Smt V Ganga Bhavani

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-XI ADDL.

METROPOLITAN MAGISTRATE, GANNAVARAM.

PRESENT: Smt. V. Ganga Bhavani,

XI. Addl. Metropolitan Magistrate, Gannavaram

Friday, this the 21st day of April, 2023

C.C. No.130 of 2021

Between:

State represented by Sub Inspector of Police,

Atkuru Police Station. ..Complainant.

AND

1. Ganta Vijaya Lakshmi, W/o Venkateswara Rao, Age 45 years, Atkuru Village, Unguturu Mandal, Krishna District.

2. Ganta Sakunthala, W/o Ranga Rao, Age 65 years, Atkuru Village, Unguturu Mandal, Krishna District.

3. Ganta Venkateswara Rao, S/o Ranga Rao, Age 49 years, Atkuru Village, Unguturu Mandal, Krishna District. ... A1 to A3

This case coming before me on 18.04.2023 for final hearing in the presence of the learned Assistant Public Prosecutor for the State and Sri K.Venkata Ramana, Advocate for accused, upon hearing the arguments on both sides, and the matter having stood over for consideration till this day, this Court delivered the following:-

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

The Sub-Inspector of Police, Atkuru Police Station, filed charge sheet in Crime No.135 of 2021 against the accused for the offence punishable under Section 324 IPC r/w Section 34 IPC.

2.The case of the prosecution, in brief, is as under:

(i)LW.1/Ganta Durga is residing at Atkuru Village along with her family members. She is a home maker and her husband is working as a welding helper in KSP Engineering works. She borrowed an amount of

Rs.3,70,000/- for her father-in-law's medical treatment, since her brother-in-law, co-sister-in-law/Ganta Vijaya Lakshmi and mother-in- law/Ganta Sakuntala gave assurance to pay the amount in equal share, but her father-in-law demised. Later, they did not return the money. On 01.06.2021, at 04.30 p.m., when she questioned her brother-in-law i.e., accused No.3 about money, he admonished her. Meanwhile, accused

No.2 caught hold her hands and accused No.1 beat her with a wooden stick on her cheek, as a result of which, a piece of wooden stick was stuck in her cheek and blood was oozed out. After knowing the incident, her husband came and took her to CHC, Gannavaram for treatment.

(ii)In this connection, on 01.06.2021, LW.7/H.C received hospital intimation from CHC, Gannavaram and he visited CHC, Gannavaram and recorded the statement of LW.1 and registered a case in Crime No.135 of 2021 under Section 324 IPC r/w Section 34 IPC. He took up investigation in this case and again visited CHC, Gannavaram, examined the complainant as LW.1 and her husband as LW.2 and recorded their statements. He visited the scene of offence, prepared rough sketch, examined the witnesses LWs.3 to 5 and recorded their statements.

LW.8/S.I of Police served notice under Section 41-A Cr.P.C., to accused

Nos.1 to 3. LW.6/Medical Officer, who treated LW.1, issued wound certificate and opined that the injuries are simple in nature. After completion of investigation, LW.8/SI of Police filed charge sheet against the accused for the offence under Section 324 IPC r/w Section 34 IPC.

3.The case was taken on file for the offence under Section 324 IPC r/w Section 34 IPC.

4.On appearance of the accused, copies of documents were furnished to them as required under Section 207 Cr.P.C. They were examined under Section 239 Cr.P.C., for which, they denied commission of the offence. A charge under Section 324 IPC r/w Section 34 IPC against the accused had been framed, read over and explained to them in Telugu, for which, they pleaded not guilty and claimed to be tried.

5.During the course of trial, on behalf of the prosecution, PWs.1 to 6 were examined; and Exs.P1 to P8 were marked. The evidence of

LW.5/Sk.Basha and LW.8/G.Srinivasa Rao, SI of Police was given up by the learned Assistant Public Prosecutor. The evidence on prosecution side was accordingly closed. The accused were examined under Section 313

Cr.P.C., putting forth the incriminating material that appeared against them in the evidence of the prosecution witnesses. The accused denied their guilt. No oral or documentary evidence was adduced on behalf of the defence.

6.Heard. Perused the written arguments filed on behalf of the prosecution and other material on record.

7.Now the point for determination is whether the prosecution is able to prove the guilt of the accused beyond all reasonable doubt for the offence punishable under Section 324 IPC r/w Section 34 IPC.?

8.POINT:-

(i)According to the prosecution, on 01.06.2021, at 04.30 p.m., when PW.1 asked accused No.3 about the money, he admonished her and in the meanwhile, accused No.2 caught hold her hands and accused

No.1 beat her with a wooden stick on her cheek, as a result of which, a piece of wooden stick was stuck in her cheek and blood was oozing out.

As such, the accused are liable to be punished under Section 324 IPC r/w

Section 34 IPC, prescribes punishment for voluntarily causing hurt by dangerous weapons or means.

(ii)In order to prove its case, the prosecution examined PWs.1 to 6. PW.1 is the de facto complainant and injured. PW.2 is the husband of PW.1. PWs.3 and 5 are eye witnesses of the incident. PW.4 is the

Doctor, who treated PW.1. PW.6 is the Investigating Officer.

(iii)The parties are related to each other. Accused No.3 is the brother-in-law of PW.1; while accused Nos.2 and 1 are her mother-in-law and co-sister respectively. According to PWs.1 and 2, PW.2 borrowed an amount of Rs.3,70,000/- for the medical treatment of Ganta Ranga Rao, who is father of PW.2 and father-in-law of PW.1, as per the understanding between them that they will share the amount borrowed by PW.2.

However, after the funerals of the deceased father-in-law of PW.1, the accused did not stand on their word. On 01.06.2021, at about 04.30 p.m., when PW.1 asked for the said amount, accused No.3 replied that he will not pay the amount and in the meanwhile, accused No.2 caught hold her hands and accused No.1 took wooden stick and beat her with the same, due to which, part of the wooden stick went inside her cheek, resulting in bleeding injury. PW.2 is not a direct witness to the incident.

PW.3 and LW.5/Shaik Basha, stated to have witnessed the alleged incident. PW.2 took PW.1 to CHC, Gannavaram, where her statement was recorded under Ex.P1 on intimation by the hospital authorities under

Ex.P5 and basing on the same Ex.P6 was registered and investigated into. PW.4, who treated PW.1, has issued wound certificate under Ex.P3 stating that a lacerated wound over the right side of cheek of about 5x2x1 cm approximately, with fresh bleed with penetration of stick into the right cheek upto infra orbital region with part of wooden stick insitu and it is simple in nature. She, however, admitted that there is possibility for sustaining the said injury when a person accidentally comes in contact with a wooden stick with force and also admitted that the age of the wound is not mentioned in Ex.P3.

(iv)From the evidence adduced on behalf of the prosecution, it is clear that the motive behind the alleged incident is borrowal of amount by PW.2 in connection with the medical treatment of his father. However, in Ex.P1, PW.1 stated that she herself borrowed the amount, contrary to the statement made before the Court on oath stating that PW.2 borrowed the amount. Even PW.6 admitted that PW.1 has not stated that she borrowed the amount from others. PW.2 has not even stated the names of the persons from whom he borrowed the amount. While in the charge sheet, the scene of offence is mentioned as Gupta Complex, the investigation of PW.6 admittedly does not reveal that the scene of offence is situated at that place.

