Sri.P.Murali Mohan Reddy. B.A., B.L.,

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IN THE COURT OF THE XIII ADDL.DIST.& SESSIONS JUDGE

( FAST TRACK COURT) KRISHNA AT VIJAYAWADA.

Present: Sri.P.Murali Mohan Reddy,

XIII Addl. Dist. & Sessions Judge,

(Fast Track Court) Vijayawada.

Tuesday, the 4 th day of April, 2017.

CRL.APPEAL NO.47/2017.

From which Court the appeal is :1st Additional Chief Metropolitan PreferredMagistrate court, Vijayawada.

No. of case in that Court: C.C.No.595/2016.

Name & Description of the :Mandimala Santosh Kumar S/o. John Appellants.Venkata Ratnam, Age 36 years, Caste Mala, Pension Street, Aadivarapupet, Eluru, West Godavari District.

Name & Description of the :The State : SHO Machavaram P.S., Respondents.through SI Central Crime Station, Team No.3, Vijayawada City, through Addl.P.P. MSJ Court, Vijayawada.

The sentence and Law under :In the result, the accused is found which the appellant was guilty of the offence U/s. 411 IPC and convictedhe is convicted U/s. 248(2) Cr.P.C.

Whether confirmed, reversed :In the result, the judgment of the and if modified, the lower court passed in CC. 595/2016 modificationdt:18-01-2017 on the file of I

Additional Chief Metropolitan

Magistrate, Vijaywada for an offence

U/s.411 IPC is here by confirmed. Considering the family back ground of the accused and the accused is in Judicial custody from 24-09-2016 to18-01-2014 and from18-01-2014 to 4-4-2017 i.e., 6 months 11 days. The lower court convicted the accused and sentenced to under go simple imprisonment for a period of one year for an offence u/s 411 IPC. As seen from the record the accused already under gone maximum period of sentence i.e 6 months 11 days, which is sufficient to metes the ends of justice. With the above modification the appeal of the appellant is dismissed. The appellant is set at liberty if he is not required in any other case.

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DATE OF WHICH

Presen- Filing Notice On which On which Hearing Date of tation. issued bail bond appellant Judgment

By Court issued. ordered to

to appear. appear 2-2-2017 2-2-2017 3-2-2017 --- 18-1-2017 4-4-2017 4-4-2017

This Criminal Appeal coming on for final hearing before me on 4-4-2017, upon perusing the grounds of appeal and other material papers on record and upon hearing the arguments of Sri T.R.K.S. Srinivas, Advocate

for Appellant/Accused, and of Sri. Donepudi Sambasiva Rao Addl.Public

Prosecutorfor the Respondent/Complainant and after considering the entire material on record, the court delivered the following:

J U D G M E N T

1.This is an appeal filed by the Appellant/Accused U/s.374(3)

Cr.P.C against judgment passed by the I Addl. Chief Metropolitan Magistrate,

Vijayawada in C.C.No.595/2016 dated 18-01-2017 wherein the learned

Magistrate convicted the appellant/accused and sentenced to undergo

simple imprisonment for one year for an offence U/s.411 IPC.

2. The facts are leadings to file this appeal is as follows:

According to the case of the prosecution the accused is resident of

Pension Street, Eluru, West Godavari District. On 23-08-2016 in between 10.00 pm to 11.00 pm PW2 C. Murali parked Hero Honda Splendor motor cycle bearing no. AP 16 BM 0643 infront of the Ambica Bar and Restaurant,

BRTS road, Sarada college road, SN.Puram, Vijayawada where in unknown offender committed theft of motor cycle. Later PW2 gave a report in the police station and the police registered the case in Crime .No. 452/2016 U/s 379 of S.N.Puram PS.

3. PW1 J. Kishore kept his Bajaj Chetac Scooter bearing no. AP 16 AB 2840 infront his house at Pejjonipet and on 04/5-09-2015 some unknown offender committed theft of scooter. Later PW1 gave a report in the police station and the police registered the case in Crime. No. 470/2016 U/s 379 of

S.N.Puram PS.

4.On reliable information on 11-09-2016 at about 4.00 pm PW4 and his staff and mediators proceeded to Ramavarapadu Ring centre, Vijayawada

PAGE \* MERGEFORMAT 7 and arrested the accused in the presence of mediators. On interrogation the accused have confessed the offence in the presence of the mediators and PW4 seized MO1 Bajaj Chetak and MO2 Hero Honda Splendor motor cycle from possession of Accused under cover of mediator report Ex. P5 and P6 respectively. On 12-09-2016 the Accused was sent for judicial custody. After completion of investigation PW4 filed charge sheet. Hence the charge.

5.The lower court has taken the case on file against Accused for an offence U/s. 379 or 411 IPC as CC. 595/2016.

6.On production of the accused from District Jail, Vijayawada, the lower court furnished copies of documents to him as contemplated U/s.207 Cr.P.C.

The accused was examined U/s. 239 Cr.P.C and a charge U/s. 379 or 411 was framed against accused and the accused pleaded not guilty and claimed to be tried.

7.During the course of trial, the prosecution has examined PWs 1 to 4 and got marked Ex.P1 to P10 and also exhibited MOs 1 and 2.

8.On closure of the prosecution case the accused was examined U/ s.313 Cr.P.C in respect of the incriminating circumstances found in the evidence of the prosecution witnesses and the accused denied the said evidence. The accused reported no defence.

9.On hearing both sides and on appreciation of the entire evidence on record, the lower court found the accused guilty for an offence U/s. 411 IPC and convicted as stated above.

10.Being aggrieved by the same the appellant / accused filed this appeal under the following grounds.

i)The judgment of the lower court is contrary to law.

ii)The lower court ought to have seen that the prosecution failed to prove the case against Appellant iii)The lower court failed to observe that PW 1 and 2 did not identify the accused in the open court.

iv)The lower court failed to observe that PW 2 and 3 are stock mediator to the police.

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v)The lower court failed to observe that Pw4 did not try to secure independent mediators at the alleged place of arrest even though the place of arrest is a busy locality. vi)The lower court failed to observe that the prosecution totally failed to prove the ingredients of Sec. 411 IPC. vii)The lower court failed to see and observe that PW2 clearly admitted in his cross examination that no residents of that locality were called to act as a mediator. viii)The other findings given by the lower court is not correct.

Hence prays to allow this appeal by setting aside the conviction and sentence passed by the lower court in CC. 595/2016 dt. 18- 01-2017 by allowing this appeal.

11)Heard the arguments of the learned counsel for the appellant and learned Addl. Public Prosecutor.

12)Now the points for consideration are-

1) Whether the appellant is rightly found guilty for an offence U/s.411 IPC?

2) Whether the conviction and sentence imposed by the lower court is sustainable under the law?

POINT NO.1

13.The learned counsel for the appellant argued that the investigating officer PW4 did not follow the mandatory procedure while conducting the search and seizure. He further contented that PW1 and 2 did not identified the accused. He further contented that PW4 did not conduct any property identification i.e. MO 1 and 2 identify PW1 and 2 before the mediators. He further contented that PW3 is stock mediator to the police. The lower court did not appreciate the entire evidence on record and came to wrong conclusion and convicted the accused. Hence this appeal may be allowed.

14. On the other hand the learned Addl. Public Prosecutor argued that

PW4 followed mandatory procedure while conducting the search and seizure. He further contented that PW3 is not a stock mediator. He further argued that PW1 and 2 identified MO 1 and 2 . He further supported the judgment of the lower court and there are no grounds to allow this appeal and same is liable to be dismissed.

PAGE \* MERGEFORMAT 7

15.In view of the points raised by both the counsel now I will scrutinize the evidence of the prosecution and how for the prosecution proved the case against the accused beyond all reasonable doubt.

