P. Narayana Babu

MVOP.11 of 2017 1 of 20

IN THE COURT OF VII ADDITIONAL DISTRICT JUDGE – CUM - MOTOR ACCIDENTS

CLAIMS TRIBUNAL NIZAMABAD AT BODHAN.

Present : SRI. P. NARAYANA BABU Chairman, MACT-cum-VII Addl. District Judge, Bodhan.

Friday, the 27th day of May, 2022

MVOP. No. 11 of 2017

Between:

1. Kodali Nirmala Devi W/o Kodali Trishul Shanker Rao, Aged: 43 years,

Occ:Household

2. Kodali Bala Krishna S/o Kodali Trishul Shanker Rao, aged: 25 years, Occ:Nil

Both are R/o H.No.3-16, Ranampalli Camp, Kotagir Mandal, Nizamabad

District.

..Petitioners

And

1. Shaik Latheef S/o Raja Mohammed, Major, Owner of Motorcycle bearing No.TS-16-EG-2574 R/o H.No.1-110, Suleman Nagar village, Ranampally, Nizamabad District.

2. Reliance General Insurance Company Limited, rep.by its Branch Manager, Branch Office, Balaji Bhavan, 2nd Floor, H.No.1-1-329, Vinayaknagar, Beside Kalika Devi Kaman, Nizamabad -503001.

..Respondents

This Original Petition came up before me for hearing on this the 24th day of May, 2022 in the presence of Sri V. M.Sudhakar and Sri V.M.Mahesh Kumar, Counsels for the petitioners and of H.Ankitha, Advocate for respondent No.2 and Respondent No.1 remained exparte, and on consideration of the material evidence on record and having stood over for consideration till date, this Tribunal made the following:

::ORDER::

1.This M.V.O.P. is filed by the Petitioners under section 166(1)(C) of MV

Act r/w. Rule 455 of T.S.M.V.Rules seeking to grant compensation of

Rs.20 Lakhs, on account of death of Kodali Trishul Shanker Rao in Road Traffic

Accident.

2.The brief averments of the petition, are as follows:

The Claimant No.1 is the wife of the (deceased) Kodali Trishul Shanker

Rao. Claimant No.2 is the son of Claimant No.1, aged about 25 years. The 27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 2 of 20

Claimants submitted the Claim Petition against Respondent Nos.1 and 2 alleging that on 19-7-2016 at about 5-00 P.M.. the husband of Claimant No.1 namely Kodali Trishul Shanker Rao was proceeding on his motorcycle bearing

No. AP 25 Q 5541 from Suleman Farm village to Ranampally village on the left side of the road. When he reached in front of the house of Durgavar Satish of

Suleman Faram(v) at about 5-00 P.M., meanwhile a motorcycle rider bearing

No.TS16 EG 2574 who being riding in rash and negligent manner at high speed lost control over his motorcycle and dashed to husband of Claimant No.1’s motorcycle i.e. AP25Q5541. Due to which, Kodali Trishul Shanker Rao fell down from the motorcycle, on which the motorcycle bearing No.TS16 EG 2574 ran over Trishul Shanker Rao/husband of Claimant No.1. As a result, the said

Kodali Shankar Rao had sustained multiple fractures to his left shoulder and dislocated the same from its joint, fracture of ribs, fracture of skull and sustained multiple and grievous injuries all over the body. Immediately, the injured Kodali Trishul Shankar Rao was shifted to Shailander Hospital, Bodhan where he was given first aid treatment and referred him to Government

General Hospital, Nizamabad. Later, the said Kodali Trishul Shankar Rao, admitted in Sunshine Hospital, Secunderabad as inpatient from 20-7-2016 to 10-8-2016 and underwent major operations to his left shoulder, left hand and steel rods were implanted. After discharge from the hospital, he was admitted in HOPE Hospital, Nizamabad, where, he underwent treatment as inpatient from 11-8-2016 to 15-8-2016 and succumbed due to said injuries which he sustained on account of road traffic accident. During course of the treatment, the Claimants had incurred medical expenses of more than Rs.3

Lakhs for the treatment, medicines, transportation of dead body. Further the

Claimants submitted the said accident occurred due to rash and negligent riding of motorcycle baring No. TS 16 EG 2574 by its rider. Due to untime death of husband of Claimant No.1, the Claimants suffered monetary loss and

Claimant No.1 lost her life partnet and Claimant No.2 also lost his parental/father’s guide as well as love and affection. Further submitted that 27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 3 of 20

Claimants have been subjected to mental agoney and loss of earning family member who used to earn monthly Rs.1 Lakh by doing agriculture. Therefore, th present petition filed against the Respondents for claim of compensation a sum of Rs.20 Lakh from the Respondent Nos.1 and 2. Further submitted that

Respondent No.1 is the owner-cum- rider of crime vehicle bearing No. TS 16

EG 2574 and insured with Respondent No.2. The Respondent No.2 is having indemnified liability for Respondent No.1. Further prayed this Tribunal that

Insurance Police No. 1807552312008284 which is valid up to 18-11-2016.

Hence, this Petition.

3.On the other hand, Respondent No.1 was remained exparte as after receiving Notice, he failed to appear before this Tribunal.

4.The Second Respondent, who is Reliance General Insurance Company has submitted its Counter and also contended that alleged injuries caused to

Kodali Trishul Shankar Rao. Further contended that the deceased had no

Riding Licence to his motorcycle and also the rider of crime vehicle/R1 also not holding any Driving Licence to ride the motorcycle. Hence, Respondent No.2 is not liable to pay any compensation as the rider of crime vehicle had breached and violated the terms of the Policy. Further contended that

Respondent No.1 may be directed to produce the original insurance policy

before this Court, failing which, the Respondent No.2 shall be exonerated from

the liability to pay any compensation to the Claimants. Further contended that

Respondent No.1 who was the driver, owner, insured and accused allegedly rode the crime vehicle, was not holding driving licence at the material time of accident and thereby contravened the provisions of M.V.Act and Rules, and committed breach of terms and conditions of the Policy. More over, the police also filed charge sheet against Respondent No.1 under Section 181 of M.V. Act for not possessing driving licence at the time of accident. Further contended that Respondent No.1 did not involve the crime motorcycle bearing No. TS 16

EG 2574 in alleged accident and it is driven in rash and negligent manner by its rider and the Claimants shall strictly prove the same with documentary 27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 4 of 20 evidence. Further contended that without admitting the involvement of the crime vehicle in alleged accident by Respondent No.2 did not admit and deny for want of knowledge that the deceased was aged about ‘0’ years and used to earn Rs.1 Lakh per month by agriculture. Further contended that Respondent

No.1 was the owner of said crime vehicle bearing No.TS 16 EG 2574 and he has no violated any terms of the Policy. Further contended that the Petitioners claim interest @ 24% per annum which is highly excessive and the same is contrary to Section 3 of Interest Act 1978. Respondent No.2 further contended that the amount of compensation claimed by the Claimants is highly exorbitant and the Claimants are not entitled for the same from the

Respondent No.2 and prayed before this Tribunal may be pleased to dismiss the Petition against Respondent No.2 ;with costs.

5. Basing on the above pleadings, my predecessor framed the following issues 1 to 4 for consideration.

1.Whether the accident was occurred due to rash or negligent driving of the driver of the vehicle bearing No.TS16 EG 2574? 2.Whether the compensation claimed by the petitioners is highly exorbitant? 3.Whether the Petitioners are entitled for compensation from the Respondents 1 and 2? 4.To what relief?

In view of the pleadings, the following Additional Issue is framed for appreciation of the mater which was omitted to be framed as recasted as per

Order.14 Rule 5 of CPC “Whether the driver or owner or insured, was not holding

driving licence to drive the motor-cycle TVS XL Super bearing

No.TS16EG2574”?

6.On the Application of Respondent No.2/ Insurance Company under

Section 170 of M.V.Act vide I.A.No.254/2021, it is permitted to raise all the defences that are available under M.V. Act as per order dated 13-12-2021.

7. To prove the claim of the Claimants, the Claimant No.1 herself examined as Pw1 and got marked Ex.P Ex.P7 and examined one eye witness in 27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 5 of 20 support their claim as Pw2. Ex.P1 is the certified copy of charge sheet in

Cr.No.111/2016 of P.S. Kotagiri. Ex.P2 is the certified copy of F.I.R. in

Cr.No.111/2016 of P.S. Kotgiri under Section 337 IPC. Ex.P3 is the certified copy of report given by Chode Srinivas dated 22-7-2016 along with endorsement regarding registering the crime. Ex.P4 is the certified copy of

Crime Detail Form in Cr. No.111/2016 of P.S.Kotagiri. Ex.P5 is the certified copy of Inquest report of the deceased Kodali Trisul Shankar Rao in

Cr.No.111/2016, Ex.P6 is the certified copy of postmortem report of Kodali

Trisul Shankar Rao and Ex.P7 is the certified copy of Assistant Motor Vehicle

Inspector’s Report ( in respect of vehicle No.TS-16-EG-2574).

Ex.C1 original pahani patrika marked through Commissioner.

On the other hand, the Legal Claims Assistant who represented on behalf of Respondent No.2’s company was examined as Rw1 and the then

Asst.Motor Vehicle Inspector, Nizamabad was examined as Rw2 and got marked Exs.R1 to R5. Ex.R1 is the copy of policy of insurance in respect of vehicle bearing Engine No.OD1KF1605043 and Chasis No.MD621BD15F1K2909 of motorcycle TS-16-EG-2574, Ex.R2 is the returned postal cover of the 1st

Respondent, Ex.R3 is the office copy of legal notice dated 25-11-2021 got issued on behalf of Respondent No.2 to Respondent No.1 along with slip, Ex.R4 is the carbon copy of the vehicle check report dated 31-8-2016 in respect of vehicle bearing No.TS-16-EG-2574 and Ex.R5 is the proceedings of Regional

Transport Officer, Nizamabad dated 1-9-2016.

8.After closure of recording of the evidence, the learned counsel for the

Claimants argued that the claimants claimed the compensation amount of

Rs.20 Lakhs on account of road traffic accident, due to which Kodali Trishul

Shankar Rao died, which accident occurred on 19-7-2016 at Suleman Farm(v).

The learned counsel for the Claimants argued which is reiteration of petition contents and also argued that Respondent No.1 made set exparte and

Respondent No.2 who is the insurer is held liable to pay compensation as he is 27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 6 of 20 having indemnified liability to Respondent No.1 as Policy issued by Respondent

No.2 and the same was in force at the time of the accident.

9.On the other hand, the learned counsel for the Respondent No.2 argued that the deceased Kodali Trishul Shankar Rao not died due to alleged sustaining injuries in alleged road traffic accident occurred on 19-7-2016 at

Suleman Faram (v). Further argued that the deceased died due to severe sugar attack only but not undergone treatment in alleged injuries sustained in the accident. Further the Claimants have failed to prove the same. Further argued that as per Ex.P2 the deceased died his Diabetes complaint only and the postmortem examination report under Ex.P5 also not indicate that the deceased Trishul Shanker Rao died while undergoing treatment for his injuries sustained in the alleged accident. One cannot led to death due to injuries to shoulder. There is no mention of any other injuries all over the body in Ex.P5.

Further the learned counsel for Respondent No.2 argued that Respondent No.1 had no Driving Licence to ride his motorcycle. Respondent No.1 himself is liable to pay the compensation to the Claimants. Further argued that the charge sheet under Ex.P2 clearly indicates that Respondent No.1 had no

Driving Licence at the time of alleged accident. More over, the accident took place on 19-7-2016 and the report lodged after 2 days of the alleged accident.

There is a delay in registering the case against the Respondents. As per the contents under Ex.P2 , the injured had admitted in Sunshine Hospital for treatment and due to sugar complain, he was treated for some days. On 10-8- 2016 he was shifted to his village Ranampally Camp to his house and then again on 11-8-2016 his condition was serious, as such, he was shifted to Hope

Hospital, Nizamabad and during the treatment, he died on 15-8-2016. Further argued that Pw1 is not the eye witness to the alleged accident and Pw1 also admitted in her cross-examination that she has not submitted any document to prove that her husband was treated in hospitals. Further argued that at the time of alleged accident, the injured/Kodali Trishul Shankar Rao was 57 years as under Ex.P5 but Pw1 dishonestly denied the fact for her wrongful gain from 27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 7 of 20 the Respondent No.2. Further argued that the said Kodali Trishul Shanker Rao himself fell down from his Bike and he might hae sustained injuries but the

Claimants ;falsely implicated Respondent No.1 for wrongful gain. Further argued that Exs.P1 to P7 never be in continuation treatment for the injured treatment till his death, which can safely come to conclusion that the said

Kodali Trishul Shankar Rao died due to Diabetes problem. Further the learned counsel for Respondent No.2 had relied upon several citations of the Hon’ble

High Courts and Hon’ble Supreme Court which shows that there is no Driving

Licence to crime vehicle.

The learned counsel for Respondent No.2 relied upon a judgment of

A.P.High Court in M.A.C.M.A. No.5299/2008 dated 19-6-2009 in M/s.Bajaj

Allianz General Insurance Company Limited Vs. Bhumireddy Venkata Satya

Rama Rao wherein the Hon’ble High Court held that the petitioner failed to prove the reasons for delay in FIR and his case is lacked bonafides and hence, the petitioner is not entitled for compensation.

The counsel for Respondent No.2 also relied upon a case in Sardari & others Vs. Susheel Kumar and Others reported in 2008(3)-ALT 26(SC) wherein it was held that owner of vehicle would be liable for payment of compensation in a case where the driver was not having licence at all.

Further in Sarala Dixit & another Vs. Balwanth Yadav reported in 1996-

ACJ-581 the Hon’ble Apex Court exonerated the insurer when the driver was not possessing a Driving Licence.

The learned counsel for Respondent No.2 also relied upon a case in

Bontu Venkata Rao & another Vs. Kalla Venkataramana & another reported in 2003(2) ALT 572 wherein it was held that insurance company is not liable because of breach of condition of insurance policy as driver was holding valid driving licence and owner willfully handed over the vehicle. Hence, Insurer cannot be mulcted with any damages.

27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 8 of 20

Further relied upon the decision in Bhuvan Singh Vs. Oriental

Insurance Co. Ltd. reported in 2009 S.C.J. 3 116 and National Insurance Co.

Ltd. Vs. Brij Pal Singh reported in 2003 ACJ 1274, wherein it was held that burden lies on the claimants to prove that the driver had a valid driving licence as on the date of accident.

Further relied upon a decision in United India Insurance Vs. Hussain Sab & others, National Insurance Co. Ltd. Vs. Govindamma & others and New India

Assurance Co. Ltd. Vs. Afroz Bi & others wherein it was held that “the wound certificate, case sheet and other documents relating to petitioner are inadmissible .

The learned counsel for Respondent No.2 also relied upon a case laws in respect of “ No Driving Licence” in (1) High Court of Gujarat in Mohd. Rafix

Munna Bhai Ansari and Gujrath State Road Transport Corporation Judgment

dated 22-10-2021 wherein it is held that the insurer is not liable to indemnify

the Award and the Claimant can proceed against the insured and the First

Respondent for recovery of Award. (2) ;High Court of Gujrat at Ahemedabad in

National Insurance Co.Ltd. Vs. Bharatbhai Bhimji Bhai Songar and 2 others

dated 18-1-2022 wherein it was held that insurance company is not liable to

pay when driver of the offending vehicle does not hold driving licence.

Thus, relying upon the above citations, the learned counsel for the

Respondent No.2 argued that the insurance company is not responsible to pay the compensation and finally prayed to this Tribunal to dismiss the claim petition against Respondent No.2. If the Claimants are liable for compensation, Respondent No.1 only liable to pay the compensation.

10.Issue No.1: Whether the accident was occurred due to rash or negligent driving of the driver of the vehicle bearing No.TS16 EG 2574?

On perusal of oral evidence of Pw1 who is the wife of the injured/deceased reveals reiteration of claim petition. During cross- examination of Pw1 by the learned counsel for Respondent No.2, Pw1 admitted 27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 9 of 20 that she was not an eye witness to the accident and there is two days delay for lodging the report before the S.H.O P.S. Kotagir. Pw1 also admitted that she had not submitted any treatment report before this Tribunal but she vehemently denied that her husband was not aged about 57 years at the time of accident. Further Pw1 admitted that her husband took treatment at Hope

Hospital for his Diabetes. Pw1 also admitted that she has not submitted any

Driving Licence of her husband and income proof of her husband except filing land record marked under Ex.C1. On perusal of Ex.P2 which is certified copy of

F.I.R reveals that a case in Cr.No.111/2016 dated 22-7-2016 for the offence under Section 337 IPC was registered against Respondent No.1 and he was shown as Accused. Ex.P2 also reveals that alleged accident took place on 19-7-2016 at 1700 hours. Ex.P2 registered basing on the report lodged by one

Choda Srinivas S/o Surya Rao who is the cousin (brother) of Kodali Trishul

Shankar Rao. Ex.P3 clearly mentioned by the informant that on 19-7-2016 at about 5 hours in the evening his senior paternal uncle’s son namely Kodali

Trishul Shankar Rao aged 55 years, was proceeding on his motor cycle bearing

No. AP25Q5541 from his field to Ranamapally camp where his house is situated. While he reached to Suleman Faram near Durgewar Satish,

Suryavamsh Jayaram home by left side, meanwhile Respondent No.1 who belongs to Suleman Farm village came on his motorcycle bearing No.

