Masala Bujjappa

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OS.07/2011 of JCJ, IPM

FAIR

IN THE COURT OF THE JUNIOR CIVIL JUDGE, ICHAPURAM.

Present:- Sri. Masala Bujjappa,

Junior Civil Judge, Ichapuram.

Wednesday, this the 31st day of March, 2021.

Original Suit No.07 of 2011

Between

1. Lenka Bairagi, S/o late Lakshmayya, aged about 65 years, Cattle keeper, Resident of Thota veedhi of Rattakanna village, Ichapuram Town and Mandalam, Srikakulam District.

2. Lopinti Eswari, W/o late Ragavulu, aged about 42 years, Coolie, Resident at Thota veedhi of Rattakanna village, Ichapuram town and Mandalam, Srikakulam District. Plaintiffs

And

Bobbili Nrsimhulu, S/o late Bairodu, aged about 40 years, Mason, Resident of Thota veedhi of Rattakanna village, Ichapuram town and Mandalam, Srikakulam District. Defendant

This suit is coming on 30-03-2021 for final hearing before me in the presence of Sri.N.Viswanath and N.V.S.Ranga Rao, Advocates for plaintiff; and of Sri.S.Laxminarayana, Advocate for defendant: upon hearing arguments of both sides; and after considering the material on record, this court delivered the following:

J U D G M E N T

This is a suit initially filed for bare perpetual injunction by the plaintiff and later during the course of matter, the suit is amended for relief of deceleration of title also. Hence the suit is filed by the plaintiff seeking deceleration of title and consequential relief of mandatory injunction and permanent injunction and costs.

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2. The brief averments of the plaint are:

The 1st plaintiff is the father and the 2nd plaintiff is the daughter of the first plaintiff. The 1st plaintiff was given a patta by the Mandal Revenue Officer,

Ichapuram vide H.S.R.No.74/96 dated 14.08.1996 for Acre 0.02 cents of Survey

No.40/P and 2nd plaintiff was given a patta for 0.02 acres of house site Survey

No.40/P by the Mandal Revenue Officer, Ichapuram vide H.S.R No.75/76 dated 14.08.1996 and the both the sites are adjacent and they are situated in

Rattakanna Revenue village in Ichapuram Town Ichapuram Mandalam. Both the sites are the present suit schedule more fully described in the schedule of this plaint.

2(a)It is further stated in plain that the plaintiffs have been put into possession by the Revenue authorities on the date of issue of pattas and they have been in peaceful possession and enjoyment of the suit schedule since the date of pattas. The plaintiff have put up a thatched cattle shed and have been keeping the cattle and hayricks there and one year back shed was collapsed and now plaint schedule is a vacant site. For the last ten days ie., from 01.02.2011 the defendant who got large following has been threatening the plaintiff that he would trespass into the suit schedule and illegally occupy the same and 2 days back he cut the natural fence bushes of the plaintiffs around the suit schedule but he has never denied the title of the plaintiffs over the suit schedule. The first plaintiff is an old man and handicapped person and the second plaintiff is a widow and helpless women. The defendant started construction in the suit schedule from 05.12.2012 and a major portion of the building is completed and so this suit is filed for deceleration and for consequential relief of recovery of possession i.e.

directing the defendant to demolish the building constructed in the suit schedule and to hand over vacant possession of the suit schedule to the plaintiffs and if the defendant do not do so permitting the plaintiffs to demolish the building constructed in the suit schedule and to recover costs for the said purpose from the defendant.

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3.On the other hand the defendant who made his appearance choose to contest the suit and filed detailed written statements denying the allegations, contention and claim of plaintiff and submitted in this written statements that one Badrachalam vundralavaru swami was having vacant site ie., the suit schedule property measuring East to West 130 feet and North to south 6 feet width in Sy.No.38/4 which is his ancestral property, was sold to this defendant on 04-07-2010 for a valuable consideration of Rs.51,600/- which is situated in

Rattakanna Revenue village, Ichapuram vide a sale deed dated 04-07-2010 and immediately there after obtained possession and enjoyment of the same.

Subsequently one Koneti Lakshamamma, W/o late Pereavesulu swami, 2)Koneti

Gopi swami, S/o late Lokanadham swami and Koneti Savitramma, W/o late

Simhachalam swami sold their ancestral property, which is situated at Rattakanna

Revenue village, Ichapuram Mandal in Sy.No.38/4 measuring 130 feet length, towards East to West and North to south 11 feet width vide a sale deed dated 23- 01-2011 for a valuable consideration of Rs.1,08,550/- to this defendant and immediately there after obtained possession of the same and since then he has been in possession and enjoyment of the same with absolute rights. That fact was also known to the plaintiffs and they never rises any objection at any time. Thus this defendant has been in peaceful possession and enjoyment of the above said two items i.e., suit schedule property vacant site measuring 130 X 17 feet in

Rattakanna village. Moreover, prior to the purchase, the defendant’s vendors had been in possession and enjoyment of the said vacant site without any obstruction from others including these plaintiffs.

3(a)The defendant further submits that in pursuance of his possession and enjoyment of the suit schedule site in Sy.No.38/4 but not in Sy.No.40/P as alleged in the plaint schedule, he had spent huge amount of money in bringing the said site for construction of his house therein and that in recognition of his possession and enjoyment, the Revenue authorities issued a possession certificate, copy of

F.M.B pertaining to the Sy.No.38/4 and also issued a clarification ‘certificate to the same in favour of this defendant.

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3(b)The defendant further submit that the plaintiffs never been in possession and enjoyment of the plaint schedule property at any time much less on the date of the suit or subsequent to filing of this suit . The alleges documents that is the pattas are not relating to the suit schedule property which is in

Sy.No.38/4 but not in Sy.No.40/P. The said patta filed by the plaintiffs may be false and fabricated and created for the purpose of this suit. The defendant further submits that the plaintiffs filed this suit without possession and hence they cannot seek for an injunction against the lawful owner without seeking deceleration of title. The plaintiffs never raised any cattle shed in the plaint schedule property at any time. The plaintiff with an intention to knock away the defendant property with false pattas, filed suit with frivolous, false and baseless allegations. As the plaintiffs were never in possession of the plaint schedule property, they are not entitled to the equitable relief of injunction. The balance of convenience is also not in favour of plaintiffs and it is more in favour of this defendant. The survey

Number mentioned in the plaint schedule is wrong the boundaries as furnished in the schedule are not correct. The defendant submitted that the suit is filed only to harass this defendant.

3(c)The defendant further stated in his additional written statements that the plaintiffs and defendants are the residents of Rattakanna Village and the defendant has constructed in his own site in Sy.No.38/4 prior to the filing of the suit and the plaintiffs had not raised any objections for the construction of the building and acquiesced in the construction and plaintiffs are estopped from contending the same. The defendant further submit that the plaintiffs have been accustomed to file false and vexatious suit and have been causing mental agony to the defendant and who is reserving his right to claim damages.

4.Basing on the above pleadings and documents filed by both parties, the following issues were settled for trial:

1. Whether the plaintiff is having right title over the plaint schedule property?

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2. Whether the plaintiff is entitled for mandatory injunction as prayed for?

3. To what relief?

5(i)On behalf of plaintiffs, the 1st plaintiff himself examined as PW.1 and got marked Ex.A.1 and Ex.A.2 and also tendered the evidence of PWs 2 to 4. But, the counsel for the plaintiff filed memo on 19.11.2014 to eschew the evidence of

PW.3. Hence, the evidence of PW.3 is eschewed as per the docket order, dated 19.11.2014.

5(ii)At the behest of defendant, the defendant himself examined as DW.1 and got marked Ex.B.1 to Ex.B.7 and also tendered the evidence of attestors of

Ex.B.1 and Ex.B.2 sale deeds as DWs 2 to 4 and examined the vendor of of Ex.B.2 sale deed to the defendant as DW.5.

5(iii) Sri Bhagavan Das, Advocate Commissioner appointed by this Court is examined as CW.1 and got marked Ex.C.1 to Ex.C.3.

6(i)Heard arguments of the learned counsel for plaintiff and he submitted that the plaintiffs No.1 and 2 are the owners of the suit schedule property by virtue of pattas that they go from Government as those pattas of Ex.A.1 and

Ex.A.2 were issued as plaintiffs No.1 and 2 are landless poor persons and soon after they got pattas of Ex.A.1 and Ex.A.2 they erected a cattle shed, which subsequently get demolished gradually and thereafter the defendant who is a mighty person grabbed the suit schedule property and erected a foundation and he has nothing to do with the plaint schedule property and left with no option, the plaintiff initially filed the suit for permanent injunction, but subsequently amended the relief for declaration, recovery of possession and for mandatory injunction. He further argued that the plaintiff in order to prove their claim, the 1st plaintiff adduced his evidence as PW.1 and reiterated his contention by got marking Ex.A.1 and Ex.A.2 and thereby, the evidence of PW.1, which is not shattered by the defendant would prove the claim of the plaintiff’s and as the plaintiff also adduced 6

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the evidence of PW.2 and 4 who support the version of the plaintiff’s and also refuted the claim of the defendant that they purchased the suit schedule property from one Undrala Swamy and others and then, the plaintiff draws a support even from independent witnesses and as the evidence of plaintiff’s stood on high padestile and the evidence of the defendant as fell short, the claim of the plaintiffs can be sustained.

6(ii)He further argued that though the defendant adduced the evidence of

DWs 2 to 5 and the defendant being DW.1 admits that the suit schedule boundaries are one and the same and Ex.B.1, Ex.B.2 which are said to be a sale deeds does not contain survey numbers and Ex.B.3 to Ex.B.7 are invented to suit his convenience as they were brought after thought and the evidence of DWs 2 to 4 should not be believed as they fails to give proper details of the suit schedule and the alleged vendor of Ex.B.2, who gave evidence as DW.5 fails to prove her identity and therefore the defendant has not proved his vendors entitlement to the suit schedule property earlier and fails to prove there was such persons exists in the village earlier prior to the sale deed under Ex.B.1 and Ex.B.2. He further argued that the commissioner report shall not be taken into consideration and the evidence of CW.1 is showing that he did the measurements while executing the commissioner warrant at his whims and fancies and his claim that the suit schedule property not covered under Survey No.40P is a misnorm as he measured the land from the points, which are not authenticated and request the

Court by discarding the evidence of defendant, decree the suit in favour of the plaintiff.

7.On the other hand, the learned counsel for the defendant argued that the plaintiff is not at all absolute owner of the plaint schedule property and they were not issued with Ex.A.1 and Ex.A.2 for the suit schedule property and the suit schedule property located in Survey No.38-4, but not in Survey No.40-P and the defendant by adducing his evidence and by got marking Ex.B.1 to Ex.B.7 shown that plaint schedule property belongs to him and located in Survey No.38-4 and 7

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the said contention also supported by the Advocate Commissioner, who examined as CW.1 and Commissioner report squarely clinches the issue and therefore the plaintiffs claim cannot sustain and the claim of plaintiffs also disproved by the defendant. He further argued that the genesis of Ex.A.1 and Ex.A.2 pattas said to be issued by the Government should be suspected and they are not proved by calling the revenue officials and mere marking of Ex.A.1 and Ex.A.2 through PW.1 not at all sufficient when their genunity is disputed and Ex.A.2 ought not to be marked through PW.1 as it relates to 2nd plaintiff and Ex.A.1 and Ex.A.2, there is no other document for the plaintiffs and when the plaintiffs admits the possession of the defendant and in view of Ex.B.3 to Ex.B.7, when shows possession of the defendant over the plaint schedule property shows his possession is legal one as it would show that he got the same by virtue of Ex.B.1 and Ex.B.2 and mere fact of Ex.B.1 and Ex.B.2 not containing the survey number would not entitle to discard different version and the Ex.B.1 and Ex.B.2. He further argued that since

Ex.B.1 and Ex.B.2 is supported by Ex.B.3 to Ex.B.6 documents issued by the revenue authorities and when the defendant by adducing oral evidence of DWs 2 to 5, among them, DW.5 is one of the vendor whose evidence coupled with DW.3 to DW.4 support the version of the defendant and prays the Court to dismiss the suit with costs.