16.It is the case of the prosecution on 05-09-2015 PW1kept his scooter infront of his house at Pejjenipet, Vijayawada and some unknown offenders committed the theft of his scooter. Like wise on 23-08-2016 PW2 kept his motor cycle infront of Ambica Bar and Restaurant and some unknown offenders committed theft of the motor cycle. Later they gave a report in the police station as per Ex. P1 and P3. It is further case of the prosecution on 11-09-2016 at 4.00 pm PW4 arrested the accused in the presence of the mediators and the accused confessed the offence. Basing on the confession made by the accused PW4 seized MO1 and 2 from the possession of the accused.

17.The learned counsel for the appellant contented that PW4 did not follow the mandatory provisions of Sec. 100 (4) CrPC while conducting search and seizure.

18. PW1 J. Kishore and PW2 C. Murali who gave report in the police station under Ex. P1 and P3. They clearly and categorically stated that MO1 and 2 committed theft by some unknown offender.

19. PW3 K. Seetharamaiah is one of the mediator. According to this witness on 11-09-2016 at about 3.00 pm on the request made by the police he went to Machavaram Police station. Later the Crime police and another mediator proceeded to Ramavarappadu ring and at about 4.00 pm the police on conducting vehicle checking apperhanded interrogated him in their presence and the accused confessed the offence. In pursuance of the confession made by the accused police seized one Hero Honda motor cycle under cover of mediator report Ex. P5. Later the accused led the police and mediators to bushes to Near Government General hospital, Vijayawada and produced 5 stolen motor cycles including MO1 and 2 and police seized the same from the possession of the accused under cover of mediator report

Ex. P6.

20. The learned counsel for the accused cross examined PW3 but nothing is elicited. It is the version of PW4 investigating officer also

PAGE \* MERGEFORMAT 7 supported the case of the prosecution that on 11-09-2016 on reliable information he along with staff and mediators proceeded to

Ramavarappadu ring and arrested the accused. On confession made by the accused PW4 seized one motor cycle under Ex. P5. He further stated that the accused led the police party to Government General hospital and he went to bushes and produced MO1 and 2 and the same was seized under cover of Ex.P6. PW1 and 2 stated that the police recovered MO1 and 2 and handedover to them as interim custody under Ex. P4. So, the evidence of

PW1 and 2 coupled with MO1 and 2 clearly establish the theft of Bajaj chetak and Hero Honda Motor cycle.

21. The evidence of PW3 and PW4 with regard to recovery of stolen scooter and motor cycle at the instance of the accused clearly corroborated. The evidence of PW3 clearly identified accused as the same person from whom the police concerned recovered MO1 and 2 besides other stolen properties relating to other cases under Ex. P6. PW3 is the independent witness, he can not speak falsehood against the accused.

There is no enmity between PW3 and accused. There is absolutely no reasons to discord the testimony of PW3.

22. The recovery of MO1 and 2 from the possession of the accused is clearly proved by the prosecution I find no reasons to disbelieve the testimony of PW3 and 4.

23. In view of my above discussion the prosecution rightly proved his case against the accused for offence U/S. 411 IPC. This point is answered accordingly.

POINT NO.2:

24.On appreciation of the entire material available on record, I am satisfied that the trial court rightly appreciated the entire evidence on record and gave finding and thereby convicted the accused .

25.The learned counsel for the appellant contended that the

Accused is having wife and children and he is having 3 kids. He further contended that the appellant is a car driver and he has no any landed property. He further contended that a lenient view may

PAGE \* MERGEFORMAT 7 be taken in this case as the accused is in judicial custody since 24-09-2016.

26.The appellants who is present in the court hall also represented that he is having wife and children and 3 kids who are school going and nobody is look after them if he is in jail. He further contended that he is a driver and he has no source of income to maintain his family members. He further represented that he is in jail more than 6 months and the same may be setoff.

Sec. 411 IPC reads as follows:

Dishonestly receiving stolen property:

Whoever dishonestly receives or retains any stolen

property, knowing or having reason to believe the same to be

stolen property, shall be punished with imprisonment of either

description for a term which may extend to three years, or

with fine or with both:

27. A close reading of the above provision it is clear that the court can impose either the sentence or fine or both.

28.Considering the family back ground of the appellant/accused.

The submission made by the appellant that he is in jail more than 6 months and it is a fit case to consider the request of Appellant.

29.In view of the facts and circumstances of the case in the interest of justice a lenient view is taken in this case and the lower court convicted the accused and sentenced to under go simple imprisonment for a period of 1 year. As seen from the record the appellant accused is in judicial custody from 24-09-2016 to 18-01-2017 and 18-01-2017 to 04-04-2017 i.e. 6 months 11 days. So the sentence under gone by the accused already is sufficient in the interest of justice.

30.In the result, the judgment of the lower court passed in CC.

595/2016 dt. 8-01-2017 on the file of I Addl. Chief

Metropolitan Magistrate, Vijayawada for an offence U/s 411 IPC is

PAGE \* MERGEFORMAT 7 here by confirmed. Considering the family back ground of the accused and the accused is in Judicial custody from 24-09-2016 to 18-01-2017 and from 18-01-2017 to 4-04-2017 i.e 6 months 11 days.

The lower court convicted the accused and sentenced to under go simple imprisonment for a period of one year for an offence u/s 411

IPC. As seen from the record the accused already under gone maximum period of sentence i.e 6 months 11 days which is sufficient to metes the ends of justice. With the above modification the appeal of the appellant is dismissed. The appellant is set at liberty if he is not required in any other case.

Dictated to Personal Assistant, transcribed by her, corrected and

pronounced by me in the open Court, this the 4th day of April, 2017

Sd/- P. Murali Mohan Reddy

XIII Addl. District and Sessions

Judge,

[Fast track court], Vijayawada.

//True Copy//

XIII Addl. District and Sessions Judge,

[Fast track court], Vijayawada.

// True copy//

XIII Addl.District and Sessions Judge,

[Fast track court], Vijayawada.

PAGE \* MERGEFORMAT 7

PAGE \* MERGEFORMAT 2

IN THE COURT OF THE XIII ADDL.DIST.& SESSIONS JUDGE

( FAST TRACK COURT) KRISHNA AT VIJAYAWADA.

Present: Sri.P.Murali Mohan Reddy,

XIII Addl. Dist. & Sessions Judge,

(Fast Track Court) Vijayawada.

Tuesday, the 4 th day of April, 2017.

CRL.APPEAL NO.46/2017.

From which Court the appeal is : I Additional Chief Metropolitan PreferredMagistrate Court, Vijayawada.

No. of case in that Court: C.C.No.593/2016.

Name & Description of the :Mandimala Santosh Kumar S/o. John Appellants.Venkata Ratnam, Age 36 years, Caste Mala, Pension Street, Aadivarapupet, Eluru, West Godavari District.

Name & Description of the :The State : SHO Machavaram P.S., Respondents.through SI Central Crime Station, Team No.3, Vijayawada City, through Addl.P.P. MSJ Court, Vijayawada.

The sentence and Law under :In the result, the accused is found which the appellant was guilty of the offence U/s. 411 IPC and convictedhe is convicted U/s. 248(2) Cr.P.C.