TS16EG2574 in a rash and negligent manner and at high speed and dashed his paternal uncle’s son from back side. Due to which, said Kodali Trishul Shankar

Rao fell down on the road and got fracture to his left hand as sustained injuries. Later the said injured person shifted to Bodhan Hospital and took first aid treatment to his left hand and the said doctors referred him to Hyderabad hospital for better treatment and prayed to take necessary action against the said person.

11. As per Ex.P3, there is two days delay as the injured is very close to informant and the said informant/Pw2 then shifted the injured person to hospitals at Bodhan, Hyderabad and Nizamabad. Ex.P3 and Ex.P2 clearly 27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 10 of 20 shows that the accident took place on 19-7-2016 at about 5 P.M. and Kodali

Trishul Shankar Rao had sustained shoulder injuries and he was admitted in hospitals for treatment due to the injuries sustained in rash and negligent manner of riding by Respondent No.1. Ex.P3 and Ex.P2 also indicate

Respondent No.1 is held liable for the alleged accident.

12.During the course of investigation, the Investigating officer examined

Lws.1 to 14 and filed charge sheet on 7-10-2016 under Ex.P1. Ex.P1 clearly reveals that the Investigating Officer found guilty of Respondent No.1 for the offence under Section 304-A IPC 1860 and also for the offence under Section 181 of of the Motor Vehicles Act, 1988 and submitted charge sheet before the learned Judicial First Class Magistrate, Bodhan. Ex.P1 to Ex.P3 safely conclusion that Respondent No.1 is the owner of the crime vehicle bearing

No.TS16EG 2574 and himself was riding the motor cycle on on 19-7-2016 with rash and negligent manner without holding driving licence to ride motorcycle.

13.To prove the nature of the accident, the claimants also examined Pw2 who was the eye witness to the alleged accident. Pw2/ Wadla Hanmandlu who is resident of Sulemanfarm village of Kotgir Mandal submitted chief examination affidavit inlieu of Court which reveals that he has well aware of the facts of the case. Kodali Trishul Shankar Rao was proceeding on his motorcycle on 19-7-2016 at about 5 P.M. from his village to his village. When he reached to the house of Durgewar Satish situated at Sulemanfaram village,

Respondent No.1 came in rash and negligent riding of motorcycle bearing

No.TS 16EG 2574 and dashed to said Kodali Trishul Shankar Rao in his presence. Immediately, Pw2 and some other people gathered at the accident spot and Pw2 with the help of public, shifted the injured person to Bodhan for medical treatment. Pw2 also deposed that police examined and recorded his statement and the said accident occurred due to rash and negligent riding of rider of the motorcycle/R1.

27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 11 of 20

During cross-examination of Pw2, it reveals that he knows Kodali

Trishul Shankar Rao who has served as Sarpanch and Ex-Member of MPP

Kotgir Mandal. Pw2 also admitted that he was present at the time of accident and himself with the help of others shifted the injured to Government

Hospital, Bodhan for treatment.

14.Now it has to be seen whether Pw2 was an eye witness to the accident.

Now again appreciate Ex.P1 to Ex.P3 whether he was cited as eye witness to the accident or not. There is no name mentioned under Ex.P2 or Ex.P3 that

Wadla Hanmandloo was present at the time of accident, whereas Ex.P1 clearly established that the Investigating Officer was cited the list of witness No.4 as eye witness. Pw2 cited as eye witness in charge sheet under Ex.P1. Therefore, the petitioners established the accident occurred on 19-7-2016 at about 5-00

P.M. at Sulemanfarm village by the rash and negligent motorcycle riding by

Respondent No.1 who dashed to Kodali Trishul Shankar Rao, who was proceeding on his motorcycle. There is no doubt that the Petitioners proved the accident occurred on 19-7-2016. The contention of Respondent No.2 is that there was 3 days delay to lodge the report before the police, but the testimony of Pws.1 and2 clearly establish that immediately after the accident, the injured person was shifted to hospital for treatment. No one can dare to lodge report immediately while a person sustained severe injury in any accident or in any incident and the delay was not intentional or created one.

Hence, the plea of Respondent No.2 is rejected. There is no prejudice caused to Respondent No.2 for delay in lodging of the report of the accident and Ex.P1 and Ex.P2 registered under Section 337 IPC only but during the investigation, the Investigating Officer filed the charge sheet for the offence under Sections 304-A IPC and Section 181 of M.V.Act on 7-10-2016. The Investigating Agency clearly mentioned under Ex.P1 that the evidence collected so far reveals that “on 19-7-2016 at 5-00 P.M. the deceased Kodali Trishul Shankar Rao S/o

Bhagavannarayana, 55 years, who is the elder paternal uncle’s son of 27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 12 of 20 complainant/LLw1 was coming on his bike Hero Honda Glamour bearing

No.AP25Q5541 towards his house at Ranampally village from Sulemanfarm after completion of his agricultural work, when he reached near the house of one Durgewar Sathish and Suryavamsh Jayaram, meantime, theaccused Shaik

Latheef S/o Shaik Raj Mohammed, 30 years, Occ:Labour came on his bike TVS

XL Super bearing No.TS16-EG-2574 from his back side with rash and negligent manner and gave the dash to the bike of Kodali Trishul Shankar Rao , resulting that he fell down from his bike and sustained fracture injury on his left hand. Immediately, shifted him to the private hospital of Dr.Shylender at

Bodhan, on the advice of the ;said doctor, took away the injured to Hyderabad and admitted him for better treatment. While undergoing treatment the injured Kodali Trishul Shankar Rao was died on 15-8-2016. Thus the acts of the accused Shaik Lateef oconstitute an offence punishable under Section 304-A IPC and Sectio 181 of of the Motor Vehicles Act, 1988. “ There is no manipulation under Ex.P1 as the entire facts mentioned has happened from the beginning of the accident and where the injured person took the treatment for his shoulder which is admitted fact that said Kodali Trishul Shankar Rao was Diabetic patient and due to his unexpected accident, his sugar level became high and due to which his sugar was uncontrolled. The alleged accident and said Kodali Trishul Shankar Rao met with the accident due to rash and negligent riding by Respondent No.1 who dashed him on 19-7-2016 at Sulemanfaram village and he took the treatment in several hospitals.

Accordingly, this Issue is answered.

15. Addl.Issue:Whether the driver or owner or insured, was not

holding driving licence to drive the motor-cycle TVS

XL Super bearing No.TS16EG2574”?

It is the contention of Respondent No.2 company that the deceased had no Riding Licence to his motorcycle and also the rider of crime vehicle/R1 also not holding any Driving Licence to ride the motorcycle and the rider of crime vehicle had breached and violated the terms of the Policy. Further it is the 27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 13 of 20 contention of Respondent No.2 company that Respondent No.1 who was the driver, owner, insured and accused allegedly rode the crime vehicle, was not holding driving licence at the material time of accident and thereby contravened the provisions of M.V.Act and Rules, and committed breach of terms and conditions of the Policy. More over, the police also filed charge sheet against Respondent No.1 under Section 181 of M.V. Act for not possessing driving licence at the time of accident. Admittedly, there is no oral or documentary in support of the Claimants to disprove the contention of the

Respondent No.2 company in this regard. More over, the Respondent No.2 company got examined Rw2, the Motor Vehicle Inspector, who issued Ex.R4 vehicle Check Report in respect of crime vehicle No.TS 16 EG 2574 registered in the name of Respondent No.1 and he found that Respondent ;No.1 ;is plying the crime vehicle without driving licence and without pollution under control certificate.

During cross-examination, Rw2 denied that he had no knowledge regarding driving licence of Respondent No.1 and he was deposing false.

Hence, it can be safely concluded that Respondent No.1 had no driving licence at the material time of accident.

In the instant case, it is for the Respondent No.1 and Petitioner to establish positively that Respondent No.1 had driving licence. If at all the driving licence of Respondent No.1 was mis-placed, nothing prevented him to summon the concerned authorities who said to have issued driving licence to depose about the said things, but Respondent No.1 kept quiet without contesting and without participating in the proceedings and Petitioners also not taken any steps in this regard.

The learned counsel for the 2nd Respondent in written arguments mentioned the Ruling of Hon’ble Apex Court Bhuvan Singh Vs Oriental

Insurance Company reported in 2009 SCJ(116) and submitted that the 27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 14 of 20 burden lies on the claimants to prove that the driver had a valid driving licence as on the date of accident.

He also submitted in the written arguments that by virtue of charge sheet by filing under Section 181 for contravention of Section 3 of Motor

Vehicles Act and also not adducing any evidence by Respondent No.1 and also by virtue of Section 106 of Indian Evidence Act as well as Section 114 of Indian

Evidence act, either Petitioner or Respondent No.1 failed to discharge their onus, hence an adverse inference can be drawn in not producing driving licence and mentioned the ruling of Hon’ble Allahabad Court in National

Insurance Company Limited Vs. Brij Pal Singh reported in 2003-ACJ-

1274 in which the Hon’ble Court has pleased to emphasize regarding Section

Illustration(g) 114 of the Evidence Act. Further made mention regarding the

Ruling of Gopal Krishnaji Vs. Mohd.Haji Lateef AIR 1968 SC 1413 in withholding the case to draw an inference can be drawn. These are all established principles of Hon’ble Courts and Hon’ble Courts are kind enough to lay emphasize on the matters and thee is force in the arguments of the learned counsel for the 2nd Respondent in drawing conclusion that Respondent

No.1 being the owner-cum-driver had no effective driving licence and the

Petitioner are Respondent No.1 failed to establish that Respondent No.1 had effective and valid driving licence at the time of accident. Accordingly, this issue is answered.

16. Issue Nos.2 & 3:

Whether the compensation claimed by the petitioners is highly exorbitant?

Whether the Petitioners are entitled for compensation from the Respondents 1 and 2?

It is an admitted fact that the petitioner No.1 is the wife, petitioner

No.2 is the son of the deceased. There is no dispute about the relationship of the petitioners with the deceased.

27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 15 of 20

17.According to petitioners, the deceased was aged about 50 years and he was doing agriculture and owning 20 acres of land and was raising paddy, maize, chilli, turmeric and other commercial crosp and was earning

Rs.1 Lakh per month and he used to contribute the same to the petitioners for their maintenance. In support of the income of the deceased the petitioners did not file any piece of paper to arrive at a conclusion that the deceased was earning the said amount of Rs.1,00,000/- per month by doing agriculture. However, the claimants filed Ex.C1 pahani patrika for the year 2015-16 which shows the land in Sy.No.212/1 extent Ac.2-19 gts, Sy.No.212/

AA extent Ac.1-12 gts, Sy.No.212/3 extent Ac.2-10 gts, Sy.No.212/4 extent

Ac.2-31 gts, Sy.No.212/5 extent Ac.2-34 gts, Sy.No.212/6 extent Ac.2-22 gts and Sy.No.212/7 extent 00-02 gts is standing in the name of the deceased

Shanker Rao. But Petitioners failed to prove that deceased was income tax assessee and no income tax returns submitted. It is difficult to arrive at a conclusion that the deceased was earning Rs.1 Lakh per month from the above said agricultural lands as production of paddy differs every year depending upon climate condition.

Any how as per Minimum Wages Act, a labour is entitled to get

Rs.300/- per day. Further in view of cost of living in the year 2016 and considering the Claimants are the legal heir to the estate i.e. agricultural lands under Ex.C1 left behind by the deceased, the claimants will definitely get the fruits from the said agricultural lands. However, the untimely death of the deceased, will not compensate the petitioners in terms of money. So, in the absence of any specific proof income of the deceased, the income of the deceased can be fixed as Rs.10,000/- p.m. including future prospects.

As per the order of the Hon’ble Supreme Court made in Sarla Varma and others vs. Delhi Transport Corporation and another case (2009 Law Suit (SC) 613 ) and Pranay Sethi Vs Union of India the deduction towards personal and living expenses of the deceased should be one-fourth (1/3rd) . Since the petitioners 1 & 2 are the dependents, 1/3rd income should be deducted 27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 16 of 20 towards personal expenditure and maintenance of the deceased, which comes to Rs.6667/- (10,000 x 1/3= 3333 i.e. 10,000-3333). So the deceased would have provided an amount of Rs.80,004/-p.a (Rs.6667 x 12=80,004/-) to the petitioners. The age of the deceased was ‘50’ years as per the petition contents and also as per pw1 the wife of the deceased.

Howevr, as per Ex.P5 and Ex.P6 inquest and postmortem report, the age of the deceased is shown as ‘57’ years. Considering medical report/Postmortem Examination, the age of the deceased can be taken as ‘57’ years by the time of the accident herein. As per the order of the

Hon’ble Supreme Court made in Sarla Varma and others vs. Delhi Transport

Corporation and another case (2009 Law Suit (SC) 613 ), the multiplier should be chosen with regard to the age of the deceased as per the column

No.4 of the table. As per the said schedule, multiplier ‘9’ is to be adopted.

Hence, Rs.80,004/- x 9 = Rs.7,20,036/- which can be rounded off to

Rs.7,20,100/- can be awarded to the petitioners, which is just and fair compensation.

18. After the accident, the Kodali Trishul Shankar Rao, who was injured was shifted from hospital to hospital i.e. first at Bodhan, thereafter to Hyderabad and last Nizamabad. Thereafter, the deceased died while undergoing treatment and from there to the residence of petitioners at Ranampally village and from there to burial ground to perform funeral. As such, this Tribunal is of the view that it is just and reasonable to award an amount of Rs.20,000/- towards funeral and transportation charges. Petitioner No.1 is the wife of the deceased, she lost the company of her husband and she has to lead her entire life as widow, as such, she is entitled for Rs.40,000/- towards consortium.

Petitioner No.2 being the son, lost the love and affection of his deceased father and also future guidance, hence, an amount of Rs.30,000/- can be awarded towards loss of love and affection.

27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 17 of 20 (a). For the foregoing reasons, the petitioners are entitled to the following compensation from the respondents:

Particulars Amount Compensation 7,20,100-00 Funeral and Transportation charges 20,000-00 Towards Consortium 40,000-00 Towards loss of love and affection 30,000-00 ------------------------- TOTAL Rs.8,10,100-00 ---------------------------- Thus, in all the petitioners are entitled to Rs.8,10,100/- towards compensation.

19. In view of the above, the fact of accident is admitted and proved by the claimants that said Kodali Trishul Shanker Rao died due to his sustaining injuries in accident which leads to high sugar lever and which was uncontrolled during the course of treatment and within one month of the accident, he died on 15-8-2016 while undergoing treatment within one month from the date of accident. Being Diabetic patient, the injuries could not be healed immediately after sustaining injuries or any other kind of injuries and which lead to the death always by going into Coma.

20. The learned counsel for the Claimants relied upon the judgment of the

Hon’ble Supreme Court of India in Civil Appeal No.3047 of 2017 in a case in

between Manuara Khatun and others Vs. Rajesh Kr.Singh and other wherein it was held that Insurance company was directed to pay the awarded sum to the appellants and thereafter directed the insurance company to recover the entire paid awarded sum from the owner/insured of the offending vehicle of

Respondent No.1.

The learned counsel for claimants also relied on another decision reported in Civil Appeal No.6902 of 2021 in a case between Kurvan Ansari @

Kurvan Ali and another Vs. Shyam Kishore Murmu and another which areveals if there any violation, breach in terms of policy between the insurer and insured, the insurance company firstly pay the compensation to the claimants and he is having liability to proceed against the violeter under the Policy.

27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 18 of 20

21. . Now coming to the liability aspect, as stated in the 1st issue, 1st respondent is the rider and owner of the crime vehicle and respondent

No.2 is the insurer of the said motorcycle. The learned counsel for the respondent No.2 argued that respondent No.1 violated the terms and conditions of the policy as he did not possess driving licence at the time of accident, as such, respondent No.2 company is not liable to pay compensation to the claimants. Rw2 the Motor Vehicle Inspector also supported the version of Respondent No.2 company that he issued Ex.R4 vehicle check report to Respondent No.1 in respect of crime vehicle for not possessing driving licence. As per charge sheet Ex.P1 also Respondent

No.1 the accused in Cr.No.111/2016 of P.S.Kotagiri was charged for the offence under Section 181 of M.V.Act was also added. More over, there are contradictions between the Counter of Respondent No.2 company to his arguments. Respondent No.2 company has not mentioned in the Counter that there is violation of the terms of the policy and Respondent No.1 not had any Driving Licence but at the time of cross-examination and examination of Pws.1 and 2, pursuing Ex.P1 to Ex.P7 and he has taken the plea that Respondent No.1 not violated the Driving Licence to ride the motorcycle and Respondent No.2 is not liable. In view of the above, it can be concluded that the Respondent No.1, rider of crime vehicle had no driving licence at the time of accident. Anyhow it is an admitted fact that respondent No.1 has insured the accident vehicle with the respondent No.2 company and Rw1 also admitted the same. Further, Ex.R1 policy was in force at the time of accident. So, respondent No.2 cannot escape from its liability. However, in view of a case between Lal Singh Marabi Vs. National

Insurance Co. Ltd. and others, reported in 2017 ACJ 1362, wherein it is held that Minibus turned turtle and a passenger sustained injuries and the driver of said minibus had no valid licence at the time of accident, thereby held that insurance company is not liable but insurance company is directed to 27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 19 of 20 pay the compensation to claimant and recover the amount from owner and driver of the said minibus. So, the said decision is rightly applicable to the case on hand. Therefore, respondent No.1 being the owner and respondent

No.2 being the insurer of the said accident vehicle, are jointly and severally liable to pay the compensation awarded to the petitioners. Accordingly, these issues are answered.