8.Heard both sides. Perused the record.

9. ISSUE NO.1:

Whether the plaintiff is having right title over the plaint schedule property?

9(a)It is the claim of the plaintiffs that the 1st and 2nd plaintiffs are father and daughters each other and they have been in possession and enjoyment of the plaint schedule property and the Government by recognizing their possession considering poverty has issued with patta under Ex.A.1 and Ex.A.2 on 14.08.1996 for Ac.0.02 Cents each and since then they have been in possession and 8

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enjoyment of the suit schedule property and both sites covered under Ex.A.1 and

Ex.A.2 are located side by side which is suit schedule property located in

Rattakanna village and the suit schedule property measured as East to West 38 feet and North to South 60 feet bounded by East:Vacant site of Durgasi

Chandrayya, which is under occupation of the defendant, West: Road, North:

Bajana Mandapam and vacant site and south vacant site of Panchayath and its building and soon after issuance of Ex.A.1 and Ex.A.2 they put up a thatched cattle shed and have been keeping cattle and hayricks there in the suit schedule and about four years back to the filing of the suit, the shed was collapsed and since then it is a vacant site, but on 01.02.2011, the defendant trespassed into the suit schedule and occupied it and prior to two days of filing of the suit, he has removed the fences, bushes for making some construction and left with no option, the plaintiffs filed the suit.

9(b)In order to prove the claim of the plaintiffs, the 1st plaintiff tendered his evidence as PW.1 and reiterated above contention besides got marking Ex.A.1 and

Ex.A.2 pattas said to have been issued by the Government. PW.1 was cross examined by the defendant counsel and during the course of cross examination,

PW.1 admitted that he cannot say the survey number and patta number of the suit schedule property and he has not mentioned the survey number and patta number mentioned in the plaint and also in his chief affidavit. These admissions shows that there was a some dilama entertained by the plaintiffs as to the suit schedule survey number. When that is so, it is the claim of the defendant that the suit schedule property belongs to the defendant as he got purchased the same from his vendors vendor under Ex.B.1 and Ex.B.2 and from the date of purchase under Ex.B.1 and Ex.B.2, he has been in possession and enjoyment of the plaint schedule property and the plaint schedule property not located in Survey No.40-P as contended by the plaintiff and it is located in Survey No.38-4.

9(c)From the contentions of both sides, it emerges that there is a dispute as to location of the suit schedule property in particular survey number. It is the claim of the plaintiffs as per plaint that the suit schedule property located in 9

OS.07/2011 of JCJ, IPM

Survey No.40-P and whereas the defendant claims that it is located in Survey

No.38-4 of Ratna Kanna village. Ex.A.1 and Ex.2 shows survey number 40-P, but whereas Ex.B.3 to Ex.B.7 which are said to be issued by the revenue authorities, which authenticity not at all questioned by the plaintiff would show that the plaint schedule property located in Survey No.38-4 and clarification issued under Ex.B.3,

Ex.B.4 showing that the plaint schedule property located in Survey No.38-4 belongs to the defendant and pattas of Ex.A.1 and Ex.A.2 no way connected to the suit schedule property.

9(d)Even in order to clinches the issue, it is pertinent to discuss about the

Advocate Commissioner report and the evidence of Advocate Commissioner. The

Advocate Commissioner who given a report adduced his evidence as CW.1 and got marked Ex.C.1 to Ex.C.3 documents and his evidence and Ex.C.1 commissioner report would show that he executed a commissioner warrant of Ex.C.3 in the presence of plaintiffs and defendant and their counsels and after measuring the land, he found the suit schedule located in Survey No. 38-4 bounded by East:

Back yard with foundation of Bobbili Narasimhulu i.e., defendant, South: Koneti

Ganesh foundation, West: Front yard of Bobbili Narasimhulu, North: Vacant site of

Bobbili Narasimhulu and Bajana Mandir. The Commissioner warrant and evidence of CW.1 challenged by the plaintiff in respect of taking the point of the survey stone of the suit schedule property survey number. The CW.1 admits in the cross examination that the surveyor shown the survey stone of the suit schedule property, which made him to identify the suit schedule property located in Survey

No.38-4 and he has not mentioned the same in the Commissioner Report and then it is suggested by the plaintiff that survey stone was not identified properly and suit schedule property situated in Survey No.49-P but the said suggestion denied by the Commissioner. But, in the further cross examination by the defendant counsel CW.1 stated that he identified the Survey No.40-P, but he does not mentioned the same in his report, since it is out of scope of commissioner warrant and Ex.A.1 and Ex.A.2 boundaries are one and the same as mentioned in his report and in ABCD plan that he filed and stated that he annexed the same along 10

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with FMB pertaining to the survey number 38-4 and 40-P. This evidence of CW.1 suggest that both the parties identified the plaint schedule, which boundaries are one and the same and on thorough verification as per CW.1 and surveyor the said suit schedule property found in the 38-4. Therefore, in view of the commissioner report, it suggesting that the suit schedule property is located in Survey No.38-4, but not 40-P. Even Ex.B.6 revenue map filed by the defendant clearly shown the location of the suit schedule property in Survey No.38-4 and Survey No.40-P is located on the other side of the road at far distance. Taking all of above facts together, it would show the plaint schedule property has located in Survey No.38- 4 and thus, Ex.A.1 and Ex.A.2 which are contains different survey number as no bearing and connectivity to the suit schedule property.

9(e)Even the defendant by adducing his evidence and by tendering the evidence of DWs 2 to 4 and also DW.5 who is one of the vendor of Ex.B.2 placed the evidence that under unregistered documents of Ex.B.1 and Ex.B.2, he got purchased the plaint schedule property from vendors including DW.5 who is one of the vendor of Ex.B.2 and since then, he has been in possession and enjoyment of the property. Whereas, the plaintiff who claims that just prior to filing of the suit, the defendant trespassed into the plaint schedule and cleared the bushes when cross examined, he stated in the cross examination as a PW.1 that “as on the date of filing of the suit, the defendant laid a foundation” and this admission would show that by virtue of Ex.B.1 and Ex.B.2, the defendant got possession of plaint schedule, he has been in possession much prior to filing of the suit. That fact of possession assumes greater importance as the plaintiff suppressed the fact of possession of different initially at the time of filing suit and thereafter though he claims just prior to two days of the filing of the plaint, the defendant has cleared the bushes is an indication of suppression of fact and this would show genunity of the defendant possession as it shows the defendant got such possession by virtue of Ex.B.1 and Ex.B.2. No doubt it may contended by anybody that Ex.B.1 and

Ex.B.2 are unregistered documents cannot be looked into, but such contention cannot sustain in relation to nature of possession got by the defendant by virtue of 11

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Ex.B.1 and Ex.B.2 though they are unregistered documents and more so Ex.B.1 and Ex.B.2 got backing from Ex.B.3 to Ex.B.6 revenue documents to fortify defendant’s possession.

9(f)Further, the defendant who refuted the contention of the petitioner as adduced his evidence as DW.1 reiterating written statement contentions and claimed that he got the suit schedule property by virtue of Ex.B.1 and Ex.B.2 transaction and he by tendering DW.2 to 4 who are attestors of Ex.B.1 and Ex.B.2 proved that there was such transaction and by adducing the evidence of DW.5 who is one of the vendor of Ex.B.2 confirmed the transaction, which suggest induction of defendant into the possession of the suit schedule property.

Therefore, the contention of the plaintiff that there was no such charectors of vendors of Ex.B.1 and Ex.B.2 cannot sustain. When the documents of Ex.B.1 to

Ex.B.7 of the defendant stood at good esteem, but the Ex.A.1 and Ex.A.2 documents of the plaintiff were alone not at all sufficient and they were not authenticated by its author or any of the revenue officials who are empowered and proper to speak on them. Apart from Ex.A.1 and Ex.A.2 there is no other document to the plaintiff to substantiate his contention or to prove his nature of possession. Hence, the plaintiff evidence not inspiring and also evidence of the plaintiff on record has refuted by the defendant. Thus, the plaintiffs are not entitle for the declaration of right, title over the suit schedule property.

Accordingly, this issue is answered against the plaintiffs.

10. ISSUE NO.2:

Whether the plaintiff is entitled for mandatory injunction as prayed for?

Before adverting to answer the above issue, this Court feels that there

ought to be an issue shall be framed as to eviction of the defendant, but after considering the entire record, this Court feels that the said eviction issue would be integral part of the above issue No.2, as such no specific issue as to seeking the 12

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relief of the eviction of the defendant need to be framed and thus, this Court inclines to answer the Issue No.2 even touching the entitlement of eviction.

10(a) In view of the discussion made under the issue No.1, this Court feels that the plaintiffs are not entitle for the injunction and accordingly, they are also not entitled for eviction of the defendant from the suit schedule property.

Hence, this issue accordingly answered against the plaintiffs.

11.Issue No.3

To what relief?

In the result, the suit is dismissed without costs.

Typed to my dictation, corrected and pronounced by me in open court this the 31st day of March, 2021.

JUNIOR CIVIL JUDGE

ICHAPURAM

APPENDIX OF EVIDENCE

Witnesses Examined

For Plaintiffs : For Defendant:

PW-1Lenka BairagiDW-1 Bobbili Narsimhulu @ Narasimham PW-2Reyya DomburuDW-2 Chidipothu Dillirao PW-3Matta Tellayya (eschewed)DW-3 Ladi Baburao PW-4Matta NarsimhuluDW-4 Ladi Chandrayya DW-5 Koneti Lolakshamma

Court witness:

CW-1Bhagavan Das, Advocate.

Documents Marked

For Plaintiffs:

Ex.A1House site patta dated 14-08-1996 issued in favour of the 1st plaintiff. Ex.A2House site patta dated 14-08-1996 issued in favour of the 2nd plaintiff.

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For Defendant:

Ex.B1Sale deed dated 04-07-2010 executed by Badrachalam Vudaralavaru Swamy in favour of the Bobbili Narasimham for Rs.51,600/- and stamp duty and penalty paid on 18-04-2017. Ex.B2Sale deed dated 23-01-2011 executed by Koneti Lolakshamma, Koneti Gopiswamy and Koneti Savitramma in favour of Bobbili Narsmiham for Rs.1,08,550/- and stamp duty and penalty paid on 18-04-2017. Ex.B3Possession certificate dated 01-03-2011 issued by M.R.O, Ichapuram in Sy.No.38/4. Ex.B4Survey Number clarification certificate issued by M.R.O, Ichapuram dated 11-04-2011. Ex.B5Rough sketch of Sy.No.38, 39 and 40, dated 11-04-2011 issued by M.R.O, Ichapuram Ex.B6One photographs of suit schedule property along with negatives. Ex.B7Cash receipt dated 20-02-2011.

