L.Devi Rathna Kumari

IN THE COURT OF THE JUNIOR CIVIL JUDGE, RAJAM

PRESENT: SHAIK REYAZ,

JUNIOR CIVIL JUDGE, PONDURU

FAC JUNIOR CIVIL JUDGE, RAJAM

WEDNESDAY, THIS THE 28TH DAY OF NOVEMBER,2017

O.S.No.153/2011

Between:-

Kommu Ramu, S/o. Late Dalappadu, 50 years, Hindu, cultivation, R/o.Modugulapeta village, Santhakaviti Mandal, Srikakulam District. ……Plaintiff

And:-

1) Dola Satyanarayana, S/o. Late Byragi Naidu, 70 years, Hindu, cultivation, R/o.Modugulapeta village, Santhakaviti Mandal, Srikakulam District.

2) Dola Atchuta Rao, S/o. Satyanarayana, 40 years, Hindu, cultivation, R/o.Modugulapeta village, Santhakaviti Mandal, Srikakulam District. ……Defendants.

This case is coming before me for final hearing on 22-11-2017 in the presence of Sri R.Rama Murthy, Advocate for the Plaintiff and of Sri T.

Seshachary, Advocate for defendants and the matter having stood over for consideration till today, this court delivered the following:-

J U D G M E N T

1. This suit is filed by the plaintiff against defendant Nos.1 and 2 for permanent injunction, restraining the defendants from trespassing or in anyway interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule land and for costs of the suit.

2.The Brief averments of the plaint are:-

The plaint schedule land is an extent of Ac.0.20 cents in Survey No.20/7 of

Modugulapeta village boundary. The plaintiff is the absolute owner of the same as he purchased the same under a registered sale deed No.4130/2011, dt.26-07- 2011 from Dharamavarapu Krishna Murthy of Modugulapeta village for

Rs.25,000/-. Originally, the vendor of the plaintiff was having Ac.1.03 cents in

S.No.20/7 of Modugulapeta village boundary in a single plot. He offered the land to the plaintiff for sale. The plaintiff agreed to purchase the same and fixed the terms and got executed registered sale deed No.1434/1985, dt.30-04-1985 from the vendor and his father and he took possession of the same. But by mistake, the extent of the land was wrongly noted as Ac.0.83 cents in the sale deed instead of Ac.1.03 cents. The plaintiff has been cultivating the entire land of

Ac.1.03cents since more than 25 years i.e., since 30-04-1985. Recently, plaintiff 2 came to know about the mistake in the sale deed, and as such he approached the vendor and got executed the sale deed on 26-07-2011 for the remaining extent of Ac.0.20 cents and paid some consideration to the vendor as the rate of the land was increased. The plaint schedule land is the Western part of

Ac.1.03cents land covered under the sale deed dt.30-04-1985. Except the plaintiff, none others have right, title possession and enjoyment over the plaint schedule land. The plaintiff is paying land revenue to the Government. The

Revenue records also shows that the plaintiff is in possession and enjoyment of the plaint schedule land as well as Ac.0.83 cents of land.

The 1st defendant is the father of 2nd defendant, they are highhanded and lawless persons, the defendants have no right and title or possession over the plaint schedule land. The defendants are trespassers into the plaint schedule land and trying to occupy the same. The plaintiff is helpless and he cannot resist.

If the defendants high handedly trespass into the plaint schedule land, plaintiff will suffer great and irreparable loss. Hence the suit.

3.Defendant No.1 filed his written statement which was adopted by defendant No.2. They both denied all the material allegations made in the plaint.

The defendants submit that the registered sale deeds dt.30-04-1985 and 26.07.2011 are not true. Originally, Dharmavarapu Veeranna father of

Krishnamurthy, who is the vendor under Regd. Sale deed dt.26-07-2011 purchased only Ac.0.30 cents from the Western permanent boundary Panukurai under registered sale deed dt.02-05-1961 in which the Eastern boundary is that of present defendants by name Dola Byragi and Satyanarayana and others. As said Dharmavarapu Veeranna purchased only Ac.0.30 cents, he had no right to convey Ac.0.83 cents under the sale deed dt.30-04-1985 as he has got only

Ac.0.30 cents commencing from Panukurai, so in view of the earlier sale deed of the year 1961, this sale deed dt.30-04-1985 obtained by plaintiff is not correct, the extent is wrong and he cannot get more than Ac.0.30 cents. When the vendor got only Ac.0.30 cents, he cannot sell away more than that extent which he got under the earlier sale deed of the year 1961. Even prior to the purchase made by the plaintiff under registered sale deed dt.26-07-2011, the defendants filed a caveat in respect of the plaint schedule land. The plaintiff suppressed the above facts, created documents in his favour for more extent than his vendor and had influenced the Revenue Officials and obtained cultivation account for fasali 1421. The computer Adangal copy is only a document created by the plaintiff by influencing the Revenue authorities to grab the property of the defendants unlawfully without any manner of right. The defendants submits that they are the original vendors who executed a sale deed for Ac.0.30 cents only in the year 1961 to Dharmavarapu Veeranna, the later sale deeds are only created. The 3 plaintiff had no title and possession over the plaint schedule land and the plaintiff is not entitled for any relief and prayed to dismiss the suit with costs.

4.Basing on the rival contents the following issues are settled for trial.

1) Whether the plaintiff is entitled for grant of permanent injunction restraining the defendants from trespassing or any way interfering with peaceful possession and enjoyment of the plaintiff over the plaint schedule la d or not?

2) To what relief?

5. To prove his respective contention, the plaintiff himself is examined as

PW-1 and also examined PWs.2 & 3 and marked Exs.A1 to A9 on is behalf. On behalf of the defendants, defendant No.1 himself is examined as DW-1 and also got examined DW-2 and marked Exs.B-1 to B-3. Ex.A-1 is the Registered sale deed, dt.26-07-2011 executed by Dharmavarapu Krishna Murthy infavour of the plaintiff. Ex.A-2 is the Registered sale deed, dt.30.04.1985 executed by

Dharmavarapu Krishna Murthy and others in favour of the plaintiff. Ex.A-3 is No.3 account for the fasali 1421 in the name of the plaintiff. Ex.A-4 is the land revenue receipt, dt.13-11-2011 in the name of the plaintiff. Ex.A-5 is the Land Revenue

Receipt dt.25-12-2015 in the name of plaintiff. Ex.A-6 is the land Revenue

Receipt in the name of plaintiff. Ex.A-7 is the certified copy of Mee-Seva adangal for the fasali 1426. Ex.A-8 is the certified copy of Mee-seva Adangal for the fasali 1424. Ex.A-9 is the encumbrance certificate dt.23-01-2016.Ex.B-1 is the certified copy of the Registered sale deed dt.02-05-1961 executed by Dola

Byragi and his sons in favour of Dharmavarapu Veeranna. Ex.B-2 is the pattadar pass book issued by MRO, Santhakaviti in favour of deceased defendant No.1.

Ex.B-3 is the title deed book issued by MRO, Santhakaviti in favour of deceased defendant No.1.

7.Heard the learned counsel for the plaintiff and defendants.

The learned counsel for the plaintiff argued that the plaintiff has purchased

Ac.1.03 cents of land in S.No.20/7 of Modugulapeta village boundary in a single plot from the vendor i.e., Dharmavarapu Veeranna and Dharmavarapu Krishna

Murthy and got executed registered sale deed No.1434/1985, dt.30-04-1985. But by mistake the extent of the land was wrongly noted as Ac.0.83 cents in the sale deed instead of Ac.1.03cents and as such he approached the vendor

Dharmavarapu Krishna Murthy and got purchased the plaint schedule land under registered sale deed No.4130/2011, dt.26-07-2011 for Rs.25,000/- as the rate of the lands are increased and since then he has been paying land revenue to the

Government and is in possession of the same. Except the plaintiff none others have right, title possession and enjoyment over the plaint schedule land. The 4 defendants have no right and title or possession over the plaint schedule land and they are trespassing into the plaint schedule land and trying to occupy the same and as such prayed to decree the suit.

The learned counsel for defendants argued that the oral evidence of

PWs.1 & 2 and documentary evidence under Ex.A-1 to Ex.A-9 do not establish the title of the plaintiff over the plaint schedule land. The registered sale deeds dt.30-04-1985 and 26-07-2011 are not correct. The defendants are the original vendors who executed a sale deed for Ac.0.30 cents only in the year 1961 to

Dharmavarapu Veeranna and thus, the said Veeranna has no right to sell

Ac.1.30cents to the plaintiff and further the plaintiff has no right or title over the plaint schedule property, and as such prayed to dismiss the suit.

8Issue No.1: At the outset this is a suit filed by the plaintiff against defendant Nos.1 & 2 for the reliefs of permanent injunction restraining the defendants from trespassing or in anyway interfering with the peaceful possession and enjoyment over the plaint schedule land, as such it is not the title of the schedule property to be decided, but only the possession as on the date of filing of the suit to be decided in this case. In order to grant the relief of perpetual injunction, the plaintiff has to establish with cogent and trustworthy evidence that he is in lawful possession and enjoyment of suit schedule property as on the date of filing of the suit and the defendants invade or threatens to invade the plaintiff's right and enjoyment over the suit schedule property.

9.As could be seen from the evidence of PW-1, he reiterated the contents in the plaint filed by him. In his cross-examination stated that, originally the property purchased under Exs.A1 & A2 belong to the father of his vendor, whose name is Dharmavarapu Veeranna and he purchased the same, since then he has title, right and possession over the land.To prove the registered sale deed

Ex.A1, he stated that he cannot say the names of the attestors, but got examined the vendor of the plaint schedule property as PW.2 and the attestor as PW.3.

Both PWs.2 & 3 supported the evidence of PW.1. PW.2 stated that he sold away the land of Ac.1.03 cents under the registered sale deed dt.30.04.1985 and given possession of the said land to the plaintiff, and since then the plaintiff has been in possession of the same. Thereafter, when the plaintiff came to know about the mistake, he approached him and as such he got executed another sale deed dt.26.07.2011 for the remaining Ac.0-20cents and plaintiff paid Rs.24,000/- to him as the rates of the lands were increased. PW.3 in his evidence stated that the plaintiff purchased the plaint schedule property under registered sale deed dt.26.07.2011 from PW.2 for a valuable consideration of Rs.24,000/- and he is the attestor for the said sale deed and transaction. He stated that originally 5

Dharmavarapu Krishna Murthy had Ac.1.03cents in S.No.20-7 of Modugulapeta village boundary in a single plot. He stated that he do not know the purpose for which, PW.2 sold Ac.0.20cents of land under Ex.A1, but the consideration was passed in his presence. He also stated one Narayanarao is the scribe of Ex.A1 and PW.2 and his two sons jointly sold away Ac.0.20cents of land to plaintiff under Ex.A1. Thus, a perusal of the evidence of PWs.1 to 3 coupled with Ex.A1 goes to show that the plaintiff has proved the execution of Ex.A1.

