vacant

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IN THE HONOURABLE COURT OF II ADDITIONAL DISTRICT AND

SESSIONS JUDGE, FAST TRACK COURT, SRIKAKULAM

PRESENT: SRI V.Venkateswara Rao, SPL.JUDGE FOR TRIAL OF CASES UNDER SCs & STs (POA) ACT, 1989-CUM-

ADDL.DISTRICT & SESSIONS JUDGE, SRIKAKULAM

FAC : II Addl. District & Sessions Judge, FTC- Srikakulam Tuesday, the 25th day of November, 2014.

CRIMINAL APPEAL No. 14/2013

(S.C.No.98/2011 on the file of Addl. Assistant Sessions Judge, Srikakulam) .

Between:

1. Ponnana Ramana Murthy son of Surappadu, 32 years, Re/of Sundarapuram village in Narasannapeta mandal. (A1)

2. Ponnana Surappadu son of late Simmayya, 68 years, rest do. ( A2)

…..Appellant/Accused

And:

State represented by its Public Prosecutor, Srikakulam.

…Respondent/Complainant

This Criminal Appeal coming on 14-11-2014 before me for final hearing in the presence of Sri. T,.Radha Krishna, Advocate for the Appellant/Accused and the learned Addl. Public Prosecutor for the respondent/complainant, and having stood over for consideration, this Court makes the following:

J U D G M E N T

1)This Criminal appeal is preferred under section 374 of Code of

Criminal Procedure against the appellant/accused in Sessions Case

No.98/2011 on the file of Additional Assistant Sessions Judge, Srikakulam

dt. 6.2.2-013 challenging conviction under section 307,326 and 448 of

Indian Penal Code against A1/Ponnana Ramana Murthy and conviction under section 307 read with 114 and 448 of Indian Penal Code against

A2/P.Surappadu.

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2) The brief facts of the case of the prosecution are as follows:-

The accused/ Ponnana Ramanamurthy/A1 and Ponnana

Surappadu/A2 and PW1/Panga Nagabhushana Rao are residents of same village. On 8.7.2010 in the evening hours, the cow of accused grazed in the land of PW1/Nagabhushanarao damaging the crop. PW2/Panga

Mallesu having noticed the same, drove the cow to the house of accused and chasticised them. During altercation, PW2/Panga Mallesu slapped A1 and went away. On the same day night at about 9 .30 p.m. when PW2 slept on the caught in the verandah of his house. Both the accused trespassed into the house of PW1 armed with knife at the instigation of A2 to kill PW2 , A1 hacked PW2 with a knife on his neck with an intention to to kill him thereby caused severe bleeding injury. Having heard the words of A2, PW1/Nagabhushana Rao and PW3/Panga Nandesu rushed there and observed both the accused and witnessed the attack of accused on

PW2. Some of the villagers in the same street also noticed the accused going away after the incident. After attack, A1 threw away the blood stained knife in the vacant land of Sadagana Sriramulu. PW1,PW3 and others shifted PW2 in Magic van to the RIMS general hospital and later he was referred to K.G.H., Visakhapatnam. On the report given; by PW1, the

Head Constable registered a case in crime No. 84/2010 under Section 307 read with 34 of Indian Penal Code. The Head constable also examined the witnesses inspected the scene of offence, seized material objects including knife from the spot. The material objects were sent for analysis by the police . Subsequently, investigation was taken over by Sub

Inspector of Police and charge sheet was filed after arrest of the accused under Sections 448,307,324 read with 34 of Indian Penal Code against the accused.

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3. After filing of the charge sheet cognizance was taken by the learned Judicial Magistrate of 1st Class, Narasannapeta committed the case to the Sessions Court in P.R.C. 1/2011 which was numbered as S.C.

98/2011.

04.After appearance of the accused , they engaged advocate of their choice . On hearing the defence and prosecution, charges under

Sections 448 read with 34 , 307 and 326 of Indian Penal Code have been framed against A1 , charges under sections 448 r/w 34 , 307 r/w 114 of the

Indian Penal Code have been framed against A2, the charges were read over and explained to the accused in Telugu and they denied the same by pleading not guilty and claimed to be tried.

05. To bring home the guilt of the accused, the prosecution examined PWs 1 to PWs 19 and marked Ex.P1 to Ex.P15 and MO1 to

MO5 on its behalf. On behalf of defence, Ex.D1 and Ex.D2 contradictions in Sec.161 Cr.P.C. statements of PW3 and PW12 were marked, but no oral evidence was adduced.

06. After assessing the evidence adduced by the prosecution, the leanred Additional Assistant Sessions Judge, Srikakulam found A1 guilty for the offences under Sections 448,307 and 326 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of five years and shall also pay a fine of Rs.1000/- in default of payment of fine, to under go simple imprisonment for a period of three months for the offence under section 307 of IPC. A1 further sentenced to undergo rigorous imprisonment for a period of three years and shall also pay a fine of

Rs.1000/- in default of payment of fine, A1 is sentenced to undergo simple imprisonment for a period of three months for the offence under section 326 of Indian Penal Code, A1 is further sentenced to undergo rigorous 4 imprisonment for a period of six months for the offence under section 448 of Indian Penal Code ;

A2 is sentenced to undergo rigorous imprisonment for a period of five years and shall also pay a fine of Rs.1000/- in default of payment of fine, A2 is sentenced to undergo simple imprisonment for a period of 3 months for the offence under section 307 read with 114 of Indian Penal

Code ; and A2 is further sentenced to undergo rigorous imprisonment for a period of six months for the offence punishable under section 448 of Indian

Penal Code ;

07. Aggrieved by the said conviction and sentence imposed on the accused, the present appeal is preferred by the appellants who are accused claiming that the judgment of the lower is against law, weight of evidence and probabilities of the case claiming that the Lower Court erred in appreciation of evidence while assessing the evidence of PW1 to PW19 and wrongly convicted the accused. The lower court failed to see that there is no scope for prosecution witnesses to identify the accused as the incident took place during night time. The lower court failed to see that there was lot of delay in recording evidence of injured PW2 which is fatal to the case of the prosecution. The evidence of PW3 and PW15 is self contradictory and it is not at all acceptable. The prosecution witnesses are enemical witnesses and they developed their version from time to time and their evidence cannot be accepted.

08. Arguments of both sides heard

09. Point for determination :- ` 1) Whether the prosecution is able to prove the charges under sections 307,.326, 448 of IPC against A1 beyond all reasonable doubt?

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2) Whether the prosecution is able to prove the charge under

Section 307 r/w 114 and sec. 448 of the Indian Penal Code against A2 beyond all reasonable doubt?

10. Points-

The learned advocate for the appellants vehemently argued that the prosecution miserably failed to prove any of the charges against both the accused and the evidence of PW1 to PW3 and their family members is self-serving, interested in nature and inconsistent as there is no scope of identifying the accused in the darkness by any of the prosecution witnesses. It is pertinent to see that A2 is a very old man who cannot run away from the scene of offence before he was caught by family members of injured and the presence of A2 is very much doubtful.

The seizure of the crime weapon is also very much doubtful . In this case,

A2 had several enemies and their family is very influential in the village and so the accused are entitled for acquittal.

11. The learned Additional Public Prosecutor vehemently argued that the lower court assessed the evidence of prosecution witnesses rightly and came to a conclusion that the prosecution proved all charges framed against the accused beyond reasonable doubt. There are no material discrepancies in the evidence of prosecution witnesses to disbelieve their evidence. The witnesses identified the accused in the lights and they are acquainted to the witnesses. There are no grounds to interfere with the judgment of the lower court and appeal is liable to be dismissed.

12. The burden of proof is on the prosecution to prove the case against the appellants/accused under section 448,307 and 326 of Indian

Penal Code against A1 and charge Under section 448, 307 r/w 114 of

Indian Penal Code against A2.

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13. PW2/ Panga Mallesu injured in this case who is father of

PW1/Panga Nagabhushana Rao/defacto complainant who gave Ex.P1 report. PW3/Panga Nandesu is younger son of PW2, PW4 /Panga Sarada and PW5/Panga Kalpana are daughter-in-law’s of PW2. They are all family members of PW2 injured and interested witnesses. Their evidence has to be assessed taking into consideration of the circumstantial evidence. PW6/Palli Thaviti Naidu, PW9/Yalla Mallesu not supported the case of the prosecution and they are declared as hostile and their earlier statements marked as Ex.P2 and Ex.P3. PW7/Menda Sudarsana Rao and

PW8/Muddada Prasada Rao are neighbours , but not eye witnesses to the incident. PW10/Dandu Mallesu corroborated the evidence of PW1 to PW5

PW11/Mavuduri Srinivasa Rao is driver of van in which injured/PW2 was shifted to hospital after the incident and so he is not much material witness to prove the case against the accused and their participation in the crime. So also, PW12/Bantupalli Krishna Rao photographer who took photographs of the scene of offence and issued Ex.P4/photos and Ex.P5

Compact Disc for the photos. PW13/Reddi Dalappala Naidu and

PW14/Panga Ramarao are mediators for the proceedings of observation of scene of offence and arrest of accused. PW16/Dr.Aravind who issued wound certificate /Ex.P10 to PW2. PW17 to PW19 are Head constable and

Sub Inspectors of Police who conducted investigation.

