Sri P.Tirumala Rao, B.Com., LL.M.,

C.C.No.39/2012 1/13 01-04-2014

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE

OF I CLASS (EXCISE) :: ELURU.

Present: Sri P.Tirumala Rao

Special Judicial Magistrate of I Class (Excise) Eluru.

Tuesday, this the 1st day of April, 2014.

C.C.No.39/2012

Between

Bhimavarapu Syed Baji, S/o.Appalaswamy, Hindu, Male, Andalamma Thota, Kodelu, Venkatapuram Panchayat, Eluru.

… Complainant.

AND

Pallepothu Naga Siva Kesavulu, S/o.Venkateswara Rao, Hindu, Male, Yedavula peta, Kotturu Village, Pedapadu Mandal.

… Accused.

This case is coming on 21.03.2014 before me for final hearing in the presence of Sri D.Parasu Ramaiah, Advocate for the complainant and Sri P.Naga

Murali, Advocate for the accused, upon perusing the material papers on record and having stood over till this day for consideration, this Court delivered the following:

JUDGMENT

The complainant filed this complaint against the accused u/Sec.200 of

Criminal Procedure Code, 1973 (hereinafter referred as Cr.P.C.) for the offence u/Sec.138 r/w 142 of Negotiable Instrument Act, 1881 (herein after referred as

N.I. Act).

2) The brief averments of the complaint are as follows :

The accused borrowed an amount of Rs.1,50,000/- from the complainant on 11.11.2010 for the purpose of his family expenses and for business. The accused executed a demand promissory note in favour of the complainant

C.C.No.39/2012 2/13 01-04-2014 agreeing to repay the said amount with interest @ 18% per annum whenever demanded by the complainant. Thereafter, the complainant made demands for repayment of debt and the accused issued a cheque bearing No.002078 dated 10.12.2011 for Rs.1,00,000/- drawn on ING Vysya Bank Limited, Eluru Branch in favour of the complainant towards part satisfaction of the debt. Later, the complainant presented the said cheque into his account in State Bank of India,

Eluru Branch for collection on 12.12.2011. The same was sent to the accused banker for realization, but, the accused banker returned the said cheque as dishonoured due to “ACCOUNT CLOSED” and issued cheque return memo,

dated 14.12.2011 and in turn the same was informed to the complainant along

with cheque return memo. Then, the complainant got issued the statutory Legal

Notice to the accused on 16.12.2011 through his counsel calling upon the accused to pay cheque amount within 15 days, as required u/Sec.138 of N.I. Act.

The accused intentionally refused to receive the same and the complainant was constrained to file complaint against the accused. The accused had knowledge about the closure of his account and have dishonestly induced the complainant and issued a cheque and he committed the offence punishable u/Sec.138 of N.I.

Act and prayed the court to take cognizance of the offence and to punish the accused according to law. Hence the complaint.

3) Upon satisfying the material on record and upon sworn affidavit filed by the complainant, this court took Cognizance of the offence punishable U/Sec.138 of N.I. Act against the accused.

4) On appearance of the accused, copies of documents were furnished to him as required u/Sec.207 of Cr.P.C.

C.C.No.39/2012 3/13 01-04-2014

5) Later, the accused was examined u/Sec.251 of Cr.P.C., explaining the substance of the complaint for the offence u/Sec.138 of N.I. Act in Telugu. The accused pleaded not guilty and claimed to be tried.

6) During the course of trial, to substantiate the case of the complainant, the complainant himself examined as P.W.1 and P.W.2 was examined on his behalf. Exs.P1 to P6 are marked on behalf of the complainant.

7)After evidence for complainant was closed, the accused was examined u/Sec. 313 of Cr.P.C. by explaining the incriminating evidence available against him. He denied the same and reported that he has defence evidence on his behalf of. Accused himself gave evidence as D.W.1 and no documents are marked on his behalf.

8) Heard the learned counsel for the complainant and the counsel for the accused.

9) Now, the point for determination is:

Whether the complainant proved his case beyond reasonable

doubt that the accused committed the offence punishable U/Sec.138 of

N.I. Act?

10) POINT: In order to bring home the guilt of the accused for the offence punishable u/Sec.138 of N.I. Act, it is for the complainant to prove that the accused issued a cheque in order to discharge the legally existing debt and it was returned by the accused banker with an endorsement “ACCOUNT

CLOSED” and thereby, accused committed the offence punishable u/Sec.138 of

NI Act. In order to prove the same, the complainant relied on the evidence of

P.Ws.1 and 2 coupled with Exs.P1 to P6. As per the evidence of P.W.1 coupled with Exs.P1 to P6, accused borrowed an amount of Rs.1,50,000/- from the

C.C.No.39/2012 4/13 01-04-2014 complainant on 11.11.2010 and executed a promissory note Ex.P1. On the demands made by the complainant, accused issued a cheque Ex.P2 for

Rs.1,00,000/- dated 10.12.2011 towards part satisfaction of the debt amount due under Ex.P1. The said cheque was presented by the complainant with his banker i.e. State Bank of India, Eluru Branch on 12.12.2011 and on sending the said cheque Ex.P2 to the accused banker, it was returned on 14.12.2011 to the complainant banker that “ACCOUNT CLOSED”. Later, he got issued a statutory

Legal Notice Ex.P5 on 16.11.2011 and it was refused to receive by the accused.

The complainant produced and marked Ex.P6 to that effect. The learned counsel

for the accused cross examined P.W.1. During the course of cross examination,

P.W.1 deposed that he is doing finance business and he is also doing business in second hand cars. Accused is also doing similar business i.e. buying and selling the used cars. Accused is having a house and he is also the owner of a cell point shop. He denied to a suggestion that nobody would dare enough to lend more than Rs.20,000/- to the accused in view of the financial condition of the accused. He further denied to a suggestion that the signatures on Ex.P1 and P2 are not similar. He further denied to a suggestion that 3 years prior to Ex.P2 cheque, accused closed his account and he has taken Ex.P2 cheque from one

Chiranjeevi who is the owner of Tata Finance Company and filed this complaint for wrongful gain. He also denied to a suggestion that he lent an amount of

Rs.25,000/- only to the accused and obtained blank signed promissory note from the accused and the accused also repaid an amount of Rs.40,000/- towards said debt.

11) P.W.2 deposed that he is scribe of Ex.P1 promissory note and on 11.11.2010 the accused borrowed an amount of Rs.1,50,000/- from P.W.1 and executed Ex.P1 promissory note in the presence of one Sk.Nagoor Meera who is the attestor of promissory note Ex.P1. He further deposed that after receiving

C.C.No.39/2012 5/13 01-04-2014 the amount from the complainant, the accused singed on Ex.P1 promissory note.

During the course of cross examination, he deposed that he knows the accused who used to get repair his cars in his work shop, but, he cannot say the numbers of cars of accused, but, they are TATA Indica Cars. He used to open his shop at about 9.30 to 10.00 a.m. On the date of transaction since he was called by the accused on the previous day, he attended to the transaction and later went to his shop and opened it. He further deposed that he knows that there will be another paper enclosed to 1st paper of a promissory note, but, there is no such paper to Ex.P1. He further deposed in his cross examination that he does not know what was happed to the second paper of Ex.P1. He filled Ex.P1 promissory note on the instructions of complainant.

12) The case of the accused is of total denial and he deposed that he never borrowed an amount of Rs.1,50,000/- from the complainant on 11.11.2010. No prudent man is expected to lend such a huge amount to him without any security and knowing the financial condition of him. He is a physically handicapped person and suffering with Polio and his both legs are paralyzed since his childhood. He has no source of income and he is not doing any business. He used to furnish the information in respect of old cars to P.W.1 as P.W.1 is in the habit of purchasing old cars and sells them for higher rates.

For giving of such information to P.W.1, P.W.1 used to give small tips to the accused. He further deposed that about 6 or 7 years back he borrowed some amount from one Tata Chiranjeevi, a financier and Chiranjeevi obtained blank signed promissory note and blank signed cheque from him. Subsequently, he repaid the entire debt to the said Tata Chiranjeevi, but, Chiranjeevi did not return the said cheque to him and said Tata Chiranjeevi told him that his cheque was lost. He believed the version of Chiranjeevi and did not insist for the cheque. Accused further deposed that he borrowed an amount of

C.C.No.39/2012 6/13 01-04-2014

Rs.25,000/- only from the complainant about 6 years back. Subsequently, he made several part payments to the complainant in the presence of Pilagala

Srinu as he is physically handicapped one and unable to move freely without assistance of others. As such, he gets assistance of said Srinu to approach the complainant at the time of making part payments. Being money lender, the complainant did not issue proper receipts for the said part payments, but, the complainant mentioned the said part payments on the second paper of Ex.P1 promissory note. But, with a fraudulent view, the complainant torned the 2nd paper from Ex.P1 promissory note and filed only 1st paper before the court. In total the accused paid Rs.40,000/- to the complainant towards discharge of debt for Rs.25,000/-, but, without satisfying with the said amount, in order to get wrongful gain, the complainant, with the active assistance of said T.Chiranjeevi filed this complaint. Attestor and scribe of Ex.P1 promissory note are not known to the accused and taking advantage of blank promissory note, the complainant created Ex.P1 promissory note and also taking blank singed cheque from the said

T.Chiranjeevi and filed this complaint against him. During the course of cross examination D.W.1 admitted that he resided in his own house at Kothuru village.

He studied up to 10th class. Ex.P1 promissory note and Ex.P2 cheque contains his signatures. He also admitted that a complaint under N.I. Act is also filed against him and the said case is pending before the Spl. Mobile Court, Eluru.

13) The contention of the accused is that he borrowed an amount of

Rs.25,000/- from the complainant about 6 years back and he gave blank singed promissory note to the complainant. The learned counsel for the accused suggested that since P.W.1 obtained blank singed promissory note, evenafter payment of due amount by the accused, he filed a complaint by filing blank singed promissory note showing that the accused borrowed an amount of

Rs.1,50,000/-. The said suggestion was denied by P.W.1. If the version of the

C.C.No.39/2012 7/13 01-04-2014 accused is true that he delivered a blank signed promissory note to the complainant, he could have received legal notice issued by the complainant without refusing to receive the same and issued a reply notice to the notice issued by the complainant under Ex.P5. The mere refusal to receive the notice may not amount to admission of its contents. But, it is one of the strong circumstances to disbelieve the version of the accused. The refusal to receive the notice got issued by the complainant is one of the strong circumstances to believe the version of the complainant that the accused borrowed the said amount from the complainant under Ex.P1.

14) The accused deposed that he made part payments to an extent of

Rs.40,000/- in the presence of one Srinu. Accused neither filed any receipt showing the said part payments nor examined the said Srinu on his behalf to prove that he made part payments to a tune of Rs.40,000/-. The further contention of the accused is that the promissory note Ex.P1 should be in four pages (2 papers) and the complainant filed only one paper by tearing the second paper and there are part payment endorsements on the 2nd paper. On perusal of the promissory note Ex.P1 the reverse of the said promissory note is in blank and white and there are no endorsements on it. If any part payments are made by the accused, the same may be endorsed on the reverse of the 1st page, but, it was not done. So, the contention of the accused is that complainant himself endorsed part payments on the 2nd page of promissory note which was torned by the complainant. During the course of cross examination, the accused deposed that he studied up to 10th class. Hence, the accused is not an illiterate and he can make part payment endorsements on Ex.P1, especially, on the reverse of 1st page and he did not do so. So, absolutely there is no evidence regarding the part payments made by the accused.

C.C.No.39/2012 8/13 01-04-2014

15) The further contention of the accused is that he is physically handicapped person, he has no properties and his financial position is weak and nobody dare to lend an amount of Rs.1,50,000/- to the accused and the complainant did not file any Civil Suit against the accused in recovery of promissory note. During the course of cross examination, the accused admitted that he is residing in his own house, as such, the accused has immovable property. The learned counsel for the complainant submitted that it is the right or privilege of the complainant to file a Civil Suit or not for recovery of amount.

