Mohd. Abdul Javeed Pasha

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IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE

:: NIRMAL ::

Present: Sri Mohd. Abdul Javeed Pasha, Prl. Junior Civil Judge, Nirmal

Tuesday, this the 19 th day of February, 2019

O.S.No.38 of 2006

Between: Sk. Afsar Hussain S/o. Shaik Ahmed Hussain (brother of Late Akhtar Hussain), Aged about 42 years, Occ : Lorry Driver, R/o.H.No.6-6-21/1, Kasba Gally, Nirmal, Dist. Adilabad.

…Plaintiff // AND //

Azmath Khan S/o. Khaleem Khan, Aged 48 years, Occ : Business, R/o. Nirmal mandal, Dist. Adilabad. …Defendant

The Suit is coming up before me for final hearing on 22.01.2019 in the presence of Sri Asghar Mohiuddin Ansari, Mohd. Sayeed Ahmed and Sri Sri Kishan, Counsel for the Plaintiff and Sri B. Shubha Karan, Counsel for the Defendant and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

This is a suit filed by the Plaintiff (i) to declare him as the owner and possessor of the suit schedule property to the extent of 7 x 6 = 42 Sq. feet equal to 4.66 Sq. Yards;

(ii) for removal of unauthorized construction and encroachment by construction of the walls, towards the North and West by way of Mandatory Injunction Order and also for recovery of the possession, with costs.

2.The brief averments of the plaint are as follows :

(a)The Plaintiff and Sk Akthar Hussain are the brothers and sons of Shaik

Ahmed Hussain. While the plaintiff was working at Damam (K.S.A.) his brother/Shaik

Akthar Hussain was working as Motor Cycle Mechanic at Nirmal, while doing the job at abroad, plaintiff sent the amount to his brother, during this period a plot bearing No.6-6- 21/1 Part No.2 situated at Kasba locality, Nirmal was settled to be purchased. This plot was purchased by the plaintiff for himself and from out of his amount sent by him in the name of his brother/Shaik Akthar Hussain and from some amount sent by him in the name of his mother. The brother of the plaintiff/Shaik Akthar Hussain died in the year

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P a g e | 2 2004 as a bachelor and unmarried, now the plaintiff alone is in absolute owner, possessor and occupant of the suit plot.

(b)The defendant is the purchaser of the open land situated towards eastern side of the plot of the Plaintiff but it was not touching to his plot on East. At the time of his construction about few months back of filing the suit, the defendant started construction of the walls towards Western side by encroaching and entering into his plot and constructed two walls towards North & West by encroaching his land of 6 x 7 feet equal to 42 Sq. feet area and up to the height of 5 feet initially and thereafter he started increasing its height and included this land in the shed constructed by him in the open site touching to his land in the land not belonging to the defendant, but the land of the previous owner/Rafeeq Ahmed and in order to include this structure into the hall towards constructed his site towards east, since 26.02.2006 the defendant increasing its height up to 12 feet height from the earth level and also trying to convert this construction into

R.C.C. by attaching the pillars and therefore this improvement may be further increased in the permanent construction which has to be stopped.

(c)The plaintiff has constructed a compound wall around the said open plot from the corner of the plot of then owner M.A. Raheem towards western side of his plot and also towards east on Northern side of his plot touching the open place of one

Moulana in a length of 50 feet and at the time of construction of the compound wall, he found the encroachment by the defendant 6x7=42 Sq. feet, to an area of 7 feet towards

South and 6 feet towards west, equal to an area of 6 x7 = 42 Sq. feet. The defendant after encroaching the said area has included in the construction of shed of preparing steel Almirahs with Zink Sheets resting the said Zink Sheets temporarily on the wall of this structure keeping the slope towards eastern side. Since 26.02.2006, the defendant has made up his mind to remove the Zink sheets by elevating the height of the walls and by construction of the pillars towards and on the open sites in eastern side to take up

R.C.C. permanent construction into a hall. If the defendant is allowed to go on with this permanent construction, the plaintiff will loose an area of 42 Sq.feet, so this illegal encroachment of the plot of the Plaintiff under the pretext of renovating the structure, if not stopped at this stage of the construction ,the defendant will proceed with it and the property will be shaped into a permanent construction. Hence, the present suit.

3.The defendant resisted the claim of the plaintiff by filing the written statement.

The brief averments of the written statement filed by the defendant are as follows:

(a)After came in to force of the Benami Prohibition Act, no one is entitled to raise the plea of purchasing the plot in the name of one person and claiming the

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P a g e | 3 ownership by another person, as such the plea raised by the plaintiff regarding the purchase of the plot by himself is not correct and untenable under law. Late Sk Akthar

Hussain has got other heirs i.e., two brothers and sisters apart from the plaintiff and his mother. Without joining all the heirs of late Sk Akthar Hussain, filing of the suit by plaintiff alone is not maintainable and liable to be dismissed. The plaintiff is nothing to do with the suit land and his brother/late SK. Akthar Hussain is never in possession of the suit plot and he is also not the owner of the same. The defendant purchased the land from its previous owner by name Raza Ali through registered sale deed with measurements 52’x66’ feet. The defendant raised the walls within the land purchased by him. In the life time of SK Akthar Hussain, he never objected the defendant for his possession over the suit site as such the allegations that while construction of the compound wall, the plaintiff found encroachment is not correct, hence denied as the construction of the compound wall was done by late SK Akthar Hussain and not by the plaintiff.

(b)The real facts are that one Mohd Abdul Samad was the owner and possessor of the entire land, he has three sons namely - Rasheed Ahmed Siddiqui,

Rafeeq Ahmed Siddiqui, Sagheer Ahmed Siddiqui and four daughters. The said Mohd

Abdul Samad gave the land on south-east corner to the extent of 52’ feet north-south length and 66’ feet in east-west length by leaving set back of 4’ width at western and 8’ width at Eastern end, the above said land towards south side road to his daughter’s son by name Raza Ali by executing a document as sold to him when he was minor then. The defendant purchased the area of 52 feet north-south wise length and 50’ feet east-west length by leaving 16’ feet width road on its east from said Raza Ali after he attaining the majority. The defendant purchased the said land for valid consideration through Regd.

Sale deed bearing Doc.No.46/1997 dt. 7-01-1997, till then he is in possession of the same. Prior to it, the vendor of the defendant is in possession and enjoyment of the same. The defendant obtained permission for construction of compound wall over the said site and completed the construction of compound wall over the same. After the death of M.A. Samad, his sons got the land into 3 portions- Rasheed Ahmed Siddiqui got south-west corner, Rafeeq Ahmed Siddiqui got north-west corner and Sagheer

Ahmed Siddiqui got north east corner and where as said Raza Ali remained in possession of the south-east corner of the land, as the owner. Among the brothers, said

Sagheer Ahmed Siddiqui died issueless and as such his two brothers got the said land half each and out of it north side half portion was given to Rafeeq Ahmed Siddiqui and southern half given to Rasheed Ahmed Siddiqui. The defendant purchased the above said half portion from Rasheed Ahmed Siddiqui through registered sale deed bearing document No.407/1999 dated 1-02-1999, measuring 39’x44’ and raised construction of the wall. Out of the area purchased by the defendant, he sold an extent of 10’x20’ to

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A.Z.S. Jaleel Azher, son of Abu Sath Syed Ismail Syed through the registered sale deed

No.2264/1998 dated 4-8-1998. The construction of the compound wall by the defendant is in the life time of late SK Akthar Hussain and in his life time he has not raised any objection at any point of time as such the allegation of the plaintiff that the defendant raised structures recently by encroaching the suit land is false, hence denied.