14) . The incident took place at the house of PW1 to PW5 while PW2 /Panga Mallesu injured was sleeping outside , by that time PW1 and PW3 were watching T.V. in the house and PW4 and PW5 were attending their work inside the house. The incident took place on 8.7.2010 in the night at about 9.30 p.m. A1/Ponnana Ramana murthy is 7 son of A2/Ponnana Surappadu who is a old man of 66 years . The statement of Pw2 could not be recorded according to Investigation Officer immediately as he was unconscious and his statement was recorded after several days after recording the statement of other witnesses. The first information report was registered as per the report given by PW1 in the intervening night of 8/9.7.2010 at 12.30 a.m. after shifting PW2 to the hospital.

15) PW1 deposed that prior to the incident, they informed the accused about their cattle trespass into the fields of PW1 damaging their crop, on the date of incident ie 8.7.2010 also the cow of accused spoiled their crops by entering into their fields . His father took that cow at 5.30 p.m. to the house of the accused and handed over the same to the accused to tie the cow properly and returned to his house. On the same day at about 9.30 p.m. while PW2 was slept in the verandah of their house after dinner, PW1 was watching T.V. inside the house along with Pw3 and

PW4 and PW5 were attending household works of cleaning utensils, he heard shouting of A2 to kill his father/PW2 “ Nariki Champandi” . Then he along with PW3 came out of the house and found A1 cutting throat of his father with a big knife knife. His father/PW2 sustained bleeding neck injury and raised hue and cry and after hearing their cries, neighbours gathered there. They shifted PW2 to the hospital at Narasannapeta and he gave report/Ex.P1 in police station . After giving first aid, his father was referred to RIMS hospital, Srikakulam and later to K.G.H., Visakhapatnam. He identified the knife as MO 1which was used by A1. .

16. In his further cross examination, he stated that by the time they reached near PW2/their father both accused ran away and they did not made any effort to catch them. He also stated that his father did not 8 woke up when A2 shouted A1 to kill him. He denied the suggestion that, he did not state before the police that A2 shouted to A1 to kill PW2 as well as in his Ex.P1. In Ex.P1 it was not mentioned that, A2 shouted to A1 to kill PW2. But it was simply mentioned that A2 told A1 to hack PW2. Thus they attributed overt acts to A2 old man father of A1 that abetted A1 to kill

PW2 by coming to the house of PW1. The version of PW1 that both the accused ran away when they came out after hearing cries is also doubtful.

When it comes to A2 who is very old man of more than 65 years who cannot run quickly to escape from PW1 and PW3 who are younger to him.

There is a delay of 3 hours in giving report in police station after the incident. By that time, PW1,PW3 to PW5 had no occasion to hear from

Pw2 regarding the incident as he was unconscious. The incident took place in the night time. The very word used by Pw1 that A2 uttered to A1 “Nariki Champandi” is most unnatural and improbable which is not expected to use in a quarrel as if he is addressing several people instead of addressing his son in a singular person. Even according to PW1 to

PW5, A2 was not attacked PW2, but only overt acts attributed to him is abetting A1 to kill PW2. This version of the prosecution witnesses appear to be doubtful so far as A2 is concerned.

17) PW2/.Panga Mallesu father of PW1 injured stated that, he was attacked by A1 at 9.30 p.m. when he slept in the verandah at his house.

At that time, A2 shouted instigating A1 to kill him as “Nariki Champandi”.

He was observing both of them and then A1 brought knife and hacked oin his neck causing bleeding injury. This version of PW2 is inconsistent and improbable. He should not have kept quite when A1 was about to hack him, if he woke up by the time of attack. PW1 categorically stated that his 9 father did not wake up when A2 shouted to A1 to kill PW2. this fact only indicates that PW2 was attacked while he was sleeping and he had no idea about approaching assailants, otherwise he may not have kept quite without resisting the attack. .

18) PW2 further stated that, A1 attacked him as he slapped A1 due to grazing of their fields by the cow of A1. This fact was not at all revealed by PW1 in Ex.P1 but nobody will try to call a person for a simple dispute of cattle grazing. The facts elicited from PW2 go to show that the reason for attacking PW2 by A1 is slapping of A1 by PW2 by going to his house in the presence of his family members for cattle trespass of his cow without his knowledge. It is a grave and sudden provocation to A1 against

PW2 as PW2 slapped him in the presence of all his family members without his fault. Here PW2 also exceeded his limits by slapping A1 by going to his house which is not expected from a old man with matured mind. The evidence on record reveals that PW2 is a highhanded person.

19) PW3/ Panga Nandesu, who repeated the same version of

Pw1 and PW2. But, in his cross examination he stated that he does not hear the cries of PW2. He categorically stated that he did not state before police that “ himself , PW1 and other family members came out from their house after hearing cries of his father and accused” that was marked as

Ex.D1 contradiction. This contradiction and the evidence of PW3 creates lot of suspicion about A2 shouting A1 to kill PW2 . Because PW3 was watching T.V. in the room along with A1 , if A2 shouted loudly in the

Varandah he could have heard those words of instigating A1 against

PW2 along with Pw1 also. This contradiction of not hearing these words by PW3 creates lot of suspicion about the presence of A2 .It is most improbable for PW1 and PW3 to hear those words from the verandah.

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The interested evidence of PW1 about the overt acts attributed to A2 to implicate him in the crime is doubtful.

20) PW4/.Panga Sarada, PW5/Panga Kalpana who were daughter in laws of PW2. Both of them categorically stated that they did not see A1 attacking PW2 , when they came out of the house. But they were informed about the same by Pw1 and PW3 who also informed other villagers about the incident. There is nothing in their evidence against both the accused.

21) PW6/Palli Thaviti Naidu, is a neighbour of PW1 to PW5, whose house is situated by the side of their house. He is a crucial witness but declared hostile. On the date of incident in the night he heard hue and cries and then he rushed to the scene of offence and found PW2 with bleeding injury on his neck. Then PW1 and his family members informed him and other villagers that A1 cut throat of PW2 and he did not see any of the accused while running away. He shifted PW2 to the hospital along with his sons and other villagers. This witness was declared as hostile for not speaking about the presence of the accused at the scene when he arrived. It is also pertinent to note that, none of the family members of the

PW2 immediately after the incident informed him about the presence of

A2. But they only informed him that A1 cut throat of PW2 leading to inference that A2 was not at all participated in the incident as alleged by

PW1. PW6 also stated that after the incident the accused left the village and shifted to Jammu village. Even though this witness declared hostile, this version of PW6 who is immediate neighbour of PW1 to PW5 who reached the scene immediately clearly go to show that there was no role of

A2 in the incident much less he instigated A1 but he was implicated by

PW1 to PW3 due to their enemity.

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22) PW7/Menda Sudarsana Rao, is a neighbour of accused. On 8.7.2010 at about 5.30 p.m. or 6 p.m. PW2 brought the cow of accused to their house and warned them . There was an altercation between PW2 and A1 and then PW2 slapped A1. He pacified PW2 and sent him away as to why he is quarrelling with accused. His house is also nearer to the house of PW2 separated by 4 or 5 houses. He further stated that, in that night at about 9.30 p.m. or 10 p.m, he heard cries from the house of PW2 and rushed there and noticed PW2 with bleeding neck injury. Then he was informed by PW1 and PW3 that A1 and A2 beat his father with knife.

PW7 was not informed that A2 instigated A1 to attack PW2. It is pertinent to note that, only one injury was found on PW2 which was attributed to A1 . In his cross examination, it is elicited that, A1 did not resist when PW2 slapped him. In his further cross examination, he categorically stated that all the villagers are afraid of PW2 and his family members . There are several criminal cases against PW2 pending in Kotabommali court. He also stated that after the incident, both the accused left the village and shifted to Jammu village being afraid of family members of PW2. These facts elicited from PW7 clearly goes to show that PW2 who is a old man went to the house of the accused in the evening and created big scene and there he slapped A1 in the altercation which is main cause for A1 to attack him in the night .The evidence of this witness further reveal that

PW2 is a highhanded person facing criminal charges in criminal cases and everybody afraid of their family members in the village that might be one of the reason for A1 not to react immediately against him though PW2 slapped in front of his family members at his house highhandedly without his fault.

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23) Evidence of PW8/Muddada Prasada Rao, is not that much important in this case except that he found blood stained knife/MO1on the next day morning in the site of Sadagana Sriramulu and informed the same to the family members of PW2.

24) The evidence of PW10/Dandu Mallesu that, he saw both the accused A1 and A2 running away towards East from the house of PW2 after hearing cries, is not supported by other neighbours. It is suggested that, he is working under PW2. But his version that when he reached the house of PW2, none of the villagers present at the scene of offence does not appear to be probable, as the immediate neighbour /PW6 deposed that he reached the scene immediately. Therefore, his evidence cannot be given much weight in this case that he saw both the accused running away from the scene.