He further submitted that there are certain other cases u/Sec.138 of N.I. Act filed and pending against the accused and if any Civil Suit is filed by the complainant against the accused, the complainant will get further loss to the extent of amount spend towards Court Fee for recovery of the debt and hence, complainant did not file the Civil Suit. Accused admitted that there is another

N.I. Act case pending before Spl. Mobile Court, Eluru against him. As per admission made by the accused, he owns a house and another case is pending against him. Hence, there is no considerable face in the contention of the accused.

16) The further contention of the accused is that about 6 or 7 years back he borrowed small amount from one Chiranjeevi who is a financier. He gave a blank singed cheque to him. Later, even after he discharged the said amount, the said Chiranjeevi has not returned the said cheque stating that he was lost and the accused believed the version of Chiranjeevi. He further contended that the complainant and the said Chijranjeevi are close associates and

Chijanjeevi gave said cheque to the complainant and got prepare it as Ex.P2 and filed this case against the accused to get wrongful gain. As per the evidence of D.W.1/Accused, accused did not depose how much amount was borrowed by him from the said Chiranjeevi and why he has given the said blank singed

C.C.No.39/2012 9/13 01-04-2014 cheque, though he discharged amount. P.W.1 was suggested that signature of accused are Ex.P1 and P2 are not similar. On the other hand, accused admitted his signatures both are Ex.P1 and P2. Hence the contention of the accused did not inspire confidence of the court to believe the version of the accused.

17) It is pertinent to mention that nothing is elicited from the cross examination of complainant/P.W.1 and P.W.2 to disprove the evidence coupled with Exs.P1 to P6. Hence, this court can safely drawn the presumption u/Sec.139 of NI Act that the accused cheuqe under Ex.P2 was issued to discharge the legally existing debt Ex.P1. Hence the complainant being the discharging turn of proof lying upon him bonus shits upon the accused to prove.

Otherwise the accused did not mention one Srinu who is said to be present at the time of part payment made by the accused to a tune of Rs.40,000/- for the amount of Rs.25,000/- borrowed by him from the complainant. The accused did not depose that he borrowed an amount from the said Chijranjeevi and gave blank signed cheque to him who in turn gave the said cheque to the complainant. Hence the accused is failed to repay presumption drawn u/Sec.139 of N.I. Act, whereas the complainant proved that the accused issued Ex.P2 cheque in order to discharge debt under Ex.P1 it was dishonoured as “ACCOUNT CLOSED” and accused failed to pay the amount due under cheque, evenafter issuance of legal notice Ex.P5 by refusing to receive the same under

Ex.P6. Hence this court holds that the complainant prove his case beyond reasonable doubt that the accused committed an offence punishable u/Sec.138 of N.I. Act.

C.C.No.39/2012 10/13 01-04-2014

18) In the result, the accused is found guilty for the offence punishable u/Sec.138 of NI Act and he is convicted for the same under section 255(2) of

Cr.P.C.

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

pronounced by me in open Court, on this the 1st day of April, 2014.

SPL. JUDL. MAGISTRATE OF

I CLASS, (EXCISE), ELURU.

19) When the accused is questioned with regard to the quantum of sentence, the accused represented that he has wife, children and he has old aged mother, and he is working as a Watchman at a firm and all his family members depend upon him. He further represented that he is affected with Polio in his childhood and his two legs are affected and he cannot move without the assistance of anybody and prayed the court to take lenient view. Heard learned counsel for the accused in respect of quantum of sentence. Having regard to the nature of the offence that it is an economic offence, the cheque amount involved in this case is a sum of Rs.1,00,000/- and also considering the circumstances stated by the accused and his counsel, and also considering the pitiable physical condition of the accused i.e. two legs are affected with Polio, this court inclined to take lenient view against the accused.

20) Accused is sentenced to suffer Simple Imprisonment for a period of three months and also to pay fine of Rs.5,000/- and in default of payment of fine amount, he shall undergo Simple Imprisonment for a period of one month.

C.C.No.39/2012 11/13 01-04-2014

21) Accused is appraised that he has right to appeal against Judgment passed by this court.

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

pronounced by me in open Court, on this the 11th day of April, 2014.

SPL. JUDL. MAGISTRATE OF

I CLASS, (EXCISE), ELURU.

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution:

P.W.1 : Bhimavarapu Syed Baji

P.W.2 : Kokkisetti Venkatapathi

For Defence:

D.W.1 : Pallepothu Naga Siva Kesavulu

DOCUMENTS MARKED

For Prosecution:

Ex.P1/11-11-2010 : Promissory note

Ex.P2/10-12-2011 : Cheque

Ex.P3/12-12-2011 : Counter foil

Ex.P4/14-12-2011 : Cheque return memo

Ex.P5/16-12-2011 : Office copy of Legal Notice.

Ex.P6/ 24-12-2011 : Unserved registered legal notice.

For Defence: Nil

S.J.F.C.M.(E)

Eluru.

C.C.No.39/2012 12/13 01-04-2014

CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C.No.39/2012 ON THE FILE OF THE SPECIAL

JUDICIAL MAGISTRATE OF I CLASS, EXCISE COURT, ELURU.

--------------------------------------------------------------------------------------------------- Date of --------------------------------------------------------------------------------------------------- Offence Complaint Apprehension Release Taken Commencement Close sentence or report of accused on bail on file of trial of trial of order ----------------------------------------------------------------------------------------------------------- 10.12.11 25.01.12 22.11.12 -- 01.02.12 18.01.13 21.03.14 01.04.14 ----------------------------------------------------------------------------------------------------------

Explanation for delay: No avoidable delay took place.

Complainant : The State : Bhimavarapu Syed Baji, S/o.Appalaswamy, Hindu, Male, Andalamma Thota, Kodelu, Venkatapuram Panchayat, Eluru.

--------------------------------------------------------------------------------------------------- S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused ------------------------------------------------------------------------------------------------------------ Pallepothu Naga Siva Kesavulu, S/o.Venkateswara Rao, Hindu, Male, Yedavula peta, Kotturu Village, Pedapadu Mandal. ------------------------------------------------------------------------------------------------------------

Offence: Under Section 138 of NI Act.

Finding : Guilty.

RESULT: the accused is found guilty for the offence punishable u/Sec.138 of NI Act and he is convicted for the same under section 255(2) of

Cr.P.C.

When the accused is questioned with regard to the quantum of sentence, the accused represented that he has wife, children and he has old aged mother, and he is working as a Watchman at a firm and all his family members depend upon him. He further represented that he is affected with Polio in his childhood and his two legs are affected and he cannot move without the assistance of anybody and prayed the court to take lenient view. Heard learned counsel for the accused in respect of quantum of sentence. Having regard to the nature of the offence that it is an economic offence, the cheque amount involved in this case is a sum of Rs.1,00,000/- and also considering the circumstances stated by the accused and his counsel, and also considering the pitiable physical condition

C.C.No.39/2012 13/13 01-04-2014 of the accused i.e. two legs are affected with Polio, this court inclined to take lenient view against the accused.

Accused is sentenced to suffer Simple Imprisonment for a period of three months and also to pay fine of Rs.5,000/- and in default of payment of fine amount, he shall undergo Simple Imprisonment for a period of one month.

Accused is appraised that he has right to appeal against Judgment passed by this court.

SPL. JUDL. MAGISTRATE OF

I CLASS (EXCISE), ELURU.

Seal

Copy submitted to : The Hon’ble I Addl. District & Sessions Judge, W.G. Eluru.

Copy to accused.

SJFCM(E)

Eluru.

C.C.No.61/2015 1/13 21-04-2017

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE

OF I CLASS (EXCISE):: ELURU.

Present: Sri P.Tirumala Rao

Special Judicial Magistrate of I Class (Excise) Eluru.

Friday, this the 21st day of April, 2017.

C.C.No.61/2015

(Cr.No.170 of 2014 of Pedavegi Police Station)

Between

The State: Sub Inspector of Police, Pedavegi Police Station. … Complainant.

AND

Damarla Srinivasa Rao. … Accused.

This case is coming on 03.04.2017 before me for final hearing in the presence of Assistant Public Prosecutor for the Prosecution and

Sri C.V.Srinivasa Sastry, Advocate for the accused, upon perusing the material papers on record and having stood over till this day for consideration, this Court delivered the following:

JUDGMENT

The State: Sub Inspector of Police, Pedavegi Police Station filed Police

Report against the accused in Crime No.170/14 for the offences punishable

U/Secs.338 and 429 of Indian Penal Code, 1860 (hereinafter referred as I.P.C).

2) The brief allegations leveled in the Police Report are as follows:

On 31.07.2014 at about 6.00 p.m, L.W.2 I.Raju (P.W.2) being farm servant was returning home after grazing five she buffaloes of L.W.3 A.Satyanarayana (P.W.3) and when he reached the outskirts of Sitharamapuram villlage, the accused being the driver of a bus bearing No.AP 37 TC 1758, drove the bus in a rash or negligent manner and dashed L.W.2 I.Raju (P.W.2) and further dashed

C.C.No.61/2015 2/13 21-04-2017 four she buffaloes, resulting in L.W.2 I.Raju (P.W.2) sustained fracture to his right ankle and injury to head. Four she buffaloes died at the spot with severe injuries. The injured was shifted to the Government Hospital, Eluru for treatment. L.W.1 I.Somanadham (P.W.1) shifted L.W.2 I.Raju (P.W.2) to Manipal

Super Specialty Hospital, Vijayawada for better treatment.

2.2) L.W.1 I.Somanadham (P.W.1) gave report to the Police. L.W.12

K.Swamy, S.I of Police (P.W.11) registered the said report as a case in

Cr.No.170/14 u/Secs.338 and 429 of I.P.C and investigated into. He visited the hospital and also scene of offence. He prepared rough sketch. He examined and recorded the statements of all the prosecution witnesses. He arrested the accused and sent him for judicial custody. L.W.7 Dr.M.Harikrishna (P.W.9)

Veterinary Assistant Surgeon conducted autopsy over the Caracas of four she buffaloes and issued Post-mortem Certificates. L.W.8 Dr.Pradeep gave treatment to the injured and issued wound certificate opining that the injuries are grievous in nature. L.W.11 B.S.S.Naik (P.W.10) Motor Vehicle Inspector inspected the crime vehicle bearing No. AP 37 TC 1758 and issued accident report that the accident not occurred due to mechanical defects of the crime vehicle. After completion of investigation, L.W.12 K.Swamy, Sub Inspector of Police (P.W.11) filed charge sheet into Court. Thus, the accused is liable for the offences punishable U/Secs.338 and 429 of I.P.C. Hence, the charge.

3) Cognizance was taken for the offences punishable U/Secs.338 and 429 of I.P.C against the accused.

4) On appearance of the accused, copies of documents were furnished to him as required u/Sec.207 of Criminal Procedure Code, 1973 (hereinafter referred as Cr.P.C).

C.C.No.61/2015 3/13 21-04-2017

5) Accused was examined u/Sec.251 of Cr.P.C, explaining the accusation leveled against him for the offences u/Secs.338 and 429 of I.P.C in Telugu. After having understood the same, he pleaded not guilty and claimed to be tried.

6) During trial, to substantiate its case, the prosecution examined L.W.1

I.Somanadham as P.W.1, L.W.2 I.Raju as P.W.2, L.W.3 A.Satyanarayana as

P.W.3, L.W.4 A.Srinivasa Rao as P.W.4, L.W.6 N.Suresh Kumar as P.W.5, L.W.5

S.Mohana Murali as P.W.6, L.W.7 J.Ravi Kishore as P.W.7, L.W.8 K.Rajendra

Prasad as P.W.8, L.W.9 Dr.M.Hari Krishna as P.W.9, L.W.11 B.S.S.Naik as P.W.10 and L.W.12 K.Swamy as P.W.11. Exs.P1 to P10 are marked on behalf of the prosecution.