(c)The vendors by name Rasheed Ahmed Siddiqui, Rafeed Ahmed Siddiqui, earlier filed a suit for injunction against the defendant in respect of the land purchased by him from Raza Ali claiming the ownership vide O.S.No.50 of 1997 on the file of Junior

Civil Judge Court at Nirmal and the same was dismissed. The findings given in the said

suit are binding on the plaintiff including late SK Akthar Hussain as such the plaintiff at present is not entitled to claim ownership over the plot purchased by the defendant.

One M.A. Ahad alleging as son of M.A. Samad filed a land grabbing petition over the land purchased by the defendant including over the land purchased by late Sk Akthar

Hussain, so also over the land purchased by Arshad Hussain and Rahaman. In the above said land grabbing petition, the defendant, Rasheed Ahmed Siddiqui, Rafeeq

Ahmed Siddiqui, late Sk Akthar hussain, Arshad Hussain and Rahaman were made as respondents. In the said land grabbing petition, the vendor of the plaintiff, Rafiq Ahmed

Siddiqui and Rasheed Ahmed Siddiqui were admitted the title and possession of the defendant over his site as such at this juncture the plaintiff is not entitled to deny the title of the defendant over his site purchased from Raza Ali. All these litigations and pleadings show the admission of title of the defendant over his site and the same is binding on the plaintiff as such the suit is not maintainable and liable to be dismissed.

4.Basing on the above pleadings, one of my learned predecessors settled the following issues for trial:

(i)Whether the Plaintiff is the owner and possessor of suit land as such he is entitled to the relief of declaration?

(ii)Whether the Plaintiff is entitled to the relief of Mandatory Injunction?

(iii)Whether the Defendant is the owner and possessor of suit land?

(iv)To what relief?

5.During the course of trial, on behalf of the plaintiff, PWs 1 and 2 were examined and got marked Ex.A1 to A6. On behalf of the defendant, DW.1 to 5 were examined and

Ex.B1 to B4 were marked. Further, Ex.C1 to C4 were marked through Advocate

Commissioner.

6.Heard. Perused the material on record.

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ISSUE NO.(i) TO (iii):

7.The contention of the plaintiff is that he purchased the property under Ex.A1 in the name of his younger brother by name Akthar Hussain. His case is that while he was in Damam (K.S.A), he sent money in the name of his brother and with that amount the property under Ex.A1 was purchased by his brother/Akthar Hussain. After the death of his brother/Akthar Hussain, he became the absolute owner and possessor of the property under Ex.A1. He filed the notarized affidavit of his mother to support his contention. The defendant by occupying his site to the extent of 7 x 6 feet aggregating 42 Sq. feet, constructed a compound wall, denying his title over the portion of 42

Sq.feet.

On the other hand, the contention of the defendant is that the plaintiff is not the owner and possessor of the suit schedule property. After coming into force of the

Benami Transactions (Prohibition) Act, purchasing land in the name of others is not valid. The Plaintiff cannot become the absolute owner of the property under Ex.A1 which is in the name of Akthar Hussain. The other brothers, sisters and mother of the plaintiff also succeeds to the property under Ex.A1 along with the plaintiff. The plaintiff alone is not entitled to file the suit for the relief of declaration of title, mandatory injunction and for recovery of possession. The further contention of the defendant is that he is the owner of the suit schedule property measuring 7 x 6 feet and he never encroached the same as contented by the plaintiff.

8.To prove his case, the plaintiff got examined himself as PW.1 and also examined one Afroz Ahmad as PW.2 and got marked Ex.A1 to A6 on his behalf. On perusal of the documentary evidence on record on behalf of the plaintiff, Ex.A1 is the Regd. Sale Deed vide document bearing No.2252/98 dt. 31.07.1998 in the name of Shaik Akthar

Hussain. As per the recitals under Ex.A1, the said Akthar Hussain purchased the property covered under Ex.A1 from one Rafiq Ahmed Siddiqui. In Ex.A1, there is no recital to show that he purchased the property on behalf of the plaintiff or with the money sent by the plaintiff; Ex.A2 is two (2) photographs; Ex.A3 is the affidavit of mother of the plaintiff before the Notary. As per the contents of Ex.A3, the mother of the plaintiff stated that the property covered under Ex.A1 was purchased by the plaintiff in the name of her another son/Akthar Hussain; Ex.A4 is the property tax receipt in the name of Shaik Akthar Hussain; Ex.A5 is the Death Certificate of Shaik Akthar Hussain;

Ex.A6 is the permission of house construction issued by Municipality, Nirmal in the name of Shaik Akthar Hussain; On perusal of Ex.A1, A4 and A6, there is no material to prove that plaintiff has purchased the property covered under Ex.A1 in the name of his

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P a g e | 6 brother/Akthar Hussain. Ex.A3/Affidavit will not create any right in favour of the plaintiff with regard to the property covered under Ex.A1. The documents placed on record by the plaintiff is not proving that the contention of the plaintiff that he purchased the property covered under Ex.A1 in the name of his brother with his money.

9.Now coming to the oral evidence in favour of the plaintiff, plaintiff got examined

PW.2 to support his version. In his chief examination affidavit, PW.2 stated that the plaintiff purchased the property in the name of his brother/Akthar Hussain. Except the oral evidence of PW.2, there is no other positive evidence in favour of the plaintiff to support his contention. Even PW.2 in his cross-examination stated that he does not know how Akthar Hussain purchased the property whether by way of registered sale deed, simple sale deed and about the consideration. This evidence of PW.2 nullifies his version in chief examination that plaintiff purchased the property in the name of his brother, as he does not know the nature of the document in the name of Akthar Hussain and also consideration paid with regard to that document. The documentary evidence and oral evidence placed on record by the plaintiff is no way helpful to the plaintiff to prove his contention that he purchased the property covered under Ex.A1 with his money in the name of his brother/Akthar Hussain.

10.During the course of arguments, the counsel for the defendants relied uponthe judgment ofHon’ble Supreme Court of India between Omprakash Vs. Jaiprakash reported in LAWS (SC) 1992 1 83 wherein it is observed as under:

“9……...…. There is a clear prohibition under Section 4 of the Benami

Act that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property……...

….....There is no manner of dispute that the present suit had been filed by the plaintiff-respondent claiming that he was the real owner of the property and the names of the defendants-appellants were mentioned in the sale deeds as benami. In our view, Section 4 of the Benami Act is a total prohibition against any suit based on benami transaction and the plaintiff-respondent is not entitled to get any decree in such suit or in appeal.

Section 4 of the Benami Transaction (Prohibition) Act, 1988 provides as under:

“4. Prohibition of the right to recover property held benami :

(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or

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P a g e | 7 against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

(3) Nothing in this section shall apply, -

(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

(b) where the person in whose name property is held is a trustee or other person standing in a fiduciary capacity, and the property is held the benefit of a other person for whom he is a trustee or towards whom he stands in such capacity.

In this case, Plaintiff is claiming that he purchased the property under Ex.A1 in the name of his brother/Akthar Hussain which amounts to a benami transaction. As per

Section 4 of the Benami Transaction Act, 1988 and in the light of the legal position laid down in the above decision, I am of the opinion that plaintiff cannot take the plea of benami transaction as he raised in the present suit.

