Sri T.Raghuram

1of MVOP NO.276 of 2018

BEFORE THE MOTOR VEHICLES CLAIMS TRIBUNAL-CUM-

I-ADDL.DISTRICT JUDGE, FAC-VII ADDITIONAL DISTRICT JUDGE,

MAHABUBNAGAR.

Friday, the 7th day of January, 2022. Present:- Sri T.Raghuram, Chairman, MVT-cum-I-Addl. District Judge, FAC-VII-Addl. District Judge, Mahabubnagar.

M.V.O.P.No.276 of 2018.

Between: 1.Jalugari Kurumurthy S/oJalugari Papaiah Age:45years Occ:Agriculture, 2.Jalugari Padma w/o Jalugari Kurumurthy aged 40 years, Occ: House hold R/o H.No.6-117, Musapet village, Addkal mandal, Mahabubnagar.

...Petitioners.

And

1.Boya Kumar S/o Boya Sugrevudu aged Major Occ:Driver of lorry GJ18 AV R9200 R/o H.No.4-102, P.Muchumarri, Pagidyala, Mutsumarri, Kurnool, Andhra Pradesh. 2.RR Edifice Represented by B.Mallikrjun Reddy aged Major, Occ:Owner of lorry bearing No.GJ 18AV 9200, R/o Flat No.301, Navyasri Residency, Ganesh Nagar, Vansthalipuram R.R District. 3.The United India Insurance Co Limited, Represented by its Divisional Manager, 40/204, Divisional Office, Bhagya Nagar, Kurnool (Policy No.0504003117P116514654 valid from 16.2.2018 to 15.2.2019).

...Respondents

.

Sub:- Petition filed u/Sec.166 of the Motor Vehicles Act claiming compensation of Rs.20,00,000/- for death of Jalugari Shiva Kumar in a Motor Vehicle Accident. * *

This petition coming up before me for final hearing on 17.3.2022 in the presence of Sri G.Karthik, Advocate for the petitioners and respondents 1 and 2 remained exparte and of Sri G.Raja Narender Reddy, 2of MVOP NO.276 of 2018

Advocate for the respondent No.3 and upon perusing the material on record, the Tribunal delivered the following:-

A W A R D

1.Petition filed under Sec.166 of the Motor Vehicles Act, 1988 claiming a total compensation of Rs.20,00,000/- for the death of Jalugari Shiva

Kumar.

2.The petitioners case in brief is, they are resident of Moosapet village of Addakal mandal, Mahabubnagar. Their son Jalugari Shiva Kumar who is a member of Fisheries Industry Society(Vide registration No.H-58 dt.22.4.1980 of Mossapet). On 20.6.2018 was going along with pillion rider Balraj from Mahabubnagar to Moosapet on motor cycle bearing

No.AP22 AE 5273, while so at about 8.30P.M when their motor cycle reached near Janampet village, their motor cycle dashed a lorry bearing registration No.GJ18AV9200 which was negligently parked in the middle of the road without any signals or sign boards and without any precautions.

In that accident the pillion rider Balraj sustained bleeding injuries all over his body and their son Shiva Kumar who was driving the motor cycle died on the spot. A case in cr.No.43/2018 U/S.304-A of IPC was also registered by Moosapet police in connection with the said accident. They also contend their son late Shiva Kumar was hale and healthy and was at the age of 22 years by the date of accident and he was earning Rs.20,000/- per month by doing fish business. Now due to his sudden death the 3of MVOP NO.276 of 2018 petitioners who are his parents suffered mental agony since they lost earning member of their family and also his love and affection for them.

Had their son been alive he would have taken care of them till their death.

Though the actual loss sustained cannot be compensated in terms of money, they are claiming a total compensation of Rs.20,000/- under different sub heads as specifically shown in paragraph No.26 of the petition. They also contend respondent No.1 was the driver of lorry.

Respondent No.2 is owner of the said lorry and respondent No.3 is the insurance company that insured the lorry, as such they three are jointly and severally liable to pay the compensation to them.

3. Respondents 1 and 2 remained exparte.

4.Respondent No.3 filed counter making a specific and general denial of petition allegations, income of the deceased and further contending inter alia that the accident occurred only because of negligent driving of the deceased. But the present petition is filed only to get wrongful gain; and that the police and also insurer( respondent No.2) both failed to discharge their mandatory duties contemplated U/S.134 and 158(6) of

Motor Vehicles Act, 1988 respectively and in case the Tribunal awards interest on the compensation amount may be considered on the date of filing of the policy.

4of MVOP NO.276 of 2018

5.Basing on pleadings of both parties and on perusal of material on record and after hearing the learned counsel for both parties, following issues were framed on 29.8.2019.

(1) Whether Jalugari Shiva Kumar (deceased) died, aged about 20 years due to negligent driving of R-1,Lorry bearing No.GJ-18-AV-9200 on 20.6.2018?

(2)Whether petitioners are entitled for compensation? I so, what is quantum, and from whom?

(3) To what relief?

6.Issue Nos.1: Petitioners contend on 20.6.2018 respondent No.1 who was driving the lorry bearing registration No.GJ-18-AV-9200 drove the lorry in the middle of the road without taking any precautionary measures such as putting sign boards or giving signals, as a result of which the deceased who was going along with his cousin Balraj on motor cycle bearing registration No. AP22 AE5273 on that day at about 8.30P.M dashed the lorry and died on the spot. Pw1 who is petitioner No.1 in his chief examination stated on the lines of the petition. To prove negligence on the part of respondent No.1 he marked attested copy of FIR in

Cr.No.43./2018 of Moosapet police (Ex.A1), attested copy of inquest report in Cr.No.43 of 2018 (Ex.A20, attested copy of postmortem examination report of the deceased(Ex.A3) and attested copy of crime details form cum rough sketch in Cr.No.43 of 2018 (Ex.A4), attested copy of motor vehicle inspector’s report in the said crime No.43 of 2018(Ex.A5) and 5of MVOP NO.276 of 2018 attested copy of charge sheet filed before the Judicial Magistrate of First

Class cum Spl.Mobile, Mahabubnagar (Ex.A6). In his cross examination he stated that his son was going on Luna Excel vehicle at the time of accident and the Luna vehicle will have head lamp, it may be true the light focus maybe up to 20 to 30 feet. He also admitted one can travel during nights on Luna Excel vehicle. He also admitted there will be lighting from Janampet Arch up to outskirts of Janampet.

7.PW2 who was the pillion rider of the said motor cycle bearing registration No.AP22 AE 5273 at the time of accident, stated in his evidence that on the way at about 8.30P.M when their motor cycle reached near Janampet village where a lorry bearing registration No.GJ 18AV 9220 was negligently parked in the middle of the road without any signals and sign boards i.e. without any precautions, his cousin Jalugari

Shiva Kumar (deceased) without noticing the said lorry dashed the lorry from rear side due to which he and deceased sustained bleeding injuries and the deceased died on the spot; and that he also received injuries in that accident. He also admitted in his cross examination that there are street lights from the Arch up to the end of Janampet village. He also admitted the place where the accident occurred is National high way.

However he denied the suggestion that the accident occurred because of negligence on the part of the deceased in driving the vehicle by chit chatting with him at the time of accident. Though it was suggested to this 6of MVOP NO.276 of 2018 witness that the speed of Luna XL will be normally 30 or 40 Kms per hour.

No suggestion was given to him at the time of accident they were going in high speed or with more than 40 KM per hour. Ex.A1 shows on 20.6.2018 at 22.30hours Pw1 gave report to the S.I of police, Moosapet stating inter alia that the deceased who is his son along with his nephew was going at about 20.30hours on motor cycle bearing registration No.AP22AE 5273 to

Moosapet and that when the motor cycle reached Janampet village a lorry baring registration No.GJ18AV9200 which was parked on the road was found parked on the road without any precautions and so the deceased who is his son dashed the lorry and died on the spot and that at the time of accident his son was driving the vehicle. This exhibit also show a case incr.No.43/2018 was also registered by the Station House officer, Moosapet U/S.304-A and 337 IPC. Ex.A2 also show that the panch witnesses for panchanama also concluded that only because of rash and negligent parking of said lorry bearing registration No.GJ18AV9200 the accident occurred and the deceased died. Ex.A3 shows that the deceased died of head injury associated with other injuries and time of death is about 12 to 24 hours prior to postmortem examination which commenced at 1.55p.M on 21.6.2018. Ex.A4 shows the accident occurred on the extreme right side of Nh44 and on the way to Kurnool. The evidence of

PW2 and also Ex.A1 shows that the motor cycle hit the lorry from rear side. Though it is admitted by Pws 1 and 2 that there were lighting from 7of MVOP NO.276 of 2018

Janampet Arch up to outskirts of Janampet village is not shown in this

Ex.A4. It is true this exhibit shows that the place of offence is in Janampet village. However that itself would not lead to any conclusion that there are lights at the place of offence. Ex.A5 shows that the accident occurred is due to any mechanical defect of the said lorry being driven by the respondent No.1. ex.a6 shows that the police officer who investigated the said crime No.43/2018, after investigation filed charge sheet stating inter alia that the accident occurred because of respondent No.1 parked the said lorry on the main road without any precautions and it resulted in the accident. As such the respondent No.1 who is shown as accused in the charge sheet is liable for punishment u/S.304-A and 337 IPC. It is thus clear that only because of rash and negligent act of driving on the part of respondent No.1 the accident occurred.

8. Learned counsel for the respondent No.3 vehemently argued that the accident occurred only because of rash and negligent act of driving on the part of the deceased who was driving the motor cycle at the relevant point of time. I am unable to agree with his argument for merely because focus of the head lamp will be 20 to 30 feet from its horizon does not lead to any conclusion that the deceased was in position to see the lorry.

Further as already stated the rough sketch in Ex.A4 also dies not show any lights near the place of accident. A such only conclusion that can be drawn is there was negligence on the part of respondent No.1 and only 8of MVOP NO.276 of 2018 because of his negligent parking of lorry bearing registration No.GJ 18-

AV9200 the accident occurred. Learned counsel for the petitioner would submit that there is no composite negligence as submitted by learned counsel for the respondent as submitted that there is no composite negligence as submitted by learned counsel for the respondent No.3 in support of his argument he relied upon a decision given in the case of

Mr.M.Tirumalesh Vs.Y.Ramana Reddy in M.A.C.M.A.No.2893 of

2007 wherein it was held by his Lordship of Hon’ble Telangana High

Court that “In the case of composite negligence, the victim is having choice of claiming compensation as against insurer as owner of the case may be of both vehicles involved in the accident, I opine since it is not proved by the respondent No.3 that there is composite negligence. This decision is not of much use and not helpful to the petitioner”.

Learned counsel for the petitioner also relied upon a decision given in the case of Royal Sundaram Alliance Insurance Company Ltd

Vs.Harvinder Kaur & Ors reported in IV(2017) ACC 329 (P&H)

wherein it was held by his Lordship of Panjab and Hariyana High Court that mere delay in issuance of FIR does not lead to any conclusion that the crime vehicle is not involved in the accident.

Learned counsel for the petitioners also relied upon a decision given in the case of the Claim Manager vs Pushpa in Miscellaneous First Appeal

No.1378 of 2017 of Karnataka High Court, in that case a car which was proceeding on NH7 dashed against a stationed lorry which was parked on 9of MVOP NO.276 of 2018 the high way towards left side of the road, it hit the lorry from behind.

Under those circumstances it was held that “The driver of the lorry was on the breach of duty to take care, and was thus negligent. Further at para NO.102 of the decision it was also held by his Lordship of Karnataka High Court “ No negligence can be attributed to the driver of the car as on a National Highway the vehicles would normally move at a greater speed than on an ordinary road or on a road in a city or a town. On account of there being no indication whatsoever that the container lorry was parked towards the left side of the road, the driver of the car who was also proceeding on the left side could not imagine or guage or expect that there was a vehicle that was parked towards the left side of the of the road, it hit the lorry from behind. Even if the car was proceeding at a moderate speed, the driver could not have avoided the stationed lorry which was unattended and without any light or indicator on so as to indicate to the drivers of the vehicles proceeding in the same direction that the lorry was parked to avoid hitting the lorry….”

On perusal of the decision, I opine the facts on hand and the facts in the case are similar and in the absence of any decision to the contrary of the

Hon’bl Supreme court or of our State High Court.

Learned counsel for the petitioners also relied upon a decision given in the case of Mohammed Siddique vs. National Insurance Company

Ltd in Civil Appeal No.79 of 2020 wherein their Lordships of Apex court held at paragraph No.14 observed that “……in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence…..”.

10of MVOP NO.276 of 2018

I, therefore hold that the accident occurred where the deceased died only because of rash and negligent act of parking of lorry bearing registration

No. GJ18AV 9200 driven by respondent No.1, which was owned by respondent No.2 and insured with respondent No.3. This issue is accordingly answered.

