined and recorded the statements of PW1, PW2, LW3, LW4, and PW3. He visited the scene of offence nearby Sulab complex, Vidyanagar and the house of A3 at Vidyanagar. He arrested A1 to A3 and produced before the Court for judicial custody. On 29.05.2018 he submitted detail investigation report of this case to ACP,

Mancherial within 24 hours from the date of offence. He forwarded two samples of Ganja to FSL, Hyderabad. Later, on his transfer, LW11/Y. Krishna

Kumar, CIP filed charge sheet.

21) In the cross-examination, PW6 deposed as per NDPS Act, the accused should be produced before Gazetted Officer, if he intended to confess the offence. He admits on the intimation of SI, Tahsildar, came to the spot. The case property was not seized by him, so he cannot say whether any inventory was

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 15 of 27 prepared showing the list of seizure contraband. He forwarded the samples to

RFSL Hyderabad on 19.06.2018. Till then the contraband was in their police station. He denied suggestion that the contraband was not in safe custody till 19.06.2018. He denied suggestion that this false case was foisted for statistical purpose and he has not properly investigated the matter.

22) The above discussion shows that the PW1 seized the Ganja from the possession of A1 and A3 and A2 sold the Ganja to A3, so he seized Rs.1,500/- from A2 which was sale consideration amount received by A2 from A3. The evidence of PW1 is supported by the police constable/PW2, PW4/S. Prathiba, panch witness, PW5/Jyothi, Tahsildar and also investigating officer.

23) It is to be noted that the offences under NDPS Act is very grave offences and the Act provides the punishment for a period of 10 years and more. As there are severe punishments under this Act, at the same time, under Section 35 of NDPS Act, the burden is on the accused to prove that he was not having that criminal intent. Therefore, the legislature introduced several provisions to safeguard the interest of accused also. The provisions under NDPS Act should be strictly complied. If there is any violation in following the provisions, the

Court has to reject the case of prosecution.

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 16 of 27

24) The defence counsel contended that the investigating officer has not complied provision under Section 42 of the Act. In Karnail Singh v. State of

Haryana, Hon’ble court observed " In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of sections 42(1) and 42(2) nor did Sajan

Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :

(a) The officer on receiving the information (of the nature referred to in

Sub-section (1) of section (42) from any person had to record it in writing in the

Register concerned and forthwith send a copy to his immediate official superior,

before proceeding to take action in terms of clauses (a) to (d) of section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to

(d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 17 of 27

(c) In other words, the compliance with the requirements of sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance with requirements of subsections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non sending of a copy of such information to the official superior forthwith, may not be treated as violation of section

But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 18 of 27 will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001."

25) Based on the conclusion (d) recorded herein above, the contention of the defence that the mandate contained in Section 42 of NDPS Act was not at all complied with by PW1, who had received reliable information and conducted panchanama at Sulab Complex, Vidyanagar, CCC Naspur and also at the house of A3. Based on the non compliance of provisions of Section 42 of the NDPS Act, requiring the officer concerned to record in writing the details in respect of reliable information received by him under Section 42 (1) of the NDPS Act and further, to communicate the aforesaid details to the officer superior to him forthwith, under Section 42(2) of the NDPS Act, so the benefit of doubt should be given to the accused herein.

26) The perusal of record shows PW1 stated on 20.05.2018 at about 1600 hours he received information when he was in the Police Station. He has not filed the document to show that immediately after receiving information by him; he reduced such reliable information into writing and placed before his higher officials or sends it to his higher officials. If there is no time for PW1 to send information to his higher officials the matter would be different or if he is out of

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 19 of 27

Police Station or on patrolling duty but the PW1 was very much available in the

Police Station when he received information. As per record, he received information at 1600 hours, he went to the scene of offence at about 1645 hours.

As per scene of offence panchanama, it was conducted at 1840 hours, the confession and seizure panchanama was conducted at 1750 hours. It means after one hour of receiving information, he went to the spot. There is a time of one hour for him to send the message to his higher officials but he did not send any information. When the defence counsel has asked specific question whether he made GD entry when he received information. The PW1 said he might have entered the same in the general diary. Further, he stated the GD reference entry

No.12 is mentioned in FIR. The defence counsel pointed out that in column No.3

(b) the investigating officer mentioned that the information received at 1900 hours, further the general diary reference number is also mentioned as 1900 hours. The time of occurrence of offence, he mentioned as 1700 hours. It means after the offence, they made GD entry, so that the time is mentioned as 1900 hours. It is clear from the entries in FIR that the offence was committed at 1700 hours and the information received at police station mentioned as 1900 hours.

The PW1 stated at about 1600 hours he received information and at the same time, he made GD entry. The entry in FIR is totally contradictory to his statement. When he received information at 1900 hours, how he informed the matter to MRO and other panch witnesses at about 1600 hours. It means when he made phone call to them there was no such information to him, so arrival of

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 20 of 27 spot at 1645 hours, on information is not correct. It strengthens the version of defence that as there was no such information, so that the officer concerned has not recorded in writing the details in respect of reliable information received by him under Section 42(1) of the NDPS Act. For a moment we assume that after receiving information immediately, they went to the spot and there was no such time for compliance of Section 42 (1) of the NDPS Act, the matter would be different. After one hour of alleged information, they went to the spot but he has not informed the matter to higher officials. Moreover, it is proved that the entries in FIR, the information received after seizure not before the seizure.

Therefore, the summoning of panch witnesses and MRO to the spot before the information is also doubtful.

27) Further, as per NDPS Act whenever the offender is found in possession of

Ganja, he should be given notice in writing and informed that if he agree, he will be searched in the presence of Magistrate of Gazetted Officer. In the instant case, no such notice was given; the Executive Magistrate was directly called to the scene of offence. Nowhere in the panchanama, it mentioned that they called one person from adjacent shop owner and the Ganja was weighed. Without weighing the Ganja they got mentioned that they seized 700 grams of Ganja from A1 and 500 grams of Ganja from A3. So it is doubtful whether that much quantity of ganja was seized from the possession of accused. In cases of NDPS

Act, the quantity is crucial, basing on quantity the accused will be charged for

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 21 of 27 the offences and jurisdiction of the Court will be decided. As per the quantity seized from the A1 it is of 700 grams and from A3 500 grams are seized, when the quantity of each individual is separately looked into, both are comes under small quantity and triable by JFCM. The prosecution mixed both the quantities in-fact which were not weighed also and charged the accused for the quantity more than small quantity and less than commercial quantity. Thereby it is causing injustice to the accused. Whatever it may be the defence denied the seizure of ganja from the custody of accused persons. Further in the evidence

PW1 stated that the MRO seized the Ganja, and she has conducted seizure panchanama. Even in the house of A3 also the MRO has conducted panchanama. The PW2 stated on enquiry by the MRO and revenue officials the accused confessed the offence, the panchanama was conducted and the ganja was seized. In the cross examination he deposed that they did not find contraband in the hands of A2. They spend 45 minutes at Sulab Complex.

