Smt. A. Mary Grace Kumari

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IN THE COURT OF THE VII ADDITIONAL DISTRICT AND SESSIONS JUDGE

(FAMILY COURT), WEST GODAVARI :: ELURU

Present: SMT.A.MARY GRACE KUMARI,

Special Judge for Speedy Trial of Offences

under POCSO Act, 2012, Eluru

FAC: VII Additional District and Sessions Judge

(Family Court), Eluru

Thursday, this the 9 th day of September, 2021

CRIMINAL APPEAL NO.67/2017

From what Court the appeal :I Addl. Judicial Magistrate of I Class, is preferredTadepalligudem. :C.C.No.597/2015 No. of the case in that Court

Name and Description of the :Bandela Yohanu, S/o Late Narasimhulu, Appellant/ Accused No.2 51 Years, R/o Kommarru Village, Ganapavaram Mandal, W.G.District.

Name and description of the :State- S.I. of Police, Tadepalligudem Rural Respondent/ State P.S., Rep. by its Public Prosecutor W.G.Dt., Eluru.

Crime Number & Police :Crime No.73 of 2015 of Tadepalligudem StationRural Police Station.

The Sentence and Law and :A.2 is found guilty for the offence under which it was imposed in the Section 394 or alternatively 411 of IPC and Lower Courthe is convicted under Section 248(2) Cr.P.C, and he is sentenced to undergo Rigorous Imprisonment for a period of One Year and to pay a Fine of Rs.1,000/- indefault of payment of fine, shall undergo Simple Imprisonment for a period of One Month.

Whether Reversed/ Confirmed/ :

R E V E R S E D

Modified/ If modified the Modification

Dates of :- Presentation:22-02-2017 Filing:23-02-2017 On which notice issued by :23-03-2017 the court to appear Hearing:03-09-2021 Judgment:09-09-2021

This Appeal is coming on 03.09.2021 before me for final hearing through video conferencing (Blue Jeans App) in the presence of

Sri Ch.Rajendra Prasad, Advocate for Appellant/ A.2 and of Additional

Public Prosecutor for the Respondent/ State, and having stood over for consideration, this Court delivered the following:

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J U D G M E N T

This appeal is filed under Section 374(3) of Cr.P.C against the

Judgment of Conviction passed by the I Additional Judicial Magistrate of I

Class Court, Tadepalligudem dated 31.1.2017 in C.C.No.597/2015.

2. The parties are arrayed as per the charge sheet for the sake of convenience.

3. The case of prosecution in brief is as follows:

(i)On 21.4.2015 at 10.30 AM while P.W.1 was present in her house alone, two unknown persons came to her house, out of them one person came to her house previously in the presence of her husband i.e.,

L.W.2- B.Nageswara Rao as marriage broker and asked about the marriage or her son. On that P.W.1 replied that her husband is not present in the house and asked him to come another time. Saying so, she is going inside the house as if they both left the place. In the meanwhile, the accused and another person came behind her into her house tied her mouth with kerchief and round her saree to her neck.

(ii)The said unknown persons took the knife from kitchen and threatened her by showing the knife and snatched away her gold mangala sutram from her neck, then P.W.1 caught the sutrams, on that one gold sutram remained in her hand and remaining the chain with one sutram went into their hands and two inches gold chain piece fell on the ground.

Then they both thrown her into the room, closed the doors and left the house. On 22.4.2015, P.W.1 presented Ex.P.1 report in the Police Station.

Three months after the report, Police informed to her that her gold chain was recovered. She went to the Police Station and identified her gold chain.

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(iii)Basing on the report of P.W.1, P.W.3 registered a case in

Crime No.73/2015 of Pentapadu PS on 22.4.2015 at 8.00 AM for the offences punishable under Sections 356 and 382 of IPC. Later P.W.4 altered the section of law into Section 392 of IPC and filed alteration memo

before the court. During the course of investigation, P.W.6 visited the

scene of offence, examined P.W.1 and other witnesses i.e., L.W.2-

Nageswara Rao, L.W.3- Nagamani, L.W.4- Someswara Rao, L.W.5- Siva

Kiran and L.W.6- Rajani and recorded their statements.

(iv)On 26.6.2015 at 9.15 PM, P.W.6 arrested the accused at

Chilakampadu locks situated at Mudunuru outskirts of Pentapadu

Mandal in the presence of P.W.2, basing on the confessional statement of accused, P.W.6 seized part of stolen property from the possession of accused under the cover of mediators report. P.W.5 examined P.W.1 and issued wound certificate, opined that P.W.1 sustained simple injuries.

Basing on the wound certificate, P.W.6 altered the section of law into

Section 394 IPC from 392 IPC.

4. The learned Magistrate took cognizance of the offence under

Section 394 or 411 of IPC against A.2 and furnished copies Under Section 207 Cr.P.C. A.2 was examined under Section 239 Cr.P.C, and the charges under Sections 394 alternatively 411 of IPC was framed, read over and explained to A.2 in Telugu, to which he pleaded not guilty and claimed to be tried.

5. During trial before the Trial Court, the Prosecution has examined P.Ws.1 to 6 and marked Exs.P.1 to P.7 and M.O.1. A.2 denied the incriminating evidence appeared against him during 313 Cr.P.C, examination and no oral and documentary evidence is adduced on his side.

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6. Considering the evidence adduced on record, the learned Trial

Court convicted A.2 for the offence under Section 394 alternatively 411 of

IPC and he is convicted under Section 248(2) Cr.P.C, and he is sentenced to undergo Rigorous Imprisonment for a period of One Year and to pay a

Fine of Rs.1,000/- indefault of payment of fine, shall undergo Simple

Imprisonment for a period of One Month.

7. Aggrieved by the findings of the trial Court, the Appellant/ A.2 preferred this Appeal on the grounds mentioned hereunder:

i)The Calendar and Judgment of the Trial Court is perverse, against the settled principles of the legal jurisprudence.

ii)The Trial Court thoroughly misguided itself in appreciating the evidence adduced extraneously concluded the guilt of the appellant basing on the distorted version.

iii)The Trial Court blindly convicted the appellant without there being any substation from the evidence adduced and even gives a go by to the application of the provision of statue to the set of fact given in the case. Thereby conviction awarded for the offence punishable under Section 394 or alternatively 411 IPC is became illegal and the same is liable to be set aside.

iv)The Trial Court misguided itself in appreciating and new fact introduced by the prosecution in the course of trial for which there is no collaboration are base either in the investigation or on the evidence adduced. The medical evidence which was newly introduced is only seek sympathy of the court which infect supported the claim of the defence.

v)The Trial Court conveniently brushed aside the evidence in favour of applicant by P.W.1 to P.W.6 and virtually gave benefit of doubt on 5 the prosecution by ignoring the fact and circumstance and evidence adduced.

vi)The Trial Court ought to have considered the basic principles of law which were bluntly flouted by the prosecution during the course of trial and prays to allow the appeal by setting aside the conviction and sentence passed by the lower court and acquit the appellant.

8. Heard learned counsels for appellant and respondent through video conferencing (Blue Jeans App) as per the proceedings of the Hon’ble

High Court.

9. Now the Points that arose for determination in this case are:-

1. Whether the prosecution has proved the guilt of

Accused (A.2) for the offence under Section 394 or alternatively 411 of IPC, beyond all reasonable doubt?

2. Whether the sentence imposed by the learned trial

Judge for the offence punishable under Section 394

or alternatively 411 of IPC is sustainable and there are any tenable grounds to interfere with the findings of the Trial Court?

10. POINT No.1:-

It is the contention of the learned counsel for the appellant/ accused that the trial court thoroughly misguided in appreciating the evidence and came to wrong conclusion erroneously and convict the appellant without following the procedure prescribed under law. The conviction awarded by the trial court for the offence punishable under

Section 394 alternatively 411 IPC became illegal and the same is liable to be set aside. The learned counsel further contended that absolutely there is no iota of evidence on record to establish the charges levelled against the accused for the offence under Section 394 IPC or 411 IPC. M.O.1 6 described in the FIR as well as in the evidence of P.W.1 is not tallied and the investigating officer not followed the procedure in identifying the property and also the accused. The investigating officer influenced P.W.2 and planted M.O.1 with the help of P.W.1 and foisted this case against this accused for statistical purpose.

11. Per contra, the learned Additional Public Prosecutor submitted that the trial court properly appreciated the evidence on record and rightly convicted the accused and there are no tenable grounds to interfere with the findings of the trial court and there are no merits in the appeal and it is liable to be dismissed.

12. In view of contentions of both counsels, I have perused the material on record and also I have gone through the Judgment of the Trial

Court.

13. In order to establish the charge under Section 394 or 411 IPC, the prosecution has to establish that the accused voluntarily caused hurt to P.W.1 while committing robbery and the investigating officer seized the stolen property which was committed theft from P.W.1 i.e., M.O.1 from the possession of accused after the commission of offence.

14. The offences punishable under Section 394 IPC and 411 IPC are distinct offences. As seen from the Ex.P.1 report presented by P.W.1 in the Police Station on the next day after the incident, which contains that on 21.4.2015 at about 10.30 AM, two unnamed persons came to the house of P.W.1, out of them one person came to her house previously as marriage broker and asked her about the marriage of her son, then she replied that her husband is not available, saying so, while going inside her house as if they both went away, but both unknown persons came behind her and tied hand kerchief to her mouth and round her saree to her neck and attacked her with knife (vegetable cutting knife of P.W.1) by 7 threatening her, pulled her five sovereigns of gold pustula thadu, while pulling the said gold chain, she caught hold gold pustulu with her hand and one mangala sutram was with her hand and two inches gold chain fell down and remaining chain with one sutram in the hands of said person.

Then they pushed her in the room and closed the doors and skulk away on their motorcycle with the said ornament.

15. In the evidence, P.W.1 stated a different version that, on the date of incident, while she was alone present in the house two persons came to her house as marriage brokers, one of them already came to her house previously. She told them that her husband is not available in the house and asked them to come at another time, when she return back, one person caught hold her from her back side and another person tied her mouth with cloth, tied her saree around her neck and he snatched away her 5 sovereigns of gold mangala sutram from her neck. One piece of gold chain and one mangala sutram was in her hands in the incident.

They pushed her in the room and closed the room left the house and went away. She opened the door and came out from the house and found that the said persons went away on their motorcycle. On hearing her cries, the neighbours came there. After arrival of her husband on the next day morning, she presented Ex.P.1 report in the Police Station.

16. The recitals that are mentioned in Ex.P.1 report and the evidence of P.W.1 is silent regarding any injuries/ abrasions received by her in the alleged incident and she was referred to Area Hospital,

Tadepalligudem for medical examination. But surprisingly the prosecution cited Civil Assistant Surgeon, Area Hospital, Tadepalligudem as a witnesses in this case who examined as P.W.5 and deposed that he examined P.W.1 on 25.4.2015 at 11.30 AM and found four abrasions on the left side of face, at right side of face, at right wrist and at right thigh and issued Ex.P.6 wound certificate to that effect.

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17. The evidence of P.Ws.3, 4 and 6 who are investigating officers in this case is silent that P.W.1 was referred to Area Hospital for medical examination. They never stated in their respective evidence either on the date of report or subsequently on 25.4.2015 they send P.W.1 to the hospital for treatment. When the recitals that are mentioned in Ex.P.1 report is silent with regard to the injuries sustained by P.W.1 in the incident, how the investigating officer send her for medical examination is best known to them and the same was doubtful in view of the contention of the learned counsel for the accused that the investigating officer planted Ex.P.6 for the case purpose. If really, P.W.1 was sent to the hospital for medical examination she will certainly speak about the same in her evidence. But the evidence of P.W.1 does not establish the fact that she was referred to medical examination or she her own accord went to the hospital for treatment. Therefore the alleged injuries mentioned in the

Ex.P.6 and P.W.5 examined P.W.1 and found abrasions on the body of

P.W.1 is falsifies the case of prosecution for the said reasons. Therefore the reasonable doubt arises regarding the alleged incident and injuries sustained by P.W.1 in the incident.