9.Issue No.2:Petitioners contend that the deceased, who is their son was member of Fisheries Industry Society vide Registration No.H-58 since 22/4/1980, where he was earning an amount of Rs.20,000/- per month by doing fish selling business. However Pw1 himself admitted in his evidence that he has not filed any document to show that his son was earning

Rs.20,000/- per month. To prove their contention on this aspect the petitioners marked Photostat copy of ID card issued by Fisheries

Development Officer, Mahabubnagar to the deceased (Ex.A8). I have perused the ID card which was marked as Ex.A15, which shows that the admission number of the deceased is 120 and he is a member of

Fisheries Industries Co-operative Society which was registered on 22.4.1980 of Moosapet. Ex.A14 which is licence granted to the deceased shows that his date of birth is 2.1.2000. The date of accident is 20.6.2018, which shows that his age as on the date of accident was 18 years five months 18 days. Learned counsel for the petitioners would submit that the deceased is a skilled worker and he is Fisherman by birth and his income can be taken is to Rs.20,000/- per month. Learned 11of MVOP NO.276 of 2018 counsel for the respondent No.3 vehemently argued that in the absence of any proof the monthly income of the deceased cannot be taken as

Rs.20,000/- and I find force in the argument of learned counsel for the respondent. As already stated the very age of the deceased at the time of accident was 18 years five months, which shows that he has not much experience. Further no document is filed to show that he is doing fish business such as any bills to show that the deceased was also doing fish business. The petitioner on this aspect relied upon a decision given in the case of Smt Neeta Vs The Divisional Manager, MSRTC, Kollapur reported in 2015(1) T.A.C.340(S.C.) where the victim in a motor accident is a carpenter and that fact was not denied. But no evidence was adduced to prove the actual income of the deceased. Under these circumstances it was held by their Lordships of Apex court hat notification issued under minimum wages Act can be taken to assess the income of the victim. Learned counsel for the petitioner also filed a copy of proceedings dt.10.9.2018 issued by Collector &District Magistrate,

Mahabubnagar vide No.C/752/2009 fixing rates of wages of skilled, semi- skilled and Un-skilled and other categories of NMR/Casual workers which shows that minimum wages fixed Rs.8710-00 per month for unskilled w.e.f.1.4.2018. It also defined as Skilled: skilled work is that which includes skill acquired through experience on the job or thourgh training 12of MVOP NO.276 of 2018 as apprentice in technical or vocational institution and the performance of which calls for initiation accuracy and judgment;

Semi-Skilled:-Semi-skilled work is that which involves some degree of skill acquired through experience on the job and which is capable of being performed under supervision and guidance of a skilled employee;

Unskilled:- Unskilled work is that which involves simple operations requiring little or no skill or experience on the job.

As already 13of MVOP NO.276 of 2018

As the version of both parties to the extent it is relevant is already given, it is not being recapitulated here. To prove their case on this aspect, the petitioner No.1 examined himself as PW1 and one Md.Vasheem as Pw2 and Dr.Venu Yadagiri as PW3; and marked certified copy of FIR in

Cr.No.51/2017 of P.S.Devarkadra along with complaint (EX.A1), Certified copy of inquest panchanama (EX.A2), Certified copy of Postmortem examination report of deceased (EX.A3), Certified copy of crime detail form(Ex.A4), Certified copy of MVI report (Ex.A5), certified copy of alteration memo (Ex.A6), certified copy of charge sheet (Ex.A7), Original expenditure certified issued by SVS hospital, Mahabubnagar (Ex.A8), original medical certified issued by SVS hospital, Mahabubnagar (Ex.A9), original driving license of deceased (Ex.,A10), Photostat copy of

RC(Ex.A11), Photostat copy of insurance of crime vehicle(Ex.A12) and

Photostat copy of driving licence of driver of crime vehicle(Ex.A13).

Contesting respondent No.3 not adduced any evidence to prove the plea taken by it on the manner of accident or negligence if any on the part of respondent No.2.

7.Ex.A1 shows the first petitioner who is the father of the deceased (Mohd.Valioddin) gave a report to the Sub-inspector of police, Devarkdra stating inter alia that his son and one Shivakumar went to Devarkadra on motor cycle bearing registration No.AP22 K 2807 on 4.5.2017 and that on the same day at about 8.30P.M he was informed over phone by his 14of MVOP NO.276 of 2018 villager Md.Vasim S/o Late Tahajoddin that his son and the said

Shivakumar met with an accident on the way and near Chowdarpally gate and that a car bearing registration No.AP16 CL7104 being driven by its driver in a rash and negligent manner dashed their motor cycle and they both received injuries and were being shifted to Government hospital,

Mahabubnagar and soon after receipt of that information he rushed to

Government hospital and as per the advice of the doctors concerned, shifted them to SVS hospital, Yenugonda, Mahabubnagar. This exhibit also shows basing on the report a case in Cr.No.51/2017 was registered by Devarkadra police. This exhibit also shows the accident occurred on

National high way 167 and near a bus stop. Ex.A7 shows the police officer who investigated the said Cr.No.51/2017, after investigation filed charge sheet stating inter alia that the investigation established that only because of rash and negligent driving of respondent No.2, the accident occurred and the deceased received injuries andsuccumbed to injuries on 17.5.2017 while undergoing treatment in SVS hospital, Mahaubnagar.

Ex.A2 shows the inquestdars also came to a conclusion that only because of rash and negligent driving of driver of the car bearing registration

No.AP16 CL 7104 the accident occurred which lead to the death of deceased and bleeding injuries to Shiva Kumar. Ex.A3 shows the deceased died due to multiple injuries. Ex.A5 shows the said accident not occurred due to mechanical defect of the crime vehicle.

15of MVOP NO.276 of 2018

8.Pw1 stated inter alia that the deceased Mohd.Valioddin is his son, on 4.5.2017 at evening hours his son (deceased) and his friend Shiva

Kumar were returning on motor cycle bearing No.AP22 K2807 to village, when they reached near Chowdarpally gate on NH167 at about 8.30P.M a

Renold Duster car bearing No.AP16 CL 7104 came in a rash and negligent manner with high speed and dashed the motor cycle of the deceased, due to which his son and his friend Shiva Kumar received grievous injuries, after the accident the deceased and Shiva Kumar were shifted to

Government hospital, Mahabubnagar in 108 ambulance; while undergoing treatment his son succumbed to injuries on 17.5.2017. Except making a suggestion that the accident occurred only due to negligence on the part of the deceased no specific suggestion was given denying the said statement of this witness PW2 stated inter alia in his evidence that he is a resident of Chowdarpally village of Devarkadra mandal. On 4.5.2017 after completion of his labour work he was waiting for an auto rickshaw at chowderpally gate to go to his village. At that time the deceased and his friend were coming on their motor cycle from Devarkadra to

Chowderpally and when they reached near choderpally gate on NH 167 at about 8.30P.M, a Renold Duster car bearing registration No.AP16 CL 7104 came in a rash and negligent manner with high speed from

Mahabubnagar to Devarkadra side and dashed to the motor cycle of the deceased, due to which both the deceased and pillion rider received 16of MVOP NO.276 of 2018 grievous injuries. Immediately they both were shifted to Government Civil hospital, Mahabubnagar on 108 Ambulance for treatment; and that while undergoing treatment the deceased succumbed to injuries on 17.5.2017 at 11.40 P.M. Thus from Exs.A1 to A5 and also from the evidence of Pws 1 and 2 it is proved that on 4.5.2017 at evening hours when the deceased along with his friend were returning to their village, near Chowdarpally gat, the respondent No.2 who was driving the Renold Duster car bearing

Registration No.AP16 CL 7104, drove the vehicle in a rash and negligent manner and dashed the motor cycle of the deceased and caused him sever injuries and only because of those injuries he (deceased) died on 17.5.2017 while undergoing treatment in Mahabubnagar hospital. This issue is accordingly answered.

9.issue No.2 :

Petitioners contend the deceased who is their son was hale and healthy by the date of accident and by working as private car driver he was earning Rs.13,000/- per month and contributing the same to their family. But due to his sudden death they lost his love and affection and also their source of income. Had he been alive he would survived till 70 years of age and would have supported his family members. Infact the loss incurred by them cannot be estimated in terms of money, however they restricted their claim to Rs.15.Lakhs and the respondents are jointly and severally liable to pay compensation. Pw1 in his evidence stated 17of MVOP NO.276 of 2018 inter alia that his son was hale and healthy and was at the age of 24 years and he was also earning Rs.13,000/- per month by working as private car driver by the date of accident. In his cross examination he admitted that no document is filed by him to show that his son was working as driver and earning Rs.13,000/- per month by the date of accident. Even Pw2 who is an eye witness to the accident, now here stated in his evidence that the deceased is a driver. Ex.A10 though shows that the deceased was holding a valid driving licene, it does not show it is non-transport light motor vehicle licence. Petitoners ought to have filed a certificate from the person who engaged their son (deceased) as driver for his car. Learned counsel for the petitioners would submit that in the case of Parminder Singh Vs New India Assurance Co.Ltd & Ors in

Civil Appeal No.5123 of 2019 the Hon’ble Apex court accepted income of Rs.10,000/- to a driver. On perusal of the decision I opine the decision is not helpful to the petitioner for in that case the injured who is a driver filed an affidavit of his employer as to the salary paid to the injured.

Unlike in the present case. Learned counsel for the petitioner also would submit that as per the decision in National Insurance Company

Limited Vs Pranay Sethi and Others reported in 2017 (4)

T.A.C.l673 (S.C.) it was held by his Lordships of the Apex court that even if the deceased is self employed and below 40 years of age, an addition of 40% can be made to his income for assessing his future prospectus. In 18of MVOP NO.276 of 2018

Ex.A2 inquest report the deceased is shown as driver though he is not shown as driver in Exs.A3 and A7. Considering this fact and also the evidence of Pw1 and the possibility of petitioner who is a licenced to drive a light motor vehicle who will be engaged to drive light motor vehicles, and also the year of accident and age of the deceased by the date of accident, I opine income of the deceased can be taken as

Rs.10000/- per month. It is not the version of the petitioners that the deceased is married. In the absence of any such evidence I opine 50% of his income can be deducted towards living and personal expenses and his monthly income comes to Rs.5,000/- and when 40% is added it comes to Rs.7,000/-. Thus his annual income comes to Rs.84,000/-. The date of birth of deceased as per Ex.A13 is 22.7.1994. Thus by the date of accident his age was approximately 22 years 9 months. As per the decision in the case of Sarla Verma @Ors vs Delhi Transport Corp. &Anr the appropriate multiplier is 18. Thus when the annual income of

Rs.84,000/- is multiplied by 18, it comes to Rs.15,12,200/-. Ex.A8 which is proved by the evidence of PW3 who is RMO of SVS, Medical College,

Mahabubnagar wherein the deceased was from 5.5.2017 to 17.5.2017.

The evidence of PW3 shows an amount of Rs.1,49,690/- was spent for medical treatment of the deceased during that period. In addition to this the petitioners are entitled for Rs.15,000/- towards funerals and

Rs.15,000/-towards loss of estate. I, therefore opine the petitioners are 19of MVOP NO.276 of 2018 entitled for total compensation of(Rs.15,12,000+1,49,690+30,000)

Rs.16,91,690/-.

10.. As regard to issuance of policy for respondent No.3 in respect of vehicle bearing registration No.AP16 CL7104 there appears to be not much dispute and from Ex.B1 it was marked by consent , it is clear that policy issued by respondent No.3 in respect of the said vehicle was in force as on the date of accident. This issue is accordingly answered.

11.Issue No3: From my findings on issues 1 and 2, it is clear that on 4.5.2017 in the evening hours when the deceased along with his friend

Shiva Kumar were returning to their village on Motor cycle bearing registration No.AP22 K-2807 near Chowdarpally gate, a Renold Duster car bearing registration No.AP16 CL7104 being driven by respondent No.2 owned by respondent No.1 and insured with respondent No.3, hit their vehicle from back side, as a result of which the deceased and Shiva

Kumar received grievous injuries and the deceased succumbed to injuries while undergoing treatment in the hospital and the petitioners are entitled for a total compensation of Rs.16,91,690/-(Rupees Sixteen Lakhs ninety one thousand six hundred and ninety only)

12.In the result, the petition is allowed passing an award for

Rs.16,91,690/- against the respondents 1 to 3. The respondent No.3 is hereby directed to deposit Rs.16,91,690/- within 30 days from the date of passing of the decree and with subsequent interest @7.5% per annum 20of MVOP NO.276 of 2018 from the date of filing of the petition till the date of deposit. On such deposit the petitioners 1 and 2 who are father and mother of the deceased each entitled for Rs.8,45,845/- and they are permitted to with draw Rs.4,00,000/- each and the remaining balance amount of compensation with interest accrued on their share of compenjsation amount shall be kept in any Nationalized Bank for a period of two years.

Since the petitioners claimed exemption from the payment of court fee at the time of filing petition, petitioners shall pay the court fee on the awarded amount on deposit of awarded amount by the respondent No.3, failing which, the same shall be deducted from the compensation amount.

Advocate fee is fixed at Rs.1500/-.

Dictated to the Stenographer Grade-I, transcribed by her, corrected

and pronounced by me in the open Court, on this the 7th day of January, 2022.

Chairman, MVT-cum-I-Addl. District Judge, Mahabubnagar. FAC of VII Addl.District Judge, Mahabubnagar.

Appendix of evidence Witnesses examined

For Petitioner:-

21of MVOP NO.276 of 2018

PW1Mohd.Ameeroddin @Ameen Sab PW2 Md.Vasheem PW3 Dr.Venu Yadagiri.

