Ms. M. Jayamma

1 O.S.No.503 of 2012, dt:16-10-2019

IN THE COURT OF THE II ADDL.JUNIOR CIVIL JUDGE, AT KHAMMAM

Dated this the 16th day of October, 2019

Present: Smt.M.Jayamma, II Addl.Junior Civil Judge, Khammam.

O.S.No.503/2012

Between:

Bahunuthal Koteswara Rao, S/o late Venkatappaiah Naidu, aged:60 years, Occu:Business, R/o H.No.10-3-68, RTC Bus Depot Road, Khammam Town, Khammam District … Plaintiffs.

And

1.The City Municipality, Khammam, represented by its Commissioner, Khammam 2.Gummadi Raja, S/o Bhaskar Rao, aged:42 years, Occu:Builder and Managing Partner, Creative Constructions, R/o Khammam (Defendant No.2 impleaded as per Orders in IA No.1354/2012, dt.01.07.2013)

… Defendants.

This suit is coming before me for final hearing on 22.08.2019 in the presence of the learned counsel for the plaintiffs Sri.S.Ramesh Kumar, and Sri K.Uttam Kumar, learned counsel for defendant No.1 and Sri V.N.hanumantha Rao, learned counsel for defendant No.2, having heard, and after perusing the material on record, this court delivered the following:-

J U D G M E N T

1) NATURE OF THE SUIT :- This is a suit filed by the plaintiffs seeking the relief of declaration of right over the house property and declaration of the notice issued by the defendant in RC No.A2/3357/2012, dt.22.08.2012 as null and void and consequently relief of perpetual injunction and for costs.

2) CASE OF THE PLAINTIFF IN BRIEF:- a) The suit schedule property originally acquired by the plaintiff out of the partition through deed of relinquishment of joint right dt.04.01.2015. Since then plaintiff is in possession and enjoyment of the suit schedule property with absolute rights. His name also mutated in the revenue records. The builders who are in construction activity have approached the plaintiff and his brother and express their 2 O.S.No.503 of 2012, dt:16-10-2019 intention to raise Apartment in the above said vacant site. One of the builder by name Gummadi Raja of Vizag who is managing partner of

Creative Constructions, a partnership friend has enter into the development agreement/General Power of Attorney, dt.22.08.2015 witht the plaintiff and his brother/B.Upendra Naidu and completed the construction in the year of 2009 and it was named as Venkata Tulasi Towers in memory of the parents of the plaintiff and the Municipal Authority/D1 given house No.10-3-68.

After construction of the above apartment, the plaintiff was allotted some flats bearing Nos.402, 403, 506 and Pent Ahouse bearing No.601. Since then plaintiff is enjoying the possession of the said flats including Pent house. The Municial authorities/D1 have assessed the tax to the property of the plaintiff to the above flats including pent house and plaintiff was allotted the assessment No.1106011615 in the year of 2009. since then the plaintiff is paying property tax to the Municipal authorities/D1 as per the above assessment and the plaintiff had paid first half year of 2012-13 property tax of Rs.804/-. D2 who is impleaded as per orders in IA No.1354/12, dt.01.07.2013 has been created trouble to the plaintiff by way of threatening that he would get the name of the plaintiff removed from the municipal records in the above house as the owner of the house property, accordingly plaintiff got issued legal notice to D1 not to delete the name of the plaintiff as owner of the above property and before arriving the decision for deletion of name of plaintiff on any application to be filed by the D2.

Subsequently basing on the applilcation of D2 on 19.05.2012, D1 incorporated the name of the D2 in municipal records as owner of the said property i.e. H.No.10-3-68 and D1 has issued notice in RC.No.3357/2012, dt.22.08.2012 to the plaintiff calling upon him within seven(07) working days of the receipt of the above notice along with original document showing the ownership right over the property failing which name of D2 who is managing partner of Creative Construction will be included in municipal 3 O.S.No.503 of 2012, dt:16-10-2019 records as owner of the H.no.10-3-68 in place of plaintiff name.

Immediately the plaintiff got issued a reply notice to the D1. Inspite of the notice and reply D1 is making hectic efforts to delete the name of the plaintiff as owner of the property in H.No.10-3-68 and included the name of

D2 as owner of the above property in municipal records. The plaintiff has no other go except to approach this Hon’ble Court as defendants colluded with each other and interfering with the peaceful possession and enjoyment of the suit schedule property, the defendants are trying to removing his name in municipal records as a owner, he was constrained to file the suit.

3) Summons was served on the defendants they enter appearance and opposed the suit claim. Written statement of D1 and D2 was filed and D2 was impleaded as per the orders in IA No.1354/12, dt.01.07.2013.

4)PLEADINGS OF THE D1 IN BREVITY: a) He pleads that plaintiff and his brother B.Upendra Naidu were joint owner and possessor of site measuring 800 square yards, but same is not situated adjacent to the RTC depot,

Burhanpuram, Khammam and H.No.10-3-68 pertaining to one

Venkatappaiah Naidu, who is father of plaintiff. The plaintiff and his brother inter into agreement with D2 for the purpose of construction of the building and after construction of the building and it was named as Venkata Tulasi

Towers, and same was done in the memory of the plaintiffs parents, is not known to the D1. But H.No.10-3-68 was allotted to the said building and also some flats allotted to the petitioner in the Venkata Tulasi Towers and petitioners are paying tax to D1/Municipality.

b) D1/Municipality acted very much in its rights calling for plaintiff come up with original document as a mutation of the property in possession is in dispute and when D1/Municipality demanded the plaintiff to come with original document, who instead of producing his original document, he issued notice to D1. The D1/Municipality has nothing to do with the disputes 4 O.S.No.503 of 2012, dt:16-10-2019 between plaintiff and D2. Since D2 reveals that plaintiff is not a lawful owner of the pent house which is being claimed by the plaintiff for which D1 called to plaintiff to produce the original document but plaintiff resorted, dissuade mischievously. D1/Municipality is bound to rectify the mistake that has crept into records by way of mutating the pent house of Venkata Tulasi Towers in the name of plaintiff instead of D2 for that purpose D1 issued notice to the plaintiff and the plaintiff instead of responding in proper way has demanded by this D1, plaintiff resorted to dissuade with malafide intention as such suit is liable to be dismissed.

5)PLEADING OF THE D2 IN BREVITY: a) He pleads that plaintiff and his brother B.Upendra naidu were joint owner and possessor of the house site to an extent of 800 square yards situated at adjacent to the RTC Bus Depot,

Burhanpuram, Khammam. He, plaintiff and his brother Venkatappaiah Naidu had enter into the agreement as per the terms of development agreement and D2 had completed the total building in the said vacant house site which is mentioed as Venkata tulasi Towers, but plaintiff was not allotted Pent house and by virtue of Clause No.13 of said registered document he has become the absolute owner of the said house and he had taken possession of the Pent House in his own right. Since then, the said pent house has been in ownership and possession of D2. The plaintiff has no manner of right over the said pent house, he made application to D1/municipality to mutate his name in respect of his pent house constructed over the said building i.e.