(v)PWs.3 and 5 are stated to be eye witnesses. In fact, PWs.1 and 2 have not stated that the incident occurred in the presence of

PWs.3, 5 and LW.5. PW.5 has not supported the case of the prosecution in toto. Though, the learned Assistant Public Prosecutor was permitted to put questions in the nature of cross-examination, nothing material could be elicited from him. PW.3 testified that while he was sitting in front of the house of PW.1, she and accused Nos.1 to 3 were quarreling with each other in the vacant site situated in between their houses. He also testified that PW.1 came outside with bleeding injury on her right side cheek with wooden piece. He stated that PW.1 informed him that accused No.1 beat her with a stick and PW.2 took her to GGH,

Vijayawada on bike. He, however, stated that he does not know the reasons for the quarrel. In Ex.P2, the relevant portion of the statement recorded under Section 161 Cr.P.C, marked during cross examination by the learned Assistant Public Prosecutor, he categorically stated that while PW.1 was asking for the money, accused No.1 admonished her and accused No.2 caught hold her and accused No.1 took a wooden stick and beat PW.1 with the same, due to which, she sustained bleeding injury.

The learned Assistant Public Prosecutor relied upon the judgment in

Devaraj v. State of Chattisgarh 1, to the effect that there is no legal bar to base a conviction upon the testimony of a hostile witness, if the same is corroborated with the other reliable evidence. However, in the present case, PW.5, who is the other eye witness, did not support the case of the prosecution. As such, the evidence of PW.3 cannot be relied upon.

(vi)It is settled proposition of law that lapses on the part of the investigating agency cannot shake the prosecution case as is held in

Krishna Gouda v. State of Karnataka 2. In Shivaji Gunu Mohithe v.

State of Maharastra 3 and Bipin Kumar Mandal v. State of West

Bengal 4, it is held that the issue of motive becomes totally irrelevant 1 2016 AIR Criminal 945 2(2017) 13 SCC 98 3 AIR 1973 SC 55 4(2010) 12 SCC 91 when there is direct evidence of a trustworthy witness regarding the commission of the crime. Section 134 of Indian Evidence Act, 1872 enunciates quality of evidence and not the quantity, as is reiterated in

Amarsingh v. State of Delhi 5, and Mahindra Singh v. State of

Madhya Pradesh 6, relied upon by the prosecution. However, in the instant case, there are discrepancies even in the evidence of PWs.1 and 2, who are wife and husband, regarding the motive and other material aspects.

(vii)The learned Assistant Public Prosecutor strenuously contended that there is a clear case of attempt to murder PW.1 and as such, a charge under Section 307 of IPC shall be framed and commit the case to the Hon’ble Sessions Court. In support of her contention, reliance was placed on the judgment of Hon’ble Supreme Court in Surender

Singh v. State of Union, Territory of Chandigarh 7, regarding ingredients for the charge under Section 307 IPC. She, thus, urged the

Court to add the charge under Section 307 IPC in view of Section 216 of

Cr.P.C., as held in Anantha Prakash Sinha v. State of Haryana 8.

Alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the Court. The

Court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. Coming to the case on hand, PW.1 has not stated the alleged act done by the accused was with the intention or knowledge that would cause death so as to attract the ingredients of Section 307 IPC. She got marked the photographs, along with CD, depicting stuck of wooden stick 5 2021 AIR Criminal 51 6 2022 AIR Criminal 744 7 Crl.A.No.2373 of 2010, dated 26.11.2021 8 2016 AIR (SC) 1197 in her cheek, under Ex.P8. According to her, at first instance, she took treatment at CHC, Gannavaram, where she was given first aid and thereafter, was referred to GGH, Vijayawada. In GGH, Vijayawada, the said wooden stick was removed after surgery and the said stick was produced before the police by PW.2 and her brother. However, the said stick was not produced before this Court. Further, the details of the treatment stated to have been undergone by PW.1 along with medical report are not produced. The record shows that a photocopy of the medical report of GGH, Vijayawada regarding her treatment was sought to be marked. But, as it does not bear the signature of the authority, who issued the same, the request of PW.1 in this regard was rejected.

Non production of wooden stick is fatal to the case of the prosecution.

Except the oral evidence of PWs.1 and 2, there is no iota of evidence regarding the alleged surgery and treatment taken by PW.1 in GGH,

Vijayawada. Therefore, this Court is of the considered opinion that there is no material on record to add the charge under Section 307 IPC and as such, the contention advanced in this regard is devoid of merit.

(viii) In the above premises, this Court is of the opinion that the prosecution has miserably failed to bring home the guilt of the accused beyond all reasonable doubt for the offence with which they are charged and accordingly, the accused are entitled for acquittal.

9. In the result, the accused are found not guilty of the offence under Section 324 r/w Section 34 IPC. Accordingly, accused are acquitted under Section 248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as prescribed under Section 437-A Cr.P.C.

Typed to my dictation by Stenographer Gr.III, corrected and pronounced by me in open Court, this the 21st day of April, 2023.

Sd/- V.Ganga Bhavani,

XI ADDL. METROPOLITAN MAGISTRATE,

GANNAVARAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant:- For accused:-

PW.1 : Ganta Durga-Nil- PW.2 : Ganta Srinivasa Rao PW.3 : D.Thamos PW.4 : Dr.Y.Sridevi PW.5 : B.Lakshmaiah PW.6 : S.Venkateswara Rao

DOCUMENTS MARKED:

For Complainant:- For accused

Ex.P1: Statement of PW.1, dated 01.06.2021. -Nil- Ex.P2: Relevant portion of Sec.161 Cr.P.C. statement of PW.3. Ex.P3: Wound certificate of PW.1. Ex.P4: Section 161 Cr.P.C. statement of PW.5. Ex.P5: Hospital intimation. Ex.P6: FIR. Ex.P7: Rough sketch of the scene of offence. Ex.P8: Photographs-4 in number along with C.D.

MATERIAL OBJECTS MARKED:

- Nil-

Sd/- V.Ganga Bhavani,

XI ADDL. METROPOLITAN MAGISTRATE,

GANNAVARAM.

C.C.No.93 of 2017 1 XI- A.M.M, GVRM

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-XI ADDL.

METROPOLITAN MAGISTRATE, GANNAVARAM.

PRESENT: Smt. V. Ganga Bhavani,

XI. Addl. Metropolitan Magistrate, Gannavaram

Tuesday, this the 21stday of February, 2023

C.C. No.93 of 2017

Between:

State represented by Inspector of Police,

Gannavaram Police Station. ..Complainant.

AND

1. Bapatla Anil Kumar, S/o Raju, Age 27 years, R/o D.No.6-41/1, AMbedkar Nagar, Kesarapalli Village, Gannavaram Mandal.

2. Matta Yona Raju, S/o Basavarao, Age 36 years, R/o D.No.32-10-100, Gummadivari Veedhi, Moghalrajapuram, Vijayawada.

3. Bapatla Ruthamma, W/o Raju, Age 45 years, D.No.6-41/1, Ambedkar Nagar, Kesarapalli Village, Gannavaram Mandal.

4. Matta Sasirekha, W/o Yona Raju, Age 32 years, R/o D.No.32-10-100, Gummadivari Veedhi, Moghalrajapuram, Vijayawada. ... A.1 to A.4.