Whether confirmed, reversed :In the result, the judgment of the and if modified, the lower court passed in CC. 593/2016 modificationdt:18-01-2017 on the file of I

Additional Chief Metropolitan

Magistrate, Vijaywada for an offence

U/s.411 IPC is here by confirmed. Considering the family back ground of the accused and the accused is in Judicial custody from 24-09-2016 to18-01-2014 and from18-01-2014 to 4-4-2017 i.e., 6 months 11 days. The lower court convicted the accused and sentenced to under go simple imprisonment for a period of one year for an offence u/s 411 IPC. As seen from the record the accused already under gone maximum period of sentence i.e 6 months 11 days, which is sufficient to metes the ends of justice. With the above modification the appeal of the appellant is dismissed. The appellant is set at liberty if he is not required in any other case

PAGE \* MERGEFORMAT 2

DATE OF WHICH

Presen- Filing Notice On which On which Hearing Date of Tation. issued bail bond appellant Judgment

By Court issued. ordered to

to appear. appear 2-2-2017 2-2-2017 3-2-2017 --- 18-1-2017 4-4-2017 4-4-2017

This Criminal Appeal coming on for final hearing before me on 4-4-2017, upon perusing the grounds of appeal and other material papers on record and upon hearing the arguments of Sri T.R.K.S. Srinivas, Advocate

for Appellant/Accused, and of Sri. Donepudi Sambasiva Rao Addl.Public

Prosecutorfor the Respondent/Complainant and after considering the entire material on record, the court delivered the following:

J U D G M E N T in Crl. A. 46 of 2017.

1.This is an appeal filed by the appellant/Accused U/s.374(3)

Cr.P.C against judgment passed by the I Addl. Chief Metropolitan Magistrate,

Vijayawada in C.C.No.593/2016 dated 18-01-2017 wherein the learned

Magistrate convicted the appellant/accused and sentenced to undergo

simple imprisonment for one year for an offence U/s.411 IPC.

2. The facts are leadings to file this appeal is as follows:

According to the case of the prosecution the accused is resident of

Pension Street, Eluru, West Godavari District. On 23-08-2016 in between 10.00 pm to 11.00 pm PW2 C. Murali parked Hero Honda Splendor motor cycle bearing no. AP 16 BM 0643 infront of the Ambica Bar and Restaurant,

BRTS road, Sarada college road, SN.Puram, Vijayawada where in unknown offender committed theft of motor cycle. Later PW2 gave a report in the police station and the police registered the case in Crime .No. 452/2016 U/s 379 of S.N.Puram PS.

3. PW1 J. Kishore kept his Bajaj Chetac Scooter bearing no. AP 16 AB 2840 infront his house at Pejjonipet and on 04/5-09-2015 some unknown offender committed theft of scooter. Later PW1 gave a report in the police station and the police registered the case in Crime. No. 470/2016 U/s 379 of

S.N.Puram PS.

PAGE \* MERGEFORMAT 2

4.On reliable information on 11-09-2016 at about 4.00 pm PW4 and his staff and mediators proceeded to Ramavarapadu Ring centre, Vijayawada and arrested the accused in the presence of mediators. On interrogation the accused have confessed the offence in the presence of the mediators and PW4 seized MO1 Bajaj Chetak and MO2 Hero Honda Splendor motor cycle from possession of Accused under cover of mediator report Ex. P5 and P6 respectively. On 12-09-2016 the Accused was sent for judicial custody. After completion of investigation PW4 filed charge sheet. Hence the charge.

5.The lower court has taken the case on file against Accused for an offence U/s. 379 or 411 IPC as CC. 593/2016.

6.On production of the accused from District Jail, Vijayawada, the lower court furnished copies of documents to him as contemplated U/s.207 Cr.P.C.

The accused was examined U/s. 239 Cr.P.C and a charge U/s. 379 or 411 was framed against accused and the accused pleaded not guilty and claimed to be tried.

7.During the course of trial, the prosecution has examined PWs 1 to 4 and got marked Ex.P1 to P10 and also exhibited MOs 1 and 2.

8.On closure of the prosecution case the accused was examined U/ s.313 Cr.P.C in respect of the incriminating circumstances found in the evidence of the prosecution witnesses and the accused denied the said evidence. The accused reported no defence.

9.On hearing both sides and on appreciation of the entire evidence on record, the lower court found the accused guilty for an offence U/s. 411 IPC and convicted as stated above.

10.Being aggrieved by the same the appellant /accused filed this appeal under the following grounds.

i)The judgment of the lower court is contrary to law.

ii)The lower court ought to have seen that the prosecution failed to prove the case against Appellant iii)The lower court failed to observe that PW 1 and 2 did not identify the accused in the open court.

PAGE \* MERGEFORMAT 2 iv)The lower court failed to observe that PW 2 and 3 are stock mediator to the police.

v)The lower court failed to observe that Pw4 did not try to secure independent mediators at the alleged place of arrest even though the place of arrest is a busy locality. vi)The lower court failed to observe that the prosecution totally failed to prove the ingredients of Sec. 411 IPC. vii)The lower court failed to see and observe that PW2 clearly admitted in his cross examination that no residents of that locality were called to act as a mediator. viii)The other findings given by the lower court is not correct.

Hence prays to allow this appeal by setting aside the conviction and sentence passed by the lower court in CC. 593/2016 dt. 18- 01-2017 by allowing this appeal.

11)Heard the arguments of the learned counsel for the appellant and learned Addl. Public Prosecutor.

12)Now the points for consideration are-

1) Whether the appellant is rightly found guilty for an offence U/s.411 IPC?

2) Whether the conviction and sentence imposed by the lower court is sustainable under the law?

POINT NO.1

13.The learned counsel for the appellant argued that the investigating officer PW4 did not follow the mandatory procedure while conducting the search and seizure. He further contented that PW1 and 2 did not identified the accused. He further contented that PW4 did not conduct any property identification i.e. MO 1 and 2 identify PW1 and 2 before the mediators. He further contented that PW3 is stock mediator to the police. The lower court did not appreciate the entire evidence on record and came to wrong conclusion and convicted the accused. Hence this appeal may be allowed.

14. On the other hand the learned Addl. Public Prosecutor argued that

PW4 followed mandatory procedure while conducting the search and seizure. He further contented that PW3 is not a stock mediator. He further argued that PW1 and 2 identified MO 1 and 2 . He further supported the judgment of the lower court and there are no grounds to allow this appeal and same is liable to be dismissed.

PAGE \* MERGEFORMAT 2

15.In view of the points raised by both the counsel now I will scrutinize the evidence of the prosecution and how for the prosecution proved the case against the accused beyond all reasonable doubt.

16.It is the case of the prosecution on 05-09-2015 PW1kept his scooter infront of his house at Pejjonipet, Vijayawada and some unknown offenders committed the theft of his scooter. Like wise on 23-08-2016 PW2 kept his motor cycle infront of Ambica Bar and Restaurant and some unknown offenders committed theft of the motor cycle. Later they gave a report in the police station as per Ex. P1 and P3. It is further case of the prosecution on 11-09-2016 at 4.00 pm PW4 arrested the accused in the presence of the mediators and the accused confessed the offence. Basing on the confession made by the accused PW4 seized MO1 and 2 from the possession of the accused.

17.The learned counsel for the appellant contented that PW4 did not follow the mandatory provisions of Sec. 100 (4) CrPC while conducting search and seizure.

18. PW1 J. Kishore and PW2 C. Murali who gave report in the police station under Ex. P1 and P3. They clearly and categorically stated that MO1 and 2 committed theft by some unknown offender.

19. PW3 K. Seetharamaiah is one of the mediator. According to this witness on 11-09-2016 at about 3.00 pm on the request made by the police he went to Machavaram Police station. Later the Crime police and another mediator proceeded to Ramavarappadu ring and at about 4.00 pm the police on conducting vehicle checking apperhanded and interrogated him in their presence and the accused confessed the offence. In pursuance of the confession made by the accused police seized one Hero Honda motor cycle under cover of mediator report Ex. P5. Later the accused led the police and mediators to bushes to Near Government General hospital, Vijayawada and produced 5 stolen motor cycles including MO1 and 2 and police seized the same from the possession of the accused under cover of mediator report

Ex. P6.