Venkata Tulasi Towers and subsequently D1 has issued a notice to plaintiff calling upon him to attend before the Municipal authorities within seven(07) days along with original document showing the ownership of the plaintiff, failing which the name of D2 to be included in municipal records as owner of pent house of plaintiff. Plaintiff replied with a false allegation. As per the terms of registered document agreement/General Power of Attorney entered between plaintiff and his brother, 33 % of the building was given to the land 5 O.S.No.503 of 2012, dt:16-10-2019 owner I.d., plaintiff and sold remaining 66 % to the 3rd parties and as per

Clause No.13, the pent house constructed on the top of building was allotted to the shate to him and he became owner and possessor of the said pent house. As per the Clause No.13 of registered development agreement/General Power of Attorney, the developer(D2 herein) was exclusively have right to construct the pent house on which the land owner shall not have any rights or claim over it, “in case if the land owner agreed to purchase the same, the developer hereby agreed to sale in his favour of 20% rebate on the agreed average price. But the plaintiff has not purchased the pent house. Hence, as per the development agreement, the said pent house has been in ownership and possession of him. As such he is entitled to get his name entered in the Municipal records in respect of the pent house of said Venkata Tulasi Towers. The suit filed by the plaintiff against the

D1/Municipality is not maintainable in law when once proceedings are pending before the Municipality. The plaintiff is not entitled for relief of

Perpetual Injunction against the D1 to prevent with, who is statutory body which is performing its functions by following the provisions of municipality act and rules. The plaintiff cannot succeed his illegal attempts before the

Municipality, as such he came forward with above suit, is clearly an abuse of law. At last he sought to dismiss the suit with costs.

6. After hearing learned Advocates for the respective parties, after perusing the pleadings in the plaint, written statement and after perusing the material papers on record, my learned predecessor in the office settled the following issues for trial:

1. Whether the plaintiff is entitled for declaration of notice issued by D1 in RC

No.A2/3357/2012 dt.22.08.2012 as null and void?

2. Whether the plaintiff is entitled for perpetual injunction against the defendants as prayed for?

3. To what relief?

6 O.S.No.503 of 2012, dt:16-10-2019

7) a) Plaintiffs to substantiate his case got examined himself as P.W.1 coupled with exhibits Exs.A.1 to A8. Ex.A1 is the CC of relinquishment dated 04.01.2005, Ex.A2 is the Photostat copy of development agreement cum

GPA, Ex.A3 is the Office copy of legal notice dt.22.06.2012, Ex.A4 is the

Postal acknowledgment card, Ex.A5 is the copy of notice dt.22.08.2012 issued by the Municipal Commissioner, Khammam, Ex.A6 is the office copy of reply notice, dt.29.08.2012, Ex.A7 is the Office copy of rejoinder reply dt.31.08.2012 and Ex.A8 is the Mee-Seva receipt dt.30.06.2012 for Rs.804/-.

b) On contrary defendant No.1 got examined Dw.1 and exhibited Exs.B1 and B2 viz., Ex.B1 is the Authorization Letter issued by commissioner

Municipal corporation, Khammam and Ex.B2 is the office copy of legal notice dt.05.09.2012. D2 filed written arguments.

8) POINT No.1:

a) The burden to prove this issue rests upon the plaintiff as he had approached the court seeking the relief of declaration of his title over pent house, asserting right over the same under Ex.A1 Deed of relinquishment of joint rights dt.04.01.2005 took place among family members of the plaintiff bearing document No.59/2005 and Ex.A2 Copy of Development agreement cum General Power of Attorney dt.24.08.2007 signed by Gummadi Raja,

Developer, the plaintiff and B.Upendra Naidu. To grant the relief of declaration, plaintiff has to prove his title over the property, apart from establishing that defendant has denied his title over the property purchased under Ex.A1 and Ex.A2.

b) In the entire plaint pleadings, plaintiff did not plead that defendant denied his right over the property he acquired under Ex.A1, except pleading that defendants making hectic efforts to delete the name of the plaintiff as owner of the property i.e. H.No.10-3-68 and to include the name of the D2 as owner of the property in municipal records. Hence, it is clear that there is no 7 O.S.No.503 of 2012, dt:16-10-2019 cause of action to file the suit for the relief of declaration of title and ownership over the property acquired by the plaintiff under Ex.A1. In the written statement pleadings, defendant pleads that pent house is his propertyand admits in his cross examination that, he has no relation to the plaint schedule property purchased by the plaintiff under Ex.A1. Thus, the plaintiff has to prove that pent house is the property acquired by him under

Exs.A-1 and A2. To prove the same plaintiff did not examine anyone on his behlaf to support his contention that he is acquired the property i.e.pent house. Hence, withholding the best evidence by the plaintiff leads to drawing of an adverse inference. The facts and evidence on record demonstrates that, there is no cause of action to file the suit for declaration.

c) Now, coming to the oral evidence adduced by the plaintiff. Plaintiff got examined himself as Pw.1. PW1 filed his chief examination affidavit by reiterating the plaint pleadings. He states that, Municipal authorities have no right and they ought to have issued a notice to the parties before effecting mutation of the record by way of taking into consideration of the document and municipal authorities have no right to decide the rights of the parties, as per provision of law, mere entering the names of the persons as tax payers does not preclude title or owner ship of the parties. Further states that D2 was impleaded as necessary party to the proceedings during the pendency of the suit is not having any title or possession of the property at any point of time and admittedly present suit is filed for perpetual injunction not for declaration He states that, D2 with an intent to grab the property by way of setting up a false claim, D2 himself impleaded in the proceedings and there is no iota of truth in the averments of D2 with the active connivance of D1, hence he was constrained to file the suit. Thus, this evidence of PW-1 also reveals that, there is no cause of action to file the suit for the relief of declaring the notice issued by D1 in RC No.A2/3357/2012, dt.22.08.2012 as null and void. During the cross examination of PW-1, he admitted that he, 8 O.S.No.503 of 2012, dt:16-10-2019 his brother together gave the house for development construction to D2 and as per the agreement permission obtained by D2 he and his brother are having shares to an extent of 33 % and builder is having 67% share under

Ex.A1 and on completion of building they took possession of the flats according to shares mentioned in Ex.A1 and D2 sold his share of flats to 3rd parties and D2 made an application before Municipal authorities for entering his name in the records for the pend house and he received the notice from

Munipal authorities on 22.08.2012 under Ex.A5 and he has given reply notice. Further he admitted that as per agreement under Ex.A2 on page

No.5 clause No.13 the developers exclusively have rights over pend house.

Further he states that he paid the construction cost to the developers and the developer handed over the pent house to him. But in this regard Pw.1 did not place any documentary evidence except tax receipts, whereas in his chief examination he deposed that mere entering the names of the persons as tax payers does not preclude title or owner ship of the parties. This admission of PW-1 exhibits that, the plea of the plaintiff that he is the owner of the pent house is some extent is unreliable.