This case coming before me on 20.02.2023 for final hearing in the presence of the learned Assistant Public Prosecutor for the State and Sri K.Venkata Ramana, Advocate for accused, upon hearing the arguments on both sides, and the matter having stood over for consideration till this day, this Court delivered the following:-

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

The Sub-Inspector of Police, Atkuru Police Station, filed charge sheet in Crime No.85 of 2015 against the accused for the offence punishable under Sections 448 and 323 r/w Section 34 IPC.

2.The case of the prosecution, in brief, is as under:

(i)LW.1/Thota Rama Gummadi is resident of Kesarapalli

Village, Gannavaram Mandal. As her husband died, she is staying with her parents at Kesarapalli Village. LWs.2 and 3 are her parents. LW.4 is her maternal uncle. Due to disputes with his wife and children i.e., the accused, LW.4 has been staying with LWs.2 and 3. Recently, LW.4

C.C.No.93 of 2017 2 XI- A.M.M, GVRM purchased a house and presented the same to the son of LW.1 and also

Ac.0.03 cents of house site to LW.1 as herself and her parents are looking after his welfare. Due to the same, the accused used to quarrel with LWs.1 and 4. While so, on 04/05.03.2015, midnight, the accused came to the house of LWs.2 and 3, where LW.4 was taking shelter, and knocked the doors. On that, LW.2 opened the doors. Then, accused No.1 went inside the house while calling out his father/LW.4, scattered the household articles, beat LW.1 with hands and questioned as to why they are giving shelter to LW.4. When his father came out, accused No.1 beat him with a stick. When LW.1 intervened, accused Nos.1 and 2 beat her with hands, while accused Nos.3 and 4 abused LWs.1 and 2. Later, all the accused went away by taking LW.4 with them. LW.1 who sustained injuries was shifted to hospital for treatment and LW.4 escaped with minor injuries.

(ii)In this connection, on the statement of LW.1, on 07.03.2015, at 16.00 hours, a case in Crime No.85 of 2015 under Sections 448 and 323 IPC r/w Section 34 IPC was registered and investigated into. During the course of investigation, LW.10/HC visited the scene of offence, observed the same and examined as many as seven witnesses and recorded their statements. On 13.05.2015, LW.10/HC arrested the accused and released them on bail, after obtaining sufficient sureties.

LW.9/Medical Officer who treated the injured/LW.1, issued wound certificate and opined that the injuries are simple in nature. After completion of investigation, LW.12/SI of Police filed charge sheet under

Sections 448 and 323 IPC r/w Section 34 IPC.

3.The case was taken on file for the offence under Sections 448, 323 and 324 IPC r/w Section 34 IPC.

4.On appearance of the accused, copies of documents were furnished to them as required under Section 207 Cr.P.C. They were

C.C.No.93 of 2017 3 XI- A.M.M, GVRM examined under Section 239 Cr.P.C., for which, they denied commission of the offence. A charge under Sections 448, 323 and 324 IPC r/w

Section 34 IPC against the accused had been framed, read over and explained to them in Telugu, for which, they pleaded not guilty and claimed to be tried.

5.During the course of trial, on behalf of the prosecution, PWs.1 to 10 were examined; and Exs.P1 to P7 were marked. The evidence of

L.W.10/K.D.K.David Raju, H.C and LW.11/P.Satya Srinivas, S.I of Police was given up by the learned Assistant Public Prosecutor. The evidence on prosecution side was accordingly closed. The accused were examined under Section 313 Cr.P.C., putting forth the incriminating material that appeared against them in the evidence of the prosecution witnesses. The accused denied their guilt. No oral or documentary evidence was adduced on behalf of the defence.

6.Heard. Perused the material on record.

7.Now the point for determination is whether the prosecution is able to prove the guilt of the accused beyond all reasonable doubt for the offence punishable under Sections 448, 323 and 324 IPC r/w

Section 34 IPC.?

8.POINT:-

(i)In order to prove its case, the prosecution examined PWs.1 to 10. PW.1 is the de facto complainant and injured. PWs.2 and 3 are parents of PW.1. PW.4 is the maternal uncle of PW.1. PWs.5 to 7 are known persons to PW.1. PW.8 is the Head Constable, who recorded the statement of PW.1. PW.9 is the Doctor who treated PW.1. PW.10 is the

Investigating Officer.

(ii)According to the prosecution, the accused trespassed into the house of PWs.1 to 3 and beat PW.1 with stick and hands indiscriminately, due to which, PW.1 sustained injuries. As such, they

C.C.No.93 of 2017 4 XI- A.M.M, GVRM are liable to be punished under Sections 448, 323 and 324 IPC r/w

Section 34 IPC. Section 448 IPC deals with punishment for house trespass. Section 323 IPC prescribes punishment voluntarily causes hurt and Section 324 IPC prescribes punishment for voluntarily causing hurt by dangerous weapons or means.

(iii)PWs.5 to 7, who are said to be known persons to PW.1, did not support the case of the prosecution. In fact, PWs.1 to 3 categorically testified that they do not know PWs.5 to 7. During cross-examination by the learned Assistant Public Prosecutor, PWs.5 to 7 denied the prosecution case and so also, having stated before the police as in

Exs.P2 to P4/statements under Section 161 Cr.P.C.

(iv)PWs.2 and 3 are the parents of PW.1. PW.4 is the maternal uncle of PW.1. The accused are the son, wife, daughter and son-in-law of PW.4. Admittedly, there are disputes between PW.4 and his family/accused, as he gifted the property to PW.1. The alleged incident occurred in the midnight of 04.03.2015, in the house of PWs.2 and 3.

Ex.P1 is the statement of PW.1 recorded by PW.8 on 05.03.2015 at about 03.00 a.m., to 3.30 a.m., on receiving Ex.P5/hospital intimation, basing on which, Ex.P7 was registered on 07.03.2015. According to

PW.8, he handed over Ex.P1/statement of PW.1 to Sri Sharif, SI of Police, but the said Sharif was not cited as a witness. As rightly contended by the learned counsel for the accused and as admitted by PW.10, the record does not show the investigation done from 05.03.2015 to 07.03.2015. According to PW.1, the accused have even scattered the household articles. However, no scene observation report or rough sketch was prepared or produced before the Court. As stated by PW.1, on hearing the cries, the neighbours came to their house and on that the accused left the place by taking PW.4 along with them. Admittedly,

C.C.No.93 of 2017 5 XI- A.M.M, GVRM the local inhabitants were not examined (PWs.5 to 7 are admittedly residents of Gannavaram).

(v)In Ex.P1, PW.1 categorically stated that the accused came to their house and beat her with hands and also beat PW.4 with rod. The accused also scattered the household articles. However, she testified

before the Court that the accused beat PW.2 and herself with stick

indiscriminately. In Ex.P1, there is no mention about the attack on

PWs.2 and 3 by the accused and receiving of injuries, if any, by them.