22. Issue No.4:

i) In the result, this petition is allowed partly with costs. Both the

Petitioners are awarded compensation of Rs.8,10,100/- (Rupees Eight

Lakhs Ten Thousand and One Hundred only) and interest @ 7% per annum from the date of this petition till the date of realization.

ii) Respondent Nos.1 and 2 are jointly and severally liable to pay and deposit the compensation amount of Rs.8,10,100/- to the petitioners within (30) days from the date of this Order.

iii) On such deposit, Petitioner No.1 wife of Kodali Trishul Shankar Rao is allotted her share amount of Rs. Rs.5,67,100/- with proportionate costs and interest and she is permitted to withdraw 80%. The remaining balance amount shall be kept in Fixed Deposit in any Nationalized Banks for a period of two years.

iv) Petitioner No.2, son of Kodali Trishul Shankar Rao is allotted his share amount of Rs. 2,43,000/- with proportionate costs and interest and he is permitted to withdraw his entire share amount.

v) Respondent No.2 is at liberty to recover the compensation amount from the first respondent as per law.

vi) The rest of the claim of the petitioners is hereby dismissed.

Advocate’s fee is fixed at Rs.10,000/-.

Partly dictated to Steno, corrected and pronounced by me in open Court on this the 27th day of May, 2022.

Sd/-

Chairman, Motor Accidents Claims Tribunal – cum- VII Addl.District Judge, Bodhan.

27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

MVOP.11 of 2017 20 of 20

APPENDIX OF EVIDENCE

Witnesses examined

For petitioners:- For Respondent No.2:-

PW-1:Smt.K.Nirmala Rw1:Kommu Kiran Pw-2:Wadla Hanmandlu Rw2:R.Venkata Swamy

Exhibits marked for petitioners: Ex.P1:Certified copy of charge sheet in Cr.No.111/2016 of P.S.Kotagiri. Ex.P2:Certified copy of F.I.R. in Cr.No.111/2016 of P.S.Kotgiri under Section 337 IPC. Ex.P3:Certified copy of report given by Chode Srinivas dated 22-7-2016 along with endorsement regarding registering the crime. Ex.P4:Certified copy of Crime Detail Form in Cr.No.111/2016 of P.S.Kotagiri. Ex.P5:Certified copy of Inquest report of the deceased Kodali Trisul Shankar Rao in Cr.No.111/2016 Ex.P6:Certified copy of postmortem report of Kodali Trisul Shankar Rao Ex.P7:Certified copy of Assistant Motor Vehicle Inspector’s Report ( in respect of vehicle No.TS-16-EG-2574).

Ex.C1:Original pahani patrika marked through Commissioner.

::Exhibits marked for Respondent No.2::

Ex.R1:Copy of policy of insurance in respect of vehicle bearing Engine No.OD1KF1605043 and Chasis No.MD621BD15F1K2909 of motorcycle TS-16-EG-2574 Ex.R2:Returned postal cover of the 1st Respondent, Ex.R3:Office copy of legal notice dated 25-11-2021 got issued on behalf of Respondent No.2 to Respondent No.1 along with slip, Ex.R4:Carbon copy of the vehicle check report dated 31-8-2016 in respect of vehicle bearing No.TS-16-EG-2574 Ex.R5: Proceedings of Regional Transport Officer, Nizamabad

dated 1-9-2016.

Sd/-

Chairman, Motor Accidents Claims Tribunal – cum- VII Addl.District Judge, Bodhan.

27-5-2022 Chairman, MACT-cum-VII ADJ, Bodhan.

Crl.A.117/2016 1 of 18

IN THE COURT OF THE VII ADDITIONAL SESSIONS JUDGE NIZAMABAD

AT BODHAN.

Present: SRI P.NARAYANA BABU, VII Additional Sessions Judge, Bodhan.

Thursday, the 26th day of May, 2022

Criminal Appeal No.117 of 2016

1.From what Court the appeal is Judicial Magistrate of First Class, preferredBodhan.

2.Number of the case in that Court. C.C.No.396 of 2008

3.Name of the appellantA1 Shadullah Mallaiah S/o Rajaiah, 40 years, Occ:Writer in Sub-Registrar Office,Bumadeverpallyof Karimnagar District R/o Sulthanabad Mandal. A2 CharshakurthyBalraj S/o Mandaiah, 38 years, Record As- sistant in ZPHS Bhumannapally of Chigurumamidi Mandal, R/o Saina- gar of Karimnagar Town, Karimna- gar District, T.S.

4.Sentence and law under whichA1 and A2 are found guilty for the offence it was passed.under Sections 420, 468, 471 & 466 punishable under Section 465 IPC and they are convicted under Section 248(2) Cr.P.C. and sentenced to suffer rigorous imprisonment for a period of 2 years each and directed to pay fine of Rs.500/- each, in default, A1 and A2 shall suffer simple imprisonment for a period of one month each for the offence u/S.420 IPC and further sentenced to suffer rigorous imprisonment for a period of 2 years each and directed to pay fine of Rs.500/- each, in default A1 and A2 shall suffer simple imprisonment for a period of one month each for the offence under Section 468 IPC. A1 and A2 further sentenced to suffer rigorous imprisonment for a period of 2 years each and directed to pay fine of Rs.500/- each, in default, A1 and A2 shall suffer simple imprisonment for a period of one month each for the offence under Section 466 IPC. The sentence of imprisonment shall run concurrently and the sentence of fine shall run consecutively. The remand period of A1 from 25-2-2006 to 10-3-2006 and from 19-6-2013 to 10-7- 2013 and from 26-6-2015 to 1-7-2015 and the remand period of A2 from 25-2-2006 to 9-3-2006 and from 28-2-2014 to 22-3-2014 shall be set off under Section 428 of Cr.P.C.

5.Whether confirmed, modified Reversed or reversed:

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Crl.A.117/2016 2 of 18

That this Criminal appeal is coming on 23-5-2022 before me for final hearing in the presence of Sri T.Narasimha Reddy, Advocate for the Appellants/A1 and A2 and Additional Public Prosecutor for the State and after having heard and stood over for consideration, till this day, this Court delivered the following:

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

1)This Criminal Appeal is preferred by the Appellants under Section 374(3) of Cr.P.C. 1973 assailing the Judgment, dated 8-11-2016 in C.C.No.396/2008 passed by the learned Judicial Magistrate of First Class, Bodhan, finding

Appellants/A1 and A2 guilty for the offence under Sections 420, 468, 471 & 466 punishable under Section 465 Indian Penal Code, 1860 (in short IPC) and they are convicted under Section 248(2) Criminal Procedure Code, 1973 ( inshort

Cr.P.C.) and sentenced to suffer rigorous imprisonment for a period of 2 years each and directed to pay fine of Rs.500/- each, in default, Appellants/A1 and A2 shall suffer simple imprisonment for a period of one month each for the offence u/S.420 IPC and further sentenced to suffer rigorous imprisonment for a period of 2 years each and directed to pay fine of Rs.500/- each, in default A1 and A2 shall suffer simple imprisonment for a period of one month each for the offence under Section 468 IPC. A1 and A2 further sentenced to suffer rigorous imprisonment for a period of 2 years each and directed to pay fine of Rs.500/- each, in default, A1 and A2 shall suffer simple imprisonment for a period of one month each for the offence under Section 466 IPC.

2).The parties hereinafter will be referred to as they arrayed before the Trial

Court.

3).The brief facts of the case, as set out in the petition, are as follows:

Basing upon the report of Lw1/Abdul Saleemuddin, Superintendent of learned Judicial Magistrate of First Class Court, Bodhan on 18-2-2016 at 5-45 P.M. the criminal law was set into motion, in which it was alleged that A3 came to Junior Civil Judge’s Court, Bodhan and submitted joining report by

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Crl.A.117/2016 3 of 18

showing his appointment letter and other papers alleging that he was appointed as Junior Assistant in the said Court and as it was appeared, it was issued by somebody and false one, hence, the matter was reported to the then the Hon’ble District Court, Nizamabad through telephone and on instructions of

Hon’ble District and Sessions Judge, Nizamabad on telephone to report the

matter to the concerned and also represented no such appointments were given to anybody,hence, lodged report before the S.H.O. Bodhan for taking necessary action against the said person.

4).Basing on report, the S.H.O. Bodhan registered a case in Cr.No.69/2006 under Sections 420, 468, & 471 IPC and examined the defacto complainant as Lw1 and A3 in the police station, hence, in alleged presence of Lws.5 & 6

Syed Akhtar and Riyazuddin, alleged statement of A3 was recorded and he confessed regarding alleged commission of offence. Basing on confession statement of A3/Jagtiyal Tirupathi, the Investigating Officer brought on record

A1 and A2 as main culprits for the offences under Sections 420, 468, 471 & 466 punishable under Section 465 Indian Penal Code, 1860 (in short IPC).

5).This case was taken on file and took cognizance against A1 to A3 under

Sections 420,, 468, 471, 465 and 466 IPC on 28-8-2008 by the learned Judicial

Magistrate of First Class, Bodhan. On appearance of accused, copies of case

documents were furnished to them as required under Section 207 Cr.P.C and the accused were examined under Section 239 Cr.P.C. and charges for the offences Sections 420,468 IPC were framed against A1 and A2 and under

Section 471 and 465 IPC. against A1 to A3 and when read over and explained to them in Telugu, for which, they denied the charges and pleaded not guilty and claimed to be tried.

6).During the course of trial, to prove its case of the prosecution, examined

Pws.1 to 9 and got marked Ex.P1 to Ex.P16. Pw1 was the Superintendent of learned Judicial Magistrate of First Class Court, Bodhan, Pw2 P.Kiran was an

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Crl.A.117/2016 4 of 18

employee of alleged Xerox Centre, Karimnagar who worked in the year 2005-2006 under control of M.Ravinder/Lw3. Pw3 was the Proprietor of alleged

Computer Institute. Pw4/Syed Akthar was the Office Subordinate of Judicial

Magistrate of First Class Court at Bodhan. Pw5 Riyazuddin was also Office

Subordinate in the Judicial Magistrate of First Class Court at Bodhan. Pw6

Madishetty Adinarayana, who acted as panch for seizure panchanama. Pw7

K.Pentaiah also acted as panch for seizure panchanama. Pw8 was the Asst.

Director Forensic Science Laboratory, F.S.L.,Hyderabad and Pw9 was the

Investigating Officer.

Ex.P1 is the report dated 18-2-2006 marked through Pw1, so also Ex.P2 to P7. The Ex.P8 to Ex.P10 marked through Pw2. Ex.P11 marked portion in confession and recovery panchanama of A3 marked through Pw4. Ex.P12

Seizure panchanama dated 23-2-2006 marked through Pw6. Ex.P13 Forensic

Science Laboratory report marked through Pw8. Ex.P14 FIR in Cr.No.69/2006,

Ex.P15 and Ex.P16 confession and recovery panchanamas of A1 and A2 respectively, marked through Pw9 the Investigating Officer.

M.O.1 is Samsung Monitor, M.O.2 is C.P.U, M.O.3 is Samsung Key Board,

M.O.4 is H.P.Lesser Printer 1010.

7). Basing on oral and documentary evidence, the learned Judicial

Magistrate of First Class, Bodhan convicted A1 and A2 for the offences

punishable under Sections 420, 468, 471 and 466 IPC, punishable under

Section 465 IPC as per Section 248(2) Cr.PC. 1973 and sentenced them to suffer rigorous imprisonment for a period of two years each and also sentenced to pay a fine of Rs.500/- each and in default, A1 and A2 shall suffer simple imprisonment for a period of one month each for the offence under Section 420 IPC. Further sentenced to suffer rigorous imprisonment for a period of 2 years each and also sentenced to pay fine of Rs.500/- each, in default A1 and A2 shall suffer simple imprisonment for a period of one month each for the offence under Section 468 IPC. Further sentenced A1 and A2 to suffer rigorous imprisonment for a period of 2 years each, and also sentenced

Date:26-5-2022 VII.Addl.Sessions Judge,

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Crl.A.117/2016 5 of 18

to pay fine of Rs.500/- each, in default, A1 and A2 shall suffer simple imprisonment for a period of one month each for the offence under Section 466 IPC.

A3 was found not guilty for the offence under Sections 471 & 466 IPC which punishable under under Section 465 IPC and was acquitted under

Section 248(1) Cr.P.C.

8)Aggrieved by the said judgment in CC.No.396/2008 dt.8-11-2016 passed by the learned Judicial Magistrate of First Class, Bodhan, A1 and A2 presented the present Appeal.

9).The learned counsel for A1 and A2 argued and reiterated the Appeal grounds.

10)The Appeal Grounds reads as follows:

The trial Court has not properly appreciated the evidence on record and came to wrong conclusion and convicted the appellants/A1 and A2. The trial

Court did not look into the evidence on record in the proper context and acquitted Accused No.3 and convicted the Appellants/A1 and A2. The evidence of Pw1,Pw4,Pw5 who were the judicial employees, was without any corroboration and full of contradictions and omissions. The police in stead of prosecuting Pw2 and Pw3 who have employee and owner of alleged Computer

Institute, who allegedly handed over fake appointment Order to A3, but got implicated the Appellants/A1 & A2 falsely. There is no eye witness to alleged occurrence of offence and there is no corroborative evidence. There is no independent witness to give strength to alleged confession of A3 who was acquitted. Even though most of the witnesses turned hostile, but the trial

Court convicted the Appellants/A1 and A2. Hence, sought to allow the Appeal and set aside the Judgment of conviction passed by the learned Judicial

Magistrate of First Class, Bodhan against the Appellants/A1 and A2 in

CC.No.396/2008 dt. 8-11-2016 and acquittal of Appellants/A1 and A2 for the

offences under Sections 420, 468, 466 punishable under Section 465 IPC.

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Crl.A.117/2016 6 of 18

11)On the other hand, the learned Addl.Public Prosecutor has not chosen to file Counter and argued vehemently that the prosecution had established and proved the guilt of A1 and A2 beyond all reasonable doubts and finally prayed this Court to dismiss the Appeal by confirming the Judgment in

CC.No.396/2008 dt.8-11-2016 and sentence the accused.

12) Heard both sides.

13) Now the points for consideration is:

(i) Whether the judgment passed by the learned Judicial Magistrate of

First Class, Bodhan in CC. No. 396 of 2008, dt. 8-11-2016 is suffering

any infirmity either on facts or law and the same is liable to be set-aside?

(ii) Whether the prosecution proved the guilt of A1 and A2 for the offences punishable under Sections 420, 468, 466 punishable under Section 465 IPC beyond all reasonable doubt?

14) On perusal of the testimony of Pw1, who is the defacto complainant and judicial employee of Judicial Magistrate of First Class Court at

Bodhan i.e. Superintendent who worked at Bodhan deposed before the trial

Court that he lodged report under Ex.P1, on 18-2-2006. He further stated

before the trial Court that one Tirupathi came to the Court with joining report

as Junior Assistant in Judicial Magistrate of First Class Court, Bodhan along with the proceedings of Hon’ble District and Sessions Judge, Nizamabad. Pw1 found in the said proceedings signature of the District Munsiff Court,

Nizamabad as under Ex.P2 dated 12-8-2005. Pw1 further deposed before the trial Court that the said Tirupathi came along with joining report and other papers under Ex.P3 to Ex.P7 dated 20-9-2005, 30-11-2005, 11-11-2005, 12-1-2006 and postal cover which addressed to Jagtiyal Tirupathi S/o Ramulu.

Raising suspicion over Ex.P2 to Ex.P7, he informed the District Court,

Nizamabad, on which the District Court, Nizamabad informed him that no proceedings issued by the District Court, Nizamabad and instructed him to lodge a report before the Police. As per the instructions of the District Court,

Nizamabad, who has superior authority to Pw1, Pw1 lodged the report under

Ex.P1. During the trial, Pw1 stated that he can identify the said Jagityal

Date:26-5-2022 VII.Addl.Sessions Judge,

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Crl.A.117/2016 7 of 18

Tirupathi if seen, but he identified A2 instead of A3/Tirupathi. The same was observed by the trial Court.

The cross-examination of Pw1 by the defence counsel for A1 and A2 treated as ‘NIL’ as the counsel for A1 and A2 who was not ready to cross- examine Pw1, on the ground of lack of preparation for cross-examination.

Subsequently, Pw1 was recalled by Crl.M.P.No.532/2016 by the counsel for A3.

During cross-examination, Pw1 admitted that he has no acquaintance with A3 and he had not taken any ID proof from A3. Pw1 further stated he sent A3 along with two attenders with report to the police station. Pw1 denied that A3/

Jagtiyal Tirupathi never brought any appointment order and he is deposing false. On perusal of Ex.P1 report dated 18-2-2006 which reveals that “one

Jagtiyal Tirupathi came to the Court and submitted joining report showing his appointment letter and other papers as he was appointed as Junior Assistant in

Junior Civil Judge’s Court, Bodhan. The said appointment letter has issued by somebody and it is a false one. The matter was reported to the Hon’ble

District and Sessions Judge’s Court, Nizamabad through telephonic message.