Further the PW4 stated that both MRO and SI asked them to verify the bags of accused on that they searched and they found ganja in the bag of A1. The panchanama was conducted in the presence of MRO and SI and the ganja was seized from A1. Thereafter the police conducted panchanama and seized ganja from A3 under cover of panchanama. She specifically stated the police conducted confession cum seizure panchanama. Thereafter in the cross examination she stated that the police department people had written the contents of panchanama. She acted as panch witness in several cases.

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 22 of 27

28) PW5/Jyothi, MRO deposed the police conducted panchanama in her presence and seized 700 grams of ganja packet and Rs.1500/- under cover of panchanama. Thereafter they made enquiry with A3 also and conducted panchanama and seized ganja from the house of A3. In the cross examination she stated the police had written the contents of panchanama on her dictation.

The evidence of witnesses PW1, PW2, PW4 and PW5 shows that the police officials PW1 stated the MRO seized the ganja in their presence. The panchanama was conducted by MRO. However the MRO stated the panchanama was conducted by the police and the police seized the ganja. It is to be noted that as per MDPS Act it is clear that at first opportunity should be given to the accused persons intimating that they can be searched in the presence of Gazetted officers or Magistrate. In the instant case any such notice was given to the accused persons intimating that they can utilize such choice.

The MRO was directly called to the spot, the accused persons were not intimated neither by police or by MRO but she is Magistrate and in her presence the search is going on. The rules made under NDPS Act are mandatory. After apprehension of accused, after giving chance to the accused to search in the presence of magistrate, if they accepts for it, if they produces before magistrate, if the search is made by the magistrate and if the inventory is prepared in view of such the matter would be different. No such opportunity was given to the accused persons. It is doubtful whether the panchanama was conducted by the

MRO or the police officials. The police deposed the MRO conducted

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 23 of 27 panchanama and seized the Ganja. The MRO stated the police conducted panchanama. If the entire episode of seizure is in the control of

MRO/Magistrate then the Court can say that the provisions of NDPS Act are followed. In the instant case the investigation was done by police, the police themselves seized ganja. Though the Magistrate may be present but she was not having control over the process of seizure. The words used under NDPS Act made it clear that the option was given to the Magistrate if the Magistrate could not find anything even after production of accused; the Magistrate has every right to set them at liberty. In the instant case the seizure was done by police, whether the MRO and the panch witnesses came at the spot at the time of search is also doubtful. If the MRO and panch witnesses are not participated in the investigation process, they would have been proceeded separately on the requisition of police the matter would be different. Moreover the panch witnesses and MRO belongs to same department. Therefore the panch witnesses would not dare to say anything against the record of prosecution because it has been conducted by their higher officer MRO. The provisions of

NDPS Act clearly show that at the time of panchanama the police has to collect independent witnesses from the scene where the panchanama was conducted.

When they are not able to collect the independent panch witnesses. If the panch witnesses are not available at the spot, in the panchanama or in the police report the investigating officer has to mention that the independent witnesses are not available, though they are available but not come forward who act as panch

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 24 of 27 witnesses. So that they collected panch witnesses from a different place it is convincing one. In the instant case the police had not made any effort to collect independent panch witnesses. He asked the MRO to send two panch witnesses belong to her department. On the request of police she sends her employees to the Police Station. How can we say that they are independent witnesses. The argument of prosecution is that they are government employees, so they may not turn hostile so that the investigating officer collected the independent panch witnesses. When the same MRO under whom the panch witnesses are working, called to the place of panchanama and the panchanama was conducted in their presence, it cannot be said that they are independent panch witnesses. At one side their officer is participating in the investigation, at the same time at the instance of police they were send by their officer to act as panch witnesses definitely they would be some influence on them. Therefore, they are not independent witnesses. Their evidence is not reliable and trust worthy.

29) Further, as per the procedure the samples should be send to FSL within 72 hours from the date of seizure. As per record, on 28.05.2018 it was seized but it was send to FSL on 19.06.2018. It means there is a delay of 21 days in sending the samples. The defence contention is that during this period, the seized property was in the custody of police, there may be every possibility of tampering of the case property. The prosecution has not produced in whose possession the property was. Further, they did not produce any record to show

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 25 of 27 that the property was entered into the register maintained by them and it was in proper custody. Therefore, it is also fatal to the prosecution case.

30) Thereafter, in the panchanama, the investigating officer has to mentioned that what was the procedure adopted by him while packing the samples. As per the Act they have to take proper steps for packing the samples. In case the samples are not properly packed, there is every possibility that the property may be tampered. At this juncture, it would be apt to refer to Section 55 of the NDPS

Act.

"SECTION 55. Police to take charge of articles seized and delivered.- An officer-in -charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."

31) The NDPS Act provides a special procedure for drawing the samples and the seal of such articles. The investigating officer has not produced any photographs to show what was the method applied by him while packing the samples. In the photographs, it appears the Ganja was not packed, it is in the stage of open in the bags. The defence contended that the Gazetted officer or

Magistrate has to prepare inventory and packed the same in proper manner and

the photo should be taken after packing. The photographs are not showing the same. The investigating officer has not examined anybody adjacent to the house

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 26 of 27 of A3 where they alleged to have seized the case property. So, it is also fatal to the prosecution case.

32) In the light of above discussion, the prosecution failed to prove that as per procedure they seized contraband. The possession of contraband is also not believable. Hence, the accused are entitled to benefit of doubt. Point is answered accordingly.

33) In the result, A1 to A3 are not found guilty of the offence punishable under Section 20(a)(b)(i)(ii)(B) read with Section 8(c) of NDPS Act and accordingly, they are acquitted of the charge under Section 235(1) Criminal

Procedure Code. The bail bonds of the accused shall be in force for a period of six months as mandated under section 437-A of Cr.P.C. MO1 and MO2 shall be destroyed after appeal time is over. MO3 Cash of Rs.1,500/- shall be confiscated to state.

Typed to my dictation by Stenographer, and after correction pronounced by me in open court this the 18 th day of April, 2023.