Per contra, PWs.2 and 3 categorically testified that the accused beat them also and they too received injuries. In fact, according to PW.2, he lost all his teeth due to the attack. But, there is no medical record regarding the injuries sustained by PWs.2 and 3 and as admitted by

PW.10, the investigation does not reveal about the injuries as stated by

PWs.2 and 3. In fact, PW.2 testified that he could not identify the persons, who attacked, due to darkness at the time of incident.

(vi)From the evidence of PWs.1 to 4, it is clear that there are discrepancies. Further, there is no corroboration from PWs.5 to 7. The rule as to corroboration is based on the reasoning that there must be sufficient corroborative evidence in material particulars to connect the accused with the crime. Therefore, it is not safe to rely upon the evidence of PWs.1 to 4, who belong to the same family, and admittedly, there are disputes between PW.1 and the accused.

(vii)Furthermore, PW.9 issued Ex.P6 opining that PW.1 received simple injuries and admitted that there is possibility for sustaining those injuries if one falls on the ground accidentally. She, however, did not mention the age of the wound in Ex.P6. In order to bring home the charge under Section 324 IPC, it is the duty of the prosecution to show and establish that the hurt was caused by any instrument for shooting, stabbing or cutting or by any instrument, which is used as a weapon as

C.C.No.93 of 2017 6 XI- A.M.M, GVRM is likely to cause death etc. In the instant case, while in Ex.P1, it is stated that the accused beat with hands and rod; before the Court, it is testified that the accused beat with hands and stick. Neither the rod nor stick was seized. Further, there is no medical evidence or expert evidence to show that the weapon used was any of the instruments or weapons mentioned in Section 324 IPC, that too, the details of the alleged stick or rod were not stated and the evidence of PWs.1 to 4 is silent on this count.

(viii) PW.10 testified about the investigation done by him after receiving Ex.P1 and registration of Ex.P7. It should be kept in mind that the report filed by the Investigation Officer is only based on the material collected by him during the course of investigation, and he is not at all an eye witness. Therefore, the Investigation Officer/s cannot give any evidence as to the actual occurrence of offence.

(ix)From above evidence placed on record, it is clear that there is absolute dearth of evidence to connect the accused to the offence alleged against them and as such, this Court holds that the prosecution has miserably failed to bring home the guilt of the accused beyond all reasonable doubt and accordingly, the accused are entitled for acquittal.

9.In the result, the accused are found not guilty of the offence under Sections 448, 323 and 324 r/w Section 34 IPC. Accordingly, they are acquitted under Section 248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as prescribed under

Section 437-A Cr.P.C.

Typed to my dictation by Stenographer Gr.III, corrected and pronounced by me in open Court, this 21st day of February, 2023.

Sd/- V.Ganga Bhavani,

XI ADDL. METROPOLITAN MAGISTRATE,

GANNAVARAM.

C.C.No.93 of 2017 7 XI- A.M.M, GVRM

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant:-For accused:-

PW.1 : T.Rama Gummadi -Nil- PW.2 : N.Venkateswara Rao PW.3 : N.Sayamma PW.4 : B.Raju PW.5 : B.Nagamalleswara Rao PW.6 : Ch.Rajya Lakshmi PW.7 : P. Venu PW.8: K.Rama Swamy PW.9: B.Ekambareswara Rao. PW.10: M.K.Durga Rao

DOCUMENTS MARKED:

For Complainant:- For accused

Ex.P1: Statement of PW.1, dated 05.03.2015.-Nil- Ex.P2: Section 161 Cr.P.C. statement of PW.5. Ex.P3: Section 161 Cr.P.C. statement of PW.6. Ex.P4: Section 161 Cr.P.C. statement of PW.7. Ex.P5: Hospital intimation. Ex.P6: Wound certificate of PW.1. Ex.P7: FIR. Ex.P5: Rough sketch of the scene of offence.

MATERIAL OBJECTS MARKED:

- Nil -

Sd/- V.Ganga Bhavani,

XI ADDL. METROPOLITAN MAGISTRATE,

GANNAVARAM.

C.C.No.93 of 2017 8 XI- A.M.M, GVRM

1 O.S.No.92 of 2017 PJCJ Court, Gannavaram

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-XI

ADDL. METROPOLITAN MAGISTRATE :: AT GANNAVARAM

Present: Smt. V.Ganga Bhavani Prl.Junior Civil Judge, Gannavaram.

Friday, this the 17th day of February, 2023

O.S. No.92 of 2017

Between:

Bestha Latha, W/o Bestha Suresh Babu, Hindu, Aged about 41 years, Housewife and Properties, R/o H.No.10-5-342/41/1/A, North Lalaguda, Kondareddy Park, Secunderabad. ... Plaintif

Vs

1. Sarihaddu Musalaiah, S/o Balaswamy, Hindu, Aged about 55 years, Cultivation, R/o Chikkavaram Village, Gannavaram Mandal, Krishna District.

2. Sarihaddu Praveen Kumar, S/o Musalaiah, Hindu, Aged about 31 years, Cultivation, R/o Chikkavaram Village, Gannavaram Mandal,

Krishna District. ...Defendants

This suit is coming on 15.02.2023 before me for final hearing in the presence of Sri B.V.Swamy, Advocate for plaintif and Sri Ch.Anjaiah, Advocate for defendants, after perusing the material on record and the matter having stood over for consideration till this day, this Court delivered the following:

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

This suit is filed seeking a direction to the defendants to deliver vacant possession of the plaint schedule premises to the plaintif, failing which, direct the Court Amin to do the same and for costs.

2.The averments of the plaint, in brief, are as under:

The defendants, who are father and son respectively, approached the plaintif to sell the plaint schedule property i.e., premises bearing

D.No.4-10, R.S.No.248/7, admeasuring Ac.0.3 ½ cents, Chikkavaram

Village, Gannavaram Mandal, Krishna District for a sale consideration of

Rs.2,10,000/-, as they were in need of money. The plaintif accepted the ofer and agreed to purchase the property. Accordingly, the plaintif paid the total consideration of Rs.2,10,000/- to the defendants on 12.10.2015.

2 O.S.No.92 of 2017 PJCJ Court, Gannavaram

On the same day, the defendants executed registered sale deed vide document No.7502/2015, on the file of Sub Registrar Office, Gannavaram in favour of the plaintif. However, the defendants have promised to deliver the vacant possession of the property, after completion of the transaction, for which, the plaintif agreed. After execution of the sale deed, the plaintif demanded the defendants to deliver vacant possession of the plaint schedule property, but the defendants requested the plaintif that they will vacate the same within a short period in order to secure alternative accommodation. Even after completion of stipulated period, the defendants failed to deliver vacant possession of plaint schedule property. The plaintif made several attempts and requests to the defendants in this regard, in vain. Hence, the suit.

3.The defendants filed written statement denying the plaint averments and inter alia stating as under:

(i)The defendants approached the plaintif and borrowed an amount of Rs.1,50,000/- from her. At the time of borrowal, the plaintif demanded the defendants to execute a registered sale deed pertaining to the plaint schedule property in her favour by enhancing the amount of

Rs.60,000/- to the actual borrowed amount of Rs.1,50,000/-, as sale consideration. The plaintif also promised to execute registered sale deed in favour of the defendants, whenever they discharge the actual borrowed amount of Rs.1,50,000/-, along with interest at the rate of 36%. Since the date of borrowal, the defendants are continuously paying the interest every month without fail. But, due to some financial crisis, they failed to pay the interest of September, 2017.