On that the Hon’ble District and Sessions Judge, Nizamabad instructed on telephone message to report the matter before the S.I. of Police, Bodhan and stated him that no such appointment was given to anybody. Therefore, requested to take necessary action as per law against the persons who approached the Court with alleged documents”.

15)Basing on Ex.P1 report, the S.H.O. P.S. Bodhan registered a case in

Cr.No.69/2006 under Sections 420, 468 and 471 IPC and issued FIR under

Ex.P14. On going through scrutiny of Ex.P1 and Ex.P14, there is no absolutely name of A1 and A2 mentioned, except the name of Jagtiyal Tirupathi. It can easily says that Jagtiyal Tirupathi has the main accused in Cr.No.69/2006 on the file of P.S.Bodhan.

16).The Investigating Agency examined Lw2 to Lw7 apart from Pw1/Lw1.

The contention of the investigating officer is that after registering the case in

Cr.No.69/2006 under Ex.P14, he examined Pw1 and also interrogated Jagtiyal

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Crl.A.117/2016 8 of 18

Tirupathi after taking his custody in P.S. Bodhan. During the interrogation of

Jagtiyal Tirupathi(A3), he made confession before him and Office Subordinates of Judicial Magistrate of First Class Court, Bodhan namely Syed Akthar and

Riyazuddin who cited as Lws.5 & 6(Pw.4 and Pw.5) in his charge sheet. If,

A3/Jagtiyal Tirupathi examined immediately after Lw1/Pw1, the Inveestigating

Officer might have cited the list of witnesses who acted as panch for confession of Jagtiyal Tirupathi/A3, likewise, Lw2 in his charge sheet. Then the chain of circumstances would have established for prosecution case. Whereas, the Investigating Officer has examined Lws.2 to 4 and cited as witnesses in charge sheet prior to Lws.5 & 6. The charge sheet and testimony of Pw9 shows that firstly, he examined Pw1 in the police station. The prosecution version is that A3 i.e. Jagtiyal Tirupathi who cited as ‘prime accused’ under

Ex.P1 and Ex.P14 and the investigating officer has cited him as A3 under charge sheet No.120/2006 dt.23-5-2006,.

17)Now it is to be seen, whether the prosecution established the chain of circumstances of the case, now the Appellate Court is scrutinizing the testimonies of Pws.4 & 5 who were cited as Lws.5 & 6 in the charge sheet. Pw4 and Pw5 who have the judicial employees of Junior Civil Judge’s Court, Bodhan.

The testimony of Pw4 reveals that he knows Pw5 and Accused No.3. Pw4 stated before the Trial Court that on 18-2-2006 the police conducted confession and seizure panchanama at police station, Bodhan at about 6-30 p.m. Further Pw4 stated that “ A3 made confessed that he brought forged appointing order for the post of Attender at Bodhan Munsiff Court. The

Superintendent/Pw1 called the District Court and found that no proceedings were passed by the District Court, Nizamabad and asked to initiate criminal proceedings. A3 reported that one person was working in Sub-Registrar Office and another working in Income Tax office as Lower Division Clerks and handed over forged appointment letter to him/A3. Further A3 stated that apart from him, 13 other persons were given appointment letter by the said two persons, one of whom working at Sub-Registrar Office and another is working at Income

Tax Office”. The confession statement of A3 marked as under Ex.P11.

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Crl.A.117/2016 9 of 18

18)The learned counsel for A1 and A2 had failed to cross-examine Pw4 as not prepared for cross-examination and requested time. The learned Judicial

Magistrate of First Classm, Bodhan had treated the cross-examination of Pw4

as ‘NIL’ by saying that ample time was available for the counsel of A1 and A2 and the matter was pertaining to oldest one. Subsequently, Pw4 recalled under order in Crl.M.P.No.532/2016 by the counsel for A3. During the cross- examination of Pw4 by the counsel for A3, reveals that Pw4 had taken A3 to

Police Station at about 5-00 p.m and also taken the papers from A3 and the same were handed over to the police. Further elicited that Pw4 met A3 on that day at Tea Hotel of Bodhan when he informed that he received appointment letter which is in Telugu for which he/Pw4 stated that it will be in English and took A3 to Pw1 and Pw4 handed over appointment letter and other papers of

A3 to Pw1. The police examined him/Pw4 after 5 days of report. Further Pw4 elicited that police took his signature as panch witness. Pw4 denied that accused handed over the appointment order and other papers to panchas at the time of conducting confession and recovery panchanama of A3. Further

Pw4 admitted during cross-examination that the accused have not confessed

before him and no recovery from the custody of A3. By that time, A1 and A2

not chosen to cross-examine pw4 and reported as ‘NIL’. The Pw4 has not stated before the Court that “A3 disclosed names of A1 and A2 and he will lead them to show where A1 and A2 resident place”, then it would be caused relevency of prosecution case.

19)The testimony of Pw5 reveals the same lines as deposed by Pw4.

Hence, no need to reproduce any appreciation.

During the cross-examination of Pw5 which reveals that the police have shown them some papers which were said to have recovered from A3 and obtained their signatures. The contents of confession panchanama was read over to them. Pw5 admitted during the cross-examination that A3 has not shown the said papers and nothing was recovered from the custody of A3.

Therefore, the learned Addl.Public Prosecutor got permission from theCourt for

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re-examination of witness under Section 154 and 145 of Indian Evidence Act.

During re-examination of the witness pw5 admitted that his entire chief examination is true and correct. Further admitted that at the time of conducting panchanama, the said papers were with the police and it has elicited that only the fact that the police shown Pw5 the papets is true and same were not taken from the pocket of A3. Pw5 also not deposed about A1 and A2 that A3 got received the said alleged appointment Order and he will led panchas ;to show where abouts of A1 and A2.

20)The allegation of the prosecution is that Jagtiyal Tirupathi/A3 made confession during interrogation in the presence of Pws.4 & 5 that A1 and A2 submitted the alleged Ex.P2 to Ex.P7 appointment order. Pws.4 & 5 have not stated before the Trial Court that accused made voluntary confession prior to police custody and the same is irrelevant. If A3 led panchas to show the person who handed over the alleged appointment order to him, which might have relevancy to this case. Pws.4 & 5 clearly admitted that after giving A3 to police custody, the police interrogated and A3 Jagtyal Tirupathi introduced new names namely Shadullah Mallaiah and Charshakurthy Balraj/ A1 and A2 . The testimony of Pw4 clearly established that the Investigating Officer has examined Pws.4 & 5 after 5 days of Ex.P1 and Ex.P4. Whereas, the confession statement of A3 conducted by D.Krishna, S.I. of Police, Bodhan P.S. on 18-2- 2006 at about 6-30 p.m. and the place of conducting confession-cum-seizure panchanama recorded as in the police station of Bodhan. Pw4 clearly admitted that A3 never made any confession and he has not shown any alleged document. The testimony of Pws.4 & 5 clearly established that seizure documents have with the posession of the police, but not collected from the custody of A3. For better understanding and scrutiny of testimony and ruling of law, which established that the confession made before the police officer absolutely inadmissible in evidence with the provisions laid in law of evidence.

However, the same confession made to competent Magistrate becomes admissible if immediately recorded by the Magistrate. Section 25 of Indian

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Evidence Act, 1872 states that “no confession made to a Police Officer shallbe proved as against a person accused of any offence”. Hence, the confession made by A3 Jagtiyal Tirupathi under the custody of police, Bodhan is hit by

Section 24 & 25 of Indian Evidence Act and Pw4 and Pw5 also not established the chain of circumstances that immediately after handing over A3 to police and police recorded the confession statement of accused No.3 on the same day. Pw4 and Pw5 clearly stated that police examined them after 5 days of the incident. However, Pw4 and Pw5 categorically deposed before the trial

Court that on 18-2-2006, A3 came to the Court and produced appointment letter. The Investigating Agency has failed to investigate the matter properly and the case was registered against A3 subsequently the name of A1 and A2 incorporated which leads to lack of investigation and failed to establish the chain of circumstances.

21)The testimony of Pw2 who was the employee of Pw3 i.e. Xerox Center which was situated at Cross-Road of Karimnagar Town, reveals that he worked for 3-4 months as Computer Operator with Pw3 namely M.Ravinder who run the Computer Job Work at Karimnagar. He deposed that Ravinder was owning

Dovua Job Work Centre at Karimnagar Town. Pw2 do not know A1 to A4 during his work with M.Ravinder at Computer Job Work Centre, Karimnagar. One person approached him for job work of English and Telugu matter. Further the testimony of Pw2 reveals that he can identify the job done by him by Heading on the papers. Ex.P8 is 16 sheets of papers containing the letter Heads of

Government of Andhra Pradesh, addressed to District Munsif Court, Adilabad,

District Registrar, Warrangal, Dist.Munsif Court, Warrangal, Sub-Registrar,

Janagam, Sub-Registrar, Manthani. Ex.P9 is 7 sheets of paper containing telugu matter with a letterr Head of Andhra Pradesh Government. The trial

Court observed the witness and confronted with Ex.P2 to Ex.P5. Further Pw2 reveals that as per the matters given to him in job work, he typed the matter at the instructions of persons who approached him. The police examined him and recorded his statement. At that stage, the learned Asst.Public

Prosecutor ;sought permission to cross-examination of witness under Section

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154 of Indian Evidence Act. Nothing was elicited during the cross-examination and the same was denied by the witness and got marked Ex.P10 portion in 161

Cr.P.C. statement of witness.

There was no cross-examination of Pw2 by the defence.

22) The testimony of Pw3 who was the proprietor of job work center by name Divya Job Work Center at Karimnagar. The testimony of Pw3 reveals that Pw2 worked as computer operator for 5 to 6 months in the year 2005-06.

Several persons approached his shop for job work. Further reveals that as several persons approached the job work center, they could not remember their names, who approached them, but he categorically deposed that he can identify the persons who approached him in the present case and identified A2 as one of the two persons(A1 was absent for Court proceedings).

During the cross-examination of Pw3, it was elicited that police brought

A2 and another person. Pw3 denied he identified A2 at the instance of police.

There was no specific suggestion elicited against the accused as pw2 and Pw3 nothing was stated anything against A1 to A3. But Pw3 identified one of the accused who was present in the Court proceedings, but he did not state his name. There is possibility of identification of any persons at the instance of police or who were standing on the Dock.

The testimonies of Pw2 and Pw3 categorically admitted that they did job work on head-note paper of “Government of Andhra Pradesh” The said job works and Computer or Xerox Centers not permitted to do any kind of

Government Job Work without any contract or permission of Government. If any unauthorized person practiced the same, it is the duty of the said institutes/job work center, shall be inform to Police.

23.Now the testimony of Pw6 and Pw7 are the panchas for seizure panchanama of material objects at Geetabhavan Chowrasta, Karimnagar. The testimony of Pw6 and Pw7 reveals that they know each other. In the year 2006 police conducted seizure panchanama at Geetabhavan Chowrasta of

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Karimnagar District in Computer Xerox center. The police seized the computer, printer, its Data, CPU in their presence and obtained their signatures. Both the witnesses had identified their signatures on seizure panchanama.

24.During cross-examination of Pw6 and Pw7 nothing was elicited but the testimony of Pw7 reveals that Pw7 knows A1 to 3. A2 was present while the police conducted seizure panchanama in connection with preparing of false documents for getting jobs through such computers. The avocation of Pw6 and Pw7 shown in charge sheet as well in deposition that Pw6 is agriculturist and Pw7 has Tailor. They have categorically deposed before the trial Court that A2 Mallaiah was identified by Pw6 who was farmer and Pw7 who knows A1 to A3. Pw6 and Pw7 did not state before the trial Court about they got acquaintance with accused and for what purpose they have identified. Being a tailor or any farmer, no way concerned with computer job work center and they do not know what was going behind them, who approached to job work centre or what they obtained documents from the job work center. But the testimony of Pw6 and Pw7 can be safely scrutinized that the investigating agency seized the material objects under M.Os.1 to 4 in their presence.

M.Os.1 to 4 are belong to Pw3 but not belong to and A2. Pw6 and Pw7 are not the material witnesses and they have not stated anything against A1 and

A2 or others except identification.

25.The testimony of Pw8 who is the Asst.Director of FSL who deposed

before the trial Court that he was worked as Scientific Officer at FSL at

Hyderabad. On 22-4-2006 FSL received requisition from SDPO Bodhan for examination of certain documents and opinion in Cr.No.69/2006 of P.S.

Bodhan. Pw8 examined 19 appointment letters containing the questioned writing marked by him as Q1 to Q28 and also received standard writi8ngs of

S.Mallaiah on 10 sheets marked by him as S1 to S13 and he examined the

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questioned and stardard writings and opined as “ person who wrote the red enclosed writings marked S1 to S13 also wrote red enclosed writings marked

Q1 to Q28”, and he issued opinion under Ex.P13 dated 12-5-2006. It is noticed to this Appellate Court, there is not at all marked the FSL report and there is no exhibit seal or endorsement of trial Judge, but recorded in evidence of Pw8 and Judgment. Ex.P13 not properly apreciated.

During the cross-examination of pw8, Pw8 admitted that all the documents received by them through police person. By the time the documents have sent to him, the specimen writ6ings were already collected.

Pw8 denied that Ex.P13 issued at the instance of police personnel. It is elicited that the standard writing belongs to S.Mallaiah(A2). Further nothing was elicited. The testimony of pw8 clearly establisghed that investigation agency has failed to follow the procedure the specimen signature of parties shall be collected in presence of Judicial/Presiding Officer and it should referred through

Court, then it will be valid one. The Expert shall give opinion after obtaining judicial order.

26.The oral evidence of prosecution have not supported each other and the documentary evidence also not corroborated to each one with the chain of circumstances.

27.The testimony of Pw9 who is the Investigating Officer deposed before the trial Court is on the lines of chargesheet contents. The learned Judicial

Magistrate of First Class, Bodhan has come to the conclusion basing on the

testimony of Pw4 and Ex.P11 that A3 made voluntary extra judicial confession even A3 confession recorded in the custody of police, Bodhan before

Pws.4 & 5, which reflects his innocence and involvement of A3 not reflecting for any offence. Further came to the conclusion that there hs no mens-rea made out against A3 as under Ex.P7 to Ex.P11 but the learned Judicial

Magistrate of First Class, Bodhan has not scrutinized and the Rule of law under

Section 24 and 25 of Indian Evidence Act which hit “where any person made any confession in police custody” and came to wrong conclusion that A3

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voluntarily made confession before Pw4 and Pw5. Further Pw4 and Pw5 did not depose before the trial Court that police examined them on the same day i.e. on 18-2-2006 and they admitted during the cross-examination that police examined them after 5 days of the incident. Further the learned Judicial

Magistrate of First Class, Bodhan came to conclusion that Pw2 and Pw3 clearly

deposed with regard to involvement of two persons and Pw3 identified one of the accused when one of the accused was absent for Court proceedings.

Further the learned Judicial Magistrate of First Class, Bodhan came to conclsuion that the testimony of Pw2 and Pw3 very important for link of A1 and A2 in the charge sheet. The learned learned Judicial Magistrate of First

Class, Bodhan failed to assess which accused entrusted job work to them.

Basing on the statement of Pw2 and Pw3, the police Bodhan have seized the material objects M.Os.1 to 4 which used by Pws.2 and 3. The testimony of Pw2 and Pw3 also not fully established about the guilt of A1 and A2. Further the learned Judicial Magistrate of First Class, Bodhan also wrongly concluded that

Pw8 who is the scientific expert, he identified the signature of A2 on questioned documents as well as admitted handwriting of A2 and he gave opinion under Ex.P13. But the learned Judicial Magistrate of First Class,

Bodhan has failed to appreciate the testimony of Pw8 and the procedure laid down to get the specimen signatures of established eprsons and alleged forged document as under the Indian Evidence Act. Hence, the conclusion of the learned Judicial Magistrate of First Class, Bodhan suffers from any law and facts of the case.

28.Further the learned Judicial Magistrate of First Class, Bodhanhas failed to examine A3 whether he has made confession free and without coercion. The said evidence must be proved by the prosecution. The case of the prosecution is that Jagyal Tirupathi/A3 made confession with regard to A1 and A2 who gave the certificates under Ex.P2 to Ex.P7 and the said certificates had forged and fabricated by A1 and A2. The learned Judicial Magistrate of First Class,

Bodhan failed to srcutiny the documents under Ex.P2 to Ex.P7 and there is no

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endorsements of the learned Judicial Magistrate of First Class, Bodhan except mentioning in the judgment. The operative portion of confession statement of

A3 under Ex.P11 which reads as under:

“A3 has shown the letter transactions i.e. 12 papers, out of which 8 originals and 4 duplicate, xerox papers, medical certificate pertaining to March, April, May, June, August, September, November, December, 2005 and January, February 2006 and the same was seized and handed over to SI duly affixed with panch chits after read over the contents of panchanama”.

The confession statement of A3 consists of 5 pages, but there is no mention and stated by A3 that he will be show the address of A1 and A2 in any way.