7) After the evidence for prosecution was closed, the accused was examined U/Sec.313 Cr.P.C by explaining the incriminating evidence available against him. He denied the same and reported no defence evidence on his behalf. Hence, the defence evidence was closed.

8) Heard the learned A.P.P and the Counsel for the accused.

9) Now, the points for determination are:

1) Whether the accident took place due to crime bus bearing No. AP 37 TC 1758 and P.W.2 sustained grievous injuries and four she buffaloes died in the accident?

2) Whether the accused drove the bus in rash or negligent manner and caused the accident?

3) Whether the accused is driver of crime bus at the time of accident?

4) Whether the prosecution proved its case beyond reasonable doubt that the accused committed the offences punishable

U/Sec.338 and 429 of I.P.C, as alleged by the prosecution?

C.C.No.61/2015 4/13 21-04-2017

10) Point No.1::

Whether the accident took place due to crime bus bearing No. AP 37 TC 1758 and P.W.2 sustained grievous injuries and four she buffaloes died in the accident?

a) P.W.2 who is injured deposed that on 31.08.2014 about 6 p.m he was returning home after grazing the cattle of P.W.3. When he reached the outskirts of Sitharampuram village, a bus bearing No.1758 of Nallajerla Engineering

College came opposite to him and dashed four she buffaloes and also dashed him. As a result of which he sustained fracture to his right ankle and injury to the head. 4 milking she buffaloes died at the spot. He was shifted to

Government Hospital, Eluru and from there to Manipal Hospital, Vijayawada for better treatment.

b) P.W.1 who is father of P.W.2, P.W.3 who is the owner of the she buffaloes, P.Ws.5 and 6 who are independent witnesses deposed that they came to know about the accident and reached the scene of offence. They further deposed that they noticed P.W.2 with fractures and also Caracas of four she buffaloes besides AKRG College bus bearing No.1758. They also deposed that they were informed that the said bus dashed P.W.2 and also she buffaloes.

c) P.W.4 deposed that on 31.07.2014 at about 6 pm he heard big sound behind me. He turned up and noticed four she buffaloes lying on the ground due to hit by Nallajerla College bus. He went to the place of accident and noticed P.W.2 (sic.P.W.1) sustained fracture to his right leg. He also noticed the number of crime bus as AP 37 CT 1758. P.W.7 deposed that on the date of accident when he reached near a factory at Sitharamapuram village, bus belongs to Nallajerla Engineering College was proceeding ahead of his bike and dashed

C.C.No.61/2015 5/13 21-04-2017 she buffaloes coming in opposite direction, resulting in four she buffaloes died at the spot. The cattle grazer also sustained fractures. He rang up to 108 ambulance and shifted the injured to hospital.

d) P.W.9 Veterinary Doctor deposed that on 01.08.2014 he conducted

Post-mortem Examination over the Caracas of four she buffaloes and issued P.M.

Certificates Exs.P.3 to P.6 opining that the buffaloes died due to haemorrhage and shock. P.W.11 investigating officer deposed that he received Ex.P.1 report, registered it as a case in Cr.No.170/2014 and issued FIR Ex.P.8. He visited the hospital and also scene of offence. He examined and recorded the statements of all the prosecution witnesses. After receiving wound certificate Ex.P.10 and Post- mortem Certificates of she buffaloes, he filed charge-sheet.

e) Investigating Officer P.W.11 further deposed that as per Ex.P.10 wound certificate, P.W.2 sustained grievous injuries. As the Doctor who gave treatment to P.W.2 left Manipal Hospital, Vijayawada, the evidence of L.W.10 Pradeep is closed. As it is not the case of the accused that there is no accident to P.W.2 and also she buffaloes, non-examination of the said Doctor is not fatal to the case of prosecution.

f) As per the evidence of P.Ws.1 to 7, 9 and 11 coupled with Exs.P1 report, P3 to P6 Post-mortem Certificates and Ex.P.10 Wound Certificate, there was accident by the crime bus bearing No. AP 37 TC 1758 wherein P.W.2 sustained grievous injuries and four she buffaloes died. It is not the case of accused that there was no accident at the scene of offence and P.W.2 did not sustain grievous injuries and 4 she buffaloes are not died in the said accident.

Hence, the prosecution proved that there was accident caused by the crime bus

C.C.No.61/2015 6/13 21-04-2017 bearing No. AP 37 TC 1758 wherein P.W.2 sustained grievous injuries and four she buffaloes died. The point is answered accordingly.

11) Point No.2::

Whether the accused drove the crime bus in rash or negligent manner and caused the accident?

a) P.W.2 deposed that the driver of crime bus drove the bus at high speed, came opposite to him and dashed against him and four she buffaloes.

P.W.4 one of the eye witnesses deposed that the accident took place due to negligence of driver of crime bus. P.W.7 another eye witness also deposed that the crime bus came at high speed and caused the accident.

b) P.W.10 Motor Vehicle Inspector deposed that on 02.08.2014 he inspected the crime bus bearing No.AP 37 TC 1758 ie, educational institution bus and found four damages mentioned in Column No.8 of his Accident Report

Ex.P.7. He further deposed that due to said damages, he could not put the vehicle for road test, but he physically inspected the brake system of bus and found that it is intact and in order. He gave his opinion that the accident was not occurred due to mechanical defects of crime bus.

c) Admittedly, the place of accident is at the fields of village at about 6 p.m. Everybody know that in the villages at about 6 p.m, the grazers of cattle and sheep, etc, use to return home from the fields at that time. The driver of college bus is the said route driver and he also should have knowledge of said fact. With the knowledge of said fact, the driver of crime bus would have driven the bus at moderate speed only. As per the evidence of injured P.W.2 and eye witnesses P.Ws.4 and 7, the driver of bus drove the bus at high speed. Moreover,

C.C.No.61/2015 7/13 21-04-2017 when the bus dashed P.W.2 and also four she buffaloes, the speed of the bus at the time of accident can be presumed as per Sec.114 of Indian Evidence Act, 1872. In case, the driver of bus drove the bus at moderate speed, the bus would have stopped immediately after dashing P.W.2 and one or two buffaloes, but it was not done so. It clearly establishes that having knowledge about return of cattle grazers with cattle on the said road, driving the bus at high speed is nothing but rash and also negligent driving. Moreover, most of the cross- examination of P.Ws.2, 4, 7 and other witnesses is with regard to driver of crime bus, but not due to rash or negligent driving of bus driver. Hence, this Court holds that the prosecution establishes that the driver of crime bus drove the bus in rash and also in negligent manner, caused the accident resulting in P.W.2 sustained grievous injuries and four she buffaloes died at the spot. The point is answered accordingly.

12) Point No.3::

Whether the accused is driver of crime bus at the time of accident?

a) P.W.2 injured deposed that the accused present in Court is the driver of crime bus at the time of accident. But, during cross-examination, he deposed that he did not observe the accused, while driving the crime bus, but after his discharge from the hospital, his men showed the accused stating that accused is driver of crime bus. Hence, the evidence of P.W.2 is only helpful, when the said fact is proved by other independent evidence.

b) P.Ws.1, 3 and 6 deposed that accused is the driver of crime bus at the time of accident. Admittedly, P.Ws.1, 3 and 6 are not eye witnesses to the accident and they also came to know that the accused is driver of crime bus at

C.C.No.61/2015 8/13 21-04-2017 the time of accident though others. Hence, their evidence is also helpful, when the said fact is proved by other material evidence.

c) P.Ws.4 and 7 who are said to be the eye witnesses to the accident deposed that the accused is the driver of crime bus at the time of accident.

During cross-examination, they denied that they identified the accused as driver of bus at the instance of Police. P.W.7 categorically deposed during cross- examination that the accused belongs to his village. There are no suggestions to

P.W.7 to elicit whether there are any disputes or enemical terms between him and accused to give false evidence against P.W.7. Hence, the evidence of P.W.7 being the villager of accused, inspires confidence of the Court in proving that accused is driver of crime bus at the time of accident.

d) P.W.11 Investigating Officer deposed that P.W.8 produced the accused

before him stating that accused is the driver of crime bus at the time of accident.

He arrested the accused and sent him for judicial custody. P.W.8 who is working as Clerk in AKRG College, Nallajerla deposed that 31.07.2014 at about 8 or 8.30 p.m, he received information that their college bus bearing No.AP 37 TC 1758 involved in accident at Sitharampuram village and a person besides four buffaloes sustained injuries in the said accident. The allegation of the prosecution is that P.W.8 produced the accused before the Investigating Officer.

Whereas, P.W.8 deposed that he did not produce the accused before

Investigating Officer, but he deposed that he came to know that the accused was produced before the Police by his College Authorities. Moreover, he categorically deposed that the accused is the driver of their college bus bearing No.AP 37 TC 1758 (crime bus). He also did not depose that another driver is on the duty on the crime bus at the time of accident. Hence, this Court is of opinion that the

C.C.No.61/2015 9/13 21-04-2017 evidence of P.W.8 coupled with the evidence of eye witnesses P.Ws.4 and 7 clearly established the accused is the driver of crime bus at the time of accident.

The point is answered accordingly.

13) Point No.4:

Whether the prosecution proved its case beyond reasonable doubt that the accused committed the offences punishable

U/Secs.338 and 429 of I.P.C, as alleged by the prosecution?

As per discussion for point Nos.1 to 3, the prosecution proved its case that the accused being driver of crime bus bearing No. AP 37 TC 1758 in rash and negligent manner and caused accident, resulting in, P.W.2 sustained grievous injuries and four she buffaloes died at the spot. The point is answered accordingly.

Typed to my dictation, corrected and pronounced by me in open Court, this the 21st day of April, 2017.

Sd/- P.Tirumala Rao

SPL. JUDL. MAGISTRATE OF

I CLASS, (EXCISE), ELURU.

14) When the accused is questioned with regard to quantum of sentence, he represented that he has wife, 2 female children and old aged mother. He further represented that all his family members depend on his income and in case, he is sentenced to imprisonment, their family members will be suffered a lot and prayed the Court to take lenient view and to impose fine instead of sentence to suffer imprisonment. Considering the facts and circumstances, nature of offence, this Court is inclined to take little bit lenient view and sentenced to suffer Simple Imprisonment for three months and fine would meet the ends of justice.

C.C.No.61/2015 10/13 21-04-2017

15) In the result, the accused is found guilty for the offences punishable u/Sec.338 and 429 of I.P.C and he is convicted for the same u/Sec.255(2) of

Cr.P.C. The accused is sentenced to undergo Simple Imprisonment for a period of three (3) months for the offence u/Sec.338 of I.P.C. The accused is further directed to pay fine of Rs.5,000/- (Rupees five thousand only) for the offence

U/Sec.429 of IPC. In default of payment of fine, the accused shall undergo

Simple Imprisonment for a period of three months. Total fine amount is

Rs.5,000/-. Out of said fine amount of Rs.5,000/-, P.W.3 (owner of she buffaloes) is awarded compensation of Rs.4,000/- as per the provision u/Sec.357 of Cr.P.C.

The remand period for two day i.e., on 04.08.2014 and 05.08.2014 already undergone by the accused, shall be set off against the sentence passed, under

Section 428 of Cr.P.C. The bail bonds of the accused shall be in force for a period of 6 months as per the provision U/Sec.437-A of Cr.P.C.

16) There is no order regarding property, since no property was seized and produced before the Court.

17) Accused is appraised that he has right to appeal against the judgment passed by this Court.

Typed to my dictation, corrected and pronounced by me in open Court, this the 21st day of April, 2017.