For Court:

Ex.C1Commissioner Report. Ex.C2Rough plan filed by the commissioner. Ex.C3Commissioner warrant.

JUNIOR CIVIL JUDGE

ICHAPURAM

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CC.261/2019

Fair

CALENDAR AND JUDGMENT

Calendar Cases tried by the Judl. Magistrate of 1st Class, Ichapuram. Date of Offence :19-07-2019 Date of Complaint or Report :19-07-2019 Date of Apprehension of accused : A1 to A3:20-07-2019 A4 :21-07-2019 A5:07-08-2019

Date of Release on Bail:Sec.41-A of CrPC notice served and let of by police on 20-07-2019, 21-07-2019 and on 07-08-2019. Date of Commencement of trial:27-01-2021 Date of Close of trial:31-03-2021 Date of Sentence or order:31-03-2021 Explanation for delay:Due to non production of witnesses by prosecution. Name of the complainant:State represented by the S.I of Police,

Ichapuram Town PS.

Calendar and Judgment in C.C.No.261/2019 in Cr.No.77/2019 on the file

of Judl. Magistrate of 1 st Class Court, Ichapuram.

Name and Address of the accused

A1.Rakesh Patnayak, S/o Rabeendranadh Patnayak, 37 years, Lorry Driver, Patnaik by caste, Puyintala (v), Ganjam District, Odisha.

A2.Yarra Appanna, S/o Gurumurthy, 35 years, Lorry Driver, Aadhiaandra (SC) by caste, Aadiandra street, Tekkali (v), Srikakulam District.

A3.Dubba Anjaneyulu, S/o Apparao, 45 years, Lorry Driver, Srisaina by caste, Sheri Street, Tekkali (v), Srikakulam District.

A4.Krishna Chandra Jena, S/o Srinibasha Jena, 64 years, Business, Kondayat by caste, Kantabania (v), Bajrakot (Post), Krishnaprasdgado P.S. East Puri Block, Puri District, Odisha. Owner of tipper OD 07 Z 9929.

A5.Kancharana Bhujangarao, S/o Simchalam, 40 years, Business, Kalinga by caste, D.No.15-1-91/A, Maruthinagar, Palasa. Owner of Tippers AP 30 TC 4594 and AP 30 TC 4592.

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Offence:- :U/Sec. 447, 379 r/w 109 of IPC and Sec 3(2)of P.D.P.P Act

Finding:- :Found not guilty.

Sentence or order:-

In the result, accused No.1 to 5 are found not guilty for the offence punishable under Sections 447 and 379 r/w 109 of IPC and

Sec.3 (2) of P.D.P.P Act and they are acquitted U/Sec.248(1) of Cr.P.C.

The tipper lorry bearing No.OD 07 Z 9929 which was given to the interim custody of A4 vide Crl.MP.No.950/2019 dated 03-09-2019 and the other two tippers bearing No.AP 30 TC 4594 and AP 30 TC 4592 which were given to the interim custody of A5 vide

Crl.M.P.No.952/2019 dated 19-08-2019 shall holds good. The

unmarked non valuable case property if any shall be destroyed after expire of appeal time. A1 to A5 are directed to execute self bond for

Rs.5000/- each with single surety like some as required U/sec.437-A of

CrPC in the event of prosecution wants to prefer appeal against this judgment and bonds and bail bonds of accused No.1 to 5 shall stands cancelled after laps of appeal time.

JUDL. MAGISTRATE OF 1ST CLASS

ICHAPURAM

Copy to

The Hon'ble 1st Addl. District and Sessions Judge's court, Srikakulam.

The Superintendent of Police, Srikakulam.

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CC.261/2019

FAIR

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

ICHAPURAM.

Present:- Sri.Masala Bujjappa, Judl. Magistrate of 1st Class, Ichapuram

Wednesday, this the 31st day of March, 2021.

C.C.No.261/2019

Between:

The State rep. by the Sub Inspector of Police, Kaviti Police Station. …Complainant.

And:

1.Rakesh Patnayak, S/o Rabeendranadh Patnayak, 37 years, Lorry Driver, Patnaik by caste, Puyintala (v), Ganjam District, Odisha.

2.Yarra Appanna, S/o Gurumurthy, 35 years, Lorry Driver, Aadhiaandra (SC) by caste, Aadiandra street, Tekkali (v), Srikakulam District.

3.Dubba Anjaneyulu, S/o Apparao, 45 years, Lorry Driver, Srisaina by caste, Sheri Street, Tekkali (v), Srikakulam District.

4.Krishna Chandra Jena, S/o Srinibasha Jena, 64 years, Business, Kondayat by caste, Kantabania (v), Bajrakot (Post), Krishnaprasdgado P.S. East Puri Block, Puri District, Odisha. Owner of tipper OD 07 Z 9929.

5.Kancharana Bhujangarao, S/o Simchalam, 40 years, Business, Kalinga by caste, D.No.15-1-91/A, Maruthinagar, Palasa. Owner of Tippers AP 30 TC 4594 and AP 30 TC 4592. … Accused

This case is coming on 31-03-2021 for final hearing before me in the presence of Asst. Public Prosecutor for State; and of

Sri. Manoj Kumar Samantho, Advocate for Accused No.1 to 5; and upon hearing, and having stood over till this day for consideration, this court delivered the following:

J U D G M E N T

The Sub Inspector of Police, Kaviti Police Station has filed charge sheet in Crime No.77/2019 Under Sec.447 and 379 r/w 109 of IPC & 4

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Section 3 (2) of P.D.P.P Act against accused No.1 to 5 seeking to convict the accused No.1 to 5.

2.The Brief facts of the prosecution case are :

2(a)A-4 owned a Tipper OD 07 Z 9929 and employed A-1 as driver. A-5 owned two tippers AP 30 TC 4594 and AP 30 TC 4592 and employed A-2 and A-3 as drivers. A-1 to A-3 followed the instructions of A-4 and A-5 and took the vehicles for transporting the river sand illegally meant for selling. Usual, on 19.07.2019, on the directions of A-4 and A-5, the A-1 to A-3 trespassed into the river bed of river Bahuda at Edupuram with the vehicles, got excavated the sand with some labour causing damage to the public property. A-1 started to transport the sand to Jalantrakota village of Kanchili Mandal and A-2 and A-3 started to transport the sand to the Housing colony at Kosangipuram village of Palasa

Mandal.

2(b)On a tip-off about the transporting of the sand, LW.8/

K.Vasunarayana summoned LW.1/KarakavalasaNarayanamurthy,

LW-2/Vajja Giribabu to Police Station, conducted vehicle checking along with

LW.5/B.Kishore, LW-6/M.Ravikumar and LW-7/T.Umamaheswararao in the presence of LWs 1 and 2 on NH-16 road at Kojjiriya junction of Kaviti Mandal and found the sand laden tippers of A-1 to A-3 at 17:30 Hrs. got recorded the disclosure statement of A-1 to A-3, took them into custody and seized the three tippers under the cover of mediators report drafted from 17:30 Hrs. 18:30 Hrs.

and brought the vehicles to Police Station.

2(c)Basing on the mediators report, LW.8 registered the FIR in

Cr.No.77/2019, U/Sec.447 and 379 r/w 109 of IPC & Sec.3(2) of P.D.P.P. Act, 1984 on 19.7.2019 at 19:30 Hrs. and investigated. During course of investigation,

LW.8 served notices U/Sec.41-A of Cr.P.C. on A-1 to A-3 on 20.07.2019,

A-4 on 21.07.2019 and got recorded the disclosure statement of A-5 in 5

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the presence of LW-3/Sama Nagaraju and LW-4/Gurrala Divakar on 07.08.2019, served notice U/Sec.41-A of Cr.P.C and obtained acknowledgments and after completion of investigation, LW.8 filed charge sheet.

3.This case was taken on file for the offence punishable

U/Sec.447a and 379 r/w 109 of IPC and Sec.3 (2) of P.D.P.P Act against accused 1 to 5 arraying LW.1/Karakavalasa Narayanamurthy,

LW-2/Vajja Giribabu, LW-3/Sama Nagaraju and LW-4/Gurrala Divakar aremediators,LW.5/B.Kishore,LW-6/M.Ravikumarand

LW-7/T.Umamaheswararao are Police personnel of Kaviti Police Station and LW.8/K.Vasunarayana is Investigating Officer stood as prosecution witnesses.

4.On the appearance of accused No.1 to 5, case copies were furnished to them U/Sec.207 of Cr.P.C and they were examined

U/Sec.239 of Cr.P.C by explaining the substance of accusation against them and charges for the Section 447 and 379 r/w 109 of IPC and

Sec.3(2) of P.D.P.P Act has been framed, read over and explained to them in Telugu, for which, they pleaded not guilty and claimed to be tried.

5.During the course of trial, though Prosecution cited 8 witnesses, but examined LW.2/Vajja Giribabu as PW-1, LW-3/Sama

Nagaraju as PW-2, LW-1/Karakavalasa Narayanamurty as PW-3,

LW-4/Gurrala Diwakar as PW-4 and LW-8/K.Vasunarayana as PW-5 and got marked Ex.P1 to P8. The remaining witnesses that is

LW.5/B.Kishore, LW-6/M.Ravikumar and LW-7/T.Umamaheswararao were given up by the prosecution.

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6.After completion of trial, Accused No.1 to 5 were examined

U/Sec.313 of Cr.P.C and incriminating material were read over and explained to them in Telugu, for which, they denied and reported no defence evidence. No Exhibits were marked in “D” series.

7.The learned A.P.P. has continuously absent for submitting arguments, as such, the arguments treated as heard for the prosecution.

8.On the other hand, the defence counsel argued that the prosecution story cannot be believed and PWs 1 and 3 though they are

V.R.O’s of Kaviti Mandal, but they were not invited to the place of arrest by issuing the summons and such fact also admitted by them and more so there is an in consistence between their evidence as to their reaching to the place of arrest, which throws suspicion on the case of the prosecution. He further argued that PW.5 who did investigation also admits that he did not issued any written summons to the PWs 1 and 3 and so also PWs 2 and 4 and if that is so, the case of the prosecution cannot be believed merely because prosecution witnesses are official witnesses. He further argued that the place of arrest is a busy locality as admitted by the PWs 1, 3 and 5 and if that is so nothing would prevent PW.5 to pickup local persons as a mediators to assure his arresting A.1 to A.3 and seizure of vehicles are genuine one.

a)The learned defence counsel further argued that though the prosecution tenders the evidence of PW.2 and PW.4 to prove the confession of A.3 and A.4, but the evidence of PWs 2 and 3 in the chief itself fell insufficient as PW.4 stated that the lorry drivers confessed 7

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before them about the offence recorded as per Ex.P.2, but that is not

the case of the prosecution and prays the Court to ignore the prosecution witnesses evidence. He further argued that, the PW.5 did feeble and table made investigation and he does not visited the river bed Edupuram to ascertain whether there was such act of excavation of the sand, causing damage to the public property and if he does not visited the said place and solely basing upon the confession of the accused, which are hit by Section 25 and 26 of Indian Evidence Act, 1872 cannot made anyone to believe the case of the prosecution and prays the Court to discard the evidence of PWs 1 to 5 and acquit the accused.

9.Heard. Perused the record.