11.The further contention of the plaintiff is that after the death of his brother/Akthar

Hussain, he became the absolute owner and possessor of the property covered under

Ex.A1. But as discussed above, the plaintiff failed to prove that he purchased the property in the name of his brother/Akthar Hussain, in such case, the property covered under Ex.A1 is the property absolutely belongs to the late Akthar Hussain. As Akthar

Hussain died as bachelor, the plaintiff being his brother succeeds the property covered under Ex.A1 along with his other brothers and sisters. In his cross-examination, the plaintiff categorically stated that he has four brothers and six sisters. He further stated that his three brothers including Akthar Hussain died. It clearly shows that one brother and six sisters of the plaintiff are still alive. In such case, they are also equally entitled to succeed the property of late Akthar Hussain to their respective shares as per provisions of Muslim law. Hence, the plaintiff alone is not entitled to file the suit for the relief of declaration of title and for other reliefs.

12.Now coming to the aspect of encroachment of the suit schedule property by the defendant as contented by the plaintiff, in this case, an Advocate Commissioner is appointed to inspect the suit schedule property. The Advocate Commissioner was

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P a g e | 8 examined as DW.5 and his report is marked as Ex.C1. On perusal of the Ex.C1, the

Advocate Commissioner in his report mentioned that - “the suit premises of Regd. Sale deed bearing document No.2252/98 identified by Municipal No.6-6-21/1 situated at

Kasba, Nirmal is an open place covered by the compound wall with old structure brick walls and its physical measurements includes the brick wall are mentioned in the sketch map. As per the Regd. Sale deed, the measurements are East-West side 50 feet and

North-South wise 30 feet, but on the spot the measurements are quite different which are shown in the rough sketch map”. On perusal of the Ex.A1 document, as per the schedule, the total measurements of the property covered is 1500 Sq. feet. On perusal of the rough sketch filed by the Advocate Commissioner, the measurements of property of the plaintiff is shown as East-West side towards Northern side 53’1”, towards

Western side from North to South it is 34’ 9”, towards south, east west wise 29’ 9”, towards Eastern side, North South wise 23’ 3”. The tin shed measurements are 42’6” X 14’. The total measurements comes to more than 1500 Sq. feet. In such case, encroachment of land as contented by the plaintiff does not arise.

13.In view of my above discussion and in the facts and circumstances of the case, I am of the opinion that plaintiff is not entitled for declaration of title as sought for by him and he is also failed to prove that the suit schedule property of 42 Sq. feet belongs to him, consequently he is not entitled to sought for the relief of mandatory injunction and recovery of possession. These issues are answered accordingly.

ISSUE NO.(iv):

14.In view of my discussion on issue No.1 to 3 and in the facts and circumstances of the case, I am of the considered opinion that the suit of the plaintiff is liable to be dismissed with costs.

15.In the result, this suit is dismissed with costs.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by

me in the open court on this the 19th day of February, 2019.

PRL. JUNIOR CIVIL JUDGE,

NIRMAL

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR PLAINTIFF : FOR DEFENDANT:

PW.1 : Sk Afsar HussainDW.1 : Azmath Khan

PW.2 : Afroz AhmedDW.2: Abdul Rahaman

DW.3 : Akbar Khan

DW.4 : Md. Sofiuddin

DW.5 : Sri V. Achuth Rao

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EXHIBITS MARKED

FOR PLAINTIFF: FOR DEFENDANT:

Ex.A1 is the Original Regd. Sale deed doc.2252/1998, Ex.B1 is C.C of Registered dt.31.07.1998 executed by Rafiq Ahmed Siddiqui Sale Deed Doc.No.46/97, in favour of Shaik Akthar Hussain dt. 07.01.1997

Ex.A2 is one photograph with negative Ex.B2 is C.C of Registered Sale Deed Doc.No.2246/98, Ex.A3 is Notary affidavit executed by the mother dt. 04.08.1998 of the Plaintiff/Lateefa Begum dt. 10.03.2006

Ex.A4 is Property Tax receipt, dt. 03.03.2006 issued Ex.B3 is C.C of Registered in the name of brother of PW.1 in respect of Sale Deed Doc.No.407/99, of H.No.6-6-21/4. dt. 01.02.1999

Ex.A5 is Death certificate of younger brother Ex.B4 is original permission of PW1 (Shaik Akthar Hussain), dt. 30.06.2004 from Municipality Nirmal for construction along with map Ex.A6 is Permission for construction of dt. 21.2.97 H.No.6-6-21/1B/6-6-21/4A, issued by Municipality, Nirmal vide No.G1/2008/02-03, along with plan

EXHIBITS MARKED

FOR PLAINTIFF: FOR DEFENDANT:

Ex.C1 is the report filed by the Advocate Commissioner- Nil -

Ex.C2 is the Sketch map

Ex.C3 is the Work Memo given by the counsel for the defendant

Ex.C4 is the Commissioner Warrant

PRL. JUNIOR CIVIL JUDGE

NIRMAL

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DECREE

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE

:: NIRMAL ::

Present: Sri Mohd. Abdul Javeed Pasha, Prl. Junior Civil Judge, Nirmal

Tuesday, this the 19 th day of February, 2019

O.S.No.38 of 2006

Between: Sk. Afsar Hussain, S/o. Shaik Ahmed Hussain (brother of Late Akhtar Hussain), Aged about 42 years, Occ : Lorry Driver, R/o.H.No.6-6-21/1, Kasba Gally, Nirmal, Dist. Adilabad.

…Plaintiff // AND //

Azmath Khan, S/o. Khaleem Khan, Aged About 48 years, Occ : Business, R/o.H.No.6- 6-12-186, Gajulpet, Nirmal. …Defendant

Suit presented on : 10.03.2006

Suit registered on : 17.03.2006

CLAIM FOR :-This is a suit filed by the Plaintiff (i) to declare him as the owner and possessor of the suit schedule property to the extent of 7 x 6 = 42 Sq. feets equal to 4.66 Sq. Yards; (ii) for removal of unauthorized construction and encroachment by construction of the walls towards the North and West by way of Mandatory Injunction Order and also for recovery of the possession, with costs.

VALUATION :-The value of the suit plot as per the market value certificate issued by Sub-Registrar, Nirmal as required by law is Rs.660/- per Sq.yard over which valued for Court fee of Rs.3075/-. On the ¾ dth value of the said plot is Rs.2306/- which is paid and u/s. 24(a) & APCF & SV Act, 1956 is Rs.216/- is paid for the relief of declaration and consequential relief of recovery of possession is Rs.216/- is paid which is sufficient. Further for the relief of Mandatory injunction, the notional value is fixed as Rs.2000/- over which a court fee of Rs.186/- is paid herewith u/s. 26(c) of the same Court fees Act. Thus the total Court fee of Rs.402/- is paid as total Court fee which is deposited in the SBH, Branch Nirmal through voucher dt. 08.03.2006 in the A/C.No.52135552689 of this Court.

The Suit is coming up before me for final hearing on 22.01.2019 in the presence of Sri Asghar Mohiuddin Ansari, Mohd. Sayeed Ahmed and Sri Sri Kishan, Counsel for the Plaintiff and Sri B. Shubha Karan, Counsel for the Defendant and having stood over for consideration till this day, this Court doth Order and Decree as follows :

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That the suit of the Plaintiff be and hereby dismissed but it shall be with costs.

GIVEN under my hand and seal of the Court on this 19th day of February, 2019.

` Prl. Junior Civil Judge, Nirmal

COSTS OF THE SUIT

Sl.For PlaintiffAmountFor DefendantsAmount

No.in Rs.