For Respondent No.3: None.

Exhibits Marked.

For Petitioner:

Ex.A1.CC of FIR along with complaint in cr.No.51 of 2017 of P.S.Devarkadra Ex.A2 is CC of inquest panchanama Ex.A3 CC of postmortem examination of the deceased Ex.A4 Cc of rime detail form Ex.A5 Cc of MVI report Ex.A6 Cc of alteration memo Ex.A7 Cc of charge sheet Ex.A8 Original expenditure certificate issued by SVS hospital, Mahabubnagar dt.5.7.2017 Ex.A9 Original medical certificate issued by SVS hospital, Mahabubnagar dt.10.1.2019 Ex.A10 Original driving license of the deceased EX.A11 Photostat coy of RC of crime vehicle EX.A12 Photostat copy of insurance of crime vehicle Ex.A13 Photostat copy of driving licence of driver of crime vehicle.

For Respondent No.3:

Ex.B1 is copy of policy marked by consent.

Chairman, MVT-cum-I-Addl. District Judge, Mahabubnagar, FAC of VII Addl.District Judge, Mahabubnagar.

1of 18 S.C.No.251 of 2017

IN THE COURT OF THE SPECIAL SESSIONS JUDGE-CUM-VII-

ADDITIONAL DISTRICT AND SESSIONS JUDGE, MAHABUBNAGAR.

FAC I.ADDITIONAL DISTRICT AND SESSIONS JUDGE,

MAHABUBNAGAR

Friday, the 25th day of March, 2022

Present:- Dr.T.Raghuram, I-Addl. District and Sessions Judge, FAC of VII-Addl.District and Sessions Judge, Mahabubnagar.

S.C.No.251 of 2017.

Between:

The State of Telangana through Police, Police Station, Utkoor.

….Complainant. And. 1.Lingampally Balappa S/o Yellappa age 60 years, Occ: Agriculture SC Madiga R/o Ameenpur village of Utkoor mandal.

2.Thayamma W/o Balappa age 55 years, Occ: Agriculture, SC Madiga, R/o Ameenpur village of Utkoor mandal (Died case abated).

...Accused.

: U/Sec.302 IPC r/w.sec.34 of IPC Nature of offences

Plea of the accused: Pleaded not guilty.

Finding of the court: Found not guilty for the offence punishable U/S.302 r/w.sec. 34 of IPC.

Accused is found not guilty for the offence Sentence or order : punishable U/S.302 of IPC r/.w.sec. 34 IPC and he is acquitted U/S.235(1)Cr.P.C. His bail bonds shall stand cancelled after expiry of appeal time.

Mos 1 and 2 shall be destroyed after expiry of appeal time. (Case against A2 is abated as died) -o0o- 2of 18 S.C.No.251 of 2017

This case coming up before me for hearing on 21.3.2022 in the presence of Addl. Public Prosecutor for the State and of Sri.B.Raja

Bhasker, Advocate for the accused and upon perusing the material on record, and having stood over for consideration till this day, the court delivered the following:-

J U D G M E N T

1. Accused herein have been prosecuted by the State being represented by Utkoor police for the offence punishable U/S.302 of IPC r/w.sec.34 of IPC.

2.Prosecution case in brief is: On 9.12.2016 at 00.30 hours one

Singaram Maremma W/o Balappa a resident of Ameenpur village of Utkoor mandal gave a report to Mr.G.VijayKIumar, Sub-inspector of police, Utkoor alleging inter alia that the accused herein had committed murder of her husband Babu. In her report she stated inter alia that her husband has one elder brother by name Hanmanthu and one younger brother by name

Shankarappa. Her husband family owns Ac.1-00 of agricultural land which stands in the name of her father-in-law Hanmanthu and her husband is cultivating that land. About one year back her husband dug a bore in that land. She also stated in her report that her husband’s brothers asked her husband for a share in the agricultural land being cultivated by him.

While the matters stood so, her husband raised paddy crop, in the year of her report and his brothers Hanmanthu and Shankarappa claimed a share even in the yield, for which her husband told them that if they bear expenses incurred by him to raise paddy crop and also to dig bore well he 3of 18 S.C.No.251 of 2017 would give them share in the yield. While the matters stood so on 8.12.2016 at 7.A.M when her husband was present at his residence, one

Mr.Balappa (A1) who is one of his co-parceners along with his wife

Tayamma(A2) came to the house and made an attempt to kill him by pouring kerosene on him and by setting fire saying “Nee Anna

Thammulaku bagam ivvava”. Then she along with others who were present at that time put off the fire. It is also the version of the prosecution that basing on her report the said Mr.G.Vijay Kumar registered a case in Cr.No.77/2016 U/S.307 IPC r/w.sec.34 of IPC. During the course of investigation he examined and recorded the statement of defacto complainant Maremma and referred her husband Babu to

Government Area hospital, Narayanpet for medical treatment. He also made a requisition to the learned Judicial Magistrate of First Class,

Narayanpet to record dying declaration of the injured Babu and the learned Magistrate accordingly visited the hospital and recorded the dying declaration of the injured Babu. During further course of investigation he visited Ameenpur village secured two panch witnesses namely Samanoor

Narasimhulu and Chapala Kurmamma and in their presence he conducted a scene observation panchanama and also prepared a crime detail form cum rough sketch. At the scene of offence he also seized the kerosene can containing remnants of kerosene and match box which were used by the accused to commit the offence. Further investigation was taken up by N.Srinivas, Circle inspector of police, Makthal. He on receipt 4of 18 S.C.No.251 of 2017 of death intimation of deceased Babu (hereinafter referred to as the deceased) from Government Area hospital, Narayanpet wherein the said

Babu was undergoing treatment, he altered the section of law from 307

IPC r/w.sec.34 IPC to 302 IPC r/w.sec.34 IPC and filed memo to that effect

in the court. He visited Government Area hospital, Narayanpet and took

photographs of the deceased, examined and recorded the statements of the defacto complinant Singaram Maremma, her elder brother Gudise

Anjappa and one Mr.Nakka Venkatesh who is said to have put off fire when the accused set fire to the deceased. He also conducted an inquest over dead body of the deceased in the presence of one Mr.Gudise

Hanmanthu and Dobbali Ramesh. After that he got shifted the dead body of the deceased for postmortem examination. The medical officer who conducted postmortem examination on the dead body of the deceased submitted his report expressing opinion that the cause of death may be due to septic shock which is secondary to burn injury(50 to 60% of body surface area). During further course of investigation was conductd by

Mr.P.Vnkateshwarlu, he visited the house of the accused apprehended them and on interrogation the accused confessed the offence, then he recorded their statements in the presence of two mediators namely

Guduse Thippanna and Koninti Bheemappa. The investigation established that the accused No.1 who is a co-parcener of the deceased along with his wife (A2) instigated Shankarappa to demand for a share in the agricultural land and also in the crop raised in that land for which the deceased 5of 18 S.C.No.251 of 2017 refused and so on 9.12.2016 when the deceased was at his house, both

A1 and A2 quarreled with him and when the deceased warned them not to interfere in his family issues they developed grudge against him and on the same day at 7.P.M they both came to the house of the deceased and made an attempt to kill him by pouring kerosene on him and by setting fire, later the deceased succumbed to injuries while undergoing treatment in T.V.V.P Area hospital, Narayanpet on 11.2.2016 at 2.20 P.M.

3.Cognizance for the offence punishable under Section 302 of IPC r/w.sec.34 of IPC was taken against both the accused.

4. On appearance, the accused were furnished with copies of documents on 16.7.2018. A charge U/S.302 r/w.Sec.34 of IPC was framed against them both, read over and explained to them in their vernacular language. They denied the charge framed against them and claimed to be tried. Hence proceeded with trial.

5.To prove its case, the prosecution examined the defacto complainant Singaram Maremma(Pw1) her elder brother Gudise

Anjappa(PW2) and circumstantial witness Nakka Venkatesh(Pw3). It also examined panch witnesses for scene of offence panchanama namely

Samanoor Narasimhulu(PW4) and Chapala Kurmamma(PW5), panch witnesses for inquest namely Gudise Hanmanthu(PW6) and Dobbali

Ramesh(PW7), learned Magistrate who recorded the dying declaration (PW8) Mr.G.vijay Kumar who registered FIR and altered the section of 6of 18 S.C.No.251 of 2017 law(PW9) and other two investigating officers namely N.Srinivas(Pw10) and P.Venkateshwarlu(PW11).

6.Prosecution also marked original FIR issued by PW9 (EX.P9),

Statement of Harijan Babu, said to have been recorded by PW9(Ex.P10), requisition made for recording dying declaration (EX.P11), dying declaration recorded by learned Magistrate(Ex.P8), inquest panchanama prepared by PW10(Ex.P14), section alteration memo filed by PW9 on 11.12.2016(Ex.P14). It also marked signature of Pw4(Ex.P4) and of

Pw5(Ex.P5) on Ex.P12, signature of PW6(Ex.P6) and of PW7(Ex.P7) on

Ex.P14. It also marked statements of PW1(Ex.P1), of PW2(Ex.p2) and of

PW3(Ex.P3) said to have been recorded by Pw10 during the coruse of investigation. It also marked plastic kerosene can (MO1) and Chai Delux

Match box(Mo2) said to have been seized by PW9 at the time of conducting scene observation panchanama.

7.During the pendency of case, A2 died and so the case against A2 was abated.

8.After closure of the prosecution evidence accused No.1 was examined U/S.313 of Cr.P.C on 4.1.2022 by inviting his attention to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. His plea was a total denial. However He did not choose to adduce any evidence.

9.Learned Addl. Public Prosecutor would submit that though all the witnesses have turned hostile, conviction can be based on the dying 7of 18 S.C.No.251 of 2017 declaration recorded by learned Magistrate who was examined as PW8 and the dying declaration was even supported by the statement recorded by PW9 prior to recording of dying declaration. Learned counsel for the accused vehemently argued there are material discrepancies in the statements of Pws 1 to 3 and also in the statement said to have made by the deceased to PW9 and also to PW8, as such dying declaration (Ex.P8) cannot be relied upon to convict the accused and that a reasonable doubt arises from the evidence of PWs 1 to 7 and also PWs 9 to 11, as to very commission of the alleged offence by the accused and the accused is entitled for benefit of doubt and for clean acquittal.

10.Now the points for determination are:

1.Whether there were disputes between the deceased and the accused prior to 8.12.2016, if so, 2.Whether on 8.12.2016 at 7.P.M the accused made an attempt to murder the deceased?

3.Whether the deceased succumbed to burn injuries caused on 8.12.2016 at 7.P.M, on 11.12.2016 at 2.20P.M?

4.Whether the prosecution proved the guilt of the accused beyond all reasonable doubts?

11.Point No.1:-Version of the prosecution is there were disputes between the deceased and his brothers Shankarappa and Hanmanthu since they were claiming a share in the agricultural land of Ac.1-00 which stands in the name of their father and which is being cultivated by the 8of 18 S.C.No.251 of 2017 deceased. The wife of the deceased also stated in her report dt.9.12.2016 that said Hanmanthu and Shankaraiah who are brothers of her husband are claiming share in the Ac.1-00 which is being cultivated by her husband and that when her husband raised paddy crop after digging a bore they claimed a share in the yield, for which her husband put a condition that if they bear expenses for raising crop and also for digging bore he would give them a share. However Pw1in her evidence stated inter alia that there was no quarrel between her husband and his brother and even PW2 who is her brother and brother-in-law of the deceased categorically stated that he does not know about any disputes between his brother-in-law(deceased) and his brothers over Ac.1-00 of land. For that matter both Pw1 and Pw2 turned hostile. Though in column No.15 of

Ex.P14 shows that the inquestdars after inquest came to a conclusion that

Shankarappa who is the brother of the deceased claimed a share in the crop raised by the deceased and the accused No.1 herein and his wife

Tayamma interfered and instigated Shankarappa to demand for a share which lead to the incident wherein the accused made an attempt to kill the deceased. However the wife (Pw1) and brother-in-law of the deceased (PW2) so also the panch witnesses who were examined as PW6 and PW7 all turned hostile. As such I opine Ex.P14 is not of much use to prove the disputes, if any, between the deceased and his brothers. Even

Pws 9 to 11 who are the investigating officers in this case, as seen from their evidence not made any investigation in that direction. It is pertinent 9of 18 S.C.No.251 of 2017 to note Pw11 himself admitted in his cross examination that he had not collected documents pertaining to the land in respect of which disputes arose between the deceased and his brothers and he had not even examined brothers of the deceased to ascertain the disputes, if any, between the deceased and them. For these reasons I opine, that the prosecution failed to prove the disputes between the deceased and the accused prior to the date of incident. Thus it has failed to prove the motive behind the commission of alleged offence.

12.Point No.3:- Version of the prosecution is the deceased suffered from burn injuries when accused No.1 and 2 poured kerosene on him and set fire to him on 8.12.2016 at 7.P.M at his house and later on 11.12.2016 the deceased succumbed to those injuries while undergoing treatment in

Government Area hospital, Narayanpet. Pw1 in her evidence stated inter alia that her husband himself poured kerosene and set fire to himself.