10.Now, the question is whether Ex.A1 is executed in continuance of Ex.A2 or not? To answer this question, PWs.1 to 3 categorically deposed that as there is a mistake in Ex.A2 with regard to the extent of the land, Ex.A1 was executed.

A perusal of Ex.A1 shows that the said registered sale deed was executed on 26.07.2011 by PW.2 in favour of PW.1 for Rs.24,000/-. The extent of land is

Ac.0.20cents in Sy.No.20-7A. The boundaries are:

East : Land of the plaintiff. South : Land of Majji Krishna and Haribabu. West : Boundary of Mamidipalli village and North: Land of Dolla Appalanaidu and others. Further, a perusal of Ex.A2 shows that the said sale deed was executed on 30.04.1985 by the father of PW.2 in favour of PW.1 for Rs.2,500/-. The extent of land is Ac.0.83cents in Sy.No.20-7A. The boundaries are:

East : Land of Kommu Ammanna and Dola Satyam. South : Pogiri Appalasuri.(subsequently sold to Majji Krishna and Haribabu as admitted by DW.1) West : Boundary of Mamidipalli village and North: Land of Laveti Papinaidu and Jeedi Suri.(subsequently sold to Dola Appalanaidu as admitted by DW.1)

The boundaries in both ExsA1 & A2 corroborated with each other as and if they both are adjacent to each other they come to the extent of Ac.1.03cents as stated by the plaintiff. Further, DWs.1 & 2 also admitted that the total extent of the land is Ac.1.03 and it is a single plot which is corroborated with the evidence of PWs.1 to 3. Further, ordinarily, when a piece of land is sold with definite boundaries, unless it is very clear from the circumstances surrounding the sale that a smaller extent than what is covered by the boundaries was intended to be sold, the rule of interpretation is that boundaries must prevail as against measurements. This principle also can be seen from the judgment reported in 2006(5) SCC 466 in between “Subhaga Vs. Shobha”, which would run as follows:- "A property can be identified either by boundary or by any other specific description. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that 6 property with reference to such boundaries. Even if there was any dis- crepancy, normally, the boundaries should prevail.

Thus, the evidence of PWs.1 to 3 coupled with Exs.A1 & A2 goes to show that the boundaries in both the sale deeds are corroborated with each other and that

Ex.A1 was executed in continuance of Ex.A2 by PW.2 in favour of PW.1.

11.Now, the next question is whether the plaintiff is in possession of the plaint schedule property or not at the time of filing of suit? To answer this question,

PWs.1 & 2 categorically stated that the plaintiff was in possession of the plaint schedule property since the date of Ex.A2 i.e., 30.04.1985. The said contention was corroborated with Ex.A2, wherein it was mentioned that the possession of the property within the boundary mentioned in the schedule was given to the plaintiff. He filed Ex.A3 adangal for the fasali 1421 i..e, for the year 2011 to show that he was in the plaint schedule property at the time of filing of suit. The said

Ex.A3 shows the name of plaintiff/PW.1 as the owner and possessor of land to an extent of Ac.1-03cents in Sy.No.20-7A. On the other hand, the defendants has not adduced any evidence to show that they are in possession of the suit schedule land. DW.1 admitted in his cross-examination that he is aware of the

fact that Dharmavarapu Veeranna and his sons Dharmavarapu

Krishnamurthy sold the land measuring Ac.1.03 cents under Exs.A1 & A2

to the plaintiff; that plaintiff has been in possession and enjoyment of the

land which is covered under the above referred boundaries as mentioned

in Ex.A2; that pattadar passbook, title deed and adangals were issued in

the name of the plaintiff in respect of above referred land; and that plaintiff

has been paying cist to the Government in respect of his land. Thus, the evidence of PWs.1 & 2 coupled with Exs.A1 to A9 and also the admissions made by DW.1 categorically goes to show that the plaintiff is in possession of the whole extent of Ac.1.03cents as on the date of filing of the suit.

14.The main contention that was raised by the defendants is that the father of

PW.2 has purchased only Ac.0.30cents of land under registered sale deed from the grandfather of defendant No.1 on 02.05.1961 and as per the sale deed, the western boundary is a hillock i.e., Panukurai, as such he has no right to sell away more than the extent of the land purchased by the father of PW.2.

15.To prove his contention, DW.1 in his evidence reiterated the contents of his written statement and stated that originally the father of PW.2 purchased only

Ac.0.30 cents form Dola Byragi and his sons in which the western permanent boundary is mentioned as Panukurai, eastern boundary as “Maa taluka mettu” i.e., vendors. He stated that the plaintiff cannot claim more than Ac.0.30cents from Panukurai which is a permanent boundary and the said Ac.0.83 cents 7 mentioned in the sale deed is not true and correct. He filed Ex.B.1 certified copy of the registered sale deed. He stated that the plaint schedule property was purchased by his grandfather under registered sale deed and they are available with him. But, he has not fled them. DWs.1 & 2 stated that original of Ex.B1 was executed in favour of Dharmavarapu Veeranna by his paternal grandfather by name Bairagi and his sons. DW.2 in his cross-examination stated that he is the younger brother of 1st defendant and the extent of plaint schedule property is

Ac.0.30cents. He admitted that originally the plaint schedule property belongs to

PW.2 and PW.1 purchased the same from him. Thus, a perusal of the evidence of DWs.1 & 2 and Ex.B1 shows that the father of PW.2 purchased only Ac.0.30 cents form Dola Byragi and his sons, but he has not filed any record to show what happened to the remaining extent of Ac.0.73cents and who are in possession of the said land.

Further, though defendants filed Ex.B.2 and Ex.B.3 i.e., pattadar pass book and title deed, they do not disclose the survey number of the plaint schedule property. Whereas Ex.B.3 discloses that there are some corrections and are not initialed by the respective authority. They have neither filed any document to show that the plaint schedule property belongs to them nor they are in possession of the same. But, in this suit the answer to the said question is not necessary as it has to be decided who is in possession of the plaint schedule property but not the title. Further, a perusal of the sale deeds and the record shows that there is a difference of survey number in the sale deed and the plaint schedule property as claimed in plaint i.e., 20-7A and 20-7 respectively, but as already stated the boundaries prevail the survey number and as such, this court feels it is not necessary to answer the said question as the defendants has also not objected it. Thus, a perusal of the evidence of PWs.1 to 3 coupled with

Exs.A1 to A9 would go to show that the plaintiff has established that he purchased the land to an extent of Ac.1.03cents in Sy.No.20-7 and has been in possession and enjoyment of the same since the date of Ex.A2. Accordingly,

Issue No.1 is answered in favour of the plaintiff and against defendants.

16.ISSUE No.2:- Regarding this issue, as issue No.1 is decided in favour of plaintiff and against the defendants, this Court is of the view that the plaintiff is entitled for the relief of permanent injunction. Accordingly, this issue is also answered in favour of the plaintiff and against defendants.

17.In the result, the suit is decreed with costs in favour of the plaintiff and against the defendants, restraining them from trespassing or in anyway 8 interfering with the peaceful possession and enjoyment of the plaintiff’s over the plaint schedule land.

Typed to my dictation directly by my Typist Assistant, prints are taken by her, corrected and pronounced by me in open court, this the 28thday of November, 2017.

JUNIOR CIVIL JUDGE

PONDURU.

FAC. JUNIOR CIVIL JUDGE,

RAJAM.

Appendix of evidence

Witness examined

FOR PLAINTIFF FOR DEFENDANTS

PW-1: Kommu RamuDW-1: Dola Atchutarao

PW-2: Dharmavarapu Krishna MurthyDW-2: dola Bandrinaidu

PW-3: Karnena Appalanaidu

Documents Marked

FOR PLAINTIFF :-

Ex.A-1: Registered sale deed, dt.26-07-2011 executed by the Dharmavarapu Krishna Murthy infavour of the plaintiff.

Ex.A-2: Registered sale deed, dt.30-04-1985 executed by the Dharmavarapu Krishna Murthy and others in fvour of the plaintiff.

Ex.A-3: No.3 account for the fasali 1421 in the name of the plaintiff.

Ex.A-4: Land revenue receipt, dt.13-11-2011 in the name of the plaintiff.

Ex.A-5: Land Revenue Receipt dt.25-12-2015 in the name of plaintiff.

Ex.A-6: Land Revenue Receipt in the name of plaintiff.

Ex.A-7: Certified copy of Mee-Seva adangal for the fasali 1426.

Ex.A-8: Certified copy of Mee-seva Adangal for the fasali 1424.

Ex.A-9: Encumbrance certificate dt.23-01-2016.

FOR DEFENDANTS :-

Ex.B-1: Certified copy of the Registered sale deed dt.02-05-1961 in favour of Dharmavarapu Veeranna executed by Dola Byragi and his sons.

Ex.B-2: Pattadar pass book issued by MRO, Santhakaviti in favour of deceased 1st defendant.

Ex.B-3: Title deed book issued by MRO, Santhakaviti in favour of deceased 1st defendant.

JUNIOR CIVIL JUDGE

PONDURU.

FAC. JUNIOR CIVIL JUDGE,

RAJAM.

9

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

SRIKAKULAM

Present : Sri. G. Lenin Babu,

Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam. (FAC) Judicial Magistrate of I Class, Srikakulam.

Dated this the Monday, 21st day of January, Two Thousand and Nineteen.

CALENDAR CASE No. 1143/2018

Between :

The State represented by the Food Safety Officer,

Division- I, Srikakulam. ..... Complainant.

and

Palisetti Srinivasa Rao S/o. Simmayya, aged about 45 years, Proprietor, M/s. Sri Sai Santhoshi Fuits, Kakiveedhi, Market, Srikakulam Town and District.

.....Accused.

This Case is coming on 18-01-2019 before me for final hearing and disposal in the presence of the Assistant Public Prosecutor for the Complainant/State and of Sri N.B.Sekhar, Advocate for Accused and having stood over for determination till this day, this Court delivered the following :-

J U D G M E N T

01.The Food Safety Officer, Division-I, Srikakulam has filed the

Complaint against the Accused for contravention of sale of unsafe

Pomegranate under Section 3(1)(zz)(vii)(viii), 26(2)(i) of Food Safety and

Standard Act, 2006 and for the offence punishable under Section 59(i) of

Food Safety and Standard Act, 2006.