10.Now the point for determination is :

1. Whether prosecution proved that the accused No.1 to 3 being a drivers of the tippers bearing Nos.OD 07 Z 9929, AP 30 TC 4594 and AP 30 TC 4592 on the instigation of accused No.4 and 5 who ares owners of the above tippers have trespassed into the river of Bahuda at Edupuram village for excavating the sand for their wrongful gain?

2. Whether the prosecution proved that accused committed the theft of the sand and caught by the police while being transporting it on 19.07.2019?

3. Whether prosecution proved that accused are committed mischief to the river of Bahuda at Edupuram resulting into damage to the river bed which is public property?

4. Whether the prosecution able to proves the guilt of the accused No.1 to 5 for the offence under sections 447 and 379 r/w 109 of IPC and Sec.3(2) of P.D.P.P Act beyond all reasonable doubts?

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11. POINTS:

1. Whether prosecution proved that the accused No.1 to 3 being a drivers of the tippers bearing Nos.OD 07 Z 9929, AP 30 TC 4594 and AP 30 TC 4592 on the instigation of accused No.4 and 5 who ares owners of the above tippers have trespassed into the river of Bahuda at Edupuram village for excavating the sand for their wrongful gain?

2. Whether the prosecution proved that accused committed the theft of the sand and caught by the police while being transporting it on 19.07.2019?

3. Whether prosecution proved that accused are committed mischief to the river of Bahuda at Edupuram resulting into damage to the river bed which is public property?

4. Whether the prosecution able to proves the guilt of the accused No.1 to 5 for the offence under sections 447 and 379 r/w 109 of IPC and Sec.3(2) of P.D.P.P Act beyond all reasonable doubts?

The above points are taken together and answered below.

12.It is the case of the prosecution that, on the abetment of A- 4 and A-5, the A-1 to A-3 took the tippers bearing Nos.OD 07 Z 9929,

AP 30 TC 4594 and AP 30 TC 4592 to the river bed of Bahuda at

Edupuram village on 19.07.2019, got excavated the sand with some labour without any authorization and thereby damaged the public property to transport the sand to various destination points meant for selling and at 17:30 Hrs. found transporting the sand on NH-16 road at

Kojjiriya junction of Kaviti Mandal.

a)In order to prove the case of the prosecution, the prosecution adduced the Village Revenue Officers by name Vajja

Giribabu who arrayed as LW-1 and his evidence as PW-1 in chief examination goes to show that on 19.07.2019 at about 3.00 P.M., while 9

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he was present in Tahsildar office, Kaviti, the Tahsildar has received a phone call from LW.8/Vasunarayana (PW.5) who is S.I. of Police and requested to depute the staff to assist them in detecting the crime as

LW.8 got credible information and accordingly, his Tahsildar instructed him and LW.1 (PW.3) to go to Kojjiriya junction for assisting the Police and they together went to the Kojjiriya junction and reached there at 5.30 p.m. and by that time, they went there, LW.8 already checking the lorries and in the meanwhile three lorries, which were halted by their drivers abruptly got down from their respective lorries and tried to ran away from the said place, but LW.8 and his staff chased and nabbed them and on interrogation, those drivers who are A.1 to A.3 confessed that at the instance of their lorry owners, they are transporting the sand illegally without any bills and reveals their lorry owners names and thereafter LW.8 prepared a mediation report in which he signed. Through PW.1 the mediator report got marked as

Ex.P.1.

b)Whereas, another V.R.O. namely K.Narayana Murthy who arrayed as LW.1 chosen to be examined as PW.3 and his evidence in chief examination goes to shows that on 19.07.2019 at about 4.00

P.M., while he was present in Tahsildar office, Kaviti, the Tahsildar has received a phone call from LW.8/Vasunarayana (PW.5) who is S.I. of

Police and requested to depute the staff to assist them in detecting the crime as LW.8 got credible information and accordingly, his

Tahsildar instructed him and PW.1 to go to Kojjiriya junction for assisting the Police and they together went to the Police Station of

Kaviti around 4.00 p.m and from there, they along with LW.8 (PW.5) went to the Kojjiriya junction and reached there and thereafter some time, out of suspicion Police has stopped three lorries which were 10

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coming from Ichapuram to go towards Palasa and those three lorries, which were halted by their drivers abruptly got down from their respective lorries and tried to ran away from the said place, but LW.8 and his staff chased and nabbed them and on interrogation, those drivers confessed that at the instance of their lorry owners, they are transporting the sand illegally without any bills and reveals their lorry owners names and thereafter LW.8 prepared a mediation report in which he signed. It is claimed by the PW.3 that he can identify A.1 and

A.2 alone as a drivers of the vehicles and reported that he cannot identify another driver.

c)Before discussing about the cross examination of PW.1, it is need to look into the veracity of PWs 1 and 2 by weighing their chief examination itself. The PW.1 claims that at 4.00 P.M., the Tahsildar was received a phone call from PW.5 (LW.8) for deputing the revenue staff and whereas PW.3 claims that at 3.00 P.M., his Tahsildar received a phone call from PW.5 for deputing revenue staff. So, there is a time difference about the receipt of phone call by his Tahsildar for deputing the PWs 1 and 2 for assisting the Police. The another discrepancy in the nature of contradiction emerged from the evidence of PWs 1 and 2 as to their approaching the Police upon instructions from Tahsildar.

PW.1 claims in the chief examination that himself and PW.2 directly went to the Kojjiriya junction from Tahsildar Office and claimed that by that time, the Police already caught the lorries. Whereas PW.2 stated that himself and PW.1 upon the instructions, they went to the Kaviti

Police station and from there, they along with PW.5 (LW.8) and constables together went to the Kojjiriya junction and thereafter some time due to suspicion, they stopped the lorries in question. This discrepancy of those two official witnesses throws some skepticism 11

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over the case of the prosecution and therefore, the evidence of PWs 1 and 2, despite they are revenue officials need to be scrutinized with great care and caution.

d)Let us see, their cross examination. In the cross examination of PWs 1 and 2, they admit that their Tahsildar did not given any written instructions to go to Kaviti Police station for assisting them in relation to the crime and also admitted that Police did not issued any written summons to them inviting them to act as a mediators and further admitted that the Kojjiriya junction is a busy locality. While that is so, PW.5 who did investigation though deposed that on 19.07.2019 at 5.30 p.m., he received a credible information and thereafter he secured the PWs 1 and 3 and they together along with other Police went to the Kojjiriya junction and while conducting vehicle checkup, he nabbed with three lorries laden with sand and the lorry drivers on questioning confessed that they excavated the sand at

Bahuda river at the instance of their owners and transported the sand without any bills and as such, he drafted the mediation report and thereafter he registered the crime. But in the cross examination, he too admitted that he did not issued written summons to PWs 1 to 4 to act as mediators for arrest of the accused and seizure of sand lorries and denied that Kojjiriya junction is a busy locality. Further in the cross examination, he stated that he had not secured local persons of

Kojjiriya junction to act as a mediators for the alleged seizure of sand vehicles and nabbing the A.1 to A.3.

e)From the cross examination of PWs 1, 3 and 5, it emerges that Kojjiriya junction is a busy locality and despite it is bustling area, the PW.5 not made any efforts to secure local persons as a mediators.

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Not securing the local persons as a mediators though the PWs 1 and 2 admitted that the Kojjiriya junction is a bustling area, the Ex.P.1 mediator report cannot get assurance to believe its genunity.

Moreover, it is admitted by PWs 1, 3 and 5 that PWs 1 and 2 are not issued with summons by PW.5 inviting them to act as a mediators. Non issuance of the summons to the PWs 1 and 3 and not securing local mediators at Kojjiriya junction is a kind of impediment on the case of the prosecution under the facts and circumstances are such and therefore, the doubt would naturally arise over the case of the prosecution.

f)Further, though prosecution tendered the evidence of

S.Nagaraju (LW.3) as PW.2 and G.Divakar (LW.4) as PW.4 as another mediators for confession of owners of the crime vehicle lorries, but despite they spoke that on 07.08.2019 on the instructions of the

Tahsildar around 12.30, they went to the Police station and there they seen owners of the lorry making confession about engaging their vehicles for transportation of the sand and such confession though recorded which is Ex.P.2, but they too admitted in the cross examination that they did not issued with summons to act as a mediators and quite strangely PW.5 deposed that lorry drivers two in number has told that at the instance of their lorry owners, they transported the sand from river bed of Bahuda would show that Ex.P.2 confessional statement is also got up document and moreover both

Ex.P.1 and Ex.P.2 cannot be admissible in evidence as they were made in the presence of Police that is PW.5 who empowered to charge the accused. Hence, the case of the prosecution must fail.

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g)In view of the above discussion, I find that there is no strength in the case of the prosecution and the prosecution has not placed the satisfactory evidence to inspires the Court that the accused committed the offence, as such, the indictment is not proved as the case is doubtful.

Hence, these points No.1 to 4 accordingly answered against the prosecution.

In the result, accused No.1 to 5 are found not guilty for the offence punishable under Sections 447 and 379 r/w 109 of IPC and

Sec.3 (2) of P.D.P.P Act and they are acquitted U/Sec.248 (1) of Cr.P.C.

The tipper lorry bearing No.OD 07 Z 9929 which was given to the interim custody of A4 vide Crl.MP.No.950/2019 dated 03-09-2019 and the other two tippers bearing No.AP 30 TC 4594 and AP 30 TC 4592 which were given to the interim custody of A5 vide

Crl.M.P.No.952/2019 dated 19-08-2019 shall holds good. The unmarked

non valuable case property if any shall be destroyed after expire of appeal time. A1 to A5 are directed to execute self bond for Rs.5000/- each with single surety like some as required U/sec.437-A of CrPC in the event of prosecution wants to prefer appeal against this judgment and bonds and bail bonds of accused No.1 to 5 shall stands cancelled after laps of appeal time.

Typed to my dictation corrected and pronounced by me in open court this the 31st day of March, 2021.

JUDICIAL MAGISTRATE OF 1 st CLASS

ICHAPURAM

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APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence:

PW-1Vajja GiribabuNil PW-2S.Nagaraju PW-3Karakavalasa Narayanamurthy PW-4Gurrala Diwakar PW-5K.Vasunarayana

Exhibits marked

For Prosecution:

Ex.P1Mediators report. Ex.P2Confessional statement, dated 07.08.2019. Ex.P3Signature of PW.3 on confessional mahazarnama. Ex.P4First Information Report. Ex.P5Confessional statement of A.5. Ex.P6Official memo of this Court, dated 30.08.2019 for release of the sand relating to the crime vehicle bearing No.AP 30 TC 4592. Ex.P7Official memo this Court, dated 30.08.2019 for release of the sand relating to the crime vehicle bearing No.AP 30 TC 4594. Ex.P8Official memo of this Court, dated 04.09.2019 for release of the sand relating to the crime vehicle bearing No.OD 07 X 9929.

For Defence: Nil

Material objects

Nil

JUDICIAL MAGISTRATE OF 1 st CLASS

ICHAPURAM

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CC.NO.48/2018

FAIR

CALENDAR AND JUDGMENT

Calendar Cases tried by the Judl. Magistrate of 1st Class, Ichapuram. Date of Offence : 26-12-2017 Date of Complaint or Report : 26-12-2017 Date of Apprehension of accused : 02-02-2018 Date of Release on Bail: 41-A CrPC Date of Commencement of trial: 12-02-2020 Date of Close of trial: 01-04-2021 Date of Sentence or order: 01-04-2021 Explanation for delay: Due to non Production of witnesses by prosecution. Name of the complainant: State, represented by the S.I of Police,

Ichapuram Town PS. Crime No.: 66/2017

Calendar and Judgment in C.C.No.48/2018 on the file of Judl. Magistrate

of 1st Class Court, Ichapuram.