25) The evidence of PW13.Reddi Dalappala Naidu in whose presence police observed the scene of offence/Ex.P6 and seized

MO1/knife under the cover of Ex.P7 . He was also present at the time of seizure of blood stained clothes of injured in the hospital under Ex.P8. He also stated that, police arrested A1 in his presence on 11.7.2010 at 10.30 a.m. under cover of Ex.P9 report and seized polyester shirt/MO5 in pursuance of his disclosure statement. In his cross examination, he stated that police seized MO5 which was worn by A1 when he was arrested. This version is also corroborated by the investigation Officer who arrested A1.

But it is not much useful to connect the accused with the crime , because none of these witnesses stated that there are any blood stains on his shirt.

But the evidence of PW1 to PW3 goes to show that it was A1 who attacked 13

PW2 as a retaliation of slapping him at his house having unable to bear that insult, he attacked pW2 during night time within few hours.

The essential ingredients to prove the offence under section 307 of

Indian Penal Code are as follows :

i) that the accused did not act ; ii) That the act was done with intention or knowledge and under such circumstances to cause a bodily injury as the accused knew to be likely to cause death or that such bodily injury was in the ordinary course of nature to cause death, or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death ;

and

iii) that the accused had no excuse for incurring the risk of causing such death or injury

26) Out of the above essential ingredients the most important ingredient intention to murder to attract the offence under section 307 of

Indian Penal Code is essential to prove the charge under section 307 of the Indian Penal Code but such an intention is not proved in this case by the prosecution to attract the offence under section 307 of Indian Penal

Code . The act of A1 in attacking PW2 is in response to grave and sudden provocation given by PW2 by slapping him at his house in the evening .He attacked PW only with a single blow, but did not further attack him .

Though none of the family members of PW2 obstructed him in further attacking PW2 . It indicates that A1 has no intention to murder PW2 nor he has any intention to kill PW2 to attract charge under Section 308 of Indian

Penal Code- an attempt to commit culpable homicide. Therefore, conviction of A1 under section 307 of Indian Penal Code is liable to be set 14 aside . In this case, prosecution miserably failed to prove offence under section 307 r/w 114 of the Indian Penal Code against A2. Because his presence at the time of offence is very much doubtful and the same is set up by PW1 to PW3 because of their enmity against A1 due to the attack on

PW2 by A1 and therefore, the charge under section 448 of Indian Penal

Code is also not proved against A2.

27) Now, it is to be considered whether the offence under section 326 of Indian Penal Code is attracted in this case. The Section 326 of

Indian Penal Code, reads as follows:

Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing, or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 326 of Indian Penal Code contemplates causing hurt by dangerous weapons or means when it is not attracted with offence under section 335 of Indian Penal Code causing grievous hurt with dangerous weapon under a sudden and grave provocation .

The essential ingredients of section 335 of Indian Penal Code are as follows :

i) that there was some grave and sudden provocation by one to the accused ; 15 ii) that the accused on such provocation voluntarily caused grievous hurt to another person ; iii) That while causing such hurt, the accused neither intended nor knew that his act was likely to cause grievous to any other person other than the person who gave provocation ;

28) In this case, the evidence of PW2 and neighbour of A1 i.e., PW7 clearly go to show that the attack took place on PW2 due to his sudden provocation given to A1 by slapping him at his house in the evening. Therefore, the offence under section 335 Indian Penal Code is only attracted in this case, but not charge under section 326 of I.P.C. as observed by the learned Additional Assistant Sessions Judge, Srikakulam.

Therefore, sentence has to be modified from Sec. 326 of I.P.C. to sec. 335 of Indian Penal Code in the above circumstances.

29) In this case, A1 and his family made to left the village due to fear of attack by the family members of PW2 who are more influential in the village and there is no previous involvement of A1 in any crimes and he is young in age . Sentence prescribed under section 335of Indian Penal

Code is 4 years or with fine or with both. He is not entitled to the benefits of Probation of Offenders Act taking into consideration of grave nature of the offence. Hence, he is sentenced to undergo rigorous imprisonment for two years for the offence under section 335 of the Indian Penal Code and to pay fine of Rs.2000/- in default of payment of fine to suffer simple imprisonment for six months. The conviction of A1under Section 448 of

Indian Penal Code for trespassing into the house of PW2 for attacking him is hereby confirmed and the appeal allowed partly. Point answered accordingly.

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30) In the result, the appeal is partly allowed the conviction and sentence imposed against A2 for the offence under section 307 r/w 114 and Section 448 of Indian Penal Code are hereby set aside and A2 is acquitted for both the charges.

A1 is found not guilty for the offence under Section 307 of Indian

Penal Code and sentence Imposed against him under that section is hereby set aside. The conviction and sentence imposed against A1 under section 326 of Indian Penal Code is modified to offence under section 335 of Indian Penal Code and A1 is sentenced to under go rigorous imprisonment for two years for the offence under section 335 of Indian

Penal Code and to pay a fine of Rs.2000/- in default of payment of fine to suffer simple imprisonment for Six months. The sentence imposed against

A1 under section 448 of Indian Penal Code to undergo rigorous imprisonment for six months is confirmed. Both the sentences shall run concurrently The fine amount paid by A1 in the lower court if any shall be adjusted to the fine payable by him under section 335 of Indian Penal

Code. The fine amount paid by A2 if any shall be returned to A2 after expiry of appeal time. The MOs 1 to Mos 5 shall be destroyed after expiry of appeal time. Set off granted.

Dictated to the Personal Assistant, Spl. Judge’s Court for trial of cases

under SCs & STs (POA) Act-cum-Addl.Dist. Judge, Srikakulam, transcribed by him, corrected and pronounced by me in open Court, this the 25th day of November,2014.

Special Judge for trial of cases under

SCs & STs (POA) Act-cum-Addl. Dist. and Sessions Judge, Srikakulam. FAC : II Addl. District & Sessions Judge, FTC- Srikakulam

Copy to the Additional Assistant Sessions Judge, Srikakulam, along with LCRecord.

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IN THE HONOURABLE COURT OF II ADDITIONAL DISTRICT AND SESSIONS

JUDGE, (FAST TRACK COURT) SRIKAKULAM

PRESENT: SRI V.Venkateswara Rao, SPL.JUDGE FOR TRIAL OF CASES UNDER SCs & STs (POA) ACT, 1989-CUM-

ADDL.DISTRICT & SESSIONS JUDGE, SRIKAKULAM

FAC : II Addl. District & Sessions Judge, FTC- Srikakulam

Tuesday, the 25th day of November, 2014.

CRIMINAL APPEAL No. 14/2013

(C.C.No.98/2011 on the file of Addl. Assistant Sessions Judge, Srikakulam) .

1)From what Court the appeal is Additional Assistant Sessions Judge’s preferred Court, Srikakulam.

2) Number of the case in lower Court: S.C. 98/2011

3) Number of appeal: Criminal Appeal No.14/2013

4) Name of the appellants/accused 1. Ponnana Ramana Murthy son of Surappadu, 32 years, Re/of Sundarapuram village in Narasannapeta mandal. (A1)

2. Ponnana Surappadu son of late Simmayya, 68 years, rest do. ( A2) 5)The conviction and sentence under In the result, A1 found guilty for the which it was imposed offences under Sections 448,307 and 326 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of five years and shall also pay a fine of Rs.1000/- in default of payment of fine, to under go simple imprisonment for a period of three months for the offence under section 307 of IPC . A1 further sentenced to undergo rigorous imprisonment for a period of three years and shall also pay a fine of Rs.1000/- in default of payment of fine , A1 is sentenced to undergo simple imprisonment for a period of three months for the offence under section 326 of Indian Penal Code, A1 is further sentenced to undergo 18 rigorous imprisonment for a period of six months for the offence under section 448 of Indian Penal Code ; A2 is sentenced to undergo rigorous imprisonment for a period of five years and shall also pay a fine of Rs.1000/- in default of payment of fine, A2 is sentenced to undergo simple imprisonment for a period of 3 months for the offence under section 307 read with 114 of Indian Penal Code ; and A2 is further sentenced to undergo rigorous imprisonment for a period of six months for the offence punishable under section 448 of Indian Penal Code ; 6)Whether confirmed, modified or : Reversed, if modified or modification: MODIFIED

In the result, the appeal is partly allowed the conviction and sentence imposed against A2 for the offence under section 307 r/w 114 and Section 448 of Indian Penal Code are hereby set aside and A2 is acquitted for both the charges. A1 is found not guilty for the offence under Section 307 of Indian Penal Code and sentenced Imposed against him under that section is hereby set aside. The conviction and sentence imposed against A1 under section 326 of Indian Penal Code is modified to offence under section 335 of Indian Penal Code and A1 is sentenced to under go rigorous imprisonment for two years for the offence under section 335 of Indian Penal Code and to pay a fine of Rs.2000/- in default of payment of fine to suffer simple imprisonment for Six months. The sentence imposed against A1 under section 448 of Indian Penal Code to undergo rigorous imprisonment for six months is confirmed. Both the sentences shall run concurrently The fine amount paid by A1 in the lower court if any shall be adjusted to the fine payable by him under section 335 of Indian Penal Code.

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The fine amount paid by A2 if any shall be returned to A2 after expiry of appeal time. The MOs 1 to Mos 5 shall be destroyed after expiry of appeal time. Set off granted.