02.The Case of the Prosecution in brief is that, the Complainant/Food

Safety Officer, Division-I, Srikakulam/L.W.1/S.Eswari was notified as Food

Safety Officer for the local area of entire State of A.P. vide G.O.M.S.No. 243 of Health Medical and Family Welfare Department (L1) Dt.25.08.2011. On 07.12.2017 at about 8:00 a.m., L.W.1/S.Eswari, Food Safety Officer along with her Office Subordinate S.Dhanunjaya Rao inspected M/s. Sri Sai

Santhoshi Fruits at Kaki Veedhi, Near Fish Market, Srikakulam Town and

District. At the time of visit, the Proprietor of the shop i.e., the Accused was present. Then, she disclosed her identity as Food Safety Officer and also the 2 purpose of her visit. She called one Perapathruni Ravi (LW2) to act as mediator. In his presence, LW1/S.Eswari inspected the shop and found pomegranate fruits in 10 cartoon boxes kept for sale to the public for human consumption. The Food Safety Officer suspected the quality of the

Pomegranate as ripened with chemicals, therefore, she purchased 1 kg of

Pomegranate for Rs.240/- from the Accused and obtained Cash Receipt duly attested by LW2/Perapathruni Ravi. Then, a Notice in Form No.VA was served on the Accused in the presence of witnessintimating her intention that she so purchased sample of Pomegranate will be sent to the State Food Laboratory,

Hyderabad for the purpose of analysis and obtained acknowledgement on the copy of the notice and the same is also attested by the said mediator. Then, the purchased 1kg. of Pomegranate fruits were divided into four equal parts, so that, each part approximately weighing about 250 grams and poured into four separate clean and dry plastic jars and closed their caps closely and tied their caps with twin and affixed seals with sealing wax on each sample tin. Then, labels duly filled in, with particulars of the sample and code and Serial No.

001/SKL/DI-15154/2017 were fixed on each sample part by means of gum.

Further, each part was separately wrapped in a fairly thick brown paper and their ends were folded neatly inside and affixed by means of gum. Then, the paper slip issued with seal and signature of Assistant Food Controller and

Designated officer, Srikakulam District were affixed on each sample part separately running around from bottom to top by means of gum. The signatures of Accused and Mediator were taken on each sample part in such a manner that wrapper and paper slip both carry part of their signatures. Further, each sample part was tied with a strong twine both above and across and four distinct seals were affixed on each sample part, one on the top, one at the bottom and two on either side of the sample part covering the knot of thread using specimen seal of L.W.1/S.Eswari, Food Safety Officer with sealing wax. Then, shedrafted entire process into a Mediators Report and read over the same to the Accused and Mediator and obtained their signatures.

One part of the sample along with copy of Memorandum in Form-VI containing specimen impression seal of L.W.1/S.Eswari, Food Safety Officer was sent to the Public Analyst, State Food Laboratory, Hyderabad, by registered parcel. Another copy of the Memorandum in Form-VI having the 3 specimen impression of seal of L.W.1/S.Eswari, Food Safety Officer which was used in sealing the sample, was handed over to the Assistant Food

Controller and Designated Officer, Srikakulam District on 08.12.2017 and obtained acknowledgment.

The Public Analyst, Hyderabad, after causing analysis of the sample, delivered the Report dated 22.12.2017 in Form –B No.855/2017-18 and the same was received by the Assistant Food Controller and Designated Officer,

Srikakulam District, wherein, the Public Analyst opined that the sample is artificially ripened with carbide gas which is prohibited in ripening of fruits as per Regulation 2.3.5 of Food Safety and Standards (Prohibition and

Restriction on Sales) Regulation, 2011. Therefore, the Assistant Food

Controller and Designated Officer, Srikakulam District send the copy of

Analysis Report of Pomegranate with covered letter to Food Business operator/Accused and thereby, given an opportunity to make an appeal within 30 days from the date of receipt of sample to the referral Laboratory under

Section 46(4) of FSS Act, 2006. The Assistant Food Controller and Designated

Officer, Srikakulam district sent the Detailed Report to the Commissioner of

Food Safety having satisfied that there is a prima facie case against the

Accused, for sale of unsafe Pomegranate and in exercise of powers conferred under Section 30(2)(e) of Food Safety and Standard Act, 2006 in the Public

Interest accorded Food Safety Designated Officer received prosecution

Rc.No. 541/FI/2018 dt.09.08.2018 and directed FSO to file case against the

Accused. Hence, this Complaint.

03.This Court took cognizance of the offences punishable under Section 3(1)(zz)(vii)(viii) and 26(2)(i) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and Standard

Act, 2006, against the Accused. On appearance of Accused before the Court, copies of documents were furnished to them, as required under Section 207

Cr.P.C. The Accused/A1 and A2 were examined under Section 251 Cr.P.C., by explaining the particulars of the offence punishable under Section 3(1)(zz)(vii)

(viii), 26(2)(i) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and Standard Act, 2006, in

Telugu. He pleaded not guilty and claimed to be tried.

4

04.To prove the guilt of the Accused, the Prosecution has examined

P.W.'s 1 and 2 and Exs. P1 to P17 were marked through them. After closure of the Prosecution evidence, the Accused were examined under Section 313 of

Cr.P.C., by explaining the incriminating evidence appearing against him. He denied it totally and reported no defence evidence.

05. Heard Arguments on both sides.

06. Now the point for determination is:

Whether the Accused has committed the offence punishable under Section 3(1)(zz)(vii)(viii), 26(2)(i) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and Standard Act, 2006, & Whether the Prosecution has proved the guilt of the Accused beyond all reasonable doubt?

07.The learned Assistant Public Prosecutor had argued that the evidence of

P.W.1 is sufficient to come to the conclusion that he followed the entire procedure and the sample lifted by P.W.1 was analysed by the Public Analyst and opined that it was adulterated and using the adulterated Pomegranate by the Accused for sale for human consumption is an offence. Therefore, the

Accused is liable to be convicted.

08.On the other hand, the` learned Defense Counsel had argued that the eye witness to the alleged incident did not support the case of the Prosecution. The

Complainant also admitted that he did not seize any pesticide or any another chemicals used for ripening the Pomegranate Fruits from the shop of the

Accused. He also argued that the Complainant did not secure any independent witness to prove the real facts of the case. Hence, he prayed that the Accused is entitled for benefit of doubt.

Point:

09.To bring home the guilt of the Accused beyond reasonable doubt, the

Prosecution examined the Food Safety Officer as P.W.1 and the independent witness who did not support the Prosecution Case as P.W.2 and relied upon

Ex.P1 to P17. Hence, it is for the Prosecution to prove that the Accused adulterated Pomegranate fruits and committed offence punishable under

Section 3(1)(zz)(vii)(viii), 26(2)(i) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and

Standard Act, 2006.

5

10.According to the evidence of PW1/S.Eswari, Food Safety Officer coupled with Ex.P7/Mediators Report, after he had purchased the

Pomegranate fruits under Ex.P4/Cash Receipt, she lifted four samples of

Pomegranate fruits. As can be seen from the record, PW2/P.Ravi who was said to be mediator for lifting the samples did not support the Prosecution Case and the Food Inspector did not cite his office subordinate S.Dhanunjaya Rao as a witness to the case. According to the evidence of PW2/Perapathruni Ravi, he did not act as mediator and he put his signature on Ex.P7 at the request of the

Food Safety Officer, but he does not know the contents of it. Since

PW2/Perapathruni Ravi did not support the Prosecution Case and he turned hostile, the leaned A.P.P was permitted to question the witness in the form of cross examination according to Section 154 of the Indian Evidence Act, 1872.

The witness categorically denied a suggestion that he acted as a mediator at the time of lifting the samples. Hence, there is no evidence on record except the evidence of PW1/S.Eswari, Food Safety Officer. The sole testimony of a witness need not be thrown away for want of consistency by other witness and it can be relied upon, provided it shall totally be found reliable.

11.According to the evidence of PW1/S.Eswari, Food Safety Officer coupled with Exs.P1 to P3, those are in respect of her appointment and there is no dispute about the same. According to the evidence of PW1/S.Eswari

Rao, Food Safety Officer coupled with Ex.P4, she purchased 1 kg., of

Pomegranate fruits for a sum of Rs.240/-. If the Food Safety Officer purchased the Pomegranate fruits from the Accused, she could have obtained reimbursement of the amount from the Department, but, she did not file any document to prove the same. Obviously, PW1/S.Eswari, Food Safety Officer is the Government Servant and if she paid any amount to the Accused, it shall not be from her pocket and she could have obtain reimbursement, but she has not filed any proof to show that she has obtained reimbursement of amount from Government with reference to amount paid by him under Ex.P4. So, the sole testimony of PW1/S.Eswari, Food Safety Officer creates a doubt as to the purchase of Pomegranate fruits under Ex.P4. It is admitted fact is that P.W.1 did not examine any independent witnesses to prove the real facts of

Complaint as well as Ex.P7/Mediators Report. When the stock is not kept for sale, mere possession or custody does not amount to an offence. In this regard, 6 it is helpful to rely upon a decision of Hon’ble High Court of Madhya

Pradesh in State of M.P. Vs. Ganesh Prasad Bhagwantdas and Anr., reported in 2000 FAJ 308, wherein, at Para No.16 it was held as hereunder:

“Storage simpliciter would not be an offence. If an article of food is not intended for sale and is in the possession of a person who does not fulfill the character of a seller, conveyer, deliverer, consignee, manufacturer or storer for sale such as is referred to in Sub-sections (1)

(a) and (2) of Section 10 of the Act, the Food Inspector will not be competent, under the law, to take a sample and on such sample being found adulterated to validly launch the Prosecution thereon”.

Apart from it, PW1/S.Eswari, Food Safety Officer also failed to mention the thickness of the brown paper in which, the tins were wrapped. In this regard, it is helpful to rely upon a decision of Hon’ble High Court of

Madhya Pradesh in Jagdish v. State of M.P., reported in 2004(1)FAJ 112, wherein, at Para No.9, it was held as hereunder:

“I have perused the panchnama (P-4) prepared by Shri K.P.Shrivastava (PW1) and after going through it, I find there is complete omission as to mention about the thickness of the paper in which the bottles were wrapped, so as to comply with the said rule in its true spirit, it was incumbent upon the Food Inspector to completely wrap the container of the sample in fairly strong thick paper, the ends of which should be neatly folded and this fact should find place in the panchnama. In view of this, the non-compliance of Rule 16(b) is apparent”.

Apart from it, as argued by the learned Counsel for the Accused, though

PW1/S.Eswari, Food Safety Officer deposed that she used cleaned and dry tins, she did not depose who cleaned the tins before lifting the samples. In this regard, it is helpful to rely upon a decision of Hon'ble High Court of Gujarat in State of Gujarat Vs. Punabhai Ramabhai Machhi, it was held as hereunder:

“In the instant case also, the Food Inspector has in his deposition admitted that the helpers were responsible for cleaning the bottles and he himself has not cleaned the bottles. The Prosecution has not examined, or led any positive evidence to prove that the bottles were 7 cleaned by examining the helper who was responsible for cleaning the bottles, and therefore, it is clear that the Prosecution has failed in proving its case beyond reasonable doubt that there was complete compliance with Rule 14 of the Rules, 1955”.

12.As this Court earlier discussed, PW1/S.Eswari, Food Safety Officer did not give any positive evidence about cleaning the tins by whom, so, it cannot be said that Rule 14 of P.F.A Rules, 1955 is properly complied. The other documents marked on behalf of the Prosecution such as, Exs. P5, P6, P8 and

P10 to P17 are the forms and postal communications which assume no importance in view of the above discrepancies pointed out. Under these circumstances, it is not safe to rely upon the sole testimony of PW1/S.Eswari,

Food Safety Officer. Hence, this Court holds that the Prosecution failed to prove its case beyond reasonable doubt and the Accused are entitled for benefit of doubt and acquittal accordingly. The point is answered accordingly.