18. As seen from the evidence of P.W.1, the two persons came to her house at the time of alleged incident are unknown to her and she does not know their names. As deposed by her out of them one person came to her house twice prior to the alleged incident. It is elicited from her evidence that his name is Srinu of Jangareddigudem. But the names of the accused are not Srinu and also not tallied with that name of Srinu.

The name of offenders are Gubbala Venkateswara Rao and Bandela

Yohanu. As on the date of incident, P.W.1 is not aware about the names of the culprits who participated in the crime. So it is the duty of the investigating officer to obtain the descriptive particulars of the culprits to 9 trace out the said persons and to conduct test identification parade of the culprits through P.W.1. But Ex.P.1 report does not contain the descriptive particulars of the said culprits who were participated in the said crime.

The investigating officer also not conducted test identification parade after he arrested the accused whether he is the said person who participated in the crime. Without identifying the accused by P.W.1 in any test identification parade and without descriptive particulars furnished by

P.W.1 either in Ex.P.1 report or in her evidence, she straight away identified the accused (A.2) in the court while she depose evidence.

Admittedly the offence was took place on 21.4.2015 and the accused who identified in this case was arrested on 26.6.2015 and he was identified by

P.W.1 before the court on 1.8.2016. Without any descriptive particulars how she identified the accused straight away in the court at the time of evidence is best known to her. The evidence of P.W.1 is silent whether the accused (A.2) is the marriage broker who came to her house earlier as stated by her or he is a new person accompanied with earlier person is not clarified in her evidence.

19. The evidence on record clearly shows that the place of offence i.e., the house of P.W.1 is situated in a residential locality and the alleged incident happened at day time and possibility of inmates of the surroundings at their respective houses and witnessed the incident. As deposed by P.W.1 on hearing her cries, the neighbours came there but none was examined by the prosecution to corroborate with the version of

P.W.1. The husband of P.W.1 was not examined by the prosecution in this case to corroborate the evidence of P.W.1 about the delay in presenting Ex.P.1 report in the Police Station. According to P.W.1, she did not inform to her husband about the incident over phone. She orally reported the matter to Police and the Station Writer reduced the same into 10 writing. No reasons assigned in Column No.8 of Ex.P.4 FIR and it kept blank. As mentioned in Column No.5 of FIR, the distance of Police Station to the scene of offence is 1/4 KM. The non-explanation of delay in presenting Ex.P.1 report arises a reasonable doubt regarding the occurrence of offence on the date as stated by P.W.1.

20. It is mentioned in Ex.P.4 at column No.7 that unknown two persons male, as on the date of registration of FIR, the investigating officer not known the names of the culprits as on the date of FIR, thereby the investigating officer immediately after he arrested the accused he ought to have conduct test identification parade through P.W.1 to identify him whether he is the real culprit involved in the incident. In the absence of any test identification parade conducted by the investigating officer, it can safely concluded that the accused who was identified by P.W.1 before the court first time is not that of the person who participated in the alleged incident thereby the presence of accused at the scene of offence is doubtful. Therefore I have no hesitation to hold that the prosecution failed to establish the charge under Section 394 IPC against the accused beyond reasonable doubt.

21. Regarding the charge under Section 411 IPC, the prosecution has to establish that, the investigating officer seized the stolen property i.e., M.O.1 from the accused in the presence of P.W.2 mediator after the incident which is belongs to P.W.1 which was stolen on the date of occurrence.

22. In order to establish the said charge, the prosecution relied on the evidence of P.Ws.1, 2 and 6. As deposed by P.W.1 in her evidence, two unknown persons tied her mouth with cloth and tied her neck with her saree and snatched away 5 sovereigns of gold mangala sutram from her neck, in the said incident one piece of gold chain and one sutram came 11 into her hands. But as per the recitals of Ex.P.1, while going inside her house as if they both went away but both unknown persons came behind her and tie hand kerchief to her mouth and round her saree to her neck and attacked her with knife (vegetable cutting knife of P.W.1) by threatening her pulled her five sovereigns of gold pustula thadu, while pulling the said gold chain, she caught hold gold pustulu with her hand and one mangala sutram was with her hand and two inches gold chain fell down and remaining chain with one sutram in the hands of said person.

As deposed by P.W.6 he did not seize the mangala sutram and piece of pustula thradu chain from P.W.1 to connect the said chain to M.O.1 whether it is one chain or not.

23. As per the recitals that are mentioned in Ex.P.3 mediators report, one piece of gold chain weighing about 12 grams seized from the possession of accused. The evidence of P.W.1 shows that M.O.1 marked through her evidence is piece of gold mangala sutram, but not piece of gold mangala sutram chain.

24. P.W.2 is one of the mediator who is VRO of West Vipparru, he accompanied with Police at the time of observation of scene of offence on 22.4.2015 at about 9.00 AM and attested Ex.P.2 observation report.

Again the investigating officer choose the very same mediator at the time of arrest of accused on 26.6.2015 and attested Ex.P.3. As deposed by him on the date of arrest the Police caught hold one person i.e., the accused and he confessed that he along with another person committed theft of gold sutrams along with chain at B.C. Colony, Tadepalligudem the Police arrested him and seized piece of gold chain from the possession of the accused in his presence.

25. It is elicited from the evidence of P.W.2 that he acted as mediator in 25 cases in favour of Police, though he denied that he is stock 12 mediator to the Police, his evidence discloses that he is stock mediator to the Police who simply attested the mediators report without gone through the contents of the report, as such he failed to speak about the contents that are mentioned in the mediators report and simply stated that the accused committed theft of mangala sutrams along with chain. As admitted by P.W.2, he did not make a mention the value of the seized property in Ex.P.3 and the value and weight of the seized property also not stated by him. The investigating officer not followed the procedure as prescribed under Section 100(4) of Cr.P.C while conducting search and seizure.

26. The investigating officer not conducted any test identification parade in this case to identify M.O.1 through P.W.1, whether it belongs to her. P.W.6 also not seized the remaining part of stolen property which was in the hands of P.W.1 to connect the same to the seized property. The evidence of P.W.3, 4 and 6 is also silent regarding the seizure of remaining piece of chain available with P.W.1 to connect M.O.1 to the theft property.

P.W.1 straight away identify M.O.1 in the court and took the same for interim custody. There are variations in the evidence of P.Ws.1, 2 and 6 with regard to the seizure of M.O.1 from the possession of accused that it is the stolen property from the possession of P.W.1 at the time of offence.

Unless the remaining gold chain piece recovered from P.W.1 and produced the same before the court and tallied the same with M.O.1, it cannot be decided whether it is the same property which was committed theft from the possession of P.W.1. Since one piece of gold chain is available with

P.W.1 and the same was not seized by the investigating officer, there is every possibility to plant the said piece of chain available with P.W.1 in this case by the investigating officer to implicate the accused in this case for statistical purpose as rightly contended by the learned counsel for the accused.

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27. Mere latches on the part of the investigating officer is not fatal to the prosecution case as per the settled law, but here in this case, the arrest of accused and seizure of theft property is doubtful in view of the contradictions elicited from the evidence of material witnesses i.e., P.Ws.1, 2 and 6. Non-conducting property test identification parade and non- seizure of material object i.e., remaining piece of chain available with

P.W.1 is certainly fatal to the prosecution case and there is every possibility to plant the very same piece of gold chain available with P.W.1 for the case purpose. Therefore in the aforesaid circumstances the alleged robbery committed by the accused at the house of P.W.1 and committed theft of M.O.1 from the possession of P.W.1 and recover M.O.1 from the possession of accused is doubtful. Therefore it is fit case to give benefit of doubt to the accused and I have no hesitation to hold that the prosecution failed to establish the alternative charge levelled against the accused for the offence punishable under Section 411 IPC beyond reasonable doubt.

Therefore it is fit case to give benefit of doubt to the accused.

Accordingly, this point is answered.

28. POINT NO.2:

In view of my elaborate discussion in Point No.1, this court find irregularity and illegality in the observations of the trial court while appreciating the evidence on record and not followed the procedure prescribed under law while convict the accused and imposed sentence.

Further the learned trial Judge not properly framed the charges and also not answered the charges in a right manner and committed error.

Therefore the findings of the trial court needs interference and the sentence imposed by the trial court is liable to be set aside.

Accordingly, Point No.2 is answered.

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29.In the result , the Appeal is allowed setting aside the Judgment of Conviction and Sentence for the offence under Section 394 or alternatively 411 of IPC passed by the I Additional Judicial Magistrate of I

Class Court, Tadepalligudem dated 31.01.2017 in C.C.No.597/2015. The

Fine amount of Rs.1,000/- paid by the Appellant/ A.2 is ordered to be returned to him forthwith. The Bail Bonds of Appellant/ A.2 shall stand cancelled.

Typed to my dictation by the Stenographer Grade-I directly on Computer, corrected and pronounced by me in open Court, on this the 9 th day of September, 2021.

Sd/-A.Mary Grace Kumari,

Special Judge for speedy trial of Offences

under POCSO Act, 2012, W.G.Dt., Eluru FAC: VII Additional District & Sessions Judge, (Family Court), West Godavari, Eluru.

APPENDIX OF EVIDENCE

No oral and documentary evidence is adduced on either side.

Sd/-A.Mary Grace Kumari,

SPECIAL JUDGE, POCSO COURT, W.G., ELURU

FAC: VII A.D & S.J. (Family Court), W.G., Eluru.

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IN THE COURT OF V ADDITIONAL SESSIONS JUDGE-CUM-SPECIAL

COURT FOR TRIAL OF OFFENCES AGAINST WOMEN,

WEST GODAVARI, ELURU.

Present: Smt. A.Mary Grace Kumari,

Special Judge for speedy trial of offences under POCSO Act, 2012,

West Godavari, Eluru. FAC: V Additional District & Sessions Judge, W.G., Eluru.

Thursday, this the 30th day of June, 2022

Sessions Case No.51 of 2019

[Cr.No.179 of 2017 of Kalla Police Station]

Name of complainant : Sub Inspector of Police, Kalla police station

Crime No. and PS : Cr.No.179/2017 of Kalla Police Station.

Name of accused : Boddu Rama Krishna, S/o.Narasimha Murthy, age 47 years, Ak.Kshatriya, Pallipalem village, Kalla mandal.

Charges : Charges Under Sections 376 r/w 511 of Indian Penal Code against Accused.

Plea of accused : Pleaded not guilty.

Finding of Judge : Found not guilty.

Order or Sentence : In the result, Accused is found not guilty for the charge punishable under Sections 376 r/w 511 of Indian Penal Code and accordingly, accused is acquitted U/Sec.235(1) Cr.P.C for the said charges. The bail bonds of accused shall be in force for a period of six months as required Under Section 437 (A) Cr.P.C. No case property produced. Hence, no property orders passed relating to disposal of case property.

Case conducted by : Additional Public Prosecutor, West Godavari District, Eluru.

Accused defended by : Sri B.P.Ravi Sankar, Advocate for Accused.

This case coming on this day i.e., on 22.03.2022 for hearing

before me and after hearing the counsel of both parties and having

stood over for consideration till this day, this Court delivered the following:

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J U D G M E N T

The State represented by the Sub-Inspector of Police, Kalla Police

Station, has laid charge sheet against the accused for the offences punishable under Sections 376 r/w 511 of Indian Penal Code against the accused.

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

(i) Pw1 is victim and she is ward member of Gram panchayat

Kalavapudi village and she is supporter of TDP, and she is an illiterate. Her husband deserted her while her son was aged about 3 years. She is only daughter to his parents, as such she is residing with her parents along with his son, his wife and children. The Accused also resident of

Kalavapudi village and he belongs to YSRCP party.