1Stamp on Plaint402=00Stamp on Vakalath 2Stamp on Vakalath2=00Stamp on Petition - 3Stamp on Exhibits-Stamp on Exhibits- 4Process fee- 5Pleader's feeNCFPleader's fee- 6Stamps on petitionCommissioner fee-

TotalTotal-

Cost memos not filed by the Plaintiffs

PRL. JUNIOR CIVIL JUDGE,

NIRMAL

Note : The parties shall apply as soon as possible for the return of all exhibits which they may wish to preserve as the record will be liable to be destroyed as per Rule 9 of Destruction of Records Rules after 3 years from this date and costs memo not filed by the both parties.

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The defendant after ignoring the request and denied his title over the portion of the plot i.e., 42 feet from out of the entire plot in a corner. Filed two photographs showing the old walls and renovation on the upper portion. He is the owner of the suit plot and the defendant is not the owner of the suit plot and has got no interest or title over the suit plot and has no right to deny his title.

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IN THE COURT OF THE PRINCIPAL JUDICIAL MAGISTRATE OF FIRST CLASS,

NIRMAL

Present : Sri Mohd. Abdul Javeed Pasha, Prl. Judicial Magistrate of First Class, Nirmal

Dated this the 12th day of February, 2019

C.C.No.1190/2012

(Crime No.193/2010 of P.S. Nirmal Town)

Between:

The State through Sub-Inspector of Police, Nirmal Town Police Station.

...Complainant

// AND //

1. Shaik Basith, S/o. Shaik Rahiman, Age : 22 years, Occ : Auto Driver, R/o. Shaikshawpet, Nirmal.

2. Mohd. Mazor, S/o. Isak, Age : 21 years, Occ : Plumber, R/o. Brahmapuri, Nirmal

3. Basharathullakhan, S/o. Faizthullahkhan, Age : 21 years, Occ : BSC Student, R/o. Budhawarpet, Nirmal.

(Case against A2 & A3 is split up vide CC No.78/2018)

…Accused

This case is coming up before me for final hearing on this the 6 th February, 2019 in the presence of the Assistant Public Prosecutor for the State and Sri S. Goverdhan, Counsel for the Accused and having stood over for consideration till this day, the Court delivered the following:

:: J U D G M E N T ::

The accused No.1 to 3 have arraigned before this Court for the offences punishable u/s. 290, 324 r/w 34 of Indian Penal Code.

2.The brief averments of the charge sheet are as follows :

(a)The Sub-Inspector of Police, Police Station Nirmal Town has filed the charge sheet against the accused alleging therein that on 24.07.2010 at about 4:30 p.m., while the defacto complainant/Japa Prashanth was attending the drainage works with his labour at Budhawarpet, Nirmal in front of Appala Mahesh house, at that time, his tractor driver/Kaparker Maruthi brought iron tins load in his tractor for drainage works, meantime, the accused No.1 and his brother

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P a g e | 2 accused No.2 who were coming from Budhawarpet towards bus stand side in their auto bearing No.AP01V 3845 stopped the auto in front of the tractor of the defacto complainant/J. Prashanth and abused the tractor driver/Kaparker Maruthi in a filthy language and picked up quarrel with him. When the defacto complainant came there and tried to pacify them, accused No.1 and 2 beat the defacto complainant with hands, on seeing the labours and others, they went away and after sometime, again accused No.1 and 2 brought accused No.3 and all of them beat the defacto complaint/Japa Prashanth, driver of the tractor/Kaparker Maruthi and one Smt. Muthyala Bhumavva with iron rod, sticks and hands resulting bleeding injuries to them.

(b)Basing on the report of the defacto complainant, Sri P. Venkateshwarlu, the then Assistant Sub-Inspector of Police, Nirmal Town Police Station registered this case vide Crime No.193/2010 u/s. 290, 324 r/w 34 IPC and took-up the investigation.

(c)During the course of investigation, the Assistant Sub-Inspector of Police visited the scene of offence situated at Budhawarpet, Nirmal, drafted the scene of offence panchanama before the mediators. On 25.07.2010 at 1000 hours, on reliable information the Assistant Sub-Inspector along with his staff rushed to

Shaiksabpet, Nirmal and apprehended the accused No.1 to 3 at the house of the accused No.1, on interrogation accused No.1 to 3 confessed to have committed this offence then effected their arrest and remanded them to judicial custody.

After completion of investigation, filed the charge sheet against the accused.

3.This case was taken cognizance against the accused No.1 to 3 for the offences punishable u/s. 324 and 290 r/w 34 of Indian Penal Code.

4.On appearance of the accused No.1, copies of case records were furnished to him as required u/s. 207 Cr.P.C. During the course of proceedings, case against accused No.2 and 3 was split up and numbered as C.C.No.78/2018.

5.Accused No.1 was examined u/s. 239 Cr.P.C for the offences punishable u/s.

324 and 290 r/w 34 of IPC, charges have been framed against the accused No.1 for the above said offences, read over and explained the contents of the same in Telugu language, for which he pleaded not guilty and claimed to be tried.

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6.During the course of trial, prosecution examined PWs.1 to 10 and got marked

Ex.P1 to P8 on behalf of the prosecution. After completion of the prosecution evidence, accused No.1 was examined u/s. 313 Cr.P.C., for the incriminating material in the evidence of prosecution witnesses, for which he denied the same and reported no defence evidence.

7.Heard arguments.

8.Now the point that arises for consideration herein is :

Whether the Prosecution has proved the guilt of the accused beyond all reasonable doubt for the above said offences?

POINT :

9.Unfolding the case of the prosecution, PW.1 testified that in the year 2010 at 4.30 p.m., when his tractor driver/Maruthi was proceeding towards Gandhi Chowk from

Budawarpet by rolling the drainage mud meanwhile one Auto stopped infront of the said tractor and inmates of the auto i.e. three persons came down from the Auto and started abusing the driver of the tractor/Maruthi in filthy language as “Lanja koduka, Bosdike”. At that time he was very near to the scene of offence i.e. at the house of Appala Mahesh, from there only the drainage mud was transporting towards Gandhi Chowk. After that the said three persons beat the tractor driver/Maruthi with hands then he went there and rescued him, then the said three persons left from that place. Again after 10 to 15 minutes about 15 to 20 persons including the said three persons who beat the tractor driver/Maruthi came to that place, beat him and tractor driver/Maruthi and when

Bhumavva, Srinivas, Poshetty, Bhojanna, Mohan and Anitha (wife of the tractor driver/Maruthi) came to rescue them, the said persons also beat them with the sticks and iron rods. He sustained the injury on his chest and also on his back. He cannot say the specific overt acts of the persons who beat him but among them accused No.1 was present. After that he went to the Police Station and complained the matter to the police under Ex.P1.

10.PW.2 and PW.5 are the other injured persons in this incident; PW.3, PW.4 and 6 are the projected eye witnesses to the case of the prosecution; PW.7 is the Panch witness for the Scene of Offence Panchanama stated to have acted as such; PW.8 is the Medical Officer who treated the injured and issued the wound certificates; PWs 9 and 10 are the Investigating Officers who investigated this crime.

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P a g e | 4

11.Coming to the appreciation of evidence of material on record, the case of the prosecution is that on 24.07.2010 accused No.1 along with accused No.2 and 3 assaulted the PWs. 1, 2 and 5 with iron rods, sticks and hands and caused bleeding injuries to them. In this case, PW.1 who is the defacto complainant and also the injured in the said incident, narrated the version of the prosecution with regard to the incident.