Further during the cross examination by the learned counsel for D2 he admitted that as per the agreement apart from 14 flats the builder is having exclusive right over the pent house and pent house also constructed by builder. Further he admitted that he is having receipts for pent house but he has not filed the receipts given by the builder before this court. Viewed in any angle, the evidence of PW1 discloses that, she intends to claim right over way which relief she did not seek in the plaint. The documents filed by the plaintiff and defendant under Ex.A1 to A3 and B1 is not considered as the relief sought for is not for any right over the alleged way but to declare the notice issued by municipality as null and void.

9 O.S.No.503 of 2012, dt:16-10-2019

d) If Plaintiff intends to claim right of way, he ought to have filed the suit seeking the relief of declaration of his right over the alleged way, but not this suit without any cause of action. The above discussion vividly reveals that, the plaintiff has approached this court with unclean hands. Thus, plaintiff has failed to establish his case by producing convincing evidence that, he is in possession and enjoyment of pent house and that defendant interfered with her possession by deleting his name in the municipal record. The allegation that the plaintiff was allotted pent house with other flats is not true and correct. In fact as per clause No.13 of said Regd. Development agreement cum GPA the pent house constructed by the D2, on the top of the building was allotted to the share of D2.

e) For the above said reasons, this Court holds that, plaintiff has failed to prove his case for the reliefs he sought for. The discussion made supra clinchingly shows that, the plaintiff had approached this court with clumsy facts and reliefs with unclean hands. Hence she is disentitled for the reliefs he sought for.

f) As the plaintiff failed to prove her case, the burden will not shift to the defendants. However defendant No.1 got examined as D.W.1. He filed his chief-examination affidavit by reiterating the contents of his written statement and defendant prayed to dismiss the suit. During the cross examination of D1 nothing material has been elicited by the plaintiff’s counsel.

g) The D1/Municipality rightly asked the plaintiff to produce the documents in proof of his claim over the pent house of D2 and D2 requested the D1 to enter his name in respect of his pent house only not with regard to entire building constructed by him but the plaintiff failed to produce any record to prove his ownership on the pent house of D2. The said pent house has been in ownership and possession of D2 therefore D2 is entitled to get his name 10 O.S.No.503 of 2012, dt:16-10-2019 entered in the municipal records, in respect of pent house of said Venkata

Tulasi Towers. Further municipal authorities have issued notice vide ROC

No.A -2/3357/2012, dt.22.08.2012 to the plaintiff calling upon him to bring original documents in respect of pent house and having received the same the plaintiff failed to place the documentary evidence before the municipal authorities/D1.As already stated above the suit is not filed seeking the relief of declaration of any right over the pent house but only to declare the notice issued by D1 as null and void, the cross-examination of the learned counsel for the plaintiff to D.W.1 on the extent of notice is discarded.

Accordingly, Issue No.1 IS determined against the plaintiff and

in favour of the defendants.

09. ISSUE No.2:- In view of findings in Issue No.1, this court holds that, plaintiff is not entitled for the relief of perpetual injunction.

10.ISSUE NO.3:

11. RESULT:- In the result, the Suit is dismissed without costs in the interest of justice.

Typed to my dictation corrected and pronounced by me in the open court, this the 16th day of October, 2019.

II Addl.Junior Civil Judge, Khammam.

APPENDIX OF EVIDENCE :- WITNESSES EXAMINED:-

For Plaintiffs: For Defendants:-

P.W.1:Bahunuthula Koteswara Rao Dw.1:Ramchander

DOCUMENTS MARKED :-

For Plaintiffs:-

Ex.A1 is the CC of relinquishment dated 04.01.2005,

Ex.A2 is the Photostat copy of development agreement cum GPA, 11 O.S.No.503 of 2012, dt:16-10-2019

Ex.A3 is the Office copy of legal notice dt.22.06.2012,

Ex.A4 is the Postal acknowledgment card,

Ex.A5 is the copy of notice dt.22.08.2012 issued by the Municipal

Commissioner, Khammam,

Ex.A6 is the office copy of reply notice, dt.29.08.2012,

Ex.A7 is the Office copy of rejoinder reply dt.31.08.2012,

Ex.A8 is the Mee-Seva receipt dt.30.06.2012 for Rs.804/-.

For Defendants:- -

Ex.B1 is the Authorization Letter issued by commissioner Municipal

Corporation, Khammam

Ex.B2 is the Office copy of Legal Notice dt.05.09.2012

II Addl.Junior Civil Judge, Khammam.

CERTIFICATE

“Certified that the above judgment was dictated and pronouned in the open court by Smt.M.Jayamma, II Addl.Judicial Magistrate of First Class,

Khammam(since dead)”

FAC:II Addl. Judl. Magistrate of I class, Date: KHAMMAM.

1 CC.No.540 of 2013, dated:16.10.2019,

IN THE COURT OF III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS :: AT KHAMMAM.

Present:Smt.M.Jayamma, II Addl.Judl. Magistrate of I Class, Khammam..

Dated this the 16th day of October, 2019

C.C. No:540 of 2013

{Cr.No.35/2013 of Khanapuram Haveli P.S.}

Between:

The State, through SI of Police, Khanapuram Haveli P.S

................. Complainant.

And

1. Banala Srinivas, S/o late Krishnamurthy, aged:40 years, Caste:Viswabrahmina, Occu:Tailor

2. Banala Vijaya, W/o Srinivas, aged:35 years, Caste:Viswabrahmina, Occu:Housewife

3. Yerraboina Upendar, S/o Late Venkatappaiah, (The case against A3 has been split-up)

...Accused Nos.1 and 2

(The case against A3 has been split-up)

This case came before me on 03.10.2019 for fnal hearing and disposal in the presence of Learned A.P.P, for the State, and Sri Mandadapu Srinivasa Rao, Learned counsel for accused, upon perusing the material papers on record, stood over for consideration, till this day, this court delivered the following:

:J U D G M E N T:

1. This is a case of ofence punishable under Sec.420, 427, 447, 294(b) and 506 r/w 34 IPC, wherein the brief facts of the case are that on 15-06- 2012 when Pw.1 was erecting wall around his plot, meant time at about 11.55 PM, A1 and A2 illegally trespassed into the land of Pw.1, obstructed the work, damaged the erecting wall and abused the Pw.1 in flthy language and threatened him with dire consequences stating that if again Pw.1 come to his plot they will do away his life by claiming that the ploit is their own. Then

Pw.1 went to police station and fle the report.

Basing on the report of Pw.1, Pw.6 registered a case in Cr.No.35/2013, u/Sec420, 427, 447, 294(b) and 506 r/w 34 IPC against A1 and A2 and 2 CC.No.540 of 2013, dated:16.10.2019, issued F.I.R. After completing the entire investigation, Pw.7 fled charge sheet against A1 and A2 for the ofence under Section 420, 427, 447, 294(b) and 506 r/w 34 IPC.