Pw2 stated he has not even seen his brother-in-law in flames at about 9.P.M. Similarly Pw3 who is according to the prosecution is one of the persons who put off fire when the accused No.1 and 2 set fire to the deceased, also stated in his evidence that he had not seen the deceased coming out crying and in flames surrounding him and fell down by the side of his hut. From the evidence of Pw1, it is clear that on 8.12.2016 the deceased raised burn injuries. PW9 stated inter alia that on 9.12.2016 he received a report from Pw1, registered a case in Cr.No.77/2016 u/S.307 of

IPC r/w.sec.34 of IPC and referred her husband to hospital for medical 10of 18 S.C.No.251 of 2017 treatment. As per his evidence he received report form Pw1 at 00.30horus on 9.12.2016. The evidence of PW9 also shows that on 11.12.2016 he received death intimation of the deceased and so he altered section of law by filing Ex.P13 in the court. However the doctor who has given treatment to the deceased was not examined. For the reasons best known to it. Ex.P15 shows that the deceased died due to septic shock which is secondary to burn injury (50 to 60% of body surface area). This exhibit was marked through PW10 and not through the

Medical officer who treated the deceased till to his death. As such it can be said Ex.P15 is not proved. For the same reason I opine the percentage of burns mentioned in Ex.P15 cannot be taken into consideration. The doctor who conducted postmortem examination and who issued this report could not be examined by the prosecution since the doctor died.

But the fact remains the deceased received burn injuries on 8.12.2016 and he died of those injuries. Even the scene of offence panchanama is not proved since panchayatdars who were examined as PW4 and PW5 both turned hostile. For this reason I opine seizure of Mos 1 and 2 also not proved. I, therefore, opine that the prosecution was able to prove by substantial evidence that the deceased received injuries on 8.12.2016 at 7.P.M and succumbed of those injuries while undergoing treatment on11.12.2016 at 2.20P.M. The point is accordingly answered.

11of 18 S.C.No.251 of 2017

13. Since points No.2 and 4 are inter connected, I opine for better appreciation of evidence to arrive at a right conclusion it is necessary to answer those two points at a time.

Points 2 and 4:- Version of the prosecution case is there are disputes with regard to share of crop in Ac.1-00 of land that stands in the name of father of the deceased, between the deceased and is brothers

Shankarappa and Hanmanthu, the incident occurred. It is also its version that the accused No.1 who is one of the co-parcenres instigated

Shankarappa to demand for a share and in that connection on the date of incident accused No.1 along with his wife Thayamma poured kerosene on the deceased and set fire to him, thereby they made an attempt to commit murder of the deceased and later the deceased died. As already stated from my discussion on point NO.1 it is clear that the prosecution failed to prove the land disputes, if any, between the deceased and his brothers so also the deceased and the accused; or atleast the incidents if any that took place earlier wherein A1 and A2 instigated Shankarappa to claim a share. Similarly from my discussion on point No.3, it is clear that the deceased received burn injuries on 8.2.2016 at 7.P.M and succumbed to those injuries at 2.20 P.M on11.12.2016 while undergoing treatment in

Government Area hospital, Narayanpet. Pw1as already stated, deposed in her evidence that her husband set fire to himself and she does not know why her husband poured kerosene himself and set fire himself. She also categorically stated accused No.1 and 2 not concerned with the death of 12of 18 S.C.No.251 of 2017 the deceased. PW9 is the first person, according to the version of the prosecution who recorded statement of the deceased. In his evidence he stated inter alia that soon after registration of the crime he examined and recorded the statement of the deceased when the deceased was in the hospital and undergoing treatment which was marked as Ex.P10 through him. In his evidence he stated inter alia that the deceased stated before him that he belongs to Ameenapur village eking out livelihood by doing agriculture. His father was blessed with three sons and he has an elder brother by name Hanmanthu and younger brother by name Shankarappa.

An extent of Ac.1-00 agricultural land was recorded in the name of his father and he(the deceased) dug a well in the said land and cultivated in the current year (2016) he cultivated paddy crop; that accused No.1 and 2 are agnates and they instigated his brother Shankarappa and on 8.12.2016 in the night at about 7.P.M while he was at his house A1 and his wife Tayamma (A2) poured kerosene on him and set fire and attempted to kill him; and when he raised hue and cry, PW2 and his neighbours came and put off the fire. However his evidence shows that he has not taken any precautions such a taking endorsement from the doctor who was attending the deceased. For that matter his evidence shows that he has not ascertained the mental condition of the deceased at the time of recording statement. Further either he or Pw11 did not choose to examine the doctor who treated the deceased at the time when

PW9 recorded the statement of the deceased. It is pertinent to note he 13of 18 S.C.No.251 of 2017 himself stated in his cross examination that he had not asked the duty doctor to give his opinion before recording statement of witness nor he obtained signature of the deceased on the statement recorded by him.

He however denied the suggestion that the deceased never gave statement to him. It is pertinent to note he himself admitted in his cross examination both Pw1 and PW3 were present beside the bed of the deceased. I, therefore, opine, it is not safe to rely upon his evidence for as per Ex.P10 accused No.1 and 2 on 8.12.2016 at 7.P.M poured kerosene on the deceased and set fire to him. Admittedly the deceased was with burn injuries when that is so he would have taken opinion of the doctor

before recording statement he should have atleast ascertain, the mental

condition of the deceased. Another material witness in this case is the learned Magistrate who recorded the dying declaration. In his evidence he stated inter alia that he received a requisition from the Sub-inspector of police, Utkoor at about 1.25 A.M on 9.12.2016 to record dying declaration of the deceased, he then proceeded to Narayanpet Area hospital and, with the help of duty doctor Venkat Dadan he identified the deceased. He also took all the precautions while proceeding to record dying declaration. Except he and duty doctor no other person was present. He also obtained an endorsement from the duty doctor about the mental status of the deceased. Doctor endorsed that the deceased is conscious and coherent and in fit state of mind for recording dying declaration. He posed general questions and after satisfying himself that 14of 18 S.C.No.251 of 2017 the deceased is in a fit state of mind to give statement, he proceeded further. When he enquired the deceased about the bodily burns, the deceased stated that his father’s brother Balappa (A1)caught hold of him and his wife Tayamma(A2) poured kerosene and set ablaze him and it happened at their house Ameenpur village around 7.00P.M. This witness also stated that on his further enquiry the deceased stated that the incident occurred for the share in bore well dug in his agricultural land.

His brother Shankar and his wife Venkatamma were present. They also quarre3lled with him for want of share in the bore well dug in his land and that they had disputes earlier. This witness also stated he read over the statement to declarant and explained him and he understood the same and then he obtained certification from the doctor that the patient was conscious, coherent and in fit state of mind throughout recording statement. I have perused Ex.P8 which is dying declaration recorded by this witness. Admittedly the deceased is a layman but the dying declaration is in English language. It is pertinent to note PW8 himself admitted the fact that Ex.P8 is in English language and the deceased/declarant was not conversant with English language. It is pertinent to note that this witness also stated that he knows Telugu language though he cannot write Telugu language correctly. he should have made an attempt to record declaration of the deceased in Telugu language especially when he knows Telugu language and apart from this he himself admitted in his evidence that he has not obtained thumb 15of 18 S.C.No.251 of 2017 impression of the deceased on first and second pages of Ex.P8. Further as per Ex.P8 there are disputes between the deceased and his brother.

But as per Ex.P8 the dispute is only with regard to bore and not about share in the crop raised by the deceased, which is contrary to the version of the prosecution. It is pertinent to note wife of the deceased who is examined as PW1 herself admitted in her evidence that there are no disputes between her husband and his brothers and they never quarreled with each other. On this aspect of conviction solely based on dying declaration, learned counsel for the accused relied upon a decision given

in the case of Rahana Begum and others V.State of Andhra

Pradesh reported in 2017(1)ALD(Crl.)749 wherein it was held by their Lordships of the A.P High Court that where there are contradictions with regard to time of recording by Magistrate and language known to deceased apart from several contradictions between stands taken by deceased it is not safe to rely upon such dying declaration in the absence of corroborative evidence.

He also relied upon a decision given in the case of Madaram Gopal

Reddy Vs State of Andhra Pradesh reported in 2009CJ(AP)929 wherein the accused was acquitted since the deceased who has given three dying declarations which are mutually inconsistent with each other and especially on material particulars. On perusal of the above said decisions

I opine the facts on hand and the facts in those decisions are similar and they are applicable to the present case also. It is true the dying 16of 18 S.C.No.251 of 2017 declaration is an exception to the rule of inadmissibility of hearsay evidence. But it does not mean a dying declaration can be sole basis for conviction if it is not corroborated with the evidence of material witnesses in the present case. I, therefore, opine unless its contents are free from reasonable doubts, apart from being coherent and consistent, it is not safe to rely upon the dying declaration in the absence of corroborative evidence as held in (2007)15 SCC 465. As already stated there are material contradictions in Ex.P8 and the evidence of PWs 1 and 2 with regard to disputes between the deceased and his brothers. Further the learned Magistrate who was examined as PW8 having knowledge in

Telugu language and having aware of the fact that the witness is an agriculturist and he does not know English language, he has chosen to record dying declaration in English language. Further though at the end of dying declaration made an endorsement to the effect that he read over and explained the statement written in English language to the patient and the patient admitted the truthiness of the statement, he has not taken thumb impression of the patient (deceased). I opine the learned

Magistrate ought not to have recorded dying declaration in English

language when the declarant does not know that language. I also opine mere certificate of reading over and explain will not cure the defect in recording the dying declaration. Thus it is not known whether the deceased admitted the truthiness of contents of the statement recorded by PW8. For all these reasons, I opine it is not at all safe to rely upon 17of 18 S.C.No.251 of 2017

Ex.P8 in the absence of any corroborative evidence and I opine that the prosecution failed to prove beyond all reasonable doubts and by substantial evidence that the accused No.1 along with his wife (A2) made an attempt to kill the deceased by pouring kerosene on 8.12.2016 at 7.P.M and it lead to the death of the deceased and the accused is entitled for benefit doubt.

14.In the result the accused no.1 is found not guilty for the offence punishable U/S.302 IPC r/w.sec.34 of IPC and he is acquitted of that offence U/S.235(1)Cr.P.C. His bail bonds shall stand cancelled after expiry of appeal time. Mos 1 and 2 shall be destroyed after expiry of appeal time. (Case against A2 is abated as died)

Dictated to the Stenographer Gr-I, transcribed and typed by her, corrected

and pronounced by me in the open court on this the 25th day of March, 2022.

I.Addl.District and Sessions

Judge,

Mahabubnagar. FAC of Spl.Sessions Judge for Trial of cases under SC/ST(POA)Act, 1989- cum-VII Addl.Sessions Judge, Mahabubnagar.

APPENDIS OF EVIDENCE

(Witnesses examined for )

Prosecution:Defence:None. Pw1: S.Maremma PW2: G.Anjappa’ PW3: N.Venkatesh 18of 18 S.C.No.251 of 2017

PW4: S.Narsimulu Pw5: C.Kurmamma PW6: G.Hanmanthu PW7: D.Ramesh PW8: S.Sai Kumar PW9: G.Vijay Kumar Pw10: N.Srinivas PW11 P.Venkateshwarlu

EXHIBITS MARKED FOR

Prosecution: Ex.P1 161 Cr.P.C statement of Pw1 Ex.P2 161 Cr.P.c statement of PW2 Ex.P3 161 Cr.P.C statement of PW3 Ex.P4 Signature of PW4 on scene of offence panchanama Ex.P5 signature of Pw5 on scene of offence panchanama Ex.P6 Signature of Pw6 on inquest Ex.P7 Signature of pW7 on inquest Ex.P8 Dying declaration Ex.P9 FIR in Cr.No.77/2016 of P.S.Utkoor. Ex.P10 Statement of Harijan Babu Ex.P11 Requsitioin for recording Dying declaration. Ex.P12 Scene of offence panchanama Ex.P13 Alteration memo Ex.P14 Inquest report Ex.P15 Postmortem examination report Defence:Nil. Material Objects marked: Mo1 is Kerosene plastic can Mo2 is Chavi Deluxe match box.

I.Addl.District and Sessions

Judge,

Mahabubnagar. FAC of Spl.Sessions Judge for Trial of cases under SC/ST(POA)Act, 1989- cum-VII Addl.Sessions Judge, Mahabubnagar.

IN THE COURT OF THE I-ADDITIONAL SESSIONS JUDGE AT: MAHABUBNAGAR

FAC SPECIAL SESSIONS JUDGE-CUM-VII-ADDITIONAL DISTRICT AND SESSIONS

JUDGE, MAHABUBNAGAR.

1. Case.No. Spl.SC.No.251 of 2017.

2. Name of the station Utkoor, P.S.

19of 18 S.C.No.251 of 2017

3. Name of the accused. 1.Lingampally Balappa S/o Yellappa age 60 years, Occ: Agriculture SC Madiga R/o Ameenpur village of Utkoor mandal.

2.Thayamma W/o Balappa age 55 years, Occ: Agriculture, SC Madiga, R/o Ameenpur village of Utkoor mandal (Died case abated).

4.Date of: 1Occurrence 8.12.2016 2Complaint 9.12.2016 3Apprehension7.3.2017 4Released on bail15.6.2017 5Commitment- 6Commencement of trial16.7.2018 7Close of trial4.1.2022 8Sentence or order/judgment.25.3.2022

Sentence or order/judgment.