Sd/- P.Tirumala Rao

SPL. JUDL. MAGISTRATE OF

I CLASS, (EXCISE), ELURU.

C.C.No.61/2015 11/13 21-04-2017

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence: Nil

P.W.1 : I.Somanadham

P.W.2 : I.Raju

P.W.3 : A.Satyanarayana

P.W.4 : A.Srinivasarao

P.W.5 : N.Suresh Kumar

P.W.6 : S.Mohan Murali

P.W.7 : J.Ravi Kishore

P.W.8 : K.Rajendra Prasad

P.W.9 : Dr.M.Hari Krishna

P.W.10 : N.B.Swarna Srinivas Nayak

P.W.11 : K.Swamy

DOCUMENTS MARKED

For Prosecution:

Ex.P1 : Report

Ex.P2 : 161 part of 161 statement of P.W.8

Ex.P3 to P6 : PM certificate

Ex.P7 : MVI report

Ex.P8 : FIR

Ex.P9 : Rough sketch

Ex.P10 : Wound certificate of P.W.2

M.Os. MARKED Nil

Id/- PTR

S.J.F.C.M.(E)

Eluru.

C.C.No.61/2015 12/13 21-04-2017

SPECIAL JUDICIAL MAGISTRATE OF I CLASS

(EXCISE) ELURU.

CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C.No.61/2015 ON THE FILE OF THE SPECIAL

JUDICIAL MAGISTRATE OF I CLASS, EXCISE COURT, ELURU.

--------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------- Date of Complaint Apprehension Release Taken Commencement Close sentence Offence or report of accused on bail on file of trial of trial of order --------------------------------------------------------------------------------------------------- 01.08.14 01.08.14 04.08.14 05.08.14 13.02.15 07.11.16 17.03.17 21.04.17 --------------------------------------------------------------------------------------------------- Explanation for delay: No avoidable delay took place.

Complainant : The State : Sub Inspector of Police, Pedavegi Police Station. --------------------------------------------------------------------------------------------------- S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused --------------------------------------------------------------------------------------------------- Damarla Srinivasarao, S/o.Satyanarayana, 30 years, Reddy, Male, Driver, R/o.Kannapuram road, Vegiwada village, Pedavegi Mandal. --------------------------------------------------------------------------------------------------- Offence: Under Section 338 of I.P.C. & Sec.429 of IPC.

Cr.No.170/14

Finding : Guilty.

RESULT: In the result, the accused is found guilty for the offences punishable u/Sec.338 and 429 of I.P.C and he is convicted for the same u/Sec.255(2) of Cr.P.C. The accused is sentenced to undergo Simple

Imprisonment for a period of three (3) months for the offence u/Sec.338 of I.P.C.

The accused is further directed to pay fine of Rs.5,000/- (Rupees five thousand only) for the offence U/Sec.429 of IPC. In default of payment of fine, the accused shall undergo Simple Imprisonment for a period of three months. Total fine amount is Rs.5,000/-. Out of said fine amount of Rs.5,000/-, P.W.3 (owner of she buffaloes) is awarded compensation of Rs.4,000/- as per the provision u/Sec.357 of Cr.P.C. The remand period for two day i.e., on 04.08.2014 and 05.08.2014 already undergone by the accused, shall be set off against the sentence passed, under Section 428 of Cr.P.C. The bail bonds of the accused

C.C.No.61/2015 13/13 21-04-2017 shall be in force for a period of 6 months as per the provision U/Sec.437-A of

Cr.P.C.

There is no order regarding property, since no property was seized and produced before the Court.

Accused is appraised that he has right to appeal against the judgment passed by this Court.

Sd/- P.Tirumala Rao

SPL. JUDL. MAGISTRATE OF

I CLASS (EXCISE), ELURU.

Seal

Copy submitted to : The Hon’ble I Addl. District & Sessions Judge, W.G. Eluru.

Copy to accused.

Note : Fine amount of Rs.5,000/- is collected.

Id/- PTR

SJFCM(E)

Eluru.

C.C.No.61/2015 1/13 21-04-2017

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE

OF I CLASS (EXCISE):: ELURU.

Present: Sri P.Tirumala Rao

Special Judicial Magistrate of I Class (Excise) Eluru.

Friday, this the 21st day of April, 2017.

C.C.No.61/2015

(Cr.No.170 of 2014 of Pedavegi Police Station)

Between

The State: Sub Inspector of Police, Pedavegi Police Station. … Complainant.

AND

Damarla Srinivasa Rao. … Accused.

This case is coming on 03.04.2017 before me for final hearing in the presence of Assistant Public Prosecutor for the Prosecution and

Sri C.V.Srinivasa Sastry, Advocate for the accused, upon perusing the material papers on record and having stood over till this day for consideration, this Court delivered the following:

JUDGMENT

The State: Sub Inspector of Police, Pedavegi Police Station filed Police

Report against the accused in Crime No.170/14 for the offences punishable

U/Secs.338 and 429 of Indian Penal Code, 1860 (hereinafter referred as I.P.C).

2) The brief allegations leveled in the Police Report are as follows:

On 31.07.2014 at about 6.00 p.m, L.W.2 I.Raju (P.W.2) being farm servant was returning home after grazing five she buffaloes of L.W.3 A.Satyanarayana (P.W.3) and when he reached the outskirts of Sitharamapuram villlage, the accused being the driver of a bus bearing No.AP 37 TC 1758, drove the bus in a rash or negligent manner and dashed L.W.2 I.Raju (P.W.2) and further dashed

C.C.No.61/2015 2/13 21-04-2017 four she buffaloes, resulting in L.W.2 I.Raju (P.W.2) sustained fracture to his right ankle and injury to head. Four she buffaloes died at the spot with severe injuries. The injured was shifted to the Government Hospital, Eluru for treatment. L.W.1 I.Somanadham (P.W.1) shifted L.W.2 I.Raju (P.W.2) to Manipal

Super Specialty Hospital, Vijayawada for better treatment.

2.2) L.W.1 I.Somanadham (P.W.1) gave report to the Police. L.W.12

K.Swamy, S.I of Police (P.W.11) registered the said report as a case in

Cr.No.170/14 u/Secs.338 and 429 of I.P.C and investigated into. He visited the hospital and also scene of offence. He prepared rough sketch. He examined and recorded the statements of all the prosecution witnesses. He arrested the accused and sent him for judicial custody. L.W.7 Dr.M.Harikrishna (P.W.9)

Veterinary Assistant Surgeon conducted autopsy over the Caracas of four she buffaloes and issued Post-mortem Certificates. L.W.8 Dr.Pradeep gave treatment to the injured and issued wound certificate opining that the injuries are grievous in nature. L.W.11 B.S.S.Naik (P.W.10) Motor Vehicle Inspector inspected the crime vehicle bearing No. AP 37 TC 1758 and issued accident report that the accident not occurred due to mechanical defects of the crime vehicle. After completion of investigation, L.W.12 K.Swamy, Sub Inspector of Police (P.W.11) filed charge sheet into Court. Thus, the accused is liable for the offences punishable U/Secs.338 and 429 of I.P.C. Hence, the charge.

3) Cognizance was taken for the offences punishable U/Secs.338 and 429 of I.P.C against the accused.

4) On appearance of the accused, copies of documents were furnished to him as required u/Sec.207 of Criminal Procedure Code, 1973 (hereinafter referred as Cr.P.C).

C.C.No.61/2015 3/13 21-04-2017

5) Accused was examined u/Sec.251 of Cr.P.C, explaining the accusation leveled against him for the offences u/Secs.338 and 429 of I.P.C in Telugu. After having understood the same, he pleaded not guilty and claimed to be tried.

6) During trial, to substantiate its case, the prosecution examined L.W.1

I.Somanadham as P.W.1, L.W.2 I.Raju as P.W.2, L.W.3 A.Satyanarayana as

P.W.3, L.W.4 A.Srinivasa Rao as P.W.4, L.W.6 N.Suresh Kumar as P.W.5, L.W.5

S.Mohana Murali as P.W.6, L.W.7 J.Ravi Kishore as P.W.7, L.W.8 K.Rajendra

Prasad as P.W.8, L.W.9 Dr.M.Hari Krishna as P.W.9, L.W.11 B.S.S.Naik as P.W.10 and L.W.12 K.Swamy as P.W.11. Exs.P1 to P10 are marked on behalf of the prosecution.

7) After the evidence for prosecution was closed, the accused was examined U/Sec.313 Cr.P.C by explaining the incriminating evidence available against him. He denied the same and reported no defence evidence on his behalf. Hence, the defence evidence was closed.

8) Heard the learned A.P.P and the Counsel for the accused.

9) Now, the points for determination are:

1) Whether the accident took place due to crime bus bearing No. AP 37 TC 1758 and P.W.2 sustained grievous injuries and four she buffaloes died in the accident?

2) Whether the accused drove the bus in rash or negligent manner and caused the accident?

3) Whether the accused is driver of crime bus at the time of accident?

4) Whether the prosecution proved its case beyond reasonable doubt that the accused committed the offences punishable

U/Sec.338 and 429 of I.P.C, as alleged by the prosecution?

C.C.No.61/2015 4/13 21-04-2017

10) Point No.1::

Whether the accident took place due to crime bus bearing No. AP 37 TC 1758 and P.W.2 sustained grievous injuries and four she buffaloes died in the accident?

a) P.W.2 who is injured deposed that on 31.08.2014 about 6 p.m he was returning home after grazing the cattle of P.W.3. When he reached the outskirts of Sitharampuram village, a bus bearing No.1758 of Nallajerla Engineering

College came opposite to him and dashed four she buffaloes and also dashed him. As a result of which he sustained fracture to his right ankle and injury to the head. 4 milking she buffaloes died at the spot. He was shifted to

Government Hospital, Eluru and from there to Manipal Hospital, Vijayawada for better treatment.

b) P.W.1 who is father of P.W.2, P.W.3 who is the owner of the she buffaloes, P.Ws.5 and 6 who are independent witnesses deposed that they came to know about the accident and reached the scene of offence. They further deposed that they noticed P.W.2 with fractures and also Caracas of four she buffaloes besides AKRG College bus bearing No.1758. They also deposed that they were informed that the said bus dashed P.W.2 and also she buffaloes.

c) P.W.4 deposed that on 31.07.2014 at about 6 pm he heard big sound behind me. He turned up and noticed four she buffaloes lying on the ground due to hit by Nallajerla College bus. He went to the place of accident and noticed P.W.2 (sic.P.W.1) sustained fracture to his right leg. He also noticed the number of crime bus as AP 37 CT 1758. P.W.7 deposed that on the date of accident when he reached near a factory at Sitharamapuram village, bus belongs to Nallajerla Engineering College was proceeding ahead of his bike and dashed

C.C.No.61/2015 5/13 21-04-2017 she buffaloes coming in opposite direction, resulting in four she buffaloes died at the spot. The cattle grazer also sustained fractures. He rang up to 108 ambulance and shifted the injured to hospital.

d) P.W.9 Veterinary Doctor deposed that on 01.08.2014 he conducted

Post-mortem Examination over the Caracas of four she buffaloes and issued P.M.

Certificates Exs.P.3 to P.6 opining that the buffaloes died due to haemorrhage and shock. P.W.11 investigating officer deposed that he received Ex.P.1 report, registered it as a case in Cr.No.170/2014 and issued FIR Ex.P.8. He visited the hospital and also scene of offence. He examined and recorded the statements of all the prosecution witnesses. After receiving wound certificate Ex.P.10 and Post- mortem Certificates of she buffaloes, he filed charge-sheet.

e) Investigating Officer P.W.11 further deposed that as per Ex.P.10 wound certificate, P.W.2 sustained grievous injuries. As the Doctor who gave treatment to P.W.2 left Manipal Hospital, Vijayawada, the evidence of L.W.10 Pradeep is closed. As it is not the case of the accused that there is no accident to P.W.2 and also she buffaloes, non-examination of the said Doctor is not fatal to the case of prosecution.

f) As per the evidence of P.Ws.1 to 7, 9 and 11 coupled with Exs.P1 report, P3 to P6 Post-mortem Certificates and Ex.P.10 Wound Certificate, there was accident by the crime bus bearing No. AP 37 TC 1758 wherein P.W.2 sustained grievous injuries and four she buffaloes died. It is not the case of accused that there was no accident at the scene of offence and P.W.2 did not sustain grievous injuries and 4 she buffaloes are not died in the said accident.