2. This court took the cognizance for the ofence punishable under Sec.

Sec.420, 427, 447, 294(b) and 506 r/w 34 IPC against A1 and A2. On appearance of the accused copies of documents were furnished to them as contemplated u/Sec.207 Cr.P.C.

3. The accused were examined u/Sec.239 Cr.P.C by explaining the allegations in the charge sheet, the accused denied their involvement. Hence a charge under Sec.420, 427, 447, 294(b) and 506 r/w 34 IPC has been framed against A1 and A2, read over and explained to them in their vernacular to which they pleaded not guilty and claimed to be tried. The case against A3 has been split-up.

4. In support of its case, the prosecution had examined Pw.1 to Pw.7 coupled with Exhibits Ex.P.1 to P6. Pw.1 is the complainant and victim,

Pws.2,3 and 5 are the circumstantial witnesses, Pw.4 is the panch witnesses for CDF and Pws.6 and 7 are the investigating Ofcers.

Ex.P1 is the report, Ex.P2 is the certifed copy of sale deed executed by

Y.Nanamma in favour of G.Bikshapathi, dt.07.07.2015, Ex.P3 is the certifed copy of Encumbrance certifcate dt.12.07.2016, Ex.P4 is the certifed copy of gift sale deed executed by Y.Nanamma in favour of Y.Upendar vide document

No.640 of 2010 dt.04.03.2010, Ex.P5 is the CDF and Ex.P6 is the FIR.

The learned APP has given up the evidence of Lw.7/Sangabathula Naveen

Reddy, Panch for CDF and Lw.5/Yadala Rama Rao reported died.

5. After completion of prosecution evidence the A1 and A2 were examined under Sec.313 Cr.P.C, they denied the incriminating evidence against them in the testimony of the prosecution witnesses and reported no defence evidence.

3 CC.No.540 of 2013, dated:16.10.2019,

6. Hear both sides. Perused the document available on record.

7. Now, the point for determination is:

“Whether the prosecution brought the accused(A1 and A2) to the home of guilt beyond reasonable

doubt for the ofence punishable u/Sec.420, 427,

447, 294(b) and 506 r/w 34 IPC against them?”

POINT:

8.The learned APP representing the state submitted that the prosecution could be able to prove the charges against the accused through the evidence of Pw.1 to 7 whose evidence amply proving that these accused criminally trespassed into the land of Pw.1, abused him and threatened him with dire- consequences. The learned APP prayed the court, by considering the evidence of Pw.1 to 7, to punish the accused.

9.On the other hand, the learned counsel for the accused submitted that the prosecution has failed to prove the case beyond reasonable doubt and that the evidence of Pw.1 to 7 in consistent and this case has been foisted by influencing the police against this accused that there is no evidence who actually trespassed. Hence, considering the same, prayed the court to acquit the accused.

10.The ofence evidence of criminal trespass as defned under section 441 of Cr.P.C is complete as soon as there is an unlawful entry and this court is concerned only with the question of possession of the land as on the date of occurrence of this ofence. The prosecution has to prove the ingredients of section 441 of IPC, that “whoever enters into upon the property in the possession of another with an intention to commit an ofence or to intimidate, insult, or annoy any person in possession of such property”.

11. To prove the case of the prosecution, prosecution relied on the evidence of Pws.1 to 7. Pw.1 who is the complainant herein deposed that on 28.09.1998, he one house plot no.42 to an extent of 233.33 Sq.yards in

Sy.No.16 from one Yadala Nanamma W/o late Ramaiah which is situated at 4 CC.No.540 of 2013, dated:16.10.2019,

Ballepally village of Khammam and the same was registered on 07.07.2005 at Sub Register Ofce, Khammam, in the presence of the family members and legal heirs of said Y.Nanamma. Further deposed that on 15-06-2012, he digged the said plot for erecting compound wall around of the plot and on the next day accused persons illegally trespassed into the said plot and damaged the said punadhi by flling with sand and raised the wall, then on the same day he went to the said plot and observed that his plot was damaged by flling with sand and neighbors of said plot informed him that, accused persons trespassed into his plot and damaged the punadhi. Further he deposed that he went to Pw.5, who is the son of said Y.Nanamma and told that accused persons illegally trespassed into the said plot, then Pw.5 demolished the said wall which was raised by the accused persons with the help of dozer, then after accused persons approached the Hon’ble High court and obtained the Injunction order in plot No.43 and Sy.No.15 and constructed the thin shed on the said plot No. 43 and Sy.No.16. Further he deposed that on 15-06-2012, he went to his plot and questioned the accused for constructing thin shed in his plot, then accused persons abused him in flthy language and threatened him with dire consequences and on 19-01-2013, he went to the police station and lodged a report against the accused persons. There are many deviations and contradictions in the version of Pw.1 itself as initially he deposed that “ on 15-06-2012, he digged the said plot for erecting compound wall around of the plot and on the next day accused persons illegally trespassed into the said plot and damaged the said punadhi by flling with sand and raised the wall, then on the same day he went to the said plot and observed that his plot was damaged by flling with sand and neighbors of said plot informed him that, accused persons trespassed into his plot and damaged the punadhi” . Later he changed his own version and deposed that “on 15-06-2012, he went to his plot and questioned the accused for constructing thin shed in his plot, then accused persons abused him in flthy language and threatened him 5 CC.No.540 of 2013, dated:16.10.2019, with dire consequences”, which is contrary to his own version. Further according to Pw.1 the incident was happened on 15.06.2012 but he lodged the report on 19.01.2013, there is a delay of approximately 07 months, but

Pw.1 did not assign any reason for delay in lodging FIR.

In his cross examination he admitted that he has not mentioned the names of the persons in EX-P1 who informed him with regard to this incident and not mentioned the delay of six months of fling of report in EX-P1.

Further he admitted that at the time of flling of the punadhi by the sand he was not present at the alleged plot, so also he was not present when Pw.5 was demolishing the compound wall with the help of the dozer.

From the chief and cross examination of Pw.1, the presence of Pw.1 at the time of incident is doubtful. Further in his chief examination initially he deposed that neighbours informed him about the incident.

12. Pw.2 who is one of the attesters of agreement of sale executed by

Nanamma in favour of Pw.1 deposed that in the year of 2012, Pw.1 came to him and informed him that he was constructed punadhi in his plot for the purpose of raising compound wall and at that time accused persons trespassed into the plot of Pw.1 and constructed compound wall in the said plot and Pw.5 demolished the said wall on the direction of Pw.1. In his cross examination he admitted that he is not an eye witness to the incident.

Pw.3 who is the circumstantial witness deposed the same lines that of

Pw.2. In his cross examination he admitted that he is not an eye witness to the incident.

13. Pw.4 who is the panch witness for CDF deposed that about three years back, in the month of January, on one day while he was going to Ballepalli village from Yellandu cross road, he observed that police persons were present at the plot of Pw.1, then police called him to the said plot and in his presence police conducted scene of ofence panchanama and also drafted

CDF. In his cross examination he admitted that the distance between his 6 CC.No.540 of 2013, dated:16.10.2019, village and scene of ofence is 7 ½ kms and there is no acquaintance between him and Pw.1.