20. The learned counsel for the accused cross examined PW3 but nothing is elicited. It is the version of PW4 investigating officer also

PAGE \* MERGEFORMAT 2 supported the case of the prosecution that on 11-09-2016 on reliable information he along with staff and mediators proceeded to

Ramavarappadu ring and arrested the accused. On confession made by the accused PW4 seized one motor cycle under Ex. P5. He further stated that the accused led the police party to Government General hospital and he went to bushes and produced MO1 and 2 and the same was seized under cover of Ex.P6. PW1 & 2 stated that the police recovered MO1 and 2 and handedover to them as interim custody under Ex. P4. So, the evidence of

PW1 and 2 coupled with MO1 and 2 clearly establish the theft of Bajaj chetak and Hero Honda Motor cycle.

21. The evidence of PW3 and PW4 with regard to recovery of stolen scooter and motor cycle at the instance of the accused clearly corroborated. The evidence of PW3 clearly identified accused as the same person from whom the police concerned recovered MO1 and 2 besides other stolen properties relating to other cases under Ex. P6. PW3 is the independent witness, he can not speak falsehood against the accused.

There is no enmity between PW3 and accused. There is absolutely no reasons to discord the testimony of PW3.

22. The recovery of MO1 and 2 from the possession of the accused is clearly proved by the prosecution I find no reasons to disbelieve the testimony of PW3 and 4.

23. In view of my above discussion the prosecution rightly proved his case against the accused for offence U/S. 411 IPC. This point is answered accordingly.

POINT NO.2:

24.On appreciation of the entire material available on record, I am satisfied that the trial court rightly appreciated the entire evidence on record and gave finding and thereby convicted the accused .

25.The learned counsel for the appellant contended that the

Accused is having wife and children and he is having 3 kids. He further contended that the appellant is a car driver and he has no any landed property. He further contended that a lenient view may be

PAGE \* MERGEFORMAT 2 taken in this case as the accused is in judicial custody since 24-09-2016.

26.The appellants who is present in the court hall also represented that he is having wife and children and 3 kids who are school going and nobody is look after them if he is in jail. He further contended that he is a driver and he has no source of income to maintain his family members. He further represented that he is in jail more than 6 months and the same may be setoff.

Sec. 411 IPC reads as follows: Dishonestly receiving stolen property: Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both:

27. A close reading of the above provision it is clear that the court can impose either the sentence or fine or both.

28.Considering the family back ground of the appellant/accused.

The submission made by the appellant that he is in jail more than 6 months and it is a fit case to consider the request of Appellant.

29.In view of the facts and circumstances of the case in the interest of justice a lenient view is taken in this case and the lower court convicted the accused and sentenced to under go simple imprisonment for a period of 1 year. As seen from the record the appellant accused is in judicial custody from 24-09-2016 to 18-01-2017 and 18-01-2017 to 04-04-2017 i.e. 6 months 11 days. So the sentence under gone by the accused already is sufficient in the interest of justice.

30.In the result, the judgment of the lower court passed in CC.

593/2016 dt.18-01-2017 on the file of I Addl. Chief Metropolitan

Magistrate, Vijayawada for an offence U/s 411 IPC is here by

confirmed. Considering the family back ground of the accused and the accused is in Judicial custody from 24-09-2016 to 18-01-2017 and

PAGE \* MERGEFORMAT 2 from 18-01-2017 to 4-04-2017 i.e 6 months 11 days.

The lower court convicted the accused and sentenced to under go simple imprisonment for a period of one year for an offence u/s 411

IPC. As seen from the record the accused already under gone maximum period of sentence i.e 6 months 11 days, the sentence undergone by the accused is sufficient to metes the ends of justice.

With the above modification the appeal of the appellant is dismissed.

The appellant is set at liberty if he is not required in any other case.

Dictated to Personal Assistant, transcribed by him, corrected and

pronounced by me in the open Court, this the 4th day of April, 2017.

Sd/- P. Murali Mohan Reddy

XIII Addl. District and Sessions Judge,

[Fast track court], Vijayawada.

// True copy//

XIII Addl.District and Sessions Judge,

[Fast track court], Vijayawada.

IN THE COURT OF THE XIII ADDL.DIST.& SESSIONS JUDGE

( FAST TRACK COURT) KRISHNA AT VIJAYAWADA.

Present: Sri.P.Murali Mohan Reddy,

XIII Addl. Dist. & Sessions Judge,

(Fast Track Court) Vijayawada.

Thursday, the 06 th day of April, 2017.

CRL.APPEAL NO.301/2016.

From which Court the appeal is I Metropolitan Magistrate, Vijayawada. Preferred No. of case in that Court: C.C.No.725/2013.

Name & Description of the :1. Eeagala Surya Rao @ Suri, S/o. Appellants.Satyanarayna, Hindu, aged about 37 years, P.No.2218, New RR peta, Vijayawada

2. Eeagala Appa Rao, S/o. Narasimha Rao, Hindu, aged about 39 years, P.No.2905, New RR peta, Vijayawada

3. Eeagala Kanaka Rao, S/o. Suryanarayna, Hindu, aged about 39 years, Near Saibabu Temple, Ayodhyanagar, Vijayawada Name & Description of the :The State Inspector of Police, Nunna Respondents.Police Station Vijayawada City.

The sentence and Law under :The accused Nos. 1 to 3 are found not which the appellant was guilty for the offence U/s 341 of IPC convictedand thereby they are acquitted U/ s.255 (1) Cr.P.C. Further the Accused No.1 to 3 are found guilty for the offence punishable U/s 323 r/w 34 of IPC and they are convicted U/s. 255 (2) of Cr.P.C.

Whether confirmed, reversed :This appeal is allowed by setting aside and if modified, the the judgment in C.C.No.725/2013 dt: modification28-09-2016 on the file of I Metropolitan Magistrate, Vijayawada. The Appellants/Accused are acquitted for an offence U/s.323 r/w 34 IPC. Their bail bonds shall stand cancelled. The fine amount if any paid by the accused /appellants shall be returned to them after revision time is over.

DATE OF WHICH

Presen- Filing Notice On which On which Hearing Date of Tation. issued bail bond appellant Judgment

By Court to issued. ordered to

appear. appear

13-10-2016 13-10-2016 14-10-2016 -- 16-11-2016 14-03-2017 06-04-2017

This Criminal Appeal came on for final hearing before me on 14-03-2017, upon perusing the grounds of appeal and other material papers on record and upon hearing the arguments of Sri. I. Pranava Prakash, Advocate for Appellants/Accused, and Addl. Public Prosecutor for the Respondent and after considering the entire material on record, the court delivered the following:

J U D G M E N T

1.This is an appeal filed by the appellants/A1 to A3 U/ s.374 (3) Cr.P.C against judgment passed in C.C.No.725/2013

dated 28-09-2016 on the file of I Metropolitan Magistrate,

Vijayawada.

2.The facts are leadings to file this appeal is as follows:

The Appellants are close associate with each other and they are residents of New RR Peta, Vijayawada. PW1 Bommidi

Samba Siva Rao is resident of New RR Peta, Vijayawada on 17.09.2013 at about 7.30 pm PW1 went to Tejaswini Bar, New

RR Peta, Vijayawada for taking liquor. He took a glass and cleaned it and then going to counter table. A1 who came there, snatched away the glass from PW1. On that hot words had been hurled on both sides, but the matter was not pacified. On the same day at about 8.15 pm PW1 reached near Sai Baba

Temple, New RR Peta, Vijayawada, A1 to A3 came there and asked PW1 as to why he quarreled with A1 at the bar. On that conflict had been taken place between them, harsh words had been hurled on both sides. The Accused caught hold of PW1 and thereby restrained his movements. The accused manhandled PW1. Having come to know about it, LWs2 Shaik

Baji, PW2 Bommidi Babu Rao and PW4 Bommidi Vani came there and the accused also manhandled them. Meanwhile the neighbors pacified the matter. PW1 and other injured got admitted in Government General Hospital, Vijayawada for treatment.