Name and Address:Palepu Polarao, S/o Bhagirathi, 48 years, Nayee Brahmin by caste, D.No.1-11, Narsipuram, of the accused Kasibugga Town, Palasa Mandal. Badge No.6301993. Driver of Tractor bearing No. AP 30 V 5757 T AP 30 V 5759.

Offence:U/Sec.304-A of IPC and Sec.134 (b) & 184 of M.V.Act.

Finding:-: Not guilty.

Sentence or order:- In the result, accused found not guilty for the offence punishable under Sec.304-A of IPC & Sec.134 (b) and Sec.184 of M.V.Act and he is acquitted U/Sec.255 (1) of Cr.P.C. The unmarked non valuable case property if any shall be destroyed after expiry of appeal time. Accused is directed to execute a bond for Rs.5,000/- with single surety as required U/Sec.437-A of Cr.P.C and bonds and bail bonds of the accused shall stands to be cancelled after lapse of appeal time.

Sd. Sri.M.Bujjappa

JUDICIAL MAGISTRATE OF 1ST CLASS

ICHAPURAM

Copy to

The Hon'ble 1st Addl. District and Sessions Judge's court, Srikakulam. The Superintendent of Police, Srikakulam. True copy

JUDICIAL MAGISTRATE OF 1ST CLASS

ICHAPURAM

2

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FAIR

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

ICHAPURAM.

Present:- Sri.Masala Bujjappa,

Judl. Magistrate of 1st Class, Ichapuram.

Thursday, this the 1st day of April, 2021.

C.C No.48/2018

Between:

The State rep. by the Sub Inspector of Police,

Ichapuram Town Police Station. …Complainant.

And:

Palepu Polarao, S/o Bhagirathi, 48 years, Nayee

Brahmin by caste, D.No.1-11, Narsipuram,

KasibuggaTown,PalasaMandal.Badge

No.6301993. Driver of Tractor bearing No. AP 30 V 5757 T AP 30 V 5759. … Accused

This case is coming on 01-04-2021 for final hearing before me in the presence of Asst. Public Prosecutor for State; and of

Sri.G.Seethayya Reddy, advocate for accused; and upon hearing both sides, through V.C; and having stood over till this day for consideration, this court delivered the following:

J U D G M E N T

1.The Sub-Inspector of Police, Ichapuram Town Police Station filed charge sheet in Crime No.66/2017 for the offence under Sections 304-A of IPC and Sec.134 (b) & 184 of M.V.Act against accused and request the court to convict the accused.

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2.The brief facts of the case of the prosecution are that :

The accused is a resident of Narsipuram village, Palasa Mandal,

Driver of Tractor bearing No.AP 30 V 5757 T AP 30 V 5759 and the offence has taken place on 26.12.2017 around 11.30 hours at opposite of Rajavari

Kota, near Santhapeta, old NH-5 road, Ichapuram town lies in the limits of

Ichapuram Town Police Station.

LW.1/Edu Jayamma is de-facto complainant and witness, LW.2/Edu

Nagamma, LW-4/Ladi Kanakamma, LW-5/Edu Jagannaikulu, LW-6/Ginni

Duryodhana, LW-8/Pyla Seethamma and LW-9/Pyla Parasuram are circumstance witnesses, LW.3/Senapathi Narayanarao & LW.7/Pyla

Gangamma are eye witnesses, L.W.10/Uppu Harikrishna is owner of crime vehicle and circumstantial witness, LW.11/Sonti Seetharamayya &

LW.12/Vulasi Venkataramana are mediators at the scene of offence,

LW.13/Chidipothu Jagannayakulu, LW-14/Ladi Chandrayya, LW-15/Chidipothu

Bheemayya, LW-16/Vaddina Triveni and LW-17/Gorrela Chandravathi are

Panchayatdars, L.W.18/T.Hariprasadarao is Motor Vehicles Inspector, L.W.19/

Dr.P.Srinivas is Medical Officer and L.W.20/T.Vasudevarao & LW.21/P.Parinaidu are investigating officers.

One Edu Chandramma, W/o Late Mohanarao, 39 years is hereafter referred as deceased and mother of LWs 1 & 2.

On 26.12.2017 at 12.45 hours, L.W.1 presented a written report at

Police Station and stated that her father was expired 5 years back. Her mother here after called as deceased is doing labour work, they are 3 children to their parents and they are 2 sisters and 1 younger brother. L.W.1 is 2nd one to their parents. L.W.1 is studying Intermediate 2nd year at Govt

Women College, Ichapuram. Mean while on 26.12.2017 early hours of 4.30

AM, her mother and L.W.7 started on the Tractor AP 30 V 5757 T AP 30 V 5759 belongs to L.W.10 to go to Loddaputti village. They went on the said

Tractor to Balarampuram near Loddaputti village, loaded big stones on the trailer and while returning on the same tractor to un-load at 4

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Chidambareswara street of Ichapuram town, as the deceased and L.W.7 sat on behind seat of the accused driver, when they reached opposite of Rajavari

Kota, old NH-5 road, near Santhapeta, Ichapuram around 11.30 AM, the accused driver of tractor drove the tractor in rash and negligent manner and applied sudden brake, due to which, the mother of L.W.1 who sat behind seat of the driver was fell down on the road and the tyres of Trailer ran away over her waist and Ribs and caused spot death. Hence, L.W.1 gave report for take further action in this regard. Basing on the report of L.W.1, L.W.20 registered the FIR in Cr.No.66/2017 U/Sec.304-A of IPC and Sec.184 of M.V.Act, 1988 and investigated. During course of investigation, L.W.20 examined L.W.1 at Police

Station, visited the scene of offence in the presence of LWs 11 & 12, got photographed of the scene of offence under the cover of scene observation report, shifted the dead body of the deceased to the mortuary of Community

Hospital, Ichapuram, shifted the crime vehicle to the Police Station examined

LWs 2 & 3 at the scene of offence, held inquest over the dead body in the presence of Lws 13 to 17 on 26.12.2017 from 14.00 to 15.45 hours, recorded the statements of Lws 4 to 6, subjected the dead body for autopsy to L.W.19 and sent requisition to L.W.18 for accidental report. On the next day i.e on 27.12.2017, examined LWs 7 to 10 and established the primafacie of the accused driver. The accused surrendered before L.W.20 on 02.02.2018, then

L.W.20 served notice on the accused U/Sec.41-A of Cr.P.C and offer in explanation bond and accordingly the accused furnished his explanation bond. L.W.18 issued the accident report, opining that the accident was not occurred due to any mechanical defects of both vehicles. L.W.19 issued the

P.M certificate and opined that the cause of death is Cardio Respiratory arrest due to hemorrhagic shock due to fracture Rib cage bones and internal

Hemorrhage fracture spinal card due to passage of heavy vehicle on abdomen & chest wall. LW.21 verified the investigation of LW.20, filed charge sheet after completion of investigation.

3.This case was taken on file for the offence punishable Under 5

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Section 304-A of IPC and Sec.134 (b) & 184 of M.V.Act against accused.

4.After appearance of Accused, copies were furnished to him and was examined U/Sec.251 of Cr.P.C. A charge U/Sec.304-A of IPC and Sec.134 (b) & 184 of M.V.Act has been framed, read over and explained to him in Telugu, for which, he pleaded not guilty and claimed for trial.

5.In the trial afforded by both parties, prosecution cited 21 witnesses and got examined LW.1/Edu Jayamma as PW-1, LW.2/Edu

Nagamma as PW-2 and LW-20/T.Vasudevarao as PW-3 and

LW.7/Pyla Gangamma as PW-4; and got marked Ex.P1 to P8. The remaining witnesses that is LWs 3 to 19 and 21 were given up by the prosecution.

6.After completion of trial, Accused was examined U/Sec.313 of

Cr.P.C and incriminating material were read over and explained to him in Telugu, for which, he denied and reported no defence. No

Exhibits were marked in “D” series.

7.Heard arguments on both sides. The learned incharge APP argued that though PWs 1 and 2 not Eye witness to the incident, but they spoke the date of incident as 26.12.2017 and they also spoke manner of the incident, which is some how stood bearing on the facts and though no other witness support the case including who examined as LW.7/PW.4/Pyla Gangamma, but the Investigating

Officer evidence is corroborating about the date of occurrence,

PW.1 giving complaint, PW.3 issuing F.I.R., conducting investigation and as PW.3 evidence revealing that it is the accused responsible for the offence, then the Court can consider the 6

CC.NO.48/2018

evidence of the prosecution in convicting the accused and prays the Court to convict the accused.

8.On the other hand, the learned counsel for the defence argued that neither PW.1, nor PW.2 are eye witness to the incident and they never spoke that the accused is responsible for the incident and more so, PW.3 who did investigation just confined to the extent of registering the case and not bothered to collect evidence in connecting the accused with the crime and mere issuance of

Section 41-A Cr.P.C notice would not mean that the accused accepted the guilty and as there is no one on the record to support the case of the prosecution, then the evidence of PW.3 can be no valye and prays the Court to acquit the accused as prosecution miserably fails to prove the guilty of the accused.

9.Heard the arguments on both sides and peruse the record.

10. Now the point for determination is :

1. Whether the prosecution established the death of deceased Edu Chandramma due to the injuries sustained in the road traffic incident occurred on 26-12-2017 at 11-30 hours?

2. Whether the prosecution established the involvement of crime vehicle i.e., Tractor and Trailer bearing No. AP 30 V 5757 T AP 30 V 5759 for cause of death of deceased Edu Chandramma?

3. Whether the prosecution established that the accused was the driver to the crime vehicle at the time of incident?

4. Whether the prosecution proves that the driver of the crime vehicle drive the crime vehicle in a rash and negligence manner resulting in to the incident?

5. Whether the prosecution has proved that the accused drive the crime vehicle without possessing driving licence and drive crime vehicle at high speed endangering to human life

and created alarm and panic to the public?

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6. Whether the prosecution has proved the guilt of the accused for the charge framed U/Sec.304-A of IPC and Sec.134 (b) & 184 of M.V.Act beyond all reasonable doubt?

All points framed above are taken together and answered below.

11. Points No.1 to 5:

1. Whether the prosecution established the death of deceased Edu Chandramma due to the injuries sustained in the road traffic incident occurred on 26-12-2017 at 11-30 hours?

2. Whether the prosecution established the involvement of crime vehicle i.e., Tractor and Trailer bearing No. AP 30 V 5757 T AP 30

V 5759 for cause of death of deceased Edu Chandramma?

3. Whether the prosecution established that the accused was the

driver to the crime vehicle at the time of incident?

4. Whether the prosecution proves that the driver of the crime vehicle drive the crime vehicle in a rash and negligence manner resulting in to the incident?

5. Whether the prosecution has proved that the accused drive the crime vehicle without possessing driving licence and drive crime vehicle at high speed endangering to human life and created alarm and panic to the public?