13.In the result, I find that the Accused is not guilty for the offences punishable under Section 3(1)(zz)(vii)(viii), 26(2)(i) of Food Safety and

Standard Act, 2006 and for the offence punishable under Section 59(i) of

Food Safety and Standard Act, 2006 and hence, he is acquitted under Section 255(1) of CrPC. The Bail Bonds of the Accused shall stand cancelled after expiry of six months, as per the Section 437-A of Cr.P.C. The unmarked case property, if any, shall be destroyed after expiry of appeal time.

Typed to my dictation by Typist, corrected and pronounced by me in the open Court, this the 21thday of January, 2019.

Sd/-Sri G. Lenin Babu

Judicial Magistrate of First Class,

Srikakulam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION :

P.W.1: S.Eswari, Food Safety Officer.

P.W.2: Perapthruni Ravi.

FOR DEFENSE: NONE

Exhibits Marked

8

For Prosecution:

Ex.P1 is the Copy of Notification of G.O.Ms.No.243 H.M. &F.W. (L1) Department dt.25.08.2011 of the Commissioner of Food Safety, Government of Andhra Pradesh, regarding appointment of Smt.S.Eswari as Food Safety Officer. Ex.P2 is the Copy of the proceeding Rc.No.571/FSSA/AP/2013-17, dt. 12.06.2017 of Division allotment order from Commissioner Food Safety. Ex.P3 is the Attested Copy of the GORt.No.101 HM & FW (L1) Department, dated. 16.01.2013 regarding appoint of Commissioner of Food Safety. Ex.P4 is the Cash Receipt dated. 07.12.2017 for Rs.240/-. Ex.P5 is the Copy of Form -VA Notice, Dated. 07.12.2017. Ex.P6 is the Copy of label on the sample container, Dt. 07.12.2017. Ex.P7 is the Mediator Report, Dt. 07.12.2017. Ex.P8 is the Copy of Form-VI Memorandum, Dt. 07.12.2017. Ex.P9 is Attested copy of Postal receipt of Regd.Parcel No. CA 809766122 in dt.07.12.2017. Ex.P10 is the Attested copy of Postal Receipt dt.07.12.2017. Ex.P11 is the Copy of Intimation Letter to the Food safety Officer Dt.17.05.2016. Ex.P12 is the Analyst report in Form-B bearing No. 855/2017-18 Dt.22.12.2017 of the Food Analyst, SFL., A.P., Hyderabad. Ex.P13 is the Intimation Letter to the FBO to make an appeal before Designated Officer. Dt. 26.12.2017. Ex.P14 is the Postal Acknowledgement from Palisetti Srinivasa Rao. Ex.P15 is the Food safety officer submits a detailed report to the Assistant Food Controller and Designated Officer, Srikakulam District. Ex.P16 is the Assistant Food Controller and Designated Officer, Srikakulam District sent a detailed report to the Food Safety Commissioner. Ex.P17 is the Prosecution order received Rc.No. 541/F1/2018 Dt.09.08.2018. For Defence: NIL.,

MATERIAL OBJECTS MARKED

NIL.

Sd/-Sri G. Lenin Babu

Judicial Magistrate of First Class,

Srikakulam.

//True copy//

Judicial Magistrate of First Class,

Spl. Mobile Court, Srikakulam (FAC) Judicial Magistrate of First Class, Srikakulam

CALENDAR AND JUDGMENT IN C.C. NO. 1143/2018

Calendar cases tried by the Judicial Magistrate of First Class, 9

Srikakulam.

Date of offence : 07.12.2017

Date of filing : 30.10.2018

Date of Apprehension

& Appearance : 21.12.2018

Date of release on bail : --- Date of commencement of trail : 28-12-2018 Date of closing of trial : 10.01.2019 Date of sentence : 21.01.2019 Explanation for delay: The offence was occurred 07.12.2017. Later, the Complainant filed Complaint on 30.10.2018 and the same was numbered on 15.12.2018. Later, the First Examination was conducted on 21.12.2018. The trial was conducted from 28.12.2018 to 10.01.2019. Hence, the delay.

The Name of the Complainant : The State, represented by the Food Safety Officer, Division- I, Srikakulam District.

The Name of the Accused :Palisetti Srinivasa Rao S/o. Simmayya, aged about 45 years, Proprietor, M/s. Sri Sai Santhoshi Fuits, Kakiveedhi, Market, Srikakulam Town and District. Occupation: Business.

The offence complained of: punishable under Section 3(1)(zz)(vii)(viii), 26(2)(i) of Food Safety and Standard Act, 2006 punishable under Section 59(i) of Food Safety and Standard Act, 2006.

U/Sec. 3(1)(zz)(vii)(viii), 26(2) of Food : “Unsafe food” means an article of Safety and Standard Act, 2006 food whose nature, substance or quality is so affected as to render it injurious to health.

offence punishable U/S. 59(i) of Food Punishment for unsafe food any Safety And Standard Act, 2006 person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is unsafe, shall be punishable.

(i) Where such failure of contravention does not result in injury.

Finding: Found not guilty .

10

Sentence or Order :In the result, I find that the Accused is not guilty for the offences punishable under Section 3(1)(zz)

(vii)(viii), 26(2)(i) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and Standard

Act, 2006 and hence, he is acquitted under Section 255(1) of

CrPC. The Bail Bonds of the

Accused shall stand cancelled after expiry of six months, as per the

Section 437-A of Cr.P.C. The unmarked case property, if any, shall be destroyed after expiry of appeal time.

Sd/- Sri. G. Lenin Babu.

Judicial Magistrate of First Class,

Srikakulam Copy submitted to The Hon'ble I Additional District & Sessions Judge, Srikakulam for perusal.

//True copy//

Judicial Magistrate of First Class,

Spl. Mobile Court, Srikakulam (FAC) Judicial Magistrate of First Class, Srikakulam 11

Judl. Magistrate of I Class, Special Mobile Court, Srikakulam. Dt. -02-2019.

From: To Sri. G.Lenin Babu, The Hon'ble I Addl. District &

Judicial Magistrate of I class, Sessions Judge,

Special Mobile Court, Srikakulam. Srikakulam.

Honoured Sir,

Sub:- Courts- Criminal- JMFC- Special mobile Court, Srikakulam- Calendar Statement for the month of January, 2019 - submission – Regarding. Ref:- As per the Circular of the Hon’ble I Additional District and

Sessions Judge, Srikakulam communicated vide Dis No.46.

Dt.11.01.2019.

**** In due obedience to the reference cited above, I have the Honour to submit herewith the Calendar Statement for the month of January, 2019 relating to the Judicial

Magistrate of I Class, Special Mobile Court, Srikakulam.

S.NO.CALENDAR CASESNON CALENDER CASESTOTAL

DISPOSAL

CASES

01. 19 07 26 Yours faithfully,

Judl. Magistrate of I Class, Special Mobile Court, Srikakulam.

1 CC 431 of 2015, dt. 28.11.2017

IN THE COURT OF JUDICIAL MAGISTRATE OF 1 ST CLASS, RAJAM

Present: Sri. Shaik Reyaz, Judl. Magistrate of 1st Class, Ponduru. FAC. Judl. Magistrate of 1st Class, Rajam.

Tuesday, the 28th day of November, 2017

Calendar Case No.431 of 2015

Between:

The State: Rep. by the Sub Inspector of Police, Rajam Police Station. … Complainant. And: Jangam Simhachalam, S/o. Late Gurayya, 40 years, Caste: SC, Gadimudidam Village, Rajam Mandal, Srikakulam District. …Accused

This case coming on 21/11/2017 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and Sri. K.

Krishna Rao, (Legal Aid Counsel), Advocate for the accused and upon hearing both sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Sub Inspector of Police, Rajam Police Station, laid charge sheet against the accused for the offence punishable u/section 498A of Indian Penal

Code and Sec.4 of the Dowry Prohibition Act in Cr.No.228/2015 of Rajam Police

Station.

2.The brief averments made in the charge sheet are that the de facto complainant/LW.1 by name Jangam Savitri is the legally wedded wife of the accused. Their marriage was solemnized on 24.09.2000. After the marriage, they led conjugal life happily for just one year. Later the accused used to harass

LW.1 and demand her to bring additional dowry, but she bore his harassment and blessed with one daughter and one son. The accused addicted to vices, used to ill-treat and harass her both physically and mentally. Accused used to take her earnings forcibly for his personal expenses. LW.1 unable to bear the inhuman acts, lodged a complaint at Rajam PS, during the year 2003, who in turn registered a case in Cr.No.130/2003, for the offence punishable U/secs.498-A, 323 & 506(2) r/w 34 of IPC and Secs.3 & 4 of D.P Act and arrested the accused and sent for remand. The accused made her to believe that he would look after her properly for which LW.1 effected compromise with the accused and withdrew the case before Lok Adalat. Later, there is no change in his mind and again 2 CC 431 of 2015, dt. 28.11.2017 accused started harassing her by suspecting her fidelity. On that LW.1 again gave a report to police, which is the subject matter in Cr.No.149/2009 for the offence punishable u/sec. 498-A IPC. Again LW.1 compromised before Court on 09.12.2009 with a fond hope that accused would change, but accused did not change his attitude and continued his harassment towards LW.1. On that LW.1 gave a report against accused at Rajam PS, who in turn registered a case in

Cr.No.122/2010 for the offence punishable U/sec.498-A of IPC and arrested the accused and sent for remand, but then also there is no change in his mind. Since then, the accused harassed LW.1 both physically and mentally and demanded to bring dowry from her parent’s house. Basing on the report of LW.1, LW.6/M.

Vasudevarao, Head Constable of Rajam Police Station, registered a case in

Cr.No.228/2015 and investigated into. During the course of investigation, LW.6 examined the witnesses and recorded their statements and after completion of the investigation, LW.7/Sri D. Appalanaidu, S.I of Police laid charge sheet against the accused in this case. Hence, this case.

4.This case was taken on file for the offence punishable under Section 498-

A of IPC against the accused.

5.On appearance of the accused, copies of documents were furnished to him as contemplated u/Sec.207 of Code of Criminal Procedure.

6. Heard. The accused was examined under section 239 Code of Criminal

Procedure. Charge for the offence punishable u/Sec.498 A of Indian Penal Code was framed against the accused, read over and explained to him in Telugu, having understood the same, he denied the offence and claimed to be tried.

7. During the course of trial, in order to substantiate the case of the prosecution, it got examined P.Ws.1 to 5 and exhibited Exts.P1 & P2 on its behalf. The rest of the witnesses are rightly given up by the learned Assistant

Public Prosecutor, as the remaining witnesses supported the case of prosecution.

8. After completion of prosecution side evidence, the accused was examined u/Sec.313 Cr.P.C explaining the incriminating evidence appearing against him.