3.LW8 H.C.-1449 of Nunna PS recorded the statement of

PW1 and PW6 SI of Nunna PS registered the case in Crime

No.806/2013 U/s.341, 323 R/w 34 IPC and investigated into the matter. The SI police visited the scene of offence and observed the same. He prepared the rough sketch and examined the witnesses.

4.On 19.09.2013 at 1.00 pm the SI of police arrested the accused at Saibaba Temple, New RR Peta, Vijayawada and sent them for judicial custody. PW5 Dr. J. Indumarthi who treated the injured and issued wound certificates and opined that they sustained simple injuries. Hence the charge.

5.The lower court has taken the case on file for the offence U/s.341, 323 r/w 34 IPC against the accused No.1 to 3 as C.C.No.725/2013.

6.On appearance of the accused the learned

Magistrate furnished the copies of documents to them as

contemplated U/s.207 Cr.P.C. The accused were examined U/s.

251 Cr.P.C for the accusationleveled against them for offence

U/s.341, 323 r/w 34 IPC for which the accused pleaded not guilty and claimed to be tried.

7.During the course of trial the prosecution has examined

PWs 1 to 6 and got marked Ex.P1 to P8.

8.On closure of the prosecution case the Accused were examined U/s.313 Cr.P.C in respect of the incriminating circumstances found in the evidence of the prosecution witnesses and the accused denied the said evidence. The accused reported no defence.

9.On hearing both sides and on appreciation of the both oral and documentary evidence on record, the lower court acquitted the accused for the offence U/s.341 IPC but convicted for an offence U/s.323 r/w 34 IPC and sentenced to undergo rigorous imprisonment for a period of three months.

10.Being aggrieved by the same the Appellants/

Accused No.1 to 3 filed this appeal under the following grounds.

i)The judgment of the lower court is against law. ii)The lower court failed to observe that the ingredients U/s.323 IPC are not applicable to this case.

iii)The lower court failed to observe that there is a delay in giving report and the same is not explained by the prosecution.

iv) The lower court failed to observe that there is a contrary evidence of PW2 and PW3 and their evidence is not supported by any other evidence.

iv)The lower court failed to observe that PW2 and PW3 does not say the persons who gathered at the scene of offence.

v)The lower court failed to observe that PW1/Injured- eye witness and PW4 who is an independent eye witness did not support the prosecution.

vi) The lower court failed to observe that PW5 Doctor clearly stated in her evidence that PW1 stated that she was assaulted. Police did not intimate me.

vii)The lower court failed to observe that the evidence of PW1 reveals that she did not know who is Kanaka Rao and who is Surya Rao and Apparao among the accused.

Hence prays to allow this appeal by setting aside the judgment passed in C.C.No.725/2013 dated 28-09-2016 on the file of I Metropolitan Magistrate, Vijayawada.

11.Heard the arguments of the learned counsel for the appellants and learned Addl. Public Prosecutor.

12.Now the points for consideration are-

1) Whether the appellants are rightly found

guilty for an offence U/s.323 r/w 34 IPC?

2)Whether sentence imposed by the lower court is sustainable under the law?

POINT NO.1

13.The learned counsel for the appellants argued that the evidence of PW2 and PW3 did not corroborate with each other coupled with Ex.P7. He further contended that the evidence of

PW5 coupled with Ex.P4 and P5 did not corroborate with the evidence of eye witnesses. He further contended that there is a delay in lodging FIR and prosecution has not explained the same. The lower court did not appreciate the entire evidence on record and came to wrong conclusion and convicted the appellants/accused. Hence this appeal may be allowed.

14. On the other hand the learned Addl. Public Prosecutor argued that PW2 and PW3 are the injured and eye witnesses and their evidence is clearly corroborated coupled with Ex.P7.

He further contended that the medical evidence of PW5 coupled with Ex.P2 to Ex.P5 clearly corroborated with the version of eye witnesses. The lower court rightly appreciated the entire evidence on record and there are no grounds to allow this appeal and same is liable to be dismissed.

15.The learned counsel for the Appellants firstly contended that the evidence of PW2 and PW3 does not corroborated with each other and there is on other evidence on record to support the version of PW2 and PW3.

16It is the version of PW2 on 17.09.2013 at 7.30 pm he was present in the house along with his wife and somebody telephoned him and informed him that accused No.1 to 3 are beating PW1. He and his wife went to the scene of offence near

Saibaba Temple, RR Peta, Vijayawada when he went there all the accused beating PW1 and LW2 with hands and legs. Then he intervened all the accused beat him with hands and legs, he fell down and then his wife intervened all the accused also beat his wife and torned her blouse. Later they ran away.

17.It is the evidence of PW3 who is the wife of PW2 that at about two years back at 7.30 pm she was present at house along with her husband PW2. Somebody telephoned to PW2 and informed them that accused No.1 to 3 are beating PW1.

She and PW2 went to the scene of offence near Saibaba

Temple, RR Peta, Vijayawada when she went there all the accused beating PW1 and LW2 Baji with hands and legs. Then

PW2 intervened all the accused beat PW2 with hands and legs and he fell down and then she intervened all the accused pushed her and again she intervened then accused torned her blouse.

18.PW1 B Samba Siva Rao who gave report to the police and eye witness did not support the prosecution case.

19.PW4 E Durga Rao also direct eye witness. He did not support the prosecution case. So the evidence of PW2 and PW3 is only available on record.

20.As seen from the evidence of PW2 and PW3, PW2 in his cross examination he says that one Srinu telephoned him who is his neighbours. According to PW3 she says that one Fathima informed her about the incident. It is the evidence of investigating officer that he did not examine any neighbours of the scene of offence. PW2 and PW3 clearly stated that many people gathered at the scene of offence, but PW6 investigating officer admitted in his evidence that he has not examined the persons of neighbouring shops of scene of offence. He further says that he did not examine any witnesses mentioned in the rough sketch.

21.on the other hand their evidence is clear that the accused torned the blouse of PW3, but the report given by PW1 who is silent about the said fact. Even the FIR also silent with regard to torn of blouse of PW3. The evidence of these two witnesses does not disclose specific overtacts of each accused. They simply stated that all the accused beat PW1 and also beat PW2 and PW3. PW2 and PW3 are the interest witnesses and their evidence is not corroborated with any other evidence on record.

22.On the other hand they supported that they did not know names of the accused. In the absence of any independent evidence their evidence cannot be relied.

23.The learned counsel for the appellants further contended that the medical evidence of PW5 does not corroborate with oral evidence. In this regard the evidence of PW2 and PW3 is important. PW2 says that accused beating PW1 when PW2 went there all the accused beat PW1, but he cannot say how many injuries received in the incident. So also PW2 did not say how many injuries received by him. Coming to PW3 also does not say how many injuries received by her in the hands of accused.

24.According to PW5, PW1 received two simple injuries as per Ex.P3. LW1 sustained one simple injury as per Ex.P4.

Coming to PW2 he sustained two injuries as per Ex.P5 i.e. 1) cut injury on the left palm size 4 X 1 cm. 2) Pain in the abdomen.

So PW3 did not sustain any injury.

25.On the other hand PW5 clearly stated in her cross examination that PW1 stated that he was assaulted. The police did not intimate to him. Admittedly PW1 turned hostile and PW2 has supported the prosecution case. So the medical evidence is not corroborated with the oral evidence.

26.The learned counsel for the appellants contended that there is a delay in lodging the FIR and prosecution has not explained.

27.As seen from the record the incident was happened on 17.09.2013 at 08.15 am and Ex.P6 hospital intimation was received on 17.09.2013 at 11.00 pm. FIR was registered on 18.09.2013 at 8.30 pm and FIR was sent to the court on 19.09.2013. At column No.8 of FIR it was mentioned the reason is delay of hospital intimation. So there is a delay in lodging FIR and the prosecution has not explained the same.

