Smt K. Sujana

IN THE COURT OF SPECIAL SESSIONS JUDGE FOR TRIAL OF

CASES UNDER THE SCs & STs (POA) ACT-CUM-VIII

ADDITIONAL SESSIONS JUDGE AT NIZAMABAD

Wednesday, this the 28 th day of February 2018

PRESENT:SMT. K. SUJANA

Prl. Sessions Judge, Nizamabad FAC: Special Sessions Judge for trial of cases under SCs & STs (PoA) Act-cum-VIII Additional

Sessions Judge at Nizamabad

SC No.108 OF 2017

[On committal by the Court of the II Addl. JMFC, Nizamabad in PRC No.12 of 2017 in crime No.12 of 2017 of PS Town-V, Nizamabad]

1. Name of the complainant The State through Circle Inspector of Police, Nizamabad Rural South

2. Name of the accused :: Feroz Khan S/o Abdullah Khan, age 23 years, Caste: Muslim, Occ: Labour, R/o Sailani Nagar, CM road, Autonagar, Nizamabad.

3. Offence/s Under section 302 IPC

4. Plea of accused Not guilty

5. Finding of the Judge Found guilty

6. Prosecution conducted by Sri Seshikaran Reddy, Addl. Public Prosecutor, Nizamabad

7. Accused defended by Smt. A. Kavitha Reddy, Legal Aid Counsel.

8. Sentence or order Accused is found guilty for the offence u/s 302 and convicted therefor under section 235(2) Cr.P.C. and he is sentenced to undergo imprisonment for LIFE and also to pay fine of Rs.500/- (Rs. Five hundred only) in default of payment of fine, he is sentenced to undergo SI for THREE MONTHS. Bail bonds of the accused shall stand cancelled. The remand period shall be set off u/s 428 Cr.P.C. MO.1 gas cylinder shall be given to its owner on proper identification, and MOs 2 to 6 shall be destroyed after expiry of appeal time. This case coming up before me for hearing on 23.02.2018 in the presence of Sri Seshikaran Reddy, Addl. Public Prosecutor for the State and of Smt. A. Kavitha Reddy, legal aid counsel of the accused and having stood over for consideration to this day, the court delivered the following:- 2 SC 108-2017

J U D G M E N T

The Circle Inspector of Police, Nizamabad Rural South, laid the charge sheet against the accused for the offence under sections 302

IPC

2. The case of the prosecution in a nutshell is that, Smt. Muntaz

Begum is mother of the accused and she is having two sons; accused is her elder son and Amerkhan (PW.1) is younger son.

About 20 years back her husband Abdullah Khan left from the house by leaving her and her children. Since then, she used to roll beedies and brought up them. They are living as tenants in the house of

Yousuf Khan (PW.5) at Sailanagar for the last 20 days (prior to lodging report). The accused is habituated to vices and used to take money from his mother forcibly. He used to come to the house regularly in drunken condition, apart from taking ganja with cigarette. On 31.01.2017 in the evening hours he came to house in drunken condition and at about 7.40 p.m. while he was filling the ganja powder into the cigarette, his mother reprimanded him, on that accused abused her in filthy language and decided to kill her and immediately he caught hold of her neck and necked her outside from the house and she fell down. In the meantime, Fareeda

Sulthana (PW.2) came and intervened, but the accused pushed her, and he went into the room and took the gas cylinder by removing the pipe and beat his mother with the gas cylinder on her head, due to which, she sustained grievous crush injury and died on the spot.

2.1 On 31.01.2017 at 2200 hours M. Laxmaiah (PW.13), the Sub-

Inspector of Police, Town-V PS, Nizamabad, received complaint from

PW.1 and N. Upender Reddy, SI of Police, PS Town-V, Nizamabad, 3 SC 108-2017 registered the crime and issued FIR. H. Venkateshwarlu, Inspector of Police, Nizamabad South, (PW.15), investigated into the crime and, after investigation, filed charge-sheet against the accused.

3. The learned II Addl. Judicial Magistrate of First Class,

Nizamabad, taken the case on file as PRC No.12/2017 for the offence 302 IPC. The learned Magistrate after following the due procedure contemplated under section 209 committed the case to

Court of Session, Nizamabad Division, Nizamabad. The Sessions

Court has taken the case on file so committed to it and numbered as

SC No.108/2017 and made over to this Court for trial.

4. After hearing the learned Additional Public Prosecutor and the learned legal aid counsel for accused and on consideration of the record, charge under section 302 IPC against accused was framed read over and explained to him in vernacular language. The accused pleaded not guilty to the charge and claimed for being tried.

5. To prove its case, the prosecution has examined Pw1 to Pw15 and marked Ex.P1 to P12 and MOs No.1 to 6. On behalf of defence,

Ex.D1 portion of 161 Cr.P.C. statement of PW.3 is marked.

6. Pw1 Ameer Khan is the complainant and younger son of the deceased. Pw2 Fareeda Sulthana is the eyewitness and house owner. PW.3 Md. Samiuddin is the eyewitness. PW.4 Smt. Asgari

Begum is the witness and sister of the deceased. PW.5 Yousuf Khan is the eyewitness and house owner. PW.6 Tokala Prasad is the photographer. PW.7 Wajidullah Khan is panch for scene of offence and seizure of gas cylinder and other material objects. Pw.8 Syed

Asgar is the panch for inquest and seizure of bloodstain cloths of the deceased. PW.9 Arepally Naresh is the panch for confession. PW.10 4 SC 108-2017

Dr. P. Naga Mohan Rao, Professor, HoD, Govt. Medical College,

Nizamabad, who conducted autopsy over the dead body of the deceased. Pw.11 Dr. C. Narender Kumar. Pw.12 Mohd. Wazid is the eyewitness and house owner. PW.13 M. Laxmaiah, Sub-

Inspector of Police, PS Town-V, Nizamabad, is the IO. PW.14 N.

Upender Reddy, Sub-Inspector of Police, PS Town-V, Nizamabad, is the IO and PW.15 H. Venkateshwarlu, Inspector of Police, is the IO who laid charge sheet.

Ex.P1 is the complaint. Ex.P2 is the set of five photographs.

Ex.P3 is the scene of offence and seizure panchanama. Ex.P4 is the rough sketch. Ex.P5 is inquest panchanama. Ex.P6 is seizure panchanama of cloths of the deceased. Ex.P7 is admissible portion of seizure panchanama of cloths of the accused. Ex.P8 is set of seven photographs of panchanama. Ex.P9 is postmortem examination report. Ex.P10 is the medical report. Ex.P11 is the

FIR. Ex.P12 is the FSL report.

MO-1 is the red coloured bloodstained gas cylinder of HP

Company. MO-2 is the black coloured bloodstained saree with white flower design. MO.3 is the black coloured petty coat. MO.4 is the pink coloured blouse of the deceased. MO.5 is blue coloured round neck bloodstained full “T” shirt having “Aeronacal Mittare, Pattuglia

Acrobatica Nazionale”. MO.6 is blue coloured bloodstained jeans pant of the accused.

7. After closure of the prosecution evidence the accused was examined under section 313 Cr.P.C. He denied the incriminating material against him in the evidence of the prosecution witnesses and stated that he has no defence evidence.

5 SC 108-2017

8. Heard the learned Addl. PP and learned legal aid counsel for the accused.

9. Now the points for determination are:

1. Whether the prosecution proved the guilt of the accused for the offence u/s 302 IPC?

2. To what relief?

POINT NO.1:

10. To prove the charge against the accused, prosecution examined PWs 1 to 15.

11. PW.1 Ameer Khan is the younger brother of the accused and son of the deceased and his evidence is that, on 31.7.2017 when he was attending his labour work at Nizamabad, at about 8.15 p.m. he received a phone call informing that his mother was murdered by the accused. Immediately, he rushed to his house and found his mother’s dead body with bleeding injuries over her head and face.

The face was found to be crushed; a gas cylinder was lying beside her and accused was not present in the house when he reached the house. He further deposed that accused was addicted to drinks and drugs and used to frequently quarrel with his mother demanding her to give money for his vices, then he went to V Town PS, Nizamabad, and made report to the police.

12. PW.2 is Smt. Fared Sultana is the house owner where the deceased, accused and PW.1 used to reside as tenants and she deposed that the deceased and accused along with PW.1 came to her house as tenants about 20 days prior to her death and accused was daily consuming liquor and sleeping in the house and he used to take money from the deceased for his vices. On the date of 6 SC 108-2017 incident, she was cooking in her house. She heard screams from the house of the deceased and then she rushed and found the accused beating the deceased and she intervened to rescue her, but the accused pushed her out of their portion, holding her neck and also pushed his mother out of the house and accused brought the gas cylinder from the kitchen and hit the face and head of the deceased with it and she sustained bleeding injuries and died instantly and immediately, she informed the said incident over cell phone to PW.1. She identified the said gas cylinder marked as MO.1

13. PW.3 Md. Samiuddin deposed that he knows the accused,

PW.1 and deceased Muntaz Begum as they are his neighbours and

PW.2 is the wife of Yousuf Khan. On 31.1.2017 at 8.00 p.m. he was present in his hotel, he heard the noise of commotion at some distance from his hotel. On hearing the noise, he went there and found the accused and his family members and also the accused hitting his mother with a gas cylinder on her head, due to it, her head was broken and her brain came out of the head and several people gathered and shouted about killing his mother, and the people beat the accused and brought the accused out of his house and on information from one of them, the police came there. Later, the deceased was rushed to Govt. Hospital, Nizamabad.

14. Smt. Asgari Begum, younger sister of the deceased, deposed that deceased used to reside with her two sons in a rented house and accused used to consume liquor and demanding money quarrelling with the deceased. She further deposed that she is residing in the same locality nearby the house of the deceased. On 31.1.2017 at about 8.00 p.m., she came to know about the death of 7 SC 108-2017 the deceased, and then she went there and found the accused killed the deceased by hitting her with a gas cylinder and public were also present and they beat the accused and the deceased was shifted to

Government Hospital.

15. PW.5 Yousuf Khan is the owner of the house where PW.1, deceased and accused were living as tenants 20 days prior to the incident. PW.2 is his wife. He observed that the accused was consuming liquor and quarrelling with the deceased and PW.1. On 31.1.2017 at about 8.00 p.m. PW.2 informed him while he was at his scrap shop over phone that accused having demanded money from his mother for consuming liquor and she was beaten to death.

Then he rushed to his house and found the deceased with bleeding injuries and lying dead. Her head and face were crushed.

16. PW.6 Tokala Prasad, Photographer, deposed that at the request of police, he took the photographs of the dead body of a woman Muntaz Begum and scene of offence. He took photograph of the gas cylinder also and he came to know that the said woman was killed by her son by hitting her with gas cylinder on her head.

17. PW.7 Wazidullah Khan, panch for scene of offence, deposed that he is resident of Ahmedpura Colony, Nizamabad. He and Mohd.

Mateen were called by the police to act as panch witnesses, they acted as panch witness for scene of offence panchanama and police seized (1) MO.1 red coloured bloodstained gas cylinder in their presence.

18. PW.8 Syed Asgar is the panch witness for inquest panchanama. He along with Ahmedi Begum when they went to 8 SC 108-2017

Govt. Hospital, Nizamabad, for treatment, police called both of them to act as panch witnesses for inquest panchanama and they saw the deadbody of a woman lying in a mortuary room and the police conducted inquest over the dead body of the deceased and head of the deadbody was bleeding with crush injury and police also seized clothes of the deceased MOs 2 to 4 in their presence under cover of panchanama.