Ex.P11 is not comes under extra judicial confession. Ex.P11 recorded after registering the crime No.69/2006 for the offences under Sections 420, 468, 471

IPC of Bodhan P.S. at about 6-30 p.m. Ex.P1 and E.P14 received by the

Investigating Officer on 18-2-2006 at about 5-45 p.m. whereas, a case in

Cr.No.69/2006 was registered at the same time on 18-2-2006 at about 5-45 p.m. wheras Ex.P11 recorded in P.S. Bodhan after registering the crime under Ex.P14 at about 6-30 hours. Hence, the confesison of A1 not amounting to extra judicial confession and it can be safely treated as confession before the Investigating Officer during the course of investigation. The Hon’ble

Supreme Court held in “Ramsingh Vs Soina reported in 2007 SC 1218 “ that “no confession made before the police, unless it is made in the immediate presence of judicial magistrate”.

In this case, the Investigating Officer has failed to refer A3 before the Judicial

Magistrate for recording the confesison statement or Magistrate recorded

statement under Section 164 Cr.P,.C. statement of A3. It is established law that “ a confession made to a person by accused cannot be used unless conditions of Section 24 of Indian Evidence Act is satisfied. The same is held in

State Of U. P vs Deoman Upadhyaya AIR 1960. It is not the case of the prosecution that the Accused No.3 made confessions before the Judicial

Magistrate and the conviction of A1 and A2 is valid. If an extra judicial

confession made by one of the accused can be used to convict the other

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accused under Section 30 of Indian Evidence Act. But in the present case, the prosecution has failed to examine Accused No.3 before the trial Court. As per

Section 27 of Indian Evidence Act, “information provided by the accused which led to discovery of facts is relevant”. But in the present case, the prosecution has failed to prove the leading discovery of facts. The entire material objects verywell available with the Investigating Officer prior to recording the confession statement of A3 and the same was admitted by Pw4 and Pw5. The prosecution has failed to explain how the investigating agency approached to A1 and A2 and there is no specific overt acts for approaching

A1 and A2, a mere mention of names of A1 and A2. Further Pw1 who is the defacto complainant deposed before the trial Court that one person namely

Jagtiyal Tirupathi(A3) approached him and he shown the alleged appointment order. There is every chance to identify the person who approached him with alleged forged and fabricated document, but Pw1 had identified “A2” in stead of ” A3”. Ex.P14 clearly registered against A3 but not A1 or A2. There is no name of A1 or A2 mentioned under Ex.P1 or Ex.P14 except the name of A3, but

Pw1 identified A2 who has no acquaintance at any time to him in stead of A3.

Pw1 identifed A2 as “Jagtiyal Tirupathi”(A3). A3 never stated before the panchas/Pw4 and Pw5 as he led them to show A1 and A2 where they have been residing. Further the cause title clearly shows that A1 and A2 are public servants and they are implicated. The entire episode could have been having knowledge to police persons much prior to 18-2-2006, after that they might have created this story. Hence, the prosecution miserably failed to prove the guilt of A1 and A2 beyond all reasonable doubt. No one witness deposed

before trial Court that police seized Government Seals from the possession of

A1 and A2.

29.The above discussion and findings clearly go to show that there are glaring contradictions, inconsistencies and infirmities, which go to the root of the prosecution case and thus the evidence of the prosecution witnesses do not inspire confidence of this Court. The learned trial judge

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had not scanned the oral and documentary evidence in right perspective and had come to a wrong conclusion in finding A1 and A2 guilty for the offences U/sec. 420, 468, 466 and 465 of Indian Penal Code, 1960 and convicted them. The judgment of learned Judicial Magistrate of First Class,

Bodhan in CC. No.396 of 2008, dt. 8-11-2016 is suffering from infirmity on facts and law and the same is liable to be set- aside. Considering the facts and circumstances of the criminal appeal, the prosecution utterly failed to prove the chain of circumstances of offence. I am opined consequently, A1 and

A2 are entitled for an acquittal. Accordingly, the points are answered.

30. In the result, the criminal appeal is allowed by setting aside the impugned judgment dated 8-11-2016 in CC No.396/2008 passed by the learned Judicial Magistrate of First Class, Bodhan. Consequently the accused Nos. 1 & 2 are found not guilty for the offences punishable

U/sec. 420,468,466,and 465 of Indian Penal Code, 1860 and A1 and A2 are acquitted under Section 386(b) (i) CrPC, 1973 for the said offences. The bail bonds of the accused Nos.1 and 2 shall be in force for the period of (6) months as contemplated U/sec.437-A CrPC, 1973. If any fine amount paid by the parties, shall be refunded after Revision time.

M.Os.1 to 4 and unmarked case property i.e. Seals, stamp-pad, Blue and

Black inkpad, forged medical certificate and fitness certificate, one green pen, one red pen shall be destroyed after the Revision period is over.

Partly dictated to Steno, transcribed and typed by him, corrected and

pronounced by me in open Court, on this the 26th day of May 2022.

Sd/-

VII Additional District and Sessions Judge, Bodhan.

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IN THE COURT OF THE V ADDITIONAL SESSIONS JUDGE AT BODHAN

NIZAMABAD DISTRICT

Present: SRI P.NARAYANA BABU, V Additional Sessions Judge, Bodhan, Nizamabad District.

Monday, the 6th day of June, 2022

Criminal Appeal No.49 of 2017

1.From what Court the appeal is Judicial Magistrate of First Class, preferredBodhan.

2.Number of the case in that Court. C.C.No.599 of 2008

3.Name of the appellant1.Singadi Ervanth S/o Pochaiah, Age: 50years,Caste:Mala,Occ: Agriculture, R/o Hunsa village of Bodhan Mandal, Nizamabad District.

2.Singadi Devubai W/o Ervanth, Age: 40 years, Caste:Mala, Occ: Agricul- ture, R/o Hunsa village of Bodhan Mandal, Nizamabad District.

3.Begari Sunitha W/o Gopi, Age: 27 years, Caste:Mala, Occ: Agricul- ture, R/o Yadarpur village of Bod- han Mandal, Nizamabad District.

4.Sentence and law under which A1 to A3 are sentenced to suffer rigorous it was passed.imprisonment for a period of one year and directed to pay fine of Rs.2000/-, in default, accused shall suffer simple imprisonment for a period of 2 months for the offence under Section 464 of IPC. Further the accused Nos.1 to 3 are also sentenced to suffer rigorous imprisonment for a period of one year and directed to pay fine of Rs.2000/-, in default accused shall suffer simple imprisonment for a period of 2 months for the offence under Section 420 IPC. Both the sentences of imprisonment shall run concurrently and that of fine shall run consecutively. Total fine amount is Rs.4000/- each.

5.Whether confirmed, modified Reversed or reversed:

That this Criminal appeal is coming on 30-5-2022 before me for final hearing in the presence of Sri G.Shyam Rao, Advocate for the

Appellants/ A1 to A3 and Additional Public Prosecutor for the State and after having heard and stood over for consideration, till this day, this

Court delivered the following:

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

1)This Criminal Appeal is preferred by the Appellants/ A1 to A3 under

Section 374(3) of Cr.P.C. 1973 assailing the Judgment, dated 28-3-2017 in

C.C.No.599/2008 passed by the learned Judicial Magistrate of First Class,

Bodhan, finding Appellants/ A1 to A3 guilty for the offence under Sections 460 and 420 of Indian Penal Code, 1860 (in short IPC) and convicted under

Section 248(2) Criminal Procedure Code, 1973 ( inshort Cr.P.C.) and sentenced to suffer rigorous imprisonment for a period of one year and directed to pay fine of Rs.2000/-, in default, Appellants/accused shall suffer simple imprisonment for a period of 2 months for the offence under Section 464 of

IPC. Further the Appellants/accused Nos.1 to 3 are also sentenced to suffer rigorous imprisonment for a period of one year and directed to pay fine of

Rs.2000/-, in default Appellants/accused shall suffer simple imprisonment for a period of 2 months for the offence under Section 420 IPC. Both the sentences of imprisonment shall run concurrently and that of fine shall run consecutively

Total fine amount is Rs.4000/- each.

2).The parties hereinafter will be referred to as they arrayed before the Trial

Court.

3).The brief facts of the case, as set out in the petition, are as follows:

On 13-4-2017 at 11-00 a.m., Lw11/ Sri P.Ramulu, S.I. of Police, Bodhan received a Court referred complaint from the learned Judicial First Class

Magistrate, Bodhan stating that the Defacto-Complainant by name Singadi

Nagarathnamma is the owner of agricultural land in Sy.No.1466 extent Ac.3-00 situated at Saloora village of Bodhan Mandal, which was purchased by her from one Mogulaji and Lachanna under registered sale deed under document

No.981/1980 dt.30-5-1980 and she has been in continuous possession over the same for 10 years. It is further submitted that due to ill-health, she along with her family members, migrated to Kothagudem of Khammam District. It is further submitted that the defacto-complainant and her husband gave the

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said land on lease to Accused No.1, who is the younger brother of her husband and permanent resident of Hunsa village. But, Accused No.1 took advantage of their absence, sold away Ac.2-00 to one Gaini Sayya on 30-4-1999 by misrepresenting that Accused No.2 i.e. his wife as the defacto complainant and affixed the photo of his wife/A2 on sale deed as well as on pattadar pass book by affixing the thumb impression of A2 on the sale deed in place of defacto complainant. The entire illegal act of Accused Nos.1 and 2 was well within the knowledge of Village Secretary of Hunsa village. When they came to know the same in January, 2007, they questioned Accused Nos.1 and 2 and

Village Secretary, but they threatened the defacto complainant and her husband. Hence, on 4-1-2007, the defacto complainant got a report to Police through her GPA Holder, i.e. her adopted son. As the police concerned failed register the same, as such, filed complaint before the Court.

4).Basing on the above court referred complaint, Lw11/ P.Ramulu, S.I. of

Police registered a case in Cr.No.116/2007 for the offence under Sections 464 and 420 of Indian Penal Code, 1860 (in short IPC) and took up investigation.

During course of investigation, he examined Lw1/ Defacto Complainant and her husband and son Lws.2 & 3/ M.Vinay Kumar & M.Gangadhar, Lw4 to Lw7/

Ch.Gangaram, B.Chandu Chidurapu Gangadhar and Chidurapu Lasmanna. On 30-4-2007 he gave a requisition to Tahsildar, Bodhan to furnish the particulars of Pattedar Pass Book of the defacto complainant and its genuineness and apprehended Accused Nos.1 and 2. Then he conducted confession and recovery panchanama of accused Nos.1 and 2 in presence of the mediators

Lws.8 & 9/ Jakka Vittal and B.Shivaling and seized fake pattedar pass book and ration card of Accused No.1. Further, both A1 and A2 alleged to have confessed about involvement of Accused No.3 who is the daughter of A2 as she put her thumb impression on sale deed for Lw1/ defacto complainant and also came to know the involvement of the then Village Secretary, who was died on 5-5-2000, hence, his name was deleted.

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The Investigating Officer during course of further investigation, also obtained photographs as well as finger-prints of Lw1, A2 and alleged sale deed containing alleged thumb impression of A3, to Finger Print Bureau,

Nizamabad, for comparison. The said Finger Print Bureau gave its report revealing that the thumb impression on the registered sale deed is not that of

Lw1 but it belongs to A3. Thereafter, the Investigating Officer effected the arrest of Accused persons and produced them before the Court for their judicial remand and after completion of investigation, filed charge sheet against A1 to

A3 for the offences punishable under Sections 464 and 420 of I.P.C.

5).This case was taken on file and took cognizance against A1 to A3 under

Sections 464 and 420 I.P.C. on 31-12-2008 by the learned Judicial First

Class Magistrate, Bodhan. On appearance of accused persons A1 to A3, copies of case documents were furnished to them as required under Section 207

Cr.P.C and the accused were examined under Section 239 Cr.P.C. and charge for the offences under Sections 464 and 420 of Indian Penal Code, 1860 (in short IPC) were framed against A1 to A3 and when read over and explained to them in Telugu, for which, they denied the charges and pleaded not guilty and claimed to be tried.

6).During the course of trial, to prove its case of the prosecution, examined

Pws.1 to 8 and got marked Ex.P1 to Ex.P9. Pw1 is the son and Pw2 is the husband of defacto complainant, Pw3 is the Village elder and circumstantial witness. Pw4 and Pw5 are the eye witnesses. Pw6 and Pw7 are the panchs for confession and recovery panchanama and Pw8 is the Investigating Officer, who laid charge sheet in this case. The evidence of the defacto complainant Lw1 was closed basing on the report of the police. The evidence of Lw6 also closed as reported died.

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Ex.P1 is the report, dtd.13-4-2007, Ex.P2 and Ex.P3 are the certified copies sale deeds, Ex.P4 is certified copy of pahani, Ex.P5 and Ex.P6 are the signatures of Pw6 and Pw7 respectively on confession and recovery panchanama , Ex.P7 is the F.I.R in Cr.No.116/2007 dtd.13-4-2007, Ex.P8 is the recovery portion of panchanama and Ex.P9 is the Finger Print Bureau Report.

7). Basing on oral and documentary evidence, the learned Judicial

Magistrate of First Class, Bodhan convicted A1 to 3 for the offences

punishable under Sections 464 and 420 of Indian Penal Code, 1860 (in short

IPC) and the sentence stated supra.

8)Aggrieved by the said judgment in CC.No.599/2008 dt.28-3-2017 passed by the learned Judicial First Class Magistrate, Bodhan, A1 to A3 preferred the present Appeal.

9).The learned counsel for A1 to A3 argued and reiterated the Appeal grounds.

10)The Appeal Grounds reads as follows:

The Judgment under Appeal is erroneous and contrary to the law and evidence. The trial Court has not appreciated the evidence on record in a proper context and came to wrong conclusion. The trial Court has given importance to hearsay evidence of Pws.1 and 2, which is inadmissible in evidence. The alleged original owner of land in Sy.No.1466 extent Ac.3-00 by name Smt.Nagarathnamma was not examined by the prosecution and the prosecution also failed to examine the Tahsildar, Bodhan in whose presence the specimen thumb impression alleged to have been taken by the

Investigating Officer and alleged panch witnesses turned hostile, as such, the entire proceedings of obtaining the specimen thumb impression of the

Appellants have been vitiated and could not have been taken into consideration by the trial Court. The photo copy of alleged created registered

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Crl.A.49/2017 6 of 14

sale deed containing alleged thumb impression has been sent to Expert for verification, has caused much injustice to the Appellants. There was no direct evidence that A3 affixed her thumb impression on the said alleged registered sale deed under the name of Smt.Nagarathnamma, as such, the conclusion arrived by the trial Court therefore the conviction of the Appellants is quite illegal. More over, the prosecution willfully avoided to examine the Sub-

Registrar,Bodhan to support their contention that Appellant No.3 affixed her thumb impression on alleged Registered sale deed in place of

Smt.Nagarathnamma. The alleged seizure panchanama of alleged false patta pass book and ration Card from the possession of the Appellant No.1 was not proved in view of panchas of the said alleged seizure turned hostile. The trial court wrongly believed the Photostat copy of alleged registered sale deed containing thumb impression of Appellant No.3 under the name of

Smt.Nagarathnamma. The alleged Expert, who has given his report with regard to alleged registered sale deed Ex.P3 was not examined as such, appellants have lost the opportunity to cross-examine him. Further, the prosecution failed to prove that appellants have executed the registered sale deed on the name of actual owner Smt.Nagarathnamma. Hence, sought to allow the Appeal and set aside the Judgment of conviction passed by the learned Judicial First Class

Magistrate, Bodhan against the Appellants/ A1 to A3 in CC.No.599/2008

dt.28-3-2017 and acquittal of Appellants/ A1 to A3 for the offences punishable under Sections 464 and 420 of Indian Penal Code, 1860 (in short IPC).

11)On the other hand, the learned Addl.Public Prosecutor has not chosen to file Counter and argued vehemently that the prosecution had established and proved the guilt of A1 to A3 beyond all reasonable doubts and finally prayed this Court to dismiss the Appeal by confirming the Judgment in

CC.No.599/2008 dt.28-3-2017 and sentence the accused.

12) Heard both sides.

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13) Now the points for consideration is:

(i) Whether the judgment passed by the learned Judicial First Class

Magistrate,Bodhan in CC.No.599/2008 dt.28-3-2017 is suffering

any infirmity either on facts or law and the same is liable to be set-aside?

(ii) Whether the prosecution proved the guilt of A1 to A3 for the offence punishable under Sections 464 and 420 of Indian Penal Code, 1860 (in short IPC) beyond all reasonable doubt?

14) On perusal of the testimony of Pw1, who is the son of the defacto complainant/Lw1 Nagarathnamma. He deposed before the trial Court that about four years ago, his mother Nagarathnamma died, who was holding land to an extent of Ac.3-00 in Sy.No.1466/E at Saloora outskirts and his mother purchased it from one Kalva Moglaji under registered sale deed. Pw1 further deposed as they shifted to Kottagudem, they gave the said land on lease to

A1, who is uncle, who gave lease amount for some time. Later patta pass book was issued in favour of his mother, but it was taken by A1,wherein he pasted the photograph of A2, the wife of A1, by removing the photograph of his mother and sold the land to one Gaini Sayanna. On coming to know of the same, Pw1 filed a private complaint (Ex.P1) before the Court. As per Pw1, the registered sale deed, patta pass book and other documents are filed before the Junior Civil Judge’s Court, Bodhan in O.S.No.1/2009. Ex.P3 is the certified copy of sale deed marked through Pw1.