Hence, the prosecution proved that there was accident caused by the crime bus

C.C.No.61/2015 6/13 21-04-2017 bearing No. AP 37 TC 1758 wherein P.W.2 sustained grievous injuries and four she buffaloes died. The point is answered accordingly.

11) Point No.2::

Whether the accused drove the crime bus in rash or negligent manner and caused the accident?

a) P.W.2 deposed that the driver of crime bus drove the bus at high speed, came opposite to him and dashed against him and four she buffaloes.

P.W.4 one of the eye witnesses deposed that the accident took place due to negligence of driver of crime bus. P.W.7 another eye witness also deposed that the crime bus came at high speed and caused the accident.

b) P.W.10 Motor Vehicle Inspector deposed that on 02.08.2014 he inspected the crime bus bearing No.AP 37 TC 1758 ie, educational institution bus and found four damages mentioned in Column No.8 of his Accident Report

Ex.P.7. He further deposed that due to said damages, he could not put the vehicle for road test, but he physically inspected the brake system of bus and found that it is intact and in order. He gave his opinion that the accident was not occurred due to mechanical defects of crime bus.

c) Admittedly, the place of accident is at the fields of village at about 6 p.m. Everybody know that in the villages at about 6 p.m, the grazers of cattle and sheep, etc, use to return home from the fields at that time. The driver of college bus is the said route driver and he also should have knowledge of said fact. With the knowledge of said fact, the driver of crime bus would have driven the bus at moderate speed only. As per the evidence of injured P.W.2 and eye witnesses P.Ws.4 and 7, the driver of bus drove the bus at high speed. Moreover,

C.C.No.61/2015 7/13 21-04-2017 when the bus dashed P.W.2 and also four she buffaloes, the speed of the bus at the time of accident can be presumed as per Sec.114 of Indian Evidence Act, 1872. In case, the driver of bus drove the bus at moderate speed, the bus would have stopped immediately after dashing P.W.2 and one or two buffaloes, but it was not done so. It clearly establishes that having knowledge about return of cattle grazers with cattle on the said road, driving the bus at high speed is nothing but rash and also negligent driving. Moreover, most of the cross- examination of P.Ws.2, 4, 7 and other witnesses is with regard to driver of crime bus, but not due to rash or negligent driving of bus driver. Hence, this Court holds that the prosecution establishes that the driver of crime bus drove the bus in rash and also in negligent manner, caused the accident resulting in P.W.2 sustained grievous injuries and four she buffaloes died at the spot. The point is answered accordingly.

12) Point No.3::

Whether the accused is driver of crime bus at the time of accident?

a) P.W.2 injured deposed that the accused present in Court is the driver of crime bus at the time of accident. But, during cross-examination, he deposed that he did not observe the accused, while driving the crime bus, but after his discharge from the hospital, his men showed the accused stating that accused is driver of crime bus. Hence, the evidence of P.W.2 is only helpful, when the said fact is proved by other independent evidence.

b) P.Ws.1, 3 and 6 deposed that accused is the driver of crime bus at the time of accident. Admittedly, P.Ws.1, 3 and 6 are not eye witnesses to the accident and they also came to know that the accused is driver of crime bus at

C.C.No.61/2015 8/13 21-04-2017 the time of accident though others. Hence, their evidence is also helpful, when the said fact is proved by other material evidence.

c) P.Ws.4 and 7 who are said to be the eye witnesses to the accident deposed that the accused is the driver of crime bus at the time of accident.

During cross-examination, they denied that they identified the accused as driver of bus at the instance of Police. P.W.7 categorically deposed during cross- examination that the accused belongs to his village. There are no suggestions to

P.W.7 to elicit whether there are any disputes or enemical terms between him and accused to give false evidence against P.W.7. Hence, the evidence of P.W.7 being the villager of accused, inspires confidence of the Court in proving that accused is driver of crime bus at the time of accident.

d) P.W.11 Investigating Officer deposed that P.W.8 produced the accused

before him stating that accused is the driver of crime bus at the time of accident.

He arrested the accused and sent him for judicial custody. P.W.8 who is working as Clerk in AKRG College, Nallajerla deposed that 31.07.2014 at about 8 or 8.30 p.m, he received information that their college bus bearing No.AP 37 TC 1758 involved in accident at Sitharampuram village and a person besides four buffaloes sustained injuries in the said accident. The allegation of the prosecution is that P.W.8 produced the accused before the Investigating Officer.

Whereas, P.W.8 deposed that he did not produce the accused before

Investigating Officer, but he deposed that he came to know that the accused was produced before the Police by his College Authorities. Moreover, he categorically deposed that the accused is the driver of their college bus bearing No.AP 37 TC 1758 (crime bus). He also did not depose that another driver is on the duty on the crime bus at the time of accident. Hence, this Court is of opinion that the

C.C.No.61/2015 9/13 21-04-2017 evidence of P.W.8 coupled with the evidence of eye witnesses P.Ws.4 and 7 clearly established the accused is the driver of crime bus at the time of accident.

The point is answered accordingly.

13) Point No.4:

Whether the prosecution proved its case beyond reasonable doubt that the accused committed the offences punishable

U/Secs.338 and 429 of I.P.C, as alleged by the prosecution?

As per discussion for point Nos.1 to 3, the prosecution proved its case that the accused being driver of crime bus bearing No. AP 37 TC 1758 in rash and negligent manner and caused accident, resulting in, P.W.2 sustained grievous injuries and four she buffaloes died at the spot. The point is answered accordingly.

Typed to my dictation, corrected and pronounced by me in open Court, this the 21st day of April, 2017.

SPL. JUDL. MAGISTRATE OF

I CLASS, (EXCISE), ELURU.

14) When the accused is questioned with regard to quantum of sentence, he represented that he has wife, 2 female children and old aged mother. He further represented that all his family members depend on his income and in case, he is sentenced to imprisonment, their family members will be suffered a lot and prayed the Court to take lenient view and to impose fine instead of sentence to suffer imprisonment. Considering the facts and circumstances, nature of offence, this Court is inclined to take little bit lenient view and sentenced to suffer Simple Imprisonment for three months and fine would meet the ends of justice.

C.C.No.61/2015 10/13 21-04-2017

15) In the result, the accused is found guilty for the offences punishable u/Sec.338 and 429 of I.P.C and he is convicted for the same u/Sec.255(2) of

Cr.P.C. The accused is sentenced to undergo Simple Imprisonment for a period of three (3) months for the offence u/Sec.338 of I.P.C. The accused is further directed to pay fine of Rs.5,000/- (Rupees five thousand only) for the offence

U/Sec.429 of IPC. In default of payment of fine, the accused shall undergo

Simple Imprisonment for a period of three months. Total fine amount is

Rs.5,000/-. Out of said fine amount of Rs.5,000/-, P.W.3 (owner of she buffaloes) is awarded compensation of Rs.4,000/- as per the provision u/Sec.357 of Cr.P.C.

The remand period for two day i.e., on 04.08.2014 and 05.08.2014 already undergone by the accused, shall be set off against the sentence passed, under

Section 428 of Cr.P.C. The bail bonds of the accused shall be in force for a period of 6 months as per the provision U/Sec.437-A of Cr.P.C.

16) There is no order regarding property, since no property was seized and produced before the Court.

17) Accused is appraised that he has right to appeal against the judgment passed by this Court.

Typed to my dictation, corrected and pronounced by me in open Court, this the 21st day of April, 2017.

SPL. JUDL. MAGISTRATE OF

I CLASS, (EXCISE), ELURU.

C.C.No.61/2015 11/13 21-04-2017

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence: Nil

P.W.1 : I.Somanadham

P.W.2 : I.Raju

P.W.3 : A.Satyanarayana

P.W.4 : A.Srinivasarao

P.W.5 : N.Suresh Kumar

P.W.6 : S.Mohan Murali

P.W.7 : J.Ravi Kishore

P.W.8 : K.Rajendra Prasad

P.W.9 : Dr.M.Hari Krishna

P.W.10 : N.B.Swarna Srinivas Nayak

P.W.11 : K.Swamy

DOCUMENTS MARKED

For Prosecution:

Ex.P1 : Report

Ex.P2 : 161 part of 161 statement of P.W.8

Ex.P3 to P6 : PM certificate

Ex.P7 : MVI report

Ex.P8 : FIR

Ex.P9 : Rough sketch

Ex.P10 : Wound certificate of P.W.2

M.Os. MARKED Nil

S.J.F.C.M.(E)

Eluru.

C.C.No.61/2015 12/13 21-04-2017

SPECIAL JUDICIAL MAGISTRATE OF I CLASS

(EXCISE) ELURU.

CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C.No.61/2015 ON THE FILE OF THE SPECIAL

JUDICIAL MAGISTRATE OF I CLASS, EXCISE COURT, ELURU.

--------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------- Date of Complaint Apprehension Release Taken Commencement Close sentence Offence or report of accused on bail on file of trial of trial of order --------------------------------------------------------------------------------------------------- 01.08.14 01.08.14 04.08.14 05.08.14 13.02.15 07.11.16 17.03.17 21.04.17 --------------------------------------------------------------------------------------------------- Explanation for delay: No avoidable delay took place.

Complainant : The State : Sub Inspector of Police, Pedavegi Police Station. --------------------------------------------------------------------------------------------------- S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused --------------------------------------------------------------------------------------------------- Damarla Srinivasarao, S/o.Satyanarayana, 30 years, Reddy, Male, Driver, R/o.Kannapuram road, Vegiwada village, Pedavegi Mandal. --------------------------------------------------------------------------------------------------- Offence: Under Section 338 of I.P.C. & Sec.429 of IPC.

Cr.No.170/14

Finding : Guilty.

RESULT: In the result, the accused is found guilty for the offences punishable u/Sec.338 and 429 of I.P.C and he is convicted for the same u/Sec.255(2) of Cr.P.C. The accused is sentenced to undergo Simple

Imprisonment for a period of three (3) months for the offence u/Sec.338 of I.P.C.

The accused is further directed to pay fine of Rs.5,000/- (Rupees five thousand only) for the offence U/Sec.429 of IPC. In default of payment of fine, the accused shall undergo Simple Imprisonment for a period of three months. Total fine amount is Rs.5,000/-. Out of said fine amount of Rs.5,000/-, P.W.3 (owner of she buffaloes) is awarded compensation of Rs.4,000/- as per the provision u/Sec.357 of Cr.P.C. The remand period for two day i.e., on 04.08.2014 and 05.08.2014 already undergone by the accused, shall be set off against the sentence passed, under Section 428 of Cr.P.C. The bail bonds of the accused

C.C.No.61/2015 13/13 21-04-2017 shall be in force for a period of 6 months as per the provision U/Sec.437-A of

Cr.P.C.

There is no order regarding property, since no property was seized and produced before the Court.

Accused is appraised that he has right to appeal against the judgment passed by this Court.

SPL. JUDL. MAGISTRATE OF

I CLASS (EXCISE), ELURU.

Seal

Copy submitted to : The Hon’ble I Addl. District & Sessions Judge, W.G. Eluru.

Copy to accused.

Note : Fine amount of Rs.5,000/- is collected.

SJFCM(E)

Eluru.

C.C.No.213/2015 1/12 25-04-2017

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE

OF I CLASS (EXCISE) :: ELURU.