In the result the accused no.1 is found not guilty for the offence punishable U/S.302 IPC r/w.sec.34 of IPC and he is acquitted of that offence U/S.235(1)Cr.P.C. His bail bonds shall stand cancelled after expiry of appeal time. Mos 1 and 2 shall be destroyed after expiry of appeal time. (Case against A2 is abated as died).

Explanation for delay : Due to non-production of the witnesses by the prosecution.

I-Addl.Sessions Judge, FAC VII-Addl.District and

Sessions Judge, Mahabubnagar.

IN THE COURT OF THE MACT CUM VII ADDITIONAL DISTRICT

JUDGE AT MAHABUBNAGAR

Friday, the 22nd day of April, 2022

Present:- Sri T.Raghuram, I Addl. District Judge, FAC. Chairman, MVT-cum-VII Addl. District Judge, Mahabubnagar.

M.V.O.P.No. 266 of 2016

Between:

1) Sahmeemasulthana W/o. Md.Zameer, age 40 yrs., Occ. Household.

2) MD Arshad S/o. Md.Zameer, age 26 yrs, Occ. Coolie.

3) Mohammed Ayub S/o. Md.Zameer, age 25 yrs, Occ. coolie.

4) Neha D/o. Md.Zameer, age 23 yrs, Occ. Household.

5) MD Ameer S/o. Md.Zameer, age 20 yrs, Occ. Student, R/o.H.No. 24-81/1, Fazal Banda, Badepally, Jadcherla

...Petitioners.

And

1) Mohd. Jamshed Pasha S/o. Mohd. Jamaluddin, age Major, Driver of Orange Travels bus bearing No.AP28TA-9596, R/o. Tayyab Nagar, near Ameena Majid, Mahabubnagar.

2) M/s. Thirumala Cabs Rep by M.Sunil Kumar, age Major, Owner of bus bearing No.AP28TA-9596, R/o. Plot No.148 & 149, Green Part Avenue, Kompally, Quthubullapur, RR District.

3) The United India Insurance Co. Ltd., Rep. by its Divisional Managar, T.P. Hub, Church building, Ramkote, Hyderabad.

(Insurance policy No.050700311P105842342 valid from 24.8.2015 to 23.08.2016) …Respondents.

Sub:- Claim petition for compensation u/s.166 of the M.V. Act, claiming compensation of Rs. 15,00,000/- for the death of Md. Zameer in a motor vehicle accident.

* * * 2 MVOP No.266 of 2016

This petition coming up before me for final hearing on 20.04.2022 in the presence of Sri.G.Pullaiah and Sri.G.Karthik, Advocates for the Petitioners and of Sri.Shaik Abdul Mujeeb, Advocate for Respondent No.1, Sri.A.Rajendar Reddy, Advocate for Respondent No.3 (exparte), and Respondent No.2 exparte and upon perusing the material on record, the Tribunal delivered the following:- -o0o-

A W A R D

Petition filed u/Sec.166 of the Motor Vehicles Act, 1988 claiming a total compensation of Rs.15,00,000/-. Petitioners’ case in brief is: petitioner No.1 is the wife and petitioner Nos. 2 to 5 are the children of late Md. Zameer (herein after referred to as the ‘deceased’).

2)Late Md. Zameer was working as cleaner of lorry bearing registration No. AP16X-6448 in the year 2018. On 28.03.2016 he along with Md. Khaja pasha the driver cum owner of the lorry loaded material in the lorry and left Jadcherla to Hyderabad. While so, at about 11.45 p.m., on the same day when their lorry reached HP petrol pump in the limits of Chatanpally village, Md. Khaja Pasha stopped the lorry, checked air in the tyres and at that time a bus bearing registration No.AP28TA-9695 driven by respondent No.1 owned by respondent No.2 and insured with respondent No.3 dashed him and also the deceased. In that accident, they both sustained injuries and the deceased died on the spot. The police Shadnagar registered a case in Cr.No.143/2016 u/s.304-A of IPC. It is also the case of petitioners that the deceased was quite hale and healthy and 3 MVOP No.266 of 2016 was at the age of 44 years at the time of accident and he was earning Rs. 12,000/- per month (i.e., salary of Rs.9,000/- p.m., and

Rs.100/- as batta per day). Due to his sudden death, the petitioner

No.1 lost her husband and petitioner Nos. 2 to 5 lost their father.

Had the deceased been alive he would have survived till the age of 80 years and would have supported the family. Actual loss sustained by the petitioners cannot be estimated in terms of money. However, they are claiming Rs.15,00,000/- as compensation as specifically mentioned at Sl.No.26 of Para No.6 of the petition and respondents are liable to pay the compensation since the accident occurred only due to rash and negligent driving of respondent No.1 who was driving the bus bearing registration No.AP28TA-9596.

3)Respondent No.2 remained. Respondent No.1 though made appearance did not choose to file even counter. Respondent No.3 filed its counter making a general denial of the petition allegations and specific denial of negligence on the part of respondent No.1, income of the deceased and further stated inter-alia that respondent

No.1 was not holding a valid and effective licence to drive the bus.

As such, it is not liable to indemnify the loss if any caused by the respondent No.2; and that the compensation claimed is excessive and the petitioners are entitle for interest @ 6% only.

4)Basing on pleadings of both parties, the following issues are framed on 15.03.2019.

4 MVOP No.266 of 2016

1) Whether Md.Zameer (deceased) died, aged about 44 years due to negligent driving of respondent No.1, bus bearing registration No.AP28TA-9596 on 28.03.2016?

2) Whether the petitioners are entitled for compensation, if so, what is quantum and from whom?

3) To what relief?

Issue No.1:-

5)Petitioners contend, the deceased who is the husband of petitioner No.1 and father of petitioner Nos. 2 to 5 and who was working as cleaner of lorry bearing registration No.AP16X-6448 which is owned by one Mr. Md. Khaja Pasha loaded the lorry on 28.03.2016 at Hyderabad for being unloaded at Jadcherla. While so, at about 11.45 p.m., on the way near HP Petrol pump in the limits of

Chatanpally village, driver of the lorry suspecting air problem in the tyres stopped the lorry and they both started checking air in the tyres. At that time, bus bearing registration No.AP28TA-9696 of

Orange Travels being driven by respondent No.1 came in high speed and dashed the deceased and also owner-cum-driver Md.Khaja Pasha and in that accident both the deceased and Md. Khaja Pasha sustained injuries and the deceased died on the spot; and that the accident occurred only because of rash and negligent driving of the bus bearing registration No.AP28TA_9596. Respondent No.3 while making a specific denial of the manner of accident specifically denied rash and negligent act if any on the part of respondent No.1.

5 MVOP No.266 of 2016

6)To prove their case, the petitioners examined petitioner No.1 as

PW1, said Md. Khaja Pasha as PW2 and marked attested copy of First

Information Report in Cr.No.143/16 of Shadnagar P.S. (Ex.A1), attested copy of inquest conducted in said Cr.No.143//16 (Ex.A2), attested copy of postmortem examination report of deceased (Ex.A3), attested copy of Crime details form with rough sketch in

Cr.No.143/16 (Ex.A4), attested copy of report issued by Motor

Vehicles Inspector in respect of the said accident (Ex.A5) and attested copy of charge sheet filed in the said Cr.No.143/16.

7)Respondent No.3, having filed counter, did not choose to adduce any evidence and it also remained exparte on 9.3.2022.

8)PW1 in her chief examination stated inter-alia that the deceased who is her husband was working as cleaner of lorry bearing registration No.AP16X-6448 under one Md.Khaja Pasha who is the owner-cum-driver of that lorry. On 28.03.2016 he along with the owner-cum-driver Md.Khaja Pasha started at Hyderabad at 10 p.m., to unload some material at Jadcherla. While so, on the way at about 11.45 p.m., when the lorry reached near HP Petrol pump in the limits of Chatanpally village, Md.Khaja Pasha stopped the lorry by the side of the road by taking necessary precautions. After stopping the lorry both he and the deceased got down from the lorry and started checking air in the tyres. At that time a bus bearing registration

No.AP28TA-9596 of Orange travels being driven by respondent No.1 in rash and negligent manner came in high speed and dashed the 6 MVOP No.266 of 2016 deceased and also Md.Khaja Pasha and in that accident her husband died on the spot. This her statement was not denied by the respondent No.2 as seen from his evidence.

9)PW2 who also stated in the same lines, and his statement on this aspect more particularly with regard to rash and negligent act of driving on the part of respondent No.1 was not denied by the respondent No.3 as seen from the evidence of PW2. Ex.A1 shows petitioner No.2 gave a report on 29.03.2016 to the Inspector of police, Shadnagar stating inter-alia that his father (deceased) who is the cleaner of lorry bearing registration No.AP16X-6448 started at 10 p.m., on 28.03.2016 at Hyderabad with some load to unload the same at Jadcherla and on the way at about 11.45 p.m., due to air lock, the lorry was stopped by PW2 who was driving the lorry and they both got down from the lorry and checking the air and at that time, bus bearing registration No.AP28TA-9596 being driven by respondent No.1 in rash and negligent manner dashed them both and they both received injuries and were shifted to the hospital but on the way to the hospital, his father succumbed to injuries. His version is supported by Ex.A2 inquest panchanama. Ex.A3 shows the deceased died of Polytrama and the time of his death was 12 hours prior to postmortem examination which was commenced at 12.45 p.m., on 29.03.2016. Ex.A4 shows that the scene of offence is on the way extreme left side of the road running from Hyderabad to Jadcherla. It shows that the lorry was stopped by PW2 on the left side of the road 7 MVOP No.266 of 2016 which prima-facie shows that he has taken minimum precautions when he parked the lorry. Ex.A5 shows the Motor Vehicle Inspector who inspected the crime vehicle i.e., bus bearing registration

No.AP28TA-9596 and submitted his report expressing opinion that the accident occurred not due to any mechanical defects of the vehicle. Ex.A6 shows the police officer who investigated the crime

No.143/16 which was registered basing on the complaint made by petitioner No.2, after investigation filed charge sheet stating inter- alia that the investigation established that the accident occurred only because of rash and negligent driving of the bus bearing registration

No.AP28TA-9596 by the respondent No.1. The charge sheet as well as the report given by PW2 shows that another bus bearing registration No.AP02-3482 of Orange travels which was coming on the same direction, hit the bus bearing registration No.AP28TA-9596.

However, in opine this will not lead to any conclusion that the deceased died due to rash and negligent act of driver of the bus bearing registration No.AP02-3482 since that bus hit the bus bearing registration No.AP28TA-9596 subsequent to the accident wherein the deceased received injuries and died on the way to hospital. Thus, it is clear the petitioners were able to prove that only because of rash and negligent act on the part of respondent No.1 who was driving the bus bearing registration No.AP28TA-9596, the accident occurred and the deceased sustained injuries and died. The issue is accordingly answered.

8 MVOP No.266 of 2016

Issue No.2:-

10)The petitioners contend, the deceased was working as cleaner of the lorry bearing registration No.AP16X-6448 and was being paid

Rs.12,000/- p.m. (Rs.9,000/- as salary + Rs.100/- per day as batta) by

PW2 who is the owner-cum-driver of that lorry. PW1 in his cross examination admitted that no document is filed to show that her husband was getting Rs.12,000/- per month at the time of accident as cleaner of the said lorry. PW2 who is the driver-cum-owner of the said lorry bearing registration No.AP16X-6448 stated in his evidence that since the deceased was working as cleaner for last 10 years to the date of accident, he was paid Rs.9,000/- per month as salary and

Rs.100/- per day as batta. This, his statement was of course denied by the respondent No.3. However, the fact that statement of PW1 and also of PW2 that the deceased was working as driver of lorry bearing registration No.AP16X-6448 was not denied by the respondent. Thus, it is clear that the deceased was working as cleaner of the lorry bearing registration No.AP16X-6448.

11)Learned counsel for the petitioners would submit in the absence of any evidence to the contrary Minimum Wages applicable to a cleaner can be taken into consideration; and in support of his argument, he relied on a decision given in the case of Kala Devi and others vs. Bhagwan Das Chauhan and others, 2014 ACJ 2875 wherein it was held by the Lordships of Hon’ble Apex Court that; average earning of a driver as per Minimum Wages Act can be taken 9 MVOP No.266 of 2016 into consideration. He also relied on a decision given in the case of

Neeta W/o. Kallappa kadolkar and others etc. vs. The Divisional

Managar, MSRTC, Kolhapur, 2015(1) TAC 340(SC). That is also a case of Motor Accident Claim. In that case, two carpenters died in an accident. However both the Tribunals and High Court assessed the monthly income of one carpenter @ Rs.6,000/- p.m., and income of another carpenter @ Rs.4,500/-, considering the fact that they both were doing skilled job of carpentering. There is no rebuttable evidence adduced disputing the claim of the appellants as to the income. Under those circumstances it was held by their Lordships of the Hon’ble Apex Court that the Tribunal and High Court ought to have taken monthly salary of Rs.12,000/- as shown in the notification issued under Minimum Wages Act. Learned counsel for the petitioner would submit as no rebuttal evidence is adduced by respondent No.3, the statement of PW2 as to salary of PW2 can be taken into consideration.