As per the evidence of PW.1 in his chief-examination, at the first instance the three persons came in the auto beat the tractor driver/Maruthi with the hands then he went there and rescued him. But during the course of cross-examination surprisingly PW.1 stated that at the first instance, he came to know about the galata upon the information of his tractor driver/Maruthi. This evidence of PW.1 in his chief-examination and cross- examination is quite inconsistent as the PW.1 in his chief-examination stated that at the first instance of the galata, he rescued the PW.1 from the three persons who came in the auto but whereas in the cross-examination his version is that he does not know anything about this information until he received the information from his tractor driver and PW.1 did not whisper even his presence at the scene of offence at the time of the incident at the first instance.

12.The another aspect which needs for consideration is that as per the evidence of

PW.1, he sustained the injuries on his chest and also on the backside as the accused beat him with the iron road and sticks, but as per the evidence of the Medical Officer who treated the PW.1, PW.1 did not sustain any injuries on his chest and backside but as per the medical evidence he sustained the injuries on his right intra scapular region and over the nose. Again there is in consistency in the evidence of PW.1 with that of the medical evidence and both set of evidence are not corroborating but inconsistent with each other.

13.One more aspect which needs for consideration is that PW.1 during his chief- examination identified the accused No.1 as one among the persons who beat him. But in his cross-examination he stated that at the time of road widening works, the disputes are normal hence he has not taken the alleged galata much seriously and not concentrated on the said three persons who came down from the auto and not saw them. One side in the chief-examination PW.1 identifying the accused No.1 as one among the three persons who came in auto and beat him but whereas in his cross- examination his version is that on the date of this incident, he has not concentrated on the said three persons who beat him and did not see them. It is pertinent to note that during the course of the cross-examination of PW.2, he admitted that PW.1 showed the

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P a g e | 5 accused No.1 and others as the persons who caused the alleged galata and who beat them and accordingly he was identifying the accused No.1 before this court but does not know anything about this incident personally but came to know the same only upon the information of PW.1. PW.2 further stated that PW.1 asked him to come to the court by saying that he stated his name to the police as he also sustained the injuries in the alleged incident and requested him to come to the court to give evidence. As per the case of the prosecution, PW.2 is also the injured person but whereas in the evidence of

PW.2 in his cross-examination he stated that he does not know anything about this incident personally except upon the information of PW.1. Again there is inconsistency in the evidence of PW.2 with that of the case of the prosecution and with that of the evidence of PW.1.

14.One more aspect which needs for consideration is that, as per the evidence of

PW.1 when the three persons who came in the auto while beating the tractor driver/Maruthi, he went to rescue then the said persons beat him and other persons.

The said tractor driver is examined before this court as PW.5. As per the evidence of

PW.5, in his cross-examination he admitted that at the time of this incident, he was in the tractor and other labours are loading the compost, the place of the driver seat in the tractor is some height to the road hence it is not possible to see the driver of the tractor by the inmates of the auto. PW.5 admitted that at the first instance the two persons in the auto only abused him but not beat him and even at that time he cannot identify them. This piece of evidence of PW.5 is again inconsistent with that of the PW.1, as per the version of PW.5 at the first instance no one beat him but only abused him whereas as per the evidence of PW.1 when the said persons were beating the PW.5 with the hands, then he rescued him. On perusal of the evidence of PWs 1, 2 and 5 i.e., injured persons it is not only inconsistent with the evidence of one another but also inconsistent with their chief-examination to that of the cross-examination.

15.In this case, prosecution cited PWs. 3, 4 and 6 as the eye witnesses to this incident. PW.3 though narrated the version of the prosecution stated that he cannot identify the persons who beat the PW.1 and Maruthi. PW.4 stated that on the date of this incident, four to five persons beat the PW.1 and Maruthi and stated that he can identify only one or two persons but failed to identify accused No.1 as one among of the four to five persons though he was present in the court hall on the date of his evidence.

PW.6 stated that about nine years ago, when himself and PW.2 to 5, Poshetty and

Anitha were attending the drain work, then some one informed him that some dispute

Page 5 of 10

P a g e | 6 was going on near the tractor then he rushed to the place meanwhile public who gathered there beat him but he does not know who beat him and at the time of this incident a large number of people gathered at the place of this incident. As the PW.6 not supported the version of the prosecution, he was declared as hostile witness. PWs.

8 and 9, the Investigating Officers deposed about the manner of conducting of investigation after registering of this crime. As per the evidence of PW.9, one of the

Investigating Officers, he seized one iron rod and two sticks from the scene of offence but the same were not deposited before this court. PW.9, the Investigating Officer admitted that the witnesses to whom he examined, i.e., PWs. 1 to 6, Poshetty and

Anitha are the workers under PW.1, and he has not examined one Appala Mahesh

before whose house this incident took place and also stated that the scene of offence is

situated in the busy locality. PW.9 further admitted that he has not examined the neighbouring residents of the scene of offence and also not investigated into the aspect how the accused No.1 to 3 sustained injuries. The prosecution has not explained any reason for non examination of the any independent witness and also not explained how the accused No.1 and other accused sustained the injuries. At this juncture the counsel

for the accused relied upon the judgment of Hon’ble Supreme Court of India between

Bhagwan Sahai and Anr. Vs. State of Rajasthan in Crl. Appeal No.416/2016 (Arising out of SLP (Crl.) No.2301 of 2016) dt. 03.06.2016 wherein it is observed as under:

“8… Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants. The appellants can legitimately claim right to use force once they saw their parents being assaulted and when actually it has been shown that due to such assault and injury their father subsequently died. In the given facts, adverse inference must be drawn against the prosecution for not offering any explanation much less a plausible one. Drawing of such adverse inference is given a go-bye in the case of free fight mainly because the occurrence in that case may take place at different spots and in such a manner that a witness may not reasonably be expected to see and therefore explain the injuries sustained by the defence party...”

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P a g e | 7

In this case also, prosecution not explained how the accused sustained the injuries.

16.During the course of arguments the learned Assistant Public Prosecutor also relied upon the judgment of Hon’ble Supreme Court of India between Yogesh Singh

Vs. Mahabeer Singh & others in Criminal Appeal No.1482 of 2013 dated

20.10.2916 wherein it is observed as under :

“”30. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused.

The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for a acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc., which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation….”

Though the Investigating Officer has not examined the neighbouring residents of the scene of offence as independent witnesses but it is not a ground to give the acquittal to the accused for the lapse of the Investigating Officer, in view of the judgment relied upon by the learned Assistant Public Prosecutor.

17.In this case, on careful scrutiny of the entire evidence of the prosecution witnesses there are lot of discrepancies and inconsistencies in the evidence of prosecution witnesses with regard to the case of the prosecution hence in these circumstances I feel it is a fit case to extend the benefit of doubt to the accused. Point is answered accordingly.

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P a g e | 8

18.In the result, accused No.1 is found not guilty for the offences punishable u/s 324 and 290 r/w 34 of IPC and he is acquitted u/s. 248(1) Cr.P.C. The bail bonds and surety bonds of the accused shall be in force for a period of six (6) months from today as per Section 437-A Cr.P.C. As the property was not produced before this court hence no property order was passed.