14. Pw.5 who is the scribe of agreement in favour of Pw.1 with regard to his land to an extent of 233.33 cents in Sy.No.16, plot No.43situated at

Ballepally. He further deposed that subsequently he came to know that A1 and A2 raised the basement in the land of Pw.1, later he went to the said land and demolished the basement which was constructed by A1 and A2.

Further he deposed that they came to know that accused persons having land in Sy.No.15, plot No.43 and Pw.1 having land in Sy.No.16, plot No.43. In his cross examination he admitted that A2 fle the civil suit against him on the fle of Prl.Junior Civil Judge, Khammam in OS No.94/2012 and obtained decree in their favour in Sy.No.15 of Ballepally village and he contested the said civil case and fled written statement including counter. Further he deposed that he did not fle agreement which was executed in favour of

Pw.1. Further he admitted that he did not state before the police that he demolished the wall which was constructed by A1 and A2. Further admitted that he had convicted in NI Act on the fle of Hon’ble Prl.District and Sessions

Judge, Khammam, as such, he went to the jail in the said case and released

on bail.

As per the evidence of Pw.5 he demolished the basement which was constructed by A1 and A2, whereas as per the evidence of Pw.1 Pw.5 demolished wall which was constructed by accused persons.

15. Pws.6 and 7 who are the investigation ofcers nevertheless deposed the chronological order of events occurred during their investigation.

In his cross examination Pw.6 deposed that he do not know with regard to the delay of fling of the report and his investigation did not reveal with regard to PW.1 that Pw.1 came to know the incident from one person and whom informed the incident to PW1 and during the course of his investigation he do not know the whether A2 obtained the injunction order pertaining to disputed plot. Further his investigation did not reveal whether 7 CC.No.540 of 2013, dated:16.10.2019,

Pw.1 fle the suit in OS No.663/2012 on the fle of Prl. Junior Civil Judge’s

Court, Khammam and same was dismissed on merits. Further he deposed that PW.5 stated before him that Pw.5 demolished the wall which was constructed by accused at disputed plot. Further he deposed that he did not examine any eye witness pertaining to this case. Further deposed that he came to know that while incident was going on, no independent witness was present. Further Pw.5 admitted that he did not examine grandmother/Nanamma of PW5.

In his cross examination Pw.7 deposed that he did not re-record the statements of Pws.1 to 5 and during the course of his investigation he has not got surveyed the disputed land with the help of Mandal Surveyor.

16. Except the evidence of Pw.1, there is no other independent witness to corroborate the version that accused entered into the land of Pw.1 and infact there is no specifc evidence to say that accused illegal constructed the wall in the plot of Pw.1. The prosecution has failed to produce the incriminating material which the accused have constructed the wall. The prosecution examined Pw.4 in this regard who is panch witness for the scene of ofence panchanama, who deposed only to the extent of panchanama proceedings.

17. Pws.6 and 7 who are the investigation ofcers who nevertheless deposed the chronological order of occurring events during the course of their investigation. It is noted that Pws.6 and 7 did not seize any documents from the possession of Pw.1 and also they did not take help of the Revenue authorities for conducting the survey in the disputed land.

18. On perusal of the report the ofence occurred on 15.06.2012 and Pw.1 lodged the report on 19.01.2013, approximately there is 07 months delay but in the FIR in column No.8 there is no reason mentioned with regard to the delay of fling of the FIR which is fatal lacuna. Further Pws.2, 3 and 5 admitted in their cross examination that they did not witness the incident and they are not eye witnesses to the incident, so their evidence is only hearsay.

8 CC.No.540 of 2013, dated:16.10.2019,

As discussed supra compare to the own version of Pw.1 there are so many contradictions which is giving raise to a doubt with regard to the presence of Pw.1 at the time of incident. Except the evidence of Pw.1 with regard to the illegal trespass of the accused into the land of Pw.1 and threatened him with dire-consequences and accused abused in flthy language, there is no other evidence to support the version of Pw.1, which is raising doubt towards the very happening of the incident. Pw.1 has not spoken any particular incident of such threaten nor given the exact date and time of such incident. There is no proper evidence as against the accused to hold them to be guilty of the ofence with which they were charged.

19. In view of the above discussion in the preceding paragraphs, having considering the evidence adduced, there is no consistency in the testimony of the prosecution witnesses, the prosecution has failed to prove the ofence of mischief caused by the accused, further there is no evidence of criminal intimidation caused by the accused and further no material evidence before this court how the accused have cheated the PW1 and as there are so many omissions and contradictions in the statements of Pw.1 and Pws.6 and 7 which are raising doubt towards happening the incident, as such the beneft of doubt should go to the accused as contemplated under criminal jurisprudence. There is no proper evidence that the accused herein have threatened the witnesses herein. Hence the A1 and A2 are entitled for acquittal.

20. In the result, A1 and A2 are found not guilty for the ofence punishable u/Secs.420, 427, 447, 294(b) and 506 r/w 34 IPC and accordingly, they are acquitted u/Sec.248(1) Cr.P.C (The case against A3 has been split-up). The bail bonds of the accused shall be in force for a period of six month from today u/Sec.437-A of Cr.P.C. No property.

Typed to my dictation, corrected and pronounced by me in the open court, on this the 16th day of October, 2019,

III Addl. Judl. Magistrate Of I Class,

KHAMMAM

9 CC.No.540 of 2013, dated:16.10.2019,

Appendix of Evidence Witnesses examined: For prosecution: For defence:

P.W.1: Gundu Bikshapathi, Complainant & Victim --None--

P.W.2: Todeti Chandrashekar, Circumstantial witness,

P.W.3: Gaddam Nageswara Rao, Circumstantial witness,

P.w.4: Shaik Meera Saheb, Panch for CDF

P.w.5: Yadala Nageswara Rao, Circumstantial witness,

P.w.6: K.Narasimha Rao, Investigation Ofcer,

P.w.7:B.Ramanujam, Investigation Ofcer

Documents marked:

For prosecution:

Ex.P1 is the report, Ex.P2 is the certifed copy of sale deed executed by Y.Nagamma in favour of G.Bikshapathi, dt.07.07.2015, Ex.P3 is the certifed copy of Encumbrance certifcate dt.12.07.2016, Ex.P4 is the certifed copy of gift sale deed executed by Y.Nagamma in favour of Y.Upendar vide document No.640 of 2010 dt.04.03.2010, Ex.P5 is the CDF Ex.P6 is the FIR. For Defence:

--Nil-- Material objects marked: -NIL-

II Addl. Judl. Magistrate of I class,

KHAMMAM.

CERTIFICATE

“Certifed that the above judgment was dictated and pronouned in the open court by Smt.M.Jayamma, II Addl.Judicial Magistrate of First Class,

Khammam(since dead)”

FAC:II Addl. Judl. Magistrate of I class, Date: KHAMMAM.