He denied the evidence and reported no defence evidence on his behalf.

9. Heard the learned Asst. Public Prosecutor and learned defence counsel.

10. Now the point that requires determination is:-

Whether P.W.1 was subject to harassment by the accused for want of

additional dowry, and as such the prosecution could able to prove the guilt

for the offence punishable u/Sec.498-A against the accused?

3 CC 431 of 2015, dt. 28.11.2017

11. POINT Sec.498-A of the Indian Penal Code reads as follows:-

Sec.498A: Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun- ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

The basic ingredients of Section 498A I.P.C. are cruelty and harassment.

The elements of cruelty so far as clause (a) is concerned, have been classified as follows:

(i) any `wilful' conduct which is of such a nature as is likely to drive the woman to commit suicide; or

(ii) any `wilful' conduct which is likely to cause grave injury to the woman; or

(iii) any `wilful' act which is likely to cause danger to life, limb or health, whether physical or mental of the woman.

For the purpose of clause (b) the essential ingredients are as under:

(I) The harassment of a married woman (II) With a view to coercing her or any person related to her to meet the unlawful demand of dowry or for any property or valuable security or on account of her failure or failure of any person related to her to meet such a demand.

Therefore, it is evident that the charge under Section 498A can be brought home if the essential ingredients either in clause (a) or (b) or both are found duly established.

12.To prove her case, PW.1, who is the wife of accused, deposed in her evidence that she married the accused on 24.09.2000, lived happily till

December, 2000 and during her wedlock, she consummated and begot one son and one daughter through accused. Thereafter, the accused started harassing her stating that he would have got more dowry if he married another woman and she is not suitable to him as a wife. The accused addicted to vices like drinking.

He use to be in drunken state throughout the day and abuse her in filthy language and unable to bear her harassment, she went to her maternal home and even then the accused went to her maternal home very frequently and abused and beat her and her mother indiscriminately. She stated that on 14.12.2015, the accused came to their house in a drunken state and beat her, 4 CC 431 of 2015, dt. 28.11.2017 and unable to bear the harassment she lodged Ex.P1 report before the police. A perusal of Ex.P1 also shows that she use to harass her and on that day, he in a drunken condition came to home, beat, abused and necked her out and as such she lodged the report. Thus, the contents of Ex.P1 and the evidence of PW.1 corroborated with each other.

13.PW.2 deposed in his evidence that PW.1 married the accused at about 15 years back. By that time, dowry and other presentations were given to the accused. Both of them lived happily for about 2 to 3 years. Thereafter, accused started harassing PW.1 and beat her in a drunken state and abused the mother of PW.1 without having concern. Whenever they questioned the accused about his behavior, he abused them by stating that they are poor labourers and they are not having capacity to question him as he is a lawyer. As such, PW.1 lodged reports for 3 times before the police, but there is no change in the attitude of the accused.

14.PW.3, who is the neighbor of PW.1, deposed in her evidence that the accused beat PW.1 in a drunken state and used to pick up quarrels for no reasons. He used to taunt PW.1 that she was looking after the welfare of herself and her mother. In the month of December, 2015, the accused beat PW.1, as such, she came out by running in order to escape from the hands of accused, for which she intervened and reprimanded the accused, and the accused gave arrogant reply. She stated PW.1 lodged a report against the accused for thrice.

She in her cross-examination stated that accused, PW.1 and mother of PW.1 and their children are residing under one roof. She also stated that the germane of the dispute was that the accused taunt PW.1and her mother stating that he was purchasing vegetables and other household things for their enjoyment. She further stated that the accused is having blood relatives, but the accused picks up quarrel with them for no reason, as such they did not even care him.

15.PW.4, who is the neighbor of PW.1, deposed in his evidence that accused used to return to house in a drunken state and beat PW.1 indiscriminately.

Whenever the mother of PW.1 questioned the accused for beating PW.1, accused used to abuse her in a filthy language. He intervened on two or three occasions. On one occasion, accused beat PW.1 with a belt, as such he went and questioned the accused, for which accused gave arrogant reply. In the month of December, 2015, the accused came to the house in a drunken state and beat PW.1.

16.PW.5 in his evidence stated that on 14.12.2015 at 5:00 pm, while he was at police station PW1 came to police station along with LW.2 and gave report

Ex.P1, basing on which he registered the same as Cr.No.228/2015 and sent FIR 5 CC 431 of 2015, dt. 28.11.2017

Ex.P2 to court and all concerned. Thereafter, he examined PW.1 & LW.2, recorded their statements, visited Gaddimudidam village, examined PWs.2 & 4, recorded their statements, obtained permission form the Superintendent of Police to arrest the accused and accordingly he arrested him on 23.12.2015 and thereafter, his S.I of Police, filed the charge sheet in this case. He in his cross- examination stated that he reached Gaddimudidam village at 6:30 or 7:00 p. He denied all the suggestions put by the learned counsel for the accused. Further, his evidence is formal in nature with regard to the investigation done by him.

17.Thus, a careful scrutiny of the evidence of PWs.1 to 4 goes to show that all the witnesses though failed to show that the accused has demand additional dowry from the mother of PW.1, categorically deposed that accused, PW.1 and the mother of PW.1, and their children are residing in one roof. Accused used to come home in a drunken condition and beat PW.1 and her mother for no reason.

Though the neighbours reprimanded him, he has not changed his attitude. On the date of incident i.e, 14.12.2015, accused beat PW.1 and necked her out of the house and the neighbours i.e., PW.4 intervened and as such the prosecution proved the mental and physical harassment made by the accused against PW.1.

The prosecution also proved that the accused use to taunt PW.1 and others, for no reason, which is one type of cruelty. Further, though the learned counsel for accused cross-examined the witnesses at length he has failed to discredit their testimony. The evidence of all the witnesses is unshaken by stating that the accused in a drunken state use to harass PW.1 by abusing and beating her.

18.Mohd. Hoshan v. State of A.P, (2002) 7 SCC 414, this Court whileIn dealing with the similar issue held that mental or physical torture should be "continuously" practiced by the accused on the wife. The Court further observed as under :

"Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impart of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not."

Smt. Raj Rani v. State (Delhi Administration )AIR 2000 SC 3559, thisIn

Court held that while considering the case of cruelty in the context to the provisions of Section 498A I.P.C., the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt.

6 CC 431 of 2015, dt. 28.11.2017

19.Thus, in the present case as already stated the prosecution could able to establish the cruelty of taunting PW.1 for no reason in a drunken condition.

Further, a perusal of the record shows that PW.1 lodged police reports 3 times

before this crime and it shows how the accused use to harass PW.1, and how

she use to bear the said mental harassment by compromising the matters.

Therefore this court is of the considered opinion that the prosecution has successfully established the guilt of the accused beyond all reasonable doubt for the offence punishable u/Sec.498-A IPC.

20.In the result, the accused is found guilty for the offence punishable under section 498-A of I.P.C. Accordingly, he is convicted under section 248(2) of

Cr.P.C.

Typed to my dictation, corrected and pronounced by me in the open court on this the 28th day of November, 2017.

Judicial I Class Magistrate, Ponduru, FAC/Judicial I Class Magistrate, Rajam.

21.Accused is questioned with regard to quantum of sentence. He has submitted that he has no one to look after him and that he and complainant are living together. Hence prayed the court to take lenient view with regard to quantum of sentence. In view of offence proved against the accused and the nature of offence committed by him, this Court is not inclined to extend the benefits of provisions of Probation of Offenders Act, 1958. The prosecution has not placed any material to show that there are previous convictions to the credit of accused. However considering the fact that the demand of additional dowry is not proved, this court is inclined to take lenient view by reducing the quantum of sentence.

22.In the result, the accused is found guilty for the offence punishable

U/Sec.498-A IPC and he is convicted U/s.248 (2) Cr.P.C. Accordingly, the accused is sentenced to undergo rigorous imprisonment for a period of six

months and pay a fine of Rs.500/- (Rupees five hundred only) for the

offence punishable U/Sec.498-A IPC and in default of payment of fine

amount, he shall undergo simple imprisonment for a period of one month.

The period of detention if any already undergone by the accused shall be given set off U/Sec.428 Cr.P.C The Accused is informed about his right to prefer an appeal against the conviction and sentence of this court and to approach the Hon’ble

Secretary, District 7 CC 431 of 2015, dt. 28.11.2017

Legal Service Authority, Srikakulam for appointment of Legal Aid Counsel if he has no means. There shall be no order as to property.

Typed to my dictation, corrected and pronounced by me in the open court on this the 28th day of November, 2017.

Judicial I Class Magistrate, Ponduru, FAC/Judicial I Class Magistrate, Rajam.

Appendix of Evidence

Witnesses Examined

For Prosecution: PW.1/13.01.2016:Jangam Savithri PW.2/25.01.2016:Surapati Krishna PW.3/25.01.2016:Pyla Bhavani PW.4/01.02.2016:Belagapu Tirupathirao PW.5/04.02.2016:M. Vasudevarao

For Defence:None

Documents Marked

For Prosecution: Ex.P1/13.01.2016:The report dated 14.12.2015. Ex.P2/04.02.2016:The Original FIR dated 14.12.2015.

For Defence:NIl Material Objects:Nil

Judicial I Class Magistrate, Ponduru, FAC/Judicial I Class Magistrate, Rajam.

8 CC 431 of 2015, dt. 28.11.2017

FORM NO.71 Calendar & Judgment (for use in cases where there is one accused person)

DISTRICT OF SRIKAKULAM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, RAJAM

DATE OF OFFENCE: On or prior toREPORT OR 14/12/2015 14/12/2015 COMPLAINT: APPREHENSIONOF23/12/2015RELEASE ON06/02/2016 ACCUSED: BAIL ACCUSED:

REMAND OF ACCUSED:23/12/2015

COMMENCEMENTOF13/01/2016CLOSEOF04/02/2016 TRIAL:TRIAL: SENTENCE OR ORDER:28/11/2017 EXPLANATION OF DELAYNon production of witness in time by the complainant. AND REMARKS: JUDGMENT IN C.C:431 of 2015 Cr.No. 228/2014 COMPLAINANT:The State represented by the Sub Inspector of Police, RajamPolice Station. NAME,AGE,Jangam Simhachalam, S/o. Late Gorayya, aged 40 years, Caste by SC, FATHER’S NAME,Godimudidam Village, Rajam Mandal, Srikakulam District.