(ii)No sale consideration was received by the defendants from the plaintif pertaining to the plaint schedule property. The registered sale deed was executed only towards security of the debt borrowed by the defendants. The defendants are ready to discharge the actual 3 O.S.No.92 of 2017 PJCJ Court, Gannavaram borrowed amount of Rs.1,50,000/- with interest from September, 2017 to till date within the short period. As such, the question of delivery of the plaint schedule property to the plaintif does not arise at all. There is no cause of action for the suit and the alleged cause of action is not true and correct. Hence, the suit, which is filed with all false and untenable allegations to grab the plaint schedule property, is liable to be dismissed with costs.

4.Basing on the pleadings of both the parties, the following issues were settled for consideration:

1)Whether the plaintif is entitled to recovery of possession as prayed for?

2)To what relief?

5.On behalf of the plaintif, PWs.1 and 2 were examined and Ex.A1 was marked. On behalf of the defendants, DWs.1 and 3 to 5 were examined and Exs.B1 to B4 were marked. The evidence of DW.2 was eschewed on the memo filed by the learned counsel for the defendants.

6.Heard. Perused the material on record.

7.Issue No.1:-

(i)According to the plaintif, the defendants jointly executed registered sale deed, dated 12.10.2015, vide document No.7502/2015, on the file of Sub Registrar Office, Gannavaram, on receiving sale consideration of Rs.2,10,000/-, in respect of the plaint schedule premises. However, they failed to handover vacant possession of the plaint schedule premises within the time as promised by them, though the plaintif requested and demanded on several times. In support of her case, the plaintif herself got examined as PW.1. The plaintif, as PW.1, in her affidavit filed in lieu of her examination-in-chief, has reiterated the plaint averments. Ex.A1 is the registered sale deed, dated 12.10.2015, bearing document No.7502/2015, executed by the defendants in favour of the plaintif. In support of her case, the plaintif also examined PW.2 4 O.S.No.92 of 2017 PJCJ Court, Gannavaram who is one of the attestors of Ex.A1. PWs.1 and 2 were cross examined at length.

(ii)On the other hand, it is the case of the defendants that they borrowed an amount of Rs.1,50,000/- from the plaintif and as demanded by the plaintif, they executed a registered sale deed in her favour by showing the sale consideration as Rs.2,10,000/-. Thus, it is their case that they executed Ex.A1 towards collateral security for the amount borrowed. In support of their case, defendant No.1 was examined as

DW.1, who in his chief affidavit has reiterated the written statement averments and got marked Exs.B1 to B4/tax receipts, electricity bills and a copy of complaint, dated 08.11.2016. In support of their case, the defendants also examined DWs.3 to 5, who are third parties to the suit.

DWs.1 and 3 to 5 are cross examined at length.

(iii)Admittedly, Ex.A1 was executed by the defendants jointly.

However, it is the specific case of the defendants that they executed

Ex.A1 as a collateral security for the amount borrowed by them. Ex.A1 is a registered sale deed. The nature of the property conveyed in Ex.A1 is depicted in the photograph affixed thereto. A person is considered as a legal owner of a property after he gets the property registered in his name. After executing a sale deed for consideration, the vendor transfers entire legal ownership of the property in the name of the vendee. Admittedly, the plaintif has not filed any case against the defendants for recovery of Rs.1,50,000/- and no receipts were filed by the defendants to show that they paid interest upto August, 2017. As admitted by DW.1, there is no recital in Ex.A1 that the defendants jointly borrowed an amount of Rs.1,50,000/- and towards security, the said document was executed. The defendants filed Exs.B1 to B3 to show that the possession of the property is with them. It is also the case of the plaintif that the possession is with the defendants. Ex.B1/miscellaneous receipt is of the year 2014. Ex.B2 is house tax receipts, 17 in number, to 5 O.S.No.92 of 2017 PJCJ Court, Gannavaram show that defendant No.1 is paying the tax. Indubitably, Ex.A1 is a registered document and in the light of the same, Exs.B1 to B3 are not helpful to the defendants’ case. In fact, a perusal of Ex.B3/electricity bills shows that some of them stand in the name of the plaintif and it is categorically admitted by DW.1. PW.2, who is none other than the brother of PW.1 and one of the attestors of Ex.A1, categorically denied that Ex.A1 was executed towards security of the amount borrowed and that no consideration was passed.

(iv)Defendant No.1 filed additional chief affidavit inter alia stating that on 06.11.2016, at about 10.00 a.m. when defendant No.1, plaintif, her husband and village elders gathered at the house of Anne

Lakshmana Rao at Gannavaram for the purpose of discharge of the debt which was due under Ex.A1, the plaintif and her husband quarrelled and beat defendant No.1 with chappal on his face, head and left hand. The husband of the plaintif/Suresh caught hold his body for beating. In that connection, defendant No.1 gave a written complaint to Gannavaram PS, after taking endorsement from local MLA, on 08.11.2016. However, there is no pleading to that efect. Be it noted, in the absence of pleading, any amount of evidence will not help the party in a civil suit.

Be that as it may, in support of the case of the defendants in this regard, they got marked Ex.B4/complaint, dated 08.11.2016, and also got examined DWs.3 to 5. DW.4 is the son-in-law of defendant No.1. DW.3 categorically testified that he does not know about the borrowal of amount of Rs.1,50,000/- or the execution of Ex.A1 by the defendants, personally and that he came to know about the same through the defendants. DW.5 categorically testified that the defendants do not belong to his village. No doubt, in their chief affidavits, DWs.3 to 5 stated about the incident stated to have occurred on 06.11.2016 at the house of Anne Lakshmana Rao, in similar lines. However, except producing Ex.B4, no piece of evidence has been adduced by them as to 6 O.S.No.92 of 2017 PJCJ Court, Gannavaram what happened after Ex.B4. In the absence of the same, it is not safe to rely upon the evidence of DWs.3 to 5. The defendants did not choose to examine the said Anne Lakshmana Rao. Furthermore, though the defendants cross-examined PWs.1 and 2, nothing material could be elicited from them in support of their case nor could shake their veracity

(v)The degree of proof in civil cases is preponderance of probabilities. The plaintif by examining herself as PW.1 and PW.2 and marking Ex.A1, has established her case. However, though the defendants took a plea that they executed Ex.A1 for collateral security, they failed to adduce any piece of evidence in support of the same.

(vi)Thus, this Court comes to the conclusion that the unshaken evidence of PWs.1 and 2, coupled with Ex.A1, clearly establishes that the defendants executed Ex.A1 on receiving sale consideration of

Rs.2,10,000/- and failed to handover the possession of the plaint schedule premises. Issue No.1 is, accordingly, answered in favour of the plaintif and against the defendants.

8.Issue No.2:

In view of the findings on Issue No.1, this suit is liable to be decreed with costs.