It is the case of the prosecution that on 26.12.2017 around 11.00 A.M, the deceased and LW.7 started on the Tractor bearing

No.AP 30 V 5757 T AP 30 V 5759 after completion of labour works from Aveti Balarampuram near Loddaputti with stones loaded trailer while the accused driver drove the tractor and the deceased and PW.4/Pyla Gangamma sat on behind seat of accused in both sides, the accused drove the Tractor in a rash, dangerous and negligent manner and about 11.30 hours when reached opposite of Raja Vari Kota, Old NH-5 road, Ichapuram applied sudden brake, due to which the deceased who sat right behind seat of the driver fell down on the road and the tyres of loaded 8

CC.NO.48/2018

trailer ran over on her waist, Ribs and she has received grievous internal injuries and died on the spot.

The prosecution tendered the evidence of defacto complainant i.e., LW.1/Edu Jayaram as PW.1 and LW.2/Edu

Nagamma as PW.2 who are happens to be a children of the deceased Edu Chandramma and their evidence in chief goes to show that their mother Chandramma met with an accident at

Rajuvari Kota of NH.16 on 26.12.2017 and died and by the time of the incident, they were at their house and on information passed by somebody about the incident and shifting of her mother to

Community Health Center, Ichapuram, as such, they rushed to there and seen her mother laying dead with injuries and later on, upon their enquiry they gave a report to the Police and Police hold an inquest in their presence. The above evidence alone some what sailing with the prosecution narrative and the rest of their chief examination is stood against to the prosecution, except PW.1 about giving complaint of Ex.P.1. After considering the evidence of

PW.1 and 2, the learned A.P.P. sought permission to treat the witnesses as hostile witness to the case and upon such permission though cross examined, but nothing was elicited contrary to the evidence in chief of PW.1 and 2 or nothing new brought in their cross examination by A.P.P.

Whereas in the cross examination of PWs 1 and 2, though they stated that they had a compromise with the accused and they have no personal knowledge about the incident, but the cross examination not touches the aspect of the disputing the death of the deceased with such injuries and time and place of incident. If that is so the evidence of PW.1 and 2 went un-challenge to the extent of establishing the factum of deceased met with an accident at Rajuvari Kota on N.H.16 on the date of the incident.

9

CC.NO.48/2018

Therefore, prosecution established the death of the deceased.

Though prosecution tendered the evidence of LW.7/Pyla

Gangamma as PW.4 who is a crucial witness to the case, but he does not support the case of the prosecution as she simply stated that she doesn’t know accused and she doesn’t know anything about the case and she doesn’t sustained any injuries and she never met with accident. PW-4 evidence in chief is clear that she never met with an accident and not sustained injuries. Hence, there is no direct evidence to prove the incident.

While that is so, if the evidence of PW.3 who is an investigating officer taken for scrutinization, his evidence simply shows that on receipt of complaint from PW.1, he registered the crime, visited the C.H.C., Ichapuram, hold inquest and later on made a request to the Doctor for conducting autopsy and also his visiting the to the scene of offence drawing rough sketch, making request to the M.V.I., to inspect the crime vehicle besides examination of the witnesses. Except those events PW.3 does not collected any proof to establish the accused connectivity with the crime though he examined the LW.7 and other Eye witnesses, but none of them brought to test before the Court and even PW-4 does not support the case. In such an event the testimony of PW.3 would not serve any purpose except proving the death of the deceased with injuries.

Further, PW.3 not bothered to collect any evidence to show that accused does not have any driving license or he does not collect information from M.V.I., to ascertain whether accused having driving license or not. Further more, when accused involvement when not established the question of charging him or indict him for not holding driving license does not arise at this stage.

10

CC.NO.48/2018

The above evidence produced by the prosecution fell short in respect of proving the fact of accused responsible for the rash and negligent act in driving the crime vehicle eventually resulting death of the deceased with injuries.

Hence, these points except Point No.1 are accordingly answered against the prosecution.

12. Point No.6

Whether the prosecution has proved the guilt of the

accused for the charge framed U/Sec.304-A and Sec.134 (b)

& 184 of M.V.Act beyond all reasonable doubt?

In view of the discussions made under the points Nos.1 to 5, this court feels that the prosecution fails to prove the guilt of the accused beyond all reasonable doubts and accordingly the accused deserves for acquittal.

13.In the result, accused found not guilty for the offence punishable under Sec.304-A of IPC & Sec.134 (b) and Sec.184 of M.V.Act and he is acquitted U/Sec.255 (1) of Cr.P.C. The unmarked non valuable case property if any shall be destroyed after expiry of appeal time. Accused is directed to execute a bond for Rs.5,000/- with single surety as required U/Sec.437-A of Cr.P.C and bonds and bail bonds of the accused shall stands to be cancelled after lapse of appeal time.

Typed to my dictation, corrected and pronounced by me in open court this the 1st day of April, 2021.

Sd. Sri.M.Bujjappa

JUDICIAL MAGISTRATE OF 1ST CLASS

ICHAPURAM

11

CC.NO.48/2018

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence: PW-1Edu Jayamma.Nil PW-2Edu Nagamma. PW-3T.Vasudevarao, Head constable. PW-4Pyla Gangamma

Exhibits marked

For Prosecution: Ex.P1Report of PW-1. Ex.P2Inquest report. Ex.P3Sec.161 CrPC statement of PW-1. Ex.P4Sec.161 CrPC statement of PW-2. Ex.P5FIR. Ex.P6Scene observation report. Ex.P7P.M. Certificate. Ex.P8Motor Vehicle Inspector report.

For Defence: Nil

Material objects

Nil

Sd. Sri.M.Bujjappa

JUDICIAL MAGISTRATE OF 1 st CLASS

ICHAPURAM

True copy

JUDICIAL MAGISTRATE OF 1ST CLASS

ICHAPURAM

1

CC.415/2019

Fair

CALENDAR AND JUDGMENT

Calendar Cases tried by the Addl. Judl. Magistrate of 1st Class, Sompeta. Date of Offence :12-07-2019 Date of Complaint or Report :15-07-2019 Date of Apprehension of accused :19-07-2019 Date of Release on Bail:Sec.41-A of CrPC notice served and let of by police on 19-07-2019 Date of Commencement of trial:05-03-2020 Date of Close of trial:17-03-2020 Date of Sentence or order:19-03-2021 Explanation for delay:No delay Name of the complainant:State represented by the S.I of Police,

Mandasa PS.

Calendar and Judgment in C.C.No.415/2019 in Cr.No.95/2019 on the file

of Addl. Judl. Magistrate of 1 st Class Court, Sompeta.

Name and Address of the accused

Silagana Lokanadham, S/o late Domburu, 60 years, Kapu by caste, occupation Farmer, Bellupatiya village, Mandasa mandal.

Offence:- :U/Sec. 447 and 506 of IPC.

Finding:- :Found not guilty.

Sentence or order:-

In the result, accused is found not guilty for the offence punishable under Sections 447 and 506 of IPC and he is acquitted

U/Sec.248(1) of Cr.P.C. The accused is directed to execute a bond of

Rs.5,000/- (Rupees five thousand only) with single surety as required under Section 437-A of Cr.P.C. to appear before the appellate Court if prosecution preferred any appeal.

JUDL. MAGISTRATE OF 1ST CLASS

ICHAPURAM

(FAC) ADDL. JUDL. MAGISTRATE OF 1ST CLASS

SOMPETA.

Copy to

The Hon'ble 1st Addl. District and Sessions Judge's court, Srikakulam.

The Superintendent of Police, Srikakulam.

2

CC.415/2019

FAIR

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF

1ST CLASS, SOMPETA.

Present:- Sri.Masala Bujjappa, Judl. Magistrate of 1st Class, Ichapuram FAC Addl. Judl. Magistrate of 1st Class, Sompeta.

Friday, this the 19th day of March, 2021

C.C No.415/2019

Between:

The State rep. by the Sub Inspector of Police, Mandasa Police Station. …Complainant.

And:

Silagana Lokanadham, S/o late Domburu, 60 years, Kapu by caste, occupation Farmer, Bellupatiya village, Mandasa mandal. … Accused

This case is coming on 12-03-2021 for final hearing before me in the presence of Asst. Public Prosecutor for State; and of

Sri.S.Nagabhushana Rao and Sri S.Bhaskara Rao, Advocates for accused; and upon hearing both sides, and having stood over till this day for consideration, this court delivered the following:

J U D G M E N T

The Sub Inspector of Police, Mandasa Police Station filed charge sheet in Crime No.95/2019 Under Sec.447 and 506 IPC Act against accused seeking to convict the accused.

2. The Brief facts of the prosecution case are :

The accused is a resident of Bellupatiya village, Mandasa mandal. The offence took place on 12.07.2019 around 11.00 hours in the fields at Bellupatiya village. LW.1-Duvvu Krishnarao is working as civil contractor who borrowed loan of Rs.25,000/- on 02.03.2009,

Rs.25,000/- on 03.03.2009 from the accused for his contract works and personal under two stamped promissory notes with excess amount 3

CC.415/2019

Rs.37,500/- each as per routine and Rs.50,000/- on 09.03.2009 under separate stamped promissory note. But he has not repaid the amount and interest. The accused raised a dispute before the village elders and LW.1-Duvvu Krishnarao postponed from time to time for repaying the amount in various reasons. The accused asked LW.1-Duvvu

Krishnarao to sell a field to him to that amount and finally warned to dot paddy seeds. But, LW.1-Duvvu Krishnarao not shows attention to pay the outstanding amount. On 12.07.2019 prior 11.00 hours, the accused trespassed into the field of LW.1-Duvvu Krishnarao, which called as “Badiyapolam”, mired and dotted paddy seeds with a view to occupy the field to his outstanding amount against the consent of

LW.1-Duvvu Krishnarao. Around 11.00 hours, LW.1-Duvvu Krishnarao rushed to the field and questioned the accused. On that wordy altercation took place and the accused in a rift of range threatened

LW.1-Duvvu Krishnarao with dire consequences and left. LW.1-Duvvu

Krishnarao presented a report to the Collector, Srikakulam on the day of Spandana stating that he borrowed loan from the accused and repaid the amount. But, he did not returned the promissory note, ploughed his land called as Badiya Polam on 12.07.2019 at 11 a.m., and dotty paddy seeds. On coming to know, he questioned the accused about the rights on the land. On that, the accused threatened him to kill if he enters into the land and pounced upon him to beat and not heed the words of village elders and proclaimed that he will dress the padd crop in the field. The accused had political influence and the report was endorsed in Cr.No.117/Spandana petitions/2019, dated 15.07.2019 of Superintendent of Police, Srikakulam.

2(b). LW.9 registered the FIR in Cr.No.95/2019, U/Sec.447 and 506 of IPC.

During course of investigation, LW.9-Ch.Prasad, Sub Inspector of Police, Mandasa observed the scene of offence in the presence of LW.7 and 8 (Santrasi Venkatarao and Isanasi Kalidasu), drafted scene observation report, prepared rough sketch, 4

CC.415/2019

rcorded the statements of Lws.1 to 6 (Duvvu Krishnarao, Duvvu Narayana,

Agguna Suryarao @ Suri, Batchala Buddayya, Agguna Eswararao, Vanjarapu

Chinnayya) and after completion of the investigation, LW.9-Ch.Prasad, Sub

Inspector of Police, Mandasa filed charge sheet against accused.

3. This case was taken on file for the offence punishable

U/Sec.447 and 506 of IPC against accused.