19. PW.9 Arepally Naresh, VRO, Urban North, deposed thaton 2.2.2017 Nizamabad Rural police called himself and one K.

Gangarajam to room No.407 at 4th floor of Govt. Hospital,

Nizamabad to act as panch witnesses. Accordingly, they went there, there, the CI of police and other police were present and one person was found lying on a bed, and at the request of CI of Police, they enquired the said person, on enquiry, the person stated that he is habituated to consume liquor and also confessed about the commission of offence and also shown the clothes worn by him and those cloths were seized by the police, MOs 5 and 6.

20. Dr. P. Naga Mohan Rao, Professor and Head of the

Department of Forensic Medicine, Govt. Medical College, Nizamabad, deposed that on 1.2.2017 at 10.30 a.m. he received requisition from

Circle Inspector of Police, PS Nizamabad Rural South, to conduct autopsy over the deadbody of a female Muntaj Begum, on that he conducted postmortem examination and found crush injuries on head and lacerations on cheek and chin. According to him, the cause of death is head injury.

21. PW.11 Dr. C. Narender Kumar deposed that he is giving evidence basing on the medical record of the case. Dr. A. Sandeep 9 SC 108-2017

Reddy worked as a Civil Assistant Surgeon in their hospital from 2013 to 2017. In the month of June 2017 he resigned to job in the said hospital and left for post graduate studies elsewhere. He further deposed that he came to the Court to give evidence. The accused was examined by Dr. Sandeep Reddy and treatment was given. As per the said medical report given by Sandeep Reddy, accused was brought to causality at their hospital around at 8.50 p.m. on 31.1.2017 with history of alcohol consumption and assault to his mother. There is contusion over the right side of temporal region 2x3 cm., and accused was treated upon psychiatric examination and he was under alcoholic influence.

22. PW.12 Mohd. Wajid resident of Autonagar, Nizamabad, deposed that he is a B.Tech. student and trying for a job. On 31.1.2017 at about 8 p.m. when he was present in his house, he heard the noise of commotion from his neighbourhood, then he came out of the house and found the said commotion at the house of the accused near to their house and rushed there and found the dead body of Smt. Muntaz Begum with bleeding injuries. He further deposed that her head was crushed and a gas cylinder was lying beside her and accused was also present there and public also gathered there and he came to know from the public that accused was filling ganja powder in a cigarette at his house and his mother questioned him about it, then the accused hit her with a gas cylinder on her head and she died.

23. PW.13 Mallikanti Laxmaiah, SI of Police, deposed about the investigation done by him. PW.14 N. Upender, SI of Police, who issued FIR in this case, deposed about receiving of complaint by him 10 SC 108-2017 and PW.15 H. Venkateshwarlu, CI of Police, who conducted investigation in this case.

24. The learned legal aid counsel for the accused submitted that there is no direct evidence to prove that accused killed the deceased by hitting her with a gas cylinder and further, she also took the defence of his mental condition and she contended that accused was mentally ill and was unable to know what he was doing, therefore, he has done the offence in mentally imbalanced condition, therefore, he may be exempted from punishing in view of Sec.84 of IPC.

On the other hand, the learned Addl. Public Prosecutor submitted that the evidence of PWs 1 and 2 clearly proves that the accused killed the deceased with a gas cylinder and her head was broken and she died on the spot. Further, he also submitted that there is no evidence adduced by the defence to prove that accused was mentally ill patient and no medical record was filed by them and after or at the time of incident he was suffering from mental illness.

He further submitted that the evidence of PWs 1 to 15 corroborating with each other and there are no omissions and contradictions in the evidence of PWs 1 to 15 and the prosecution proved guilty of the accused beyond all reasonable doubt, therefore, the accused is liable to be punished.

25. The evidence on record adduced by the prosecution to prove the guilt of the accused is mainly PWs 1 and 2. PW.1 is the younger brother of the accused and his evidence is that the accused is habituated to vices and he used to consume alcohol and also habituated to drugs and to purchase the drugs and alcohol, he used to ask money from his mother and on the date of incident, he 11 SC 108-2017 received phone call from PW.1 who is alleged to be eyewitness and owner of the house that accused beat the deceased. The evidence of PW.2 is also that on the date of incident when she heard noise of the deceased, she went there and observed the accused beating the deceased, and when she intervened to rescue her, the accused pushed her away from the house, as such, she informed the same to

PW.1 and also raised hues and cries and later public were gathered there. The evidence of PW.5 who is the husband of PW.2 is also that after receiving the information, he came to the house and observed there lot of public gathering in the house of the deceased.

PW.4 sister of the deceased also deposed that on the date of incident, when she received information, she came to the house of the deceased and observed that her sister was killed by the accused and she came to know through public that accused beat the deceased. Pw3 Md. Samiuddin deposed that on hearing the noise of commotion at some distance from his hotel, he went to the scene of offence and saw the accused hitting his mother with a gas cylinder on her head. Due to it, her head was broken and her brain came out of the head and that several people gathered and shouted at the accused and they also beat the accused and handed over to police.

The evidence of PWs 1 to 5 corroborated with each other with regard to the death of the deceased at the scene of offence and also head injury. Further, also the gas cylinder was near to the deadbody and the accused alleged to have hit the deceased with a gas cylinder.

26. In the cross-examination of PW.2, though the counsel for the accused tried to elicit that she was not present at the time of incident, but PW.2 clearly stated that when the accused pushed her 12 SC 108-2017 out of the house, immediately she informed to PW.1 and also gathered the public. She further deposed that she saw the accused while beating the deceased with a gas cylinder. Though she tried to elicit that she does not know the consumer number of the gas cylinder as it is a certain incident and the accused used the cylinder as a weapon, there is no need to know the consumer number of the cylinder by PW.2. PW.1 also deposed about habits of the accused and accused behaviour with his mother even prior to the incident that he used to demand money from his mother as she refused to give money and when she questioned about ganja filling in the cigarette, the accused irritated and beat her with a gas cylinder.

There are no infirmities in the evidence of PWs 1 to 5 and PWs 1 to 5 though cross-examined at length, the defence counsel failed to elicit anything in favour of the accused, and the evidence of PWs 1 to 5 is corroborated with each other and there are no reasons to disbelieve the evidence of PWs 1 to 5. PW.1 being the younger brother of the accused and PW.4 being sister of the deceased, deposed against the accused and his attitude and further the prosecution proved the scene of offence panchanama and inquest panchanama conducted by them through the evidence of PWs 6 and 7.

27. The contention of the defence counsel is that at the time of incident, accused was insane and he did not know the incident and he did the same in an insane condition. When the accused takes the defence of insanity, he has to prove the same u/s 105 of the

Evidence Act. Every person mentally diseased is not ipso facto exempted from criminal responsibility. Distinction between legal insanity and medical insanity is explained in judgment of Apex Court 13 SC 108-2017 in AIR 1964 SC 1563. Court is concerned with legal insanity not with medical insanity. A person is exonerated from liability for doing an act on the ground of unsoundness of mind if he at the time if doing the act is either wrong or contrary of law. In this case defence failed to prove the legal insanity stating that accused is incapable of knowing the nature of the act. Though the defence counsel suggested to PWs 1 and 2 about the mental condition of the accused, but they denied the same and they stated that there is no insanity or mental ill-health of the accused. Therefore, though the defence took the plea of insanity, they failed to prove the same. On the other hand, the prosecution with the evidence of PWs 1 to 5 narrated the incident properly and proved the case against the accused beyond all reasonable doubt. The learned defence counsel pointed out some omissions and contradictions which can be made the basis of impeaching the credibility of the witnesses be that as it may minor contradictions cannot be used to jettison the evidence in its entirety. Corroboration cannot be expected with mathematical niceties in criminal cases. The discrepancies pointed out in the evidence of the witnesses are not of a material dimension thereby affecting the substratum of the prosecution case. Discrepancies due to normal errors of perception or observation cannot be given importance. The evidence which is cogent, credible and trustworthy cannot be wiped out because of trivial contradictions and discrepancies extensive and incisive. Cross-examination of PWs 1 to 5 has not brought any doubt on the truthfulness of their statements.

Their evidence is found to be flawless. The prosecution has virtually demonstrated before the Court reasonable, convincing and unassailing evidence from all angles the offence committed by the 14 SC 108-2017 accused. Therefore, the accused is found guilty for the offence u/s 302 IPC. Accordingly, point No.1 is answered in favour of the prosecution and against the accused.

Point No.II

28.In the result, accused is found guilty for the offence u/s 302

IPC and is convicted therefor under section 235(2) Cr.P.C.

Partly dictated to Stenographer and partly typed to my dictation, corrected and pronounced by me in open court on this the 28 th day of February 2018

Special Sessions Judge for trial of cases under SCs/ STs (PoA)Act, Nizamabad

Accused is heard under section 235(2) Cr.P.C. with regard to the sentence. The accused stated that he did not know what had happened to him at the time of incident and prayed to take a lenient view.

Having regard to the nature of the offence committed by the accused, this Court is not inclined to take lenient view in awarding punishment for the offence u/s 302 IPC and accused is sentenced to undergo rigorous imprisonment for LIFE and also to pay fine of

Rs.500/- (Rs. Five hundred only) in default of payment of fine, he is sentenced to undergo SI for THREE MONTHS. Bail bonds of the accused shall stand cancelled. The remand period shall be set off u/s 428 Cr.P.C. MO.1 gas cylinder shall be given to its owner on proper identification, and MOs 2 to 6 shall be destroyed after expiry of appeal time.

The accused is informed about his right of appeal before the

Hon’ble High Court against the conviction and sentence and he is

further informed that if he has no means to engage advocate, the 15 SC 108-2017 advocate will be appointed at the expense of the state on his application to the State Legal Services Authority, Hyderabad.

Pronounced by dictation to the Stenographer, transcribed by

him, corrected and signed by me on this the 28 th day of February 2018.

Special Sessions Judge for trial of cases under SCs/ STs (PoA)Act, Nizamabad -:: APPENDIX OF EVIDNECE ::- Witnesses examined For Prosecution For Defence

Pw1 Sri Ameer Khan None Pw2 Smt. Fared Sultana Pw3 Sri Md. Samiuddin Pw4 Smt. Asgari Begum Pw5 Sri Yousuf Khan Pw6 Sri Tokala Prasad Pw7 Sri Wazidullah Khan Pw8 Sri Syed Asgar Pw9 Sri A. Naresh Pw10 Dr. P. Naga Mohan Rao Pw11 Dr. C. Narender Kumar Pw12 Sri Mohd. Wajid Pw13 Sri M. Laxmaiah Pw14 Sri N. Upender, IO Pw15 Sri H. Venkateshwarlu,IO ::- Exhibits marked ::- Ex.P1 Complaint Ex.D1 Portion of 161 Cr.P.C. statement of PW.3 Ex.P2 Set of five photographs -- Ex.P3 Scene of offence and seizure panchanama -- Ex.P4 Rough sketch -- Ex.P5 Inquest panchanama Ex.P6 Seizure panchanama of cloths of the deceased Ex.P7 Admissible portion of seizure panchanama of -- cloths of the accused Ex.P8 Set of seven photographs of panchanama -- Ex.P9 Postmortem examination report - Ex.P10 Medical report Ex.P11 FIR Ex.P12 FSL report

Material objects marked

MO-1: Red coloured bloodstained gas cylinder of HP Company MO-2: Black coloured bloodstained saree with white flower design MO.3: Black coloured petty coat. MO.4: Pink coloured blouse of the deceased. MO.5: Blue coloured round neck bloodstained full “T” shirt having “Aeronacal Mittare, Pattuglia Acrobatica Nazionale”. MO.6: Blue coloured bloodstained jeans pant of the accused.