I ADDITIONAL SESSIONS JUDGE

MANCHERIAL

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1R. Uma Sagar – SI and issued FIR -None- PW2K. Srinivas – Assisted PW1 PW3Rachamalla Venkata Swamy -

I Addl. Sessions Judge, Mancherial

ND SC.No.10 of 2022 Page 27 of 27

Photographer PW4Sanke Prathiba – Panch for confession and seizure panchanama PW5M. Jyothi - Tahsildar PW6S. Pramod Rao - IO

EXHIBITS MARKED

Ex.P1FIR by PW1 Ex.P2Scene of offence panchanama by PW1 - Nil - Ex.P3Scene of offence panchanama by PW1 Ex.P4Notice along with photographs by PW1 Ex.P5Photographs at first scene of offence by PW1 Ex.P6Photographs at second scene of offence by PW1 Ex.P7Confession cum seizure panchanama of A1 and A2 by PW4 Ex.P8Confession cum seizure panchanama of A3 by PW4 Ex.P9SFSL Report by PW6

MATERIAL OBJECTS MARKED

MO1 Ganja MO2 Ganja MO3 Cash of Rs.1,500/-

I ADDITIONAL SESSIONS JUDGE

MANCHERIAL

I Addl. Sessions Judge, Mancherial

IN THE COURT OF THE ADDITIONAL CHAIRMAN, MACT-CUM-

I ADDITIONAL DISTRICT JUDGE, MANCHERIAL

Present: Smt. J. MAITHREYI, Addl.Chairman, MACT-cum–I Addl. District Judge,

MANCHERIAL

TUESDAY THE 18 TH DAY OF APRIL 2023

MVOP NO: 19 OF 2019

Between:

1.Mohammad Rajabelli S/o Mohammed Rayabosu, 49 years, Coolie

2.Kairunnisa Begum W/o Mohammad Rajabelli, 43 years, Household

Both are R/o H.No.6-115/1, Ankathiwada, Luxettipet village and mandal, District Mancherial

PETITIONERS

.... // AND //

1)Irfan Moinoddin Syed S/o Moinoddin Syed, 28 years, Driver of Lorry bearing No.MH 22N 1986, R/o Jam-BK village, Tq. Mukhed, District Nanded, Maharastra State

2)Kanchanbai Prakash Chand Jain, Major, Owner of Lorry bearing No.MH 22N 1986, R/o A/P Tara Nivas Parsi Anjuman, Vazirabad of Nanded, District Nanded, Maharastra State

3)National Insurance Company Limited, represented by its Divisional Manager, Divisional Office Nanded Division Guru Govind Singh Market, Nagina Ghat Road, Nanded, Maharastra State

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 2 of 18 (Policy No.272000311710000277 valid from 04.05.2017 to 03.05.2018)

RESPONDENTS

...

This petition is coming for final hearing before me on 12.04.2023 in the presence of Sri G. Kiran Kumar, Advocate for petitioners and Smt. K. Satya Srilatha, Advocate for respondent No.3 and respondents 1 and 2 remained ex parte and upon perusal of the entire material available on record and having stood over for consideration till this day, this Tribunal passed the following:

O R D E R

1) This petition has been filed under Section 166(1)(c) of Motor Vehicles Act, 1988 r/w Rule 455 of A.P. Motor Vehicle Rules, 1989 by the parents of the deceased Mohammad Younis, claiming compensation of Rs.14,00,000/- (Rupees fourteen lakhs only) on account of his death in the road traffic accident that occurred on 31.10.2017 at about 11.00 pm near Sai Baba Temple of Gudem village,

R/M Dandepally. The petitioner No.1 is the father and petitioner No.2 is the mother of the deceased.

2) The brief averments of the petition, are as follows:-

(i) On 31.10.2017 the deceased by name Mohd. Younus along with another deceased name Gorla Shekar were proceeding on motorcycle baring No.AP01 AD 0851 towards Gudem from Luxettipet and on the way when they reached near Sai

Baba temple of Gudem village, at about 11.00 pm, one lorry bearing No.MH 22N 1986 was parked by its driver negligently on the middle of the road without

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 3 of 18 taking any precautionary measures such as parking lights and without keeping any watch, laying stones, so also without putting indicators. Resulting which the above motorcycle came in contact with said lorry from its backside, as a result, the son of petitioners by name Md. Younis sustained head injury and other parts of the body, said Younis and Gorla Shekar both sustained injuries and died.

Mohd. Younus was shifted to hospital and he was given first aid treatment at

Luxettipet and while he was shifting to Mancherial hospital, he died.

(ii) The Police, Dandepally, registered a case in Cr.No.167 of 2017 under

Section 304A IPC against the driver of lorry bearing No.MH 22N 1986, investigated the case and filed charge sheet against him.

(iii) It is further averred in the petition that the deceased was hale and healthy, and aged about 21 years at the time of accident, and used to earn

Rs.15,000/- per month by working as a private electrician and maintaining the petitioners. Due to sudden demise of the deceased, the petitioners who are depending upon the deceased became destitute and suffering pain and mental agony. Therefore, the petitioners have been claiming compensation of

Rs.14,00,000/- from the respondents.

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 4 of 18

3) The 1st and 2nd respondent did not contest the matter and remained ex parte.

4) The 3rd respondent insurance company filed counter denying most of the material averments in the petition and sought the petitioners to prove the age and avocation of the deceased and also the manner of the accident. It is further averred in the counter that the driver of the lorry was not holding valid and effective driving license at the time of accident and the respondent No.2 willfully and knowingly has handed over the possession of the vehicle to the said driver, therefore, they have contravened the provisions of M.V. Act and Rules and committed breach of contract and violated the terms and conditions of the policy, thereby this respondent is not liable to pay any compensation. The owner of the vehicle did not furnish the particulars of policy, date, time and place of accident and particulars of injured, thereby contravened the provisions of Sec.134 (c) of

M.V. Act and the concerned police also failed to forward relevant documents to this respondent/insurer within 30 days as mandated under Sec.158(6) of M.V.

Act.

It is further averred in the counter that the accident took place due to the sole negligent driving of the motorcycle in a rash and negligent manner and lost control over it and dashed to the lorry which clearly shows that there was

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 5 of 18 negligence on the part of the rider of the motorcycle only, therefore, this respondent is not liable to pay any compensation. The owner and insurer of the motorcycle are proper and necessary parties to the proceedings and the petitioners failed to make them as parties to the claim petition, therefore, the petition is bad for non-joinder of necessary parties. Further the compensation claimed by the petitioners is excessive, exorbitant, hence prays for dismissal of the petition.

5) Based on the above pleadings, the following issues have been settled for trial:

1.Whether the deceased died during the road traffic accident dated 31.10.2017 at about 11.00 pm near Saibaba temple Gudem with vehicle bearing No.MH 22N 1986?

2.Whether the deceased died in road traffic accident as a result of rash and negligent driving of the driver of vehicle bearing No.MH 22N 1986?

3.Whether the claim petitioners are entitled for a compensation of Rs.14,00,000/- from respondents No.1 to 3 on the account of death of the deceased?