Present: Sri P.Tirumala Rao

Special Judicial Magistrate of I Class (Excise) Eluru.

Tuesday, this the 25th day of April, 2017.

C.C.No.213/2015

(Cr.No.21 of 2015 of Pedavegi Police Station)

Between

The State: Sub Inspector of Police, Pedavegi Police Station. … Complainant. AND

Matta Gopalarao.

… Accused.

This case is coming on 20.04.2017before me for final hearing in the presence of Assistant Public Prosecutor for the Prosecution and

Sri M.Vasudevudu, Advocate for accused; upon perusing the material papers on record and having stood over till this day for consideration, this Court delivered the following:

JUDGMENT

The State: Sub Inspector of Police, Pedavegi Police Station, filed this

Police Report against accused in Crime No.21/15 for the offences punishable

U/Secs.324 and 506 of Indian Penal Code, 1860 (hereinafter referred as I.P.C).

2) The brief accusation in the Police Report is as follows:

The Agricultural land of accused and L.W.1 P.R.Prasad (P.W.1) are situated side by side at the outskirts of Vijayrai village. There is passage near their fields to go to the temple of Lord Siva at Balive village. On the eve of

Mahasivarathri festival, huge number of devotees use to use the said passage for the last 40 years. L.W.1 P.R.Prasad (P.W.1) removed the bushes and plants besides the said passage in order to widen the passage and threw the same in

C.C.No.213/2015 2/12 25-04-2017 the nearby Irrigation canal. On 14-02-2015 at 8.30 AM on noticing the same, the accused came to L.W.1 P.R.Prasad (P.W.1), when he was at his fields and altercated with him. The accused attacked on L.W.1 P.R.Prasad (P.W.1), beat with stick and inflicted injury on his right shoulder. He fisted and kicked L.W.1

P.R.Prasad (P.W.1) and also threatened with dire consequences. The accused hurled a knife against L.W.1 P.R.Prasad (P.W.1), but he escaped without hurt.

2.2) On the same day at 5 PM L.W.1 P.R.Prasad (P.W.1) gave report in

Pedavegi police station. L.W.9 K.Swamy, Sub Inspector of Police (P.W.7) who received the said report, registered the same as a case in Cr.No.21/15 u/Secs.

324 and 506 of I.P.C and investigated into. He visited the scene of offence, examined and recorded the statements of all the prosecution witnesses. He prepared rough sketch. During investigation, he served notice u/Sec.41(a) of

Cr.P.C on the accused and obtained reply. L.W.8 Dr.T.Ram Mohan Rao (P.W.6) who gave treatment to L.W.1 P.R.Prasad (P.W.1), issued wound certificate opining that the injuries are simple in nature. After completion of investigation,

L.W.10 V.Ramakoteswararao, Sub Inspector of Police filed charge sheet before the Court. Thus, accused is liable for the offences punishable u/Secs. 324 and 506 of I.P.C. Hence, the charge.

3) Cognizance was taken for the offences punishable u/Secs. 324 and 506 of I.P.C against accused.

4) On appearance of accused, copies of documents were furnished to him as required u/Sec.207 of Criminal Procedure Code, 1973 (hereinafter referred as

Cr.P.C).

C.C.No.213/2015 3/12 25-04-2017

5) Accused was examined u/Sec.239 of Cr.P.C. Charges u/Secs. 324 and 506 of I.P.C were framed against accused, read over and explained to him in

Telugu. He pleaded not guilty and claimed to be tried.

6) During trial, to substantiate its case, the prosecution examined L.W.1

P.R.Prasad as P.W.1, L.W.2 B.Ch.Sekhar as P.W.2, L.W.3 K.Sankhar as P.W.3,

L.W.5 B.Syamala Rao as P.W.4, L.W.4 K.Gangadhara rao as P.W.5, L.W.8

T.Ram Mohan Rao as P.W.6 and L.W.9 K.Swamy as P.W.7. Exs.P1 to P4 are marked on behalf of the prosecution.

7) After closure of the prosecution evidence, accused was examined u/Sec.313 of Cr.P.C. The incriminating evidence adduced by the prosecution was read over and explained to him in Telugu. After having understood the same, he denied the incriminating evidence and stated that the said evidence is false and reported no evidence in defence. Ex.D.1 is marked during cross examination of

P.W.1.

8) Heard the learned A.P.P and learned counsel for accused.

9) Now, the point for determination is:

Whether the prosecution proved its case beyond reasonable

doubt that accused committed the offences punishable u/Secs.

324 and 506 of I.P.C, as alleged by the prosecution?

10) POINT:: In order to bring home the guilt of accused beyond all reasonable doubt, it is for the prosecution to prove that accused beat P.W.1 by means of stick and voluntarily caused simple hurt to him and also threatened

P.W.1 with dire consequences and thereby, accused committed the offences punishable u/Secs. 324 and 506 of I.P.C. To prove the same, the prosecution relied upon the evidence of P.Ws.1 to 7 coupled with Exs.P1 to P4.

C.C.No.213/2015 4/12 25-04-2017

11) P.W.1 deposed that he has agricultural land by the side of road leading to Sivalayam temple of Balive village. The said road is a small congested road for the devotees during the time of Mahasivarathri and during

Karthikamasam. At the request of Member of Legislative Assembly, for the sake of convenience of devotees, he gave 2 meters width and nearly ½ KM length of his land is given for the purpose of widening the said road. As per the instructions of his Member of Legislative Assembly, he takes the work of said widening work as he gave his land for the said purpose. P.Ws.3 to 5 corroborated the said evidence of P.W.1.

12) P.W.1 further deposed that on 14-02-2015 while he was attending the said widening of road in the presence of P.Ws.3 to 5 and others with the aid of tractors, at about 8 AM the accused came there and asked him whom he was concerned to take up the said work. By saying so, the accused picked up a stick and beat on the back just below the right shoulder. He sustained swelling. One of the persons present there took away stick from the accused. Immediately the accused picked up knife and tried to hack him, but he escaped without hurt. The accused beat him with hands. P.Ws.3 to 5 and others sent him away. He went to the house and thereafter, he gave Ex.P.1 report to the police. Police referred him to Government Hospital, Eluru for treatment. P.Ws.3 to 5 corroborated the evidence of P.W.1 with regard to the offence.

13) The contention of learned counsel for the accused is that the accused did not commit any offence. He further contended that as the bushes, plants and logs of Palmyra trees were thrown in irrigation canal by P.W.1 and as such, the water is not flowing to the field of accused and when the accused asked the same, P.W.1 himself beat P.W.1 and inflicted injuries. As the accused admitted in

C.C.No.213/2015 5/12 25-04-2017 hospital with injuries, this case was falsely foisted against him with delay due to political rivalry.

14) During cross examination P.Ws.1 and 3 to 5 admitted that they are followers of Telugu Desam Party and the accused is follower of Congress party.

The accused has rift with their Member of Legislative Assembly. They also admitted that P.W.1 dumped the material in irrigation canal. P.W.1 denied that he stated before police as in Ex.D.1 that the work of extension of road was completed on 13-02-2015. However, they denied that the accused has agricultural land by the side of said irrigation canal. They further deposed that the said land belongs to Matta Veerayya, but not accused and the accused cultivated the said land only for 1 year.

15) Assuming for a moment, P.Ws.1 and 3 to 5 gave false evidence due to political rivalry, P.W.2 who is independent witness and who is a tractor driver came with bricks load to nearby bricks kiln deposed that on 14-02-2015 at 8 AM he heard shouts, when he was in bricks kiln. He came out of kiln and noticed a quarrel between accused and P.W.1. He further deposed that accused beat

P.W.1 with stick and inflicted injury. When they separated the accused and

P.W.1, the accused brought knife from his bike and tried to hack P.W.1. But they separated P.W.1 and accused. The evidence of P.W.2 is corroborated with the evidence of P.Ws.1 and 3 to 5. Moreover, the accused did not show any material to show that he has land or he took lease of land from Matta Veerayya and due to the acts of P.W.1, the water was not flown to the said land. Hence, the contention of accused is doubtful.

C.C.No.213/2015 6/12 25-04-2017

16) P.W.6 Civil Assistant Surgeon deposed that on 14-02-2015 he examined P.W.1 and found stick marks on right upper arm and right side of neck. He issued wound certificate Ex.P.2 opining that the injuries are simple in nature. During cross examination he admitted that due to lapse of time, the colour of injury will be changed. The above said injuries are also possible to occur with self infliction. As per the evidence on record, P.W.1 sustained swelling injury at about 8 AM. As per evidence of P.W.6 coupled with ex.P.2, stick marks are on the body of P.W.1. When time lapses for about 12 hours, the swelling will be gone and the stick marks in red coloured will be appeared. The same is reflected in Ex.P.2 wound certificate. If further time lapses, the colour of injury will be changed. Hence, this court is of opinion that the evidence of P.W.1 is corroborated with the evidence of P.W.6 coupled with Ex.P.2 wound certificate.

17) The another contention of accused is that there is delay in giving

Ex.P.1 report to the police. P.W.1 admitted that Ex.P.1 was scribed at his house, but he doesn’t know who scribed the same. He further deposed that he gave said report at about 5 PM. There is delay of 9 hours in giving report. P.W.1 did not state anything about the said delay. However, P.W.1 who is around 60 years of age, gave report on the date of incident. P.Ws.2 to 5 deposed that while the accused was beating P.W.1, they separated and sent P.W.1 away from the scene of offence. It shows that after incident P.W.1 went away to his house and on the same day evening he gave Ex.P.1 report to the police. The learned APP submitted that in order to go to Pedavegi Police Station from Vijayrai village on bus, one has to come to Eluru and then, he has to go to Pedavegi Police Station and the distance in the said route is about 30 KM. Considering the argument of learned APP and also the evidence of prosecution witnesses, this Court is of opinion that the delay in giving Ex.P.1 report is not fatal to the case of

C.C.No.213/2015 7/12 25-04-2017 prosecution. Hence, this court holds that the prosecution proved its case beyond all reasonable doubts the accused beat P.W.1 and inflicted injury.

18) The learned counsel for the accused contended that as the prosecution did not produce the stick with which accused said to have caused injuries to P.W.1, at best the allegations U/Sec.323 of IPC are proved, but not

Sec.324 of IPC. Though, the prosecution proved its case that accused beat P.W.1 with stick and inflicted injuries, the said stick was not seized by the Investigating

Officer nor produced the same before the Court. P.W.7 Investigating Officer admitted that he did not seize the weapon in this case. When there is no weapon seized by the prosecution, Section of law shall be altered from 324 to 323 I.P.C.

In support of it, this Court came across the decision reported in Duvvur

Narayana and other Vs. State of A.P. reported in 2012 (1) ALD (Crl.)

385 A.P. it was held that “the most important aspect of the case is the weapon used by the accused. It is the case of the prosecution that iron rods and stones were used in causing hurt to P.Ws.1 and 2. It may be noticed that the fracture caused to the left arm of P.W.2 shall not with an iron rod, but with the help of a stone. Police, however, neither seized stones nor iron rods used by the accused as weapons. In respect of stones,

Smt.Barkha placed reliance upon Pandurang Dadu Patal Vs. the

State of Maharastra. It was observed in that case: & quot; 14-A. A perusal of Sec.326 IPC would shows that stone would only fall within its ambit if it is of a size and weight that if & quote; used as a weapon of offence is likely to cause death & quote; In the instant case, there is no evidence to indicate that the stones used were so big and heavy that they were likely to cause death & quote. Thus, it is her claim unless the prosecution produced the stones and establishes that the stones are so deadly as to constitute a deadly weapon, the offence u/Sec.326 IPC could not be made out. Admittedly, neither the stones nor the iron rods were seized by the police. I, therefore, have no hesitation to agree with the contention of the learned counsel for the accused that the prosecution failed to establish that the accused used

C.C.No.213/2015 8/12 25-04-2017 deadly weapons in causing injuries. Once deadly weapons are ruled out, the accused cannot be convicted for the offences u/Secs.324 and 326 of IPC. If the offences against the accused are established, they would became offence u/Secs.323 and 325 of IPC only”.