Special Sessions Judge for trial of cases under SCs/ STs (PoA)Act, Nizamabad

OS 39 of 2011 Damages

IN THE COURT OF THE VIII ADDITIONAL DISTRICT JUDGE AT

NIZAMABAD

Friday, March 23, 2018

PRESENT: Smt. K. Sujana, Prl. District Judge, Nizamabad FAC: VIII Addl. District Judge Nizamabad

OS No.39 OF 2011

BETWEEN:

Sri A. Narahari S/o Sri A. Sayanna, age 50 years, Occ: Proprietor of M/s M. Rajaiah & Company, HPCL Dealer, Petrol Pump, situated at Balkonda village & Mandal, Nizamabad District, R/o H.No.4-70/8, Venkateshwara Colony, Mamidipally, Armoor (V&M), District Nizamabad. … Plaintiff

A N D

1) P. Vamshidhar Reddy S/o Narsimha Reddy, age 40 years, Occ: Business, R/o Kisannagar village, Balkonda Mandal, Nizamabad District.

2) Md. Iftekaruddin S/o Khaleeluddin, age 45 years, Occ: Politician, R/o Balkonda village & Mandal, Nizamabad District.

3) Akula Narender S/o Narsimloo, age 44 years, Occ: Running School, R/o Balkonda village & Mandal, Nizamabad District.

4) S. Ravi Kumar Reddy S/o Laxma Reddy, age 35 years, Occ: Business, R/o Kisannagar village, Balkonda Mandal, Nizamabad District.

Counsel for Plaintiff : Sri G.V. Krupakar Reddy, Advocate, Nizamabad

Counsel for defendant No.1 : Sri M. Ramesh Reddy, Advocate, Nizamabad

Counsel for defendant Nos. : Sri B. Veerender Reddy, 2 to 4 Advocate, Nizamabad.

This suit coming on 26.02.2018 for final hearing before me in the presence of the counsel on record and after hearing the counsel and having stood over to this day for consideration, this Court delivered the following:

JUDGMENT

1. This suit is filed by the plaintiff against defendant Nos.1 to 4 for damages of Rs.50,00,000/- (Rs. Fifty lakh only). The brief averments of the plaint are that; the plaintiff has been running a petrol and diesel 04/04/20171111/1313VIII ADJ, NZB 1313

OS 39 of 2011 Damages

retail outlet of Hindustan Petroleum Company Ltd., under the name and style of M. Rajaiah & Company on Hyderabad – Nagpur road. The process of transfer of outlet from the name of Late M. Rajaiah into the name of the plaintiff was done in the year 2004 and the sales of the said retail outlet was a mere 150 kilo litre per month when the plaintiff took over the business and that through his hard work and by providing high standard of service, the outlet has reached to 1100 kilo litre per month in the year 1991. The sales of their retail outlet were at the highest in

Telangana region. The Hindustan Petroleum Company Ltd., presented a certificate of appreciation to the plaintiff’s retail outlet for achieving the best sales of high speed diesel in the year 2003-04. The plaintiff received a letter from Mr. R. Radha Krishna, DGM, South zone vide letter dated 18.6.2007 complementing the plaintiff for recording an average sale of 1100 KL MS and HSD in the year 2006-07 and by the end of July 2011 the plaintiff’s retail outlet had touched the mark of 1650 KL. The plaintiff’s untiring efforts and sincerity over a period of 20 years, resulted in the retail outlet recording the highest sales in

Telangana Region.

1(a) It is alleged by the plaintiff that his reputation as a principled businessman, also gained a good image in the society for his efforts in maintaining communal harmony in Mupkal town during Ramzan and

Ganesh festivals. The defendant No.1 visited the plaintiff’s petrol bunk on 23.7.2011 and purchased 32 litres of diesel for his car bearing

No.AP-25R-1116 and the same was filled in the fuel tank, thereafter the said car failed to start a mechanic was called who after checking the car opined that the car should be taken to the garage for analysing the 04/04/20172222/1313VIII ADJ, NZB 1313

OS 39 of 2011 Damages

problem. Then, the defendant No.1 without any basis started alleging that the diesel was adulterated and the adulterated diesel was the cause for the car not starting. The plaintiff vehemently denied there was any chance of adulteration; even he produced the report of the HP mobile laboratory which was conducted on 21.07.2011. In spite of plaintiff producing the necessary proof that the diesel was not adulterated, the defendant No.1 lodged a complaint to the Mandal Revenue Officer, of

Balkonda alleging that the diesel purchased at the outlet of plaintiff, was adulterated and that the said adulterated diesel had caused damage to his car and defendant No.1 also called his friend defendant Nos.2 to 4 and they all came to the outlet and started shouting at the top of their voices that the plaintiff was selling adulterated diesel and they also staged a Dharna on the road and they turned away more than 50 vehicles which caused the plaintiff a loss of at least Rs.10,00,000/-.

1(b) It is further alleged that the defendant No.2 on many occasions had asked for donations and the plaintiff refused to give him donations and defendant No.2 few days prior to this incident, told some people of Balkonda that he would get the business of the plaintiff closed.

The M.R.O., had drawn samples of HSD diesel and MS petrol on the complaint lodged by defendant No.1, but all the defendants started demanding that the outlet should be sealed. The Mandal Revenue

Officer, informed defendant Nos.1 to 4 that it was beyond his purview to close the outlet and it would be premature to act on a mere complaint and assured the defendant Nos.1 to 4 that necessary action would be taken if the samples were found to be adulterated. The defendant No.3 on the instructions of defendant No.1, started making calls to the Press 04/04/20173333/1313VIII ADJ, NZB 1313

OS 39 of 2011 Damages

though the plaintiff requested from informing the press, they called press and all the papers carried the News of adulteration in the retail outlet. The action of defendant Nos.1 to 4 caused loss to the business and reputation of the plaintiff. On 23.7.2011, the M.R.O., Balkonda, visited the outlet of the plaintiff, conducted panchanama in the presence of panchas i.e. defendant Nos.2 to 4 and drawn samples from the outlet, forwarded the same to the Collector (Civil Supply) and on 25.7.2011, the District Supply Officer referred the samples for analysis to the A.P.

Forensic Science Laboratory, Hyderabad, and after analysing the samples, they opined that “motor spirit and high standard diesel are confirming as per the relevant Bureau of Indian Standard Specifications.

The report of Joint Director, FSL, clearly shows that the diesel is not adulterated and the same confirms to the specification of BIS. But, the premature, unbecoming and mala fide acts of the defendant Nos.1 to 4 have damaged the business and reputation of the plaintiff, as such, he filed the suit for damages of Rs.50,00,000/-

2. The defendant No.1 filed his written statement denying the averments of the plaint and he submitted that all the Oil Companies are propagating about pure and sure of petroleum products and ordered the outlets to keep weighing instruments at visible place, so that customers can check on doubt and they must also explain about the quality of the petroleum products when the consumers demand. As such, on enquiry about quality by defendant No.1, filed this wrong suit to threaten the defendants. This itself shows the conduct of the plaintiff. As such, the suit is filed with a mala fide intention and prayed to dismiss the suit. All the stories of the plaintiff are created since defendant enquired the staff 04/04/20174444/1313VIII ADJ, NZB 1313

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about quality of the product and the other defendants stood as panchas to the panchanama of samples drawn. As such, the suit is liable to be dismissed.

3. Defendant No.3 filed written statement denying the averments of the plaint and submitted that defendant No.1 never telephoned to defendant No.3 to come to petrol bunk and he came to petrol bunk to fill petrol in bike along with his friend. At that time, defendant No.1 was discussing with Manager and staff of the petrol bunk about not starting of the car after filling the diesel and asking the manager for reason. On that, Manager and staff started using a criminal force and abusing him.

On that, several persons including himself and other defendants gathered there and pacified the matter. Defendant No.1 complained to the M.R.O.

on the sample drawn from petrol bunk under panchanama for which himself and defendant Nos. 2 to 4 stood as panchas, on that the plaintiff developed enmity and the plaintiff and his staff created false story and filed this false suit; except this there is no truth in the allegations and he prayed the Court to dismiss the suit.

4. Defendant Nos. 2 and 4 have adopted the written statement of defendant No.3.

5. Basing on the above pleadings, my predecessor framed the following issues:

1)Whether the plaintiff is entitled for damages of Rs.50,00,000/- as prayed in the plaint?

2)To what relief?

6. To prove his case, the plaintiff examined P.Ws.1 to 3 and got marked Exs.A1 to A21. On behalf of defendants, DWs 1 and 2 are 04/04/20175555/1313VIII ADJ, NZB 1313

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examined and no document is marked on their behalf.

FINDINGS

6.Heard both sides and perused the record.

7.ISSUE No.1:

7.1 The learned counsel for plaintiff submitted that plaintiff is a reputed person in the society and he is running petrol bunk for the last 20 years and he reached the highest sales in the Telangana Region and he also got appreciation certificate from the Petrol Company and he is having good reputation in maintaining quality and quantity of the petrol and diesel and only to damage image and reputation of the plaintiff, defendant Nos.1 to 4 intentionally made a galata stating that the vehicle was not starting due to the adulteration of diesel. He also submitted that due to the galata made by the defendants, his sales were decreased in that period, as such, prayed the Court to grant Rs.50,00,000/- as damages.

7.2 On the other hand, the learned counsel for defendant No.1 submitted that when the car of defendant No.1 was not started, he merely asked the Manager about the quality of fuel and it is the minimum responsibility of the Manager to give answer instead of that, he used criminal force on defendant No.1, as such, defendant No.1 complaint to the M.R.O. and M.R.O. took samples of fuel. For this, there is no intention of defendant No.1 to damage the reputation of the plaintiff, as a citizen, his minimum responsibility is to give answer for the questions of defendant No.1. Instead of that, he filed a false suit claiming damages to threaten other public and not to question about the quality of fuel.

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7.3 The learned counsel for defendant Nos.2 to 4 submitted that defendant Nos. 2 to 4 are no way concerned with the matter and they came to the bunk to fill fuel and defendant No.1 never called them, mere acting as panchas for panchanama, plaintiff filed a false suit against defendant Nos. 2 to 4, and prayed the Court to dismiss the suit against defendant Nos.2 to 4.

7.4 Perused the evidence on record. PW.1 is the plaintiff. He filed his chief affidavit reiterating the plaint averments and in support of his contention, he got marked Ex.A1 to A21. Ex.A1 is attested copy of

FSL report. Ex.A2 is attested copy of complaint filed by defendant No.1 to Mandal Revenue Officer. Ex.A3 is attested copy of panchanama.

Ex.A4 is letter of appreciation issued by HPCL dated 18.6.2007. Ex.A5 is letter of appreciation issued by HPCL dt. 9.1.2006. Ex.A6 is attested copy of a Lr.No.8960/2011 issued by Tahsildar, Balkonda to the District

Collector, dt. 24.7.2011. Ex.A7 is certificate of appreciation issued by

HPCL in the year 2003-04. Ex.A8 is original News paper containing defamatory news item dt. 24.7.2011. Ex.A9 is original News paper containing statement of Tahsildar dt. 31.8.2011. Ex.A10 is office copy of legal notice dt.12.10.2011. Ex.A11 is reply notice. Ex.A12 is postal receipts. Ex.A13 is acknowledgements. Ex.A14 is income tax returns for the assessment year 2007-08. Ex.A15 is income tax returns for the assessment year 2009-10. Ex.A16 is income tax returns for the assessment year 2011-12. Ex.A17 is income tax returns for the assessment year 2012-13. Ex.A18 is income tax returns for the assessment year 2006-07. Ex.A19 is income tax returns for the 04/04/20177777/1313VIII ADJ, NZB 1313

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assessment year 2005-06. Ex.A20 is income tax returns for the assessment year 2008-09. Ex.A21 is income tax returns for the assessment year 2010-11.