4.To what relief?

6) During the course of enquiry, on behalf of the petitioners, the first petitioner who is the father of deceased, was examined as PW1 and an eyewitness

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 6 of 18 to the accident was examined as PW2 and got marked Ex.A1 to Ex.A10. On behalf of the respondents, Avadhootha Ravindra Prasad, Legal Manager of insurance company is examined as RW1 and no documentary are marked.

7) Heard both sides.

ISSUE Nos.1 and 2:

8) The case of the petitioners is that on 31.10.2017 the deceased by name

Mohd. Younus along with another deceased name Gorla Shekar were proceeding on motorcycle baring No.AP01 AD 0851 towards Gudem from Luxettipet and on the way when they reached near Sai Baba temple of Gudem village, at about 11.00 pm, one lorry bearing No.MH 22N 1986 was parked by its driver negligently on the middle of the road without taking any precautionary measures such as parking lights and without keeping any watch, laying stones, so also without putting indicators. Resulting which the above motorcycle came in contact with said lorry from its backside, as a result, the son of petitioners by name Md.

Younus sustained head injury and other parts of the body, said Younus and Gorla

Shekar both sustained injuries and died. Mohd. Younus was shifted to hospital and he was given first aid treatment at Luxetipet and while he was shifting to

Mancherial hospital, he died.

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 7 of 18

9) The petitioners in order to substantiate their case, examined the petitioner

No.1 as PW1 and got marked the documents Ex.A1 to Ex.A6. The testimony of

PW1 shows the accident occurred due to rash and negligent act of respondent

No.1. Ex.A1 is CC of FIR in Cr.No.117 of 2017 of PS Dandepalli. It shows on the complaint of petitioner No.1 herein, the police registered the case against the respondent No.1. The contents of complaint clearly shows that when his son and

Gorla Shekar were going on motorcycle, the offending vehicle was stopped on the road without any indicators, so that the motorcycle hit the lorry and they died due to injuries. The accident occurred due to the negligence of driver of lorry bearing no.MH22N 1986. Ex.A2 is CC of charge sheet, it shows the investigating officer after investigation, filed charge sheet stating that the respondent No.1 parked the lorry negligently without taking any precautions on the road, so that the deceased vehicle hit the lorry and sustained injuries and died, so the charge sheet is filed for the offence under Section 304A IPC. Ex.A3 Certified copy of inquest panchanama, it shows that the police conducted inquest panchanama in the presence of panch witnesses. The panchas opined that the deceased died due to the injuries sustained in the accident, he died. Ex.A4 Certified copy of PME report. It also indicates that the cause of death of deceased is due to cardio respiratory arrest, primary due to head injury. Ex.A5 is accident information report, in which the offending vehicle number is mentioned as lorry bearing

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 8 of 18

No.MH 22N 1986. The driver of offending vehicle is Irfan Moinuddin Syed who is respondent No.1 herein. The name of respondent No.1 is mentioned as owner of said vehicle. The respondent No.3 is the insurance company and having insurance up to 04.05.2018. Ex.A6 CC of MVI report, it reflects that the accident occurred was not due any mechanical defect of crime vehicle being registration

No.MH 22N 1986.

10) The PW1 was cross-examined by the respondents counsel, in the cross, he deposed that the deceased is his younger son. The vehicle on which the deceased was going belongs to him only. He does not know whether said Shekar was driving the vehicle at the time of accident. He denied suggestion that the accident occurred due to the negligence of Shekar. The insurance company of motorcycle and his elder son are not added as parties, so the case is bad for non-joinder of necessary party. He denied suggestion that his son was not wearing helmet there is no contributory negligence of his son.

11) PW2/Chuncu Ramakrishna was examined, he deposed on 31.01.2017 at about 11.00 pm, he saw the deceased Mohd. Younus along with his son Gorla

Shekar were going on their motorcycle, when they reached near Sai Baba temple, the lorry was parked on the road without indicators, so the vehicle hit the lorry

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 9 of 18 and the two persons on the motorcycle sustained injuries and they died due to injuries. The accident occurred due to the negligence of lorry driver. In the cross- examination, he deposed when he reached the spot two persons fell down on the floor. The road is double road and national highway. The check post is very far away from accident place. He denied suggestion that check post is very nearest to the accident place and the heavy vehicles used to be stopped nearest check post. He denied suggestion that the deceased is known person so he is deposing false.

12) The respondents have examined RW1/A. Ravindra Prasad, he deposed the petitioners failed to prove the allegations made in the petition. The deceased was not earning Rs.15,000/- per month. The petitioners are having other children, so they are not dependants of deceased. The accident occurred due to rash and negligent act of respondent No.1. In the complaint and charge sheet, there is no clarity that who is driving above motorcycle. The motorcycle dashed from the backside of the lorry which is parked apart from the road which is double road, so the driver of motorcycle is in high speed. The crime details form is not filed.

The driver of motorcycle was not holding any valid driving licence and not produced any document to prove the ownership of motorcycle. There are no

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 10 of 18 eyewitness to the accident. Hence, the insurance company is not liable to pay compensation.

In the cross-examination, RW1 deposed on the date of accident, the policy was in force. He is not eyewitness to the accident. He has not personally investigate the matter. He admits as per record, the lorry was stationed on the road without taking precautions on the main road. He denied suggestion that due to negligence of lorry driver the accident occurred. As per charge sheet, there is negligence on the side of deceased. The claimants herein are third parties. He denied suggestion that the insurance company is liable to pay compensation.

13) The evidence of PW1 and PW2 coupled with documents Ex.A1 to Ex.A6, it is obvious that the accident occurred due to the rash and negligent act of respondent No.1 herein only. ExA6 rules out the possibility of occurrence of accident due to any mechanical defect of offending vehicle. Further the evidence of PW1 coupled with documents, it is obvious that the deceased was involved in the said accident, received severe injuries and died due to injuries. The respondents by putting a suggestion to PW1 and PW2 try to contend that due to the contributory negligence of deceased the accident was occurred. Except by giving suggestions to PW1 and PW2 nothing has been elicited against them. They did not place any material to show that due to negligence of deceased only the

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 11 of 18 accident was occurred. The RW1 in the evidence contended that there is no eyewitness to the accident, so it is not possible to say that who was driving the vehicle. At the same time, he stated the driving licence of deceased are not filed.