Dictated to the Stenographer, transcribed by her after correction pronounced by

me in the open court on this the 12 th day of February, 2019

Principal Judicial Magistrate of First class

Nirmal

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

PROSECUTION :ACCUSED PW.1 : J. Prashanth/Defacto Complainant - Nil-

PW.2 : M. Bhumavva/Injured

PW.3 : B. Srinivas/Eye witness

PW.4 : M. Mohan/Eye witness

PW.5 : K. Maruthi/Injured

PW.6 : K. Bhojanna/Eye witness

PW.7 : J. Shiva Shanker/Panch witness for Crime Details Form

PW.8 : Dr. B. Suresh/Medical Officer

PW.9 : P. Venkateshwarlu/Investigating Officer

PW.10 : K. Sudershan/Investigating Officer

EXHIBITS MARKED ON BEHALF OF

PROSECUTION :ACCUSED

Ex.P1 is the Report -Nil-

Ex.P2 is Section 161 Cr.P.C. Statement of PW.6

Ex.P3 is the Crime Details Form

Ex.P4 is the Wound Certificate of PW.1

Ex.P5 is the Wound Certificate of PW.5

Ex.P6 is Medical Prescription issued by Dr. Devidas/ENT

Ex.P7 is Wound Certificate of PW.2

Ex.P8 is First Information Report

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P a g e | 9

MATERIAL OBJECTS MARKED

PROSECUTION :ACCUSED -Nil- -NIL-

Principal Judicial Magistrate of First Class

Nirmal

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P a g e | 10

CALENDAR AND JUDGMENT

IN THE COURT OF PRL. JUDICIAL MAGISTRATE 0F I CLASS :: NIRMAL

C.C. No.1190/2012

Date of offence:24.07.2010

Date of complaint/report:24.07.2010

Date of arrest of A1:25.07.2010

Date of release of A1 on bail:25.07.2010

Date of commencement of trial: 12.09.2018

Date of closure of trial: 04.01.2019

Date of Judgment: 12.02.2019

Explanation/remarks/delay if any:-

Complainant: The State through Sub-Inspector of Police, Nirmal Town Police Station in Crime No.193/2010

Accused :1. Shaik Basith, S/o. Shaik Rahiman, Age : 22 years, Occ : Auto Driver, R/o. Shaikshawpet, Nirmal.

2. Mohd. Mazor, S/o. Isak, Age : 21 years, Occ : Plumber, R/o. Brahmapuri, Nirmal.

3. Basharathullakhan, S/o. Faizthullahkhan, Age : 21 years, Occ : BSC Student, R/o. Budhawarpet, Nirmal.

(Case against A2 & A3 is split up vide CC No.78/2018)

Offence: U/s. 324 and 290 r/w 34 IPC

Finding: Found not guilty

Sentence : In the result, accused No.1 is found not guilty for the offences punishable u/s 324 and 290 r/w 34 of IPC and he is acquitted u/s. 248(1) Cr.P.C. The bail bonds and surety bonds of the accused shall be in force for a period of six (6) months from today as per Section 437-A Cr.P.C. As the property was not produced before this court hence no property order was passed.

Prl. Judicial Magistrate of First class Nirmal

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P a g e | 1

IN THE COURT OF THE PRINCIPAL JUDICIAL MAGISTRATE OF FIRST CLASS,

NIRMAL

Present : Sri Mohd. Abdul Javeed Pasha, Prl. Judicial Magistrate of First Class, Nirmal

Dated this the 20th day of February, 2019

C.C.No.687/2015

(Crime No.145/2015 of P.S. Kadam)

Between:

The State through Sub-Inspector of Police, Kadam Police Station.

...Complainant

// AND //

1. Pedduri @ Sunarkar Rajanna, S/o.Rajalingu, Age : 56 years, Occ : Agriculture.

2. Pedduri @ Sunarkari Indavva, W/o. Rajanna, Age : 50 years, Occ : Agriculture,

Both R/o. Kondukur Village. …Accused

This case is coming before me for final hearing on this the 15-02-2019 in the presence of the Assistant Public Prosecutor for the State and Sri S. Goverdhan, Counsel for the Accused and having stood over for consideration till this day, the Court delivered the following:

:: J U D G M E N T ::

The accused have arraigned before this Court for the offences punishable u/s.

447, 342, 323, 506 and 290 r/w 34 of Indian Penal Code.

2.The brief averments of the charge sheet are as follows :

(a)The Sub-Inspector of Police, Police Station Kadam has filed the charge sheet against the accused alleging therein that the defacto complainant/Jadi

Bhumaiah @ Bhumanna and the accused are related to each other, their agricultural lands (Gardens) are situated side by side between outskirts of

Kondukur and Bellal villages. There are past instances wherein both the parties quarrelled with each other and approached to Revenue Officials for the settlement of their boundaries. Even then the accused used to remove the margin line stone pegs intentionally with a view to pester and cause financial loss to the defacto complainant. As an old mischievous habit, accused No.1 and 2 trespassed into the land of the defacto complainant on 10.07.2015 at 1730 hours

Page 1 of 6

P a g e | 2 and removed the stone pegs. On observing the same, when the defacto complainant intervened to protect his boundary line, accused No.1 and 2 confined him in the garden, abused in filthy language, beat him with hands and threatened with dire consequences to kill if he comes across in their attempt.

This was witnessed by Jadi Laxmi, Dumpala Lachanna, Bhuthkuri Bhumavva.

(b)Basing on the complaint referred by the Court u/s. 156 (3) Cr.P.C., Sri J.

Ramu, the then Sub-Inspector of Police, Police Station Kadam has registered this case vide Crime No.145/2015 u/s. 447, 342, 323, 506, 290 r/w 34 IPC and took-up the investigation.

(c)During the course of investigation, the Sub-Inspector of Police examined and recorded the statements witnesses, visited the scene of offence situated at

Kondukur village, secured the presence of two mediators and conducted scene of offence panchanama before the mediators. On 03.10.2015 at 1500 hours, accused No.1 and 2 came to police station and surrendered before the Sub-

Inspector of Police, by voluntarily admitting the commission of this offence.

Since the offences are bailable in nature upon furnishing sufficient sureties accused were released on bail. After completion of investigation, filed the charge sheet against the accused.

3.This case was taken cognizance against the accused No.1 and 2 for the offences punishable u/s. 447, 342, 323 and 506 r/w 34 of Indian Penal Code.

4.On appearance of the accused No.1 and 2, copies of case records were furnished to them as required u/s. 207 Cr.P.C.

5.Accused No.1 and 2 were examined u/s. 251 Cr.P.C for the offences punishable u/s. 447, 342, 323 and 506 r/w 34 of Indian Penal Code, the substance of the accusation was read over to them, for which they pleaded not guilty and claimed to be tried.

6.During the course of trial, prosecution examined PWs.1 to 8 and got marked

Ex.P1 to P9 on behalf of the prosecution. After completion of the prosecution evidence, accused No.1 and 2 were examined u/s. 313 Cr.P.C. for the incriminating material in the evidence of prosecution witnesses, for which they denied the same and reported no defence evidence.

7.Heard arguments.

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P a g e | 3

8.Now the point that arises for consideration herein is :

Whether the Prosecution has proved the guilt of the accused beyond all reasonable doubt for the above said offences?

POINT :

9.Unfolding the case of the prosecution, PW.1 testified that his agricultural lands and the lands of the accused are adjacent to each other at the outskirts of Kondukuru village. About (4) years ago in the afternoon hours both the accused illegally trespassed into his agricultural fields situated at the outskirts of Kondukuru village and abused him in a filthy language and threatened to kill him and both the accused removed the boundary stones of his land. Later, he approached village elders i.e. Jeevan Reddy, P.

Satyanarayana and one Peddi Srinu and they pacified the matter among them and both the accused promised in the presence of elders that they will get the boundaries measured with the help of Mandal Surveyor at their own expenses after one year. PW.1 further deposed that after one year at 5.00 p.m., when he questioned the accused to get boundaries measured with Mandal Surveyor, but the accused refused and illegally trespassed into his land and abused him in filthy language as “Lanja Koduka” and threatened to kill him. The accused damaged his cotton, turmeric and Maize crop, when he was trying to stop them, both the accused pushed him on the ground and kicked him with legs on his stomach. On hearing his hues and cries, his wife and B. Lachanna and

B. Bhumavva came there, stopped and rescued him from the clutches of the accused, then he informed the said incident to the elders, for which the elders advised him to lodge a complaint in the Police Station, then Police told him to approach the Revenue

Official since it is Civil dispute.