12)Learned counsel for the petitioners also filed proceedings of

Collector & District Magistrate, Mahabubnagar in C/752/2009, dt.

10.09.2018 reviewing the Daily Wages without musters of employees of skilled, semi-skilled and un-skilled and laborers for the year 2018- 2019 and it annexed with VDA chart which show that total Minimum

Wage of lorry of cleaner was Rs.6,231/- from Oct.,2015 to 31.03.2016 as per G.O.Ms.No.83, drt. 22.11.2006. I opine, as already stated the fact that deceased was working as cleaner of the lorry being driven 10 MVOP No.266 of 2016 by PW2 and owned by PW2 is not denied by the petitioners. As such,

I opine, the Minimum Wage of Rs.6,231/- can be taken into consideration.

13)Learned counsel for the petitioner also would submit, the petitioners are also entitled for filial consortium expenses. In support of his argument, he relied on a decision given in the case of Magma

General Insurance Co. Ltd., vs. Nanu Ram @ Chuhru Ram & ors,

IV (2018) ACC 184 (SC); wherein it was held by their Lordships of

Hon’ble Apex Court as:

“Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.” and parents are also entitled for filial consortium and awarded

Rs.40,000/- to the parents of the deceased.

14)However, in the present case, the petitioners 2 to 5 are children and petitioner No.1 is the wife of the deceased as such, I opine, only the petitioner No.1 is entitled for spousal consortium of Rs.40,000/-.

Though the Minimum Wages Chart filed by the petitioner show that

Minimum Wage of a cleaner is Rs.6,231/- and it is based on

G.O.Ms.No.83 dated 22.11.2006, the evidence of PW2 who is the driver-cum-owner bearing registration No.AP16X-6448 show that he 11 MVOP No.266 of 2016 was paying Rs.9,000/- p.m. Considering these two facts, I opine, the income of the deceased can be taken at Rs.8,000/- per month which comes to Rs.96,000/- P.A. Since the dependants of the deceased as seen from the petition were five in number, 1/4th of his income can be deducted towards his personal expenses. When 1/4th is deducted it comes to Rs.72,000/- P.A. The age of the deceased as seen from

Ex.A2 and Ex.A3 was 44 years as on the date of accident. As per the decision in the case of Smt.Sarla Verma & Ors. vs. Delhi

Transport Corp. Anr., (Civil Appeal No.3483/2008) of Hon’ble

Supreme Court, the applicable multiplier is ‘14’. When annual income of Rs.72,000/- is multiplied by 14, it comes to Rs.10,08,000/- which is future loss of income. Since there is no established income, I opine, no addition can be made. In addition to this, as already stated, the petitioner No.1 who is the wife of the deceased is entitled for spousal consortium of Rs.40,000/- and the petitioners are entitled for

Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. In all, they are entitled for total compensation of

Rs.10,78,000/-.

15)As already stated, the respondent No.3 not denied the fact that it has insured the crime vehicle i.e., bus bearing registration

No.AP28TA-9596 which was owned by respondent No.2 and driven by respondent No.1 at the time of accident. Though it has insured that respondent No.1 was not holding a valid and effective licence at the time of accident, no evidence is adduced by it to prove it. I, 12 MVOP No.266 of 2016 therefore, opine that respondent No.3 is liable to indemnify the loss caused by respondent No.2 and the respondent Nos. 1 to 3 are jointly and severally liable to pay compensation. this Issue is answered accordingly.

Issue No.3:-

16)From my findings in the issue Nos. 1 and 2, it is clear that only because of rash and negligent act of driver on the part of respondent

No.1 who was driver of bus bearing registration No.AP28TA-9596, on 28.03.2016, the accident occurred and the deceased sustained injuries and died; and that the petitioners are entitled for a total compensation of Rs.10,78,000/- and respondent No.3 is liable to indemnify the loss caused by respondent No.2.

17)In the result, the petition is partly allowed awarding a total compensation of Rs.10,78,000/- (Rupees ten lakhs seventy eight thousand only) against the respondent Nos. 1 to 3. Respondent No.3 is hereby directed to deposit the compensation amount within 30 days from the date of passing of the award and with subsequent interest @ 7.5% per annum from the date of filing of the petition till the date of deposit. Out of total compensation of Rs.10,78,000/-, petitioner No.1 who is the wife of the deceased is entitled for

Rs.2,78,000/- including consortium and the petitioner Nos. 2 to 5 are entitled for Rs.2,00,000/- each, being children of the deceased.

Petitioner Nos. 1 to 5 each are permitted to withdraw Rs.1,00,000/- 13 MVOP No.266 of 2016 from out of their respective share of compensation amount and the remaining amount of their share of compensation with interest accrued on their share be kept in fixed deposit in any nationalized bank for a period of two years. Advocate fee is fixed at Rs.1,500/-.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open Court, on this the 22nd day of April, 2022.

I Addl. District Judge, FAC. Chairman, MVT-cum-VII Addl. District Judge, Mahabubnagar.

Appendix of evidence

Witnesses examined

For Petitioners:-

PW1 Shameemasulthana PW2 Md. Kahja Pasha

For Respondents:-

-None-

Exhibits Marked

For Petitioners:-

Ex.A1Attested copy of First Information Report in Cr.No.143/16 of Shadnagar P.S. Ex.A2Attested copy of inquest report Cr.No.143/16 Ex.A3Attested copy of postmortem examination report Cr.No.143/16 Ex.A4Attested copy of Crime details form Cr.No.143/16 Ex.A5Attested copy of Motor Vehicle Inspector report Ex.A6Charge sheet filed in the said Cr.No.143/16

For Respondents:

14 MVOP No.266 of 2016 -Nil-

I Addl. District Judge, FAC. Chairman, MVT-cum-VII Addl. District Judge, Mahabubnagar.

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE

AT: MAHABUBNAGAR

Monday, this the 18th day of February, 2019

Present:- Sri C. Hare Krishna Bhupathi, Prl., Sessions Judge, Mahabubnagar.

1Judgment in Criminal AppealCrl.A.No.135 of 2018 .

2.From what court the appeal isJudl. Magistrate of First Class, Jadcherla. preferred

3.Number of the case in that C.C. No.210 of 2010 court 4Number of appealCrl.A.No.135 of 2018 . 5Name and description of the Mudavath Rukmini w/o Narayana, age: 45 .Appellant/Victimyears, occ:Agrl., and Supplying Company, r/o H.No.18-1-337/219/80, C-Shankar Bagh, Rakshapuram, Hyderabad. 6Name and description of the1Jatavath Ganesh s/o Valya, age: 53 years, .Respondents.occ: Agrl., Kethavath Tulasiram s/o Rukya, age: 48 2years, occ: Agrl., both are r/o Palugu . thanda h/o Kallepalli village of Rajapur mandal. State of Telangana through P.S. Rajapur 3 .

7.The sentence imposed by theIn the result, A.1 and A.4 are found not guilty Trial Court for the offences punishable under Secs.324, 427 and 506 r/w 34 of IPC. Accordingly, A.1 and A.4 are acquitted for the said offence under sec.248(1) Cr.PC. The bail bonds of

A.1 and A.4 shall stands cancelled after the lapse of appeal time. 8Whether confirmed, modified Confirmed .or reversed

PresentatioFilingNoticeBail bondAppellantHearingOrder nissued byifOrder to the courtAppellant to appearhas been let out on bail 22.10.201822.10.2020.11.20----07.02.2018.02.2019 181819

-o0o-

This case coming up before me for hearing on 07.02.2019 in the presence of Sri V.Narsimulu, Advocate for the appellant and of 2

Sri K.R.Udaya Raju, Advocate for the respondents 1 and 2 and of Sri

B.Bala Gangadhar Reddy, Public Prosecutor for the third respondent and upon perusing the material on record, and having stood over for consideration till this day, the court delivered the following:-

J U D G M E N T

1.This is a criminal appeal preferred u/sec.372 Cr.P.C., by the victim thereby challenging the judgment dated: 21.08.2018 in

C.C.No.210 of 2010 passed by the learned Judicial Magistrate of First

Class, Jadcherla (in short, ‘the trial court’) in acquitting the respondents 1 and 2 herein (A.1 and A.4) for the offences u/Secs.324, 427 and 506 r/w 34 of IPC.

2.For the sake of the convenience and for the better understanding of the facts, the parties to this appeal will hereinafter be referred to as arrayed in the case before the trial court.

The victim and the defacto-complainant Smt. Mudavath

Rukmini (PW.1) is the sister of A.1 to A.3 and A.4 is the son of her sister. PW.1 is a native of Hyderabad, but after the purchase of

Acs.4-00 of land in Sy.No.36/A in Palugumeedi thanda h/o Kallepally village of Balanagar mandal from her father Sri Valya in the year 2001, she came down to Kallepally village and started living there with her son (PW.2) for the purpose of making the cultivation over the said land. During the year 2010, she raised paddy crop over

Acs.2-00 of land with the help of the water drawn from two bore wells got dug by her in the said land. All the accused bore grudge against her for enjoying the said land which they otherwise wanted to grab. On 11.04.2010 at about 7-00 a.m., PWs.1 and 2 visited the said land and they were collecting the maize stems to pile them into a heap and to set fire to them. There is also a hayrick by the side of 3 the harvested crop. A.1 came there and took two bundles of hay as a feed to his cattle. After a short while, the hayrick started burning with flames. A.1 brought A.2 to A.4 at about 7.30 hours. A.1 abused

PW.1 and beat her with a stick on her left shoulder and her left thigh. When PW.2 came to the rescue of PW.1, he was also attacked by PW.1 by beating him on his left forearm. A.2 to A.4 abused PW.1 in filthy language and all the accused threatened PW.1 with dire consequences. The accused also damaged the car bearing registration No.AP10 E 3485 of PW.1 by damaging the wind screen and the other glasses of the doors of the car. On Ex.P1 report lodged by PW.1 at about 09.30 a.m., on the same day, the then

A.S.I., of Police, Balanagar P.S., registered Ex.P3 F.I.R., against the accused for the offences u/Secs.324, 427 and 506 of IPC and commenced the investigation. He visited the scene of offence at about 11.00 hours and observed the same in the presence of PW.4 and LW.4 K.Bhasker under a cover of Ex.P4 Crime Details Form-cum- rough sketch. During the course of the investigation, PW.5 arrested

A.1 and produced him before the trial court for judicial custody. A.2 to A.4 surrendered before the trial court. All the accused were enlarged on bail granted by the trial court. After the completion of the investigation, PW.5 filed the charge sheet against A.1 to A.4 thereby alleging that A.1 to A.4 committed the offences punishable u/secs.324, 323, 427 and 506 r/w 34 of IPC.

3.The learned Judicial Magistrate of First Class, Jadcherla took the cognizance of the offences u/secs.324, 323, 427 and 506 r/w 34 of IPC against A.1 to A.4. A.1 to A.4 made their appearance before that court and they were furnished with the copies of the charge sheet and all the annexures thereto in compliance of sec.207 of 4

Cr.P.C. On the reports filed by the police that A.2 and A.3 died, the case against A.2 and A.3 was treated as abated and the trial court proceeded with the case against A.1 and A.4. On finding a prima- facie case, the trial court framed the charges for the offences u/secs.324, 323, 427 and 506 r/w 34 of IPC against A.1 and A.4 and the said charges were read over and explained to A.1 and A.4 u/Sec.240(2) Cr.PC and they having understood the same, denied the offences, pleaded not guilty and claimed to be tried. A.1 and

A.4 were defended by their advocate before the trial court.

4.During the course of the trial held before the trial court, the prosecution examined PWs.1 to 5 and got marked Exs.P1 to P6 on the prosecution side. Ex.D1 was marked for the defence in the cross-examination of PW.3. A.1 and A.4 were examined u/sec.313

Cr.P.C., and they denied the incriminating evidence of the prosecution and further stated the same to be false. A.1 and A.4 stated that they had no defence evidence.

5.After the completion of the trial and on hearing the arguments of the learned Assistant Public Prosecutor and the learned defence counsel, the trial court passed the impugned judgment dated:

21.08.2018 thereby acquitting A.1 and A.4 u/sec.248(1) Cr.PC for the offences u/Secs.324, 427 and 506 r/w 34 of IPC.

6.Aggrieved by the said impugned judgment of the trial court in acquitting A.1 and A.4, the appellant preferred this appeal with the grounds of the appeal, of which, the core of the contentions is stated as follows:- 5

It is submitted by the appellant that the trial court failed to appreciate the evidence in correct perspective and despite the strong evidence of PWs.1 and 2, which is further corroborated by the testimony of PW.3, the trial court disregarded that evidence and acquitted the accused against the accepted principles of law. It is pointed out by the appellant that the trial court has given unnecessary importance to minor discrepancies in jettisoning the case of the prosecution. It is further submitted by the appellant that the prosecution failed to place the photographs regarding the burnt hayrick and the damaged car of PW.1 and there were laches on the part of the prosecuting agency for which the victim should not be put to loss and suffering. The appellant has also further contended that the trial court has unnecessarily dealt with the aspect of the non-seizure of the weapon used by the accused without considering the other convincing evidence placed by the prosecution. The appellant submitted that there is a strong evidence to convict the accused for the offences arraigned against them, but the trial court erred in acquitting the accused. With these main contentions, the appellant prayed the court to allow the appeal and, consequently, to convict the accused (R.1 and R.2 herein) for the charges framed against them.