During cross-examination by the learned counsel for the accused persons, Pw1 admitted that he has not filed any document to show that he is the son of Nagarathnamma. He further admitted that he is the son of

Chandrakala so also his sister Parameshwari. He further stated that the caste of Nagarathnamma is mala(SC) but the surname of his father initially was “Singadi” and after marriage he changed to “Madapaty” as he was illetam son- in-law to Kothagudem. Pw1 further admitted that Ex.P3 is obtained from Sub-

Registrar Office on 17-7-2014 i.e. as on the date of Ex.P2, it is not there. Pw1 also stated that he has not given any letter to show that his parents resided at

Hunsa village and he has not mentioned in Ex.P1 report that his relative is

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Crl.A.49/2017 8 of 14

issueless, but he added that it is his mother only. Pw1 also admitted that there is no witness by name Madapati Gangadhar S/o Late Gangaram as mentioned in Ex.P1 in witness column. He further admitted that he has not collected any record to show that Patta Pass Book was issued to Lw1 and further admitted that he has not mentioned in Ex.P1 that he went to the house of accused and saw the pattedar pass book. He also admitted that he stated in

Ex.P1 that signature of Lw1 was forged by A1 and A2 and on Ex.P3 there is only thumb impression but not signature. But further admitted that on Ex.P1 there is no signature of Lw1. Pw1 further admitted that there is no record on the name of Lw1 at Kothagudem and he has not filed any pahani to show possession of Lw1 so also lease papers.

15) Pw2, the father of Pw1 deposed that he purchased Ac.3-00 land in

Hunsa village in the year 1980 in the name of his wife Lw1/ Nagarathnamma and later they shifted to Kothagudem of Khammam and as the health of

Nagarathnamma was deteriorated, he married Chandrakala and went as illetam son-in-law, and their surname is Madapati. Pw2 further deposed, out of wedlock with Chandrakala, he was blessed with a daughter and son Pw1. Pw2 further deposed that when his son came to Hunsa village, came to know that his younger brother/ Irvanth A1 sold away Ac.3-00 of land to one Gain Sayya, as such, he filed police case in the year 2007 against A1, which was sold away by putting their forged signature and he came to know that A3 has signed.

Ex.P4 is the certified copy of pahani marked through Pw2.

During cross-examination by the learned counsel for the accused persons, Pw2 admitted that there is no official record to say that his surname and the surname of Narathnamma was “Singadi” and they have no Adhar

Cards, Ration card or election card showing the said surname. He further admitted that there is no record showing Singadi Nagarathnamma was his wife. Pw2 further stated that he has not stated to police that they went to

Kothagudem as his wife was not keeping well as she was not well then, as

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such, he married second time and went as illetam son in law and changted his surname to Madapati.

16.The village elder of Hunsa was examined as Pw3,and he deposed that he do not know the facts of the case, he do not know Pws.1 and 2 and Lw1/

Nagarathnamma and he further deposed that he never conducted any panchayat as village elder.

During cross-examination, when confronted with photo of Lw1 on FSL

Report, he stated that he has never seen Lw1 in his village at any time.

17.Pw4 and Pw5 are witnesses deposed on the same lines stating they do not know Pws.1,2, Lw1/ Nagarathnamma and do not know the facts of this case and they never conducted any panchayat as village elders.

18.Pw6 and Pw7 are the panchas for confession and recovery panchanama deposed that about five years ago, police came to them and enquired about A1 to A3 and took their signatures on white paper and they identified their signatures as Ex.P5 and Ex.P6. Both these witnesses deposed that police never conducted any confession or seizure panchanama and nothing was recovered before them and they do not know the facts of this case.

19. The investigating officer in this case is examined as Pw8. As per Pw8, on 13-4-2007 he received a Court referred complaint under Ex.P1, on which he registered a case in Cr.No.116/2007 for the offences under Sections 464 and 420 IPC and issued F.I.R. as in Ex.P7. Thereafter, he took up further investigation into this case and he examined and recorded the statement of

Pws. 1 to 5, Lw1 and Lw5. Pw8 further deposed that on 30-4-2007 he arrested

A1 and A2 and conducted their confession and recovery panchanama in presence of Pws.6 & 7. Ex.P8 is the recovery portion of said panchanama.

Pw8 also deposed that he made a requisition before the Court to forward the thumb impression of Lw1 and also called for sale deed register from Sub-

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Registrar Office, Bodhan to Finger Print Unit, Nizamabad. Ex.P9 is the same report and after completion of investigation, he filed charge sheet.

During cross-examination by the learned counsel for the accused persons, Pw8 he admitted that he cannot say whether the witness No.1 cited in Ex.P1 is same as Pw2 and he has not examined witness NO.2/ Maruthi Rao and he has not verified the identity particulars of Pw2 and not collected any evidence to show that Pw2 is also called as “Singadi Gangadhar. He further admitted that Singadi Gangadhar does not live in Hunsa village but lives in

Kothagudem and he has not collected any evidence to say that he migrated to

Kothagudem. He has not verified the identity particulars of Lw1. Pw8 also stated that there is no person Singadi Nagarathnamma at Hunsa village and

Lw1 photograph is affixed along with form and admitted that there is no record to say that the photo belongs to Lw1. He further admitted that there are no photographs of A2 and A3 on Ex.P9. Pw8 further stated that he has not collected the identity particulars of A2 and A3 and he has not verified the pattadasr pass book register at Revenue Officer, where photo of pattdar was affixed. He denied the suggestion that he has not conduced Ex.P8 before Pw6 and Pw7 and took their signatures on white papers. Pw8 further admitted that he has not collected any evidence to show that Pw1 is the son of Lw1. Pw8 also stated that he has sent copy of sale deed containing questioned thumb impression. Pw8 clearly stated that he has not secured the original sale deed but xerox copy of sale deed was submitted by Pw2. Pw8 further deposed that he has not examined the purchaser of the said sale deed.

20)Now it is to be seen, whether the prosecution established the chain of circumstances of the case, now the Appellate Court is scrutinizing the testimonies of prosecution witnesses. Pws.1 and 2 and accused are agnates same family members and there is landed dispute between them. Pw1 and

Pw2 who are the son and father in relation allegedly deposed before the trial

Court that A1 and A2 alleged to have got forged the signature of Lw1 with A3

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but Pw1 admitted that on Ex.P3 there is only thumb impression but not signature and admittedly there was thumb impression on Ex.P3 sale deed.

Pw1 also admitted that there is no signature of defacto complainant/ Lw1 on

Ex.P1 and there is also no record to show Lw1 gave police report. Pw2 also admitted that there is no record showing Singadi Nagarathnamma as his wife and there is no record in Hunsa village in that regard. Pws.3 to 5 the alleged village elders did not support the case of the prosecution and they stated they never acted as village elder in any panchayat and they do not the facts of this case. Though Pw3 was cross-examined but nothing was elicited to connect the accused with the alleged offence. During cross-examination Pw3 categorically stated that he has never seen Lw1 in his village at any point. The alleged panchas for confession and recovery Pws.6 & 7 also did not support the case of the prosecution as they categorically stated that police never conducted any confession or seizure panchanama and nothing was recovered before them.

The evidence of Pw8, the Investigating Officer is procedural in nature regarding conducting investigation in this case. Pw8 was cross-examined at length wherein it was elicited he has not verified the identity particulars of Lw1 and no person by name Singadi Nagarathnamma at Hunsa village and that there is no record to say that the photo belongs to Lw1 affixed along with Form. It is also elicited from the cross-examination of Pw8 that he has not collected the identity particulars of A2 and A3 and he has not verified the pattadasr pass book register at Revenue Officer, where photo of pattdar was affixed. Pw8 also stated that he has sent copy of sale deed containing questioned thumb impression. Pw8 clearly stated that he has not secured the original sale deed but xerox copy of sale deed was submitted by Pw2. Pw8 further deposed that he has not examined the purchaser of the said sale deed.

21).The learned counsel for the Accused persons relied upon citation 2013

Law Suit(AP 606 in a case in Sallepalli Narasimha Reddy S/o Pulla Reddy Vs.

Yerram Pedda Subba Reddy S/o Chinna Nagi Reddy wherein the defendant alleged that promissory note is a forged one and the signatures of the

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defendant on the bank pass book or passport or sale deed were not sent to the expert for comparison. It was further held that opinion of expert cannot outweigh the direct evidence, if the direct evidence available on record is convincing and the findings of the trial Court are not based on sound principles of law.

The learned counsel for the appellants further relied on a case in

A.Parvathaiah Vs. Station House Officer, Nonopad P.S. and State of A.P.

reported in 2006(1) ALD (Crl.)863 (AP) wherein the facts of the case are that original sale deed under which the accused is said to have sold the land to the de facto complainant has not been produced before the Court, but a certified copy of the same has been produced. It further reveals that no comparison can be made by the finger print expert or the hand-writing expert with reference to the specimen hand-writing and specimen thumb impression qua the certified copy of the alleged sale deed, which does not contain the signature and thumb impression of the executant unlike the original sale deed.

Further relied on AIR 1997 SC 2960 and Crl.Appeal No.66 of 2012 in a case Nagaraja Vs. State of Karnataka dt.6-12-2019 wherein the Investigating

Officer has not obtained permission from the Magistrate for taking the fingerprints of the accused. Under Section 5 of the Identification of Prisoner

Act, fingerprints of accused were never taken before or under the order of a

Magistrate and under Section 4 thereof police is competent to take finger-

prints of the accused but to dispel any suspicion as to its bonafides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate.

22.Perusal of the evidence of prosecution witnesses, it is seen that there is no corroboration in the evidence of prosecution witnesses. So, it is unsafe to rely upon their testimonies. So, the evidence of Pw1, Pw2 is not trustworthy and reliable. So, under such circumstances, no weight can be given and no evidentiary value can be attached to the evidence of Prosecution witnesses.

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The alleged independent witnesses Pws.3 to 5 and panch witnesses Pw6 & Pw7 did not support the case of the prosecution. The evidence of Pw8/

Investigating Officer, is procedural in nature and there is no corroboration to the testimony of Pw8. More over, as per the decisions referred above, in this case also though Pw8 admitted he has taken permission for taking thumb impression of accused, but he has not filed the same before the Court to show that he has taken any such permission. The original sale deed is not sent to expert but only photostat copy of the sale deed/Ex.P3 is sent to Expert and it is settled that Expert is not entitled to examine alleged signature or thumb impression found place on the photostat copy of the document and the Expert was also not examined by the prosecution elicit the truth about his report.

Hence, it is clear that the trial Court failed to appreciate the evidence properly and failed to assign valid reasons to come to conclusion regarding alleged commission of offeence by the Appellants.

23.The oral evidence of prosecution have not supported each other and the documentary evidence also not corroborated to each one with the chain of circumstances. Considering the facts and circumstances of the criminal appeal, the prosecution utterly failed to prove the chain of circumstances of offence. I am opined consequently, A3 entitled for an acquittal. Accordingly, the points are answered.

24.IN THE RESULT, this Criminal appeal is allowed, reversing the conviction and sentence of the trial Court in CC.No.599/2008, dt.28-3-2017 in convicting the appellants/ A1 to A3 and sentencing them to suffer rigorous imprisonment for a period of one year and to pay fine of Rs.2000/-, in default, to suffer simple imprisonment for a period of 2 months for the offence under Section 464 of IPC and further sentencing the

Appellants/accused Nos.1 to 3 to suffer rigorous imprisonment for a period of

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Crl.A.49/2017 14 of 14

one year and to pay fine of Rs.2000/-, in default, shall suffer simple imprisonment for a period of 2 months for the offence under Section 420 IPC.

and acquitted the Appellants/ A1 to A3 for the same U/sec.386(b) (i) of

Cr.P.C. The bail bonds of appellants/ A1 to A3 shall be in force during the period of Revision. The fine amount paid by appellants/ A1 to A3 shall be refund after lapse of Revision Period.

Typed to my dictation, corrected and pronounced by me in open Court, on this the 6th day of June, 2022.

Sd/-

V Additional Sessions Judge, Bodhan,Nizamabad District.

Date:6-6-2022 V.Addl.Sessions Judge,

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S.C.No.9 of 2022 1 of 12

IN THE COURT OF THE V ADDITIONAL SESSIONS JUDGE AT BODHAN

NIZAMABAD DISTRICT

Present: SRI P. NARAYANA BABU, V Additional Sessions Judge, Bodhan, Nizamabad District.

Wednesday, this the 8th day of June, 2022

Sessions Case No.9 of 2022

Name of the Complainant :The State through Inspector of Police, Bodhan Rural Circle represented by its

Additional Public Prosecutor.

Name of the accused :Karne Srinivas @ Don Srinu S/o Chandramouli,Age:31years, Caste:Munnuru Kapu R/o H.No.4-58, Now H.No.3-63, ARP Camp, Yedpally Mandal, Nizamabad District.

Charge :Under Section 302 of IPC

Plea of the Accused :Not guilty Finding of the Judge :Not guilty Sentence or Order :Accused is found not guilty for the offence punishable under Section 302 IPC and he is acquitted under Section 232 Cr.P.C. The jail authorities are directed to release the accused forthwith, if he has not involved in any case or crime. Further directing the Superintendent of District Jail, Nizamabad to get the Personal Bond of the accused as contemplated under Section 437-A Cr.P.C. for a period of six months during the period of Appeal if any.

However, in view of the mental condition of the accused, the District Magistrate/Collector, Nizamabad is hereby directed to provide the accused rehabilitation for his survival and observe his mental condition time to time. The unmarked case property (non- valuable), shall be destroyed after expiry of appeal time.

Prosecution Conducted by :Sri M.Srinivas Rao, Addl.Public Prosecutor, Bodhan Defence conducted by :Sri CH.V.Hanmanth Rao, Advocate

This case was committed by the I-Addl.Judicial First Class Magistrate, Bodhan as per Orders dated 27-12-2021 in PRC No.36 of 2021 in Cr.No.124/2021 of P.S. Yedpally.

This case is coming on 6-6-2022 for final hearing before me in the presence of Sri M.Srinivas Rao, Addl.Public Prosecutor for the State and Sri CH.V.Hanmanth Rao, learned counsel for the accused, upon hearing the counsel on record, upon perusing the material and documents available on record and having stood over till this day for consideration, this Court delivered the following:

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S.C.No.9 of 2022 2 of 12

J U D G M E N T

1.The Inspector of Police, Bodhan Rural laid the charge-sheet before the

I- Addl.Judicial Magistrate of the First Class, Bodhan against Accused for the offence punishable under Section 302 of Indian Penal Code, 1860 in Crime

No.124 of 2021 of Police Station, Yedpally.

2.The brief facts of the case are that one Karne Kanakavva was the resident of ARP Camp village and she was blessed with three male children and the accused is her 2nd son. Her 1st son and her husband died long ago due to ill-health. Whereas, since 15 years, the accused herein is suffering from mental ill-health and used to beat his mother Kanakavva and his younger brother Shanker unnecessarily. Meanwhile, the brother of accused Shanker went to Karimnagar for eking out his livelihood, whereas the accused and his mother Kanakavva were staying in their house in ARP Camp. It is further averred in the charge sheet that due to permanent disability of mental illness, the Medical Board of Government District Hospital, Nizamabad issued an I/D

Card by showing that the accused is “life time suffering person from permanent mental illness with 77.0% with ID Number 18236130080412078”.

Several times, the accused has undergone treatment at Erragadda Hospital in the year 2019 for causing trouble with his alleged activities, which is the subject matter of Cr.No.17/2019 for the offence under Section 23 of Mental

Illhealth Act of Yedpally P.S. Again in the year 2021 in January month, on the request of Sarpanch ARP Camp, the accused was sent to Yerragadda Hospital.

Recently, he torned his hospital prescription, due to which he could not get medicines.

On 6-9-2021 at 1000 hours, the accused allegedly bet his mother

Kanakavva, who is his care taker with sncak food making hand machine and with a stone supposed to be called as “Rubburai” over the face and head and caused bleeding injuries, due to which his mother Kanakavva died on the way to hospital.

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On coming to know about the said incident, the Lw1/complainant/

Nayini Balram lodged a complaint before the police for taking necessary action in the matter. Basing on the complaint, Lw21/D.Yellaiah Goud, S.I. of Police,

P.S. Yedpally registered a case in Cr.No.124/2021 under Section 302 IPC, and during the course of investigation,he issued FIRs to the authorities concerned and examined and recorded the statement of the complainant/ Lw1/ Nayini

Balram at police station, Yedpally.

3.After receipt of F.I.R copy from Lw21/S.I. of Police, Lw22/ B.Ravinder

Naik, Inspector of Police, Bodhan Rural, took up the investigation, proceded to the scene of offence at H.No.363 ARP camp, got photographed the scene of offence with Lw11/ D.Ashirvadam, conducted the scene of offence panchanama and seized one stone used in the commission of ofefence and also seized one blood stain cloth, control earth and sample earth, snack food making hand machine, in presence of mediators Lw14 & Lw15/ A. Ranjeeth

Kumar and G.Srinivas. Further, Lw22/ Inspector of Police also searched the house of the deceased and seized on I/D card which was issued by the Medical

Department and shown as the accused (Srinivas) is life time mental disability person, True copy of Admission Registration document of accused at

Errragadda Hospital vide Reg.No.A/036520, dt. 20-11-2005. Subsequently,

Lw22 visited the Government Hospital, Bodhan where he secured the presence of eye witnesses Lws.2 to 4/ M.Srinivas Goud, T.Venkatesh and B.Mallikarjun, examined them and recorded their statement and in presence of above said

Lws.14 & 15 and Lw16/ M.Narsavva, conducted inquest panchanama over the corpse, seized blood stained clothes from the dead body of the deceased.