10 CC.No.540 of 2013, dated:16.10.2019,

1 CC No.806 of 2014 dt.16-10-2019

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS:: AT KHAMMAM.

Present: Smt. M.Jayamma, II Addl. Judl. Magistrate of First Class, Khammam.

Dated this the 16th day of October, 2019

C.C.No.806 of 2014

Between: The State, through Sub-Inspector of Police, Mudigonda P.S (Cr.No.237 of 2014 of Mudigonda PS)

.... Complainant.

And

Marthi Venkanna, S/o Hanmanthu, aged:50 years, Caste:Yadava Occu:Agriculture, R/o Vallabhi(V) of Mudigonda Mandal

... Accused.

-o0o-

This case is coming before me for fnal hearing on 01.10.2019 in the presence of Learned A.P.P for the State and Sri R.Venkat, Learned counsel for Accused; upon hearing on 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. This is a case of ofence punishable under Section 420 IPC, Sec.29 of

Pawn broker Act, 2002 and Sec.3(5)(b) of AP(Telangana Area) Money Lender

Act-1349F, wherein the facts of the case as narrated by the SHO PS

Mudigonda are that, the accused, without having any valid licence from the concerned authorities, lending money for higher rate of interest by collecting empty signed promissory notes and empty signed blank cheques from the public and cheating them. On 22.08.2014 at 1.30 PM, on reliable information, Pw.6 raided the house of accused and on seeing the police party, accused absconded. Then, Pw.6 secured the presence of mediators and seized (05) empty promissory notes.

Basing on seized pronote and cheques, Pw.6 registered the case against accused.

2 CC No.806 of 2014 dt.16-10-2019

2. This case was taken on fle for the alleged ofence under Sections 420

IPC, Sec.29 of Pawn broker Act, 2002 and Sec.3(5)(b) of AP(Telangana Area)

Money Lender Act-1349F. On appearance, copies of documents are furnished to the accused as contemplated u/Sec.207 Cr.P.C.

3. Accused was examined u/Sec.239 Cr.P.C and accusations for the ofence under Section 420 IPC, Sec.29 of Pawn broker Act, 2002 and Sec.3(5)(b) of

AP(Telangana Area) Money Lender Act-1349F against him, read over and explained to him in his vernacular language in which, he pleaded not guilty and claimed to be tried.

4. After completion of the prosecution evidence, the accused was examined under Sec.313 of Cr.P.C. He denied the incriminating evidence against him in the testimony of the prosecution witness and reported no defence evidence.

5. During the course of trial of this case, the prosecution has examined

Pw.1 to Pw.6 coupled with exhibits Ex.P1 to Ex.P9. Pw.1 who is said to have been the police personal who assisted the investigation ofcer, Pw.2 who is said to have been the borrower of the money from the accused, Pws.3 and 5 who are said to have been the panch witness for seizure panchanama and

CDF, Pw.4, who is said to have been the panch witness for confession panchanama of accused and Pw.6 is the investigation ofcer.

The learned APP has given up the evidence of Lw.1/K.Jagadeesh, Police personnel.

Ex.P1 is the Sec.161 Cr.P.C statement of Pw.2, Exs.P2 and P3 are the signature of Pw.3 on seizure panchanama and CDF, Ex.P4 is the signature of

Pw.4 on confession panchanama, Exs.P5 and P6 are the signatures of Pw.5 on seizure panchanama and CDF, Ex.P7 is the FIR, Ex.P8 is the CDF, Ex.P9 is the seizure panchanama, Ex.P10 is the confession panchanama of accused.

Accordingly, the prosecution evidence is closed.

3 CC No.806 of 2014 dt.16-10-2019

6.Heard both sides. Perused the documents available on record.

7.Now the point for determination is:

8.Now the point arises for consideration is :

Whether the prosecution brought the accused to the home of the guilty for the ofence u/Sec. 420 IPC, Sec.29 of Pawn broker Act, 2002 and Sec.3(5)(b) of AP(Telangana Area) Money Lender Act-1349F beyond all reasonable doubt?

POINT:

9. Pw.1 who is defacto complainant and police constable working at

Mudigonda police station who stated that on 22.08.2014 at about 9.00 AM,

Pw.6 received credible information. Basing on the information, he and Pw.6 were conducted raid at the house of the accused and on seeing the police accused fed away from his house. He also says that they were conducted search in the house of the accused in the presence of Pws.3 and 5 and Pw.6 seized the fve(05) blank promissory note with revenue stamp from the house of accused under the cover of panchanama. Admittedly, the pronotes were seized from the house of the accused were not marked. Even Pw.6 did not obtain the signatures of the witnesses on seized pronotes. Hence, this court cannot rely on the seized pronotes, to implicate the accused.

10. Pw.2 who is the borrower, wherein the prosecution alleged that accused lent the money to Pw.2, whereas Pw.2 did not support the case of the prosecution. The learned Assistant Public Prosecutor cross examined

PW.2 under Section 154 of Indian Evidence Act, 1872 and Sec.162 Proviso of

Cr.P.C at length, but, nothing worthy is elicited to disprove his evidence.

11. Coming to the evidence of Pws.3 and 5 who are said to have been panch for seizure panchanama and CDF, deposed that while they went to police station on their personal work, police obtained their signatures on blank papers but they do not know the contents which bear their signatures, whereas, Pws.3 and 5 did not support the case of the prosecution. The learned Assistant Public Prosecutor cross examined PWs.4 and 5 under 4 CC No.806 of 2014 dt.16-10-2019

Section 154 of Indian Evidence Act, 1872 and Sec.162 Proviso of Cr.P.C at length, but, nothing worthy is elicited to disprove their evidence.

12. Coming to the evidence of Pw.4 who is said to have been panch for seizure panchanama, wherein the prosecution alleged that Pw.6 conducted the scene of ofence panchanama and seized (05) pronotes from the house of the accused, whereas, Pw.4 did not support the case of the prosecution and he deposed that police obtained his signature on blank paper and police never conducted any scene of ofence panchanama and also never seized any pronotes in his presence. The learned Assistant Public Prosecutor cross examined PW.4 under Section 154 of Indian Evidence Act, 1872 and Sec.162

Proviso of Cr.P.C at length, but, nothing worthy is elicited to disprove his evidence.

13. Pw.6 who is the investigation ofcer nevertheless deposed the chronological order of events occurred during the course of investigation.

14. On perusal of the entire evidence it is observed that except the evidence of Pw.1 and Pw.6 who are investigation ofcers, there is no other peace of evidence to say that the accused committed the ofence with which he was charged. Coming to the evidence of Pw.4 who is the panch witness for confession panchanama did not support the case of prosecution.