(ii) On 13.12.2017, at about 9.00 PM, Pw1 went to canal bund/Yetigattu of her village in front of her house to attend calls of nature.

By that time her son and mother went outside to attend function. While she was returning after attending calls of nature to go to her house, in the meanwhile the accused came to her and caught hold her that he had intention on her and asked her to satisfy his lust, when she was resisting from the hands of accused her blouse, sari and petticoat were torn and the accused try to commit sexual assault against her, by that time as the motor cycle lighting the accused went away then she rushed to her house and remains in her house due to fear. On the next day she informed the incident to the Sarpanch and elders of the village ie., Pws 2,3 and 5 and also she informed the incident to her son, the elders called the accused but he refused to attend before elders, she handed over her clothes to police while presenting Ex.P1 report. Basing on Ex.P1 report, Pw6 the then Sub

Inspector of police, Kalla police station registered as a case in

Cr.No.179/2017under Section 376 r/w 511 IPC and investigated into the 3 case he send the victim to the Government Hospital, Bhimavaram for medical examination and also forwarded the accused for potency test. After completion of investigation he laid charge sheet in this case.

3. This case was taken cognizance by the 1Ind Additional

Judicial First Class Magistrate, Bhimavaram, for the offences under

Sections 376 r/w 511 of Indian Penal Code. The copies of documents, which are relied by the prosecution were supplied to the accused as required U/sec.207 of Code of Criminal Procedure.

4. After committal proceedings, the case was numbered as

S.C.No.51/2019 and made over to the Assistant Sessions Judge’s Court,

Bhimavaram, for disposal according to law. Later, as per the proceedings of the Hon’ble High Court of Judicature at Hyderabad for the State of

Telangana and the State of Andhra Pradesh Hyderabad in ROC

No.179/E1/2013, dated 15-09-2018, this case was withdrawn from the court of Assistant Session Judge’ Court, Bhimavaram and transferred to this court, for disposal according to law.

5. On appearance of accused, on due consideration charges under Sections 376 r/w 511 of Indian Penal Code have been framed against the accused, read over and explained to accused in Telugu, for which he denied the same, pleaded not guilty and claimed to be tried.

6. During the course of trial, the prosecution examined Six (06) witnesses as P.Ws.1 to 6 out of Twelve (12) listed witnesses and got marked Exs.P.1 to P10 documents on its behalf and M.Os 1 to 3 are also marked. The learned Addl. Public Prosecutor has given up the evidence of

L.Ws.2,3,6,8 to 10 namely Kollati Ranga Prasad, Moka Maresh, Tirumani

Ramakrishna, Meda Vaddikasulu, Tammu Jaya Raju, Dr.S.Chaya

Prasanna, Civil Assistant Surgeon, Community Health Centre, 4

Bhimavaram., as the material witnesses including the victim turned hostile.

7. After closure of the prosecution side evidence, Accused was examined under Section 313 Cr.P.C. by explaining the incriminating evidence appeared against him, out of the evidence of prosecution witnesses, for which the Accused denied the same and reported no defence on his behalf.

8. Now, the points that arose for determination in this case are that:

1. Whether the prosecution able to establish the guilt of accused that he attempt to commit sexual assualt against Pw1 for the offence punishable under Sections 376 r/w 511 of Indian Penal Code beyond reasonable doubt?

2. To what relief?

9. Heard learned counsel for the accused and the Additional Public

Prosecutor.

10. Point No.1 ::-

In order to establish the charge under Sections 376 r/w 511 of

Indian Penal Code against Accused, prosecution relied on the evidence of

P.Ws. 1 to 6 and Exs.P1 to P10 documents. Out of P.Ws. 1 to 6, PW1 is the victim, P.Ws. 2,3 and 5 are the villagers of victim and they came to know about the incident through PW1, PW4 is medical officer who examined Pw1 and issued wound certificate and final opinion and PW6 is the investigating officer in this case.

11. It is the contention of the Additional Public prosecutor that the evidence of PWs. 1 to 6 consistent and corroborative in all material aspects and their evidence clearly establish the involvement of accused in the commission of offence against PW1. The accused who was an evil eye 5 upon the victim who attempt to commit sexual assault against victim about 15 years back, again on the date of incident taking advantage of the loneliness of victim on the road during night time, he pounced upon her and attempt to commit sexual assault against her by torn her clothes thereby the prosecution established the charge levelled against accused beyond reasonable doubt.

12. Per-Contra, the learned defence counsel argued that the accused is nothing to do with the alleged offence, basing on political rivalry in the village, the victim who belongs to TDP political party filed false cases against accused who belongs to YSRCP, in order to harass him from time to time. The evidence of PWs.1 to 6 inconsistent and un-corroborative and not trustworthy to rely, the investigating without proper investigation with the influence of TDP leaders falsely implicated the accused in this case.

13. The learned counsel further contended that the prosecution witnesses uncorroborated with the oral testimony of the victim which evidence is sufficient to disbelieve the case of prosecution. PW1 selected her party-men and planted them in this case with her influence to involve the accused in an offence, further PW1 not choose to go to the village elders or caste elders to inform the alleged incident and also no neighbours of the scene of offence examined in this case to support the version of victim. Entire evidence relied by the prosecution does not establish anything against accused with regard to his involvement in the alleged offence. Thereby the prosecution failed to establish the charge levelled against accused beyond reasonable doubt.

14. In the view of the contentions of both the counsels, I have perused the material on record. Before discussing the evidence on record it is relevant to discuss the contents that are mentioned in 1st information report which are hereunder.

6

“ while the son of Pw1 aged about 2 years, the husband

of Pw1 deserted her, the accused who is resident of her

village try to commit sexual assault against her about

15 years back and she filed case against him, the

village elders pacified the matter and the said case was

ended in acquittal in the court, thereafter the accused

never misbehaved with her, since last one month the

accused try to talk with Pw1 and following her, on

13.12.2017, the inmates of Pw1 went to other village

and she alone in the house, on the same day night at

about 9.00 PM, she went to canal bund in front of her

house to attend calls of nature, the accused all of a

sudden fell on her and pulled her sari and torn her

blouse and petticoat and try to commit sexual assault

against her stating that since long time he had sexual

desire upon her, by that time on the lighting motor cycle

from canal bund he left her and kept a side, then due to

fear she came to her house and not informed the same to

anybody on the next day morning she informed the

incident to the elders of village ie., Pws 2,3, 5 and

others, they call the accused but he did not turn up, on

the advice of elders she present a report in the police

station,”

15. Admittedly PW1 is member of gram panchayat and she belongs to Telugu Desam party, PWs. 2, 3 and 5 also belongs to Telugu Desam

Party. PW3 is Sarpanch of Kalavapudi Gram Panchayat, PW5 the then

MPTC member, whereas the accused alone belongs to YSRCP in the village.

As admitted by PWs. 1 to 3 and 5 one Barri Kanaka Raju, Kondamanda

Venkateswarlu, Narni Bhimeswararao, Basavani Sambamurthy and Gade

Venkateswararao are the village elders apart from them. There are also caste elders in the village, but Pw1 not to choose to approach the village elders and caste elders of the village to inform the alleged incident to them to do justice to her. Apparently she choose only her party-men who came behind her in this case.

16. PW2 deposed in his evidence that on 14.12.2017 at about 9/10 A.M Pw1 came to his house and informed the incident to him that he advised to inform the same to the elders of the village, on that day evening himself and other elders of the village one Moka Maresh/Lw3, Pw5,

Tirumani Ramakrishna/Lw6 called the accused but he did not turn up. As 7 admitted by him during cross examination he does not know the person who was sent by elders to call the accused. The Sarpanch of the village told to him that he send a man to call the accused and the accused refused to come, which version of Pw2 clearly shows that he was not elder of the village and he was present among the elders by the time they called the accused.

17. PW3 who is Sarpanch of Kalavapudi village not supported the case of prosecution, as stated by him during cross examination by the learned Additional Public Prosecutor, since 20 years he is village elder and he was Sarpanch of Kalavapudi earlier for 5 years. Whenever dispute arose in between villagers he along with other elders used to settle the issue, in that way he settled the earlier dispute between Pw1 and accused in the village which case is similar to the present case facts. It is elicited from the evidence of Pw3 during cross examination of learned defence counsel that he was Sarpanch of Kalavapudi village and he is nothing to do with the affairs of Pallipalem village where pw1 and accused are residing. He was not settled the earlier issue between PW1 and accused and the same was settled by Moka Maresh, Barre Kanakaraju, M.Venugopala Raju. The evidence of Pw3 shown that he was not acted as elder either to the earlier dispute of Pw1 or the incident as alleged by pw1 in this case. PW3 changed his version from time to time and his evidence cannot be relied on as truthful version.

18. PW5 also not supported the case of prosecution initially during cross examination by the learned Additional Public Prosecutor he admitted that PW1 informed to him that the accused try to commit sexual assault against her, As per the evidence of PW5 in chief on the date of incident the accused talked with PW1 indecently but, he replied to her that he have no talking terms with the accused and advised her to approach village elders.

8

It is elicited from the cross examination of Pw5 that, he is not village elder or caste elder and he is TDP Ex.MPTC, his house is situated 10 yards away to the scene of offence, Pw1 did not inform about the alleged incident to him on that day night or on the next day morning. He have no knowledge whether Pw1 approached the village elders and informed the alleged incident to her, He do not know about the earlier incident in between Pw1 and accused.

19. From the evidence of aforesaid witnesses it is clear that,

PWs. 2,3 and 5 are neither village elders nor caste elders of the village where the alleged incident took place and there is every possibility to plant the said witnesses by Pw1 who belongs to her party-men in order to support her, as rightly contented by the learned defence counsel. Except

PW1 no other independent witnesses in this case to support the version of

Pw1 regarding the incident and with regard to her approach before village elders and inform the incident to them. If the evidence of PW1

consisted and trustworthy to believe regarding the incident her sole

testimony can be relied on to give conviction to the accused as per

settled law.

20. As deposed byPw1 in her evidence on the date of incident at about 9.00 PM, in the middle way from canal bund to her house, the incident took place, in the incident the accused beat her on her cheeks and she lost one teeth. The medical officer examined her and she showed her mouth and cheeks at the time of examination. If the said version of

PW1 is true, it has to certainly corroborated with the evidence of medical officer. Perusal of the evidence of PW4, one Dr.S.Chaya Prasanna/Lw10

Civil Assistant Surgeon, Community Health Centre, Bhimavaram, examined Pw1 on 15.12.2017 and she found no external injuries. As per

Ex.P6 wound certificate, there are no bruise and abrasions on the cheeks 9 of Pw1 and there is no loss of teeth and found no injury to the mouth.

Which evidence of PW4 falsifies the testimony of PW1.

21. The investigating officer who examined as PW6 deposed in his evidence that he send the victim for medical examination, as if sexual assault committed against her and also he send the accused for medical examination for potency test. Pw4 examined the accused and issued certificate stating that the accused is potent. The medical officers also preserved the material objects collected from Pw1 and accused during medical examination and PW6 forwarded the material objects to the RFSL

Vijayawada for analysis, which investigation done by PW6 clearly shows that, there is every possibility to influence PW6, by PW1 with her TDP leaders to register a case against accused to involve him in a grave offence basing on political rivalry in the village as rightly contended by the learned defence counsel. Ex.D-1 is the 161 Cr.P.C. statement of Pw5 which shows that the investigating officer not examined him and Pw5 did not state

before him as in Ex.D1. Simply because Pw1 handed over her torn blouse

and petticoat along with sari to the police, which are no way helpful to the case of prosecution that there is any possibility to torn the said material objects in the incident. It is not case of prosecution that the accused fell her down on the road and removed her clothes forcibly in order to commit sexual assault against her and Pw1 altercated with the accused in that struggle the clothes of Pw1 torn.