9.In the result, the suit is decreed with costs directing the defendants to vacate and deliver vacant possession of the plaint schedule premises to the plaintif within one month, failing which, the plaintif is entitled to get the same done through process of law.

Typed to my dictation by Personal Assistant, corrected and pronounced by me in open Court, on this the 17th day of February, 2023.

Sd/- V.Ganga Bhavani,

PRINCIPAL JUNIOR CIVIL JUDGE,

GANNAVARAM.

7 O.S.No.92 of 2017 PJCJ Court, Gannavaram

Appendix of Evidence

Witnesses Examined

For Plaintiff: For Defendants:

PW.1: Bestha Latha DW.1: S.Musalaiah PW.2: Nimmagadda Naga Raju DW.2: K.Balaraju (eschewed) DW.3: K.Kantha Rao DW.4: J.Rajesh DW.5: B.Sambasiva Rao

Documents Marked

For Plaintiff:

Ex.A1: Registered sale deed, dated 12.10.2015 bearing document No.7502/2015.

For Defendants:

Ex.B1: Miscellaneous receipt, dated 31.03.2014 issued by Grama

Panchayathi, Chikkavaram Village in the name of D1.

Ex.B2: Bunch of house tax receipts-17 in number issued by Grama

Panchayathi, Chikkavaram Village in the name of D1.

Ex.B3: Bunch of electricity bills – 8 in number.

Ex.B4: Copy of complaint, dated 08.11.2016.

Sd/- V.Ganga Bhavani,

PJCJ,

GVRM.

C.C.No.74 of 2019,

XI A.M.M, GVRM

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-XI

ADDL. METROPOLITAN MAGISTRATE, GANNAVARAM.

PRESENT: Smt. V. Ganga Bhavani,

XI. Addl. Metropolitan Magistrate, Gannavaram

Friday, this the 17th day of February, 2023

C.C. No.74 of 2019

Between:

Inspector of Police, Gannavaram Circle, Represented by Inspector of Police,

CCS, East Division, Vijayawada City. ..Complainant.

AND

1. Bhukya Nagaraju Naik, S/o Baburao Naik, Age 38 years, Native of Chaitanya Nagar, A.Konduru, Krishna District, Now residing at Nearby Panchayath Office, Vissannapet, Krishna District.

2. Banavath Raja, S/o Tirupathirao, Age 24 years, Chandrapatla Thanda, Vissannapet, Krishna District.

3. Pulletikurthi Uma Maheswararao @ Bujji @ Mahesh, S/o Late Jagan Mohanarao, Age 45 years, Burla Veedhi, Old Guntur, Guntur District. ... A.1 to A.3.

This case coming before me on 15.02.2023 for final hearing in the presence of the learned Assistant Public Prosecutor for the State and Sri.B.V.Swamy, Counsel for accused, upon hearing the arguments on both sides, and the matter having stood over for consideration till this day, this Court delivered the following:-

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

The Inspector of Police, CCS, East Division, Vijayawada City, filed charge sheet in Crime No.64 of 2019 against the accused for the offence punishable under Sections 457 and 380 IPC.

2.The case of the prosecution, in brief, is as under:

(i)LW.1/Bathula Deva Phani Sai Kumar is resident of Sriram

Golden Nest Apartment, Vepagunta Road, Chinna Avutupalli Village,

Gannavaram Mandal, along with his grandparents. On 07.03.2019, at 09.30 hours, he, along with his grandparents, locked the house and left to his native place. On 14.03.2019, at 11.30 hours, they returned to flat and found that main door lock was broken. Then, they went into master bed room and found iron safe was broken and the clothes were scattered

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XI A.M.M, GVRM

and found that four sovereigns of gold item, silver items, Apple Mac

Book Pro laptop, bears head phones and Nikon complix camera, all worth about Rs.2,40,000/-, were stolen.

(ii)In this connection, on 14.03.2019, LW.1 presented a report to the police and basing on the same, LW.11/PSI registered a case in Crime

No.64 of 2019 under Sections 457 and 380 IPC. LW.11/PSI took up investigation in this case and visited scene of offence, prepared rough sketch of the scene and examined the same in the presence of mediators. He secured the witnesses, examined them and recorded their statements.

(iii)As per the orders of the Commissioner of Police, Vijayawada

City, LW.13/M.U.N.Sivaji Rao, Inspector of Police continued further investigation in this case. On 17.05.2019, at 10.30 hours,

LW.13/Inspector of Police arrested accused Nos.1 to 3 and juvenile (Child conflict with law), in the presence of mediators, at Nunna Road, Kandrika

Village, Vijayawada Rural and seized part of stolen property in this case and white colour Maruti 800 car bearing No.AP 28 AK 1188 which is used at the time of commission of offence and sent accused No.1 to 3 to judicial remand. On 18.07.2019, at 11.00 hours, in the property identification parade conducted at Lalita Parameswari Temple compound, Atkuru, LW.1/B.Deva Phani Sai Kumar identified his part of stolen property before mediators LWs.7 and 8 under cover of mediators report. After completion of investigation LW.14/Y.Ravi Kumar, Inspector of

Police, CCS, East Division filed charge sheet.

3.The case was taken on file for the offence under Sections 457 and 380 IPC.

4.On appearance of the accused, copies of documents were furnished to them as required under Section 207 Cr.P.C. They were examined under Section 239 Cr.P.C., for which, they denied commission

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XI A.M.M, GVRM

of the offence. A charge under Section 457, 380 or 411 IPC against the accused had been framed, read over and explained to them in Telugu, for which, they pleaded not guilty and claimed to be tried.

5.During the course of trial, on behalf of the prosecution, PWs.1 to 5 were examined; and Exs.P1 to P7 and MOs.1 to 17 were marked. The evidence of LWs.2 to 6, 8, 12 and 14 was given up by the learned

Assistant Public Prosecutor. The evidence of LW.10 was closed, basing on the memo filed by the Prosecution. The evidence on prosecution side was accordingly closed. The accused were examined under Section 313

Cr.P.C., putting forth the incriminating material that appeared against them in the evidence of the prosecution witnesses. The accused denied their guilt. No oral or documentary evidence was adduced on behalf of the defence.

6.Heard. Perused the material on record.

7.Now the point for determination is whether the prosecution is able to prove the guilt of the accused beyond all reasonable doubt for the offence punishable under Sections 457, 380 or 411 IPC?

8.POINT:-

(i)As stated supra, in order to prove its case, the prosecution examined PWs.1 to 5 and got marked Exs.P1 to P7 and MOs.1 to 17.

PW.1 is the de facto complainant. PW.2 is scene observation mediator.

PW.3 is mediator for seizure of MOs.1 to 17 from the possession of the accused. PWs.4 and 5 are the Investigating Officers.

(ii)According to the prosecution, on 07.03.2019, at 09.30 hours, in the absence of PW.1 and his family members, some unknown offenders committed theft of articles belonging to PW.1 by breaking open the iron safe. On 17.05.2019, at 10.30 hours, at Nunna Road, Kandrika

Village, Vijayawada Rural, accused Nos.1 to 3 found in possession of stolen property and PW.5 seized part of stolen property in this case from

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XI A.M.M, GVRM

their possession, in the presence of mediators. As such, the accused are liable to be punished under Sections 457, 380 or 411 IPC.