Except the evidence of Pw.6 who is Sub-Inspector, no other documents were fled by the prosecution to prove their case and even there is no corroborative evidence to show that accused herein is lending money to the

Vallabhi village people without having any valid licence with high rate of interest. When there are doubts regarding the involvement of the accused, the beneft of doubt should go to the accused as contemplated under criminal jurisprudence. Hence this court opines that it is not safe to convict the accused for the ofence punishable under Section 420 IPC, Sec.29 of

Pawn broker Act, 2002 and Sec.3(5)(b) of AP(Telangana Area) Money Lender 5 CC No.806 of 2014 dt.16-10-2019

Act-1349F, basing on the evidence of Pw.1 and Pw.6. Hence the prosecution miserably failed to prove the guilt of the accused beyond reasonable doubt.

Accordingly, this point is answered against the prosecution and accused is entitled for acquittal.

15.IN THE RESULT, Accused is found not guilty for the ofence u/Sec.420

IPC, Sec.29 of Pawn broker Act, 2002 and Sec.3(5)(b) of AP(Telangana Area)

Money Lender Act-1349F and accordingly, he is acquitted of the said ofence u/Sec.248(1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months from today u/Sec.437-A of Cr.P.C. The unmarked case property, if any, shall be destroyed, after lapse of appeal period.

Typed to my dictation, corrected and pronounced by me in the open court on this 16th day of October, 2019.

II ADDL. JUDL. MAGISTRATE OF I CLASS,

KHAMMAM.

Appendix of Evidence Witnesses examined: For Prosecution: For defence: P.W.1:B.Naresh, Police personal who assisted I.O -None- P.W.2:Chittoji Seshagiri, Borrower of Money P.W.3:Enugula Venkateswarlu, Panch for seizure panchanama and CDF, P.W.4:Shaik Lal Madhu, Panch for confession panchanama of accused, Pw.5: Bandam Ramu, Panch for seizure panchanama and CDF, Pw.6:J.Nageswara Rao, Investigation Ofcer,

Documents marked: For Prosecution: For defence: Ex.P1 is the Sec.161 Cr.P.C statement of Pw.2, --Nil-- Ex.P2 is the signature of Pw.3 on seizure panchanama, Ex.P3 is the signature of Pw.3 on CDF, Ex.P4 is the signature of Pw.4 on confession panchanama, Ex.P5 is the signature of Pw.5 on seizure panchanama, Ex.P6 is the signature of Pw.5 on CDF, Ex.P7 is the FIR, Ex.P8 is the CDF, Ex.P9 is the seizure panchanama, Ex.P10 is the confession panchanama of accused. Material objects marked: --NIL--

II ADDL. JUDL. MAGISTRATE OF I CLASS,

KHAMMAM

6 CC No.806 of 2014 dt.16-10-2019

CERTIFICATE

“Certifed that the above judgment was dictated and pronouned in the open court by Smt.M.Jayamma, II Addl.Judicial Magistrate of First Class,

Khammam(since dead)”

FAC:II Addl. Judl. Magistrate of I class, Date: KHAMMAM.

7 CC No.806 of 2014 dt.16-10-2019 8 CC No.806 of 2014 dt.16-10-2019 9 CC No.806 of 2014 dt.16-10-2019 10 CC No.806 of 2014 dt.16-10-2019

1 CC No.196 of 2014 dt.16.10.2019

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS:: AT KHAMMAM.

Present: Smt. M. Jayamma II A.J.M.F.C, Khammam.

Dated this the 16th day of October, 2019

C.C.No.196 of 2014

Between

The State, through S.I of Police, Mudigonda P.S

.... Complainant

and

1. Appana Saideshwar Rao @ Saidulu, S/o Venkateswarlu, 28 years, Padmasali, RTC driver, Musirabad Depot Staf o.982279 , R/o Vallabhi village.

2. Jalla agendra Babu, S/o Venkateswarlu, 20 Years, Padmasali, Student, R/o Vallabhi village.

2. Kanithi arasimha Chary, S/o Rangaiah, 22 Years, Vadrangi, R/o Vallabhi village.

4. Parsagani Pullaiah, S/o Gurvaiah, 50 Years, Gouda, Agriculture, R/o Vallabhi village.

5. Yesu ageswar Rao, S/o Venkanna, 25years, Gouda, Agriculture, R/o Vallabhi village.

6. Bellamkonda Bhaskar, S/o Venkanna, 21 years, Gouda, RMP Doctor, R/o Vallabhi village.

7. Pillutla arayana @ Venkatanarayana, S/o Keshavulu, 27 years, Mangali, R/o Vallabhi village. (The case against A7 has been split-up)

8. Pillutla Raghava, S/o Venkateswarlu, 28 years, Mangali, Agriculture, R/o Vallabhi village.

9. Sriramula Bhadraiah, S/o Madar, 28 Years, Mangali, Agriculture, R/o Gondriyala village of Kodad Mandal, algonda District.

10. Pillutla Venkateswarlu, S/o Appaiah, 27 Years, Mangali, RTC Conductor Khammam Depot, R/o Vallabhi village.

...Accused os.1 to 6 and 8 to 10

(The case against A7 has been split-up)

This case came before me for fnal hearing on 04-10-2019 in the presence of Assistant Public Prosecutor for the State and Sri I.Venkateswarlu, Counsel for the accused, having been heard and having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

1. This is a case of ofence punishable u/Sec.279 and 411 IPC, wherein the brief facts of the case are that, on the night of 20.01.2012 at about 12.00 noon, Lw.1/K.Veera Reddy, constable, P.S.Mudigonda, while conducting vehicle checking, found A1 in suspicious circumstance, when 2 CC No.196 of 2014 dt.16.10.2019

Lw.1 asked his vehicle documents, accused tried to escape from there, then

Lw.1 along with his staf chased A1 and on interrogation he confessed that he committed theft of Hero Honda Passion Plus Motor cycles(02), Hero Honda

Passion Pro Motor cycles(04), Bajaj discover Motor Cycles(04) and Pulsar

Motor cycles(02) at Hyderabad and sold the same to A2 to A10, total worth of Rs.1,40,000/-. Then Lw.1 lodged report against the accused persons.

Basing on the report given of Lw.1, Pw.5 registered a case in Cr. o.09 of 2012 for the ofence punishable u/Sec.279 and 411 IPC against the accused persons. On the interrogation of Pw.5 the accused confessed their guilt in the presence of Pws.1 and 2. The prosecution alleged that investigation ofcer had recovered the entire stolen property in this case from the possession of the accused under cover of the panchanama in the presence of Pws.1 and 2.

2.This court took the cognizance of the ofence punishable under Sec.

280 of Indian Penal Code against the accused. On appearance of the accused, copies of documents were furnished to them as contemplated u/Sec. 207 Cr.P.C.

2.The accused were examined under Sec.229 Cr.P.C. charge for the ofence punishable under Secs.279 and 411 of Indian Penal Code was framed against the accused persons, read over and explained to them in their vernacular language in which, they pleaded not guilty and claimed to be tried.

4.In support of its case, the prosecution had examined Pw.1 to Pw.5 coupled with exhibits Ex.P.1 to Ex.P.22. Pws.1 and 2 are the panch witnesses for confession and recovery panchanama, Pws.2 and 4 are the panch witness for crime detail form and Pw.5 is the investigation ofcer.