22. There is no whisper in the evidence of PW1 that she raised any cries loudly when the accused try to commit sexual assault against her. If really the accused try to commit sexual assault against her, PW1 certainly raised loud cries in order to save herself as the scene of offence is located in a residential area and there are residential house with a near distance to the scene of offence. PW2 also residing near to the scene of offence but 10 he did not hear cries of PW1 at the time of alleged incident. PW1 also not to try to inform the incident immediately to the neighbours or village elders which act of PW1 shows possibility to file a case against accused basing on political rivalry in the village, the evidence of PW1 does not inspire any confidence to believe her version regarding the involvement of accused in the incident.

23. The evidence relied by the prosecution of PWs. 1 to 6 does not establish anything regarding the possibility to accused to commit sexual against Pw1 as he is strong support in the village than the accused. If at all he commit such type of offence, there is every possibility to place the matter before the elders of the village and immediately rushed to the police station and reported the matter to police, but Pw1 present a report in the police station on the next day at 9.00PM and the delay of one day not explained by the prosecution with cogent reasons. Though it is mentioned by the investigating officer in column No.8 of FIR that “matter being submitted in their village elders.”but no such elder examined by the prosecution to establish the reason for such delay. Therefore,there is every possibility to prepare Ex.P1 after deliberation with the party supporter of PW1 by planting her party-men as village elder.

24. In view if the aforesaid discussion there is every possibility to foist this case against accused to harass him as he belongs to opponent party who have no support in the village. The inconsistency untrustworthy and uncorroborated testimony of PW1 is no way helpful to the prosecution to give conviction to the accused. Therefore, I have no hesitation to hold that the prosecution failed to establish the charge under Section 376 r/w

Section 511 of Indian Penal Code against the accused, failed to establish the charge under relied beyond reasonable doubt.

Accordingly this point is answered.

11

25. Point No.2:

In the result, Accused is found not guilty for the charge punishable under Sections 376 r/w 511 of Indian Penal code and accordingly, accused is acquitted U/Sec.235(1) Cr.P.C for the said charges.

The bail bonds of accused shall be in force for a period of six months as required Under Section 437 (A) Cr.P.C.

M.Os. 1 to 3 shall be destroyed after expiry of appeal time.

Directly typed to my dictation by Stenographer Grade-I, corrected and pronounced by me in open Court on this the 30th day of June, 2022.

Kuma rSpecial Judge for speedy trial of offences under POCSO Act, 2012, FAC:V Additional District &

Sessions Judge, West Godavari,

Eluru.

APPENDIX OF EVIDENCE

Witnesses examined:

For Prosecution: For Defence:

P.W.1 : Victim -Nil-

P.W.2 : Tirumani Marraju

P.W.3 : Gedela John

P.W.4 : Dr. B.Srinivasa Raju, C.A.S., CHC, Bhimavaram

P.W.5 : Basavani Vaddikasulu

P.W.6 : M.Raj Kumar, the then SI of Police

Exhibits marked for prosecution

Ex.P.1 Dt.14.12.2017 Signature of PW1 on the report of PW1

Ex.P.2 Dt.14.12.2017 Section 161 Cr.P.C. statement of PW1

Ex.P.3 Dt.22.01.2018 Wound certificate

Ex.P.4 Dt.19.04.2018 RFSL report, Vijayawada

Ex.P.5 Dt.26.07.2018 Final opinion

Ex.P.6 Dt.22.12.2017 Preliminary wound certificate

Ex.P.7 Dt.16.05.2018 Final opinion.

Ex.P.8 Dt.14.12.2017 Original FIR

Ex.P.9 Dt.15.12.2017 Rough sketch

Ex.P.10 Dt. 29.01.2018 Letter of advice.

12

Exhibits marked for defence

Ex.D1 is 161 Cr.P.C. statement of Pw5 dated 15.12.2017

Material Objects Marked

M.O.1 is torn pink jacket

M.O.2 is torn red petticoat

M.O.3 is pink and biscuit coloured light green and yellow sari.

Spl. Judge, POCSO Court, Eluru, FAC: V ADJ,Eluru 13

TABULAR FORM ANNEXED TO THE JUDGMENT IN

SESSIONS CASE NO. 51 of 2019.

IN THE COURT OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE-

CUM-SPECIAL COURT FOR TRIAL OF OFFENCES AGAINST WOMEN,

WEST GODAVARI, ELURU.

UNDER RULE 318 OF THE CRIMINAL RULES OF PRACTICE.

1. Sessions Case No. and P.R.C.No: : S.C.51/2019 and P.R.C.No.39 of 2018 with name of the committal court of IInd Additional Judicial Magistrate of I Class Court, Bhimavaram.

2. Name of the Police station : Crime No.179/2017 of Kalla Police station.

3. Name of the Accused and : Boddu Rama Krishna, S/o.Narasimha Murthy, age 47 years, Ak.Kshatriya, particulars Pallipalem village, Kalla mandal.

4. Date of offence : 13-12-2017

5. Date of complaint : 13-12-2017

6. Date of apprehension : 23-12-2017(Obtained anticipatory bail)

7. Date of release on bail : --

8. Date of committal order : 23-01-2019

9. Date of commencement of trial : 21-06-2022 10 Date of close of Trial : 28-06-2022 11 Date of Sentence of Order : 30-06-2022 12 Sentence : In the result, Accused is found not guilty for the offences punishable under Sections 376 r/w 511 of Indian

Penal Code and accordingly, accused is acquitted U/Sec.235(1) Cr.P.C for the said charges.

The bail bonds of accused shall be in force for a period of six months as required Under Section 437 (A) Cr.P.C.

No case property produced.

Hence, no property orders passed relating to disposal of case property.

13 Explanation for the delay : No delay 14 14 Appeals as prescribed under rule : -- 319 of Crl.Rules of Practice with regard to the diary extract submitted by the Committing Court.

rSpecial Judge for speedy trial of offences under POCSO Act, 2012, FAC:V Additional District &

Sessions Judge, West Godavari,

Eluru Copies to:

1.The Registrar (Judicial), High Court of Andhra Pradesh.

2.The District Collector, W.G., Eluru.

3.The IInd Additional Judicial I Class Magistrate Court, Bhimavaram.

4.The Superintendent of Police, W.G., Eluru.

5.Additional Public Prosecutor, V Addl. District and Sessions Court –cum-Special Court for trial of offences against women, W.G., Eluru

1

IN THE COURT OF THE VII ADDL.DISTRICT JUDGE, FAMILY

COURT, WEST GODAVARI, ELURU.

Present:- Smt.A.Mary Grace Kumari

SPECIAL JUDGE FOR SPEEDY TRIAL OFFENCES

UNDER POCSO ACT, 2012,

FAC: JUDGE, FAMILY COURT-CUM-VII ADDITIONAL DISTRICT

JUDGE, WEST GODAVARI, ELURU

Tuesday, this the 20th day of April, 2021.

Criminal Revision Petition No.23/2019.

Between: 1.Smt.Anumolu Adilakshmi W/o.Krishna, Hindu, female, aged 42 years, Housewife, R/o.D.No.4-150-9/1, Weakers Colony, Tadepalligudem, West Godavari District.

2. Anumolu Supriya D/o.krishna, Hindu, female, aged 4 years, Mother’s protection R/o.D.No.4-150-9/1, Weakers colony, Tadepalligudem, West Godavari District. (being minor rep.by her natural guardian/mother i.e., 1st petitioner) ...Revision Petitioners/Petitioners.

Vs.,

1.Anumolu Krishna S/o.Veerayya, Hindu, Male, aged 49 years, Mason, R/o.D.No.1-86, Near Vinayaka Temple, Pullaigudem, Tadepalligudem, West Godavari District.

2.The State: rep.by its APP., West Godavari District, Eluru. …Respondents.

This revision petition is filed under Sections 397 to 399 of

Cr.P.C. on behalf of the revision petitioners/petitioners against the order dated 24.01.2019, in M.C.No.46/2015 on the file of II

Additional Judicial Magistrate of First Class, Tadepalligudem,

which is made in:-

Between:

1. Smt.Anumolu Adilakshmi

2. Anumolu Supriya (2nd petitioner being minor represented by natural guardian mother 1st petitioner)

... Petitioners…

Vs.,

Anumolu Krishna ..…Respondent.

2

This petition is coming on 12.04.2021, for hearing before me in the presence of Sri B.Jagannadha Reddy, , Advocate for the Revision Petitioner and of Sri C.V.Srinivasa Sastry, Advocate for the Respondent No.1 and Public prosecutor for the 2nd respondent after hearing both sides and after perusing the material on record, this Court delivered the following:

O R D E R

The revision petitioners/petitioners filed this criminal revision petition being aggrieved by the orders passed in

M.C.No.46/2015, dated 24.1.2019 by the learned IInd

Additional Judicial Magistrate of I Class, Tadepalligudem.

2. The parties to the revision petition will be hereinafter referred as they are arrayed in the trial court.

3. The case of the petitioners in brief is that:

(i) From the age of 15 years, the 1st petitioner and respondent loved each other and they both lead marital life at Tadepalligudem without marriage and in the meanwhile the 1st petitioner conceived. Then, the parents of the 1st petitioner and herself requested the respondent for marriage then he rejected for the same. Then the parents of the 1st petitioner performed another marriage to the petitioner then also the respondent came to the inlaws house of 1st petitioner and demanded her to come along with him or else threaten to die. Then, the 1st petitioner left her husband and also took divorce. Later he was died. In the month of August, 1999 respondent married the 1st petitioner at the temple of Matha Aalayam,

Gowripatnam. Later at the request of elders, the respondent again married her as per Hindu rites and customs on 30-08-2001 and lead marital life with her. Later the 1st petitioner came to know that the respondent married one Dhanalakshmi and also had two daughters.

When the 1st petitioner enquired about the same, the respondent promised to look after her affectionately and believed her with his dubious words and also written one Hamipatram on 25-12- 2011. Later respondent took an amount of Rs.50,000/- and five sovereigns of gold from the petitioner for his business and several times 3 he got aborted the pregnancy of 1st petitioner by consuming pills and by harassing her physically and mentally enjoyed her sexually several times.

On 20-08-2013 at about 10.30 a.m., the respondent came to the house of 1st petitioner and tried to give pills for aborting her six months pregnancy, when she rejected for the same, respondent quarreled with her and threatened her to kill her with dire consequences.

(ii) Basing on the complaint of 1st petitioner, police registered a case in

Cr.No.237/2013 of Tadepalligudem Town Police Station. Later on 04-11- 2013 the 1st petitioner gave birth to the 2nd petitioner and one Santha

Kumari who is also born through respondent was doing a small job in the college.

(iii) Further the petitioner is suffering with BP, sugar and other ailments. The respondent also did not return the amount of Rs.50,000/- and 5 sovereigns of gold ornaments. The respondent is doing as mason and getting an income of Rs.30,000/- and the respondent is also having 500 square yards of site and from that he is getting an income of

Rs.20,000/- . The respondent is also having Ac.1.00 cents of land and from that he is getting an amount of Rs.40,000/- per annum. The present petition is filed with a prayed to grant an amount of Rs.5,000/- per month and Rs.3,000/- per month respectively towards the maintenance of petitioners No.1 and 2 and also for costs of the petition.

4. The respondent filed his counter denying all the averments of the petition and contended that:

(i) The respondent never lived with the 1st petitioner and bothof them never lived as wife and husband in one roof. There is no cohabitate relation with the 1st petitioner and the marriage of 1st petitioner was performed with one Veera Srinu as admitted by the 1st petitioner and her name is Veera Adilakshmi but not Anumolu 4

Adilakshmi. There is no wife and husband relation between the 1st petitioner and himself. The 2nd petitioner and Veera Sandha Kumari are not his daughters. The respondent never married the 1st petitioner in

Mathaalayam or as per Hindu rites on 30-08-2001 or at any time. This respondent never gave any Hamipatram as alleged by the 1st petitioner and she is not the legally wedded wife of this respondent. The 1st petitioner is getting pension with the name of her husband by name

Veera Srinu and ration card as the wife of Veera Srinu.