(iii)Section 380 IPC deals with punishment for committing theft in dwelling house etc. Section 457 IPC prescribes punishment for lurking house-trespass by night, or house-breaking by night, in order to commit any offence and Section 411 IPC prescribes punishment for dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property.

(iv)Basing on Ex.P1, lodged by PW.1, on 14.03.2019, stating that in the absence of inmates of the house, articles - gold and silver, Apple

Mac Book Pro Laptop, bears head phones and Nikon camera, were stolen by some unknown persons, Ex.P5 was registered and investigated into.

During the course of investigation, PW.5 arrested the accused and recovered part of stolen property in the presence of PW.3 and LW.10.

PW.1 identified his stolen property/MOs.1 to 17 in the identification parade, in the presence of PW.3 and LW.10. However, PW.3, who is VRO, did not obtain written permission to act as mediator and did not support the case of the prosecution as to the identity of the accused and the articles seized/identified. He, in fact, admitted that similar articles were not brought and were not mixed with the articles to be identified.

Admittedly, different dates were mentioned at the top and after signature of PW.1 in Ex.P4. He was unable to say as to the number of crimes in respect of which Ex.P3 was drafted. Thus, the evidence of

PW.3 does not inspire confidence.

(v)PW.2, who is scene observation mediator, also did not support the case of the prosecution. During cross-examination by the learned Assistant Public Prosecutor, PW.2 denied the prosecution case.

The Investigation Officers were examined as PWs.4 and 5. They testified as to the investigation done by him after receiving Ex.P1 and registering

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XI A.M.M, GVRM

Ex.P5. It should be kept in mind that the report filed by the Investigation

Officer is only based on the material collected by him during the course of investigation, and he is not at all an eye witness. Therefore, the

Investigation Officer/s cannot give any evidence as to the actual occurrence of offence.

(vi)Thus, there is no evidence put-forth by the prosecution to establish that the accused by entering into the dwelling house committed theft so as to attract the ingredients of Sections 457 and 380

IPC or that the accused are having possession of stolen property so as to attract the ingredients of Section 411 IPC. Hence, under these circumstances, this Court holds that the prosecution failed to prove the guilt of the accused for the offence under Sections 457, 380 or 411 IPC, beyond reasonable doubt and as such, the accused are entitled for acquittal.

9. In the result, the accused are found not guilty of the offence under Sections 457, 380 or 411 IPC. Accordingly, they are acquitted under Section 248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as prescribed under Section 437-A Cr.P.C.

MOs.1 to 17, which were given to PW.1 towards interim custody as per orders in Crl.M.P.No.282 of 2019, dated 28.06.2019, shall hold good after expiry of appeal time.

Typed to my dictation by Stenographer Gr.III, corrected and pronounced by me in open Court, this the 17th day of February, 2023.

Sd/- V.Ganga Bhavani,

XI ADDL. METROPOLITAN MAGISTRATE,

GANNAVARAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant:-For accused:-

PW.1 : B.Deva Phani Sai Kumar -Nil- PW.2 : M.Simhachalam PW.3 : T.Shankar PW.4 : V.Venkatesh

C.C.No.74 of 2019,

XI A.M.M, GVRM

PW.5 : M.U.N.Sivaji Rao

DOCUMENTS MARKED:

For Complainant:- For accused

Ex.P1: Report of PW.1, dated 14.03.2019. -Nil- Ex.P2: Signature of PW.2 on scene observation report. Ex.P3: Mediators report, dated 17.05.2019. Ex.P4: Property identification report. Ex.P5: FIR. Ex.P6: Scene observation report. Ex.P7: Rough sketch of the scene of offence.

MATERIAL OBJECTS MARKED:

Mo.1: Gold ear rings - 2 pairs. Mo.2: Gold Finger ring - 1. Mo.3: Cash of Rs.15,000/-. Mo.4: Silver plates -6. Mo.5: Silver Glasses - 10. Mo.6: Tambulam Pallem -1. Mo.7: Kalasam Chambu. Mo.8: Harathy stand - 1. Mo.9: Akshaya Patra -1. Mo.10: Kumkuma Bharani -1. Mo.11: Annaprasanna Ginney -1. Mo.12: Agarabathi Stand -1. Mo.13: Pasupukumkuma stand -1. Mo.14: Mudi Vendi Pusalu. Mo.15: Apple Mac Book Pro Laptop. Mo.16: Bears head phones. Mo.17: Nikon complix camera

Sd/- V.Ganga Bhavani,

XI ADDL. METROPOLITAN MAGISTRATE,

GANNAVARAM.

1 XI AMM, Gannavaram, C.C.No.135 of 2022

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-XI

ADDL. METROPOLITAN MAGISTRATE, GANNAVARAM

PRESENT: Smt V. Ganga Bhavani,

XI. Addl. Metropolitan Magistrate, Gannavaram

Monday, this the 20th day of February, 2023

C.C. No.135 of 2022

Between:

State, represented by Sub Inspector of Police, Atkuru Police Station. … Complainant

And

Gunta Lakshmana Rao, S/o Sanyasi, Age 40 years, D.No.3-32, A.Sitharamapuram, Krishna District. Driver of Tata DCM bearing No.AP 16 TJ 2366.

... Accused

This case is coming on this day for final hearing before me and upon perusing the entire material available on record and upon hearing the arguments of Learned APP for the Prosecution and of Sri. A.Someswara Rao, Advocate for accused and having stood over for consideration till this day, this Court delivered the following;

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

The Sub-Inspector of Police, Atkuru Police Station filed charge sheet against the accused in Crime No.112 of 2022 of Atkuru Police Station for the offence punishable under Section 304-A IPC and Section 182 of the

Motor Vehicles Act, 1988 (for short ‘the Act’).

2.The case of the prosecution, in brief, is as follows:-

(i)LW.1/Chittipothula Venkateswara Rao is resident of Indupalli

Village, Unguturu Mandal, Krishna District. The deceased/Chittipothula

Gopi Sai, S/o Ranga Rao, is his brother's son. On 29.06.2022, morning, the deceased was proceeding from Telaprolu to Unguturu on his CD-100 motor cycle bearing No. AP 16 FC 7573, and at about 10.30 hours, when he reached opposite Krishna cardboard company, the accused being driver of

Tata DCM van bearing No.AP 16 TJ 2366, drove his vehicle at a high speed in a rash and negligent manner without blowing horn and dashed against the deceased, resulting the deceased receiving grievous injury to his head.

The passersby shifted him to GGH, Vijayawada in 108 ambulance and later 2 XI AMM, Gannavaram, C.C.No.135 of 2022 he was shifted to Anu Nuero Hospital for better treatment. On 30.06.2022, at about 03.28 hours, the deceased died while undergoing treatment.