7.5 Plaintiff also examined PW.2 Harichandrashekar, Sales Officer,

HPCL, Nizamabad. He deposed that he is working as a Sales Officer in

HPCL since 2014 and he knows PW.1 and he is their dealer retail outlet at

Balkonda since 1971 and he is the oldest customer and one of the top dealers in Telangana and there are no complaints against PW.1. He further deposed that in 2011 false allegations were made against PW.1 that he was selling adulterated fuel, Dharna was taken place and basing on that, their Company started checking process and collected samples and conducted tests and did not find any proof as to the allegation of adulteration. He further deposed that DSO of Civil Supplies also acted on the dharna information and collected samples and said samples did not find any adulteration. He also confirmed the appreciation certificate issued by their Company.

7.6 The allegation of plaintiff against defendant Nos.1 to 4 is that intentionally they made a false allegation to damage his reputation and to bring down his sales. Though he made allegations against defendant

Nos. 1 to 4, no previous enmity between the plaintiff and defendants was proved by the plaintiff. However, he made allegation against defendant

No.2 stating that the defendant No.2 asked for donation and he refused to give donation, defendant No.2 falsely made propaganda and made galata on that day to damage his reputation; whereas the plaintiff has not made allegation against defendant No.1 about previous enmity or 04/04/20178888/1313VIII ADJ, NZB 1313

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whether defendant No.1 is also having any interest in that business to bring down the business of the plaintiff.

7.7 Further plaintiff examined PW.3 Syed Saber to prove that on that day without any reason, defendants made galata and his evidence is that on 23.7.2011, he went to the petrol pump of the plaintiff and defendant No.1 visited the petrol pump and purchased 50 litres of diesel for his car and the car was not started, he called a Mechanic, though the mechanic opined that the car has to be taken to the garage for diagnosing the problem, defendant No.1 without any basis started alleging that the diesel was adulterated and it was the cause for the car not starting. He further deposed that defendant No.3 on the instructions of defendant No.1, started making calls to the press in spite of request of the plaintiff and the reputation of the plaintiff is marred due to the acts of the defendants who made a Dharna alleging that plaintiff was selling adulterated HSD & MS and also got published in the Newspapers.

7.8 The plaintiff has prove that the defendants have made false allegations without any reason to damage the reputation of plaintiff.

Whereas the plaintiff has not adduced any evidence to prove that defendant No.1 intentionally made galata without any reason, for claiming damages. In this case, it is an admitted fact that after filling diesel, the car was not started, and defendant No.1 called the mechanic and car was not started, as such, he suspected about purity of fuel and gave complaint to the Mandal Revenue Officer.

7.9 The evidence of DW.1 is that he never told it is an adulterated diesel and he enquired with the Manager about the quality of the diesel, 04/04/20179999/1313VIII ADJ, NZB 1313

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then the Manager called his staff and used criminal force and he has not called any friends defendant Nos. 2 to 4 nor told about adulteration of diesel in the petrol pump and not staged any Dharna and he gave complaint to the Mandal Revenue Officer to send sample for verification as mechanic suspected diesel may be adulterated and to know about the quality, on that, the plaintiff developed grudge against him and filed this false suit.

In the cross-examination, he denied that defendant Nos.2 to4 are his friends.

In the cross-examination of PW.1, he admitted that a customer has a right to ask about the quality of petrol or diesel purchased at their bunk. He also admitted that defendant No.1 purchased the diesel at their bunk and also admitted his vehicle did not get started after it was filled at their petrol bunk. Further, he admitted that the defendant No.1 has filed an application before the Tahsildar basing on the opinion of mechanic that the diesel which was filled at their petrol bunk was adulterated, and the same is disclosed by Ex.A2.

7.10 The admission of PW.1 in the cross-examination shows that as if common customer, defendant No.1 asked about the quality of petrol and he has right to ask the same and further he also admitted that basing on the opinion of mechanic, he gave complaint to the Mandal

Revenue Officer, which itself shows that the mechanic suspected that due to adulterated fuel, car was not started. Therefore, there is no ill-motive or ill-intention of defendant No.1 to complaint against the plaintiff.

Further, plaintiff also admitted that their business flourished gradually from 2005 till date and his income is more than the income of the 04/04/201710/1313VIII ADJ, NZB 1010101313

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preceding years and further admitted that he was not present at the petrol pump at the first incident when defendant No.1 got the fuel filled at their petrol bunk and their manager was only present. In the cross- examination by defendant No.2 to 4, plaintiff admitted that he has not given any complaint against defendant No.2 and also defendant No.3.

The allegations against defendant Nos. 2 to 4 is that they supported defendant No.1 and called the press, and he also made allegation against defendant No.2 that prior to the incident, defendant No.2 demanded donation, as he has not given the donation, complaint was made against him. Though he stated that donation, but for what purpose the donation was asked, not clearly stated and also when he asked the donation also not stated by the plaintiff. He has also not given complaint to the police about the demand of defendant No.2 and why he was silent is also not explained by him. The only allegation against defendant Nos.1 to 4 is due to propaganda made by them; his business was running in loss, whereas the documents filed by the plaintiff under Ex.A1 to A21 do not show that his business was lost after the incident. He filed income tax returns up to the year 2012 from 2006. In 2011-2012 assessment year, his income is shown as Rs.14,58,276/-. For the year 2012-13, his income is shown as Rs. 21,63,570/- which shows the increase in the income after the incident and there is no loss caused to the plaintiff due to the alleged propaganda by the defendant Nos.1 to 4. Therefore, the plaintiff failed to prove that the defendant Nos. 1 to 4 are intentionally made false propaganda against his petrol bunk and due to that propaganda he sustained loss in his business and also reputation in the society. The documents filed by the plaintiff itself show that there is no 04/04/201711/1313VIII ADJ, NZB 1111111313

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loss in his income after the alleged incident. Therefore, there are no merits in the case hence the suit is liable to be dismissed. Accordingly, the issue is answered against the plaintiff and in favour of defendants.

8.ISSUE No.2:

IN THE RESULT, the suit is dismissed with costs.

Partly dictated to Stenographer and partly typed to my dictation, corrected and pronounced by me in open Court on this the 23rd day of March 2018.

VIII ADDITIONAL DISTRICT JUDGE

Appendix of Evidence

Witnesses examined

For Plaintiff: For Defendants:

P.W.1 Sri A. Narahari D.W.1 Sri P. Vamshidhar Reddy

P.W.2 Sri Harichandrashekar D.W.2 Sri A. Narendar P.W.3 Sri Syed Saber

Exhibits marked

For Plaintiff: For Defendants:

Ex.A1 Attested copy of FSL report Nil Ex.A2 Attested copy of complaint filed by defendant No.1 to Mandal Revenue Officer Ex.A3 Attested copy of panchanama Ex.A4 Letter of appreciation issued by HPCL dated 18.6.2007 Ex.A5 Letter of appreciation issued by HPCL dt. 9.1.2006 Ex.A6 Attested copy of a Lr.No.8960/2011 issued by Tahsildar, Balkonda to the District Collector, dt. 24.7.2011 Ex.A7 Certificate of appreciation issued by HPCL in the year 2003-04. Ex.A8 Original News paper containing defamatory news item dt. 24.7.2011. Ex.A9 Original News paper 04/04/201712/1313VIII ADJ, NZB 1212121313

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containing statement of Tahsildar dt. 31.8.2011. Ex.A10 Office copy of legal notice dt.12.10.2011. Ex.A11 Reply notice Ex.A12 Postal receipts Ex.A13 Acknowledgements Ex.A14 Income tax returns for the assessment year 2007-08 Ex.A15 Income tax returns for the assessment year 2009-10 Ex.A16 Income tax returns for the assessment year 2011-12 Ex.A17 Income tax returns for the assessment year 2012-13 Ex.A18 Income tax returns for the assessment year 2006-07 Ex.A19 Income tax returns for the assessment year 2005-06 Ex.A20 Income tax returns for the assessment year 2008-09 Ex.A21 Income tax returns for the assessment year 2010-11

JUDGE

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IN THE COURT OF I ADDITIONAL SESSIONS JUDGE AT NIZAMABAD

PRESENT:Smt.K.Sujana, Prl.Dist. & Sessions Judge, Nizamabad. (FAC.I-Additional Sessions Judge,Nizamabad)

Dated this the 17th day of September, 2018

CC. NO.4 OF 2018

[CR No.73/2017 of P.S. Navipet]

BETWEEN: The State through P.S.Navipet …Complainant A N D 1.Narayana Asaram Kate @ Maruthi S/o. Asaram, Aged 32 years, Caste:Marata, Occ:Catering Work, R/o Public Gardens, Nampally, Hyderabad, N/o. Near Hanuman Temple, Ganesh Nagar, Selu(Tq), Parbhani District, Maharashtra State.

2.Harbeer Sharma @ Sharma S/o Brhampal Sharma, Aged 42 years, Caste:Pandit, Occ:Catering, R/o H.No.12-18-92, Chittarammanagar, Moosapet, Balanagar of RR District , and Uppuguda Railway Station, N/o Gona(v) of Chandinagar(Tq & Thana), Bagpath District, UP State.

3.Mohd.Ali @ Ibrahim @ A.Rajesh Nayak @ Ibrahim, S/o Ramulu Nayak, Aged 32 years, Caste:ST-Lambada, Occ:Samosa Seller in Trains, R/o Near Rafeeq Building, Uppuguda, Hyderabad, N/o Near Railway Station, Bathulapally Thanda village of Dharmavaram Mandal, Ananthapur District.

4.Sudhakar Sadhasiv Tumri @ Sudheer S/o Sadhashiv, Aged 37 years, Caste:Marata, Occ:Labour, R/o Public Gardens, Nampally, Hyderabad, N/o Ranjangaon Deshmukh (v) Kopargaon Tq., Ahmedhnagar Dist. Maharashtra State.

5.Santosh Kumar Dhube @ Ganesh @ Santosh S/o Bhushan Dube, Aged 20 years,Caste:Pandari, Occ:Labour R/o Public Gardens, Nampally, Hyderabad, N/o Kirithpur Matia(v), Harsiddhi(M), Mottihari District, Bihar State.

6.Ravutla Mahender S/o Rajaram, Aged: 49 years, Caste:Kammari, Occ:Supervisor in Laxmi Nivas Udipi Hotel R/o Vinayaknagar, Nizamabad.

7.Shaik Kaleel S/o Aleemuddin, Age: 36 years, Caste:Muslim, Occ: Scrap Business, R/o. H.No.7-14, Dichpally R/S.

…Accused

Prosecution conducted by:Sri Seshi Karan Reddy, Addl Public Prosecutor, Nizamabad

Accused defended by:Sri R. Ganga Prasad, Advocate, and Legal Aid Counsel for A1 to A5 Nizamabad.