(ii) This respondent married one Dhanalakshmi in the year, 1988 and the respondent has two children. One Lakshmi Gowri and

Umamaheswari who are aged about 27 and 25 years respectively and this respondent is living with the said legally wedded wife Dhanalakshmi.

This respondent has no means to provide maintenance to the petitioners.

The respondent is used to sell fruits on cycle and his income is very low.

He has no sufficient income to maintain himself. The respondent is struggling for his livelihood and has no means to provide maintenance to the petitioners. The 1st petitioner is hale and healthy and working as private employee in Hostel and earning Rs.10,000/- per month and sufficient means to maintain herself and the 2nd petitioner. The documents filed by the 1st petitioner are created for the purpose of this petition and the present petition is filed only to gain wrongfully and the respondent will file relevant documents at the time of trial.

5. On behalf of petitioner, 1st petitioner herself examined as PW1 besides her elder daughter as PW2 and examined her neighbour as PW3 and got marked Exs.P1 and P2 documents. On the other side, the respondent himself was examined as RW1 and got marked Exs.R1 to R4 on his behalf.

5

6. After hearing the arguments on both sides, the followings points were framed by the learned Trial Court for determination:

(1) Whether the 1st petitioner is entitled for Rs.5,000/- and 2nd petitioner is entitled for Rs.3,000/- towards monthly maintenance?

(2) To what relief?

7.The learned trial court after considering the respective contentions and evidence adduced by the parties, allowed

M.C.No.46/2015 in part by order dated 24.1.2019 directing the

respondent to pay monthly maintenance of Rs.1,000/- to the1st petitioner and with regard to the maintenance to the 2nd petitioner, the same is dismissed. Further, it was ordered that the respondent shall pay the said amount to the 1st petitioner on or before 5th of every month.

8.Being aggrieved by the orders of the trial court in granting monthly maintenance of Rs.1,000/- and dismissal of awarding maintenance against 2nd petitioner, the petitioners being revision petitioners preferred this revision on the following grounds:-

i) The judgment of the Trial Court is contrary to law, weight of evidence and probabilities of the case; ii) The Trial Court not properly scrutinized the evidence of P.Ws.

and ought to have granted monthly maintenance to the 1st petitioner @ Rs.5,000/- per month instead of Rs.1,000/- per month, which is not at all sufficient and not dismissed the claim of maintenance to the 2nd petitioner; 6

(iii) The Trial Court ought to have seen that the respondent is having sufficient means to maintain the petitioners as he has been earning Rs.30,000/- per month as mason work besides having movable and immovable properties;

(iv) The Trial Court ought to have ordered to send medical test (DNA) whether the 2nd petitioner is the daughter of the respondent or not and thereby it can be easily decided whether the 2nd petitioner is the daughter of this respondent or not and thereby award maintenance to the 2nd petitioner also to a tune of

Rs.3,000/- per month;

(v) The Trial Court ought to have believed the evidence of petitioner and disbelieved the evidence of RW1 and Exs.R1 to R4 and ought to have awarded the maintenance as per the status of the respondent to the petitioners as per the evidence placed by them;

(vi) The Trial Court should have seen that he has not properly appreciated the decision cited on behalf of this petitioner and ought to have appreciated the cross-examination made bdy the petitioner’s counsel on PW1;

9.The points that emerge for determination are:

1. Whether the 1 st Petitioner is entitled for maintenance @ Rs.5,000/- per month from the respondent?

2. Whether the 2 nd petitioner is entitled for maintenance @ Rs.3,000/- per month from the respondent?

3. Whether the Trial Court is justified in awarding

maintenance to the 1 st petitioner and dismissed the claim of

maintenance of 2 nd petitioner? and whether there are any

tenable grounds to interfere with the orders passed in

M.C.No.45/2016 on the file of the IInd Additional Junior Civil

Judge’s Court, Tadepalligudem, dated 24.1.2019?

10. POINT No.1:-

It is the contention of the learned counsel for petitioners that the award of maintenance granted by the Trial Court @ Rs.1,000/- per month is not even sufficient for the medicines of PW1, who is suffering with ill-health. The 1st petitioner have no source of income to maintain herself and 2nd petitioner. The learned counsel 7 further contended that the 2nd petitioner was born to the 1st petitioner and respondent during the relevant period while they were resided together under one roof as wife and husband. Even an illegitimate child is also entitled to claim maintenance. The evidence relied by the petitioners established the case of the petitioners that the 1st petitioner is the legally wedded wife of the respondent and 2nd petitioner was born to them during their wedlock period. The Trial Court not properly appreciated the evidence relied by the petitioners and dismissed the claim of 2nd petitioner and that awarded only meager amount from the respondent.

11. The learned counsel for respondent contended that the 1st petitioner is not legally wedded wife of respondent and the 2nd petitioner not born to them, the respondent is having wife and children and he already performed the marriages of his daughters.

The 1st petitioner who is relative of the sister-in-law of respondent filed this case with false allegations to extract money from the respondent illegally. The learned counsel further contended that the marriage of 1st petitioner with one Veera Srinu and the respondent is nothing to do with the petitioners. The marriage in between Veera Srinu and 1st petitioner is still subsisting. The 1st petitioner is getting pension from the Government as wife of Veera

Srinu. The admissions elicited from the evidence of P.Ws. 1 and 2 established the said fact. The Trial Court not properly appreciated the evidence relied by both parties and award maintenance to the 1st petitioner for which, she is not entitled and that the Trial Court 8 rightly dismissed the maintenance claim of 2nd petitioner.

Therefore the appeal is devoid of merits and liable to be dismissed.

12. In view of contentions of both counsels, I have perused the material available on record and also gone through the orders passed by the Trial Court.

13. Admittedly, the respondent not preferred any appeal challenging the maintainability of the claim of 1st petitioner and award maintenance to the 1st petitioner with a finding that “the 1 st petitioner alone entitled for maintenance from the respondent. The 2 nd petitioner is not entitled to claim maintenance, as no proof relied by the 2 nd petitioner to prove that 2 nd petitioner is daughter of respondent/RW1”.

14. At this appellate stage, it is needless to discuss, the evidence relied by both parties with regard to the legality of the marriage in between the petitioner and respondent, as the respondent not challenged the findings of the Trial Court.

Regarding the quantum of maintenance awarded by the Trial

Court, in favour of 1st petitioner @ Rs.1,000/- per month in its order dated 24-01-2019. A perusal of the evidence of Pws.1 and 2, they deposed that the respondent is mason and he is getting

Rs.35,000/- to Rs.40,000/- per month. Except oral testimony of

P.Ws. 1 an 2, they are not relied on any documentary proof to show that the respondent is getting Rs.35,000/- to Rs.40,000/- per month. As per the recital that is mentioned in Ex.P.2 consent letter executed in between 1st petitioner and respondent, respondent is doing Mason work. The 1st petitioner and respondent are living together in the parents house of 1st petitioner since 15 9 years as on the date of Ex.P2 i.e., dated 25-12-2011. The respondent except denying the documents that are relied by the petitioners, he did not produce any contra proof to deny the Ex.P2 document.

15.As per the contention of the respondent, the 1st petitioner is getting pension from the government and it is sufficient for her livelihood, apart from that the 1st petitioner is having one terraced house. Regarding the said income source, the respondent relied on Exs.R2 to R4 documents. As per Ex.R4, endorsement issued by MRO., Tadepalligudem, that One Veera

Esteru, W/o.Srinu received widow pension with door No.4-111-5, 2nd ward, Tadepalligudem, with pension ID No.105201955 under

NTR Barosa Scheme, since October, 2007. But, no proof relied by the respondent to show that PW1 is getting the said pension and the respondent failed to examine the person who issued Ex.R4 to establish the said fact. The door number mentioned in Ex.R3 belongs to 1st petitioner is not tallied with that of the door number mentioned in Ex.R4. It is settled law that mere filing of a document cannot prove its contents unless the person, who issued the document examined on oath and admitted the said fact.

16. Here in this case, the respondent failed to examine the concerned authorities who sanctioned and delivered pension to the 1st petitioner in the name of One Esteru W/o. Srinu to establish the said fact to know about the income source of 1st petitioner. In the evidence, PWs.1 and 2 denied the documents that are relied by the respondent that PW1 is taking widow pension from the

Government. Further, P.Ws.1 and 2 admitted in their evidence 10 during cross-examination that PW1 is not getting income from any other source and PW1 is residing in the house of her mother and due to ill-health she is not attending any work. PW2 who is elder daughter of PW1 getting some income out of her private employment and she used to look after the welfare of petitioners.

P.Ws. 1 and 2 further admitted that PW1 is getting pension from the Government but they does not know the nature of the said pension.

17. According to the respondent, he is doing coolie work and his wife is depending on him and he need not provide maintenance to the 1st petitioner as wife and 2nd petitioner as daughter. Even assuming for a moment, who is attending coolie work, he used to get Rs.300/- per day now a days and getting

Rs.9,000/- per month if he attended daily coolie work. As per the evidence on record, PW1 and RW1 lived together under one roof for a long period of 15 years as wife and husband and the same was recognized by neighbours including PW3. The respondent got his legally wedded wife who is also depending on him and the respondent have to provide maintenance to her also. Therefore, the maintenance awarded by the Trial Court @ Rs.1,000/- per month is meager and not sufficient for the maintenance of 1st petitioner.

In the aforesaid circumstances, award maintenance to the 1st petitioner @Rs.2,000/- per month is just and reasonable at present days to meet the daily necessities i.e., food, clothes and medicines etc, even she is getting pension from the Government given to the needy people.

Accordingly, this point is answered.

11 18. POINT No.2:-

As per the contention of the learned counsel for petitioners, the 2nd petitioner is legitimate child of 1st petitioner and respondent, as such, she is also entitled for maintenance as prayed for. A perusal of evidence of P.Ws. 1 to 3 they categorically deposed in their evidence that the 2nd petitioner is child born to 1st petitioner and respondent while the respondent was residing with 1st petitioner under one roof. As deposed by P.Ws. 1 and 2, the 2nd petitioner is aged about 2 years, as on the date of filing of the petition in the year, 2015 and she was aged about 5 years as on the date of evidence of PW2 as on 14-03-2018 and she is studying

UKG. The reasons best known to the 1st petitioner, she suppressed the birth certificate and Aadhar card of 2nd petitioner and also her study certificate to prove the contention of the petitioners that the respondent is the father of 2nd petitioner and his name is mutated in all the relevant records as father of the 2nd petitioner. Why, PW1 suppressed the said record is best known to her and no explanation from her side to that effect.

19. As deposed by PW2 in her evidence that she is aged about 20 years and she studied mechanical Engineering at VICE

Engineering College from the year, 2009 to 2013 and she is doing private job. As admitted by her, in her school certificates and other identity cards her father name mentioned as Veera Srinu. The evidence of P.Ws. 1 and 2 is silent whether the father name of 2nd petitioner mentioned in the birth certificate, school records and other identity cards as Anumolu Krishna (respondent). No proof relied by the petitioners to support their contention that the 2nd 12 petitioner was born in between the living relationship of 1st petitioner and respondent. The reasons best known to the 1st petitioner, she did not prefer for DNA test to establish the paternity of 2nd petitioner that the respondent is the biological father of 2nd petitioner. In the absence of any conclusive proof relied by the petitioners, it cannot be presumed that the 2nd petitioner is the legitimate daughter born to the 1st petitioner and respondent.

Therefore, the 2nd petitioner is not entitled for any maintenance from the respondent.

Accordingly, this point is answered.