It is to be noted that the respondents have not placed any material to show that the deceased persons are not having driving licence. In the charge sheet nowhere it mentioned that the D1 and D2 are not having licence, so that the accident occurred. Moreover, the facts itself shows that as the vehicle was stopped on the road without indicators so the lorry was not visible to the deceased persons due to night hours. So they hit the lorry. The act of respondent No.1 is itself sufficient to say that there was his negligence for which there is no need of any investigation. Even if the person holding valid licence or not holding driving licence, everyone will met with accident, if the vehicle is abandoned on the road, without indicators. No doubt, the road is double road if the vehicle is visible, they would have driven their vehicle beside the lorry, the main problem is that the lorry is not visible. The respondent company is missing the important fact that as the lorry was not visible, so the accident occurred. Moreover the petitioners have filed the driving licence of deceased under Ex.A10, so the contention of respondent No.3 is not tenable. It is not the case that it is a double road, though there is a space for moving the vehicle, the deceased have seen the lorry even

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 12 of 18 though due to their negligence, and they hit the lorry. Therefore, the contention of the respondents is not tenable.

14) It is settled law that presumption cannot take the place of proof, especially when there is no evidence to contrary. So based on evidence of PW1 and PW2 coupled with documents it can be held that the accident occurred due to rash and negligent act of respondent No.1 herein. The respondents No.1 and 2 have not entered into witness box and not adduced any evidence to rebut the case of the petitioners’ case. Therefore, the petitioners are able to prove that the accident occurred due to negligent act of respondent No.1 herein.

15) In the light of above discussion, this Court is of view that the petitioners have established due to rash and negligent act of respondent No.1, the accident occurred. Accordingly, issues No.1 and 2 are answered.

ISSUE NO.3:

16)Whether the claim petitioners No.1 and 2 are entitled for compensation of

Rs.14,00,000/- from respondents No.1 to 3 jointly and severally on account of death of deceased. It is to be noted that the petitioners are able to establish that the deceased Mohd.Younus died in the road accident due to rash and negligent act of the respondent No.1 herein. Then this Court has to decide for what

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 13 of 18 quantum of compensation, the petitioners are entitled. For determination of compensation in case of death of a person in a road traffic accident, the factors that are to be taken into consideration or the age, avocation and earnings of the deceased and the persons depending on him prior to his death.

17)Age of deceased as on the date of accident: In the petition, the petitioners have stated the age of deceased as 21 years as on the date of accident. In the cross-examination of PW1, the respondents have not disputed the age of deceased and no such suggestion is given to PW1 disputing the age of deceased. As per

Ex.A3, inquest report and PME report Ex.A4 and original SSC certificate under eEx.A9 in which the deceased age was mentioned as 10.06.1996. The accident occurred in the year 2017. It shows the deceased was age of 21 years,. Therefore, this Court feels that he may be age of 21 years as on the date of his death.

18)Avocation and earnings of deceased prior to his death: To prove the avocation and earnings of deceased, the petitioners contended that the deceased was working as private electrician and earning Rs.15,000/- per month. The respondents disputed the income of deceased. The deceased was working as electrician. There is no document filed to show that the deceased was getting

Rs.15,000/- per month. The electrician means he is skilled worker, it does not

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 14 of 18 come under non skilled, so his average monthly income can be taken as

Rs.8,000/- per month. Therefore, this Court feels that the income of the deceased may be Rs.8,000/- per month. So, the monthly income of the deceased is fixed as

Rs.8,000/- per month.

19)Determination of loss of dependency: Since the income of deceased is arrived at Rs.8,000/- per month, his income per year comes to Rs.96,000/- (Rs.8,000x12). At this juncture, this Tribunal has relied on the landmark

Judgment of the Hon’ble Supreme Court in between National Insurance

Company vs. Pranay Sethi and others, wherein it is observed by their Lordships that, in case if the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 30% where the deceased was between the age of 40 to 50 years and 15% where the deceased was between the age of 51 to 60 years should be regarded as the necessary method of computation. In the present case on hand the deceased was aged 21 years and is admittedly self- employed, therefore, an addition of 40% of the established income can be taken towards future prospects. Therefore, the annual income of the deceased would come to Rs.1,34,400/- (Rs.96,000/- + Rs.38,400/- (40% addition). Since the deceased is bachelor, 50% of his income has to be deducted. After deducting 50%

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 15 of 18 of his income towards his personal expenditure, it comes to Rs.67,200/- and the net amount contributed to her family is Rs.67,200/- per annum. After applying the multiplier ‘18’, it comes to Rs.12,09,600/-.

20)Compensation under conventional heads: In the above cited decision, their Lordships further observed that as a thumb rule, the reasonable figures on conventional heads, namely, loss of estate and funeral expenses should be

Rs.15,000/-, and Rs.15,000/- respectively. Therefore, the petitioners are also entitled to an amount of Rs.30,000/- under the conventional heads i.e.,

Rs.15,000/- towards loss of estate and the petitioners are also awarded an amount of Rs.15,000/- under the head of funeral expenses. The petitioners also would be entitled to Rs.50,000/- as compensation for pain and suffering.

21) The compensation for which the petitioners are entitled, is as under:-

Sl.No Head of compensation amount Amount awarded .

1.Loss of dependencyRs.12,09,600/-

2.Loss of estateRs.15,000/-

3.Funeral expensesRs.15,000/-

4.Pain and sufferingRs.50,000/-

Total Rs.12,89,600/-

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 16 of 18

22) Now, the question here is who is liable to pay the compensation?

According to petitioners, the respondents No.1 and 2 being driver and owner of offending vehicle, the respondent No.3 is insurance company of crime vehicle are jointly and severally liable to pay compensation to him. The petitioner has filed the document Form No.54 which is marked as Ex.A8. As per Ex.A8 the period of insurance is 04.05.2017 to 03.05.2018. The accident occurred on 31.10.2017, it means as on the date of accident the insurance is in force. So the respondent No.3 cannot escape from their liability, the respondent No.1 to 3 are jointly and severally liable to pay compensation. This issue is answered accordingly.

17) ISSUE NO.4:

In the result, the petition is partly allowed with proportionate costs by awarding compensation of Rs.12,89,600/ (Rupees twelve lakhs eighty nine thousand six hundred only) together with interest at 6% per annum from the date of petition till the date of realization payable by the respondents 1 to 3 jointly and severally.

The respondents are hereby directed to deposit the awarded amount within one month from the date of this order.

On such deposit of awarded amount, the petitioner No.1 being the father of the deceased, is hereby awarded an amount of Rs.5,89,600/- and the petitioner

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 17 of 18

No.2 being the mother of the deceased, is hereby awarded an amount of

Rs.7,00,000/- and they are permitted to withdraw half of the amount allotted to them with costs and interest on the awarded amount and the remaining amount shall be kept in fixed deposit in any nationalized bank for a period of one year.

Advocate fee is fixed at Rs.5,000/-.