7)Date of presentation: : 07.02.2013 8)Date of filing: : 08.02.2013 9)Notice issued by the Court to : 11.02.2013 Appellant/accused 10)Bail bond if the appellant has : On bail been let out on bail :

11)Date of order to appear : 03.04.2013 12)Date of hearing : 14.11.2014 13)Date of Judgment : 25-11-2014

Special Judge for trial of cases under

SCs & STs (POA) Act-cum-Addl. Dist. and Sessions Judge, Srikakulam. FAC : II Addl. District & Sessions Judge, FTC Srikakulam 20 21

IN THE HONOURABLE COURT OF SPECIAL JUDGE FOR TRIAL

OF CASES UNDER SCs & STs (POA) ACT, 1989-CUM-

ADDITIONAL DISTRICT AND SESSIONS JUDGE, SRIKAKULAM

PRESENT: SRI V.Venkateswara Rao, SPL.JUDGE FOR TRIAL

OF CASES UNDER SCs & STs (POA) ACT, 1989-CUM-

ADDL.DISTRICT & SESSIONS JUDGE, SRIKAKULAM

Wednesday, this the 23 rd day of April, 2014

CRIMINAL APPEAL No.58/2011

(CC.No.147/2007 on the file of Judicial Magistrate of 1st Class,

Narasannapeta) 1)From what Court the appeal is preferred: Judicial Magistrate of Ist Class, Narasannapeta.

2)Number of the case in lower Court: CC.No.147/2007 3)Number of appeal: : Crl. Appeal No.58/2011 4)Name and description of the : Narayanasetti Dharma Raju, appellant/accused son of late Chinna Thavitanna, Aged about 58 years, Business, resident of Narasannapeta, Srikakulam District.

5)The conviction and sentence : The accused found guilty for the under which it was imposed : offence under section 138 of in lower Court Negotiable Instruments Act. Accordingly, accused is convicted Under section 255(2) Code of Criminal Procedure.

Accused is sentenced to undergo simple imprisonment for one year and also to pay fine of Rs.5000/- (rupees five thousand only) and compensation of Rs.4,55,550/- that being half of the cheque amount in default of payment of fine amount and compensation amount to suffer simple imprisonment for three months. No case property.

Contd…2

: 2 :

22 6)Whether confirmed, modified or : REVERSED reversed, if modified or : modification: :

In the result, appeal is allowed setting aside conviction and sentence imposed on the appellant/accused including fine and compensation amount under section 138 of Negotiable Instruments Act and accused is hereby acquitted for the offence under section 138 of Negotiable Instruments Act . Accused is entitled for return of fine amount if any paid by him in the Lower Court after expiry of appeal time.

7)Date of presentation: : 28-04-2011 8)Date of filing: : 30-04-2011 9)Notice issued by the Court to : 02-05-2011 Appellant/accused 10)Bail bond if the appellant has : On bail been let out on bail :

11)Date of order to appear : 21-06-2011 12)Date of hearing : 15-04-2014 13)Date of Judgment : 23-04-2014

Sd/- V.Venkateswara Rao

Special Judge for trial of cases under

SCs & STs (POA) Act-cum-Addl. Dist. and Sessions Judge, Srikakulam.

// True Copy //

Administrative Officer

1

IN THE HONOURABLE COURT OF II ADDITIONAL DISTRICT AND

SESSIONS JUDGE, (FAST TRACK COURT) SRIKAKULAM

PRESENT: SRI V.Venkateswara Rao, SPL.JUDGE FOR TRIAL OF CASES UNDER SCs & STs (POA) ACT, 1989-CUM-

ADDL.DISTRICT & SESSIONS JUDGE, SRIKAKULAM

FAC: II Addl. District & Sessions Judge, (FTC) Srikakulam.

Monday, the 24th day of November, 2014.

CRIMINAL APPEAL No. 103/2011

(C.C.No.366/2010 on the file of Judicial Magistrate of I Class, (Special Mobile Court) Srikakulam.

Between:

Kanukurthi Kondala Rao alias Konda Son of late Yerraiah, Hindu, 32 years, re/of Gajula street, Srikakulam town and district.

…..Appellant/Accused

And:

State represented by its Public Prosecutor, Srikakulam.

…Respondent/Complainant

This Criminal Appeal coming on 14-11-2014 before me for final hearing in the presence of Sri.B.Murali Krishna and Sri G.S.K.Prasad, Advocates

for the Appellant/Accused and the learned Addl. Public Prosecutor for the

respondent/complainant, and having stood over for consideration, this Court makes the following:

J U D G M E N T

1)This Criminal appeal is preferred under section 374 of Code of

Criminal Procedure by the appellant/accused against calendar and judgment in Calendar Case No.366/2010 on the file of Judicial Magistrate of I Class , ( Special Mobile Court) Srikakulam dt. 1.8.2011 challenging conviction under section 420 of Indian Penal Code.

2) The brief facts of the case of the prosecution are as follows:-

The defacto complaint/Chandravathi belongs to Peddarelli

Veddhi and accused belongs to Gajula veedhi of Srikakulam town. The 2 accused/Kanukurthi Kandala Rao developed friendship with the defacto complainant/Chandravathi with a promise of love and to marry her and had sexual contact with her and thereby led family life. Later,

Chandravathi came to know that, the accused was already married and had wife by name Bhavani. Then the defacto complainant/Chandravathi, her father and other elders asked the accused and his family members about the attitude of the accused. They informed them that, the wife of accused by name Bhavani had no issues and the children born through the

Chandravathi would become their legal heirs and they also arranged a separate house to Chandravathi and accused in Hayathinagaram ,

Srikakulam, where both of them lead life as wife and husband. Thereafter, the said Chandravathi became pregnant and she was sent to her parents house for delivery. After giving birth to a female child, neither the accused nor his parents taken back the defacto complaint to their house. On 5.11.2008, the defacto complainant/chandravathi and her daughter went to the house of the accused and requested him and his family members to allow her to their house, on that the accused and his family members threatened her . On 6.11.2008 at morning hours, the accused went to the house of Chandravathi in her absence, and tried to take his daughter.

Meanwhile, the inmates of the locality obstructed him. On the report given by defacto complainant /PW1, the police filed charge sheet against the accused for the offence under sections 417,420 and 493 of Indian Penal

Code.

03. After filing of the charge sheet cognizance was taken by the learned Judicial Magistrate of 1st Class,( special mobile Court)

Srikakulam under sections 417,420 and 493 of Indian Penal Code 3

04.After appearance of the accused in the trial Court, charges under Sections 493 and 420 of Indian Penal Code have been framed for which, the accused pleaded not guilty and claimed to be tried.

05. To substantiate the case of the prosecution, Pw.1 to Pw.7 were examined, Ex.P.1 to Ex.P.3 were marked. On behalf of defence,

Ex.D1 marked.

06. After conclusion of the trial, the learned Judicial Magistrate of I

Class (Special Mobile Court) Srikakulam acquitted the accused for the offence under section 493 of Indian Penal Code but found guilty for the offence under section 420 of Indian Penal Code, and sentenced the accused to under go simple imprisonment for 2 years and to pay a fine of

Rs.500/- in default of payment of fine simple imprisonment for three months.

07. Aggrieved by the said sentence and impugned judgment, the present appeal is preferred by the appellant who is accused in the lower court claiming that the judgment of the lower court is against law, weight of evidence and probabilities of the case. The Lower Court failed to assess the evidence in proper manner and wrongly accepted the evidence of PW1 to PW7. The offence under section 420 of Indian Penal Code is not at all applicable to the facts of the case as ingredients required to be proved are not proved. The lower court failed to see that the prosecution failed to take steps for D.N.A test to establish the paternity of the child that child born to PW1 through accused. The lower court failed to see that there is no independent evidence and so the conviction and sentence is liable to be set aside. Hence the appeal.

4

08. Arguments of both sides heard

09. Point for determination :- `

1) Whether the prosecution is able to prove the charge under

Section 420 of Indian Penal Code against accused beyond reasonable doubt?

10. Point:-

The learned advocate for accused/appellant vehemently argued that the appellant is innocent and he is married. He did not promise PW1 to marry her much less had sexual intercourse with her and he is not responsible for her pregnancy and delivery of the child. The prosecution has miserably failed to prove the paternity of the child to connect the appellant with the alleged crime by referring the disputed child,

PW1 and accused for conducting the D.N.A. Test. Having filed a petition, the prosecution subsequently did not pursue the same, for the reasons best known to them. Therefore, the accused is entitled for acquittal.

11. The learned Public Prosecutor submitted that the lower court rightly assessed the evidence of prosecution witnesses and rightly came to a conclusion in convicting the accused under Section 420 of Indian Penal

Code and there are no grounds to interfere with the conviction and sentence imposed on the accused.

12. The burden of proof is on the prosecution to prove the case against the appellant/accused under section 420 of Indian Penal Code beyond reasonable doubt. To prove the case of the prosecution, PW1 to 5

PW7 were examined and EX.P1 to Ex.P3 marked. The accused is presumed to be innocent till his guilt is proved in accordance with law.