7.During the course of the hearing on this appeal, the learned counsel for the appellant, the learned Public Prosecutor representing the third respondent/State and the learned counsel for the respondents 1 and 2 relied upon the same oral and documentary evidence adduced before the trial court, in putting forth their respective contentions and submitted their detailed arguments and, thereafter, the appeal is coming for the passing of the judgment.

6

8.Now, the following points arise for determination:

1) Whether the prosecution has brought home the guilt of the accused 1 and 4 for the offences u/Secs.324, 427 and 506 r/w 34 of IPC beyond reasonable doubt?

2) Whether the impugned judgment of the trial court in acquitting the accused 1 and 4 for the offences u/Secs.324, 427 and 506 r/w 34 of IPC suffers from any infirmity or irregularity or illegality and calls for any interference by this court?

3) To what result?

9.POINT No.1:- The conspectus of the prosecution case is that on 11.04.2010 at about 7.30 a.m., all the accused caused damage to the car bearing registration No.AP10 E 3485 and set fire to a hayrick of PW.1 in Sy.No.36/A in Palugumeedi thanda h/o Kallepally village of Balanagar mandal and also voluntarily caused simple hurt to PWs.1 and 2 by beating them with a stick by A.1 and that all the accused abused PWs.1 and 2 in filthy language and further threatened them of dire consequences. The defence taken by the accused is a total denial.

10.Out of 5 witnesses examined by the prosecution during the trial before the trial court, PWs.1 and 2 are the victims as well as the direct witnesses to the incident and, among them, PW.1 is also the defacto complainant who lodged Ex.P1 report with PW.5 against the accused. PW.3 is the other witness examined to speak about his knowledge of the incident. PW.4 is examined for the proof of Ex.P4.

PW.5 is the sole investigating officer examined to speak about his investigation till the filing of the charge sheet.

11.There are several discrepancies and inconsistencies in the testimonies of PWs.1 and 2 in the narration of the incident and, 7 above all, there is a glaring incongruity between the versions of

PW.1 in comparison with the stand taken by her in Ex.P1 report and the actual evidence of PW.1 recorded by the trial court. As per the initial version of PW.1 finding place in Ex.P1 report, PW.1 did not make any specific mention therein that a particular accused set fire to the hayrick, but, on the other hand, that was the stand of PW.1 during that time that after taking two bundles of hay from the hayrick by A.1 for feeding his bulls, PW.1 found the burning of hayrick after a short while and, thereafter, A.1 came there and started abusing her by alleging that she set fire to the hayrick.

When this version was brought to the notice of PW.1 in her cross- examination, she denied that version and took a stand that she did not get mentioned those facts in Ex.P1. When it actual comes to the evidence of PW.1, she stated that A.1 set fire to the hayrick with the help of a lightened match stick out of a match box and when she questioned A.1 as to why he did so, A.1 started abusing her in filthy language. She also further stated that A.1 damaged her car parked nearby the land and beat her. PW.2 also stated the same version that A.1 set fire to the hayrick and he further stated that A.1 switched off the bore and damaged the wind screen of their car.

Even at the cost of repetition, it is essential to recapitulate herein that this version of PWs.1 and 2 that A.1 set fire to the hayrick is a major omission from their statements recorded by PW.5 and also against the version of PW.1 made in Ex.P1.

12.It is not the case of the prosecution that A.2 to A.4 also beat

PWs.1 and 2 and the stand of the prosecution is that A.2 to A.4 threatened and abused PWs.1 and 2 in filthy language and that the acts of beating PWs.1 and 2 and causing of damage to the car of 8

PW.1 were done by A.1 alone. There is no inconsistency among the statements of PWs.1 and 2 in the narration of the facts relating to the overt acts of A.1 in attacking PWs.1 and 2. As per Ex.P1 report of PW.1, A.1 beat her with a stick on her left thigh and on her left shoulder, whereas PW.1 deposed in her evidence that A.1 beat her on thighs and on her shoulder. PW.2 deposed that A.1 beat PW.1 on her left shoulder on her back and on her thighs. PW.1 deposed that

A.1 beat PW.2, but she did not speak about the overt acts of A.1 in attacking PW.2. PW.2 deposed that he tried to ward off the blow of

A.1 when it was aimed at his forehead and, in that process, he sustained an injury to the elbow of his left hand. PW.3 deposed as if he had witnessed the incident. Interestingly, he denied to have stated before the police as in Ex.D1 to the effect that he came to know about the incident and that he had no personal knowledge about the incident. As a matter of fact, the prosecution did not cite

PW.3 as a direct witness to the incident, but he projected himself as a direct witness and he denied to have stated before the police as in

Ex.D1. Ex.D1 is a major contradiction and that casts a big doubt on the truthfulness of the evidence of PW.3. The prosecution failed to examine LW.6 Dr. Chandrakala, C.A.S., Government Hospital,

Shadnagar, to speak about Exs.P5 and P6, but simply got marked

Exs.P5 and P6 through PW.5, the investigating officer.

13.PW.4 turned hostile to the prosecution and denied to have possessed any knowledge of Ex.P4. He deposed that Ex.P2 thumb impression of him had been obtained by the police on a blank paper without letting him to know the purpose of obtaining of that thumb impression. The trial court also got marked the thumb impression of

PW.4 as Ex.P2.

9

14.The prosecution failed to examine the first investigating officer who did a major part of the investigation including the registration of

Ex.P3 F.I.R., and the observation of the scene of offence under Ex.P4.

There is no satisfactory explanation forthcoming from the side of the prosecution for the non-examination of that investigating officer.

15.It is elicited by the defence counsel by way of the cross- examination done to PW.5 that he did not have the knowledge about the pendency of the civil cases between PW.1 and the accused and that he did not know anything about the pendency of the criminal cases between them. During the course of the cross-examination done to PW.1, the learned defence counsel could elicit from PW.1 that there is a civil litigation pending in respect of the land, which is shown as the scene of offence in the present case, and that the accused filed O.S.No.22/2012 on the file of the learned Junior Civil

Judge, Jadcherla against PW.1 in respect of the said land. PW.1 has

also further admitted that another case in C.C.No.321/2010 was pending against her on the file of the trial court for the alleged offence of trespass over the disputed land and that case was also initiated on a report given by the accused. She also further stated that a Session Case in S.C.No.387/2010 for the offence u/Sec.307 of

IPC and also another case in C.C.No.3/2008 were pending against her and those were initiated on the reports given by A.1. PW.2 also deposed that the case was tried against him before the Juvenile

Court. The investigating agency did not make any effort to collect any document with regard to the ownership of PW.1 over the land and also the necessary material showing the damage caused to the car of PW.1 and also to the hayrick of PW.1. The prosecution has 10 also not put-forth any convincing explanation for the non-seizure of a weapon, i.e., the stick, used by PW.1 in attacking PWs.1 and 2. All these laches and lacunas emerged from the prosecution evidence remained unanswered in the evidence of the prosecution.

16.From the synthesis of the discussion in the foregoing paras, this court is of a considered opinion that the prosecution has not succeeded in placing cogent, convincing, reliable and trustworthy evidence to bring home the guilt of the accused beyond reasonable doubt and, under these circumstances, the accused 1 and 4 are entitled to seek a strong benefit of doubt in their favour. Hence I found the accused 1 and 4 not guilty of the offences u/sec.324, 427 and 506 r/w 34 of IPC. Accordingly, this point is decided against the appellant and in favour of the respondents.

17.Point No.2: In the light of the discussion under point No.1 above, the impugned judgment of the trial court in acquitting the accused 1 and 4 for the offences arraigned against them is on correct lines and the same does not suffer from any infirmity or irregularity or illegality and hence there is no need to make any interference into the judgment by this court. Accordingly, this point is decided against the appellant and in favour of the respondents.

18.Point No.3:- Points 1 and 2, which are the major points, are decided against the appellant and in favour of the respondents.

In the result, the appeal is dismissed, thereby confirming the impugned judgment dated: 21.08.2018 in C.C.No.210 of 2010 passed by the learned Judicial Magistrate of First Class, Jadcherla in recording the acquittal of the accused 1 and 4 (respondents 1 and 2 herein) for the offences u/secs.324, 427 and 506 r/w 34 of IPC. The 11 bail bonds of the accused shall stand cancelled after the expiry of the appeal time.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open Court, this the 18th day of February, 2019.

Prl. Sessions Judge, Mahabubnagar.

Appendix of Evidence:

[Witnesses examined for]

- None -

Exhibits marked for

-Nil-

Material Objects marked:

-Nil-

Prl. Sessions Judge, Mahabubnagar.

IN THE COURT OF VII ADDITIONAL DISTRICT JUDGE AT

MAHABUBNAGAR

Friday, the 22nd day of April, 2022

Present:- Sri.T.Raghuram, I Addl. District Judge, FAC,VII Addl. District Judge, Mahabubnagar.

A.S. No. 29 of 2020

Between:

1. Md. Afzal died LRs. P.No.3 to 7

2. Smt. Zabinisa Begum W/o. late Afzal, age 55 yrs, (Wife)

3. Md. Slulthan S/o. late Afzal, aged 35 yrs. (Son)

4. Md. Lalmohammed S/o. late Md. Afzal, age 30 yrs. (son)

All R/o. H.No.4-32, Chinchood village, Farooqnagar mandal, Mahabubnagar District.

(under bifurcation changed to RR District)

...Appellants/Petitioners

And

1. Abeda Begum D/o. Gajulla Jahanagir, age 60 yrs, Occ. Housewife, R/ o.H.No.4-32, Chinchood village, Farooqnagar mandal, Mahabubnagar District.

2. Md. Sardar Miya S/o. Md. Khaja, age 35 yrs, Occ. Coolie, R/o.H.No.4- 32, Chinchood village, Farooqnagar mandal, Mahabubnagar District.

3. Md. Ismail S/o. Md. Khaja, age 40 yrs., Occ. Business, R/o.H.No.4-32, Chinchood village, Farooqnagar mandal, Mahabubnagar District.

4. Syed Umar died LRs. (Plaintiff No.2)

5. Md. Thoffi Pasha S/o. late Syed Umar, age 35 yrs. (son) (Plaintiff No.2)

6. Md. Ibrahim S/o. late Syed Umar, age 30 yrs. (son)(Plaintiff No.2)

Both R/o.1-17, Chinchood village, Farooqnagar mandal, Mahabubnagar District.

7. Smt.Merza Begum W/o Lsoof Miya, age 32 yrs. (daughter)(Plaintiff No.2)

8. Smt. Moriya Begum W/o. Sadaq, age 38 yrs. (daughter)(Plaintiff No.2) 2 AS No. 29 of 2020

Both R/o. Farooqnagar mandal, Mahabubnagar District. (under bifurcation changed to RR District)

...Respondent No.4 to 8

not necessary parties.

On Appeal against Judgment and decree dated. 15.5.2020

IN THE COURT OF THE HON’BLE SENIOR CIVIL JUDGE AT SHADNAGAR

O.S.No. 284 of 2014

Between:-

1. Md. Afzal died LRs P.No3 to 7

2. Syed Umar died LRs P No.8 & 9

3. Smt.Zabinisa Belgum W/o. late Afzal, age 55 yrs. (wife)

4. Md. Sulthan S/o. late Afzal, age 35 yrs. (son)

5. Md. Lalmohammed S/o. late Md. Afzal, age 30 yrs. (son) All R/o.H.No.4-32, Chinchood village, Farooqnagar mandal.

6. Smt.Merza Begum W/o. Lsoof Miya, age 32 yrs. (daughter)

7. Smt.Moriya Begum W/o. Sadaq, age 38 yrs. (daughter) Both R/o. Farooqnagar mandal.

8. Md. Thioffi Pasha S/o. late Syed Umar, age 35 yrs. (Son)

9. Md.Ibrahim S/o. late Syed Umar, age 30 yrs. (son) Both R/o. 1-17, Chinchood village, Farooqnagar mandal, Mahabubnagar District (under bifurcation changed to RR Dist.) …Petitioners/Plaintiffs And.

1. Abeda Begum D/o. Gaulla Jahanir, age 60 yrs.

2. Md. Sardar Miya S/lo. Md. Khaja, age 35 yrs. Occ. Coolie.

3. Md. Ismail S/lo. Md. Khaja, age 40 yrs, Occ. Business. All R/o.H.No.4-32, Chinchood village, Farooqnagar mandal, Mahabubnagar District.

...Respondents/Defendants

-o0o- This appeal suit coming up before me for hearing on 20.04.2022 in the presence of Sri.K.Annapurna Reddy, Advocate for the Appellant/s and Sri.K.Anand Rao, Advocate for the Respondents 1 to 3, Sri.T.Narshimulu, Advocate for the Respondents 5 to 8 and suit against Respondent No.4 is 3 AS No. 29 of 2020 dismissed and upon perusing the material on record, the Court delivered the following:- -o0o-

J U D G M E N T

This appeal is preferred from the decree and judgment dt.15.05.2020 in OS.No.284 of 2014 (old O.S.No.351/2013), of the learned Senior Civil Judge, Shadnagar.