Sri Pavan Prasad, Advocate for A6

Sri S.Vijay Kumar, Advocate for A7

2 CC.4 of 18

This case coming on 12-9-2018 for final hearing before me in the presence of the counsel on record and having stood over for consideration to this day, this Court delivered the following:

JUDGMENT

1.The Sub-Inspector of Police, Navipet filed charge-sheet against the accused persons in crime No.73 of 2017 for the offence punishable under

Sections 379, 212, 411 IPC. The accusations in the charge-sheet are as follows:

2.The complainant/Mohammad Ali lodged a complaint on 25-5-2017 stating that on the 23-5-2017 at about 0900 hours he received a phone call from one Kalluri Yerranna informing that SS-38/25 KVA Transformer near Mittapoor Railway Gate in his field was found on ground and noticed its copper coils and oil stolen from it. On that he went there and found that some unknown offenders committed theft of transformer coper coils in the night hours of 22/23-5-2017 and its value is about Rs.3000/- .

3.Basing on the above report, a case was registered by Sri B.Ravinder

Naik, Sub-Inspector of Police in Cr.No.73/2017 u/s. 379 IPC and took up the investigation. During the course of investigation, he examined and recorded the statement of the complainant, conducted scene of offence panchanama, drawn rough sketch in presence of mediators. Later during the investigation on 23-8-2017 the SI of Police came to know that

K.Narender Reddy SI of Police, Dichpally P.S. apprehended A1 to A5 herein and other accused persons in Cr.No.171/17 u/s.379,511,411,212 IPC of PS

Dichpally and on interrogation, they confessed to have committed the offence of this case. As such, Lw9/Sri B.Ravinder Naik, Sub-Inspector of

Police obtained the confession and recovery panchanama and remand CD in Cr.No.171/17 of PS Dichpally and later Lw10/J.Naresh, SI of Police,

Navipet P.S. obtained the P.T.Warrants of A1 to A5 and produced before the

Court for judicial remand in this case. Thus, after completion of investigation, filed charge sheet against the accused Nos.1 to 7 for the offence u/s. 379 IPC against A1 to A5, and u/s.212 IPC against A6, u/s.411

IPC against A7. Hence, the charge-sheet.

3 CC.4 of 18

4.The charge-sheet was taken on file against the accused persons for the offences punishable under Sections 379, 212 IPC and Section 136 of

Electricity Act. On receiving of the summons the accused appeared before the court, contested the case.

5.Copies of all the documents were furnished to the accused. After hearing the learned Additional Public Prosecutor and learned Advocate for accused, the charges under Sections 379 IPC and Section 136 of Electricity

Act against A1 to A5, u/s.212 IPC against A6, and u/s.411 IPC against A7 were framed and they were read over and explained to the accused. They pleaded not guilty and claimed to be tried.

6.The prosecution examined P.Ws.1 to 7 and got marked Exs.P1 to P8 and Mo.1 cash of Rs.5000/-.

7.The incriminating circumstances appearing in the prosecution evidence has been put to the accused persons, and they were examined u/s 313 Cr.P.C. and the same was denied by them. Further, accused were asked to produce any evidence from their side, but they reported no evidence.

8.Heard the learned Additional Public Prosecutor and learned advocate

for accused.

9.The point for consideration is;

Whether the prosecution proved the guilt of A1 to A5 for the offence punishable under Sections 379 IPC and Sec.136 of Electricity Act, and Section 212 IPC against A6 and whether the prosecution has proved the guilt of A7 for the offence under Section 411 IPC beyond reasonable doubt?

10. To prove the charges against the accused, the prosecution relied on the evidence of Pw1 to Pw7. Pw1 is the defacto complainant in this case and his evidence is that on 25-5-2017 he received information through consumer that transformer was collapsed in the farms of one Kalluri

Erranna and also he came to know that Coil was committed theft and winding wire also committed theft by unknown offenders and on that he

4 CC.4 of 18

went to scene of offence and surveyed the transformer and gave complaint/Ex.P1 to the police Dichpally.

11. Pw2 is Kalluri Prashanth and he is witness to the incident. His evidence is that on 22-5-2017 in the evening time he went to the fields at that time transfer was there but on the next day when he went to the fields, he observed that transformer was fell down, immediately he informed to the electricity department and also to the police.

12. Pw3 Maddla Bhumaiah is the panch witness. His evidence is that on 26-5-2017 Police Navipet called him and one Golla Bhuamaiah, he observed the damage of transformer and the coils were committed theft and the police conducted scene of offence panchanama/Ex.P2 for the damage of transformer and also drawn rough sketch/Ex.P3 and himself and other witness signed on the panchanama and that he knows the contents of the panchanama.

13. Pw4 Bontha Mahipal, VRO Bardipur(v) VRO of Bardipur village and he is the witness for confession and seizure panchanama of A1 to A5 and his evidence is that on 23-8-2017 police Dichpally called him to

Madhavnagar Bypass road, where he observed five persons in the custody of the police and the police asked him to enquire them and that he enquired them individually and they revealed their names as that of A1 to A5 and they revealed that they all committed theft of copper coils of the transformers in different villages of Indalwai, Dichpally and Navipet and also revealed that they committed theft of copper coils in

Dharmaram village and also revealed that the above said property was kept in Laxmi Nivas Udipi Lodge, Nizamabad of A6 and subsequently sold said copper coils to one Shaik Khaleel(A7) of Dichpally, Dingermal Vyas and Shaik Ilyaz for Rs.5000/- and Ex.P4 is the confession panchanama of

A1 to A5 and police recovered cash of Rs.5000/- from the possession of

A1 to A5 and MO.1 is the cash of Rs.5000/-, Ex.P5 is the recovery panchanama.

5 CC.4 of 18

Pw4 further revealed that later they were taken to Laxmi Nivas

Lodge of A6, where the police recorded confession panchanama of A6,

Ex.P6 is the admissible portion of confession panchanama of A6 and later they were taken to Dichpally, where recorded the confession panchanama of A7, Ex.P7 is the admissible portion of confession panchanama of A7.

14. Pw5 is K.Narender Reddy, Inspector of Police, Intelligence,

Hyderabad. He deposed that previously he worked as S.I. of Police of

P.S.Dichpally from 11-6-2015 to 4-1-2018. He further deposed that during the course of investigation in other crimes, accused also confessed the commission of offence in Cr.No.73/2017 of P.S.Navipet and later he rushed to Madhavnagar agriculture check post and apprehended A1 to A5 and on interrogation, A1 to A5 confessed the commission of offence and their confession statements were recorded in presence of mediators and later went to Laxmi Nivas Lodge, Nizamabad and apprehended A6 and seized the lodge records and then went to Dichpally and apprehended A7 and seized Rs.5000/- cash from A1 to A5 and later went to police station, arrested the accused and transmitted the record to Navipet Police Station.

15.Pw6 is B.Ravinder Naik who is the then S.I. of Police,P.S.Navipet deposed that on 25-5-2017 at 18.00 hours, he received report from Pw1, basing on the same, he registered a case in Cr.No.73/2017 u/s.379 IPC and issued FIR/Ex.P8, examined Pw1, visited the scene of offence and conducted scene of offence panchanama, and recorded the statement of

Pw2. Pw6 also deposed that on 23-8-2017 he received information that

Dichpally police apprehended the accused and in the said interrogation, the accused herein also confessed the commission of offence in

Cr.No.73/2017 and that he has collected confession panchanama from Pw5 and filed requisition before the Court for issuing P.T.Warrant and later produced A6 and A7 before the Court and then handed over the file to

Naresh on his transfer.

6 CC.4 of 18

16. Pw7 J.Naresh, S.I. of Police Navipet deposed that he has taken over the further investigation from Pw6 and that he verified the investigation done by Pw6 and found the same on proper lines and then filed P.T. warrant requisition for production of A1 to A5 and produced them before this Court and got them remanded in this case and filed the charge sheet sheet.

17. The contention of the counsel for the A1 to A5 is that accused never committed any offence and they were falsely implicated by the police without any evidence and further the evidence with regard to seizure of material objects, the material objects are deposited in the Court and marked as Mo.1 cash of Rs.5000/- which is not seized from the possession of A1 to A5 and it is not recovered neither from the possession of A1 to A5 nor from A7. Therefore, there is no case against A1 to A5 and the material object is planted for the purpose of the case, as such, they are entitled for acquittal.

18. On behalf of A6, the counsel for A6 submitted that A6 is a new person and he is no way concerned with the offence and he do not know about A1 to A5. Simply A1 to A5 resided in the lodge of A5, he was falsely implicated in this case and he has not given any shelter to A1 to A5 as it is lodge and they resided in the lodge, as such, A6 is not liable to any punishment and prayed the Court to acquit him.

19.The counsel for A7 submitted that he is the scrap shop owner and he has not purchased any stolen articles and nothing is seized from A7, as such he is entitled for acquittal.

20.Perusal of the evidence from the record, the complaint was given by the Pw1 Line Inspector and his evidence is that on receipt of information through consumer that transformer was collapsed in the farms of one

Kalluri Erranna and coil was committed theft and winding wire also committed theft by unknown offenders, he gave complaint/Ex.P1 and Pw2

7 CC.4 of 18

is the witness who found the transformer was fell down and he informed the same to electricity department. There is no enmity between the accused and Pw.1& 2. Pws.1 & 2 gave statement stating that some unknown persons committed the offence and there is no dispute with regard to the complaint given by Pw1. Further the evidence of Pw3 proves that the police conducted scene of offence panchanama and it proves the fact that Transformer was fell down in the fields and coils were committed theft. Further the main evidence in this case is panch for confession and seizure Pw4 and he deposed that when the police asked to enquire A1 to

A5, all the accused are confessed the commission of offence and basing on the confession, material objects under MO.1 cash of Rs.5000/- was recovered. The material object was seized basing on the confession, is important in this case. This material object shows that the accused committed theft of offence and the police seized the cash of Rs.5000/- under MO.1 from the possession of A1 to A5.

21.The counsel for the accused A1 to A5 tried to elicit some discrepancies in the investigation stating that as the confession statement was recorded at bypass road, there is no chance of using of Printer and taking print-outs and as the panchanamas are printed panchanamas, it is not possible to take printed panchanama at the scene of offence.

Strengthening the said version of defence counsel, Pw5 admitted that they brought paper,pen and pad to the agricultural market.

Further the defence counsel tried to elicit the discrepancies in the investigation in the cross-examination of Pw5 by stating that there are no witnesses near to the agricultural market and Pw5 denied the same.

Similarly, the defence counsel tried to elicit that though no complaint received by the police, they have registered a false case for statistical purpose, but the same was denied by Pw6 and Pw7 also denied the suggestion that without verifying the investigation done by Pw6 he filed charge sheet against the accused.

8 CC.4 of 18

22.The evidence of prosecution is relevant to prove that the offence took place in the fields of Pw2 situated at Mittapoor village and the evidence of Pw1 and Pw2 and panch for scene of offence proves the commission of offence. Further the prosecution relied on the confession statement of accused and the evidence of panch for confession Pw4 is that basing on the confession statement of accused,they recovered cash from the accused. The offence took place in the month of May,2017 and the confession statement was recorded on 24-8-2017, thus there is a gap of about 3 months between the offence and panchanama. Further there is no connection of the stolen property and the the recovery of stolen property is copper coils and copper wire, whereas the police recovered cash from the accused and the is a gap between the commission of offence and recovery.

Therefore, it cannot be said that the amount recovered is stolen property, as such, the recovery of cash basing on the confession is no way helpful to the case of prosecution to prove the guilt of the accused. As such,the prosecution has failed to prove the guilt ofA1 to A5 for the offence u/s.379 IPC and Sec.136 of Electricity Act. Therefore, the accused 1 to 5 are entitled for acquittal.