20. POINT No.3:-

In view of my elaborate discussion in Point Nos. 1 and 2, the

Trial Court justified in awarding maintenance to the 1st petitioner and dismissed the maintenance claim to the 2nd petitioner but the quantum of amount granted by the Trial Court @ Rs.1,000/- per month is not reasonable at present cost of living. Therefore, the quantum of amount awarded by the Trial Court is modified to

Rs.1,000/- to Rs.2,000/- per month from the date of petition and the remaining findings of the Trial Court regarding the payment of amount by 5th of every succeeding month is intact. Each party do bear their own costs.

Accordingly, this point is answered.

21.In the result, the Criminal revision petition is allowed in part modifying the order of IInd Additional Junior Civil Judge,

Tadepalligudem, in M.C.No.46/2015, dated 25.1.2019 and awarded monthly maintenance @ Rs.2,000/- per month instead of 13

Rs.1,000/- per month from the date of petition and the claim of the 2nd petitioner as ordered by the Trial Court is hereby confirmed. In the circumstances, each party do b ear their own costs.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in open Court on this the 20th day of April, 2021.

Sd/-A.Mary Grace Kumari

Special Judge for speedy trial of Offences under

POCSO Act, 2012,FAC:VII Additional Sessions

Judge, West Godavari, Eluru.

Copy to: The IInd Additional Judicial Magistrate of 1stClass, Tadepalligudem(along with L.C. record). //By order//

1

IN THE COURT OF JUDGE FAMILY COURT ­Cum­VII ADDITIONAL DISTRICT

AND SESSIONS JUDGE, WEST GODAVARI AT ELURU.

Present: Smt.A. Mary Grace Kumari,

Spl. Judge for trial cases under POCSO Act

 FAC: Judge, Family Court – cum – 

 VII Additional District Judge,

Friday, this the 30 th day of July, 2021.

CRIMINAL APPEAL NO.181/2018

From what Court the appeal:Judicial Magistrate of I Class, Bhimadole is preferred

No. of the case in that Court:C.C.No.338/2014 

No. of the Criminal Appeal:Criminal Appeal No.181/2018

Name and Description of the:1.Akkala Nageswara Rao , S/o Appellant/Accused.Sitharamayya, Hindu, Male, aged 70 years, Galayagudem, Denduluru Mandal, West Godavari District.

2. Akkala Sivayya, S/o Nageswara Rao, Hindu,Male,aged45years, Galayagudem, Denduluru Mandal, West Godavari District.

3. Akkala Sitharamayya, S/o Nageswara Rao, Hindu, Male, aged 35 years, Galayagudem, Denduluru Mandal, West Godavari District.

4. Akkala Uma Maheswara Rao, S/o Nageswara Rao, Hindu, Male, aged 24 years, Galayagudem, Denduluru Mandal, West Godavari District.

5. Akkala Pushpa, W/o Sivayya, Hindu, Female, aged 39 years, Galayagudem, Denduluru Mandal, West Godavari District.

6. Akkala Padma, W/o Sitharamayya, Hindu, Female, aged 29 years, Galayagudem, Denduluru Mandal, West Godavari District. Names and description of the State SHO, Denduluru PS rep. by the Respondents Additional Public Prosecutor, W.G., Eluru.

2

The Sentence and Law and:In the result, A1 to A6 are found guilty for which it was imposed in thethe offence punishable under section 324 Lower Courtr/w 34 IPC and they are convicted of the same under section 248(2) of Cr.P.C. A1 to A6 are sentenced to undergo Rigorous Rigorous imprisonment for a period of one year and to pay fine of Rs.1,000/­ each, offence punishable under section 324 r/w 34 IPC, in default of payment of fine they shall undergo simple imprisonment for a period of fifteen days for the offence punishable under section 324 r/w 34 IPC.

Whether confirmed, modified: or reversed and if modified the modification

R E V E R S E D

Date of presentation:16.5.2018

Date of filing:16.5.2018 Date of notice issued :16.5.2018

Date of Bail bond:--

Date of appearance:21.6.2018 Date of hearing:28.7.2021 Date of Judgment:30.7.2021

This appeal is coming on 28.07.2021 before me for final hearing through video conferencing (Blue Jeans App) in the presence of Sri M.Rajendra, Advocate for appellants 1 to 6 and Additional Public Prosecutor for the State/respondent, and having stood over for consideration, this Court delivered the following:

J U D G M E N T

This criminal appeal is filed under Section 374 Cr.P.C., against the judgment of conviction and sentence passed by the Judicial Magistrate of I Class, Bhimadole

dated 11.05.2018 in C.C.No.338/2014 convicted and sentenced the

appellants/accused 1 to 6 as per section 248(2) Cr.P.C., for the offence punishable under Section 324 r/w 34 of IPC., to undergo Rigorous imprisonment for a period of one year each and to pay fine of Rs.1,000/­ each, in default of payment of fine amount A1 to A6 shall undergo simple imprisonment for a period of fifteen days for the offence punishable under section 324 r/w 34 IPC. 

2.The parties are arrayed as per the charge sheet for the sake of 3 convenience.

3. The case of prosecution in brief is as follows: 

(i) PW1 is resident of Galayagudem village of Denduluru Mandal. The accused 1 to 6 are immediate neighbours of PW.1. There are no amicable terms in between the accused and PW.1 and there is boundary dispute in between them. On 10.5.2010 at about 8.30 AM while PW.1 and his family members were erecting fence in the place of the old fence, a dispute arose between the both parties. In that regard, A1 to A6 are attacked PW.1 and beat him with sticks and caused injuries to him. PW.1 shifted to Government Government hospital Eluru, for treatment, thereafter he was referred to Government General hospital, Vijayawada for better treatment. PW.5 examined PW.1 for his injuries and issued Ex.P2 wound certificate.

 (ii) On 12.5.2010 at about 5.00 PM while PW.6 was in the PS he received hospital intimation along with the statement of PW.1, basing on the statement of

PW1, PW.6 registered a case in Cr.No.75/2010 under Section 324 r/w 34 of IPC., and investigated into. Later he proceeded to Government hospital Eluru and recorded the statements of PWs.1 and 2. He visited the scene of offence situated at

Galayagudem village and secured the presence of PWs.3 and 4 and other witnesses and recorded their statements. On 17.5.2010 PW.6 arrested A1 to A6 and sent them for judicial remand.

4.The learned Judicial Magistrate of First Class, Bhimadole, took cognizance of the offence under Sections 324 r/w 34 of I.P.C., against Accused and numbered the case as C.C.No.338/2014.

5.After accused appeared before the Judicial Magistrate of First Class,

Bhimadole, the accused were furnished copies of documents as required under section 207 of Cr.P.C.,. A1 to A6 were examined under section 239 Cr.P.C, and explained the accusation leveled against them for the offence under section 324 r/w 34 IPC for which, A1 to A6 pleaded not guilty and claimed to be tried. 

4 6. During the course of trial, the Prosecution has examined P.Ws.1 to 6 and marked Exs.P.1 to P.4.After closure of prosecution side evidence, accused 1 to 6 were denied the incriminating evidence appeared against them during 313

Cr.P.C., examination and on their behalf Exs.D1 to D3 were marked.

7. Considering the evidence adduced on record, the Judicial Magistrate of

First Class, Bhimadole convicted the accused 1 to 6 u/s.248(2) Cr.P.C. for the

offence punishable under Section 324 r/w 34 of I.P.C., and sentenced them to undergo Rigorous imprisonment for a period of one year each and pay fine of

Rs.1,000/­ each, in default of payment of fine amount they shall undergo simple imprisonment for a period of fifteen days for the said offence.

8.Aggrieved by the findings of the trial Court, the appellant/Accused preferred this appeal on the grounds mentioned hereunder:

i) The judgment of the Trial court is contrary to law, weight of evidence of probabilities of the case and the Trial court is erred in sentencing the appellants for the offence Under Section 324 r/w 34 of IPC. 

ii) The trial court erred in passing the impugned order, without taking into consideration of the fact that the PW.1 on his own accord trying to grab the site of the appellants by abusing them in filthy language.

iii) The trial court failed that PW.1 grabbed the property of the appellants.

iv) The trial court did not taken into consideration of the fact that when the appellants raised the dispute before the local elders, the PW.1 abused the appellants before the elders and kicked the A1. 

v) The trial court erred in convicting the appellants that there are civil disputes in between the appellants and the PW.1.

vi)The trial court erred in not taken note of the admission made by PWs.1 to 6.

vii)The trial court failed to see that the prosecution miserably failed to prove the necessary ingredients and prayed to set aside the conviction and sentence order passed against the accused 1 to 6 and to acquit them for the 5 offence under Section 324 r/w 34 IPC.

9.Heard the learned Additional Public Prosecutor and the Learned counsel for A1 to A6 through Video conferencing (Blue Jean APP). 

10.Now the points that arose for determination in this case are:­ 1).Whether the prosecution has proved the guilt of accused 1 to 6 for the offence punishable under Section 324 r/w 34 I.P.C., beyond all reasonable doubt?

2). Whether the sentence imposed by the learned Trial Judge for the offence under Section 324 r/w 34 I.P.C., is sustainable and there are any tenable grounds to interfere with the findings of the trial Court?

6 11.POINT No.1:

It is the contention of the learned Counsel for accused 1 to 6 that, absolutely there is no iota of evidence on record to establish the accusation under section 324 r/w 34 IPC against A1 to A6 that the accused with a common intention beat the PW.1 and caused his injuries. The medical evidence not corroborated with the oral testimony of PW.1 with regard to the injuries sustained by PW.1 on the alleged date of incident. The evidence of PWs.1 to 4 is full of material contradictions and omission and not corroborate with each other to believe their version. The investigating officer falsely implicated the accused in this case due to political influence, therefore the prosecution failed to prove the alleged offence against accused beyond reasonable doubt. The trial court went on wrong to convict the accused and not appreciated the evidence on record in perspective manner therefore the conviction and sentence passed by the trial court is liable to be set aside.

12. On the other hand, the learned public prosecutor submitted that the trial court basing on the evidence on record rightly convicted the accused and there are no tenable grounds to interfere with the findings of the trial court and thereby the appeal is liable to be dismissed. 

13. In view of the contentions of both counsels, I have perused the material on record and also I have gone through the Judgment of trial court.

14. In order to establish the accusation made against A1 to A6 for the offence under section 324 r/w 34 IPC the prosecution has to establish that A1 to A6 with the common intention voluntarily cause hurt to PW.1 by beat him with sticks and with their hands.

15. In order to establish the accusation against the accused the prosecution relied on the evidence of PWs.1 to 6 and Exs.P1 to P4. Out of PWs.1 to 6, PW.1 is injured, PW.2 is wife of PW.1 , PW.3 is brother’s son of PW.1 and PW.4 is daughter in law of PWs.1 and 2. PW.5 is medical officer and PW.6 is investigating officer in this case. Ex.P1 is statement of PW.1, Ex.P2 is wound certificate of PW.1, Ex.P3 is 7 hospital intimation. and Ex.P4 is original FIR.

16. A perusal of Ex.P1, the statement of PW.1, on 10.5.2010 at about 8.30 AM

PW.1 along with his two sons namely Ravi and Venkateswara Rao laying a fence in the place of old fence. By that time A1 to A6 came there with sticks and beat him indiscriminately on his head, right hand wrist, and his back and right foot. On his intervention of the sons of PW.1, the accused pushed them away. Then PW.1 was taken to hospital by his two sons and one Pasupuleti Satyanarayana/PW.3 to the

Government hospital, Eluru for treatment. 

17. As per the evidence of PW.1 on 10.5.2010 at about 9.30 AM while himself and his wife were present in the house A2 and A3 demolished the fence on the southern side of his house, when he questioned them about the same A2 beat him with a stout stick on his head and caused injury to him, the remaining accused came to the place and took away A2 from that place, later he was shifted to

Govermnent hospital, Eluru where he was treated and gave his statement to police covered by Ex.P1 . 