4.On the appearance of accused case copies were furnished to him U/Sec.207 of Cr.P.C and he was examined U/sec.239 of Cr.P.C by explaining the substance of accusation against him and charges for the Section.447 and 506 of IPC has been framed, read over and explained to him in Telugu, for which, he pleaded not guilty and claimed to be tried.

5. During the course of trial, though Prosecution cited 9 witnesses and examined LWs 1 to 3 as PWs 1 to 3 and LWs.8 and 9 as

PWs.4 and 5 and got marked Ex.P1 to P.7.

6. After completion of trial, accused was examined U/Sec.313 of

Cr.P.C and incriminating material were read over and explained to him in Telugu, for which, he denied and reported no defence. No Exhibits were marked in “D” series.

7. Heard the arguments on both sides and the learned A.P.P.

submitted that the evidence of PW.1 clearly shows that the accused trespassed into his land with oblique motive and the evidence in chief of PW.1 not significantly challenged to deny it and mere suggestion would not wipeout the evidence of PW.1 and prayed the Court to take the evidence of PW.1 into consideration. The learned A.P.P. further argued that though PW.2 and 3 turned hostile to the case of the prosecution, but PW.5 who registered the crime based on the complaint of PW.1 supported all material particulars and PW.4 who isa mediator for the scene observation lend corroboration to the evidence of PW.5 and together establishes the accused highhandedly 5

CC.415/2019

trespassing into the land of complainant to commit the offence and therefore prosecution has succeeded in proving the guilt of the accused and finally A.P.P. prays the Court to convict the accused.

8.On the other hand, the defence counsel argued that PW.1 gave vague details about his land and did not given date of offence, time of offence and in the cross examination it is elicited from PW.1 that he borrowed amount from the accused, as such to escape from the said liability, he foisted this case by mounting pressure on the police from political leaders and thus, testimony of PW.1 cannot be taken into consideration and more so no corroboration is proceeded as

PW.1 and 2 turned hostile to the case of the prosecution and though

PW.4 who said to be a mediator for scene of offence observation though spoken that he observed the scene with the police, but that would not connect the accused with the crime and more over though

PW.5 who did investigation spoken about the registering the crime and investigation into the case, but his evidence is a feeble one, did not establish accused trespassing into the fields of PW.1 as neither PW.1, nor PW.2 establish that the scene of offence land stood on the name of accused and mere claim that the scene of offence land belongs to the accused would not help the case of the prosecution and prays the

Court to acquit the accused.

9.Heard both sides, perused the record.

10.Now the point for determination is :

1. Whether prosecution established that the accused

trespassed into the land belongs to the complainant

without consent of complainant?

2. Whether prosecution proves that the accused by

trespassing into the land of the accused has threatened

the complainant with dire consequences?

3. Whether the prosecution bring home the guilt of the

accused for the offence punishable Under Sections 447 and

506 of IPC beyond all reasonable doubt?

6

CC.415/2019

11. POINT No.1:

Whether prosecution established that the accused trespassed into the land belongs to the complainant without consent of complainant?

After perusal of the record, it is the crux of the case of the prosecution that the complainant being a civil contractor has borrowed loan from the accused and owed amount, but as the complainant choose to not to repay the same, the accused raised a dispute before the elders, but the complainant has used to postpone the payment, at last on 12.07.2019 at 11.00 a.m., the accused has trespassed into the fields of LW.1, which locally known as badiya polam, mired and dotted paddy seeds with a view to occupy the fields.

11(a). In order to prove such fact, prosecution tendered the evidence of complainant who arrayed as LW.1 as PW.1 and according to the PW.1 in chief he does not remember the date of incident, but the accused has trespassed into his fields and ploughed on the instruction of another person, for which he questioned the accused and reported the matter to the Spandana and he got marked receipt given by Spandana of Government as Ex.P.1. This is all found in the chief examination of PW.1. While that is so, PW.1 was cross examined by the defence counsel and suggested that accused never trespassed into his land to plought it and suggested further that he borrowed the amount from the accused of which, he admitted about the owing of the amount to the accused. It is very clear from the evidence in chief of

PW.1 that PW.1 never wishpered where is the land located and what is its survey number, patta number and other details of the land. Besides that he also not given date of incident and time of incident. So, the evidence of PW.1 is found very vague as to the details of particular location of the land, survey number, patta number and there is no other document produced to show that the so called land stands on the name of the complainant. Absence of those details the attribution 7

CC.415/2019

of the criminal trespass on the accused cannot sustain. More so, the moment PW.1 fails to give the motive for the offence and when the accused suggested to the PW.1 that he owed amount, which admitted by the PW.1, then motive which is a double edged weapon under the facts and circumstances of this case stood adverse to the case of the prosecution.

11(b).More so, LW.2 and LW.3 whose evidence tendered by the prosecution as PW.2 and 3 as occular witnesses to the incident has turned hostile to the case of the prosecution stating that they do not know anything about the case. Though the learned A.P.P. has treated the witness of above as a witnesses turned hostile to the case and with the permission of the Court, though try to cross examine the PW.2 and 3 respectively to elicit facts, but nothing new elicited from their mouth to brought support to the case of the prosecution. Therefore, there is absolutely want of corroboration to the evidence of PW.1, whose evidence is so vague as to details of land and date and time of offence. More so, even PW.5 who is an investigating officer in this case, though spoke that he visited the scene of offence and prepared the scene observation report, but he does not file any document to show that the particular scene of offence belongs to the complainant and the said fact when not proved with documentary proof and mere claim of PW.1 which found with so vagueness will not constitute good and sufficient evidence to connect the accused with alleged trespass.

Therefore, prosecution fails to prove the allegations of criminal trespass said to have committed by the accused.

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

8

CC.415/2019

12.POINT No.2:

Whether prosecution proves that the accused by

trespassing into the land of the accused has threatened

the complainant with dire consequences?

It is the further case of the prosecution that after trespass into the fields of the complainant and upon knowing such trespass, the complainant when rushed to the accused, then there was a verbal spat between the accused and the complainant and finally the accused threatened the PW.1 with dire consequences.

12 (a).In order to prove the factum of threat given by the accused to the complainant with dire consequences, though the prosecution tendered the evidence of the complainant who set the criminal law into motion as PW.1, but there is no wishper is his evidence about such alleged threat said to have been given by accused to the PW.1/complainant. Therefore, when the evidence of

PW.1 is silent about the alleged verbal spat and eventual threat said to have made by the accused and when PW.2 and 3 has turned hostile to the case of the prosecution and as prosecution given up remaining all witnesses except investigating officer and mediator of scene of offence, then there is no iota of evidence on the record to say that there was a threat made by the accused to the complainant. Absence of such evidence, the accused cannot be made culpable for the offence under Section 506 of I.P.C.

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

13.POINT No.3:

Whether the prosecution bring home the guilt of the

accused for the offence punishable Under Sections 447 and

506 of IPC beyond all reasonable doubt?

In addition to discussion made under point No.1 and 2 above, and as on perusal of the evidence of PW.5, who did investigation reveals 9

CC.415/2019

he confines his investigation only to the extent examining the witnesses and thus he did not bothered to collect documentary proof of evidence which suggesting feeble investigation and as there is no corroboration from independent witnesses and as LW.4 to 7 witnesses evidence has given up by the prosecution, then I considered that prosecution has miserably fails to prove the guilt of the accused beyond all reasonable doubts and accordingly accused deserves for acquittal.

Hence, this point accordingly answered against the prosecution.

In the result, accused is found not guilty for the offence punishable under Sections 447 and 506 of IPC and he is acquitted

U/Sec.248(1) of Cr.P.C. The accused is directed to execute a bond of

Rs.5,000/- (Rupees five thousand only) with single surety as required under Section 437-A of Cr.P.C. to appear before the appellate Court if prosecution preferred any appeal.

Typed to my dictation to the Stenographer Gr.III, corrected and

pronounced by me in open court this the 19th day of March, 2021.

JUDL. MAGISTRATE OF 1ST CLASS

ICHAPURAM

(FAC) ADDL. JUDL. MAGISTRATE OF 1ST CLASS

SOMPETA.

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence: -

PW-1Duvvu KrishnaraoNil PW-2Duvvu Narayana PW-3Agguna Suryarao @ Suri PW-4Isanasi Kalidasu PW-5Ch.Prasad

Exhibits marked

For Prosecution: Ex.P1Receipt from Spandana. Ex.P2Section 161 Cr.P.C. statement of PW.2.

10

CC.415/2019

Ex.P3Section 161 Cr.P.C. statement of PW.3 Ex.P4Scene observation report Ex.P5Printed First Information Report. Ex.P6Rough Sketch.

For Defence: Nil

Material objects

For Prosecution: None

JUDL. MAGISTRATE OF 1ST CLASS

ICHAPURAM

(FAC) ADDL. JUDL. MAGISTRATE OF 1ST CLASS

SOMPETA.

1

OS.17/2018

FAIR

IN THE COURT OF THE JUNIOR CIVIL JUDGE, ICHAPURAM.

Present:- Sri. Masala Bujjappa,

Junior Civil Judge, Ichapuram.

Friday, this the 26th day of March, 2021.

Original Suit No.17 of 2018

Between:

Munni Goudo @ Munni, W/o late Ravi Goudo @ Robi Goudi, aged 42 years, Hindu, Labour, R/o DoorNo.13-1-19,MangalavaramPeta, Ichapuram Municipality and Mandalam, Srikakulam District. Plaintiff

And:

The Life Insurance Corporation of India, represented by its Chief Manager, LIC of India, Branch Office Complex, K.T. Road, Palasa- Kasibugga – 532222, Srikakulam District. Defendant

This suit is coming on 26-03-2021 for final hearing before me in the presence of Sri.V.C.Patnaik and Sri M.K.Samonto, Advocates for plaintiff; and of

Sri.S.Laxmi Narayana and Sri.K.S.Prasad Babu, Advocates for defendant; and after considering the material on record, this court delivered the following:

J U D G M E N T

This a suit filed by the plaintiff for declaration to declare that the Ravi

Goudo @ Robi Goudo, S/o late Narayana is legally presumed to be dead and for costs of the suit.

2.The brief averments of the plaint are:

The plaintiff is the wife of Ravi Goudo @ Robi Goudo and they are the 2

OS.17/2018

resident of Mangalavarampeta, Ichapuram, Srikakulam District. They have a house bearing No.13-1-19 situated at Mangalavarampeta, Ichapuram. The marriage between the plaintiff and Ravi Goudo @ Robi Goudo was performed about 28 years back as per caste and Hindu custom at the house of Ravi Goudo @

Robi Goudo at Mangalavarampeta, Ichapuram. They were blessed with two daughters namely Nisharani Goudo and Asharani Goudo. Ravi Goudo @ Robi

Goudo was doing vending vegetables, plantries business in Ichapuram market.