(ii)In this connection, basing on the statement of LW.1 recorded by LW.14/H.C., LW.15/H.C. initially registered a case in Crime No.112 of 2022 under Section 337 IPC on 29.06.2022 at 15.00 hours and took up investigation. During the course of investigation, LW.15/H.C. visited Anu

Nuero Hospital, Vijayawada, examined the complainant and recorded his statement. He visited the scene of offence, prepared rough sketch, secured the eye witnesses, examined them as LWs.2 and 3 and recorded their statements. On 30.06.2022, LW.15/H.C. received death intimation of the deceased in this case from Anu Nuero Hospital, Vijayawada and he re- registered the case in Crime No.112 of 2022 under Section 304-A IPC. He held inquest over the dead body of the deceased with the help of panchayatdars (LWs.9 to 11) and examined and recorded the statements of blood relatives and witnesses under Section 161 Cr.P.C. He sent the dead body for PM examination.

(iii)LW.12/Medical Officer, who conducted autopsy of the deceased, issued PMC and opined that the deceased died due to head injury. On 04.07.2022, LW.15/H.C. served notice under Section 41-A Cr.P.C to the accused. LW.9/MVI, who tested the crime vehicle, issued Accident report opining that the accident occurred not due to any mechanical defect of the vehicle. After receiving MVI report, PMC and on completion of investigation, LW.16/SI of Police filed charge sheet under Section 304-A IPC and Section 182 of the Act.

3.The case was taken on file for the offence under Section 304-A IPC and Section 182 of the Act.

4.On appearance of the accused, copies of documents were furnished to him as required under Section 207 Cr.P.C. He was examined under

Section 251 Cr.P.C., and the accusation against him under Section 304-A 3 XI AMM, Gannavaram, C.C.No.135 of 2022

IPC and Section 182 of the Act was read over and explained to him in

Telugu, for which, he pleaded not guilty and claimed to be tried.

5.During the course of trial, on behalf of the prosecution, PWs.1 to 6 were examined; and Exs.P1 to P15 were marked. The evidence of LWs.5 to 14 was given up by the learned Assistant Public Prosecutor. The evidence on prosecution side was accordingly closed. The accused was examined under Section 313 Cr.P.C., putting forth the incriminating material that appeared against him in the evidence of the prosecution witnesses. The accused denied his guilt. No oral or documentary evidence was adduced on behalf of the defence.

6.Heard. Perused the material on record.

7.Now the point for determination is whether the prosecution is able to prove the guilt of the accused beyond all reasonable doubt for the offence punishable under Section 304-A IPC and Section 182 of the Act?

8.POINT:-

(i)As stated supra, in support of its case, the prosecution examined PWs.1 to 6. PW.1 is the de facto complainant. PWs.2 and 3 are the eye witnesses. PW.4 is the father of the deceased. PWs.5 and 6 are the

Investigating Officers.

(ii)It is the case of the prosecution that due to the rash and negligent driving on the part of the accused, the accident occurred on 29.06.2022, in which, the deceased died. From the evidence of PW.1 and

Exs.P6, P7, P8, P10, P11, P12 and P15, it is clear that the deceased died in the accident occurred on 29.06.2022. But, the burden is on the prosecution to prove that the accused is the driver of the crime vehicle on that day and rash or negligent act/driving on his part, which is sina qua non to constitute an offence under Section 304-A IPC.

(iii)PW.1, who is the de facto complainant deposed that on 29.06.2022, while he was present in his house, somebody called him 4 XI AMM, Gannavaram, C.C.No.135 of 2022 through phone and informed him that the deceased met with an accident near Telaprolu Village and was shifted to GGH, Vijayawada. Then, he along with PW.2 and LWs.5 to 8 rushed to the GGH, Vijayawada and found the deceased with severe injuries. On 30.06.2022, the deceased succumbed to injuries. The police came to GGH, Vijayawada and obtained his signature on some written papers. But, he does not know the contents therein.

PWs.2 and 3, who are stated to have witnessed the accident, did not support the case of the prosecution. PW.4, who is the father of the deceased, also did not support the case of the prosecution. During cross- examination by the learned Assistant Public Prosecutor, PWs.1 to 4 denied the prosecution case and so also, having stated before the police as in

Exs.P2 to P5/statements under Section 161 Cr.P.C.

(iv)PWs.1 to 4 did not support the case of the prosecution. In view of the hostility of the material witnesses, the prosecution gave up the evidence of other independent witnesses cited in the memo of evidence.

The Investigation Officers were examined as PWs.5 and 6, but the material witnesses have not corroborated their evidence and did not support the case of the prosecution. Though Exs.P2 to 5/Section 161 Cr.P.C., statements of PWs.1 to 4, were confronted to PW.6 and the learned

Assistant Public Prosecutor was permitted to put questions to them in the nature of cross-examination, nothing material could be elicited from them in support of the case of the prosecution. PW.6 has testified as to the investigation done by him after receiving Ex.P7. It should be kept in mind that the report filed by the Investigation Officer is only based on the material collected by him during the course of investigation, and he is not at all an eye witness. Therefore, the Investigation Officer/s cannot give any evidence as to the actual occurrence of offence.

(v)Thus, there is no evidence put-forth by the prosecution to establish that the accused was the driver of the crime vehicle on the date 5 XI AMM, Gannavaram, C.C.No.135 of 2022 of accident and his rash or negligent driving caused death of the deceased. Likewise, no material or evidence has been placed against the accused so as to attract the offence under Section 182 of the Act. Hence, under these circumstances, this Court holds that the prosecution failed to prove the guilt of the accused for the offence under Section 304-A IPC and

Section 182 of the Act, beyond reasonable doubt. As such, the accused is entitled for acquittal.

9.In the result, the accused is found not guilty of the offence under under Section 304-A IPC and Section 182 of the Act. He is, accordingly, acquitted under Section 255(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as prescribed under Section 437-A

Cr.P.C.

Typed to my dictation to Stenographer Gr.III, corrected and pronounced by me in the open court, this the 20th day of February, 2023.

Sd/- V.Ganga Bhavani,

XI ADDL. METROPOLITAN MAGISTRATE,

GANNAVARAM.

Appendix Of Evidence

Witnesses Examined

PROSECUTION: DEFENCE

PW.1: Ch.Venkateswara Rao - None – PW.2: D.Rambabu PW.3: M.Seshu PW.4: Ch.Ranga Rao PW.5: Ch.Kishore Kumar PW.6: B.Kishore Babu

DOCUMENTS MARKED

FOR PROSECUTION FOR DEFENCE

Ex.P1: Signature of PW.1 on the statement, dt.29.06.2022. - Nil - Ex.P2: Sec.161 Cr.P.C. statement of PW.1. Ex.P3: Sec.161 Cr.P.C. statement of PW.2. Ex.P4: Sec.161 Cr.P.C. statement of PW.3. Ex.P5: Sec.161 Cr.P.C. statement of PW.4. Ex.P6: Hospital intimation. Ex.P7: Statement of PW.1. Ex.P8: FIR. Ex.P9: Rough sketch of the scene of offence.

6 XI AMM, Gannavaram, C.C.No.135 of 2022

Ex.P10: Death intimation. Ex.P11: Altered FIR. Ex.P12: Inquest report. Ex.P13: Scene observation report. Ex.P14: MVI Report. Ex.P15: Postmortem report.

MATERIAL OBJECTS

-Nil -

Sd/- V.Ganga Bhavani,

XI ADDL. METROPOLITAN MAGISTRATE,

GANNAVARAM.