10.PWs. 2 and 3 are projected as eye witnesses; PWs 4, 5 and 7 are said to be the circumstantial witnesses; PW.6 is the panch witness for the Scene of Offence

Panchanama and PW.8 is the Investigating Officer who investigated this crime.

11.Coming to the appreciation of evidence of material on record, the case of the prosecution is that on 10.07.2015 at 5.30 p.m., at the outskirts of Kondukur village accused criminally trespassed into the land of PW.1, wrongfully confined and beat him with hands by abusing him in filthy language and also threatened with dire consequences. In this case, PW.1, who is the defacto complainant narrated the version of the prosecution in the vivid manner. As per the version of PW.1 when he questioned the accused to get the boundaries measured with the Mandal Surveyor, accused refused and illegally trespassed into his land by abusing him in filthy language and

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P a g e | 4 threatened to kill him and accused also damaged his cotton, turmeric and Maize crop and when he was trying to stop them both the accused pushed him on the ground and kicked with legs on his stomach meanwhile B. Lachanna and Bhumavva and the wife of the PW.1 came there and rescued him from the hands of the accused. The said

Lachanna and Bhumavva are examined before this court as PWs 2 and 3. During his evidence PW.2 stated that he does not know the facts of this case and not witnessed any disputes between accused and PW1. PW.3 stated that about three years ago, there was a small dispute between the accused No.2 and PW.1, but no one beat the PW.1.

As PWs. 2 and 3 not supported the case of the prosecution, they were declared as hostile witnesses.

12.PW.8, the Investigating Officer categorically deposed before this court that after registering of this crime, he visited the scene of offence situated at Kondukur village i.e., at the agricultural fields of the PW.1, and conducted scene of offence panchanama

before the mediators. One of the mediators is examined before this court as PW.6. On

perusal of the evidence of PW.6, he stated that about three years ago, the Sub-

Inspector of Police Kadam came to his agricultural fields at Kondukur village outskirts and asked him to sign on a white paper, as it is a proof of his visit to his village. As

PW.6 also not supported the case of the prosecution, he was also declared as hostile witness. Prosecution filed the report along with certificate of Panchayath Secretary,

Kondukur as one of the panch witnesses for the Scene of Offence Panchanama/Kallem

Ramana Reddy left the country for his livelihood, basing on the same his evidence is closed.

13.PW.1 in his evidence stated that for the acts of the accused he approached the village elders/Jeevan Reddy, P. Sathyanarayana and one Peddi Srinu and they pacified the matter among them. The said Sathyanarayana, Damu and Jeevan Redy are examined before this court as PWs. 4, 5 and 7. But during their evidence, they did not support the case version of the prosecution witnesses, they were also declared as hostile witnesses. Admittedly, the Investigating Officer has not collected any document with regard to the scene of offence land, not collected any document from the Village

Revenue Officer concerned with regard to raising of crop by the PW.1 which is said to have damaged by the accused. On careful scrutiny of the evidence of the prosecution witnesses except the evidence of PW.1, there is no other incriminating material on record against the accused. In this case, PW.1/the defacto complainant presented the complaint on 22.07.2015 whereas this incident was occurred on 14.07.2014 for that

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P a g e | 5

PW.1 stated that though he approached to the Sub-Inspector of Police, the Sub-

Inspector of Police not took any steps to register the case against the accused, hence, he filed a complaint before the court and before filing the complaint in the court he approached the Circle Inspector of Police, Khanapur, RDO Office at Nirmal and to the

District Collector, Adilabad and he further admitted that he has not mentioned in the complaint about the said approaching to the C.I of Police, RDO and District Collector for non-registering of the case by the Sub-Inspector of Police, Kadam. There is no proper explanation from the prosecution for the delay in filing the complaint before the Court.

Admittedly, there are civil disputes between the accused and PW.1. Hence in these circumstances, it is unsafe to rely on the sole testimony of the PW.1 to sustain the conviction against the accused. Hence I feel it is a fit case to extend benefit of doubt to the accused.

14.Considering the facts and circumstances of the case, material placed before this

Court and in view of my above discussion, it can be said that the evidence on record is not sufficient to sustain the conviction against the accused. Point is accordingly answered in favour of the accused and against the prosecution.

15.In the result, accused No.1 and 2 are found not guilty for the offences punishable u/s. 447, 342, 323 and 506 r/w 34 of IPC and they are acquitted u/s. 255(1)

Cr.P.C. The bail bonds and surety bonds of the accused shall be in force for a period of six (6) months from today as per Section 437-A Cr.P.C.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me

in the open court on this the 20 th day of February, 2019.

Principal Judicial Magistrate of First class

Nirmal

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

PROSECUTION :ACCUSED PW.1 : Jadi Bhumanna/Defacto Complainant - Nil-

PW.2 : D. Lachanna/Eye witness

PW.3 : B. Bhumavva/Eye witness

PW.4 : P. Satyanarayana/Circumstantial witness

PW.5 : U. Damu/Circumstantial witness

PW.6 : K. Thirupathi/Panch for Crime Details Form

PW.7 : N. Jeevan Reddy/Circumstantial witness

PW.8 : J. Ramu/Investigating Officer

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P a g e | 6

EXHIBITS MARKED ON BEHALF OF

PROSECUTION :ACCUSED Ex.P1 is Private Complaint - Nil-

Ex.P2 is S. 161 Cr.P.C statement of PW2

Ex.P3 is S. 161 Cr.P.C statement of PW3

Ex.P4 is S. 161 Cr.P.C statement of PW4

Ex.P5 is S. 161 Cr.P.C statement of PW5

Ex.P6 is the signature of PW6 on Crime Details Form

Ex.P7 is S. 161 Cr.P.C statement of PW7

Ex.P8 is First Information Report

Ex.P9 is Crime Details Form

MATERIAL OBJECTS MARKED

PROSECUTION :ACCUSED -Nil- -NIL-

Principal Judicial Magistrate of First Class

Nirmal

Page 6 of 6

P a g e | 1

IN THE COURT OF THE PRINCIPAL JUDICIAL MAGISTRATE OF FIRST CLASS,

NIRMAL

Present : Sri Mohd. Abdul Javeed Pasha, Prl. Judicial Magistrate of First Class, Nirmal

Dated this the 18th day of February, 2019

C.C.No.582/2014

(Crime No.98/2014 of P.S. Mamada)

Between:

The State through Sub-Inspector of Police, Police Station Mamada.

...Complainant

// AND //

Gandikota Santhosh, S/o. Durgaiah, Age : 33 years, Occ : Agriculture, R/o. Mamada.

…Accused

This case is coming before me on 13th February, 2019 for final hearing, in the presence of the Assistant Public Prosecutor for the State and Sri Kishan Rao, Counsel

for the Accused and having stood over for consideration till this day, this Court delivered

the following:

:: J U D G M E N T ::

The accused has arraigned before this Court for the offences punishable under section 353 and 290 of Indian Penal Code.