23. Further though put allegations against A6 for harboring A1 to A5, no evidence on record to prove that A6 gave shelter to A1 to A5 knowingly they committed the offence and came to his lodge, as such, the prosecution has failed to prove the guilt of A6 for the offence u/s.212 IPC against A6, as such, A6 is entitled for acquittal.

24.Further A7 is the scrap shop owner at Dichpallly. It is the case of the prosecution that the police seized the copper wire from his possession which is alleged to be the stolen property. As a matter of fact, no property is recovered from the possession of A7 to prove that he is the receiver of stolen property in this case, the guilt against A7 is not proved by the prosecution and he is entitled for acquittal.

9 CC.4 of 18

25.In the result, A1 to A7 are found not guilty for the offence punishable under Sections 379 IPC and Section 136 of Electricity Act against A1 to A5, and under Section 212 IPC against A6 and u/s.411 IPC against A7, and they are acquitted under section 235(1) Cr.P.C. A1 to A5 shall be released forthwith, if not required in any case or crime. The bail bonds of A6 & A7 shall stand cancelled after expiry of appeal time. MO.1 is ordered to be returned to the Claimant after expiry of appeal time is over.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 17th day of September,2018.

Sd/-

FAC. I Additional Sessions Judge, Nizamabad.

APPENDEX OF EVIDENCE

APPENDEX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

P.W.1 : Mohammed Ali NIL P.W.2 : Kalluri Prashanth P.W.3 : Maddla Bhumaiah P.W.4 : Bontha Mahipal P.W.5 : K.Narender Reddy, IO P.W.6 : B.Ravinder Naik, IO P.W.7 : J.Naresh, IO

EXHIBITS MARKED

FOR PROSECUTION FOR DEFENCE

Ex.P1:Complaint,dt. 25-5-2017 NIL Ex.P2: Scene of offence panchanama Ex.P3:Rough sketch Ex.P4:copy of Confession panchanama of A1 to A5 Ex.P5:Recovery panchanama Ex.P6: Admissible portion of confession panchanama of A6 Ex.P7: Admissible portion of confession panchanama of A7 Ex.P8:FIR., dt. 25-5-2017

::M.Os MARKED::

M.O.1: Cash of Rs.5000/-

Sd/-

FAC.I Additional Sessions Judge, Nizamabad.

10 CC.4 of 18

OS 29 of 2016 Declaration of title

IN THE COURT OF THE VIII ADDITIONAL DISTRICT JUDGE AT

NIZAMABAD

Monday, June 04, 2018

PRESENT: Smt. K. Sujana, Prl. District Judge, Nizamabad FAC: VIII Addl. District Judge Nizamabad

OS No.29 OF 2016

BETWEEN:

Smt. Mallannagari Indira W/o Sri Mallannagari Kishta Reddy, age 55 years, Occ: Household, R/o H.No.6-8-198 (Old No.6-8-169), Namdevwada, Nizamabad. … Plaintif

A N D

1)Sri Bantu Maruthi Karan S/o Late Sri Bantu Narayana, age 53 years, Occ: Business, R/o H.No.6-18-179, New NGOs Colony, Subhashnagar, Nizamabad.

2) Smt. Benda Krishnaveni W/o Sri Benda Venkat Rao, age 65 years, Occ: Household, R/o H.No.6-14-134 to 136, Beside Ravuji Sangham, Namdevwada, Nizamabad.

3)Smt. Bantu Padmasree W/o Sri Bantu Maruthi Karan, age 44 years, Occ: Household, R/o H.No.6-18-179, New NGOs Colony, Subhashnagar, Nizamabad.

4)Sri Kunta Prabhakar S/o Sri Kunta Lingam, age 43 years, Occ: Business, R/o H.No.10-14-1843/1 Shanthi Nikethan School, Seetharam Nagar Colony, Nizamabad.

5)Sri Navathe Prathap S/o Sri Navathe Bhoom Rao, age 25 years, Occ: Business, R/o H.No.6-9-63, Namdevwada, Nizamabad.

6)Smt. Kunta Manjula W/o Sri Kunta Prabhakar, age 42 years, Occ: Housewife, R/o H.No.10-14-1843/1 Shanthi Nikethan School, Seetharam Nagar Colony, Nizamabad.

7)Smt. Dandi Latha W/o Sri Dandi Venkat, age 41 years, Occ: Housewife, R/o H.No.6-15-401, Sanjevaiah Colony, Subhashnagar, Nizamabad.

8)Kum. Bantu Priyadarshini D/o Sri Bantu Maruthi Karan, age 29 years, Occ: Household, R/o H.No.6-18-179, New NGOs Colony, Subhashnagar, Nizamabad.

9)Sri Teki Raju S/o Teki Harinadh Babu, age 46 years, Occ: Business, R/o H.No.6-16-1597, Sanjevaiah Colony, behind Haricharan Degree College, Nizamabad.

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10) Sri Mohsin Shaik S/o Sri Ahmad Shaik, age 40 years, Occ: Business, R/o H.No.9-20-687, Malapally, Nizamabad.

11) Sri Jafar Bin Abdulla Bankar S/o Sri Abdullah Bin Mohammed Bankar, age 51 years, Occ: Business, R/o H.No.9-20-162/A, Rehamatpura, Mujahid Nagar, Nizamabad.

.. Defendants

Counsel for Plaintif :Sri A. Kumardas, Advocate, Nizamabad

Counsel for defendant :Sri D. Krishna, Nos.1 and 7Advocate, Nizamabad

Counsel for defendant No.3 : Smt. B. Ajitha, Advocate, Nizamabad

Counsel for defendant No.4 : Sri B.N. Reddy, and 6 Advocate, Nizamabad

Defendant Nos.2,5,8,9, 10 :Remained ex parte and 11

This suit coming on 01.05.2018 for fnal hearing before me in the presence of the counsel on record and after hearing the counsel and having stood over to this day for consideration, this Court delivered the following:

JUDGMENT

1. This suit is fled by the plaintif against defendant Nos.1 to 11 for declaration of title, consequential injunction not to interfere, cancellation of two registered sale deed document Nos. 2447/2016 dt.

25.2.2016 and 6200/2016 dt. 6.6.2016 and a perpetual injunction restraining the defendants from alienating, creating charge and/or otherwise dealing with the suit schedule property or any part thereof in any manner.

2(a). The brief averments of the plaint are that; the plaintif is the absolute and rightful owner and possessor of the existing part of open plot No.40 of Block-B (towards southern side portion), measuring 326.90 sq. Yards, being part of the land comprised in Sy.No.337 of

Nizamabad shivar, situated in Ward No.1, Block No.1, Yadagir Bagh,

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Vinayak Nagar, Nizamabad (hereinafter referred to suit schedule property). Originally, the plaintif purchased two open plots No.39 measuring 264.00 sq. Yards and plot No.40 measuring 363.56 sq.

Yards, admeasuring 627.56 sq. Yards of Block-B, comprised in

Sy.No.337 of Nizamabad shivar, through a registered sale deed document No.5589/1997 from one Syed Shameem Pasha Quadri.

2(b) It is alleged by the plaintif that she sold away the open plot

No.39 (264.00 sq. Yards) and part of open plot No.40 i.e. 36.66 sq.

Yards out of 363.56 sq. Yards, in all 300.66 sq. yards in favour of Sri

Malleshwaram Pandari, through a registered sale deed document

No.5898/2009 dt.29.8.2009. In the year 2013, the defendant No.1 met with the plaintif posing himself as real estate broker and has taken xerox copy of sale deed document No.5589/1997 and assured her that he would arrange to sell the suit schedule property, but later he failed to bring any purchaser, as such, the plaintif withdrew her proposal for selling the suit plot as she wanted to perform the marriage of her physically disabled daughter. On 8.6.2016, the plaintif, her husband along with another person Pdduturi Surender Reddy went to suit schedule property with an intention to construct a house thereon, meanwhile defendant No.4 came there and claimed that he is the owner of the said suit plot and that he purchased the same through defendant No.1, but the plaintif replied that she is the absolute owner of suit plot and she did not sell it to anybody. Then, defendant No.4 gave the xerox copies of registered General Power of Attorney document No.11898/2013 and registered cancellation of General

Power of Attorney document No.396/2015 and registered sale deed document 2447/2016 and sale deed document No.6200/2016 to the

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plaintif. The plaintif verifed the said documents and found that the registered General Power of Attorney document No.11898/2013 executed by one lady by impersonating herself as that of plaintif in favour of the defendant No.3 in respect of suit schedule property and defendant Nos.8 and 9 acted as witnesses to the said transaction and also identifying witnesses at the time of registration. It is further stated by the plaintif she is never in the habit of putting thumb impressions, but makes the signature. The thumb impressions and photographs found on this document do not belong to her and not made by her. Likewise, she never executed the registered cancellation of General Power of Attorney document No.396/2015 and registered sale deed document 2447/2016 in favour of defendant Nos.4 and 5 and the defendant Nos.10 and 11 acted as witnesses to the said transaction; the same are executed by same lady by impersonating herself as plaintif; and in turn the defendant Nos.4 and 5 executed the registered sale deed document No.6200/2016 showing the alienation of suit schedule property in favour of defendant Nos.6 and 7.

2(c). It is further stated by the plaintif that she was in great mental distress, agony and had no independent advice. The plaintif came to know that defendant No.3 is the wife of defendant No.1 and defendant No.8 is their daughter and that the defendant Nos.4,5,9, 10 & 11 are henchmen of the defendant No.1. The defendant No.6 is the wife of defendant No.4 and defendant No.7 is their close relative. She further came to know that the mother of defendant No.3 namely Smt.

Benda Krishnaveni (defendant No.2) has impersonated the plaintif.

The defendant No.1 with the active support and collusion of other defendants with an intention to grab the suit schedule property, have

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illegally conspired together and created false and fabricated above said documents and the defendants cheated the plaintif by impersonation and created forged registered documents, as such, she lodged a complaint before the police of Town-III Police Station,

Nizamabad, and the same was registered as FIR No.99/2016.

Accordingly, prayed to decree the suit as prayed for.

3. Though the defendant Nos.1, 3, 4, 6 and 7 have appeared through their respective counsels, but even after lapse of statutory period of 90 days, they could not fle written statements, as such, they were set ex parte on 8.6.2017.

4. Heard the counsel for plaintif and perused the record.

5. Now, the points for considerations are:

i) Whether the plaintif is entitled for the reliefs as prayed for?

ii) To what relief?

6. To prove her case, the plaintif herself examined as PW.1 and also got examined three others as Pws 2 to 4 and got marked Ex.A1 to

A16 in support of her case. No evidence was adduced on behalf of defendants.

POINT No.(i)

7. The plaintif herself examined as PW.1 and reiterated her pleaded case. In support of her contention, she fled Ex.A1 certifed copy of registered sale deed document No.5589/1997 dt. 20.11.1997 executed by Syed Shameem Pasha Quadri in her favour in respect of open plot Nos.39 and 40 of Block “B” in Sy.No.337 of Nizamabad shivar, extent 264 and 363.56 sq. yards respectively and since then she has

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OS 29 of 2016 Declaration of title

been in possession of the same. Ex.A2 certifed copy of registered sale deed document No.5898/2009 dt. 29.08.2009 executed by the plaintif in favourof Malleshwaram Pandari in respect of open plot Nos.39 and 40 of Block “B” in Sy.No.337 of Nizamabad shivar, extent 264 and 36.66 sq.

yards respectively. Ex.A3 certifed copy of registered general power of attorney document bearing No.11898/2013 dt. 12.11.2013 allegedly executed by the plaintif in favour of Smt. Bantu Padmasree (defendant

No.3).