28.The learned counsel for the appellants further contended that the lower court acquitted the accused for main offence U/ s.341 IPC and convicted U/s.323 r/w 34 IPC and the conviction is not maintainable.

29.As seen from the record on the date of incident the accused caught hold, restrained and manhandled PW1 when he reached Saibaba Temple, New RR pet, Vijayawada. No witness says about restrainment of PW1. Since PW1 turned hostile to the prosecution case, so when the main offence is not proved, the offence U/s.323 r/w 34 IPC also not established by the prosecution.

30.Basing on uncorroborated testimony of PW2 and PW3 it cannot be said that the prosecution proved the case against the accused.

31.In view of my above discussion the prosecution failed to prove the case beyond all reasonable doubt. This point is answered accordingly.

POINT NO.2:

32.The lower court relied on the evidence of PWs 2 and 3 and simply convicted the appellants/Accused but their evidence is not corroborated with any other evidence on record. Their evidence is not consistent, cogent and cannot be relied. So, the conviction and sentence imposed by the lower court is not maintainable. This point is answered accordingly and in favour of the appellants.

33.In the result, this appeal is allowed by setting aside the judgment in C.C.No.725/2013 dt: 28-09-2016 on the file of I

Metropolitan Magistrate, Vijayawada. The Appellants/Accused are acquitted for an offence U/s.323 r/w 34 IPC. Their bail bonds shall stand cancelled. The fine amount if any paid by the accused /appellants shall be returned to them after revision time is over.

Dictated to Personal Assistant, transcribed by her, corrected

and pronounced by me in the open Court, this the 06th day of April, 2017.

Sd/- P. Murali Mohan Reddy

XIII Addl. District and Sessions

Judge,

[Fast track court], Vijayawada.

//True Copy//

XIII Addl. District and Sessions Judge,

[Fast track court], Vijayawada.

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IN THE COURT OF XIII ADDITIONAL DISTRICT JUDGE : (FTC)

VIJAYAWADA

Present: Sri.P.Murali Mohan Reddy, B.A,, B.L., XIII Additional District Judge,

Wednesday on this the 19th day of April, 2017

C.M.A.No.20 of 2012

Between

1. Kollipara Bhanu Prasad, S/o Radha Krishna Murthy, Hindu, Aged about 53 years, business, Sudarsan Towers, Door No.5-113-2 & 5-114-2, bus stand, Kankipadu

2. Kollipara Rama Seetha, W/o Bhanu Prasad, Hindu, Aged about 47 years, business, Sudarsan Towers, Door No.5-113-2 & 5-114-2, bus stand, Kankipadu

3. Maddula Vishnuvardhan Rao, S/o Rama Rao, Hindu, Aged about 48 years, business, Sudarsan Towers, Door No.5-113-2 & 5-114-2, bus stand, Kankipadu

4. Maddula Sridevi, W/o Vishnuvardhan Rao, Hindu, Aged about 43 years, business, Sudarsan Towers, Door No.5-113-2 & 5-114-2, bus stand, Kankipadu .... Appellants

And

Gandham Nagamani, W/o late Bhimeswara Rao, Hindu, aged about 50 years, Properties, R/o Door No.8-59-1, Kankipadu, Krishna District

.... Respondent

Appeal against the order and decretal order passed in I.A.No.316/2010 in O.S.No.1030/2009 dt.04.04.2012 on the file of VI Addl. Junior Civil Judge, Vijayawada.

Between:

Gandham Nagamani, W/o late Bhimeswara Rao, Hindu, aged about 50 years, Properties, R/o Door No.8-59-1, Kankipadu, Krishna District

... Petitioner/Plaintiff

And

1. Kollipara Bhanu Prasad, S/o Radha Krishna Murthy, Hindu, Aged about 53 years, business, Sudarsan Towers, Door No.5-113-2 & 5-114-2, bus stand, Kankipadu

2. Kollipara Rama Seetha, W/o Bhanu Prasad, Hindu, Aged about 47 years, business, Sudarsan Towers, Door No.5-113-2 & 5-114-2, bus stand, Kankipadu

3. Maddula Vishnuvardhan Rao, S/o Rama Rao, Hindu, Aged about 48 years, business, Sudarsan Towers, Door No.5-113-2 & 5-114-2, bus stand, Kankipadu

4. Maddula Sridevi, W/o Vishnuvardhan Rao, Hindu, Aged about 43 years, business, Sudarsan Towers, Door No.5-113-2 & 5-114-2, bus stand,

Kankipadu .... Respondents/Defendants 1 to

4

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This appeal is coming before me on 18-04-2017 in the presence of Sri. K. Satya Sai Kumar, Advocate for Appellants and of Sri. J. R. Satyanarayana Prasad, Advocate for Respondent and upon perusing the documents and today this court made the following;

J U D G M E N T

1.This is an appeal filed by the appellants/defendants against the orders passed in I.A.No.316/2010 in O.S.No.1030/2009 dt.04.04.2012 on the file of

VI Addl. Junior Civil Judge, Vijayawada.

2.The appellants herein are the defendants 1 to 4 and the respondent herein is the plaintiff in the lower court. The parties in this appeal hereinafter referred to as arrayed in the order of the lower court for the sake of convenience.

3.The respondent/plaintiff filed a petition U/o.39 R.2(A) CPC against the defendants in the trial court with the following allegations.

4.It is averred in the petition that the petitioner is the plaintiff in the main suit. She filed the suit for permanent injunction restraining the respondents/defendants 1 to 4 from making further construction violating approved plan in the plaint B-schedule property and also restraining the defendant No.5 from regularizing unauthorized construction in the plaint B- schedule in violation of approved plan and also directing the defendants 1 to 5 to demolish the unauthorized construction made in the plaint B-schedule site in violation of the approved plan. The petitioner filed two petitions,

I.A.No.303/2009 for granting temporary injunction restraining the 5th defendant from regularizing unauthorized construction made by the defendants 1 to 4 in the B-schedule property. She also filed I.A.No.305/2009 for grant of temporary injunction restraining the respondents/defendants 1 to 4 from making any further construction violating the approved plan in the

B-schedule property. The court granted temporary injunction on merits after hearing both sides, with costs vide orders dt.30.06.2010. After passing injunction orders the respondents/defendants 1 to 4 should not make any further constructions in the B-schedule property. But they are making further constructions in violation of injunction orders passed in I.A.No.305/2009.

Hence, respondents/defendants 1 to 4 liable for prosecution for violating

PAGE \* MERGEFORMAT 7 the injunction orders dt.30.06.2010 made in I.A.No.305/2009 passed by court and committed them to civil prison. Hence the petition.

5.The respondents/defendants 1 to 4 filed counter denying all the allegations mentioned in the petition. It is averred in the counter that there is no further construction violating injunction orders in B-schedule property.

The plaintiff filed this petition to harass these respondents/defendants. The construction of the entire apartment was completed prior to filing of this suit. It is further averred in the counter that only due to vastu dosham in the said apartment some minor deviations happened by deviating approved plan and for that these respondents/defendants submitted regularizing the plan and the same is pending before the 5th defendant. Without completion of construction work, these defendants again filed the above said regularizing plan. The petitioner/plaintiff knows everything that the entire construction was completed, but she filed this petition with a view to sneeze money from these defendants. This petition is not maintainable. Hence prays to dismiss the petition with costs.

6.During the course of enquiry, the petitioner is examined as PW1 and no documents are marked. On behalf of respondents RW1 is examined and got marked Ex.R1 to R12.

7.On hearing both sides and on appreciation of both oral and documentary evidence the lower court allowed the petition to send the respondents/defendants 1 to 4 to the civil prison for a period of one month.

8.Being aggrieved by the same the appellants/respondents 1 to 4 filed this appeal under the following grounds.