18. According to PW.2 who is wife of PW.1 on the date of incident at about 8.00 or 8.30 AM while herself and PW.1 and her daughter in law were present in the house A1 to A3 demolished the fence, when PW.1 questioned the same A2 beat him with a stick on his head caused injury.

19. According to PW.4 who is daughter in law of PWs.1 and 2 while herself and

PWs.1 and 2 were present in the house A1 to A6 demolished the fence on that PW.1 questioned them, then A1 beat him with stick and caused injury to him and remaining accused caught PW.1. 

20. Though PWs.1, 2 and 4 are belongs to same family and direct eye witnesses to the incident they stated a different version which was not stated before investigating officer when he was examined them. As per Exs.D1 to D3 8 contradictions elicited from the evidence of PWs.1, 2 and 4 on the date of incident while PW.1 and his sons raising the fence which was fell down due to wind. The accused came there and raised objection not to raise fencing. The investigating officer/PW.6 categorically deposed in his evidence that PWs.1 , 2 and 4 stated before him as in Ex.D1 to D3 and they did not state before him as stated by them in their evidence respectively as the date of incidentn when that PWs.1, 2 and 4 were present in the house A2 and A3 demolished the fence on southern side of his house, then PW.1 questioned them and that A1 to A3 demolished the fence on that PW.1 on questioned them and that A1 to A6 demolished the fence on that PW.1 questioned

A1 to A6 . 

21. The entire evidence of PWs.1, 2 and 4 contradicts with each other regarding the incident and their evidence not corroborated on material aspects. The time of offence also not corroborated with each other. Exs.D1 to D3 are material contradictions which were elicited from the evidence of eye witnesses i.e. PWs.1, 2 and 4. Therefore, the evidence of PWs.1, 2 and 4 needs corroboration from independent source of evidence to believe the case of prosecution. Unfortunately the prosecution not relied on any independent evidence ub tgus case. The reasons best known to the prospection, the learned Public Prosecutor given up the independent witnesses i.e, LWs.4 to 6. It is elicited from the evidence of PWs.1 to 4 that the scene of offence is situated in a residential locality and many people gathered at scene of offence and the people who gathered there know the things happened on that day. But the prosecution not examined any independent witnesses in the case to corroborate with the evidence of eye witnesses. The non examination of independent witnesses arises a reasonable doubt regarding the genuineness of the case of prosecution.

22. According to PW.1 on the date of incident PW.3 came to the scene of offence and shifted him to the hospital along with his sons. As deposed by PW.3 on 10.5.2010 at about 7.30 or 8.00 AM while he was at his work place he received 9 phone call from one Durga Rao and informed to him that altercation is going on at his house. On that he rushed to the scene of offence and noticed PW.1 with head injury and shifted him to Govt. hospital. On enquiry he came to know that altercation took place in between PW.1 and accused relating to fence. As admitted by him during cross examination police not examined him regarding the incident.

Contra to the evidence of PW.3 it is elicited from the evidence of PW.6 that PW.3 did not state before him that he received phone call from Durga Rao while he was in work place on enquiry PW.1 and others informed to himthat the altercation took place relating to fence. The evidence of PW.3 is nothing but material omission and he did not state before police about the same and he first time in the Court regarding the said version. The evidence of PW.3 is silent how PW.1 received head injury. If the version of PW.3 is believable only altercation took place in between

PW.1 and Accused and in the same altercation PW.1 sustained injury as such PWs.2 and 4 unable to point out that who exactly beat PW.1

23. With regarding to injury sustained by PW.1 as per Ex.P2, he sustained two injuries i.e., superficial scratch wound over middle aspect of right forearm in lower 1/3 and PW.1 complains severe headache with tenderness over the right half of frontal region complaining of generalized body ache . Opinion not given by the medical officer/PW.5, as radiologist report and treatment details of GGH,

Vijayawada are not available.

24. According to PW.5 the injuries sustained by PW.1 may possible if he fall on rough surface. The medical evidence relied by the prosecution is not corroborated with the oral testimony of PW.1. The evidence of PW.1 contradicts with that of the contents mentioned in Ex.P1 report. As per wound certificate PW.1 sustained only one injury which was not stated by PW.1 in his evidence. According to the wound certificate and evidence of PW.5 no bleeding injury sustained by PW.1 on his head.

The reasons best knows to the prosecution they did not examine the medical officer who treated the injured in the Government hospital at Vijayawada.

1 25. The evidence of PWs.1 to 5 is not trustworthy and not corroborative in all material aspects to rely and to believe the case of prosecution that A1 to A6 with an common intention beat PW.1 and caused injuries to him on the date of incident, basing on a dispute relating to fence. The entire evidence relied by the prosecution does not inspire confidence in a mind of the Court to give conviction to the accused as the evidence of PW.1 to 6 is untrustworthy and contradicts with each other.

Therefore, I am in considered opinion that the prosecution failed to establish for the offence punishable under section 324 r/w 34 IPC against A1 to A6 beyond reasonable doubt, thereby the accused are entitled to benefit of doubt.

Accordingly , this point is answered.

26. Point No.2 ::

In view of my elaborate discussion in point NO.1 I have no hesitation to hold that the trial court committed error in convict the accused without appreciating the evidence of PWs.1 to 6 in a proper manner and went on wrong to believe the uncorroborated and untrustworthy testimony of PWs.1 to 5. Therefore, the

Judgment passed by the trial court needs interference by the appellate court and liable to be set aside. 

Accordingly, this point is answered.

27. In the result, the appeal is allowed by set aside the Judgment of conviction and sentence for the offence punishable under section 324 r/w 34 IPC, against A1 to A6 passed by the Judicial Magistrate of I class Bhimadole, dated 11.5.2018 in CC

No.338/2014. The fine amount paid by the appellants/Accused 1 to 6 are ordered to be refund to them forthwith. Bail bonds of appellants/accused 1 to 6 shall stand cancelled. 

Typed to my dictation by the Stenographer Grade III directly on Computer, corrected and pronounced by me from home office, on this the 30 th day of July, 2021. Sd/­ A.Mary Grace Kumari,

Special Judge for speedy trial of Offences under 

POCSO Act, 2012,FAC:VII Additional Sessions

Judge, West Godavari, Eluru.

1

APPENDIX OF EVIDENCE

No oral and documentary evidence is adduced on either side. Sd/­ A.Mary Grace Kumari,

SPECIAL JUDGE, POCSO COURT, W.G., ELURU

FAC VII A.D & S.J., W.G., Eluru.

Copy to: The Judici al Magistrate of I Class, Bhimadole.

1

IN THE COURT OF V ADDITIONAL SESSIONS JUDGE-CUM-SPECIAL

COURT FOR TRIAL OF OFFENCES AGAINST WOMEN,

WEST GODAVARI, ELURU.

Present: Smt. A.Mary Grace Kumari,

Special Judge for speedy trial of offences under POCSO Act, 2012,

West Godavari, Eluru. FAC: V Additional District & Sessions Judge, W.G., Eluru. Monday, this the 29th day of August, 2022.

Sessions Case No. 178 of 2021

[Cr.No.114 of 2019 of Dharmajigudem Police Station]

Name of complainant : The Inspector of Police, Chintalapudi Circle.

Crime No. and PS : Cr.No.114/2019 of Dharmajigudem police station.

Name of accused : Peddineni Ramesh, S/o. Lakshminarayana, age 37 years, Kamma, Gogulampadu village, Musunuru Mandal, Krishna District.

Charges : Under Sections 328, 376(2)(n), 354(D), 506of Indian Penal Code and Section 66 of Information Technology Act, 2000 against Accused.

Plea of accused : Not guilty.

Finding of Judge : Not guilty.

Order or Sentence : In the result, Accused is found not guilty for the offence under Sections 328, 376(2)(n), 354(D), 506of Indian Penal Code and Section 66 of Information Technology Act, 2000 and accordingly Accused is acquitted U/Sec.232 Cr.P.C for the said charges. The bail bonds of the Accused shall be in force for a period of six months as required U/sec.437 (A) Cr.P.C. M.O.1 Honor 7X mobile phone (light blue colour with dual Sim, with Sim: 9010855353) shall put in Court auction and deposited the sale proceeds to the State after expiry of appeal time. M.O.1 returned to lower Court to intimate the property order.

Case conducted by : Additional Public Prosecutor, West Godavari District, Eluru.

Accused defended by : P.Prasada Rao, Counsel for Accused.

This case coming on this day i.e., on 11.07.2022 for hearing before me and after hearing the counsel of both parties and having stood over for consideration till this day, this Court delivered the following:

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J U D G M E N T

The State represented by the Inspector of police, Chintalapudi Circle, has laid charge sheet against the accused in Crime No.114/2019 of

Dharmajigudem Police Station for the offences punishable under Sections 328, 376(2)(n), 354(D), 506 of Indian Penal Code and Section 66 of

Information Technology Act, 2000.

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

(i) Pw1 who is victim in this case, studied 10th class, Pws 2 and 3 are parents of Pw1, Pws 5 to 8 are villagers of pws 1 to 3. pw4 is the then

VRO of Dharmajigudem village who acted as mediator to the arrest of accused for recovery of M.O.1 from the possession of accused.

(ii) Pws1 to 3 and 5 to 8 denied the case of prosecution, Pw1 denied the contents of report presented to the police with her Ex.P1 signature

dated 19.05.2019 and admitted the statement given before Magistrate

covered by Ex.P2 stating that she gave the said statement before

Magistrate as stated by village elders and police. Pw1 denied the contents

of the report presented by her in the police station with her Ex.P1 signature, regarding the involvement of accused in the commission of offence that, the accused who is her elder sister’s husband had forcible sexual intercourse with her in her house repeatedly in the absence of inmates by threatening her to kill her sister and her children and also threatened her by showing her nude photos taken while she was unconscious which report to basis to Dharamjigudem police station to register a case in Cr.No.114/2019 under Sections 328, 376(2)(n), 354(D), 506of Indian Penal Code and Section 66 of Information Technology Act, 2000.

3. This case was taken cognizance by the Junior Civil Judge –cum-

Judicial Magistrate of I Class, Chintalapudi for the offences under Sections

328, 376(2)(n), 354(D), 506of Indian Penal Code and Section 66 of

Information Technology Act, 2000. The copies of documents, which are 3 relied by the prosecution were supplied to the accused as required

U/sec.207 of Code of Criminal Procedure and committed this case under

PRC No.05/2021.

4. After committal proceedings, the case was numbered as

S.C.No.178/2021 and made over to V Additional District Judge’s Court,

Eluru, for disposal according to law. Later as per the circular of the

Hon’ble Principal District Judge, West Godavari, Eluru, dated 20-11-2021,

and transferred to this court, for disposal according to law.

5. On appearance of the Accused before this court, on due consideration charge Under Sections under Sections 328, 376(2)(n), 354(D), 506of Indian Penal Code and Section 66 of Information Technology

Act, 2000have been framed against Accused, have been framed, read over and explained to him in Telugu, for which he denied the same and pleaded not guilty and claimed to be tried.

6. During the course of trial, the prosecution examined four (4) witnesses as P.Ws.1 to 8 out of Seventeen (17) listed witnesses and got marked Exs.P.1 to P11 documents on its behalf. The Addl. PP has given up

L.Ws. 8,9, 11 to 17/ Dr.M.Sravya, Civil Assistant Surgeon, Dr. K.Ajay,

Civil Assistant Surgeon, Shaik Imam Valli, W.P.C.709 Bhavani, J.Srinivasa

Rao, Hon’ble Judicial First Class Magistrate, Jangareddigudem, L.Rajesh,

Sub Inspector of police, Dharmajigudem police station. D.Chavan

Inspector of police, Jangareddygudem Circle, U.J.Wilson, Inspector of police, Chintalapudi Circle., as the material witnesses including the victim and other material witnesses not supported the case of prosecution. The evidence of Lw17/ P.Rajesh, Inspector of police, Chintalapudi Circle closed by the court as he did not turn up inspite of summons,

7. After closure of the prosecution side evidence, the examination of Accused U/sec.313 Cr.P.C is dispensed with as there is no incriminating material against the accused out of the prosecution witnesses.