On 6-9-2021 Lw21/S.I. of Police apprehended the accused at ARP Camp and informed the same to Lw22/ Inspector of Police, who immediately reached

ARP Camp, secured the presence of Lws.17 & 18 J.Jithin and A.Srinivas, but during enquiry with the accused, he disclosed only his name and was found in aggressive manner and it was found that accused mental condition was not in good condition, over reactive stage, as such, his confession could not recorded,

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S.C.No.9 of 2022 4 of 12

however seized blood stains cloths from the accused. Thereafter, brought the accused to police station, affected his arrest.

On 7-9-2021 Lw22 sent the accused to Government Hospital, Nizamabad for conducting medical examination to know the lunatic stage of accused. On that medical officers conducted medical examination and opined that patient not cooperative for detail medical examination, and referred the patient to higher center Institute of Mental Health, Erragadda. Subsequently, the Hon’ble

Court has issued Order for the treatment of accused at Mental Care Hospital,

Hyderabad and Lw22 got admitted the accused accordingly in the Mental Care

Hospital, Hyderabad.

The medical officer/Lw20 who conducted autopsy over the dead body of the deceased opined that the deceased died due to ‘Head Injury’. Thereafter, on filing requisition by Lw22/ Inspector of Police before Lw19/ Sri Ghouse

Pasha, MD, the learned Judicial First Class Magistrate, Bodhan, 164 Cr.P.C.

statements of Lws.1 to 4 were recorded. Then Lw22 sent the seized material items to Forensic Science Laboratory for chemical analysis, who issued report opining human blood is detected.

On 22-11-2021 Lw.22/ Inspector orf Police received orders from the learned Addl.Judl.F.C.Magistrate,Bodhan to produce the accused before the

Court as he was declared fit for discharge from Mental Care Hospital and also fit to stand for trial. Accordingly, the accused was brought and produced

before the learned I Addl.Judl.F.C.Magistrate, Bodhan and was sent for judicial

custody and after completion of investigation, Lw22/ Inspector of Police,

Bodhan, filed charge sheet against the accused for the offence punishable under Section 302 of Indian Penal Code, 1860.

4.On appearance of the accused before the learned I Addl.Judicial First

Class Magistrate, Bodhan, the learned Addl.Judicial First Class Magistrate had taken on record and copies of case documents were furnished to the accused as contemplated under Section 207 Cr.P.C and as the offence under Section 302 of IPC is exclusively triable by the Court of Sessions, committed the case

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S.C.No.9 of 2022 5 of 12

to the Hon’ble Prl.Sessions Court, Nizamabad and the same was numbered as

SC.No. 9/2022 and made over to this Court to dispose according to law.

5.On appearance of the accused, after considering the material on record, charge for the offence under Section 302 IPC was framed against the accused read over and explained to him in vernacular language. He pleaded not guilty of the alleged offence and claimed to be tried.

6.In order to prove the case, the prosecution has examined Pws.1 to 12 and got marked Ex.P1 to Ex.P18, Ex.P19 to Ex.P21 were marked with consent.

Pw1 is the complainant, Pw2 to Pw4 are the eye witnesses, Pw5 is the elder brother and Pw6 is the younger son respectively of the deceased, Pws.7 & 8 are the neighborus of the deceased house, Pw9 is the photographer who took photos of the scene of offence, Pw10 is the driver of Ambulance, in which, thedeceased was shifted to Nizamabad, Pw11 and Pw12 are the panchas for Crime Detail Form, Seizure and Inquest panchanama.

Ex.P1 is the signature of Pw1 on Written Complaint dated 6-9-2021,

Ex.P2 is the Written Complaint dated 6-9-2021, Ex.P3 is the 161 Cr.P.C.

statement of Pw1, Ex.P4 is the 161 Cr.P.C. statement of Pw2,Ex.P5 is the 161

Cr.P.C. statement of Pw3, Ex.P6 is the 161 Cr.P.C. statement of Pw4, Ex.P7 is the 161 Cr.P.C. statement of Pw5, Ex.P8 is the 161 Cr.P.C. statement of Pw6,

Ex.P9is the 161 Cr.P.C. statement of Pw7, Ex.P10 is the 161 Cr.P.C. statement of Pw8, Ex.P11 is colour photos(22) along with (1) CD, Ex.P12 is the signature of Pw11 on scene of offence and seizure panchanama and Ex.P13 is the signature of Pw11 on Inquest panchanama, Ex.P14 is the inquest panchanama, dt.6-9-2021, Ex.P15 is the scene of offence and seizure panchanama, Ex.P16 is the signature of Pw12 on on scene of offence and seizure panchanama,

Ex.P17 is the signature of Pw12 on inquest panchanama and seizure panchanama. Ex.P18 is the signature of Pw12 on rough sketch of the scene of offence.

Date:8-6-2022 V.Addl.Sessions Judge,

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S.C.No.9 of 2022 6 of 12

Ex.P19 Postmortem Examination Report (Marked with consent), Ex.P20:

F.I.R dt.6-9-2021(Marked with consent) and Ex.P21: Confession and recovery panchanama(Marked with consent).

7.After closure of the prosecution evidence, as there was no incriminating material in the evidence of prosecution witnesses, the examination of accused under 313 Cr.P.C. was dispensed with.

8.Heard both the sides. Perused the material on record.

9.Now the Point for determination is:

1. Whether the accused has caused the murder of his mother / Karne Kanakavva on 6-9-2021?

2. Whether the prosecution could establish the guilt of accused for the offence under Section 302 IPC beyond all reasonable doubt?

POINT:

10.The allegation of prosecution against the accused is that he used to beat his deceased mother and brother Shanker unnecessarily. It is also alleged that accused was suffering from permanent disability of mental illness with 77.0% and he was creating problems to the villagers of ARP Camp, as such, in the year 2019 he was admitted in Mental Care Hospital, Yerragadda,

Hyderabad(Cr.No.17/2019 under Sec.23 of Mental Ill Health Act of Yedpally

P.S.), Again in the year 2021, he was sent to Yerragadda Hospital, Hyderabad.

Subsequently, he was declared cured and it, as such, he was discharged from the said hospital. Meanwhile, on 6-9-2021, he alleged to have beat his mother with snack food making hand machine on her head and also with a stone (Rubburai) on her face, resulting death of the deceased.

11. As already stated above, on prosecution side the material witnesses i.e.

PW1 to Pw12 are examined and Exs.P.1 to P18 documents are filed. Out of the said witnesses, PW.1 the complainant who lodged report about alleged death of the deceased, the eye witnesses Pws.2 to 4, Pw5 the brother and

Pw6 the younger son of the deceased, Pws.7 & 8 the neighbours of the

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S.C.No.9 of 2022 7 of 12

deceased did not support the case of the prosecution and turned hostile.

Though they were cross-examined by the learned Addl.Public Prosecutor, nothing was elicited to connect the accused with alleged crime.

12.Similarly, the evidence of Pw9, the photographer, who took the photographs of alleged scene of offence at the house of the deceased in ARP

Camp and the evidence of Pw10, the driver of Ambulance, who said to have taken the deceased to the hospital, is not helpful to the case of prosecution to prove the guilt of the accused.

13.The panchas for crime detail form, seizure of material objects and inquest panchanama Pws.11 and 12 did not support the case of the prosecution and turned hostile. Even though they were cross-examined by the learned Addl.Public Prosecutor, nothing could be elicited that they have acted as panchas for scene of offence, seizure and inquest panchanama.

14.As seen from the charge sheet, it is alleged that accused is suffering from mental illnesss and already a case in Cr.No.17/2019 as stated above was booked against him for his alleged mental illness and same was noticed by the investigating officer when attempted to record his confession statement. So, in these circumstance, it is better to go through the criminal law. As per

Section 84 of Indian Penal Code embodies the fundamental maxim of Criminal

Law, i.e. actus non reum facit nisi mens sit rea ( an act does not constitute guilt unless done with a guilty intention. In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furos is nulla voluntas est).

The section itself provide that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doint, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The

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S.C.No.9 of 2022 8 of 12

crucial point of time for deciding whether the benefit of this section should be given or not is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility.

Under Section 84, Indian Penal Code, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, lat the time of doing the act, is either incapable on knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity,he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong. The onus of proving unsoundness of mind is on the accused.

But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused.

15A close reading the above evidence of prosecution witnesses, the established law, and the available record on hand, which reveals that the accused has the history of mental illhealth prior to this incident. Couple of times, he was referred to Mental Care Hospital, Yerragadda for treatment.

Prior to this incident, due to his mental imbalance, as he created problems to the locality people of ARP Camp as in Cr.No.17/2019 under Section 23 of

Mental Illhealth Act of P.S.Yedpally was registered. However, basing on the

Date:8-6-2022 V.Addl.Sessions Judge,

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report of Mental Care Hospital declaring him fit for discharge, he was again sent to jail.

As referred supra in the above Section 84 of Indian Penal Code, in order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furos is nulla voluntas est). Similarly in the case on hand, as the accused was insane person, no culpability is fastened on him as he was not having any mens rea. So, the benefit is available to the accused since at the time of committing the act i.e. commission of offence, the accused was labouring under such a defect of reason, from disease of the mind, as he was unaware of his acts whether his acts were either wrong or contrary to law, as such, this section 84 of Indian Penal Code must be applied. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. Thereby, under

Section 84, Indian Penal Code, the accused can be exonerated from liability for commission of offence of committing murder of his own mother on the ground of his unsoundness of mind. The accused is protected not only when, on account of insanity,he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself.

16. The onus of proving unsoundness of mind is on the accused.

Unfortunately, neither the prosecution nor the defence have taken steps in this regard to prove the sanity of the accused and both sides kept mum in this regard. Except mentioning about history of insanity of the accused in the charge sheet and his previous involvement in another case vide Cr.No.17/2019 of P.S. Yedpally the prosecution, or defence failed to prove the insanity of the accused. No evidence of insanity of accused is placed before this Court to show the the investigating agency subjected the accused to a medical examination and this is not done in the case on hand, so, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused.

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S.C.No.9 of 2022 10 of 12

17.As a matter of fact, the accused is liable to be given benefit of doubt in accordance of law under Section 84 of Indian Penal Code. However, the accused has neither claimed the same nor admitted his guilty. At the same time, he has not stated anything about the death of his mother. But taking into consideration the mental illhealth and history of insanity, the accused should be referred to medical health center for giving treatment. Because, there is no safety to the society with the hands of accused, he may further cause any harm by attack on any one. Further, there is every likelihood that some

Syndicates or other organizers may take disadvantage of this accused in committing similar offence by engaging him and take revenge their opposite party.

18.From the perusal of the above evidence of prosecution witnesses

Pws.1 to 12 it is clear that they did not support the case of the prosecution.

They did not state anything to the effect that the accused committed murder of his own mother

19.Thus, there is no evidence produced by the prosecution to prove that the death of the deceased was the result of the act of the accused. The prosecution has also failed to prove the mens rea of the accused to commit murder of his own mother and the investigation agency itself started the investigation stating that he has been suffering from mental health since long , and his mental condition is incurable and it is life time disease. But the prosecution failed to prove the same thing by any cogent and convincing evidence. At the same time, the defence counsel also failed vis-a-vis the prosecution to prove the unsound mind or insanity of the accused. Therefore, in the circumstances, I find that there is no evidence that the accused has committed the offence punishable under Section 302 IPC and the benefit of doubt has to be given to the accused. Since there is no incriminating material evidence adduced by the prosecution witnesses against the accused, the

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S.C.No.9 of 2022 11 of 12

examination of accused under Section 313 (1)(b) Cr.P.C., is dispensed with and hence, an order of Acquittal has to be recorded under Section 232 of Cr.P.C.

Accordingly, these points are answered.

20.In the result, Accused is found not guilty for the offence punishable under Section 302 IPC and he is acquitted under Section 232

Cr.P.C. The jail authorities are directed to release the accused forthwith, if he has not involved in any case or crime. Further directing the Superintendent of

District Jail, Nizamabad to get the Personal Bond of the accused as contemplated under Section 437-A Cr.P.C. for a period of six months during the period of Appeal if any.

However, in view of the mental condition of the accused, the District

Magistrate/Collector, Nizamabad is hereby directed to provide the accused

rehabilitation for his survival and observe his mental condition time to time.

The unmarked case property (non-valuable), shall be destroyed after expiry of appeal time.

Typed to my dictation, corrected and pronounced by me in open court this the 8th day of June, 2022.

Sd/-

V ADDL. SESSIONS JUDGE,

BODHAN,NIZAMABAD DISTRICT

APPENDIX OF EVIDNECE

For Prosecution For Defence Witnesses Examined

Pw1: Nayani Balram None Pw2: Mudham Srinivas Goud Pw3: Thota Venkatesh Pw4: Bhommaraveni Mallikarjuna Pw5: Munjam Satyanarayana Pw6: Kame Shanker Pw7: Mituna Ganesh Pw8: Boddolla Swamy Pw9: Dokka Ashirvadam Pw10: Mohd.Washeem Pw11: Avudhari Ranjeeth Kumar Pw12: Geekuru Srinivas

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Exhibits marked For Prosecution For Defence

Ex.P1:Signature of Pw1 on Written Complaint dated 6-9-2021 NIL Ex.P2:Written Complaint dated 6-9-2021 Ex.P3:161 Cr.P.C. statement of Pw1 Ex.P4:161 Cr.P.C. statement of Pw2 Ex.P5:161 Cr.P.C. statement of Pw3 Ex.P6:161 Cr.P.C. statement of Pw4 Ex.P7:161 Cr.P.C. statement of Pw5 Ex.P8:161 Cr.P.C. statement of Pw6 Ex.P9:161 Cr.P.C. statement of Pw7 Ex.P10:161 Cr.P.C. statement of Pw8 Ex.P11: Colour photos(22) along with (1) CD Ex.P12: Signature of Pw11 on scene of offence and seizure panchanama Ex.P13: Signature of Pw11 on Inquest panchanama Ex.P14:Inquest panchanama, dt.6-9-2021 Ex.P15:Scene of offence and seizure panchanama Ex.P16:Signature of Pw12 on on scene of offence and seizure panchanama Ex.P17: Signature of Pw12 on inquest panchanama and seizure panchanama. Ex.P18: Signature of Pw12 on rough sketch of the scene of offence.

Ex.P19: Postmortem Examination Report (Marked with consent) Ex.P20: F.I.R dt.6-9-2021(Marked with consent) Ex.P21: Confession and recovery panchanama(Marked with consent).

M.Os marked: NIL

Sd/-

V ADDL. SESSIONS JUDGE,

BODHAN,NIZAMABAD DISTRICT

Date:8-6-2022 V.Addl.Sessions Judge,

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IN THE COURT OF THE VII ADDITIONAL SESSIONS JUDGE NIZAMABAD

AT BODHAN.

Present: SRI P.NARAYANA BABU, VII Additional Sessions Judge, Bodhan.

Monday, the 30th day of May, 2022

Criminal Appeal No.1 of 2022

1.From what Court the appeal is Judicial Magistrate of First Class, preferredBodhan.

2.Number of the case in that Court. C.C.No.252 of 2017

3.Name of the appellantA3 Dyakam Suresh S/o Shanker, Aged:22 years, Occ:Mechanic, R/o Dyakamgally, Bodhan, Nizamabad District.

4.Sentence and law under which A3 is sentenced to undergo rigorous it was passed.imprisonment for a period of (6) six months and to pay a fine of Rs.500/- for the offence punishable under Sec.323 r/w.34 IPC. In default of payment of fine amount of Rs.500/-,A3shallsuffersimple imprisonment for a period of one month.

5.Whether confirmed, modified Reversed or reversed:

That this Criminal appeal is coming on 30-5-2022 before me for final hearing in the presence of Sri K.Dattatri Rao, Advocate for the Appellant/A3 and Additional Public Prosecutor for the State and after having heard and stood over for consideration, till this day, this Court delivered the following:

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

1)This Criminal Appeal is preferred by the Appellant/A3 under Section 374(2) of Cr.P.C. 1973 assailing the Judgment, dated 7-1-2022 in

C.C.No.252/2017 passed by the learned Judicial Magistrate of First Class,

Bodhan, finding Appellant/A3 guilty for the offence under Section 323 r/w.34 of Indian Penal Code, 1860 (in short IPC) and convicted under Section 248(2)

Criminal Procedure Code, 1973 ( inshort Cr.P.C.) and sentenced to suffer rigorous imprisonment for a period of 6(six) months and directed to pay fine of

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Crl.A.1/2022 2 of 11

Rs.500/-, in default, Appellant/A3 shall suffer simple imprisonment for a period of one month for the offence under Section 323 r/w.34 IPC .

2).The parties hereinafter will be referred to as they arrayed before the Trial

Court.