1) The order of the lower court is against law;

2) The court below erred in allowing the I.A.No.316/2010 filed by the respondent to send the appellants to the civil prison for a period of one month, without appreciating the fact that the construction of the entire apartment was completed much prior to the institution of the suit and hence the question of making any further construction in violation of the injunction orders does not arise.

3) The court below failed to appreciate the Ex.C1 Commissioner's report, as per which the inner construction work was going on.

4) The court below ought to have seen that the flats were sold to

PAGE \* MERGEFORMAT 7 the respective purchasers and the regularization will arise only subsequent to the alienation of the said flat.

5) The lower court ought to have seen that the entire burden lies on the plaintiff to prove the same, but except the oral evidence of PW1 no other document was filed in support of her case.

6) The lower court ought to have seen that as per the contention of the petitioner some plots were sold to the prospective purchasers and they were not added as parties and hence this petition is not maintainable for non-joinder of proper parties.

7) The lower court erred in holding that Ex.R1 to R12 shows that after filing of the suit, the said transactions were took place, but those documents were entered much prior to the institution of the suit.

9.Hence, prays to allow this appeal by set aside the orders passed in

I.A.316/10 in O.S.1030/2009 dt.04.04.2012 on the file of VI Addl. Junior Civil

Judge, Vijayawada.

10.Heard the learned counsel for the appellants and learned counsel for the respondent.

11.Now the point of for consideration:

1. Whether there are any ground to allow this appeal or not?

12. POINT

The learned counsel for the appellants contended that the construction was completed prior to the institution of the suit and hence the question of making any further construction in violation of the injunction orders does not arise at all. He further contended that the lower court prays which are relied on the commissioner report. He further argued that the lower court did not appreciate the entire material on record and this appeal may be allowed.

13.On the other hand the learned counsel for the respondent contended that the appellants/defendants are making constructions violating the approved plan in the plaint B-schedule property. He further contended that at the time of filing of the suit the constructions were going on, even after injunction orders the appellants/defendants are making constructions and as such they are liable for punishment.

PAGE \* MERGEFORMAT 7

14.The respondent/plaintiff originally filed a suit for permanent injunction restraining the defendants 1 to 4 for making any further construction violating the approved plan in the plaint B-schedule property and restraining the 5th defendant for regularizing unauthorized constructions in the plaint

B-schedule property shown in rough sketch. The plaintiff also prayed for mandatory injunction directing the defendants 1 to 5 to demolish the unauthorized constructions made in the plaint B-schedule property in violation of the approved plan. Apart from the suit the plaintiff also filed an application in I.A.No.305/2009 for grant of temporary injunction restraining the respondents from making any further constructions violating the approved plan in the B-schedule property.

15.On hearing both sides and on merits the lower court passed injunction orders on 30.06.2009.

16.It is the contention of the respondent/plaintiff that even after passing injunction orders the respondents/defendants are making further construction in violation of the injunction orders.

17.In support of her contention the petitioner herself is examined as PW1.

The petitioner/plaintiff obtained injunction orders against respondents/ defendants in further constructions i.e. not to construct any further work in the apartment.

18.The contention of the appellants is that the entire apartment construction work is completed and all plots were sold away to the third parties and no further construction was pending in the apartment. The appellants further contended that without completion of construction work in the apartment no one file application for regularizing the apartment construction.

19.It is an admitted fact that the skeleton of construction of apartment in

B-schedule property constructed by deviating approved plan without leaving setbacks. It is also an admitted fact that the appellants obtained plan for construction of the building by showing A-schedule also in the B-schedule properties. In this case the commissioner was appointed, Ex.C1 is the commissioner report and at the time of visiting the plaint schedule property by the commissioner five floors skeleton work was completed.

PAGE \* MERGEFORMAT 7

20.A reading of above Ex.C1 clearly goes to show that inner construction work of apartment was going on. Admittedly the petitioner/plaintiff obtained injunction orders restraining the respondents not to construct further constructions in the apartment till the disposal of the suit. Ex.C1 clearly reveals that some apartments were sold away as per Ex.R1 to R12. But the recitals of these documents clearly show that the construction is going on in the name of Sudharsan towers at that time. Ex.R1 to R12 sale deeds reveal that the construction took place in the year 2009, 2010 and 2011 also. As per the commissioner report further construction is going on in the apartment.

21.According to the petitioner the approved plan for the apartment construction only for four floors. It is the contention of the appellants/ respondents that some plots were vacant and some plots were sold away.

The commissioner report, photographs clearly reveal that some plots walls were not constructed yet and open pillars are appears. In the said photographs, the masons were doing plastering work over the wall. The commissioner report further clear that in the first floor in the inner side of

West Northern corner, there is a latest construction and work is going on and there is sand, water, mud, material. Therefore the commissioner report clearly goes to show that in the fourth floor middle plot southern side construction work is going on and tiles, sand bag, wooden materials and workers were present and wooden work is going on.

22.The respondents simply contended that they sold away some plots to the third parties after completion of entire construction and the plots are handed over and they are necessary parties. This contention of the respondents cannot be accepted since the petitioner/plaintiff obtained injunction order to stop the work till the disposal of the suit and the respondents/defendants did not stop the same and they are making further constructions. The commissioner report clearly reveals that the 1st floor and 4th floor pillars work is going on at the time of visit. So the respondents/ defendants made further constructions in the B-schedule property in spite of the injunction orders.

23.The learned counsel for the respondent relied a decision reported in

AIR 1997 SC 1240 in between Tayabbhai M. Bagasarwall & another -

Appellants V Hind Rubber Industries Pvt. Ltd. etc. - Respondents. In the above decision the Hon'ble Supreme Court held that the person who

PAGE \* MERGEFORMAT 7 disobeys an interim injunction can be punished under Order 39 Rule 2A even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the court on the question of jurisdiction.

24.A reading of above decision is clearly applicable to the facts of this case.

25.The appellants examined RW1. He stated that he did not know anything about the constructions. He simply filed Ex.R1 to Ex.R12. Therefore his evidence cannot be relied.

26.In view of my above discussion the appellants/ respondents / defendants are liable for punishment for violation of injunction orders. The lower court rightly appreciated both oral and documentary evidence and come to correct conclusion.

27.I do not find any irregularity or illegality committed by the lower court.

There are no tenable grounds to allow this appeal and the same is liable to be dismissed.

28.In the result, this appeal is dismissed by confirming the orders passed in I.A.No.316/2010 in O.S.No.1030/2009 dt.04.04.2012 on the file of VI Addl.

Junior Civil Judge, Vijayawada. In the circumstances both parties bear their own costs.

Dictated to Personal Assistant, transcribed and typed by her, corrected

and pronounced by me in open court on this the 19th day of April, 2017.

Sd/P. Murali Mohan Reddy XIII Addl District & Sessions Judge, (FTC), Vijayawada.

//True Copy//

XIII Addl District & Sessions Judge, (FTC), Vijayawada.

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N THE COURT OF XIII ADDITIONAL DISTRICT & SESSIONS JUDGE

VIJAYAWADA

Present: Sri P. Muralimohan Reddy, XIII Addl. Dist. & Sessions Judge, Vijayawada.

Monday, this the 03rd day of April, 2017.