The Section is directed to verify the court fee before preparing the Decree.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open Court on this the 18th day of April 2023

ADDL.CHAIRMAN

MACT-CUM-I ADDL. DISTRICT JUDGE

MANCHERIAL

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Respondents:

For Petitioners:

PW1: Mohamma Rajabelli RW1 A. Ravindra Prasad PW2: Chunchu Ramakrishna

EXHIBITS MARKED

For Petitioners:

Ex.A1 CC of IFR in Cr.No.167 of 2017 along with complaint Ex.A2 CC of charge sheet in Cr.No.167 of 2017 Ex.A3 CC of inquest panchanama Ex.A4 CC of PME report Ex.A5 CC of form No.54 accident information report Ex.A6 CC of MVI report Ex.A7 Copy of RC book of crime vehicle

ADDL.CHAIRMAN, MACT, MNCL

O.P.No. 19 of 2019 On the file of the Addl. Chairman-cum- I Addl.District Judge, Mancherial Page 18 of 18

Ex.A8 Copy of insurance policy Ex.A9 Original SSC certificate of deceased Ex.A10 Copy of driving licence of deceased

For Respondents: - NIL –

ADDL.CHAIRMAN

MACT-CUM-I ADDL. DISTRICT JUDGE

MANCHERIAL

ADDL.CHAIRMAN, MACT, MNCL

SC No.203 of 2021 Page 1 of 7

IN THE FAST TRACK SPECIAL COURT FOR EXPEDITIOUS TRIAL AND

DISPOSAL OF RAPE AND POCSO ACT CASES, AT MANCHERIAL

Present: Smt.J.Maithreyi, I Additional Sessions Judge, Mancherial FAC: Special Judge, Fast Track special court for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

Tuesday the 18th day of April 2023

SC (POCSO) No. 203 of 2021

Name of the ComplainantState represented by Circle Inspector of Police, Srirampur

Name of the AccusedChakinarapu Sridhar, S/o.Bapu, age 22 years,Occ:PressReporter, R/o.Maddulapalli Village, Mahadevpur Mandal, Jayashankarpalli District

Offence under section366, 376(1) IPC and Section 3 read with 4 of POCSO Act and Section 9 of the Prohibition of Child Marriage Act

Plea of the accusedNot Guilty

Finding Not Guilty

Sentence or OrderIn the result, the accusedis not found guilty of the offences punishable under Sections 366 and 376(1) IPC and Section 3 read with 4 of POCSO Act and Section 9 of the Prohibition of Child Marriage Act and accordingly, he is acquitted of the charges under section 232 Criminal Procedure Code. The bail bonds of the accused shall be in force for a period of six months as mandated under section 437-A of Cr.P.C. The unmarked case property shall be destroyed if any after appeal period is over.

Name of the counsel for prosecutionSri Surender Upadhyay,

Additional Public Prosecutor

Special Judge, Fast Track special court

for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

SC No.203 of 2021 Page 2 of 7

Name of the counsel for DefenceSri N Kamala Manohar Advocate

This case coming before me on 13.04.2023 for final hearing in the presence of Sri Surender Upadhyay, Additional Public Prosecutor for the State and of Sri N Kamala Manohar, Advocate for accused and on hearing both sides 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 Circle Inspector of Police, Srirampur filed a charge sheet against accused for the offences punishable under sections 363, 366, 376(1) IPC and section 4 of POCSO Act in Cr.No.83 of 2021 of PS Bheemaram.

2.The story of prosecution as per charge sheet is that on 25-09-2021 at 2000 hrs PW1/Mother of victim came to Police station and lodged a report stating that she is having one son and one daughter. Her husband died about 2 months back. On 24.09.2021 she went to purchase pesticide bags. At that time her daughter was alone in the house. She return back to home and found her daughter was missing from the house. She searched for her but in vain. She has suspicion over the accused hence she lodged report.

Basing on such report, LW20/B.Bhummanna ASI registered a case in

Cr.No.83/2021. He examined and recorded the statements of PW1/Mother of victim, PW4/ Paternal Uncle of victim, PW3/Cousin of victim, PW5 is paternal uncle of victim. He visited scene of offence and conducted panchanama in the presence of LW12/V Thirupathi, LW13/A Madhu and drawn rough sketch of scene of offence. He collected Bonofide certificate

Special Judge, Fast Track special court

for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

SC No.203 of 2021 Page 3 of 7

of victim from LW5/School Head mistress. On 27-09-2021 at about 1700 hrs the victim girl came to police station on that her statement was got recorded through LW11/D Shakuntala WASI, it was videographed by

LW10/S Sampurna. Basing on the statement of victim girl the section of law 366, 376 (1) IPC and Sec.4 of POCSO Act was added. The victim was referred to lady medical officer on that LW14/Dr. B Vijitha examined her and collected vaginal swabs. On 27.09.2021 the victim was produced

before magistrate, LW17/Suman Grewal magistrate recorded 164

statement of victim. The victim was handed over to her mother by the police. There after LW21/B Raju CIP took up the investigation. He examined

PW1/Mother of victim, LW7/S Shankaramma, LW8/CH Mallaiah, LW9/CH

Ramulu, LW10/Sampoorna, LW11/D Shakuntala. On 05-10-2021 at 0915 hrs he visited bheemaram bus stop and arrested the accused. The accused was produced before LW15/Dr Sathyanarayan who examined him and issued potency certificate. The accused was produced before the court for judicial custody. On 06.10.2021 he addressed a letter to commissioner of police Ramagundam to furnish CDRs to mobile numbers of accused and victim. Accordingly the nodal officers LW18/G Hariprasad, LW19/P

Jayalaxmi furnished the particulars, 65-B Certificate was also issued. After completion of investigation he has filed charge sheet.

3.The cognizance of the offences was taken by the learned I Additional

Sessions Judge (Designated under POCSO Act), Adilabad for the offences

Special Judge, Fast Track special court

for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

SC No.203 of 2021 Page 4 of 7

punishable under Sections 363, 366, 376(1) IPC and section 3 r/w 4 of

POCSO Act against the accused.

4.At the stage of framing of charges, due to establishment of this court, the case was made over to this court from the Court of I Additional

Sessions Judge, Adilabad vide proceedings Dis.No.128/2022/Admin, dated

30.06.2022 of Principal District and Sessions Court, Adilabad in view of establishment of new Court at Mancherial.

5.On appearance of the accused and on hearing the learned counsel and learned public prosecutor, charges were framed for the offence under sections 366 and 376(1) IPC and Section 3 read with 4 of POCSO Act and

Section 9 of the Prohibition of Child Marriage Act against the accused. The contents of the same were read over and explained to the accused in verna language, for which the accused pleaded not guilty and claimed to be tried.