13. To prove the charge under section 420 of Indian Penal Code, the following ingredients have to be proved :

i) There must be deception i.e. the accused must have deceived someone ; ii) That by the said deception. The accused must induce a person ;

a) to deliver any property ; or

b) to make, alter or destroy the whole or part of the valuable security or any thing which is signed or sealed and which is capable of being converted into a valuable property ; iii) that the accused did so dishonestly .

14) Now, it has to be considered whether all the above ingredients are satisfied by the evidence of prosecution witnesses ; PW1/Potnuru

Chandravathi is the defacto complainant , aged about 27 years old. She belongs to S.C.-Relli by caste. She had no parents. She was brought up by her senior paternal uncle/PW2-Potnuru Jaggarao . PW3-Dhanala

Taraka is her cousin. PW4/S.Dharma Rao and PW5-H.Varma are examined to corroborate her evidence. PW6/G.Chandra, Sub Inspector of

Police and PW7/M.Seshu, Sub Inspector of Police are investigation officers. Ex.P1 is the report given by her which was registered as First

Information Report covered by Ex.P2 . Ex.P3 is the rough sketch of scene of offence prepared by investigation officer. No incriminatory material found at the scene of offence.

15) PW1/P.Chandravathi, testified that, she got acquaintance with the accused from about 10 years and now she had a daughter of 4 years.

The accused used to move around her as he was in love with her and promised to marry her and thereby induced her to have sexual intercourse with him and as a consequence she became pregnant. Then she informed 6 the same to brothers and mother of accused who stated that he was already married to one Bhavani, but had no children through her and they informed her that they will provide a house to her to live there.

Accordingly, they arranged a family between her and accused in a rented house for which they used to pay rents and electricity charges. For her delivery, she was sent to her parents house and promised to get her back but failed to do so, after delivery of female child. When she questioned they totally denied their promise and relationship and proclaimed that she can do whatever she can do and thus efforts made by her through mediators and elders failed. She also complained to the police when the accused tried to take away her child forcibly that the accused used to take money from her and now she is living in the house of PW2. She was cross examined at length challenging the relationship between the accused,PW1 and delivery of female child through accused and also providing a house. But, her evidence is consistent and reliable that the accused and his people arranged a rented house for her stay and it is corroborated by her uncle/PW2, PW3/Dhanala Taraka her cousin. PW2 and PW3 also stated that the accused once tried to take away the child of

PW1 forcibly in her absence and they caught hold him. Later, all of them went to police station and handed over the accused in the police station, but crime was not registered as they did not further pursue it. The contradiction marked in the cross examination of Pw3 is not much important to disbelieve her evidence.

16) The evidence of PW1 is further corroborated by

PW4/S.Dharma Rao , a friend of accused who arranged rented house to

PW1 and accused , at request of accused at Hayathinagaram. At that time, PW1 was pregnant and both of them lived together for two months in that rented house. In his cross examination it is elicited to see the house along with the accused, the brothers of the accused also came with him.

7

This fact indicates that PW1 was provided a rented house to stay with the accused during her pregnancy is true. His version is also corroborated by the landlord of the house/PW5, where PW1 lived during her pregnancy.

17. PW5/H.Varma stated that, PW1 resided in his house when she was pregnant, but she resided alone on monthly rent of Rs.400/- per month. Though, he did not state that the accused lived with PW1 in his house, but his version corroborates the evidence of PW1 to PW3 and also

PW4 that PW1 was made to stay in a rented house by the accused and his family members during her pregnancy period till she was sent to the house of PW2 for delivery in advanced stage of pregnancy. Their evidence is quite consistent and reliable that PW1 was made pregnant due to sexual intercourse of accused and she believed him on his promise to marry him without knowing that he was already married and later he refused to marry her when she became pregnant. But, his family members arranged for her stay as accused did not have any children through his wife/Bhavani. ; This evidence of PW1 and PW2 is also corroborated by Investigation officers /PW6 and PW7. No doubt, PW1 is a major unmarried girl who knows consequences of such relationship, but she was induced by accused under false promise. She surrendered sexually to the accused believing his words due to lack of knowledge that he was already married and became pregnant. The accused after satisfying his lust and sexual desire, disowned her when she became pregnant, but his family members provided some support to enable her to deliver child as accused has no children through his wife. That might be one of the reason, that the accused tried to take away the child forcibly but he was caught by PW2 and PW3. Only after that incident PW1 chose to give police complaint against the accused. These above facts only disclose that PW1 was 8 induced and exploited sexually by the accused by having sexual intercourse with her on promise to marry her . But there is no inducement leading PW1 to deliver any valuable property or valuable security to attract the charge under section 420 of the Indian Penal Code in this case which is a essential ingredient to prove a charge under section 420 of Indian

Penal Code.

18) The lower court erred in convicting the accused under section 420 of Indian Penal Code in the absence of proof regarding inducement to deliver any valuable property by way of inducement. Though police filed charge sheet under Section 417 of Indian Penal Code, but it was not framed against the accused in the lower court as grave charge was framed against the accused under section 420 of the Indian Penal Code . Even in the absence of charge under section 417 of Indian Penal Code, if the same is proved the accused could be convicted for the offence under section 417 of the Indian Penal Code.

19) The essential ingredients of section 417 of Indian Penal Code are as follows :-

1) Deception of any person ;

2) a) Fraudulently or dishonestly inducing that person ------

i) to deliver any property to any person, or ii) to consent with any person relating to any property ; or

b) intentionally inducing that person to do which he would not do or omit to do, and that act or omission causes or is likely to cause damage or harm, to that person in body, mind, reputation or property. A dishonest concealment is a deception within the meaning of this section.

An offence under section 417 of the Indian Penal Code is Cheating generally. But offence under section 420 of Indian Penal Code is 9 aggravated type of offence involving delivery or destruction of valuable security. But, delivery, destruction of valuable security is not necessary to prove the offence under section 417 of the Indian Penal Code. Therefore,

I find that the prosecution is able to prove the offence under section 417 of the Indian Penal Code against accused, though not able to prove the offence under section 420 of the Indian Penal Code against the accused.

In this case, PW1 was unmarried girl who was induced to undergo painful pregnancy and delivery believing the words of accused on his promise to marry her for having children. Therefore, it satisfies all the ingredients of section 417 of the Indian Penal Code. The offence under section 417 of the Indian Penal Code is less grave in nature compared to section 420 of the Indian Penal Code and ingredients are almost same. Accused can be convicted without framing specified charge under section 417 of the Indian

Penal Code . Therefore, sentence under section 420 of Indian Penal Code is modified to offence under section 417 of the Indian Penal Code. The punishment prescribed under section 417 of the Indian Penal Code is imprisonment for one year, fine or both.

19) Taking into consideration of the above facts, it is being an offence against a woman, it is not a fit case to attract the provisions of

Probation of Offenders Act as rightly held by the Lower Court and Lower

Court also correct in taking a lenient view to sentence by taking into consideration of the dependants of the accused . Therefore, he is sentenced to undergo simple imprisonment for a period of (3) three months and to pay a fine of Rs.500/-(rupees five hundred only) in default of payment of fine to suffer simple imprisonment for One month. Point answered accordingly.

10

20) In the result, the appeal is partly allowed modifying the sentence under section 420 of Indian Penal Code to Section 417 of the

Indian Penal Code setting aside the sentence of two(2) years imposed on the accused and fine , and accused is sentenced to undergo simple imprisonment for three(3) months and to pay fine of Rs.500/- (rupees five hundred only) ) in default of payment of fine to suffer simple imprisonment for One month . The fine amount if any paid by the accused shall be adjusted towards fine payable by the accused in this case.

Dictated to the Personal Assistant, Spl. Judge Court for trial of cases

under SCs & STs (POA) Act-cum-Addl.Dist.Judge, Srikakulam, transcribed by him, corrected and pronounced by me in open Court, this the 24th day of November,2014.

Special Judge for trial of cases under

SCs & STs (POA) Act-cum-Addl. Dist. and Sessions Judge, Srikakulam. FAC: II Addl. District & Sessions Judge, (FTC) Srikakulam.

Copy to The Judicial Magistrate of I Class, Special Mobile Court,

Srikakulam along with LCRecord.

11 12

IN THE HONOURABLE COURT OF SPECIAL JUDGE FOR TRIAL

OF CASES UNDER SCs & STs (POA) ACT, 1989-CUM-

ADDITIONAL DISTRICT AND SESSIONS JUDGE, SRIKAKULAM

PRESENT: SRI V.Venkateswara Rao, SPL.JUDGE FOR TRIAL

OF CASES UNDER SCs & STs (POA) ACT, 1989-CUM-

ADDL.DISTRICT & SESSIONS JUDGE, SRIKAKULAM

Wednesday, this the 23 rd day of April, 2014

CRIMINAL APPEAL No.58/2011

(CC.No.147/2007 on the file of Judicial Magistrate of 1st Class,

Narasannapeta) 1)From what Court the appeal is preferred: Judicial Magistrate of Ist Class, Narasannapeta.