O.S.NO.40 /2017

Between: Akkapeddi Venkata Hanumantha Rao, S/o late Purushotham, Hindu, Aged about 72 years, Properties, R/o Door No.27-47-4, Pattabhiramaiah Street, Goernorpet, Vijayawada-2 --- Plaintiff

AND

1. Akkapeddi Gopala Sastry, S/o late Triambakam, Hindu, Aged about 70 years, Advocate, R/o Door No.29-26-37, Jagadamvari Street, Suryaraopet, Vijayawada-2

2. Akkapeddi Sivaram, S/o late Triambakam, Hindu, Aged about 64 years, Advocate, R/o Door No.29-13-68, G-1, Sri Vanadurga Residency, Kaleswara Rao Road, Suryaraopet, Vijayawada-2

3. Akkapeddi Potharaja Prakash, S/o late Srinivasa Rao, Hindu, Aged about 58 years, Advocate, R/o Pragathi Apartments, Backside of BSNL Office, Chuttugunta, Vijayawada-4

4. Akkapeddi Venkata Ramana, S/o late Srinivasa Rao, Hindu, Aged about 54 years, Advocate, R/o Door No.32-26-24, Opp. Satyanarayana Swamy Temple, Machavaram, Vijayawada-4

5. Akkapeddi Jagannadham, S/o late Srinivasa Rao, Hindu, Aged about 52 years, Properties, R/o Door No.32-26-24, Opp. Satyanarayana Swamy Temple, Machavaram, Vijayawada-4 -----Defendants

This Original Suit coming on for final hearing before me on 23.03.2017 in the presence of Sri. G. Uttam Naga Raju, Advocate for the Plaintiff and Defendants 1 to 5 remained set exparte and the matter having stood over till this day for consideration this court delivered the following:

J U D G M E N T

1. This is a suit filed by the plaintiff against the defendants for partition of the plaint schedule property into 3 equal shares and to allot one such share to the plaintiff with metes and bounds and put the plaintiff in separate possession of the same and for costs of the suit.

2. The brief averments mentioned in the plaint are as follows:

That one Akkapeddi Gopala Sastry is the absolute owner of the plaint schedule property. During the lifetime of Akkapeddi Gopala

Sastry with his own earnings purchased the plaint schedule property on 26.07.1946 from one Govindaraju Venkata Krishna Rao and others through a registered sale deed and since then he is in possession and enjoyment of the same. The said Akkapeddi Gopala Sastry blessed with four sons and five daughters and during his lifetime he performed the marriages of his daughters and sons except his 2nd son who left house long back prior to the death of Gopala Sastry lived at Chennai with his wife and subsequently they both died without any children.

3.It is further submitted that the said Gopala Sastry died on 06.05.1978 and subsequently the wife of the Gopala Sastry died. After the death of Gopala Sastry, when the said records of Gopala Sastry came out, a Will duly executed by him seen the light and he executed a Will with his own handwriting on 25.01.1975 bequeathing the plaint schedule property to his grandsons and specifically mentioned that after his demise, the plaint schedule property has to be divided into three portions and to take one share by the plaintiff, one share by the 1st and 2nd defendants and another share by third, fourth and fifth defendants. All the defendants are well educated and having sufficient knowledge with regard to the procedure. But they have not chosen to do so for the best reasons best known to them.

4.The plaintiff got issued a legal notice to the defendants on 16.11.2016 calling upon them to effect partition of the plaint schedule property. The defendants received the notices. D1 and D4 got issued a reply notice reporting no objection. Hence the suit.

5. D1 to D5 served with summons and they were remained set exparte.

6.During the course of enquiry the plaintiff himself is examined as

PW1 and got marked Exs.A1 to A17.

7.Heard the learned counsel for the plaintiff.

8.Now the point for consideration.

Whether the plaintiff is entitled for partition of the plaint schedule property, if so on what share?

9.Ex.A1 is the certified copy of the registered sale deed dt.26.07.1946 in favour of late Akkapeddi Gopala Sastry executed by

Govindarju Venkata Krishna Rao and others. Ex.A2 is the translated copy of registered sale deed Dt.26.07.1946. The recitals of Ex.A1 and

A2 clearly goes to show that the grandfather of the plaintiff by name

Akkapeddi Gopala Sastry purchased the plaint schedule property on 26.07.1946 from Govindaraju Venkata Krishna Rao and others. Since then he was in possession and enjoyment of the same with absolute rights. It is also not disputed that the said Akkapeddi Gopala Sastry blessed with four sons and five daughters, he performed all formalities to his children and he lived along with his wife Venkata Lakshmi in the plaint schedule property in upstairs portion and the ground floor divided into three portions and occupied by the sons of Gopala Sastry.

Ex.A3 is the unregistered Will executed by Akkapeddi Gopala Sastry in favour of his grandsons in respect of the plaint schedule property. The recitals of Ex.A3 clearly reveal that the deceased Gopala Sastry executed the Will in favour of his grandsons. Ex.A1 clearly establishes the property belongs to the grandfather of plaintiff. The grandfather of the plaintiff executed Ex.A3 Will in favour of plaintiff and his brothers.

After the death of Gopala Sastry the Will came into light. Ex.A4 is the

Death certificate of Akkapeddi Gopala Sastry and Ex.A5 is the death certificate of Akkapeddi Venkata Lakshmi. Ex.A6 is the death certificate of Akkapeddi Purushotham. Ex.A7 is the death certificate of Akkapeddi

Triambakam and Ex.A8 is the death certificate of Akkapeddi Srinivasa

Rao who is the father of D3 to D5. So the evidence of PW1 coupled with

Ex.A1 to A3 clearly establishes the plaint schedule property is ancestral property.

10.The plaintiff got issued Ex.A10 notice to the defendants for calling upon them for effect of partition of the plaint schedule property.

D1 and D4 received notice and got issued a reply notice stating that they have no objection. The other defendants did not issue any notice which shows that they have no objection for partition of the plaint schedule property.

11.In view of the facts and circumstances of the case it is a fit matter to pass a preliminary decree for partition of the plaint schedule property into three equal shares and to allot one such share to the plaintiff.

12. In the result suit is decreed. A preliminary decree is passed and the plaint schedule property is liable for partition into three equal shares and to allot one such share to the plaintiff with metes and bounds with separate possession. The parties are at liberty to approach the Court for division of the property for filing a separate application. In the circumstances both parties do bear their own costs.

Dictated to the Steno, transcribed and typed by her, corrected

and pronounced by me in the Open Court, this the 03rd day of April, 2017.

XIII ADDL. DISTRCT AND SESSIONS JUDGE,

(FTC), VIJAYAWADA.

APPENDIX OF EVIDENCE

Witness examined

On behalf of Plaintiff: On behalf of

defendants:

PW1: Akkapeddi Venkata Hanumantha Rao NIL

DOCUMENTS MARKED

On behalf of Plaintiff: Ex.A1 :Dt.26-7-1946 Certificate copy of registered sale deed in favour of Late Akkapeddi Gopala Sastry executed by Govindaraju Venkaat Rama Krishna and others Ex.A2 :Dt.26-7-1946 translated copy of registered sale deed Ex.A3 :Dt.25-1-1975 Unregistered Will executed by Late Akkapeddi Gopala Sastry in favour of his grandsons

Ex.A4 :22-01-1991 Death certificate of Akkapeddi Gopala Sastry Ex.A5 :26-4-2000 Death certificate of Akkapeddi Venkata Lakshmi Ex.A6 :16-12-2002 Death certificate of Akkapeddi Purushotham Ex.A7 :09-05-2012 Death certificate of Akkapeddi Triambakam Ex.A8 :17-06-2011 Death certificate of Akkapeddi Srinivasa Rao Ex.A9 :Tax receipts for the period of 2009-2010 Ex.A10:Office copy of the notice dt.16.11.2016 got issued by the plaintiff to the defendants Ex.A11:Acknowledgement from D1 Ex.A12:Acknowledgement from D2 Ex.A13:Acknowledgement from D3 Ex.A14:Acknowledgement from D4 Ex.A15:Acknowledgement from D5 Ex.A16:Reply notice dt.23.11.2016 got issued by D1 Ex.A17:Reply notice dt.26.11.2016 got issued by D4

DOCUMENTS MARKED

On behalf of Defendants: NIL

XIII ADDL. DISTRICT & SESSIONS

JUDGE,

(FTC)

VIJAYAWADA.

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