2.The brief averments of the charge sheet are as follows :

(a)The Sub Inspector of Police, Mamada Police Station has filed the charge sheet against the accused alleging therein that on 24.09.2014 at about 1900 hours in view of Dasara festival Navarthrulu, the defacto complainant/Jetti

Ravinder who was working as Panchayath Secretary at Mamada was checking the street lights in front of Forest Office, Mamada, at that time, the accused came to him and questioned the defacto complainant why he was not given the certificate regarding electric meter and assaulted him by abusing in filthy language. The accused caught hold the shirt collar of the defacto complainant and used criminal force to deter from discharging of his legitimate duties.

(b)Basing on the report of the defacto complainant, Sri B. Srinivas, the then

Sub-Inspector of Police, Mamada Police Station registered this case vide Crime

No.98/2014 u/s. 353 and 290 of Indian Penal Code and took-up the investigation.

Page 1 of 5

P a g e | 2

(c)During the course of investigation, the Sub-Inspector of Police examined and recorded the statements of witnesses, visited the scene of offence situated near the Forest Office, Mamada village and drafted the rough sketch in Crime

Details Form before the mediators. On 26.09.2014 at 1.00 p.m., on reliable information, the Sub-Inspector of Police along with his staff rushed to Mamada

Village and apprehended the accused at his house. Upon interrogation, accused voluntarily confessed to have committed this offence then effected his arrest and remanded him to judicial custody. After completion of investigation, filed the charge sheet against the accused.

3.This case was taken cognizance against the accused for the offences punishable u/s. 353 and 290 of Indian Penal Code.

4.On appearance of the accused, copies of case records were furnished to him as required under section 207 Cr.P.C.

5.Accused was examined u/s. 251 Cr.P.C for the offences punishable u/s. 353 and 290 of Indian Penal Code, the substance of the accusation was read over to him, for which he pleaded not guilty and claimed to be tried.

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

Ex.P1 to P7 on behalf of the prosecution. After completion of the prosecution evidence, accused was examined u/s. 313 Cr.P.C. for the incriminating material in the evidence of prosecution witnesses, for which he denied the same and reported no defence evidence.

7.Heard arguments.

8.Now the point that arises for consideration herein is :

Whether the Prosecution has proved the guilt of the accused beyond all reasonable doubt for the above said offences?

POINT :

9.Unfolding the case of the prosecution, PW1 testified that he is working as

Panchayath Secretary at Mamada village since 2009. On 24.09.2014 at about 7.30 p.m., when he was checking the street lights near Forest Office, Mamada then accused came to that place, abused him in filthy language as “Lanja Koduka” and caught hold his

Page 2 of 5

P a g e | 3 collar by saying that why he is not issuing him the certificate for the electric/current meter. At that time, M. Ganganna, Ibrahim and Prakash who were present there, rescued him from the hands of the accused, again immediately accused came and caught hold his collar by abusing him in filthy language. After that he went to the police station and complained the matter to the police as accused obstructed his duties.

10.PWs. 2 and 3 are projected eye witnesses to the case of the prosecution; PW.4 and 5 are said to be the panch witnesses for the scene of offence panchanama; PW.6 is the Investigating Officer who investigated this crime.

11.Coming to the appreciation of evidence of material on record, the case of the prosecution is that on 24.09.2014, at about 1900 hours, in view of Dussera festival

Navarathrulu, PW.1 who is Panchayath Secretary of Mamada village was checking the street lines infront of Forest Office, Mamada, meanwhile accused came there assaulted the PW.1 by abusing him in filthy language, caught hold his collar and used criminal force to deter him from discharging of his legitimate duties, for non-issuance of certificate with regard to electric meter. PW.1, who is the defacto complainant narrated the version of the prosecution in the vivid manner with regard to this incident. But as per the version of PW.1, accused abused him in filthy language, caught hold his collar stating that why he has not issued the certificate of the electric/current meter to him, then PWs 2 and 3 came there and rescued the him from the hands of the accused.

12.On perusal of the evidence of Pws.2 and 3, they simply deposed before this court that they do not know the facts of this case. PWs. 2 and 3 not whispered even about their presence at the scene of offence at the time of this incident. As PWs. 2 and 3 not supported the case of the prosecution, they were declared as hostile witnesses. PW.6, the Investigating Officer categorically deposed before this court that he visited the scene of offence situated near Forest Office, Mamada village and conducted the scene of offence panchanama by incorporating the details of crime in CD form before the mediators and also drawn rough sketch of the scene. But the said mediators who are examined before this court as PW.4 and 5 in a consistent manner deposed that police not conducted any panchanama in their presence but about four years ago, police obtained their signature on some paper and they did not know for what purpose police obtained their signature. As PWs. 4 and 5 not supported the version of the prosecution, hence they were also declared as hostile witnesses. Prosecution filed the report along with the Death Certificate of one of the projected eye witnesses/Rathod Prakash.

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13.On perusal of the evidence of prosecution witnesses, except the evidence of

PW.1, there is no other material on record to sustain the conviction against the accused.

Though PW.1 stated before this court as on the date of this incident, PWs. 2 and 3 rescued him from the hands of the accused, but PWs. 2 and 3 as stated supra even not supported the version of the prosecution, with regard to their presence at the place of this incident at the time of this incident. Hence, I feel it is a fit case to extend benefit of doubt to the accused. Point is answered accordingly.

14.In the result, accused is found not guilty for the offences punishable u/s. 353 and 290 of Indian Penal Code and he is acquitted u/s. 255(1) Cr.P.C. The bail bonds and surety bonds of the accused shall be in force for a period of six months from today as per Section 437-A Cr.P.C.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me

in the open court on this the 18 th day of February, 2019.

Principal Judicial Magistrate of First class

Nirmal

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

PROSECUTION :ACCUSED PW.1 : J. Ravinder/Defacto Complainant - NIL-

PW.2 : M. Ganganna/Eye witness

PW.3 : Shaik Ibrahim/Eye witness

PW.4 : Shaik Abdulla/Panch witness for Crime Details Form

PW.5 : P. Sairam/Panch witness for Crime Details Form

PW.6 : B. Srinivas/Investigating Officer

EXHIBITS MARKED

PROSECUTION :ACCUSED

Ex.P1 is Report presented to Police -Nil-

Ex.P2 is 161 Cr.P.C statement of PW.2

Ex.P3 is 161 Cr.P.C statement of PW.3

Ex.P4 is signature of PW4 on Crime Details Form

Ex.P5 is signature of PW5 on Crime Details Form

Ex.P6 is First Information Report

Ex.P7 is Crime Details Form

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MATERIAL OBJECTS MARKED

PROSECUTION :ACCUSED -Nil- -NIL-

Principal Judicial Magistrate of First Class

Nirmal

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IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE,

AT NIRMAL

O.S. No. 113 of 2017

Between:­

Mekala Shantha, W/o. Shankar, Age: about 45 years, Occ: Coolie, R/o. Upperagudem village, GP Bellal, R/o. Kadam, Nirmal District.

... Plaintiff

// AND //

1. Padigela Andraiah, S/o. Bakkaiah, Age: 50 years, Occ: Agriculture, R/o. Harijanawada, Bellal village, Kadam mandal, Nirmal District.

2. Spadigela Gangarajam, S/o. Padigela Andraiah, Age: 30 years, Occ: Agriculture/Private employee, Harijanawada, Bellal village, Kadam mandal, Nirmal District. … Defendants

DOCKET ORDER DATED 25.02.2019

Plaintiff is called absent. No representation. On perusal of the docket orders, the case is coming for plaintiff ex­parte evidence since long time. Inspite of ample opportunity and conditional orders of this court, plaintiff not adduced any evidence on her behalf. It seems that plaintiff is not interested to proceed the case against the defendants. Hence the suit is dismissed for default.

Prl. Junior Civil Judge, Nirmal.