2)Number of the case in lower Court: CC.No.147/2007 3)Number of appeal: : Crl. Appeal No.58/2011 4)Name and description of the : Narayanasetti Dharma Raju, appellant/accused son of late Chinna Thavitanna, Aged about 58 years, Business, resident of Narasannapeta, Srikakulam District.

5)The conviction and sentence : The accused found guilty for the under which it was imposed : offence under section 138 of in lower Court Negotiable Instruments Act. Accordingly, accused is convicted Under section 255(2) Code of Criminal Procedure.

Accused is sentenced to undergo simple imprisonment for one year and also to pay fine of Rs.5000/- (rupees five thousand only) and compensation of Rs.4,55,550/- that being half of the cheque amount in default of payment of fine amount and compensation amount to suffer simple imprisonment for three months. No case property.

Contd…2

: 2 :

13 6)Whether confirmed, modified or : REVERSED reversed, if modified or : modification: :

In the result, appeal is allowed setting aside conviction and sentence imposed on the appellant/accused including fine and compensation amount under section 138 of Negotiable Instruments Act and accused is hereby acquitted for the offence under section 138 of Negotiable Instruments Act . Accused is entitled for return of fine amount if any paid by him in the Lower Court after expiry of appeal time.

7)Date of presentation: : 28-04-2011 8)Date of filing: : 30-04-2011 9)Notice issued by the Court to : 02-05-2011 Appellant/accused 10)Bail bond if the appellant has : On bail been let out on bail :

11)Date of order to appear : 21-06-2011 12)Date of hearing : 15-04-2014 13)Date of Judgment : 23-04-2014

Sd/- V.Venkateswara Rao

Special Judge for trial of cases under

SCs & STs (POA) Act-cum-Addl. Dist. and Sessions Judge, Srikakulam.

// True Copy //

Administrative Officer

1

BEFORE THE CHAIRMAN MOTOR ACCIDENTS CLAIMS

TRIBUNAL-CUM- II ADDITIONAL DISTRICT JUDGE,

SRIKAKULAM.

PRESENT: Sri V.VENKATESWARA RAO, Spl. Judge for trial of cases under SCs & STs (POA) Act-cum-Chairman Motor Accidents Claims Tribunal-cum-Addl. District Judge, Srikakulam. FAC: II Addl. District & Sessions Judge, ( Fast Track Court) Srikakulam

Wednesday, THE 28TH DAY OF JANAURY,2015 .

MVOP.No. 244/2010

Between :

Potnuru Ananda Rao son of late Satyam, 55 years, Hindu, Sweet Vendor, residing near Mankinamma temple, Kasibugga town in Palasa mandal, Srikakulam district.

… petitioner. And :

1. Boina Nagendra Kumari, wife of Murali, 35 years, Hindu, owner of crime vehicle ie.., lorry bearing No.AP 16 T 4557 resident of Door No.1-163, Ramavarappadu in Vijayawada, Krishna District.

2. National Insurance Company Limited,

Represented by its Divisional Manager,

Door No.27-12-76, 2nd Floor, Garlapatti

Complex, Alibaigh street, Near Annapurna

Theatre, Governorpet, Vijayawada Krishna

District. .

..Respondents

This petition coming on 18.12.2014 before me for

final hearing in the presence of Sri Korada Govinda Raju,

Advocate for the petitioner and of Sri M.Janardhana Rao,

advocate for Respondent No.2, Respondent No.1 remained

exparte, and having stood over for consideration till this day,

this court delivered the following:

2

ORDER

01. This is a claim petition filed under Section 166 of

Motor Vehicles Act read with Rule 455 of A.P. Motor Vehicles Rules 1989, claiming compensation of `. 5,00,000/-(rupees five lakhs only) by the petitioner for the injuries suffered by him in the Motor

Vehicles Accident.

02.Brief facts of the petition are as follows:-

The petitioner-Potnuru Ananda Rao, is a sweet vendor, resident of Kasibugga. Respondent No.1-Boina Nagendra Kumari is owner of lorry bearing No.A.P.16 T 4557 which was insured with

Respondent No.2- National Insurance Company Limited by the date of accident under a valid policy. On 14.6.2008 while petitioner was proceeding on his cycle from his house to the market of Kaisbugga at about 8.30 a.m. when he reached near Sankara Lodge , driver of lorry bearing No.AP 16 T 4557 drove the lorry in a rash and negligent manner at high speed without following traffic rules coming from

Sompeta and dashed against the petitioner. As a result, the petitioner fell down and sustained grievous injuries i.e., on his head and face.

He was shifted to community health center, Palasa . Later he was referred to Abhaya critical hospital, Visakhapatnam for treatment.

The station House Officer, Kasibugga registered a case in crime

No.128/2008 under sections 338 of Indian Penal Code and Sec.134

(a) and (b) of Motor Vehicles Act against the driver of lorry which was numbered as C.C.160/2008. The petitioner was hale and 3 healthy. He became permanently disabled due to motor vehicle accident and he spent huge amount for his treatment. Hence, the respondents are jointly and severally liable to pay compensation to the petitioner.

03. The respondent NO.1 remained exparte.

04 The respondent NO.2-National Insurance Company

Limited, filed written statement denying the material averments of the petition, denying the rash and negligence on the part of lorry driver bearing No.A.P. 16 T 4557 and also denying the injuries suffered by petitioner, the amounts spent by him for his treatment and permanent disability. It is further averred that the accident occurred due to negligence of the petitioner who could not control his cycle in confusion leading to the accident. The compensation claimed by the petitioner of Rs.5,00,000/- is highly exorbitant on various heads. The petitioner is put to strict proof of the same. The insurance company is not liable to pay unless all the terms and conditions of the policy are complied and the vehicle was duly insured with Respondent No.2. The petitioner is also subjected to prove that the driver involved in the accident was having valid and effective driving licence by the date of accident and the vehicle is having valid permit and fitness. The petitioner has to prove his age

as 55 years and the petition is liable to be dismissed.

05. On the basis of above pleadings, the following issues were settled for trial.

4

1.Whether the petitioner sustained injuries in the motor vehicle accident that occurred on 14.6.2008 at 8.30 a.m. near Sankar lodge, on Old N.,H.5 road, Kasibugga in palasa mandalam within the limits of Kasibugga police station Srikakulam district? If so, whether the accident took place due to rash and negligent driving of the lorry bearing No. AP 16 T 4557 by its driver?

2.Whether the petitioner is entitled to claim compensation? If so, to what amount and from whom?

3.To what relief ?

06. To prove the case of the petitioner, Pw.1 –Potnuru

Ananda Rao and PW2-Dr.D.Chiranjeevi, examined on commission, aAnd Ex.A1 to Ex.A14 were marked. On behalf of respondents, no oral or documentary evidence was adduced on behalf of respondents.

07. Respondent No.2 filed a petition under section 170 of

Motor Vehicles Act and it was allowed.

08. Arguments Heard. The counsel for petitioner also filed written arguments.

09. ISSUE NO.1: -

To prove the case of the petitioner, the petitioner -

Potnuru Ananda Rao, himself examined as PW1 and the

Dr.D.Chiranjeevi who treated PW1 was examined as PW2 and marked Ex.A1 to Ex.A14 . Ex.A1 to Ex.A4 are certified copies of First

Information Report, charge sheet, Motor Vehicle Inspector’s report and wound certificate obtained from the criminal case filed by the police against the lorry driver. Ex.A5 to Ex.A14 are pertaining to the treatment and the bills.

5

10) PW1-Potnuru Ananda Rao, testified on oath that he was proceeding on his cycle from his house to the market in Kasibugga with due caution on 14.6.2008 at about 8.30 a.m. when he reached near Sankar lodge the driver of lorry bearing No.AP 16 T 4557 drove the lorry in a rash and negligent manner at high speed without following traffic rules and dashed against him while coming from

Sompeta side . Thereafter he fell down and sustained grievous injuries on his head and face. Pw1 was cross examined at length challenging his evidence that there was no negligence on the part of lorry driver and the accident occurred due to negligence of petitioner , he categorically denied the suggestion. Suggestion denied is no evidence. The evidence of PW1 is consistent and reliable. It is further corroborated by Ex.A1 to Ex.A4 criminal case record. The investigation conducted by police immediately after the accident also go to show that the accident occurred due to rash and negligent driving of the lorry bearing No.AP 16 T 4557 but not due to negligence of the petitioner. The charge sheet was filed against lorry driver –Yedam Venkateswara Rao marked as Ex.A2. The best witness to challenge the evidence of PW1 is driver of the lorry involved in the accident, but he did not chose to enter into witness box that is fatal to the case of the respondents. Thus the evidence of

PW1 is not at all rebutted and has to be accepted which is well corroborated by Ex.A1 to Ex.A4 and the evidence of petitioner clearly establish that the accident occurred due to rash and negligent 6 driving of lorry bearing no. AP 16 T 4557. Issue answered accordingly.

11ISSUE NO.2: -

The petitioner claimed `.5,00,000/- towards special and general damages for his treatment towards compensation on various heads. He marked Ex.A4 to Ex.A14 to prove his injuries and the treatment undergone by him including medical bills Ex.A8 and Ex.A9.

The petitioner also examined Dr.D.Chiranjeevi-PW2 to prove his injuries and the disability.