2.The appellants herein are defendants and the respondents herein are the plaintiffs in the suit. For the sake of convenience, I shall refer the parties as arrayed in the trial court.

3.The suit pertains to Ac.5-13 gts., of land in Sy.No.34/AA with specific boundaries and situated in Chinchood village of Farooqnagar mandal, Shadnagar, Mahabubnagar District (hereinafter referred to as ‘the suit land’).

4.The suit is filed for partition of the suit land by metes and bounds into two equal shares and allotment of one such share and for also for declaration of entries made in revenue records in the name of the defendants and in respect of the suit land as illegal; and for a perpetual injunction restraining the defendants from alienating the plaintiffs’ half share in the suit land.

5.The plaintiffs contend, late Mahamood Saheb who is the father of plaintiffs 1 and 2 is younger brother of late Gajulla Jahangir who is the father of defendant No.1 and grandfather of defendant Nos. 2 and 3.

4 AS No. 29 of 2020

They (late Mahamood Saheb and late Gajulla Jahangir) both jointly acquired the suit land and it was reflected even in Khasra pahani of the period 1954-55. Late Mahamood Saheb who is the father of plaintiff Nos.

1 and 2 allowed his brother late Gajulla Jahangir being elder member of the family to carry out agricultural operations in the suit land and also to supervise cultivation of the suit land. Plaintiff No.1 who went Soudhi

Arabia for his livelihood failed to get a good job there and returned to

India. After returning to India, he along with his brother who is the plaintiff No.2 requested the defendant No.1 to give them their half share in the suit land which is their joint family property. While the matters stood so, both the plaintiff Nos. 1 and 2 died during the pendency of the suit and plaintiff Nos. 3 to 9 were brought on record as their legal representatives. The defendant No.1 who assured the plaintiff Nos. 1 and 2 that she would safe guard their interest in the suit land and would never deprive them of their legitimate share in the property, failed to keep up her promise till their last breath. On the other hand, late Gajulla

Jahangir transferred the suit land to defendant No.2 who is his adopted daughter and the defendant No.1 in turn gifted the same to the defendant Nos. 2 and 3, who are her two sons, under a registered gift deed dt. 23.07.2008 and also got mutated the revenue records basing on the gift deed so executed by their mother. Thus, the defendants cheated the plaintiffs and not came forward for partition of the suit land despite a notice dated 23.9.2013 got issued by the plaintiffs and also paper publication dated 20.11.2013 issued cautioning prospective purchasers of the suit land.

5 AS No. 29 of 2020

6.The defendants contend, father of the plaintiff Nos. 1 and 2 and late

Gajulla Jahangir are not brothers by relation and the family pedigree given by the plaintiffs is not correct. As per Khasra pahani for the period 1954-‘55, late Gajulla Moulan Saheb who is the brother of Gajulla

Jahangir Saheb @ Dade Sab is the pattedar of Ac.4-33 gts, of land in

Sy.No.34/A and late Gajulla Jahangir is the pattedar of Ac.5-00 of land in

Sy.No. 34/AA of Chinchood village of Farooqnagar mandal. Late

Mahamood Saheb who is the grandfather of plaintiff Nos.1 and 2 or his son Mahabub Ali who is the father of plaintiff Nos. 1 and 2 are no way concerned with the suit land. Late Gajulla Jahangir Saheb who was not blessed with children took the defendant No.1 in adoption and performed her marriage with one Mr. Khaja. He also transferred his Ac.5-00 of land to her who in turn gifted the same to her two sons (D2 and D3). They also contend, plaintiff No.2 who sold Ac.2-26 gts., of land in Sy.No.34/A to one Mr.K.Pandu and K.Ashok under a registered sale deed not showed that land in the suit properties nor showed the purchasers as parties to the proceedings. The suit land is not Matruka property of the plaintiffs and defendants and the concept of joint family property is not known to

Mohamadan Law and as such there is no cause of action for the suit.

7.The record shows basing on pleadings of contesting parties, following issues were framed by the trial court.

1) Whether late Mahamood Saheb is not the father of Gajulla Jahangir?

2) Whether the suit property is the Matruka property of the plaintiffs and defendants?

3) Whether the suit is bad for non joinder of K.Pandu and K.Ashok?

6 AS No. 29 of 2020

4) Whether the plaintiffs are entitle for partition and separate possession of one half share?

5) Whether the plaintiffs are entitle for declaration as prayed for?

6) Whether the plaintiffs are entitle for perpetual injunction as prayed for?

7) To what relief?

8.On perusal of the issues framed by trial court, I opine they are suffice to decide the lis. Hence proceeded further.

9.To prove their case, the plaintiffs examined plaintiff No.3 (P1) and one P.Yellappa, Ex. Surpanch of Chinchood village (PW2); and marked

Exs.A1 to A7 as detailed at the end of trial court judgment.

10.The defendants examined defendant No.2 (DW1) and marked Ex.B1 to Ex.B11 as detailed at the end of trial court judgment.

11.After full trial, the learned Senior Civil Judge, Shadnagar dismissed the suit on 15.5.2020 and the present appeal is preferred from the decree and judgment.

12.The learned counsel for the appellants vehemently argued that when late Gajulla Jahangir and his brother late Lal Mahammed Saheb jointly acquired the suit land it becomes their joint property and the appellants being the legal representatives of late Lal Mahammed Saheb are entitle for an equal share in the suit land.

13.Learned counsel for the respondent vehemently argued that there is no concept of joint family in Mohamadan Law as such, the question of plaintiffs claiming share in the suit land as co-parciners would not arise.

7 AS No. 29 of 2020

On this aspect he relied on decision given in the case of: Md.Aliudin

Farooqui (died) by LRs. & Ors. Vs. Mohd. Karamath Hussainh and Ors, reported in 2003(3) ALD 528 (DB). He also relied on decision laid down in 2007 (6) ALT 249 in the case of Jujjavaraopu Yesurao vs. Nadakuduru

Kamala Kumar and Ors.

14.He also would submit the plaintiffs failed to prove that the suit land is Matruka property of late Lal Mahammed Saheb and late Gajulla

Jahangir and he finally submits, the trial court properly analysed the facts in issue, properly applied the Law in force and rightly dismissed the suit and as such there is no need at all to interfere with the judgment and decree of trial court.

15.Now the point for determination is:

Whether the Judgment and decree of the trial court is sustainable in Law?

Point:-

16.As the version of both parties to the extent it is relevant, is already given it is not being re-capitulated here. The plaintiffs contend, late Mahamood Saheb who is the father of plaintiff Nos. 1 and 2 and late

Gajulla Jahangir who is the grandfather of defendant Nos.2 and 3 and father of defendant No.1 are sons of late Mahabub Ali and they both acquired the suit land jointly and it reflected even in Khasra pahani of 1954-‘55 and other documents. As such, the plaintiff Nos. 1 and 2 are entitled for an equal share in the suit land. The defendants contend, there is no relation between late Jahangir Saheb and late Mahamood 8 AS No. 29 of 2020

Saheb and even the documents filed by the plaintiffs do not show acquisition of the suit land jointly by them both. As such, the plaintiffs are not entitled for partition or for other reliefs prayed for in the plaint.

Ex.A1 shows on 22.7.1963, Mahammed Moulana S/o. Dade Saheb sold his half share in Peerla Gutta Chalka dry land for Rs.125/- to Lal Mohammed

S/o. Mahaboob Ali Saheb who is his elder brother and who is a resident of

Chinchood village. Ex.A2 shows his son Mohammed Ibrahim Saheb @

Babu Miya on 20.07.1963 sold his half share in Peerla Gutta Chelka dry area to late Lal Mohammed Saheb who is his paternal uncle. Ex.A3 is of course a receipt passed by him by referring to the transaction took place on 20.07.1963. However, except referring the property as Peerla Gutta

Chelka extent or boundaries of the property are not mentioned either in

Ex.A1 or in Exs.A2 and A3. For that matter, even the name of the property is not given in Ex.A3 which was executed 15 or 16 years after execution of Ex.A2 i.e., on 17.11.2978. The plaintiffs contend even in

Khasra pahani for the year 1954-‘55 it is shown late Mahamood Saheb who is the father of plaintiffs 1 and 2 and late Gajulla Jahangir Saheb who is the grandfather of defendants 2 and 3 are shown as joint pattedars of the suit land. However, Ex. A4 Khasra pahani does not show this fact. In

Ex.A4 Gajulla Jahangir is shown as pattedar of the suit land and Gajulla

Moulana Saheb is shown as pattedar of Ac. 5-13 gts., of land in Sy.No.34/

A. It appears from this document and also from Ex.A3 that late Gajulla

Jahangir Saheb is the brother of late Gajulla Moulana Saheb. However it does not lead to any conclusion that Gajulla Moulana Saheb sold his entire land in Sy.No.34/A of Chinchood village to Mahamood Saheb.

9 AS No. 29 of 2020

17.It is pertinent to note, as already stated except giving the name of the land the extent or survey number of the land or boundaries of the land are not shown in Exs.A1 to A3. Further in Ex.A4 (Khasra pahani 1954-‘55) name of the land owned by Gajulla Moulana Saheb is shown as

Dayyala Marri Chelka. No suggestion is given to DW1 that Peerla Gutta

Chelka and Dayyala Marri Chelka are one and the same. Even PW2 who is the ex-Surpanch of Chinchood village nowhere stated in his evidence that Peerla Gutta Chelka and Dayyala Marri Chelka are one and the same.

18.On the other hand, PW1 himself admitted in his cross examination that Moulana Saheb is the pattedar of the suit land as per Exs. A1 to A3 and Mohammed Ibrahim Saheb @ Babu Miya is the son of Mohammed

Moulana Saheb. Similarly he, having denied the suggestion that Jahangir

Saheb is the brother of Mohammed Moulana Saheb, he further stated that Moulana Saheb had no brothers. His statement that Mahabub Ali is the grandfather of defendant No.1, is not denied by the defendants as could be seen from his cross examination.

19.It is pertinent to note, he admitted that late Mahabub Ali is the grandfather of defendant No.1; and that original pattedar of the suit land is Moulana Saheb S/o. Dade Saheb and Ibrahim is the son of Moulana

Saheb. Thus, oral evidence of the plaintiffs also proves the fact that

Moulana Saheb is the original owner of the land in Sy.No.34/A of

Chinchood village and not of Sy.No.34/AA and Ac.5-13 gts., of land in

Sy.No.34/AA which is the suit land owned by Gajulla Jahangir Saheb who is the father of defendant No.1 and grandfather of defendant Nos. 2 and 10 AS No. 29 of 2020

3. As already stated it appears Moulana Saheb and Gajulla Jahangir

Saheb who are brothers jointly owned the land in Sy.No.34 of Chinchood village and Moulana Saheb is not the ancestor of the plaintiffs. Further

Ex.A6 shows Ac.2-27 gts, of land in suit survey number is in possession of defendant No.2 and he is the pattedar of that land.

20.It is true as per Ex.B3 late Mohd. Jahangir Saheb transferred

Ac.5-13 gts., of land in Sy.No.34 of Chinchood village to defendant No.1 under registered document No.692/1975. Further the recital in Ex.B7 show this document is not shown as source of title of defendant No.1 who is the executant of this Ex.B7. Further Ex.B4 which is the certified copy of pahani for the year 1973-‘74, Ex.B5 which is the certified copy of pahani for the year 1974-‘75 shows that Jahangir Sahab is the pattedar of the suit land. Further Ex.B8 also shows that defendant No.1 is the pattedar of the suit land as per the revenue records and names of defendant Nos.2 and 3 were ordered to be entered in revenue records.

Even Exs.B9 and B11 show that defendant No.2 is the pattedar and possessor of Ac.2-27 gts., of land in the suit survey number and Ex.B10 shows defendant No.3 is the pattedar and possessor of Ac.2-27 gts., of land in Sy.No.34/EE. It shows that after execution of gift deed the suit land was divided and separate sub division numbers are given. Even

Ex.B11 shows that defendant No.2 is the pattedar to an extent of

Ac.2-27 gts., of land in suit survey number and defendant No.3 is the pattedar of land to an extent of Ac.2-27 gts., in Sy.No.34/AA and defendant No.3 is the pattedar of land to an extent of Ac.2-26 in 11 AS No. 29 of 2020

Sy.No.34/EE. I, therefore, opine that the plaintiffs failed to prove that the suit land was purchased jointly by late Mahamood Saheb who is the father of plaintiff Nos. 1 and 2 and late Gajulla Jahangir Saheb who is the father of defendant No.1 and grandfather of defendant Nos.2 and 3. As such, they are not entitled for partition of the suit land so also declaration and injunction as prayed for.

21.Learned Senior Civil Judge, Shadnagar has properly considered the evidence on record and came to a right conclusion and dismissed the suit. As such, I opine there is no need to interfere with the judgment and decree of the trial court. The point is accordingly answered.

22.In the result, the appeal fails and is dismissed confirming the judgment and decree of the trial court.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by me in

the open court, on this the 22nd day of April, 2022.

I Addl. District Judge, FAC,VII Addl. District Judge, Mahabubnagar

Appendix of evidence

Witnesses examined. Exhibits marked. -NIL-

I Addl. District Judge, FAC,VII Addl. District Judge, Mahabubnagar