2(a) It is further submitted by the plaintiff that Ravi Goudo @ Robi Goudo took three life insurance policies; (1) Money Plus-1 Policy, dated 17.06.2008 for

Rs.50,000/- bearing Policy No.69508338, and two Market Plus-1 Policies, (2) dated 17.06.2008 for Rs.20,000/- bearing policy No.695083841 and (3) for Rs.20,000/- bearing Policy No.695088244 each for the period of ten years and the plaintiff was nominated as a nominee in the said three life insurance policies. The husband of the plaintiff deposited Rs.30,000/- three installments for Rs.10,000/- each in

Money Plus-1 policy. He became sick due to mental depression and treatment was given but it was not cured and he became a mental patient and left the house on 12.10.2010. The searches were made by the plaintiff and her relatives for a period of two years and finally lodged a report before the S.H.O., Town Police

Station, Ichapuram on 13.11.2012. The Town Police Station, Ichapuram registered a case in Cr.No.67/2012 as man missing and investigated onto the matter and a final report was submitted to the Sub Divisional of Police Officer at Kasibugga and he issued refer orders vide proceedings in Cr.No.24/SDO-K/Ref-2016, dated 09.02.2016 treated the case as UN-DETECTABLE and the S.H.O., Town Police

Station, Ichapuram filed the final report in the Court of the Judicial Magistrate of 1st Class, Ichapuram along with original copies. During course of the investigation the then Sub-Inspector of Ichapuram, Town Police Station examined the plaintiff and her daughter Nisharani Goudo, D/o Ravi Goudo, Uma Goudo, S/o late Bimmu

Goudo, Tuttu Goudo, S/o late Parusu Goudo, Rajendra Goudo, S/o late Gopi

Goudo.

3

OS.17/2018

2(b) It is further submitted by the plaintiff that, Ravi Goudo @ Robi

Goudo is where about are not known from 12.10.2010 to till today and legally presumed to be dead. The plaintiff got issued a registered notice through her

Advocate on 13.12.2017 to the defendant requesting to pay the aforesaid amounts under the three policies as she is nominee in the aforesaid three Life

Insurance Policies. The defendant in turn sent a reply, dated 29.12.2017 and advised the plaintiff to obtain a decree from Court of law that Ravi Goudo @ Robi

Goudo presumed to be dead and the plaintiff will be given the three policies amounts as he nominated the plaintiff as nominee. So, Ravi Goudo @ Robi Goudo legally died and the plaintiff who is the nominee is entitled for the amount of three Life Insurance Policies. Hence, the suit.

3.On the other hand the defendant who made his appearance choose to context the suit and defendant filed detailed written statement, denying the allegations of the plaintiff and submitted in the written statement that the Court fee paid is not correct. The plaintiff has to pay ad valorem Court fee on the three policy amounts that as mentioned by the defendant. The cause of action as referred in the plaint is not correct. The plaintiff has not filed the other documents

before this Court to claim the death benefit under the above policies are

concerned. No death certificate filed, therefore the Court in the absence of legal proof, the plaintiff cannot before this defendant on the above three policies amounts are concerned against the defendant and the suit itself is not maintainable under law and there is no cause of action against the defendant.

Hence, the defendant requests the Court to dismiss the suit.

4.Basing on the above pleadings and documents filed by both parties, the following issues were settled for trial:

4

OS.17/2018

1. Whether the plaintiff is entitled for the relief of declaration over the suit schedule property?

2. Whether the Ravi Goudo @ Robi Goudo is husband of plaintiff Munni Goudo @ Munni?

3. Whether the husband of plaintiff Ravi Goudo not heard and not known from 12.10.2020 for a period of 7 years?

4. Whether the plaintiff is entitled to the declaration that her husband Ravi Goudo is presumed to be dead or not?

5. Whether the Court fee paid is correct or not?

6. To what relief 5.On behalf of plaintiff, the plaintiff got herself examined as PW.1 and got marked Ex.A1 to Ex.A7 and also examined Sub Inspector of Police, Ichapuram

Town P.S as PW.2 and got marked Ex.A8 to Ex.A10.

6.Heard arguments of the plaintiff counsel and he submitted that plaintiff is the wife of Ravi Goudo @ Robi Goudo and their marriage was occurred about 30 years back and they blessed with children also and while the plaintiff husband was alive, he made subscription of Polices with the defendant corporation and thereafter it is unfortunate fate to the plaintiff as her husband who suffering with some mental ailments, left from the house on 12.10.2010 and since then, he is unheard and where about of him are not known despite intensive search by the plaintiff and also being a dutiful wife, lodged a complaint before

S.H.O., Ichapuram on 13.11.2012 and the Police though investigated to traceout the husband of the plaintiff, but their efforts yields no result and finally they filed final report before the Court as crime is undetected and since from 12.10.2010 to filing of the suit itself more than 7 years elapsed and despite the plaintiff beseeches for claims for insurance from the defendant, they did not honoured her claim and in turn demanded for any Court order and that led the plaintiff to file the suit and the plaintiff adduced her evidence and also evidence of Station House

Officer of Ichapuram as PWs 1 and 2 respectively and the plaintiff by got marking 5

OS.17/2018

Ex.A1 to Ex.A7 and also got marking Ex.A8 to Ex.A10 through PW.2 and these oral and documentary evidence fortified her contention that her husband unheard of more than 7 years continuously and therefore, the plaintiff entitled for the declaration by the Court to declare that the husband of the plaintiff deemed to be died and prays the Court to decree the suit.

7.On the other hand, the defendant counsel argued that the date of husband of the plaintiff unheard as given in the plaint is illusionary one and the plaintiff filed this present suit to make a claims and there is no specific evidence that the husband of the plaintiff not continuously heard for a period of 7 years and prays the Court to discard the evidence of plaintiff side and dismiss the suit.

8.Heard both sides, perused the record.

9.ISSUES NO.1 TO 4:

1. Whether the plaintiff is entitled for the relief of declaration over the suit schedule property?

2. Whether the Ravi Goudo @ Robi Goudo is husband of plaintiff Munni Goudo @ Munni?

3. Whether the husband of plaintiff Ravi Goudo not heard and

not known from 12.10.2020 for a period of 7 years?

4. Whether the plaintiff is entitled to the declaration that her husband Ravi Goudo is presumed to be dead or not?

9a) It is the oral evidence emerged from plaintiff as PW.1 that she married to the Ravi Goudo @ Robi Goudo about 30 years ago and while they were together, they blessed with children and thereafter prior to 12.10.2010, the said husband of the plaintiff who suffered with senility has retreated from the home on 12.10.2010 and since then, the plaintiff being a dutiful wife made intense search for her husband and as her efforts not yielded any result, she approached the

Police by lodging complaint on 13.11.2012 which can be drawn support by way of

Ex.A5 and from then on-wards despite she and public authorities has searched for 6

OS.17/2018

her husband, did not traced him and from 13.11.2012 to till filing of the suit, more than 7 years has lapsed. Even the plaintiff adduced the evidence of Station House

Officer of Ichapuram Police Station, who also confirmed about PW.1 giving complaint on 13.11.2012 and the evidence of PW.2 which reveals efforts made by the PW.1 in lodging report and the Police searching for the husband of the PW.1 can be sensed as just and fair. The Ex.A8 certified copy of F.I.R. and Ex.A9 of

Section 161 Cr.P.C. statements would show efforts of the authorities. Further, the plaintiff through PW.2 got marked certified copy of final report as Ex.P10, which shows the Police after exhausting all their efforts to trace out the husband of the plaintiff finds that his where abouts is clueless. All these would shows that the plaintiff unheard about her husband more than 7 years.

9b) A presumption of death occurs when a person is legally declared dead despite the absence of direct proof of persons death, such as finding of remains that to say corpus or skeleton attributable to that person. By virtue of unshaken evidence of PW.1 coupled with evidence of PW.2 which fortified with documentary proof of evidence of Ex.A5, Ex.A8 to Ex.A10 shows the husband of the plaintiff whereabouts not known from 12.10.2010 on-wards and by virtue of

Section 107 and 108 of Indian Evidence Act presumption would go in favour of the plaintiff. It is pertinent to reproduce what Section 107 and 108 of Indian Evidence

Act, 1872 are enunciate as follows:

Section 107 in The Indian Evidence Act, 1872

107. Burden of proving death of person known to have been alive within thirty years.—When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

Section 108 in The Indian Evidence Act, 1872 " Burden of proving that person is alive who has not been heard of for seven years.—when the question is whether a man is 7

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alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

The above said Sections are very clear that the person who asserts about a particular persons where abouts not known for more than 7 years and if that person is naturally has chance to notice or heard about him as not heard and that person affirms that the other person is dead, then it is the another person who disputed the death claiming the person is alive, the burden would shift on that person who affirms he is alive. Therefore, by virtue of Section 107 and 108 of

Indian Evidence Act, 1872 PW.1 has relieved her burden and then it is the defendant who disputed the claim of the plaintiff shall prove the fact that the plaintiff husband is alive. Here in this case, the defendant not adduced any evidence to show that he is still alive and its cross examination to PW-1 is ineffective to stoop down the PW.1/plaintiff evidence.

When the plaintiff claims that the defendant being a Life Insurance

Corporation had a contract with the husband of the plaintiff and bound by such contract to give sum assured under the polices has not given only under the fact that her husband death should be either confirmed or declared by the Court, then the plaintiff who is entitled for declaration by approaching the Court proved her claim and by adducing Ex.A1 to Ex.A4 documents shows there is a contract of insurance stuck between plaintiff side and defendant and then, the defendant is under obligation to perform their part of contract. The defendant has reneged to do his side obligation because of plaintiffs inability to place any document about her husband whereabouts not known. The presumed death underline object is for the family members of the deceased/missing person to deal with financial affairs of the said missing person.

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9c) Therefore, the plaintiff proved her claim about whereabouts of her husband not known for more than 7 years prior to filing of the suit and hence, she is entitled for the declaration as prayed for.

Accordingly, Issues No.1 to 4 are answered in favour of plaintiff and against defendant corporation.

10.ISSUE NO.5:

Whether the Court fee paid is correct or not?

With regard to the Court fee is concern, the defendant disputed the payment of the Court fee as insufficient, but it seems he taken a mere perfunctory plea and not bothered to question PW.1 or pointed out with specific law. As far as Court fee made for declaration is as correct in view of this Court, this Court has ordered to registered the suit. Therefore, this issue is accordingly answered against the defendant.

11.ISSUE NO.6

To what relief?

In the result, the suit is decreed without costs by declaring that the Ravi

Goudo @ Robi Goudo, S/o late Narayana is legally presumed as dead.

Typed to my dictation, corrected and pronounced by me in open court this the 26th day of March, 2021.

JUNIOR CIVIL JUDGE

ICHAPURAM

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APPENDIX OF EVIDENCE

Witnesses Examined

For Plaintiff : For Defendant:

PW-1Munni Goudo @ MunniNone PW-2V.Satyanarayana

Documents Marked

For Plaintiff:

Ex.A1Original Money Plus-1 policy bearing policy No.695083838 for Rs.50,000/- dated 17.06.2008. Ex.A2Original Market Plus-1 policy bearing policy No.695083841 for Rs.20,000/-, dated 17.06.2008. Ex.A3Original Market Plus-1 policy bearing policy No.695088244 for Rs.20,000/-, dated 28.07.2008. Ex.A4Receipt of deposited amount in thee installments for Rs.30,000/- in Money Plus Policy. Ex.A5Written report submitted before the SHO, Ichapuram Town P.S., dated 13.11.2012. Ex.A6Office copy of the registered notice issued to the defendant, dated 13.12.2017. Ex.A7Original registered reply notice sent by the defendant, dated 29.12.2017. Ex.A8Certified copy of FIR in Cr.No.67/2012, dated 13.11.2012 of Ichapuram Town Police Station for man missing. Ex.A9Statements of LWS 1 to 5 recorded by S.H.O., Ichapuram Town Police Station. Ex.A10Certified copy of final report.

For Defendant: Nil

JUNIOR CIVIL JUDGE

ICHAPURAM