12) PW2-Dr.D.Chiranjeevi , deposed that he treated the petitioner only one month for the head injury and C.T. brain shows diffused cerebral edema 2) Avulsion injury right cheek and both eye lids of right eye and 3) fracture of right zypoma . All the three injuries are grievous in nature. The petitioner suffered disfiguration on the right side of the face. The bills covered by Ex.A8 were obtained from Abhaya Hospital and Panchavati Diagnostics. After discharge the patient came to him for follow up. He advised further surgery to correct the deformity of the right side of the face. He repaired the cautions of the right cheek and both lids of right eye for the entire treatment. The total expenditure will be about `.2,00,000/- . He admitted in the cross examination that there is no record with him that the petitioner was treated for one month by him. Ex.A4 wound certificate was not issued by him. Ex.A4 –certified copy of wound certificate was obtained from the criminal case record filed against the lorry driver and it was issued by Dr.K.Raja Sagar, Abhaya 7

Critical care hospital, Visakhapatnam. The injuries stated by PW2 on observing the patient tallied with the injuries in Ex.A4 and Ex.A5 photographs of PW1 , it is also covered by Ex.A7 O.P.Chit. Ex.A10 X- ray photos , Ex.A12 certificate issued by Pw2 and Ex.A13 . The evidence of PW1 and PW2 clearly reveal that the case of the petitioner is a pathetic case of permanent disability of disfiguration of face . The petitioner also became partially blind as seen from Ex.A6 disability certificate issued by the medical board stating that the petitioner suffered permanent disability of 40% partial blindness .

Besides Ex.A6 the evidence of PW2 coupled with Ex.A5 photographs,

Ex.A12 and Ex.A13 medical record go to show that the petitioner also suffered disfiguration of face , one of his eye partly closed after treatment due to injuries. The petitioner luckily survived the accident as seen from fatal injuries suffered by him. Generally every individual would like to see his face every day to boost up his confidence but unfortunately the petitioner has to undergo painful feelings whenever he sees his face in the mirror due to disfiguration and sometimes he has to undergo humiliation due to surprise looks extended by strangers and other people on seeing his face. It is not possible to completely restore his face to originality as seen from the evidence of PW2 in spite of plastic surgery. Compensation in motor vehicles Act be awarded is just compensation to reimburse the actual loss and pain suffered by the motor vehicle victims it should be neither more nor less. There is a discrepancy with regard to correct age of the petitioner in this case. The age of the petitioner mentioned 8 differently from stage to stage . In petition it was mentioned as 55, in

Ex.A6 it was mentioned as 52, but in Ex.A4 it was mentioned as 60.

Ex.A4 wound certificate being earlier one the age mentioned in it has to be preferred in this case to decide the compensation and the disability suffered by the petitioner.

13) Taking into consideration the above evidence on record and the injuries suffered by the petitioner, the petitioner is awarded `.40,000/- for each grievous injury i.e.,`.1,20,000/- for three grievous injuries. He is entitled to total reimbursement of medical bills i.e., `.1,61,815/- including Ex.A9. The petitioner is a sweet vendor claims to have been earning `.5000/- per month, but his claim appears to be exorbitant but not supported by any credible evidence. However, he might be earning `.4,000/- per month.

Any patient who suffered fracture is expected to take absolute bed rest for a period of 4 months without undertaking any weight bearing labour works and during that period there is no scope for any such earnings to a patient like the petitioner. Hence, he is awarded `.16,000/- towards loss of earnings for 4 months @ `.4000/- per month. He is also awarded Rs.50,000/- towards pain and suffering .

`.15,000/- towards transportation and attender charges.

14) In Sarla Varma and others Vs.Delhi Transport

Corporation and another, 2009 ACJ 1298 (S.C.)

The Supreme Court laid down the guide lines to bring uniformity in granting compensation in motor accident cases:-

The following multipliers are fixed for each age group to avoid inconsistency.

9

M-18 for age of persons between 15 to 20 and between 21 and 25 ; reduced by one unit of every five years, that I s, M-17 for 26 to 30 years, M-16 years for 31 to 35 years, M-15 for 36 to 40 years, M- 14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, this is M-11 for 51 to 55 years, M-9 for 56-60 years and M-7 for 66 to 70 years.

The appropriate multiplier applicable to the petitioner who is aged 60 years is “9” for awarding compensation for permanent disability of 40%. Hence, he is entitled to compensation for permanent disability is `.48,000/- x 9x40/100 = Rs.1,72,800/-.

Therefore , the petitioner is entitled to total compensation of `.5,20,615/-. However, the petitioner restricted his claim to `.5,00,000/- which is quite reasonable considering the disfiguration of face and partial blindness suffered by him after undergoing several surgeries for fracture and also plastic surgery for reducing the facial disfiguration . This compensation has to be paid by Respondent No.2 with which the vehicle was insured by the owner of the vehicle –

Respondent NO.1 to reimburse the loss suffered by respondent NO.1 towards third party risk of the petitioner.

14. ISSUE No.3 :

In the result, petition is allowed with costs, awarding compensation of `.5,00,000/- (rupees five lakhs only) payable by the respondent No.2-National Insurance Company Limited with future interest of 9% per annum from the date of petition to be deposited within three months failing which to pay the same with interest of 12% p.a. on the said amount. In case of such deposit, the 10 petitioner is permitted to with draw `.3,00,000/-(rupees three lakhs only) along with accrued interest to meet the expenses for further plastic surgery and to discharge his loans for the medical expenses incurred by him. The remaining amount of `.2,00,000/-(rupees two lakhs ) shall be kept in F.D.R in any nationalized bank for a period of one year in view of his old age. Advocate fee is fixed at `.5,000/- (rupees five thousand only) .

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

pronounced by me in open court, this the 28th day of January, 2015

SPECIAL JUDGE FOR TRIAL OF CASES UNDER SCs

& STs (POA) ACT CHAIRMAN MOTOR ACCIDENTS

CLAIMS TRIBUNAL-CUM-ADDL.DIST.AND SESSIONS

JUDGE, SRIKAKULAM.

FAC: II Addl.District & Sessions Judge, ( Fast Track Court),Srikakulam

Appendix of Evidence WitnessesExaminedfor

Petitioner:- Respondents:-

PW1: Potnuru Ananda Rao None PW2 : Dr.D.Chiranjeevi

Documents Marked for

Petitioners:

Ex.A.1-Certified copy of copy of First Information

Ex.A2: Certified copy of charge sheet

Ex.A3: Certified copy of Motor Vehicle Inspector’s report Ex.A.4 Certified copy of wound certificate.

Ex.A5: Two photographs of petitioner. Ex.A6: Disability certificate. Ex.A7: O.P.Chit. Ex.A8: 195 medical bills for Rs.68,875/- 11

Ex.A9: Train cum bus tickets for Rs.601/- Ex.A10: X-rays three in number. Ex.A11: Prescriptions. Ex.A12: Certificate issued by Dr.Chiranjeevi. Ex.A13: Patient medicine indent issued by Abhaya Pharmacy Visakhapatnam. Ex.A14: Lab report issued by panchavati diagnostics.

Respondents:

-NIL-

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

SCs & STs (POA) ACT CHAIRMAN MOTOR ACCIDENTS

CLAIMS TRIBUNAL-CUM-ADDL.DIST.AND SESSIONS

JUDGE, SRIKAKULAM.

FAC: II Addl.District & Sessions Judge, ( Fast Track Court),Srikakulam 12

1

BEFORE THE CHAIRMAN MOTOR ACCIDENTS CLAIMS

TRIBUNAL-CUM- II ADDITIONAL DISTRICT JUDGE,

SRIKAKULAM.

PRESENT: Sri V.VENKATESWARA RAO, Spl. Judge for trial of cases under SCs & STs (POA) Act-cum-Chairman Motor Accidents Claims Tribunal-cum-Addl. District Judge, Srikakulam. FAC: II Addl. District & Sessions Judge, ( Fast Track Court) Srikakulam

Wednesday, THE 21st DAY OF JANAURY, 2015 .

MVOP.No. 461/2006

Between :

Mungi Jagadeeswara Rao, son of Nageswara Rao, 19 years, Hindu, cleaner of the van bearing No. A.P. 35 T 6872, residing at Balaga in Srikakulam town, mandal and district.

… petitioner. And :

1. K.Krishna Murthy Naidu, son of Polinaidu,

35 years, Hindu, owner of the van bearing

No.AP 35 T 6872, residing at Kothagraharam

In Vizianagaram district.

2. National Insurance Company Limited,

Represented by its Divisional Manager,

Visakhapatnam.

..Respondents

This petition coming on 17.12.2014 before me for

final hearing in the presence of Sri P.Nageswara Rao, Advocate

for the petitioner and of Sri A.Satyanarayana , advocate for

Respondent NO.2, Respondent No.1 remained exparte, and

having stood over for consideration till this day, this court

delivered the following :

2

ORDER

01. This is a claim petition filed under Section 166 of

Motor Vehicles Act read with Rule 455 of A.P. Motor Vehicles Rules 1989, claiming compensation of `. 1,00,000/-(rupees one lakh only) by the petitioner for the injuries suffered by him in the Motor

Vehicles Accident.