7(a). Here, the plaintif contends that she has not executed Ex.A3 and the photograph afxed on it also does not belong to her and she is never in the habit of putting thumb impression and she makes signature. This court compared the photograph on Ex.A2 and Ex.A3 and a naked eye can diferentiate the photographs appearing on both the documents and in Ex.A2 she signed in Telugu, whereas a thumb impression appears on Ex.A3. As such, it appears Ex.A3 is a forged document. Likewise, Ex.A4 certifed copy of registered cancellation of general power of attorney document bearing No.396/2015 dt.

07.01.2015 allegedly executed by the plaintif cancelling the Ex.A3 document. On Ex.A4 also the photograph is diferent as that of Ex.A2 and it bears thumb impression. So, Ex.A4 also appears as forged one.

7(b) Ex.A5 certifed copy of registered sale deed document

No.2447/2016 dt. 25.02.2016 allegedly executed by the plaintif in favour of Kunta Prabhakar and Navath Prathap (defendant Nos. 4 and 5) in respect of part of open plot No. 40 of Block “B” in Sy.No.337 of

Nizamabad shivar, extent 325.67 sq. yards. On Ex.A5 also the photograph is diferent as that of Ex.A2 and it bears thumb impression.

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OS 29 of 2016 Declaration of title

So, Ex.A5 also appears as forged one.

7(c) Ex.A6 certifed copy of registered sale deed document

No.6200/2016 dt. 06.06.2016 allegedly executed by Kunta Prabhakar and Navath Prathap (defendant Nos. 4 and 5) in favour of Kunta

Manjula and Dandi Latha (defendants No.6 and 7) in respect of part of open plot No. 40 of Block “B” in Sy.No.337 of Nizamabad shivar, extent 325.67 sq. yards, wherein it is mentioned that the vendors are absolute owners and possessors of part of open plot No.40 by virtue of Ex.A5.

Here, the plaintif contended that Ex.A6 is liable to be cancelled since it has arisen by virtue of Ex.A5, forged document. There is a force in the contention of plaintif since Ex.A5 itself is forged one, there does not arise transfer of ownership in respect of the property mentioned therein, as such, Ex.A6 is liable to be cancelled in view of Ex.A5.

7(d). Ex.A7 is encumbrance certifcate dt.14.9.2016 which shows encumbrance on property till 7.6.2016 all the documents mentioned supra along with title are appeared in the Ex.A7. Ex.A8 is ofce copy of complaint dt. 27.06.2016 addressed to the Superintendent of Police,

Nizamabad, expressing her grievance in respect of above said property and for initiating criminal case against the ofenders, as such, a case is registered in FIR No.99/2016 under Sec. 420, 468, 471 and 506 IPC of

PS Town-III, Nizamabad, against defendant No.1, marked as Ex.A12.

Ex.A9 is ofce copy of complaint dt.6.9.2016 addressed to the

Superintendent of Police, Nizamabad. Ex.A10 is the Aadhar card of the plaintif. Ex.A11 is the valuation card issued by Registration

Department. Ex.A13 is the letter dt.12.11.2016 of the Director, Finger

Print Bureau, CID, Hyderabad , addressed to Assistant Commissioner of

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OS 29 of 2016 Declaration of title

Police, Nizamabad, along with report of the Finger Print Expert who has examined the thumb impressions in the above crime and the original sale deed document No.2447/2016, the report is marked as Ex.A16. A plain reading of Ex.A16 goes to show that the thumb impression of plaintif is diferent on the said sale deed and it belongs to Bende

Krishnaveni (defendant No.2). As such, the contention of the plaintif that she is not in the habit of putting thumb impression and she is in the habit of signing is proved through Ex.A16. So, the sale deeds under

Ex.A5 and A6 are null and void and they are not binding on the plaintif.

Ex.A14 is the certifed copy of panchanama dt. 20.08.2016 of collection of fnger prints of the plaintif and defendant No.2. Ex.A15 is the certifed copy of registered sale deed dt.25.02.2016.

7(e). The plaintif also got examined one Podduturi Surender

Reddy, who is the close relative of PW.1, as PW.2 who deposed about

PW.1 purchasing open plots and selling of part of open plot No.40 and that on 8.6.2016 he too accompanied PW.1 and her husband to the suit schedule property as PW.1 wanted to construct a house and at that time defendant No.4 came and claimed that he is the owner of suit schedule property having purchased the same through defendant No.1. He further deposed that PW.1 is not in the habit of putting thumb impression but she makes signature.

7(f). The plaintif also got examined one S.J. Nandu Kumar,

Inspector, Finger Print Expert in CID, as PW.3, who deposed about obtaining of specimen right and left thumb impressions of PW.1 as well as defendant No.2 Krishna Veni under supervision of Narsing Yadaya, CI of Police, Nizamabad Town-III PS, and he examined the sale deed Ex.A15

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and came to the conclusion that the questioned left thumb impressions marked as Q2, Q3, A4, Q5, A8 and Q10 which are identical with the admitted left thumb impressions marked as A2 of accused Smt. Bende

Krishnaveni.

7(g). The plaintif also got examined one Malleshwaram Pandari as PW.4 who also deposed about PW.1 purchasing open plots and selling of part of open plot No.40 and that she is in continuous possession and enjoyment of remaining part of plot No.40 i.e. suit schedule property.

8. Admittedly, the defendants have neither fled written statements nor they cross-examined the Pws 1 to 4. In view of my foregoing discussion, the plaintif has proved her case with clinching and cogent evidence, as such, she is entitled for the decree as prayed for. Accordingly, the point No.(i) is answered in favour of plaintif and against the defendants.

9.POINT No.ii:

IN THE RESULT, the suit is decreed with costs as follows:

a) It is declared that the plaintif is owner and possessor of the suit schedule property with all rights. The defendants are perpetually restrained from interfering with the peaceful possession and enjoyment of the plaintif over suit schedule property in any manner.

b) The registered sale deed document Nos. 2447/2016 dt.

25.02.2016 and 6200/2016 dt.6.6.2016 are hereby cancelled and they are not binding on the plaintif. (a copy of judgment be marked to the

District Registrar, Nizamabad).

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OS 29 of 2016 Declaration of title

c) The defendants are perpetually restrained from alienating, creating charge, and/or otherwise dealing with the suit schedule property in any manner.

Typed to my dictation, corrected and pronounced by me in open Court on this the 4th day of June 2018.

VIII ADDITIONAL DISTRICT JUDGE,

Nizamabad

Appendix of Evidence

Witnesses examined

For Plaintif: For Defendants: P.W.1 Smt. M. Indira None P.W.2 Sri P. Surendar Reddy P.W.3 Sri S.J. Nandu Kumar P.W.4 Sri M. Pandari

Exhibits marked

For Plaintif: For Defendants: Ex.A1Nil CC of registered sale deed document No.5589/1997 dt. 20.11.1997

Ex.A2 CC of registered sale deed document No.5898/1997 dt. 29.08.2009

Ex.A3 CC of registered general power of attorney document bearing No.11898/2013 dt. 12.11.2013

Ex.A4CC of of registered cancellation of general power of attorney document bearing No.396/2015

dt. 17.01.2015

Ex.A5 CC of registered sale deed document No.2447/2016 dt. 25.02.2016

Ex.A6 CC of registered sale deed document No.6200/2016 dt. 06.06.2016

Ex.A7EncumbranceCertifcate dt.14.9.2016. Ex.A8Ofce copy of complaint dt. 27.6.2016 Ex.A9Ofce copy of complaint dt. 06.09.2016 Ex.A10Aadhar card of plaintif

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Ex.A11Valuation card issued by Registration Department Ex.A12CC of FIR in Cr.No.99/2016 Ex.A13Letter dt. 12.11.2016 Ex.A14CCofpanchanamadt. 20.08.2016 Ex.A15 CC of registered sale deed document dt. 25.02.2016

Ex.A16CC of report of Finger Print Expert dt.12.11.2016

VIII ADDITIONAL DISTRICT JUDGE,

Nizamabad

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MV OP 55 of 2013 1

IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL

[II ADDITIONAL DISTRICT JUDGE (FTC)] AT NIZAMABAD

PRESENT: SMT.K.SUJANA,

PRINCIPAL DISTRICT JUDGE

FAC: II ADDITIONAL DISTRICT JUDGE (FTC)

Friday, the 14 th day of September, 2018

MV OP No.55 of 2013

BETWEEN:

1. Thamme Lingam S/o Poshetty, 35 years, Business, R/o Vittoli village, Post Brahmangaon, Mandal Mudhole, Adilabad District presently residing at Gajulpet, Bhoigally, Nizamabad (died) through his LR

2. Smt.Thammala Godhavari W/o late Lingam, 35 years, Housewife, R/o Vittoli village, Post Brahmangaon, Mandal Mudhole, Adilabad District presently residing at H.No.10-12-340, Gajulpet, Bhoigally, Nizamabad [P2 added as per orders dated 31.8.2015 in IA No.177 of 2015 … Petitioner/s

AND

1)Arif S/o Wahabuddin, major, owner of the auto bearing No.AP25V6741, R/o H.No.1-92, Durki village, Birkur Mandal, Nizamabad District

2)M/s Sri Sai Shiva Hire Purchase and Finance, H.No.4-2-234, Opp.New Bus stand, Bodhan, Nizamabad District … Respondents

This petition coming on 28.08.2018 for fnal hearing before me in the presence of Sri Azar Kishan Rao, Advocate for petitioner and of Sri P.Rajeshwar Rao, Advocate for respondent No.2 and respondent No.1 remained ex parte and after hearing the counsel and having stood over to this day for consideration, this Tribunal made the following:

ORDER

The petitioner claimed compensation of Rs.3 lakh from the respondents under Section 166 of the Motor Vehicles Act alleging -

a) that on 3.3.2012 at about 17.00 hours opposite Girls Hostel

Mudhole, while the petitioner was proceeding from Vittoli village on motorcycle No.AP25AC6942 as a pillion rider, one

MV OP 55 of 2013 2 auto bearing No.AP25W6741 came in opposite direction being driven by its driver in rash and negligent manner and dashed the motorcycle on which the petitioner was travelling as pillion rider due to which the petitioner fell down on the road and sustained fracture of both bones of right leg, fracture of right knee, fracture of right hand little fnger, injuries on both hands, legs, head injury and he was shifted to GH, Bhainsa and from there shifted to Shashank Hospital, Nizamabad whereat he underwent treatment as inpatient from 5.3.2012 to 16.3.2012 and incurred Rs.1,00,000/- towards medical expenses;

b) that on complaint, the police of Mudhole registered a case in crime No.21 of 2012 under Section 338 IPC;

c) that as on the date of the accident, he was aged 35 years and was earning Rs.15,000/- per month by doing business;

d) that due to the injuries, he sustained permanent disability and became dependent on others; and

e) that the 1st respondent being the owner of the vehicle and the said vehicle is hypothecated with the 2nd respondent and they are jointly and severally liable to pay him the compensation claimed.

2. The 1st respondent remained ex parte. The 2nd respondent fled counter denying the petition allegations and denied its liability to pay compensation to the petitioner. It pleaded that the owner and insurer of the motorcycle bearing No.AP25AC6942 are proper and necessary

MV OP 55 of 2013 3 parties, as they have not made party in the petition, the petition is liable to be dismissed for non-joinder of proper and necessary parties.