6.During the course of trial the prosecution examined PWs 1 to 6 and

Exs.P1 to P7 are marked. PW1 is the mother of victim and complainant,

PW2 is victim speaks about the facts of case, PW3 is paternal uncle of victim, PW4 is father in law of complainant, PW5 is paternal uncle of victim, who are circumstantial witness and speaks about the facts of the case. PW6/S Shankaramma who is eye witness when the accused had taken away the minor girl.

Special Judge, Fast Track special court

for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

SC No.203 of 2021 Page 5 of 7

7.On completion of prosecution evidence, as there is no incriminating material in the evidence of PWs 1 to 6, the examination of accused under

Section 313 CrPC is dispensed with.

8.Heard arguments on both the sides.

9. Now the sole point that falls for consideration is:

“Whether the prosecution could prove the charges against the accused for the offences under sections 366 and 376(1) IPC and Section 3 read with 4 of POCSO Act and Section 9 of the Prohibition of Child Marriage Act, beyond all reasonable doubts or not?” P O I N T:

10.The prosecution in order to substantiate its case examined PW1 to

PW6 and got marked Ex.P1 to P7. The testimony of PW1 /Mother of victim and complainant shows that at about 2 years back her daughter went to her relatives house without intimation, she searched for her but, in vain, as such, she approached the Police and Police obtained her signatures on some papers. She never stated the accused kidnapped her daughter.

11.PW2 is the victim, she did not support prosecution case and categorically stated at about 2 years back, she went to her friend’s house without intimation, on that her mother approached the police. After 2 days, she came back. She never stated the accused harassed her. At the instance of police, she has given statement before the Magistrate.

12.PW3/paternal uncle of victim, PW4/Father in law of PW1,

PW5/paternal uncle of victim, PW6/relative of victim, did not support prosecution case and categorically stated they do not know anything about this case and police never examined them. Thus, all the material witnesses including the victim turned hostile to the case of the prosecution

Special Judge, Fast Track special court

for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

SC No.203 of 2021 Page 6 of 7

and not supported its case in any manner. Though the learned Public

Prosecutor cross-examined PW1 to PW6, they denied to have stated before the Police as in Exs.P1 to P7 respectively. So the evidence of PWs 1 to 6 is not at all useful to the prosecution case.

13.As the material witnesses PW1 to PW6 turned hostile and did not support prosecution case, so the learned Additional Public Prosecutor given-up the remaining witnesses. So there is no incriminating evidence against the accused. Since the incriminating evidence has not come on record against the accused, the examination under section 313 CrPC is also dispensed. Hence, the accused is entitled for the benefit of doubt.

Accordingly, the point is answered.

14.In the result, the accusedis not found guilty of the offences punishable under Sections 366 and 376(1) IPC and Section 3 read with 4 of

POCSO Act and Section 9 of the Prohibition of Child Marriage Act and accordingly, he is acquitted of the charges under section 232 Criminal

Procedure Code. The bail bonds of the accused shall be in force for a period of six months as mandated under section 437-A of Cr.P.C. The unmarked case property shall be destroyed if any after appeal period is over.

Typed to my dictation by Stenographer and after corrections,

pronounced by me in the open court this the 18thday of April 2023.

sd/-

I Addl District and Sessions Judge, Mancherial. FAC: Special Judge, Fast Track special court for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

Special Judge, Fast Track special court

for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

SC No.203 of 2021 Page 7 of 7

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1: Mother of victim -None- PW2: Victim PW3: Cousin brother of victim PW4: Father in law of complainant

PW5: Paternal uncle of victim

PW6: Sundilla Shankaramma

EXHIBITS MARKED

Ex.P1: 161 CrPC statement of PW1 Ex.P2: Signature on 164 CrPC statement of - Nil - PW2 Ex.P3: 161 CrPC statement of PW2 Ex.P4: 161 CrPC statement of PW3 Ex.P5: 161 CrPC statement of PW4 Ex.P6: 161 CrPC statement of PW5 Ex.P7: 161 CrPC statement of PW6

MATERIAL OBJECTS MARKED

- NIL -

sd/-

I Addl District and Sessions Judge, Mancherial. FAC:Special Judge, Fast Track special court for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

Special Judge, Fast Track special court

for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

SC POCSO No.73 of 2022 Page 1 of 7

IN THE FAST TRACK SPECIAL COURT FOR EXPEDITIOUS TRIAL AND

DISPOSAL OF RAPE AND POCSO ACT CASES, AT MANCHERIAL

Present: Smt.J.Maithreyi, I Additional Dist. & Sessions Judge, Mancherial FAC:Special Judge, Fast Track special court for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

Monday the 17th day of April 2023

SC POCSO.NO.73 of 2022

Name of the ComplainantState represented by Circle Inspector of police, Mancherial Rural

Name of the AccusedA2: Mekala Dubbaiah, S/o Rajaiah, Age:45 years, Occ:Coolie, Caste:SC Madiga, R/o Karnamamidi village of Hajipur(M)

Case against A4 split up and given SC (POCSO) No.8 of 2023

Offence under sectionSection 17 of POCSO Act and Section 10 of Prohibition of Child Marriage Act

Plea of the accusedNot Guilty

Finding Not Guilty

Sentence or OrderIn the result,A2 is not found guilty of the offence punishable under Section 17 of POCSO Act and Section 10 of Prohibition of Child Marriage Act and accordingly, he is acquitted of the charges under section 232 Criminal Procedure Code. Bail bonds of accused shall stand cancelled. The unmarked case property i.e. Hero Honda Splendor plus motorcycle bearing No.AP-01-AD- 0965 which is in the safe custody of police, shall be retained till disposal of case against A4.

Special Judge, Fast Track special court

for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

SC POCSO No.73 of 2022 Page 2 of 7

Name of the counsel for prosecutionSri Surendar Upadhyay, Addl. Public Prosecutor

Name of the counsel for DefenceSri G.Muralidhar, Advocate

This case coming before me on 10.04.2023 for final hearing in the presence of Sri.Surendar Upadhyay, Additional Public Prosecutor for the State and of Sr .G. Muralidhar, Advocate and on hearing both sides 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 Circle Inspector of police, Mancherial Rural filed a charge sheet against accused No.2 for the offence under Section 17 of POCSO Act and

Section 10 of Prohibition of Child Marriage Act.

2.The brief facts of the case as per charge sheet is that:-

On 12.02.2020 at 0800 hours, the PW1/mother of victim came to police station and lodged a report stating that on 12.02.2020 at 04.00 a.m., her second daughter went out from the house for attending nature calls. Meantime she heard some sound form outside and she went there and found the A1 was forcibly taking away her daughter. Hence she lodged report.