RELIGION,

CALLING,

RESIDENCE AND

TALUK OF THE

ACCUSED: OFFENCESection 498-A of Indian Penal Code :Sec.498-A of IPC: Husband or relative of husband of a woman subjecting her to cruelty of Indian Penal Code. FINDING: Found guilty SENTENCE: In the result, the accused is found guilty for the offence punishable under section 498-A of I.P.C. Accordingly, he is convicted under section 248(2) of Cr.P.C. Accused is questioned with regard to quantum of sentence. He has submitted that he has no one to look after him and that he and complainant are living together. Hence prayed the court to take lenient view with regard to quantum of sentence. In view of offence proved against the accused and the nature of offence committed by him, this Court is not inclined to extend the benefits of provisions of Probation of Offenders Act, 1958. The prosecution has not placed any material to show that there are previous convictions to the credit of accused. However considering the fact that the demand of additional dowry is not proved, this court is inclined to take lenient view by reducing the quantum of sentence. In the result, the accused is found guilty for the offence punishable U/Sec.498-A IPC and he is convicted U/s.248 (2) Cr.P.C. Accordingly, the accused is sentenced to undergo rigorous imprisonment for a period of six months and pay a fine of Rs.500/- (Rupees five hundred only) for the offence punishable U/Sec.498-A IPC and in default of payment of fine amount, he shall undergo simple imprisonment for a period of one month. The period of detention if any already undergone by the accused shall be given set off U/Sec.428 Cr.P.C The Accused is informed about his right to prefer an appeal against the conviction and sentence of this court and to approach the Hon’ble Secretary, District Legal Service Authority, Srikakulam for appointment of Legal Aid Counsel if he has no means. There shall be no order as to property.

DATE OF RECEIPT FROM THE MAGISTRATE:28/11/2017

JUDL. MAGISTRATE OF 1ST CLASS RAJAM To The Hon’ble 1 st Addl. District Judge, Srikakulam

Calendar Case No.431/2015 Date of Judgment:28/11/2017 Date of Dispatch of Calendar: Date of Receipt: Remarks of 1st ADJ, Srikakulam: Copy to the Superintendent of police, Srikakulam

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

SRIKAKULAM

Present : Smt.L.Devi Rathna Kumari,

Judicial Magistrate of First Class,

Spl.Mobile Court, Srikakulam. (FAC) Judicial Magistrate of I Class, Srikakulam.

Dated this the Wednesday, 22nd day of November, Two thousand and Seventeen

CALENDAR CASE NO. 971/2016

This case has come before me on 21.11.2017 for final hearing and disposal on this day in the presence of the Assistant Public Prosecutor for the complainant/State and Sri. CH.Jaya Kumar, counsel for accused and the matter having stood over for determination till this day this court delivered the following:

JUDGEMENT

a. The Serial No. of the case : CC. No. 971/2016 b. The Date of Offence : 21-09-2016

C. The Name of the Complainant : State- represented by the Sub-Inspector of Police, Etcherla Police Station, Srikakulam District.

d.The Name of the accused : Sahabul Shaik, S/o Salem Shaik, age 27 years, Muslim by caste, Girigar Nagar, Sonadanga, Manteswar, Burdwan, West Bengal State. Driver of Lorry bearing no. AP 05 V 9996.

e. The offence complained of : Offence Punishable under section 304-A of Indian Penal Code f. The plea of accused and his : Accused Pleaded not guilty examination, if any

The brief averments of the facts of the case are that the Sub-Inspector of

Police, Etcherla Police Station, Srikakulam has filed the charge-sheet against the accused in crime no. 159/2016 for the offence punishable under Sections 304-A of Indian Penal Code with the following allegations:

1. That on 21.09.2016 at about 10.20am., when the deceased/Tamineni 2

Satyavathi was crossing the road at Koyyaralu Junction near NGH-16 road, the accused being the driver of lorry bearing registration no. AP 05 V 9996 drove the vehicle in a rash and negligent manner and hit against her. As its result, she fell down on the road and sustained bleeding injuries. Later, she was taken to RIMS Hospital, Srikakulam in 108 ambulance from there, she was shifted to KGH, Visakhapatnam for better treatment, but at about 14.05 hours she has demised in the hospital. Hence, the informant/Modalavalasa

Gopalam gave a report to the police and on it basis a case was registered in crime no. 159/2016 for the offence u/S. 304-A of Indian Penal Code.

During the course of investigation, L.W.21 visited the scene of offence in the presence of mediators i.e., L.W’s 11 and 12 and drafted scene observation report and drew rough sketch of it. Later, inquest was conducted over the body of the deceased in the presence of inquestdars. He also examined all the witnesses and recorded their statements.

L.W.17 inspected the crime vehicle and opined that the accident was occurred not due to any mechanical defects of the crime vehicle.

L.W.18 conducted autopsy over the body of the deceased, issued

Postmortem report and opined that the death was due to shock and

Haemorrhage as there was an injury to lung and liver caused by blunt object.

After completion of investigation L.W.21 filed the charge sheet against the accused for the offence referred above.

2. The court took cognizance of the offence Punishable u/S. 304-A of

Indian Penal Code, against the accused. On appearance of accused before the court, copies of documents were furnished to him, as required under section 207 Cr.P.C. The accused was examined under Section 251 of Cr.P.C., by explaining the particulars of offence u/S. 304-A of Indian Penal Code, in

Telugu. He pleaded not guilty and claimed to be tried.

3. To prove the guilt of the accused prosecution has examined, P.W.'s 1 to 13 and Exs. P.1 to P10 were marked through them. After closure of the prosecution evidence, the accused was examined u/S. 313 Cr.P.C., by explaining the incriminating evidence appearing against him. He denied it totally and reported no defence evidence.

4. Heard both sides.

3

5. Now the point for determination is:

Whether the accused has committed the offence punishable under section . 304-A of Indian Penal Code & Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt?

6. The learned Assistant Public Prosecutor, has argued that, the accused drove the crime vehicle i.e., lorry in a rash and negligent manner and as its result a person was put to death. He argued that the evidence of the prosecution witnesses had established the guilt of the accused to the hilt and hence, he prayed to convict the accused and sentence him accordingly.

7. The learned Defense counsel contended that the prosecution witnesses did not supported the case of the prosecution. He also contended that no eye witnesses was examined by the prosecution in order to prove the negligence of the accused. Hence, he prayed to acquit that accused.

8. In a case for the offence under Section 304-A IPC the essential ingredients are :

(i) there must be death of a person.

(ii)Such death must be due to the rash or negligent act of the accused.

The case on hand has to be analyzed in the light of the above ingredients.

9. Point:-

I have perused the total evidence consisting of oral and documentary. In that P.W.1/Modalavalasa Gopalam stated that on 26.09.2016 between 9.30am., to 10.30am., while he was at Koyyaralu Junction, he found that the deceased while crossing the road was hit by a lorry coming from Visakhapatnam towards Srikakulam. As such, he rushed to that place and found the deceased with injury on her head and she was shifted to Hospital in 108 ambulance.

During his cross examination, he stated that he do not know the driver of the crime vehicle at the time of accident.

10. P.W.2/M.Neelachalam, stated that on 21.09.2016 at about 10am., he was informed that his mother and some others met with an accident and as such he visited the scene of offence. He stated, that the injured was shifted to KGH,

Visakhapatnam for better treatment. He stated that he do not know how the accident has occurred.

4

During his cross examination, he stated that he did not witnessed the accident and that he do not know the driver of the crime vehicle.

11. P.W’s 3 to 5 who were said to be the eye witnesses to the alleged incident turned hostile and did not supported the case of the prosecution and

Exs. P2 to P4 were marked through them.

12. P.W.6/T.Bhaskara Rao, stated that, on 21.10.2016 at about 9.40am., he received a phone call from his brother in law about the accident of his mother and as such, he immediately rushed to the hospital. He stated that the injured was shifted to RIMS Hospital, Srikakulam and later shifted to KGH,

Visakhapantam. He stated that he was informed that a lorry had hit against his mother and that do not know the driver of the crime vehicle at the time of accident.

13. P.W.7/K.Chandrurudu, stated that on 21.09.2016 at about 3pm., he was summoned by the police of Etcherla PS and as such, he visited the scene of offence and the police observed the scene and drafted scene observation report and Ex.P5 is marked through him.

14. P.W.8/Y.Trinadha Rao, stated that the police had conducted the inquest over the dead body of the deceased in his presence and Ex.P6 is marked through him.

15. P.W.9/P.Gopi Krishna, stated that on 26.09.2016 he inspected the crime vehicle and expressed his opinion that the accident was occurred not due to any mechanical defects and Ex.P7 is marked through him.

16. P.W.10/P.Rama Krishna, stated that on 22.09.2016 he received requisition from SHO, Etcherla PS to conduct autopsy over the dead body of the deceased. He stated, that on the same day he conducted PM examination and found the following antemortem injuries; a sutured lacerated wound of length 8cm., sutured with 6 black silk sutures present sagitally on left occipital region of head. A reddish contusions of size 3x2 cm., present coronally on right parietal region of inner surface of scalp. A reddish contusion of sizes 6x3cm. present sagitally on left occipital region of inner surface of scalp.

a reddish abrasion of size 4x1xcm., present horizontally on back of left shoulder.

5 about 300ml., of blood noted in each chest cavity. Fractures left 2-12 ribs at multiple sites with corresponding lacerations on left lung with contusions of surrounding tissues noted. Fractures right 308 ribs at mid scapular line with corresponding lacerations of right lung with contusions of surrounding tissues noted.

A reddish abrasion of size 15x3cm., present vertically extending from lower 1/3rd region of right side of abdomen to front of right upper thigh.

1.5 liters of blood noted in peritoneal cavity. Multiple lacerations of liver noted.

a multiple reddish abrasion of sizes ranging from 0.5 x 0.25xcm., to 0.5 x 0.5cm., present over an area of 5x5cm., present horizontally on left upper buttock.

a reddish abrasion of size 1x0.5cm., present horizontally on front of left knee.

He expressed his opinion that the deceased would have died due to shock and hemorrhage due to injury to lung and liver caused by blunt object and issued Ex.P8.

17. P.W.11/M.Srinivasa Rao, stated that on 21.09.2016 between 15 to 16 hours he visited the scene of offence and observed the scene in the presence of mediators and drafted scene observation report and drew rough sketch of it.

He stated that, on the same day P.W.1 visited the police station and gave a report and on its basis, he has registered a case and issued FIR. He stated that on the next day he went to KGH, Visakhapatnam and conducted inquest over the dead body of the deceased in the presence of inquestdars.

18. P.W.12/V.Sandeep Kumar, stated that he has received medical intimation along with the statement of the deceased and on its basis, he has registered a case and issued Ex.P9 Original FIR. He stated that he has examined P.W.1 and recorded his statement and later, he send the crime vehicle for MVI report and after completion of investigation he has filed the charge sheet against the accused.

19. P.W.13/P.Sayasinaidu, stated that on 21.09.2016 at about 11.45am., he has received the medical intimation of the deceased and as such he has visited the hospital and recorded the statement of the deceased. He stated that the 6 deceased has sustained grievous injuries on back of her head and on her waist and she was in contusion state.

20. As can be seen from the entire evidences, it shows that all the witnesses are not the direct witnesses and they came to know about the accident and the others who were said to be the eye witnesses turned hostile and did not supported the case of the prosecution.

21. It is further manifest, that no individual witness had stated about the rashness and negligence of the accused and moreover, no witness had identified the accused.