On the date of alleged accident the respondent No.1 was the registered owner of the auto bearing No.AP25V6741 and the said vehicle was in his custody and this respondent was only fnancier and said vehicle is released in favour of respondent No.1 as he has cleared the loan and the said vehicle is no more hypothecated with the respondent No.2. It also pleaded that the compensation claimed is excessive.

3.Basing on the above pleadings, the following issues were framed for trial:

1) Whether on 3.3.2012 at about 5.00 pm opposite Girls Hostel, Mudhole accident occurred due to rash and negligent driving of auto No.AP25V6741 by its driver?

2) Whether the petitioner received injuries in that accident?

3) Whether the petitioner is entitled for compensation? If so, to what amount and from which of the respondents?

4) To what relief?

4.For proving her case, the petitioner examined herself as P.W.1 and examined P.W.2 and got marked Exs.A1 to A6. The respondent

No.2 examined its Manager, as R.W.1.

5.Heard both sides.

6.ISSUE NO.1:

6.1This petition is fled under Section 166(1)(a) of the Motor vehicles Act by the petitioner claiming compensation on account of the injuries sustained by him in motor vehicle accident occurred on

MV OP 55 of 2013 4 3.3.2012 at about 17.00 hours opposite to Girls Hostel, Mudhole. As the petition is fled under section 166(1)(a) of the Motor vehicles Act, the petitioner has to prove that he sustained injuries in motor vehicle accident due to the negligent driving of driver of the crime vehicle. To prove the same, the petitioner himself examined as P.W.1 and also examined P.W.2. The evidence of P.W.1 in her chief-afdavit is that on 3.3.2012 at about 5.00 pm P.W.1 who is the wife of the deceased/petitioner who died after fling the petition and she submitted that on 3.3.2012 at about 5.00 pm her husband was proceeding from Vittoli village towards Mudhole on motorcycle bearing

No.AP25AC6942 as pillion rider and on the way one auto bearing

No.AP25W6741 came in opposite direction and dashed to the motorcycle on which her husband was travelling, due to the said accident her husband fell down on the road and sustained fracture injuries. The contention of the petitioner is that the accident is occurred due to the negligent driving of driver of the auto, as such they are entitled for the compensation against the auto driver. In support of her contention, she relied on Ex.A1 FIR, Ex.A2 charge-sheet,

Ex.A3 medical certifcate, Ex.A4 discharge summary of Shashank

Hospital, Ex.A5 medical bills, Ex.A6 copy of RC. In the cross- examination, she admitted that she had two daughters and one son and she has not impleaded the daughter and son as party and denied that they did not incur any medical expenditure as her husband was treated under Aarogyasri scheme. Further she denied that the accident occurred due to the negligence of her husband and Ex.A5 medical bills are fabricated for the purpose of this petition. She also denied that

MV OP 55 of 2013 5 respondent No.2 is only fnancier of the crime vehicle and he is not liable to pay compensation.

[ 6.2P.W.2 is Dr.K.Mothilal and he was examined through Advocate-

Commissioner. His evidence is that he is private Orthopedic Surgeon maintaining Shashank Hospital. On 5.3.2012 he examined Thammala

Lingam and found (1) Grade-II compound right leg (2) fracture tibia right side (3) fracture lateral condylar found femur right side, (4) fracture patella right side and all the injuries are grievous injuries in nature and the patient was treated from 5.3.2012 to 16.3.2012 and he performed surgery on 6.3.2012. In the cross-examination, he admitted that the patient was treated under Aarogyasri scheme. At the time of discharge, the patient condition was stable and further admitted that

Ex.A5 bills are not supported by the prescriptions and said prescriptions were handed over to the patient at the time of discharge and he cannot say due to injuries, the deceased died.

6.3Against the aforesaid evidence, R.W.1 respondent No.2

O.Gangaram fled his chief-afdavit and he is manager of M/s Sri Sai

Shiva Hire Purchase Finance at Bodhan and he fled his chief-afdavit stating that the accident took place due to the negligence of the rider of the bike, as such the owner and driver and insurer of the said motorcycle are alone liable to pay compensation. Further submitted that respondent No.2 was only fnancier of crime vehicle and at the time of accident, the respondent No.1 was registered owner of the said auto and it was under his possession and plied by his driver under his direction, therefore, they are not liable to pay any compensation. In

MV OP 55 of 2013 6 the cross-examination, he admitted that auto bearing No.AP25V6741 was hypothecated to their company and the vehicle cannot be transferred in the name of others, unless respondent No.2 issues no objection certifcate and denied that both respondents 1 and 2 are liable to pay compensation to the petitioner jointly and severally.

6.4Perusal of the evidence on record, the contention of the petitioner is that on the date of accident the injured was travelling on a motor bike and at that time when they reached opposite to the Girls hostel Mudhole, the crime vehicle came in negligent manner and dashed to the bike due to which the deceased/petitioner was fell down on the ground and sustained injuries and their contention is the accident is occurred due to the negligence of the auto driver. The respondent No.1 is the owner of the auto was not contested the case.

The respondent No.2 contested the case and his contention is that there is no negligence on the part of auto driver in the said accident, as such the owner and insurer of the auto is not liable to pay compensation. Further he contended that he is only the fnancier of the auto and he is no way concerned with the accident as such he is not liable to pay any compensation.

6.5Perusal of the record, to prove the negligence on the part of the auto driver the petitioner relied on Exs.A1 to A3 and Ex.A1 FIR shows that the complaint is given against the auto driver and case registered against the auto driver and Ex.A2 charge-sheet which is fled after due investigation shows that the accident is occurred due to the negligence of the auto driver and Ex.A3 medical certifcate proves that the deceased/petitioner sustained injuries in motor vehicle accident.

MV OP 55 of 2013 7

The evidence of P.W.1 coupled with Exs.A1 to A3 proves that the deceased/petitioner sustained injuries in motor vehicle accident due to the negligent driving of driver of the auto, as such this issue is concluded accordingly.

7.ISSUE NO.2:

7.1The contention of the petitioner is that he sustained grievous injuries in the motor vehicle accident. To prove the injuries, he examined P.W.2 Dr.K.Mothilal and as per the evidence of P.W.2, the petitioner sustained three fracture injuries and the petitioner sustained three fracture injuries, he would have sufered pain in consequence of the said injury, as such he is awarded an amount of Rs.50,000/- towards pain and sufering.

7.2Further as per the evidence of P.W.2, the petitioner was in the hospital from 5.3.2012 to 16.3.2012 as such the petitioner is awarded an amount of Rs.20,000/- towards transportation and extra nourishment.

7.3Further, to prove treatment and the medical expenses, he relied on the evidence of P.W.2 and P.W.2 deposed that the petitioner was treated under Aarogyasri scheme on free of cost, as such, the petitioner is entitled for payment of the bills for Rs.1,000/- under the head 'medical expenses'.

[ 7.4Further, as the petitioner sustained fracture injuries he would have not attended to his duties for three months, though the petitioner claimed Rs.15,000/- per month, no document is fled by the petitioner

MV OP 55 of 2013 8 to prove his income, therefore, the income of the petitioner is taken as

Rs.5,000/- per month, therefore, he is awarded an amount of

Rs.15,000/- towards loss of earnings @ Rs.5,000/- per month for 3 months. Therefore, the compensation payable to the petitioner by the respondents, jointly and severally, comes to Rs.86,000/-.

7.5It is the contention of the petitioner that the respondent No.1 is the owner of the vehicle and respondent No.2 is fnancier, therefore respondent Nos.1 and 2 are liable to pay compensation. On the other hand, the counsel for respondent No.2 contended that fnancier gave the amount to the owner of the vehicle to purchase the vehicle under hire purchase scheme and the vehicle is in the custody of R1, therefore they are not liable to pay compensation, whereas the petition in his petition stated that the vehicle is hypothecated with respondent No.2.

In support of the contention of the petitioner, he relied on the judgment of the Gujarat High Court in Himmat Nagar Nagrik Sahakari

Bank Ltd, vs. Sureshkumar Jayantilal Thakkar and others (IV (2016)

ACC 165 (Guj.) wherein the High Court observed that ‘the appellant bank was in possession of the jeep under both the agreements i.e.

agreement of pledge as well as hypothecation agreement and the appellant bank can be said to be the ‘owner’ within defnition 2(19) of the M.V.Act, therefore, being owner, the appellant bank is liable to pay the compensation to the victim of the accident.’ 7.6On the other hand, the respondent No.2 counsel relied on the judgment of Supreme Court in HDFC Bank Limited vs. Reshma and

MV OP 55 of 2013 9 others (2014 LawSuit SC 1008) wherein it is observed that -

In Purnya Kala Devi, a three-Judge Bench has categorically held that the person in control and possession of the vehicle under an agreement of hypothecation should be construed as the owner and not alone the registered and thereafter the Court has adverted to the legislative intention, and ruled that the registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control. There is reference to Section 146 of the Act that no person shall use or cause or allow any other person to use a motor vehicle in a public place without insurance as that is the mandatory statutory requirement under the 1988 Act. In the instant case, the predecessor-ininterest of the appellant, Centurion Bank, was the registered owner along with respondent No.2. The respondent No.2 was in control and possession of the vehicle. He had taken the vehicle from the dealer without paying the full premium to the insurance company and thereby getting the vehicle insured. The High Court has erroneously opined that the fnancier had the responsibility to get the vehicle insured, if the borrower failed to insure it. The said term in the hypothecation agreement does not convey that the appellant fnancier had become the owner and was in control and possession of the vehicle. It was the absolute fault of the respondent No.2 to take the vehicle from the dealer without full payment of the insurance. Nothing has been brought on record that this fact was known to the appellant fnancier or it was done in collusion with the fnancier. When the intention of the legislature is quite clear to the efect, a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there is evidence on record that the respondent No.2 without the insurance plied the vehicle in violation of the statutory provision contained in Section 146 of the 1988 Act, the High Court could not have mulcted the liability on the fnancier. The appreciation by the learned Single Judge in appeal, both in fact and law, is wholly unsustainable.

In the present case the vehicle is in the possession of owner of the vehicle and it is not in the possession of fnancier. Vehicle is under the control of owner. In view of the latest judgment of the Supreme

Court which is delivered by Three Judges Bench, the respondent No.2 is not liable to pay compensation but respondent No.1 is liable to pay compensation to the petitioner and the petition against respondent

No.2 is liable to be dismissed. The issue is accordingly decided.

MV OP 55 of 2013 10

8.ISSUE NO.3:

IN THE RESULT, the petition is dismissed against respondent

No.2 and allowed in part against respondent No.1 with proportionate costs and the petitioner is awarded an amount of Rs.86,000/- as compensation with interest @ 7.5% per annum from the date of petition till deposit or realization. The respondent No.1 is directed to deposit the compensation within one month from the date of award.

On such deposit, the petitioner is permitted to withdraw the entire compensation amount. Advocate’s fee is fxed at Rs.3,000/-.

Dictated to Stenographer, transcribed by him, corrected and

pronounced by me in the open Court on this the 14th day of September

2018.

PRINCIPAL DISTRICT JUDGE

FAC II ADDITIONAL DISTRICT JUDGE

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONEFOR RESPONDENTS

P.W.1 Smt.T.GodavariR.W.1 Sri O.Gangaram P.W.2 Dr.K.Mothilal

EXHIBITS MARKED FOR PETITIONER

Ex.A1CC of FIR Ex.A2 CC of charge-sheet Ex.A3 CC of injury certifcate Ex.A4 Discharge summary Ex.A5Medical bills (3) Ex.A6Copy of RC

EXHIBITS MARKED FOR RESPONDENTS

Nil

JUDGE