In the present case also, the prosecution did not seize weapon i.e, stick to prove that the simple injuries caused to P.W.1 by the accused with deadly weapon. As prosecution proved its case against the accused for simple hurt caused to P.W.1 and also threatened P.W.1 with dire consequences on point of knife as mentioned supra, this Court inclined to convict the accused for the offence u/Sec.323 of IPC as against Sec.324 of IPC as no weapon was seized by the Police besides u/Sec.506 of IPC.

Typed to my dictation, corrected and pronounced by me in open Court, on this the 25th day of April, 2017.

SPL. JUDL. MAGISTRATE OF

I CLASS, (EXCISE), ELURU.

19) When accused is questioned with regard to quantum of sentence, he represented that he is aged more than 70 years and he has been suffering from ill health. He has wife and children and they depend on him. He further represented that in case, he was sentenced to imprisonment, his family members will be suffered a lot. Considering the facts and circumstances, as the Police did not file any cogent evidence to show that there are previous convictions to the credit of accused and in view of the extreme old age of accused, this Court inclined to take lenient view by imposing fine instead of sentence.

20) In the result, the accused is found guilty for the offence punishable u/Sec.323 and 506 of IPC and he is convicted for the same u/Sec.255(2) of

Cr.P.C. Accused is sentenced to pay fine amount of Rs.1000/- (Rupees one thousand only) for the offence u/Sec.323 of IPC and in default of payment of fine amount, accused shall undergo Simple Imprisonment for a period of one month. Accused is sentenced to pay fine amount of Rs.1000/- (Rupees one

C.C.No.213/2015 9/12 25-04-2017 thousand only) for the offence u/Sec.506 of IPC and in default of payment of fine amount, accused shall undergo Simple Imprisonment for a period of one month. The total fine amount is Rs.2,000/- (Rupees Two thousand only). The bail bonds of accused shall be in force for a period of 6 months as per the

Provision of Sec.437-A of Cr.P.C.

21) There is no order regarding property, since no property was produced

before the Court.

22) Accused is appraised that he has right to appeal against the Judgment passed by this Court.

Typed to my dictation, corrected and pronounced by me in open Court, on this the 25th day of April, 2017.

SPL. JUDL. MAGISTRATE OF

I CLASS, (EXCISE), ELURU.

C.C.No.213/2015 10/12 25-04-2017

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence: Nil

P.W.1 : P.Ravindra Prasad

P.W.2 : B.Chandra Sekhar

P.W.3 : K.Sankar

P.W.4 : B.Syamala Rao

P.W.5 : K.Gangadhara Rao

P.W.6 : Dr.T.R.Mohan Rao

P.W.7 : K.Swamy

DOCUMENTS MARKED

For Prosecution:

Ex.P1 : Report given to police

Ex.P2 : Wound certificate of P.W.1

Ex.P3 : FIR

Ex.P4 : Rough sketch

For Defence: Ex.D1 : Part of 161 statement of P.W.1

M.Os. MARKED

Nil.

S.J.F.C.M.(E)

Eluru.

C.C.No.213/2015 11/12 25-04-2017

CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C.No.213/2015 ON THE FILE OF THE SPECIAL

JUDICIAL MAGISTRATE OF I CLASS, EXCISE COURT, ELURU.

--------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------- Date of Complaint Apprehension Release Taken Commencement Close sentence Offence or report of accused on bail on file of trial of trial of order --------------------------------------------------------------------------------------------------- 14.02.15 14.02.15 -- -- 01.06.15 25.01.17 17.03.17 25.04.17 --------------------------------------------------------------------------------------------------- Explanation for delay: No avoidable delay took place.

Complainant : The State : Sub Inspector of Police, Pedavegi Police Station. --------------------------------------------------------------------------------------------------- S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused Matta Gopalarao, S/o.Venkaiah, 69 years, Gowda, Male, Cultivation, Vijayarai village of Pedavegi Mandal. --------------------------------------------------------------------------------------------------- Offence: Under Section 323 and 506 of IPC.

Cr.No.21/15

Finding : Guilty

RESULT: In the result, the accused is found guilty for the offence punishable u/Sec.323 and 506 of IPC and he is convicted for the same u/Sec.255(2) of Cr.P.C. Accused is sentenced to pay fine amount of Rs.1000/- (Rupees one thousand only) for the offence u/Sec.323 of IPC and in default of payment of fine amount, accused shall undergo Simple Imprisonment for a period of one month. Accused is sentenced to pay fine amount of Rs.1000/- (Rupees one thousand only) for the offence u/Sec.506 of IPC and in default of payment of fine amount, accused shall undergo Simple Imprisonment for a period of one month. The total fine amount is Rs.2,000/- (Rupees Two thousand only). The bail bonds of accused shall be in force for a period of 6 months as per the Provision of Sec.437-A of Cr.P.C.

There is no order regarding property, since no property was produced

before the Court.

C.C.No.213/2015 12/12 25-04-2017

Accused is appraised that he has right to appeal against the Judgment passed by this Court.

SPL. JUDL. MAGISTRATE OF

I CLASS (EXCISE), ELURU.

Seal

Copy submitted to :

The Hon’ble I Addl. District & Sessions Judge, W.G. Eluru.

Note : Fine amount of Rs.2,000/- is collected.

SJFCM (E)

Eluru.

C.C.No.297/2007 1/11 08-07-2014

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE

OF I CLASS (EXCISE) :: ELURU.

Present: Sri P.Tirumala Rao,

Special Judicial Magistrate of I Class (Excise) Eluru.

Tuesday, this the 8th day of July, 2014.

C.C.No.297/2007

(Cr.No.59 of 2007 of Eluru Rural Police Station)

Between

The State: Sub Inspector of Police, Eluru Rural Police Station. … Complainant.

AND

1) Ketha Ramesh

2) Dali Ramu

3) Shaik Amir

4) Nuthupalli Durga Prasad

5) Jagannadham Venkataiah

(Case against A5 was separated and numbered as C.C.No.10/14)

6) Gandikota Venkata Ramana @ Nani

7) Gantasala Balaram

8) Swamy

9) Mangi Kranti @ Kranti … Accused.

This case is coming on 04.07.2014 before me for final hearing in the presence of Assistant Public Prosecutor for the Prosecution and Sri

M.Narasimhulu, Advocate for all accused, upon perusing the material papers on record and having stood over till this day for consideration, this Court delivered the following:

JUDGMENT

The State: Sub Inspector of Police, Eluru Rural Police Station, filed this

Police Report against A1 to A9 in Crime No.59/07 for the offence punishable

U/Sec.380 of Indian Penal Code, 1860 (hereinafter referred as I.P.C).

C.C.No.297/2007 2/11 08-07-2014

2) The brief accusation in the Police Report are as follows:

On the intervening night of 3/4.3.2007 some unknown offenders stolen away the two gold spot trays containing rimmi type of hair weighing about 30 kgs kept in the veranda of the house of L.W.1 Katari Mangamma at Madepalli village, Eluru Mandal.

2.2) Basing on the report given by L.W.1 Katari Mangamma, a case in

Cr.No.59/07 u/Sec. 380 of IPC was registered by L.W.5 MRLSS Murthy, SI of

Police and investigated into. During the course of investigation, on credible information, on 11.3.2007 at 11.00 a.m L.W.5 MRLSS Murthy, SI of Police arrested A1 in the presence of two mediators ie., L.W.3 K.Naga babu and

L.W.4 M.Venkata Ramana at Venkateswara Swamy Temple, Madepalli village.

A1 confessed about the commission of thefts along with A2 to A9 and his confessional statement was recorded in the presence of said mediators. A1 led all of them to the drinking water tank bund, Jalipudi village wherein A2 to A4 were arrested by L.W.5 MRLSS Murthy, SI of Police at 1.45 p.m. and recorded their confessional statement. Later, A5 and A6 were arrested at 3.30 p.m. at Madepalli village and seized the stolen property from the possession of

A6 under the cover of mediator report. L.W.5 MRLSS Murthy, SI of Police returned to Police Station and sent A1 to A6 for judicial remand. On 31.3.2007 at 10.00 a.m he arrested A7 at in gate of old bus stand, Eluru and sent him for judicial remand. Later, he filed charge sheet showing A8 and A9 are in absconding. Thus, A1 to A9 are liable for the offence punishable u/Sec.380 of

IPC. Hence, the charge.

3) Cognizance was taken by my predecessor for the offence punishable

U/Secs.380 or 411 of I.P.C against A1 to A9.

C.C.No.297/2007 3/11 08-07-2014

4) On appearance of A1 to A4 & A6 to A9, copies of documents were furnished to them as required u/Sec.207 of Criminal Procedure Code, 1973 (hereinafter referred as Cr.P.C.) separating case against A5 as Non Bailable

Warrant is pending against him.

5) A1 to A4 & A6 to A9 were examined u/Sec.239 of Cr.P.C. Charges

U/Secs.380 or 411 of I.P.C against A1 to A4 & A6 to A9 were framed, read over and explained to them in Telugu. They pleaded not guilty and claimed to be tried.

6) During the course of trial, to substantiate the case of the prosecution, the prosecution examined L.W.2 Katari Kumari as P.W.1. L.W.3 Keerthi Naga

Babu as P.W.2. L.W.5 MRLSS Murthy as P.W.3. Exs.P1 to P7 are marked on behalf of the prosecution.

7) After closure of the prosecution evidence, A1 to A4 & A6 to A9 were examined u/Sec.313 of Cr.P.C. The incriminating evidence adduced by the prosecution was read over and explained to them in Telugu. After having understood the same, they denied the incriminating evidence and stated that the said evidence is false and reported no evidence in defence.

8) Heard the learned A.P.P and learned counsel for A1 to A4 & A6 to A9.

9) Now, the point for determination is:

Whether the prosecution proved its case beyond reasonable doubt that A1 to A4 and A6 to A9 committed the offence punishable u/Secs.380 or 411 of I.P.C., as alleged by the prosecution?

10) POINT:: In order to bring home the guilt of A1 to A4 & A6 to A9 beyond all reasonable doubt, it is for the prosecution to prove that A1 to A4 and

C.C.No.297/2007 4/11 08-07-2014

A6 to A9 stolen away two gold spot trays containing the rimmi type of hair kept in the veranda of the house of L.W.1 Katari Mangamma and thereby, they committed the offence punishable u/Sec.380 of IPC or in the alternative A1 to A4 and A6 to A9 were found in possession of the stolen property having knowledge or having reason to believe that the property to be the stolen property and thereby, they committed the offence punishable u/Sec.411 of IPC. In order to prove the same for the offence punishable u/Sec.380 of IPC, the prosecution relied upon the evidence of P.Ws.1 to 3 coupled with Exs.P1 to P7.

11) Coming to the evidence of P.W.1 who is daughter-in-law of L.W.1

Katari Mangamma who died, deposed that her husband doing hair business. On 3.4.2007 during night time they kept 30 kgs of rimmi type of hair kept in two gold spot trays in the veranda of their house and slept in the house. On the next day morning they found missing of said 30 kgs of hair. L.W.1 Katari

Mangamma gave report to the Police. She does not know about the said hair.

During the course of cross examination, she deposed that the business transactions are being looked after by her husband. On the date of commission of theft, her husband was not in town and he returned to Eluru 10 days after the commission of theft of hair. She admitted that she does not know the contents of report given by L.W.1 Katari Mangamma.