02.Brief facts of the petition are as follows:-

The petitioner-Mungi Jagadeeswara Rao, is a cleaner working in Van bearing No.A.P. 35 T 6872 , resident of Balaga

Srikakulam, earning Rs.4,000/- per month. Respondent No.1-

K.Krishna Murthy Naidu is owner of the van bearing No.A.P. 35 T 6872 which was insured with Respondent No.2-National Insurance

Company Limited by the date of accident under a valid policy. The petitioner is a cleaner traveled in van bearing No.A.P. 35 T 6872 from

Veeraghattam to Peddapadu milk center by collecting the milk from various centers. At 8.30 a.m. when their van reached near

Thogaram village the driver of the van drove the vehicle in a rash and negligent manner , as a result the vehicle turned turtle on the road side, as a result the petitioner sustained grievous injuries and his ribs were fractured and was admitted in Government hospital,

Srikakulam . The station House Officer, Amkadalavalasa registered a case in crime No.56/2004 under sections 337 and 338 of Indian Penal

Code numbered as C.C.128/2004 on the file of Judicial Magistrate of I 3

Class, Amadalavalasa. Due to injuries, the petitioner was hospitalized and bedridden and lost his earnings and also subjected to lot of pain and suffering . He was bedridden for long period and spent huge amounts for his treatment. Hence, the respondents are jointly and severally liable to pay compensation to the petitioner.

03. The respondent NO.1 remained exparte.

04 The respondent NO.2-National Insurance Company

Limited, denying the material averments of the petition, denying the rash and negligence on the part of driver of van, denying its liability and also denying the injuries suffered by the petitioner and his earnings. The insurance company is not liable to pay any compensation unless it is proved that the vehicle is insured with the company and there are no violation of terms and conditions of the policy. The claim of the petitioner is highly exorbitant including interest. The petitioner is not covered by the insurance as he was traveling as gratuitous passenger and not entitled to claim any compensation . There is no cause of action against this respondent and petition is liable to be dismissed.

05. On the basis of above pleadings, the following issues were settled for trial.

1.Whether the accident occurred due to rash and negligent driving of the driver of van bearing No.AP 35 T 6872 causing fractures to the petitioner?

2.Whether the petitioner is entitled to claim compensation? If so, to what amount, from which of the respondent ?

4

06. To prove the case of the petitioner, Pw.1 –Mungi

Jagadeeswara Rao, was examined and Ex.A1 to Ex.A5 were marked.

On behalf of respondents, no oral or documentary evidence was adduced.

07. Respondent No.2 filed a petition under section 170 of

Motor Vehicles Act and it was allowed.

08. Arguments Heard.

09. ISSUE NO.1: -

To prove the case of the petitioner PW1-Mungi

Jagadeeswara Rao, was examined as PW1 and marked Ex.A1 to

Ex.A5 . Ex.A1 to Ex.A4 are certified copies of First Information

Report in crime No.56/2004 of Amadalavalasa police station, charge sheet in C.C.128/2004, wound certificate and Motor Vehicle

Inspector’s report respectively. Ex.A5 is medical certificate of the petitioner.

10) PW1-Mungi Jagadeeswara Rao, deposed in the similar lines of petition averments stating that he was working as cleaner in van bearing No. A.P. 35 T 6872 owned by respondent No.1-K.krishna

Murthy Naidu insured with Respondent No.2-National Insurance

Company Limited. He was traveling in the van on 17.4.2004 for collection of milk and they collected milk from various centers. When they reached near Thogaram village at about 8.30 a.m. the driver of van drove the vehicle in a rash and negligent manner at high speed without following traffic rules , as a result the vehicle turned turtle on 5 the road side and he sustained fracture injuries. Pw1 was cross examined challenging the rash and negligence on the part of driver of the van, but nothing was elicited to impeach his evidence in any manner. He denied the suggestion that he was gratuitous passenger in the van. Ex.A1 also reveals that, Pw1 was working as cleaner in the van, but he is not a gratuitous passenger as claimed by the respondent No.2-insurance policy. The evidence of PW1 is further corroborated by Ex.A1 to Ex.A4 that the accident occurred due to negligence of driver of van-Menda Dinamani . The investigation conducted by police immediately after the accident also reveal that the accident occurred due to negligence of driver of the van against whom the police filed charge sheet marked as Ex.A2 under section 337 and 338 of Indian Penal Code . The fact that the vehicle turned turtle clearly indicates that the driver of the vehicle lost control over the vehicle due to high speed. The best witness to challenge the evidence of PW1 is driver of the vehicle who failed to enter into the witness box that is fatal to the case of the respondents. Thus, the evidence of PW1 is not at all rebutted and has to be accepted which is quite consistent and reliable to prove that the accident occurred due to negligence of the van driver. Issue answered accordingly.

11ISSUE NO.2: -

Admittedly, the respondent No.1 is the owner of the vehicle bearing No.A.P. 35 T 6872 which was insured with respondent No.2 under a valid policy. There are no violations as 6 seen from the evidence on record. The driver was having valid and effective driving licence by the date of accident as seen from the

Motor Vehicle Inspector’s report-Ex.A4. Therefore, the respondent

No.2 is liable to pay compensation to the petitioner-third party to reimburse the loss suffered by respondent No.1 in the motor vehicles accident as per the terms of insurance policy.

12) The petitioner claimed `. 1,00,000/- towards special and general damages. To prove his injuries, he examined himself as

PW1 and marked Ex.A3-wound certificate issued by Civil Assistant

Surgeon, District Head Quarters hospital, Srikakulam, and it can safely be accepted in this case.

13) As per Ex.A3 wound certificate, the petitioner suffered three injuries. Out of which, injuries 1 and 2 are simple in nature and injury No.3 is grievous in nature. The injury No.3 –grievous injury to chest due to fracture of ribs- 7,8 and 9. Ex.A3 is also corroborated by Ex.A5 medical certificate. The contention of the learned advocate for Respondent No.2 that Ex.A5 is created is not at all satisfactory. The injuries mentioned in Ex.A5 are also mentioned in Ex.A3 wound certificate. Therefore, it cannot be said that it is manipulated . Any patient who suffered fracture is expected to take absolute bed rest for a period of 3 or 4 months till the fractures are reunited. The petitioner suffered 3 rib fractures. He would have been bedridden for about 4 months for reunion.

7

14) Taking into consideration the injuries suffered by petitioner, he is awarded `. 50,000/- for fracture of ribs 7,8 and 9.

he is awarded `.7,500/- for each simple injury which comes to `.15,000/- for two simple injuries. The claim of petitioner that he is earning `.4000/- per month appears to be exorbitant, he might be earnings `. 2,000/- per month as cleaner by that time. Hence, he is awarded `.8000/- towards loss of earnings for four months, @ `.2000/- per month. He is awarded `.20,000/- towards pain and suffering . He is awarded `.10,000/- towards transportation and attender charges and extra nourishment and minimum medical charges. He being an illiterate may not have kept the medical bills though treatment is free in Government hospital. Thus petitioner is entitled to compensation of `.1,03,000/-. However, the petitioner restricted his claim to `.1,00,000/- which is quite reasonable in this case payable by Respondent No.2-National Insurance Company

Limited. Issue answered accordingly.

14.

In the result, petition is allowed with costs, awarding compensation of `.1,00,000/- (rupees one lakh only) payable by the respondent No.2-National Insurance Company Limited with future interest of 9% per annum from the date of petition excluding the interest from 18.3.2009 to 30.10.2014 as per orders in IA 99/2014 in

OP 461/2006 dt. 16.9.2014 , to be deposited within three months

failing which to pay the same with interest of 12% p.a. on the said amount. In case of such deposit, the petitioner is permitted to with 8 draw the entire amount. Advocate fee is fixed at `.1,000/-(rupees one thousand only) .

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

pronounced by me in open court, this the 21st day of January,2015

SPECIAL JUDGE FOR TRIAL OF CASES UNDER SCs

& STs (POA) ACT CHAIRMAN MOTOR ACCIDENTS

CLAIMS TRIBUNAL-CUM-ADDL.DIST.AND SESSIONS

JUDGE, SRIKAKULAM.

FAC: II Addl.District & Sessions Judge, ( Fast Track Court),Srikakulam

Appendix of Evidence WitnessesExaminedfor

Petitioner:- Respondents:-

PW1: Mungi Jagadeeswara Rao None

Documents Marked for

Petitioners:

Ex.A.1-Certified copy of copy of First Information Report in Cr 56/2004 of Amadalavalasa police station. Ex.A2: Certified copy of charge sheet in C.C.128/2014 Ex.A3: Certified copy of wound certificate. Ex.A.4 Certified copy of Motor Vehicle Inspector’s report Ex.A5: Medical certificate of the petitioner.

Respondents:

-NIL-

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

SCs & STs (POA) ACT CHAIRMAN MOTOR ACCIDENTS

CLAIMS TRIBUNAL-CUM-ADDL.DIST.AND SESSIONS

JUDGE, SRIKAKULAM.

FAC: II Addl.District & Sessions Judge, ( Fast Track Court),Srikakulam 9