22. At this juncture it is helpful to rely upon a case law - In State of

Kerala Vs. Puttumana Illath Jathavedan Nambudiri, JT 1999(1) SC 456 the

Hon'ble Apex Court held that

the prosecution must properly prove the rash and negligent act of the petitioner/accused. Simple lack of care which constitutes civil liability is not enough to prove a charge of homicide by negligence. For the purpose of criminal law, there are degrees of negligence and a very high degree of negligence is required to prove before a charge u/s 304-A I.P.C. is established.

In this context it is pertinent to mention here the decision of K.

Naga Raju Vs. State of A.P. 2009 (2) ALT (Crl.) 298. The Hon'ble High Court observed in it para 12 about the quantum of negligence as follows:

Before conviction can be sustained u/s 304-A I.P.C. a very

high degree of negligence must be proved. Negligence which amount to recklessness and utter indifference to the consequences and to the rules of the road must be established. Mere driving at high speed or some sort of negligence, which is not criminal rashness or negligence may not prove the ingredients of Sec. 304-A I.P.C. Simple lack of care may result in civil liability but by itself may not constitute criminal negligence punishable u/s 304-A I.P.C.

23. Considering the above discussed evidence, facts and circumstances of the instant case, it is observed that the analogy laid down by the Hon'ble

Court is applicable to the facts and circumstances that are discussed in the case on record. Mere non blowing of horn of the crime vehicle will not constitute the negligence or rashness as contemplated by the Hon'ble Courts.

More than that, the prosecution should establish the gross negligence or gross 7 rashness on part of the accused while driving the crime vehicle at the time of the accident. But the testimony adduced on record appears to be non- confirmation of such rashness or negligence on part of the accused.

Moreover, the evidence on record is not free from material doubts and

contradictions as aforesaid. More importantly, the prosecution has failed to prove the identity of the accused as to be the same person who has driven the crime vehicle at the time of accident. As observed by His Lord Ships in the decisions mentioned supra in a criminal case, the burden of providing the essential ingredients for the establishment of the charge against the accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be assumed, and there are some statutory exceptions. In the absence of any material on record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “ res ipsa loquitur”. The said observations were made by Hon'ble Supreme Court in State of Karnataka Vs. Satish 1998 SCC (Crl.) 1508.

24. Upon careful perusal and scrutiny of the evidence on record, the

Court is of the considered view, that the evidence placed on record by prosecution is not sufficient to prove the case against the accused and that the prosecution has failed to establish the mandatory requirements of the offence and the benefit of doubt shall be given to the accused. Hence this court holds that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt.

25.In the result, the accused is found not guilty for the offence punishable under section 304-A of Indian Penal Code and hence he is acquitted under section 255(1) of CrPC. The bail bonds of the accused shall stand cancel after a period of six months.

Typed to my dictation, corrected and pronounced by me in the open court this the 22nd day of November, 2017.

Sd/-Smt.L.Devi Rathna Kumari

Judl. Magistrate of I Class, Srikakulam.

8

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION : P.W.1: Modalavalasa Gopalam. P.W.2: Modalavalasa Neelachalam. P.W.3:Rakoti Padma. P.W.4:Lingala Sureedu. P.W.5:Patarlapalli Jagannadha Rao. P.W.6:Tammineni Bhaskara Rao. P.W.7:Kadupuri Chandrudu. P.W.8:Yavvari Trinadha Rao. P.W.9:P.Gopi Krishna. P.W.10:P.Rama Krishna. P.W.11:M.Srinivasa Rao. P.W.12:V.Sandeep Kumar. P.W.13:P.Sanyasi Naidu.

FOR DEFENSE: NONE

Exhibits Marked

For Prosecution: Ex.P1/dt. 21-09-2016 : Report Ex.P2/dt. 21-09-2016: S.161(3) CrPC Statement of P.W.3. Ex.P3/dt. 21-09-2016: S.161(3) CrPC Statement of P.W.4. Ex.P4/dt. 21-09-2016: S.161(3) CrPC Statement of P.W.5. Ex.P5/dt. 21-09-2016: Scene observation Report. Ex.P6/dt. 22-09-2016: Inquest Report of the deceased. Ex.P7/dt. 26-09-2016: MVI Report Ex.P8/dt. 22-09-2016: Postmortem Report of deceased. Ex.P9/dt. 21-09-2016: Original FIR. Ex.P10/dt.21-09-2016: Altered FIR.

For Defence:NIL.,

MATERIAL OBJECTS MARKED :NIL.

Sd/-Smt.L.Devi Rathna Kumari

Judl. Magistrate of I Class, Srikakulam. //True Copy//

Judl. Magistrate of I Class, Srikakulam.

9

CALENDAR AND JUDGMENT IN C.C. NO. 971/2016

Calendar cases tried by the Judicial Magistrate of First Class, Srikakulam.

Date of offence : 21.09.2016 Date of release on bail : 26.09.2016 Date of filing : 21.09.2016 Date of Apprehension : 26.09.2016 Date of commencement of trail : 30.01.2017 Date of closing of trial : 20.11.2017 Date of sentence : 22.11.2017 Explanation for delay: Delay due to non production of Witnesses. Hence, the delay. C.C.No. 971/2016 on the file of Judicial Magistrate of I Class, Srikakulam.

The Name of the Complainant :The Sub-Inspector of Police, Etcherla Police Station, Srikakulam District.

The Name of the accused: Sahabul Shaik, S/o Salem Shaik, age 27 years, Muslim by caste, Girigar Nagar, Sonadanga, Manteswar, Burdwan, West Bengal State. Driver of Lorry bearing no. AP 05 V 9996.

The offence complained of : Punishable under Section 304-A of Indian Penal Code.

Offence u/S.304-A IPC :Whoever causes the death of another due to rash or negligent act shall be punishable for the offence U/s.304-A of Indian Penal Code.

Finding : Found not guilty.

Sentence or Order :In the result, the accused is found not guilty for the offence punishable under section 304-A of Indian Penal Code and hence he is acquitted under section 255(1) of CrPC. The bail bonds of the accused shall stand cancel after a period of six months.

Sd/-Smt. L.Devi Rathna Kumari

Judicial Magistrate of I Class,

Srikakulam. //True Copy// Judl. Magistrate of I Class, Srikakulam.

Copy submitted to The Hon'ble I Additional District & Sessions Judge, Srikakulam for perusal. The Superintendent of Police, Srikakulam.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

SRIKAKULAM

Present : Smt.L.Devi Rathna Kumari,

Judicial Magistrate of First Class,

Spl.Mobile Court, Srikakulam. (FAC) Judicial Magistrate of I Class, Srikakulam.

Dated this the Wednesday, 22nd day of November, Two thousand and Seventeen

CALENDAR CASE NO. 971/2016

This case has come before me on 21.11.2017 for final hearing and disposal on this day in the presence of the Assistant Public Prosecutor for the complainant/State and Sri. CH.Jaya Kumar, counsel for accused and the matter having stood over for determination till this day this court delivered the following:

JUDGEMENT

a. The Serial No. of the case : CC. No. 971/2016 b. The Date of Offence : 21-09-2016

C. The Name of the Complainant : State- represented by the Sub-Inspector of Police, Etcherla Police Station, Srikakulam District.

d.The Name of the accused : Sahabul Shaik, S/o Salem Shaik, age 27 years, Muslim by caste, Girigar Nagar, Sonadanga, Manteswar, Burdwan, West Bengal State. Driver of Lorry bearing no. AP 05 V 9996.

e. The offence complained of : Offence Punishable under section 304-A of Indian Penal Code f. The plea of accused and his : Accused Pleaded not guilty examination, if any

The brief averments of the facts of the case are that the Sub-Inspector of

Police, Etcherla Police Station, Srikakulam has filed the charge-sheet against the accused in crime no. 159/2016 for the offence punishable under Sections 304-A of Indian Penal Code with the following allegations:

1. That on 21.09.2016 at about 10.20am., when the deceased/Tamineni 2

Satyavathi was crossing the road at Koyyaralu Junction near NGH-16 road, the accused being the driver of lorry bearing registration no. AP 05 V 9996 drove the vehicle in a rash and negligent manner and hit against her. As its result, she fell down on the road and sustained bleeding injuries. Later, she was taken to RIMS Hospital, Srikakulam in 108 ambulance from there, she was shifted to KGH, Visakhapatnam for better treatment, but at about 14.05 hours she has demised in the hospital. Hence, the informant/Modalavalasa

Gopalam gave a report to the police and on it basis a case was registered in crime no. 159/2016 for the offence u/S. 304-A of Indian Penal Code.

During the course of investigation, L.W.21 visited the scene of offence in the presence of mediators i.e., L.W’s 11 and 12 and drafted scene observation report and drew rough sketch of it. Later, inquest was conducted over the body of the deceased in the presence of inquestdars. He also examined all the witnesses and recorded their statements.

L.W.17 inspected the crime vehicle and opined that the accident was occurred not due to any mechanical defects of the crime vehicle.

L.W.18 conducted autopsy over the body of the deceased, issued

Postmortem report and opined that the death was due to shock and

Haemorrhage as there was an injury to lung and liver caused by blunt object.

After completion of investigation L.W.21 filed the charge sheet against the accused for the offence referred above.

2. The court took cognizance of the offence Punishable u/S. 304-A of

Indian Penal Code, against the accused. On appearance of accused before the court, copies of documents were furnished to him, as required under section 207 Cr.P.C. The accused was examined under Section 251 of Cr.P.C., by explaining the particulars of offence u/S. 304-A of Indian Penal Code, in

Telugu. He pleaded not guilty and claimed to be tried.

3. To prove the guilt of the accused prosecution has examined, P.W.'s 1 to 13 and Exs. P.1 to P10 were marked through them. After closure of the prosecution evidence, the accused was examined u/S. 313 Cr.P.C., by explaining the incriminating evidence appearing against him. He denied it totally and reported no defence evidence.

4. Heard both sides.

3

5. Now the point for determination is:

Whether the accused has committed the offence punishable under section . 304-A of Indian Penal Code & Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt?

6. The learned Assistant Public Prosecutor, has argued that, the accused drove the crime vehicle i.e., lorry in a rash and negligent manner and as its result a person was put to death. He argued that the evidence of the prosecution witnesses had established the guilt of the accused to the hilt and hence, he prayed to convict the accused and sentence him accordingly.

7. The learned Defense counsel contended that the prosecution witnesses did not supported the case of the prosecution. He also contended that no eye witnesses was examined by the prosecution in order to prove the negligence of the accused. Hence, he prayed to acquit that accused.

8. In a case for the offence under Section 304-A IPC the essential ingredients are :

(i) there must be death of a person.

(ii)Such death must be due to the rash or negligent act of the accused.

The case on hand has to be analyzed in the light of the above ingredients.

9. Point:-

I have perused the total evidence consisting of oral and documentary. In that P.W.1/Modalavalasa Gopalam stated that on 26.09.2016 between 9.30am., to 10.30am., while he was at Koyyaralu Junction, he found that the deceased while crossing the road was hit by a lorry coming from Visakhapatnam towards Srikakulam. As such, he rushed to that place and found the deceased with injury on her head and she was shifted to Hospital in 108 ambulance.