12) P.W.3 deposed that on 10-3-2007 at 1.00 p.m L.W.1 Katari

Mangamma came to police station and presented a written report Ex.P.5, he registered the same as a case in Cr.No.59/2007 u/sec.380 of IPC and issued FIR

Ex.P.6. He visited the scene of offence along with L.W.1 Katari Mangamma, prepared rough sketch of the scene of offence vide Ex.P.7. He examined and recorded the statements of L.W.1 Katari Mangamma and P.W.1. On 11-3-2007 at 11.00 a.m on credible information, he along with his staff and 2 mediators i.e.

C.C.No.297/2007 5/11 08-07-2014

P.W.2 and L.W.4 M.Venakataamana proceeded to Venkateswara swamy temple,

Madepalli village. On seeing the police, one person tried to skulk away, but, they detained him and on his examination, the said person disclosed his identity as A1 and confessed about the commission of thefts of several properties along with

A2 to A9. He arrested A1 and seized a motor cycle concerned in Cr.No.61/2007 under cover of mediators report Ex.P1. Basing on the confession of A1, they went to water tank bund, Jalipudi village and he arrested A2 to A4 and recorded their confessional statement about the commission of thefts along with A1 and others under Ex.P2. From there, A1 led all of them to the house of Sattenapalli

Siva (sic. A5) situated at Madepalli village. Sattenapalli Siva confessed that he also committed thefts along with A1 to A4 and A6 to A9 and produced the property in Cr.No.57/07. He arrested A5 and Sattenapalli Siva and seized the property under cover of mediator report Ex.P3. A1 to A5 led all of them to the house of A6 situated at Madepalli village and showed A6. A6 confessed that he committed thefts along with A1 to A5 and A7 to A9 and produced property i.e.

hair and he identified the said property relating to this crime. He arrested A6 and seized the property under cover of mediators report Ex.P.4. He further deposed that on 31-3-2007 at 10.00 a.m he along with his staff went to in gate of Old Bus Stand, Eluru and arrested A7 who confessed about the commission of offence along with A1 to A6, A8 and A9 and he sent A7 for judicial remand.

After completion of investigation, he filed charge sheet showing A8 and A9 are absconding. During the course of cross examination, he admitted that it is mentioned in Ex.P3 that A5 confessed that he purchased 40 kgs of hair having knowledge that it is stolen property. He also admitted that he did not issue any search proceedings to search the house of said A6 as other accused showed him as one of the culprits committed thefts along with them. He also admitted that

C.C.No.297/2007 6/11 08-07-2014

L.W.1 Katari Mangamma did not produce any stock register pertaining to the property in question. He denied to a suggestion that mediators are stock mediators and with their assistance Exs.P1 to P4 are prepared in Police Station.

13) It is not the evidence of P.W.1 that the accused committed theft of hair kept in the Veranda of the house of L.W.1 Katari Mangamma and either accused were caught red handed and escaped from the scene of offence and nobody has seen the accused, while they were committing the offence. As such, the prosecution failed to bring home the guilt of A1 to A4 and A6 to A9 for the offence punishable u/Sec.380 of IPC, as such, they are entitled for acquittal u/Sec.380 of IPC.

14) Coming to the charge for the offence punishable u/Sec.411 of IPC, it is for the prosecution to prove that the stolen property was in possession of the accused, some persons other than the accused had in possession of the stolen property before the accused got possession of it and the accused had knowledge that the property was stolen property.

15) In order to prove that the stolen property was in possession of P.W.1 prior to the accused got possession of it, the prosecution relied upon the evidence of P.Ws.1 to 3 coupled with Exs.P1 to P7. P.W.1 who is daughter-in- law of L.W.1 Katari Mangamma deposed that she does not know the contents of the report given by L.W.1 Katari Mangamma and also she does not know about hair, though she stated that 30 kgs of rimmi type of hair kept in two gold spot trays in the veranda of their house was committed theft on 3.4.2007. P.W.2 deposed that on 11-3-2007 at 11.00 a.m he along with L.W.4 M.Venkataramana followed P.W.3 and his staff to Venkateswara Swamy temple, Madepalli village.

On seeing the police, one person tried to skulk away, but, the police caught hold

C.C.No.297/2007 7/11 08-07-2014 of him. On examination of the said person by P.W.3, he disclosed his identity as

A1 and confessed about the commission of theft of hair in a tray kept in the

Veranda of the house at Madepalli, along with A2 to A9. P.W.3 arrested A1 and recorded his confessional statement under Ex.P.1. Basing on the confession of

A1, they proceeded to drinking water tank, Jalipudi village wherein A1 showed

A2 to A4. P.W.3 arrested A2 to A4 and recorded their confessional statement under Ex.P2. Basing on the confessional statement of A1, they proceeded to the house of A6 at Madepalli village and A1 showed A5 and A6. P.W.3 examined A5 and A6 and recorded their confessional statement that they also committed theft of property along with A1 to A4 and A7 to A9. A6 produced 40 kgs of hair and also confessed that the remaining 10 kgs of hair was with A1. P.W.3 arrested A5 and A6 and recorded their confessional statement under Ex.P.3. A1 further led all of them to the house of one Gandikota Venkataramana/A6 who produced 30 kgs of hair before P.W.3 and confessed about commission of theft of property.

P.W.3 seized the said property under cover of mediators report Ex.P4. The learned counsel for the accused cross examined P.W.2 at length and he admitted that Door Number of house of A6 is not mentioned in mediators report Ex.P4.

He further admitted that he cannot identify A1 to A9. The accused were arrested in the year 2007 and P.W.2 gave evidence before the Court in the year 2014 i.e. after 7 years, as such, the identification of accused 7 years after their arrest may not be possible. Hence, his evidence is believable one.

16) P.W.3 who is the Investigating Officer also corroborated the evidence of P.W.2 as mentioned Supra. He denied to a suggestion that he got prepared all the mediator reports in the Police Station with the help of stock mediators

P.W.2 and L.W.4 M.Venkata Ramana, but, the learned counsel for the accused did not ask P.W.2 that he is stock mediator to the Police and he acted as mediator in several cases.

C.C.No.297/2007 8/11 08-07-2014

17) The evidence of P.Ws.2 and 3 is consistent with each other in respect of the facts where A1 to A4 and A6 to A9 were arrested and their confession statements were recorded and also in respect of seizure of property from the house of A6. P.W.3 admitted that he did not examine the neighbours at the place of arrest and also did not examine the owners and neighbours at the place of seizure of property. Admittedly, the prosecution did not produce the property, though the property said to have been seized from the possession of A6. As per the confessional statement of A1 to A4 and A6, if confessional statement of accused lead to recovery of property, it is admissible in evidence as per the provision u/Sec.27 of Indian Evidence Act, 1872. The prosecution did not produce the property said to have been seized by P.W.3, before the Court.

Hence, the prosecution failed to prove its case beyond all reasonable doubt that

A6 is in possession of property having knowledge or reason to believe that it is the stolen property from the house of L.W.1 Katari Mangamma. As such, the accused are found not guilty for the offence punishable u/Sec.411 of IPC. The point is answered accordingly.

18) In the result, A1 is found not guilty for the offence punishable u/Sec.380 of IPC and A2 to A4 and A6 to A9 are found not guilty for the offence punishable u/Sec.411 of IPC and they are acquitted for the same u/Sec. 248(1) of Cr.P.C. The bail bonds of A1 to A4 and A6 to A9 shall remain in force for a period of 6 months as per the Provision of Sec.437-A of Cr.P.C.

19) There is no order regarding the property as no property was produced before the Court.

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

pronounced by me in open Court, on this the 8th day of July, 2014.

Sd/- P.Tirumala Rao

SPL. JUDL. MAGISTRATE OF

I CLASS, (EXCISE), ELURU.

C.C.No.297/2007 9/11 08-07-2014

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence:

P.W.1 : Katari Kumari None

P.W.2 : Keerthi Naga Babu

P.W.3 : MRLSS Murthy

DOCUMENTS MARKED

For Prosecution:

Ex.P1 : Attested copy of mediator report dated 11.3.2007 at 11.00 a.m.

Ex.P2 : Attested copy of mediator report dated 11.3.2007 at 1.45 p.m.

Ex.P3 : Attested copy of mediator report dated 11.3.2007 at 3.30 p.m.

Ex.P4 : Attested copy of mediator report dated 11.3.2007 at 5.30 p.m.

Ex.P5 : Written Report of L.W.1 Katari Mangamma

Ex.P6 : FIR

Ex.P7 : Rough Sketch.

For Defence: Nil

M.Os. MARKED

Nil

Id/- PTR

S.J.F.C.M.(E)

Eluru.

C.C.No.297/2007 10/11 08-07-2014

CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C.No.297/2007 ON THE FILE OF THE SPECIAL

JUDICIAL MAGISTRATE OF I CLASS, EXCISE COURT, ELURU.

--------------------------------------------------------------------------------------------------- Date of --------------------------------------------------------------------------------------------------- Offence Complaint Apprehension Release Taken Commencement Close sentence or report of accused on bail on file of trial of trial of order ------------------------------------------------------------------------------------------------------------ 3/4.03.07 10.03.07 20.01.14 25.07.07 20.05.14 04.07.14 08.07.14 A1 to A4 : 21.04.2007 A6 : 22.03.2007 A7 : 26.04.2007 A8 : 30.01.2010 A9 : 25.06.2009 ----------------------------------------------------------------------------------------------------------

Explanation for delay: No avoidable delay took place.

Complainant : The State : Sub Inspector of Police, Eluru Rural Police Station.

--------------------------------------------------------------------------------------------------- S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused

1) Ketha Ramesh S/o. Venkateswara Rao, 22 years, Settibalija, Male, Auto Driver, Jalipudi village.

2) Dali Ramu s/o. Suryanarayana, 21 years, T.Kapu, Male, Vegetable business, R/o. near Ganganamma temple, Satyanarayanapet, Eluru.

3) Shaik Amir, S/o. Khadar, 22 years, Muslim, Male, fish Packing work, R/o near Ganganamma temple, Satyanarayanapet, Eluru.

4) Nuthupalli Durga Prasad, S/o. Uma Maheswara rao, 22 years, T.Kapu, Male, fish packing, R/o near Ganganamma temple, Satyanarayanapet, Eluru.

5) Jagannadham Venkataiah, S/o.Benjiman, 28 years, Yerukula, Male, Hair business, Lingaragudem, N/o Markapuram, Prakasham District

(Case against A-5 was separated and numbered as C.C.No.10/14)

6) Gandikota Venkata Ramana @ Nani, S/o.Venkanna, 23 years, Uppara, Male, Hair Business, Madepalli.

7) Gantasala Balaram, S/o. Paramatma, 22 years, Vaddilu, Male, fish hunting, Gudivakalanka.

8) Swamy, Male, R/o. Near Ganganamma temple, Satyanarayanapet, Eluru.

9) Mangi Kranti @ Kranti, S/o Raghu, 20 years, T.Kapu, Male, Painting Work, ASR colony, Bavisettivaripet, Eluru. ---------------------------------------------------------------------------------------------------

C.C.No.297/2007 11/11 08-07-2014

Offence: Under Sections 380 and 411 of IPC.

Cr.No.59/07

Finding : Not Guilty

RESULT: A1 is found not guilty for the offence punishable u/Sec.380 of

IPC and A2 to A4 and A6 to A9 are found not guilty for the offence punishable u/Sec.411 of IPC and they are acquitted for the same u/Sec. 248(1) of Cr.P.C.

The bail bonds of A1 to A4 and A6 to A9 shall remain in force for a period of 6 months as per the Provision of Sec.437-A of Cr.P.C.

There is no order regarding the property as no property was produced

before the Court.

Sd/- P.Tirumala Rao

SPL. JUDL. MAGISTRATE OF

I CLASS (EXCISE), ELURU.

Seal

Copy submitted to : The Hon’ble I Addl. District & Sessions Judge, W.G. Eluru.