Lw.1/K.Veera Reddy reported died.

Ex.P1 is the signature of Pw.1 on confession cum seizure panchanama,

Exs.P2 to P9 are the signatures of Pw.1 on seizure panchanama, Ex.P10 is 3 CC No.196 of 2014 dt.16.10.2019 the signature on confession panchanama, Exs.P11 to P19 are the signatures of Pw.2 on seizure panchanama, Ex.P20 is the signature on CDF, Ex.P21 is the signature on CDF, Ex.P22 is the FIR, Ex.P22 is the CDF and Exs.P24 to

P22 are the confession and recovery panchanama of A1 to A10.

5.After completion of the prosecution evidence, the accused were examined under Sec.212 of Cr.P.C. They denied the incriminating evidence against them in the testimony of the prosecution witnesses and reported no defence evidence.

6.Heard both sides. Perused the documents available on record.

7.Now the point arises for consideration is :

“Whether the prosecution brought the accused (A1 to A6 and A8 to A10) to the home of the guilty for the ofence u/Sec.379 and 411 of IPC beyond all reasonable doubt?” POINT:

8.To prove the case, the prosecution relied on the evidence of Pws.1 to 5. The crucial point to be discussed is whether the said theft was committed by the accused herein. In this regard, the prosecution had relied on the evidence of Pws.1 and 2 who are panch witnesses for confession and recovery panchanama, they deposed that police never conducted confession cum seizure panchanama pertaining to this case and they did not support the case of prosecution and turned hostile. The learned Assistant Public

Prosecutor cross examined PWs.1 and 2, under Section 154 of Indian

Evidence Act, 1872 and Sec.162 Proviso of Cr.P.C at length, but, nothing worthy is elicited to disprove their evidence.

9. Pws.2 and 4 who are the panch witnesses for CDF deposed that police obtained their signatures on some written papers but they do not the contents which bear their signatures. The learned Assistant Public

Prosecutor cross examined PWs.2 and 4, under Section 154 of Indian

Evidence Act, 1872 and Sec.162 Proviso of Cr.P.C at length, but, nothing worthy is elicited to disprove their evidence.

4 CC No.196 of 2014 dt.16.10.2019

10. P.W.5, who is the investigation ofcer, who deposed the chronological order of events occurred during course of his investigation.

11. On careful perusal of the evidence adduced by the prosecution and the documents available on record, it can be noticed that the entire prosecution case is relied upon the confession panchanama, whereas the panch witnesses for confession panchanama turned hostile.

Pw.5/Investigating ofcer has deposed that the accused are the persons who tried to commit theft in this case, whereas Pws.1 and 2 who are crucial witnesses in this case did not support the version of Pw.5.

12. Pw.5 has also deposed that the accused confessed their guilt in his presence, which in fact has no bearing in the eye of Law in the guise of

Section 25 of Indian Evidence Act. The prosecution has failed to prove the panchanama with the help of emphatic evidence and the witnesses for panchanama have turned hostile. When there is no specifc evidence against accused holding to be responsible for the act of committing theft, as such the accused would be said to be not guilty of the ofence with which they are charged. When there are doubts regarding to the involvement of the accused, the beneft of doubt should be given to the accused as contemplated under criminal jurisprudence. Hence this court opines that it is not safe to convict for the ofence punishable u/Sec.279 and 411 of IPC basing on the evidence of Pw.5. Hence the prosecution miserably failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, this point is answered against the prosecution and in favour of accused. Hence, accused are entitled for acquittal.

12.IN THE RESULT: A1 is found not guilty for the ofence punishable u/Sec.279 of Indian Penal Code A2 to A6 and A8 to A10 are found not guilty for the ofence punishable u/Sec.411 of Indian Penal Code, and accordingly, he is acquitted u/Sec.248(1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months from today U/s.427-A of Cr.P.C.

5 CC No.196 of 2014 dt.16.10.2019

The un marked case property i.e. Motor cycles, shall be returned to the concerned, after proper identifcation and due acknowledgment, after lapse of appeal period.

Typed to my dictation, corrected and pronounced by me in the open court on this the 16th day of October, 2019.

II Addl. Judl. Magistrate of I class,

KHAMMAM.

Appendix of Evidence Witnesses examined: For Prosecution: For defence:

P.W.1:Banka Krishnaiah, Panch witness for confession and recovery panchanama P.W.2:Shaik Mastan Saheb, Panch witness for confession and recovery panchanama P.W.2:Kethi Ranga Reddy, Panch witness for CDF P.W.4:Battu Hanumantha Rao, Panch witness for CDF, P.W.5:P.Sarvaiah, Investigation Ofcer

Documents marked:

For Prosecution:For defence:

Ex.P1 is the signature of Pw.1 on confession cum seizure panchanama,

Exs.P2 to P9 are the signatures of Pw.1 on seizure panchanama,

Ex.P10 is the signature on confession panchanama,

Exs.P11 to P19 are the signatures of Pw.2 on seizure panchanama,

Ex.P20 is the signature on CDF,

Ex.P21 is the signature on CDF,

Ex.P22 is the FIR,

Ex.P22 is the CDF,

Exs.P24 to P22 are the confession and recovery panchanama of A1 to A10.

Material objects marked:

-- il--

II Addl. Judl. Magistrate of I class,

KHAMMAM

6 CC No.196 of 2014 dt.16.10.2019

CERTIFICATE

“Certifed that the above judgment was dictated and pronouned in the open court by Smt.M.Jayamma, II Addl.Judicial Magistrate of First Class,

Khammam(since dead)”

FAC:II Addl. Judl. Magistrate of I class, Date: KHAMMAM.

7 CC No.196 of 2014 dt.16.10.2019

TSKH030001812018

Presented on : 19-01-2018 Registered on : 19-01-2018 Decided on : 17-10-2019 Duration : 1 years, 8 months, 29 days

IN THE COURT OF

II Addl. Junior Civil Judge AT KHAMMAM URBAN ,KHAMMAM Presided Over by Mounika Ponnapalli

OS/100037/2018

Exhibit No.:

Gantala Anjaiah Chari Age: 33 Occupation : Address: R/o.Ramakrishnapuram village of Chinthakani Mandal, Khammam District

VERSUS Gantala Seetharamaiah and another Age: 45 Occupation : Address: R/o. Ramakrishnapuram village of Chinthakani Mandal, Khammam District.

----------------------------------------------------------------------------------------- Advocate for : VENKATESWARLU MEESALA Advocate for : appearing for Gantala Seetharamaiah and another: Advocate appearing for respectively.

ORDER

Plaintiff called present, and filed not press memo. Therefore the suit is dismissed for default.

Date : 17-10-2019

II Addl. Junior Civil Judge

KHAMMAM URBAN ,KHAMMAM

Dictated on :

Transcribed on : checked on : Signed on :

II Addl. Junior Civil Judge

KHAMMAM URBAN ,KHAMMAM

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