3).The brief facts of the case, as set out in the petition, are as follows:

On 5-11-20211 Smt.Dyakam Chandrakala W/o Raju came to police station

Bodhan and lodged a complaint submitting that on the same day at 12-00 noon, when her husband Raju went near to their plot located behind Geetha

Ice Factory at Thattikota, Bodhan, her brothers-in-law Dyakam Abbulu,

Dyakam Poshetty and Dyakam Suresh(A1 to A3) armed with iron rods and sticks attacked her husband Raju and beat him and inflicted injuries on his head, right eye, hands and other parts of his body, due to which, her husband fell unconcsious.

4).Basing on the above complaint, Lw7/ B.Shankaraiah, Inspector of Police,

Bodhan registered a case in Cr.No.396/2011 under Section 324 r/w.34 of Indian

Penal Code, 1860 (in short IPC) and entrusted the investigation to

Lw8/P.Ravinder, Asst.Sub-Inspector of Police, Bodhan, who examined and recorded the statement of the complainant/Lw1, visited Area Hospital, Bodhan whereby examined the injured Lw2/Raju and recorded his statement.

Subsequently, visited the scene of offence Thattikotagally, Bodhan, conducted scene of offence panchanama in presence of panchas Lws.4 & 5/ Ahmed

Abdulla and Kondalwadi Raju. On 6-11-2011 A1 to A3 voluntarily surrendered themselves before him, as such, effected their arrest and after obtainig treatment of the injured and on completion of investigation, filed charge sheet against the accused persons A1 to A3.

5).This case was taken on file and took cognizance against A1 to A3 under

Section 325 r/w.34 on 28-2-2012 by the learned Judicial Magistrate of First

Class, Bodhan. On appearance of accused persons A1 to A3, copies of case

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Crl.A.1/2022 3 of 11

documents were furnished to them as required under Section 207 Cr.P.C and tried initially in C.C.No.187 of 2012 and the accused were examined under

Section 239 Cr.P.C. and charge for the offence Section 325 r/w.34 of Indian

Penal Code, 1860 (in short IPC) was framed against A1 to A3 and when read over and explained to them in Telugu, for which, they denied the charges and pleaded not guilty and claimed to be tried.

6).During the course of trial, to prove its case of the prosecution, examined

Pws.1 to 5 and got marked Ex.P1 to Ex.P5. Pw1 was the injured and husband of the defacto-complainant. Pw2 was the Defacto-complainant, Pw3 was the son of Pws.1 & 2, Pw4 was the pancha for scene of offence panchanama and

Pw5 was the Investigating Officer, who laid charge sheet in this case. The evidence of Lws.5 & 6 was closed basing on the report of the police. The evidence of Lw7 who was the first Investigating officer was given up.

Ex.P1 is the written complaint dated 5-11-2011 report dated 18-2-2006 marked through Pw2. Ex.P2 is the signature of Pw4 on scene of offence panchanama, Ex.P3 is the F.I.R., in Cr.No.396/2011 of P.S. Bodhan, Ex.P4 is the scene of offence panchanama and Ex.P5 is the wound certificate of Pw1/injured marked through Pw5.

7). Basing on oral and documentary evidence, the learned Judicial

Magistrate of First Class, Bodhan initially acquitted A1 to A3 for the offence

under Section 325 r/w.34 of Indian Penal Code, 1860 (in short IPC) and acquitted them under Section 248(1)Cr.P.C. but found A1 to A3 guilty for the offence under section 323 r/w.34 of Indian Penal Code, 1860 (in short IPC) and convicted A1 to 3 for the offences punishable under Section 323 r/w.34 of

Indian Penal Code, 1860 (in short IPC) . However, A1 and A2 were present but

A3 on the date of passing judgment and sentence. Hence, NBW was issued against A3. Accordingly, the learned Judicial First Class Magistrate, Bodhan

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delivered the judgment and passed sentence against A1 and A2 only to undergo rigorous imprisonment for a period of 5(six) months each and to pay a fine of Rs.500/- each for the offence under Sec. 323 r/w 34 of Indian Penal

Code, 1860 (in short IPC) , in default to pay fine amount sentenced A1 and A2 to suffer simple imprisonment for a period of one month each. Subsequently, the case against A3 was split up and numbered as CC.No.252 of 2017. Later on 7-1-2022 NBW against Accused No.3 was recalled vide Crl.M.P.No.233/2021 which was issued against him on the date of pronouncement of judgment of conviction in CC.No.187/2012 dated 13-10-2017, hence, the learned Judicial

First Class Magistrate, Bodhan was left with only to hear Accused No.3 on

quantum of sentence to be imposed against him and after hearing A3 on quantum of sentence, sentenced accused No.3 to undergo rigorous imprisonment for a period of (6) six months and to pay a fine of Rs.500/- for the offence punishable under Section 323 r/w. 34 Indian Penal Code, 1860 (in short IPC) and in default to pay fine amount, A3 is sentenced to suffer simple imprionment for a period of one month.

8)Aggrieved by the said judgment in CC.No.252/2017 dt.7-1-2022 passed by the learned Judicial First Class Magistrate, Bodhan, A3 preferred the present Appeal.

9).The learned counsel for A3 argued and reiterated the Appeal grounds.

10)The Appeal Grounds reads as follows:

The trial Court came to wrong conclusion without appreciating the evidence i.e. ocular testimony and the medical evidence and wrongly convicted the appellant/A3 for the offence under Section 323 r/w.34 Indian

Penal Code, 1860 (in short IPC). The entire allegations are false and baseless.

The trial Court did not look into the evidence led by the prosecution in a proper context, therefore, miscarriage of justice crept in. The entire judgment of the

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trial Court was based on mere presumptions and assumptions. Pw1 categorically admitted that he has ;not gone to the plot but went to agriculture land in his cross-examination but the investigation report reveal that alleged incident took place at the plot of Pw1 situated near Geetha Icecream Factory,

Thattikota, Bodhan. Pw1 further admitted that he has nost stated any facts of the incident to his wife/Pw2, then how Pw2 got the knowledge of the incident and descibed the same in FIR. Pw1 also admitted that police has not examined him, then how the statement of Pw1 found place in 161 Cr.P.C. and the prosecution failed to explain the same. Pw4 stated he was unconscious for 4 days, but the same thing was not found place in the medical certificate. Pw2 also silent about the place of occurrence. Pw3 is the son of Pws.1 and 2 and interested witness and his statement is hearsay. Further the evidence of Pw4 the panch for scene of offence also not supported the prosecution . Pw5 the

Investigating Officer stated he conducted scene of offence panchanama at

Thattikota marked as Ex.P4, but its contents and the statements of Pws.1 to 3 are not tallying with regard to exact place of occurrence. Pw5 also admitted there is no date contain in Ex.P1 and there was delay of 2 days in lodging FIR and one day delay in issuing F.I.R., so, the appellant/A3 was falsely implicated in this case with the collusion of police. More over, no weapon like stick has been recovered from the possesion of appellant/A3 but police laid down the charge sheet under Sectino 325 r/w.34 of Indian Penal Code, 1860 (in short

IPC). The alleged doctor who examined pw1, has not been examined by the prosecution but the medical certificate was marked though Pw5/Investigating

Officer, who also admitted that he cannot identify the signature on the medical certificate of Pw1. Hence, sought to allow the Appeal and set aside the

Judgment of conviction passed by the learned Judicial First Class Magistrate,

Bodhan against the Appellant/A3 in CC.No.252/2017 dt. 7-1-2022 and acquittal of Appellant/A3 for the offence under Section 323 r/w.34 of Indian Penal Code, 1860 (in short IPC).

Date:30-5-2022 VII.Addl.Sessions Judge,

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11)On the other hand, the learned Addl.Public Prosecutor has not chosen to file Counter and argued vehemently that the prosecution had established and proved the guilt of A3 beyond all reasonable doubts and finally prayed this

Court to dismiss the Appeal by confirming the Judgment in CC. No.252/2017 dt.7-1-2022 and sentence the accused.

12) Heard both sides.

13) Now the points for consideration is:

(i) Whether the judgment passed by the learned Judicial First Class

Magistrate,Bodhan in CC. No.252 of 2017, dt.7-1-2022 is suffering

any infirmity either on facts or law and the same is liable to be set-aside?

(ii) Whether the prosecution proved the guilt of A3 for the offence punishable under Section 323 r/w.34 of Indian Penal Code, 1860 (in short IPC) beyond all reasonable doubt?

14) On perusal of the testimony of Pw1, who is the injured deposed

before the trial Court that on 5-11-2011 he came to Pandu Tarfa agricultural

land on information that their lands are to be partitioned among their brothers and another i.e. his brother’s son. He further stated that at about 2-00

P.M. A1 first came and beat him with iron rod on his head, hands, and near eye, due to which he sustained bleeding injuries and A2 and A3 also beat him on his body with sticks, due to which, he sustained multiple injuries as a result, he fell down and became unconscius. Pw1 further deposed that after 30 minutes he regained conscious and went to police station and from there he was referred to Government Area Hospital, Bodhan for medical treatment and got six stitches and later his wife /Pw2 received information and shifted him to

Nizamabad for better treatment and his wife lodged report against accused persons.

During cross-examination by the learned counsel for the accused persons, Pw1 admitted that he has not gone to plot but he went to agricultural land which was in the nae of his mother Devamma. He further stated that the scene of offence towards the south side house of one Mahesh Bodhankar and

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he stated nothing to his wife when she came to hospital. Pw1 further admitted that he was unconscious for four days. He further stated that the properties are still in the name of Devamma and his grand father and he has got issued a legal notice to accused and his mother for partition. He further stated that A1 to A3 and his mother are living unde one roof and he has been staying separately since 1985 and has been staying in Hyderabad for the last five years along with his family.

15).The defacto complainant and wife of the injured is examined as Pw2.

She deposed that about six years back A1 to A3 beat her husband with sticks, due to which her husband sustained multiple bleeding injuries on his head, near eye and chest and on information she rushed to the Government

Hospital, Bodhan and found that her husband was with full of blood and injuries and thereafter, she went to police station and lodged Ex.P1 report and then took her husband to Nizamabad for medical treatment.

During cross-examination by the learned counsel for the accused persons, Pw2 stated that she stayed with her husband for ten minutes and her husband told her about the incident. She further stated that she do not remember whether the date was mentioned in Ex.P1. She has not stated

before the police that on the call of the accused, Pw1 came to Bodhan in her

161 Cr.P.C.statement and she do not remember whether she has stated before the police or not about the incident as stated by her husband.

16.The son of Pws.1 and 2 is examined as Pw3, deposed on 5-11-2011 his father went to Bodhan around 12’O clock from Nizamabad and at about 2-30 p.m. they received phone call from some unknwon person that his father sustained injuries and was admitted in Government Hospital, Bodhan and immediately he along with Pw2 came to Bodhan and met his father and his health condition was too critical and he was having full of blood all over his body and on enquiry, his father stated that when he went to agricultural land,

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A1 to A3 beat him and caused injuries and then they went to police station and lodged report and shifted his father to Nizamabd for better treatment.

During cross-examination, Pw3 stated at about 3-15 p.m. they reached police station and stayed there for 20 mintues and he do not know whether his father was admitted in Bodhan hospital as inpatient or outpatient. He stated, they shifted his father immeidately after giving report to police.

17.The panch for scene of offence is examined as Pw4 and he deposed he do not know anything about the case and no panchanama was conducted in his presence and the police oobtained his signature on some white papers and due to fear, he put his signature on some white paper. Ex.P2 is his signature on scene of offence panchanama. As he did not support the case of the prosecution, he was declared as hostile and cross-examined by the learned

APPO wherein, he admitted that police conducted scene of offence panchanama in his presence and police prepared panchanama.

18.The investigating officer in this case is examined as Pw5. As per Pw5, on 5-11-2011 Lw7/ B.Shankariah, Inspector of Police received a report from

Pw2, basing on which, he registered a case in Cr.No.396/2011 for the offence under Section 324 r/w.34 IPC and issued F.I.R. as in Ex.P3. Thereafter, he took up further investigation into this case and he examined and recorded the statement of Pw2 in the police station and later visited Government Area

Hospital, Bodhan where he examined and recorded the statement of Pw1 and

Pw3 and then visited scene of offence situated at Thattikota, where he conducted scene of offence panchanama and also drawn rough sketch in presence of Pw4 and Lw5/ K.Raju. Ex.P4 is the scene of offence panchanama and Ex.P5 is the wound certificate of Pw1 Raju. Pw5 further deposed that on 6-11-2011 all the accused persons voluntarily surrendered before him, as such, he effected their arrest and enlarged on bail and after completion of

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investigation, he filed charge sheet by altering the Section of law to 325 from 324 IPC basing on the injury certificate which discloses grievous injuries.

During cross-examination by the learned counsel for the accused persons, Pw5 admitted that Ex.P1 does not contain the date adn there was a delay of two days from issuing the FIR and also sending it to the Court and he had no explanation for one day delay. Pw5 further stated that he has not collected any documentary evidence to show that Pw1 is having plots and agricultural lands. He also stated that Pw2 did not state with him that the accused called to the plots and agricultural lands during 161 Cr.P.C statement.

He stated he doest not know whether Laxman Rao’s land was surrounded on the scene of offence which is eastern side, so also Gangadhar Patel towards western side.

19)Now it is to be seen, whether the prosecution established the chain of circumstances of the case, now the Appellate Court is scrutinizing the testimonies of prosecution witnesses. Pws.1 to 3 and accused are same family members and there is landed dispute between them. Pw1 who was residing at

Nizamabad and he allegedly visited the plot situated at Thattikota, Bodhan.

Pw1 allegedly deposed before the trial Court that he sustained head injury and got sutured six stitches. Ex.P5 medical certificate marked through

Investigating Officer. The wound certificate should be corroborated with oral evidence, but there was no oral evidence of the medical officer, who issued the medical certificate to Pw1, but the medical certificate marked through the

Investigating Officer which is a dispute. But the learned Judicial First Class

Magistrate, Bodhan had convicted Accused No.3 for the offence under Section

323 IPC and so also convicted A1 and A2 for the same offence. The learned

Judicial First Class Magistrate, Bodhan had failed to appreciate the oral evidence and documentary evidence and convicted Accused No.3 for the offence under Section 323 IPC. as the Accused No.3 was continuingly absent after examination under Section 313 Cr.P.C. Accused Nos.1 and 2 preferred

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Appeal against the Judgment in CC No.187/12 dt.13-10-2017 vide

Crl.A.No.99/2017 and the saem was allowed by this Court on 27-6-2020.

Subsequently, A3 appeared before the Trial Court i.e. learned Judicial First

Class Magistrate, Bodhan and case was split up against A3 from

CC.No.187/2012 and re-registered as C.C. No.252/2017. On appearance of the

accused No.3 in CC.No.252/2017, the learned Judicial First Class Magistrate,

Bodhan passed the orders and convicted and sentenced the accused No.3 to undergo rigorous imprisonment for a period of 6(six)months and to pay a fine of Rs.500/-, in default to pay fine amount, sentenced him suffer simple imprisonment for one month for the offence under Sectino 323 r/w.34 IPC.

Aggrieved with the said judgment dated 7-1-2022, the appellant/A3 preferred the this Appeal.

20.Perusal of the evidence of prosecution witnesses, it is seen that there is no independent witness examined and there is no corroborative evidence. Pws.

1 and 2 are husband and wife and Pw3 is their son and belong one family. So, it is unsafe to rely upon their testimonies in the absence of any independent witness. So, when the independent testimony is lcaking, the evidence of Pw1 alleged injured is quite doubtful to connect the accused with the alleged offence. So, under such circumstances, no weight can be given and no evidentiary value can be attached to the evidence of Pws.1 to 3. The alleged panch witness Pw4 turned hostile and did not support the case of the prosecution. The evidence of Pw5/Investigating Officer, is procedural in nature and he also admitted that he do not know whether Ex.P1 report contains any date and there is no corrobration to the testimony of Pw5. Hence, it is clear that the trial Court failed to appreciate the evidence properly and failed to assign valid reasons to come to conclusion regarding alleged commission of offeence by the Appellant.

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21.The oral evidence of prosecution have not supported each other and the documentary evidence also not corroborated to each one with the chain of circumstances. Considering the facts and circumstances of the criminal appeal, the prosecution utterly failed to prove the chain of circumstances of offence. I am opined consequently, A3 entitled for an acquittal. Accordingly, the points are answered.

22.IN THE RESULT, this Criminal appeal is allowed, reversing the conviction and sentence of the trial Court in CC.No.252/2017, dt.7-1-2022 in convicting the appellant/A3 and sentencing him to undergo rigorous imprisonment for a period of (Six)6 months and to pay a fine of Rs.500/- for the offence punishable U/sec.323 r/w 34 IPC, in default to pay fine, to suffer one month simple imprisonment and the appellant/A3 is acquitted for the same U/sec.386(b) (i) of Cr.P.C. The bail bonds of appellant/A3 shallbe in force during the period of Revision.

The fine amount paid oby appellant/A3 shall be refund after lapse of

Revision Period.

Typed to my dictation, corrected and pronounced by me in open Court, on this the 30th day of May 2022.

Sd/-

VII Additional Sessions Judge, Bodhan.

Date:30-5-2022 VII.Addl.Sessions Judge,

Bodhan