Basing on this report, LW20/M.Chandra Shekar, SIP registered a case in Cr.No.10/2020 U/secs.363 IPC and issued FIR. During the course of investigation, he examined and recorded the statement of PW1/mother of victim. He visited scene of offence and conducted scene of offence panchanama in the presence of Lw9/Ch. Poshamallu, LW10/Ch. Santhosh.

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for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

SC POCSO No.73 of 2022 Page 3 of 7

He collected bonafide certificate of minor girl from LW3/P.Nagamani. On 19.03.2020 the accused No.1 and victim was apprehended. The victim girl was produced before child welfare committee Mancherial and she was sent to Sakhi centre Mancherial for shelter. LW20/M.Chandrashekar got recorded the statement of victim through Lw8/D.Lalitha ASI and it was videographed. The victim stated the accused was following her and proposed love, their casts are different so her parents may not accept their marriage so she eloped with accused. A1 had taken her to his house and

A2 to A5 performed her marriage with A1. After marriage they participated in sexual intercourse. The police caught hold them. Basing on her statement he filed memo by adding section of law i.e. section 376 IPC sec. 4 of POCSO act and sec. 3 and 5 of prohibition of child marriage act.

The A1 confessed the offence so it was recorded in the presence of

LW11/Dasari Ellaih, Lw12/S.Rajashekar and seized the motorcycle of A1 under cover of panchanama. The victim was produced before the medical officer LW15/Dr. Sarigama examined the victim and preserved vaginal swabs. The victim was not ready to go to her parents’ house. So she was shifted to shelter home Sakhi center Mancherial. The accused was produced before L16/Dr. L. Sridhar Babu who examined him and issued potency certificate. The accused No.1 produced before the court for judicial custody. Thereafter, Lw21/ Y.Krishnakumar took up the investigation and recorded the statements of witnesses of PW2/elder sister of victim LW4/R.Ramanna, LW6/Gare Murali, lW7/Ch. Prashanth. He conducted second scene of offence panchanama in the presence of

Special Judge, Fast Track special court

for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

SC POCSO No.73 of 2022 Page 4 of 7

Lw13/M.Naresh, LW14/M. Mahesh. On his requisition lw18/learned

magistrate recorded the 164 statement of victim. The notice under

section 41-A Cr.PC. served on A2 to A5. After collecting FSL report

LW22/K.Kumara Swamy filed charge sheet.

3.The offence was taken cognizance by this Court, after compliance of requirements under sections 207 Criminal Procedure Code, for the offence under Section 17 of POCSO Act and Section 9 of Prohibition of Child

Marriage Act.

4.On appearance of the accused and on hearing the learned counsel and learned public prosecutor charges were framed for the offence under

Section 17 of POCSO Act and Section 10 of Prohibition of Child Marriage

Act, read over and explained to the accused in vernacular language, he pleaded not guilty and claimed to be tried.

5.During the course of trial the prosecution examined PWs 1 to 3 and

Exs.P1 to P5 are marked. PW1 is mother of victim, PW2 is elder sister of victim, and PW3 is victim.

6.On completion of prosecution evidence, as there is no incriminating material in the evidence of PWs 1 to 3, the examination of accused under

Section 313 Cr.P.C. is dispensed with.

7.After hearing the arguments of both sides, today the matter stood for judgment.

Special Judge, Fast Track special court

for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

SC POCSO No.73 of 2022 Page 5 of 7

8. Now the sole point that falls for consideration is:

“Whether the prosecution could prove the charges against the accused No.2 for the offence 17 of POCSO Act and Section 10 of Prohibition of Child Marriage Act, beyond all reasonable doubts or not?”

P O I N T:

9.The prosecution in order to bring home the guilty of accused examined PW1 to 3.

10.The testimony of PW1/Mother of victim shows at about 3 years back, her daughter went to their relatives’ house without intimation; they searched for her but in vain. She approached the police. The police obtained her signature on some papers. She does not know the contents of complaint. She never stated the accused No.1 kidnapped her daughter and accused herein abated A1. The PW1 did not support the prosecution case and turned hostile. Later on, PW2 is the elder sister of victim did not support prosecution case and categorically stated at about 3 years back her sister went to their relatives house without intimation, they searched for her but in vain. PW1 approached the police. She never stated A1 kidnapped her sister and accused herein abated A1. PW3 is victim and crucial witness to the prosecution case. But, she did not support prosecution case and categorically stated at about 3 years back she went to their relatives’ house without intimation, her parents searched for her

Special Judge, Fast Track special court

for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

SC POCSO No.73 of 2022 Page 6 of 7 but in vain. PW1 approached the police. She never stated A1 kidnapped her; the remaining accused performed their marriage and abated A1 in committing offence. At the instance of police, she has given statement

before the police. The learned PP requests the Court to declare witnesses

hostile and cross examined them by explaining the contents of 161 statement, even though they did not support prosecution case. So the evidence of PWs 1 to 3 is not useful to the prosecution.

11.As the material witnesses PWs 1 to 3 turned hostile and did not support prosecution case so the learned PP given up the remaining witnesses. So there is no incriminating evidence against the accused.

Since the incriminating evidence has not come on record against the accused, the examination under section 313 Cr.P.C. is also dispensed.

Hence, the accused are entitled to benefit of doubt. Point is answered accordingly.

12.In the result,A2 is not found guilty of the offence punishable under Section 17 of POCSO Act and Section 10 of Prohibition of Child

Marriage Act and accordingly, he is acquitted of the charges under section 232 Criminal Procedure Code. Bail bonds of accused shall stand cancelled.

The unmarked case property i.e. Hero Honda Splendor plus motorcycle bearing No.AP-01-AD-0965 which is in the safe custody of police, shall be retained till disposal of case against A4.

Special Judge, Fast Track special court

for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

SC POCSO No.73 of 2022 Page 7 of 7

Typed to my dictation by the Stenographer, and after correction

pronounced by me in open court this the 17 th day of October, 2023.

sd/-

I Addl District and Sessions Judge, Mancherial. FAC:Special Judge, Fast Track special court for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1: Mother of victim, complainant -None- PW2: Elder sister of victim PW3: Victim

EXHIBITS MARKED

Ex.P1:Signature of PW1 on complaint Ex.P2:161 CrPC statement of PW1 Ex.P3:161 CrPC statement of PW2 Ex.P4:Signature of PW3 on 164 CrPC statement Ex.P5:161 CrPC statement of PW3

MATERIAL OBJECTS MARKED

- NIL -

sd/-

I Addl District and Sessions Judge, Mancherial. FAC:Special Judge, Fast Track special court for expeditious trial and disposal of rape and POCSO Act cases, Mancherial

Special Judge, Fast Track special court

for expeditious trial and disposal of rape and POCSO Act cases, Mancherial