During his cross examination, he stated that he do not know the driver of the crime vehicle at the time of accident.

10. P.W.2/M.Neelachalam, stated that on 21.09.2016 at about 10am., he was informed that his mother and some others met with an accident and as such he visited the scene of offence. He stated, that the injured was shifted to KGH,

Visakhapatnam for better treatment. He stated that he do not know how the accident has occurred.

4

During his cross examination, he stated that he did not witnessed the accident and that he do not know the driver of the crime vehicle.

11. P.W’s 3 to 5 who were said to be the eye witnesses to the alleged incident turned hostile and did not supported the case of the prosecution and

Exs. P2 to P4 were marked through them.

12. P.W.6/T.Bhaskara Rao, stated that, on 21.10.2016 at about 9.40am., he received a phone call from his brother in law about the accident of his mother and as such, he immediately rushed to the hospital. He stated that the injured was shifted to RIMS Hospital, Srikakulam and later shifted to KGH,

Visakhapantam. He stated that he was informed that a lorry had hit against his mother and that do not know the driver of the crime vehicle at the time of accident.

13. P.W.7/K.Chandrurudu, stated that on 21.09.2016 at about 3pm., he was summoned by the police of Etcherla PS and as such, he visited the scene of offence and the police observed the scene and drafted scene observation report and Ex.P5 is marked through him.

14. P.W.8/Y.Trinadha Rao, stated that the police had conducted the inquest over the dead body of the deceased in his presence and Ex.P6 is marked through him.

15. P.W.9/P.Gopi Krishna, stated that on 26.09.2016 he inspected the crime vehicle and expressed his opinion that the accident was occurred not due to any mechanical defects and Ex.P7 is marked through him.

16. P.W.10/P.Rama Krishna, stated that on 22.09.2016 he received requisition from SHO, Etcherla PS to conduct autopsy over the dead body of the deceased. He stated, that on the same day he conducted PM examination and found the following antemortem injuries; a sutured lacerated wound of length 8cm., sutured with 6 black silk sutures present sagitally on left occipital region of head. A reddish contusions of size 3x2 cm., present coronally on right parietal region of inner surface of scalp. A reddish contusion of sizes 6x3cm. present sagitally on left occipital region of inner surface of scalp.

a reddish abrasion of size 4x1xcm., present horizontally on back of left shoulder.

5 about 300ml., of blood noted in each chest cavity. Fractures left 2-12 ribs at multiple sites with corresponding lacerations on left lung with contusions of surrounding tissues noted. Fractures right 308 ribs at mid scapular line with corresponding lacerations of right lung with contusions of surrounding tissues noted.

A reddish abrasion of size 15x3cm., present vertically extending from lower 1/3rd region of right side of abdomen to front of right upper thigh.

1.5 liters of blood noted in peritoneal cavity. Multiple lacerations of liver noted.

a multiple reddish abrasion of sizes ranging from 0.5 x 0.25xcm., to 0.5 x 0.5cm., present over an area of 5x5cm., present horizontally on left upper buttock.

a reddish abrasion of size 1x0.5cm., present horizontally on front of left knee.

He expressed his opinion that the deceased would have died due to shock and hemorrhage due to injury to lung and liver caused by blunt object and issued Ex.P8.

17. P.W.11/M.Srinivasa Rao, stated that on 21.09.2016 between 15 to 16 hours he visited the scene of offence and observed the scene in the presence of mediators and drafted scene observation report and drew rough sketch of it.

He stated that, on the same day P.W.1 visited the police station and gave a report and on its basis, he has registered a case and issued FIR. He stated that on the next day he went to KGH, Visakhapatnam and conducted inquest over the dead body of the deceased in the presence of inquestdars.

18. P.W.12/V.Sandeep Kumar, stated that he has received medical intimation along with the statement of the deceased and on its basis, he has registered a case and issued Ex.P9 Original FIR. He stated that he has examined P.W.1 and recorded his statement and later, he send the crime vehicle for MVI report and after completion of investigation he has filed the charge sheet against the accused.

19. P.W.13/P.Sayasinaidu, stated that on 21.09.2016 at about 11.45am., he has received the medical intimation of the deceased and as such he has visited the hospital and recorded the statement of the deceased. He stated that the 6 deceased has sustained grievous injuries on back of her head and on her waist and she was in contusion state.

20. As can be seen from the entire evidences, it shows that all the witnesses are not the direct witnesses and they came to know about the accident and the others who were said to be the eye witnesses turned hostile and did not supported the case of the prosecution.

21. It is further manifest, that no individual witness had stated about the rashness and negligence of the accused and moreover, no witness had identified the accused.

22. At this juncture it is helpful to rely upon a case law - In State of

Kerala Vs. Puttumana Illath Jathavedan Nambudiri, JT 1999(1) SC 456 the

Hon'ble Apex Court held that

the prosecution must properly prove the rash and negligent act of the petitioner/accused. Simple lack of care which constitutes civil liability is not enough to prove a charge of homicide by negligence. For the purpose of criminal law, there are degrees of negligence and a very high degree of negligence is required to prove before a charge u/s 304-A I.P.C. is established.

In this context it is pertinent to mention here the decision of K.

Naga Raju Vs. State of A.P. 2009 (2) ALT (Crl.) 298. The Hon'ble High Court observed in it para 12 about the quantum of negligence as follows:

Before conviction can be sustained u/s 304-A I.P.C. a very

high degree of negligence must be proved. Negligence which amount to recklessness and utter indifference to the consequences and to the rules of the road must be established. Mere driving at high speed or some sort of negligence, which is not criminal rashness or negligence may not prove the ingredients of Sec. 304-A I.P.C. Simple lack of care may result in civil liability but by itself may not constitute criminal negligence punishable u/s 304-A I.P.C.

23. Considering the above discussed evidence, facts and circumstances of the instant case, it is observed that the analogy laid down by the Hon'ble

Court is applicable to the facts and circumstances that are discussed in the case on record. Mere non blowing of horn of the crime vehicle will not constitute the negligence or rashness as contemplated by the Hon'ble Courts.

More than that, the prosecution should establish the gross negligence or gross 7 rashness on part of the accused while driving the crime vehicle at the time of the accident. But the testimony adduced on record appears to be non- confirmation of such rashness or negligence on part of the accused.

Moreover, the evidence on record is not free from material doubts and

contradictions as aforesaid. More importantly, the prosecution has failed to prove the identity of the accused as to be the same person who has driven the crime vehicle at the time of accident. As observed by His Lord Ships in the decisions mentioned supra in a criminal case, the burden of providing the essential ingredients for the establishment of the charge against the accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be assumed, and there are some statutory exceptions. In the absence of any material on record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “ res ipsa loquitur”. The said observations were made by Hon'ble Supreme Court in State of Karnataka Vs. Satish 1998 SCC (Crl.) 1508.

24. Upon careful perusal and scrutiny of the evidence on record, the

Court is of the considered view, that the evidence placed on record by prosecution is not sufficient to prove the case against the accused and that the prosecution has failed to establish the mandatory requirements of the offence and the benefit of doubt shall be given to the accused. Hence this court holds that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt.

25.In the result, the accused is found not guilty for the offence punishable under section 304-A of Indian Penal Code and hence he is acquitted under section 255(1) of CrPC. The bail bonds of the accused shall stand cancel after a period of six months.

Typed to my dictation, corrected and pronounced by me in the open court this the 22nd day of November, 2017.

Sd/-Smt.L.Devi Rathna Kumari

Judl. Magistrate of I Class, Srikakulam.

8

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION : P.W.1: Modalavalasa Gopalam. P.W.2: Modalavalasa Neelachalam. P.W.3:Rakoti Padma. P.W.4:Lingala Sureedu. P.W.5:Patarlapalli Jagannadha Rao. P.W.6:Tammineni Bhaskara Rao. P.W.7:Kadupuri Chandrudu. P.W.8:Yavvari Trinadha Rao. P.W.9:P.Gopi Krishna. P.W.10:P.Rama Krishna. P.W.11:M.Srinivasa Rao. P.W.12:V.Sandeep Kumar. P.W.13:P.Sanyasi Naidu.

FOR DEFENSE: NONE

Exhibits Marked

For Prosecution: Ex.P1/dt. 21-09-2016 : Report Ex.P2/dt. 21-09-2016: S.161(3) CrPC Statement of P.W.3. Ex.P3/dt. 21-09-2016: S.161(3) CrPC Statement of P.W.4. Ex.P4/dt. 21-09-2016: S.161(3) CrPC Statement of P.W.5. Ex.P5/dt. 21-09-2016: Scene observation Report. Ex.P6/dt. 22-09-2016: Inquest Report of the deceased. Ex.P7/dt. 26-09-2016: MVI Report Ex.P8/dt. 22-09-2016: Postmortem Report of deceased. Ex.P9/dt. 21-09-2016: Original FIR. Ex.P10/dt.21-09-2016: Altered FIR.

For Defence:NIL.,

MATERIAL OBJECTS MARKED :NIL.

Sd/-Smt.L.Devi Rathna Kumari

Judl. Magistrate of I Class, Srikakulam. //True Copy//

Judl. Magistrate of I Class, Srikakulam.

9

CALENDAR AND JUDGMENT IN C.C. NO. 971/2016

Calendar cases tried by the Judicial Magistrate of First Class, Srikakulam.

Date of offence : 21.09.2016 Date of release on bail : 26.09.2016 Date of filing : 21.09.2016 Date of Apprehension : 26.09.2016 Date of commencement of trail : 30.01.2017 Date of closing of trial : 20.11.2017 Date of sentence : 22.11.2017 Explanation for delay: Delay due to non production of Witnesses. Hence, the delay. C.C.No. 971/2016 on the file of Judicial Magistrate of I Class, Srikakulam.

The Name of the Complainant :The Sub-Inspector of Police, Etcherla Police Station, Srikakulam District.

The Name of the accused: Sahabul Shaik, S/o Salem Shaik, age 27 years, Muslim by caste, Girigar Nagar, Sonadanga, Manteswar, Burdwan, West Bengal State. Driver of Lorry bearing no. AP 05 V 9996.

The offence complained of : Punishable under Section 304-A of Indian Penal Code.

Offence u/S.304-A IPC :Whoever causes the death of another due to rash or negligent act shall be punishable for the offence U/s.304-A of Indian Penal Code.

Finding : Found not guilty.

Sentence or Order :In the result, the accused is found not guilty for the offence punishable under section 304-A of Indian Penal Code and hence he is acquitted under section 255(1) of CrPC. The bail bonds of the accused shall stand cancel after a period of six months.

Sd/-Smt. L.Devi Rathna Kumari

Judicial Magistrate of I Class,

Srikakulam. //True Copy// Judl. Magistrate of I Class, Srikakulam.

Copy submitted to The Hon'ble I Additional District & Sessions Judge, Srikakulam for perusal. The Superintendent of Police, Srikakulam.