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8. The points that arose for determination in this case is that:

1. Whether the prosecution established the guilt of the Accused for the offence punishable under sections 328 and 376(2)(n)

of Indian Penal Code beyond reasonable doubt?

2. Whether the prosecution established the guilt of the Accused for the offence punishable under sections 354(D) and 506

of Indian Penal Code beyond reasonable doubt?

3. Whether the prosecution established the guilt of the Accused for the offence punishable section 66 of Information of Technology Act beyond reasonable doubt?

4. To what relief?

9. Heard the learned counsel for accused and the learned

Additional Public Prosecutor. The learned Additional Public Prosecutor

and the learned counsel for the accused left the matter to the discretion of the court as material witnesses are not supported the case of the prosecution. Perused the material on record.

10. Point Nos.1 to 3:-

In order to establish the charge under Sections 328, 376(2)(n), 354(D), 506of Indian Penal Code and Section 66 of Information Technology

Act, 2000, the prosecution relied on the evidence of P.Ws.1 to 8. Out of

PWs.1 to 8, PW1 is the defacto complainant-cum-victim and P.Ws 2 and 3 father and elder sister of the victim, Pw4 is mediator and Pws 5 to 8 are the eye witnesses and villagers of Pws 1 to 3.

11. Pw1 who is victim in this case deposed that she studied 10th class and she is aged about 29 years, accused is her brother-in-law and husband of elder sister/Pw3. In the month of May, 2019, on the village elders obtained her signature on a white paper basing on some proper disputes. She admitted her signature/Ex.P1 on the typed report dated 19.05.2019, but denied the contents of the said report. Pw1 denied that she was sent to Government Hospital for medical examination and also the statement given before Inspector of police covered by Ex.P3 regarding the incident and commission of offence by the accused.

12. Pw1 further deposed she gave statement before Magistrate regarding the contents that are mentioned in Ex.P2 stating that she gave the said statement before magistrate as stated by village elders and police.

5 . PWs.2 and 3 who are father and elder sister of Pw1also deposed in the same lines as that of Pw1 and denied the case of prosecution stating that, they does not know anything about this case said to be committed by accused against PW1/victim and did not support the case of prosecution. They also denied the report given to police by Pw1 against accused.

13. Pws 5 to 8 who are villagers of Pws 1 to3 and witnessed whenever the accused visited the house of Pws 1 and 2 and came to know about the offence committed by the accused against Pw1 also denied the case of prosecution and they denied the statement earlier given before police as in Exs P8 to P11.

14. The only independent witness available on record is Pw4, as deposed by pw4, on 20.05.2019 at about 5.30 AM, she along with VRA of

Dharmajigudem village, accompanied with inspector of police and his staff they all went to the house of Pw1 and observed the scene of offence ie., bedroom in the house of Pw1 at Ayyapparajugudem village, there the inspector of police observed the scene of presence in their presence and scene observation duly attested by them i.e., Ex.P6.

15. Pw4 deposed that on the same day at 4.00 PM, herself and Lw11 accompanied with inspector of police and they went to Valasaplalli Check post center on credible information about the accused, there the inspector of police arrested the accused in their presence and seized M.O.1 from the possession of accused.

16. It is elicited from the cross examination of Pw4 that the place of arrest is a busy locality and the inspector of police not called any persons from the place of arrest to act as mediators, one ASI of police prepared mediator report and police not affixed any slips on M.O.1 duly signed by the mediators,police and accused. She came to know the accused through police. It is suggested to pw4 herself and, Lw12 signed on the observation report and mediator report in the police station who oblige and planted 6

M.O.1 for the case purpose.

17. Admittedly, M.O1 not identified by Pws 1 to 3 and it is not suggested to Pws 1 to 3 and 5 to 8 that M.O.1 belongs to the accused. NO piece of document produced by the prosecution to show that M.O1 belongs to the accused. Except theinvestigating officer seized M.O.1 he did not send the seized mobile phone to any laboratory to know whether the obscene pictures in the cell phone are taken with the said cell phone or the said pictures are morphed pictures. Pws 1 to 3 not identified anything available M.O.1 that the same are belongs to pw1 and accused.

18. The reasons best known to them, P.Ws. 1 to 3, 5 to 8 did not support the case of prosecution. Nothing was elicited from the cross examination of PWs. 1 to 8, regarding the involvement of Accused in the commission of offence towards P.W.1/victim. PWs.1 to 3 and 5 to 8 denied their earlier statements given before Investigating Officer as in Exs. P3 to

P5, P8 to P11.

19. Since the material witnesses who are victim, father and elder sister of victim and villagers of Pws 1 to 3 did not support the case of the prosecution, the learned Additional Public Prosecutor given up the evidence of other official witnesses and Investigating Officers in this case as their evidence is no way helpful to the case of the prosecution to give conviction to the accused. The evidence of Pw4 who is mediator present at the time of observation of scene of offence and seizer of M.O1 from the accused does not establish anything against accused regarding his involvement in the commission of offence against pw1. The Simple seizer of M.O.1 no way helpful by the prosecution without cogent and consistent evidence to connect M.O.1 to the accused for his involvement in the commission of offence. Since no mediator slip duly signed by the mediators, accused and investigating officer affixed on M.O.1 at the time of alleged seizer, there is every possibility to plant M.O1 in this case for statistical propose as rightly contended by the learned defence counsel.

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20. For the reasons best known to them, P.Ws.1 to 3, 5 to 8, who are material witnesses to the case of prosecution did not depose anything against the accused with regard to the alleged incident that the accused being brother-in-law of victim had forcible intercourse with her bythreatening her that he will kill her sister and her children and the accused was taken the obscene pictures ofPw1 and accused in his mobile and had physical contacts with her repeatedly by threatened her with the said obscene pictures. Pws 1 to 3 they might have compromised with the accused in this case inview of the future of Pws 1 and 3 and the children of

Pw3 and accused.

21. Therefore, from the evidence of prosecution witnesses no incriminating material appended to accused to connect him to the alleged offences, that the accused being brother-in-law of victim used to visit her house in the absence of inmates and gave intoxication substance mixed in the cool drink and fell her unconscious and had forcible sexual intercourse with her and captured the video of the said obscene pictures in his cell phone and continued physical contacts repeatedly by threatening her with the said pictures of his cell phone and threatened her that he will kill her sister and her children and blackmailing her and purposefully cancelled the marriage alliances of victim and thereby committed offence punishable under sections Under Sections 328, 376(2)(n), 354(D), 506of Indian Penal

Code and Section 66 of Information Technology Act, 2000 against Accused.

. Therefore, I have not hesitation to hold that the prosecution failed to establish the charges levelled against accused beyond reasonable doubt and it is a fit case to give benefit of doubt to the accused.

Accordingly this point is answered.

8

22. Point No.4:

In the result, Accused is found not guilty for the offence under

Sections Under Sections 328, 376(2)(n), 354(D), 506of Indian Penal Code and Section 66 of Information Technology Act, 2000 against Accused and accordingly Accused is acquitted U/Sec.232 Cr.P.C for the said charges.

The bail bonds of the Accused shall be in force for a period of six months as required U/sec.437 (A) Cr.P.C.

M.O.1 Honor 7X mobile phone (light blue colour with dual Sim, with

Sim: 9010855353) shall put in Court auction and deposited the sale proceeds to the State after expiry of appeal time.

M.O.1 returned to lower Court to intimate the property order.

Directly typed to my dictation by Stenographer Grade-I, corrected and

pronounced by me in open Court on this the 29thday of August, 2022.

Sd/- A. Mary Grace Kumari,

Ku marSpecial Judge for speedy trial of offences under POCSO Act, 2012, FAC:V Additional District &

Sessions Judge, West Godavari,

Eluru.

APPENDIX OF EVIDENCE

Witnesses examined for

For Prosecution: For Defence: P.W.1 : Victim -Nil-

P.W.2 : Akkineni Venkateswara Rao

P.W.3 : Akkineni Uma Maheswari

P.W.4 : Jalaparthi Sarada Devi.

P.W.5 : Mulpuri Mohan Rao

P.W.6 : Musunuri Satyanarayana

P.W.7 : Akkineni Veeraiah

P.W.8 : Parvathaneni Venkateswara Rao.

Exhibits marked

For Prosecution

Ex.P.1/dt.19-05-2019 : Report of PW1 on the statement.

Ex.P.2/dt.06-07-2019 : Section 164 Cr.P.C. statement of P.W.1.

Ex.P.3/dt.19-05-2019 : Section 161 Cr.P.C. statement of P.W.1.

9

Ex.P.4/dt.19-05-2019 : Section 164 Cr.P.C. statement of P.W.2.

Ex.P.5/dt.19-05-2019 : Section 161 Cr.P.C. statement of P.W.3.

Ex.P.6/dt.20-05-2019 : Scene Observation report.

Ex.P.7/-- : Mediator report.

Ex.P.8/dt.20-05-2019 : Section 161 Cr.P.C. statement of P.W.5

Ex.P.9/dt. 20-05-2019 : Section 161 Cr.P.C. statement of P.W.6.

Ex.P.10/dt.20-05-2019 : Section 161 Cr.P.C. statement of P.W.7

Ex.P.11/dt.20-05-2019 : Section 161 Cr.P.C. statement of P.W.8.

For Defence: -NIL-

Exhibits marked for defence

Nil

MOs. marked for

M.O.1 is Honor 7X mobile phone (Llight blue colour, with dual sim with Sim 6010855353)

NilIld/- I/d- A.M.G.K Spl. Judge, POCSO Court, Eluru FAC: VADJ, Eluru 10

TABULAR FORM ANNEXED TO THE JUDGMENT IN SESSIONS CASE

NO.178 of 2021 IN THE COURT OF V ADDITIONAL DISTRICT AND

SESSIONS JUDGE-CUM-SPECIAL COURT FOR TRIAL OF OFFENCES

AGAINST WOMEN, WEST GODAVARI, ELURU.

UNDER RULE 318 OF THE CRIMINAL RULES OF PRACTICE.

1. Sessions Case No. and P.R.C.No: : S.C.178/2021 and P.R.C.No.05 of with name of the committal court 2021 of Junior Civil Judge – cum-

Judicial Magistrate of I Class,

Chintalapudi.

2. Name of the Police station : Crime No.114/2019 of Dharmajigudem Police Station.

3. Name of the Accused and : Peddineni Ramesh, S/o. Lakshminarayana, age 37 years, Kamma, particulars Gogulampadu village, Musunuru Mandal, Krishna District.

4. Date of offence : 20.04.2014

5. Date of complaint : 19.05.2019

6. Date of apprehension : 20-05-2020

7. Date of release on bail : 15-07-2019

8. Date of committal order : 26-10-2021

9. Date of commencement of trial : 15.07.2022 10 Date of close of Trial : 26.08.2022 11 Date of Sentence of Order : 29.08.2022 12 Sentence : In the result, Accused is found not guilty for the offence under

Sections 328, 376(2)(n), 354(D), 506 of

Indian Penal Code and Section 66 of

Information Technology Act, 2000, accordingly Accused is acquitted

U/Sec.232 Cr.P.C for the said charges.

The bail bonds of the Accused shall be in force for a period of six months as required U/sec.437 (A)

Cr.P.C.

M.O.1 Honor 7X mobile phone (light blue colour with dual Sim, with

Sim: 9010855353) shall put in Court 11 auction and deposited the sale proceeds to the State after expiry of appeal time.

M.O.1 returned to lower Court to intimate the property order.

13 Explanation for the delay : No avoidable Delay 14 Appeals as prescribed under rule : -- 319 of Crl.Rules of Pr actice with regard to the diary extract submitted by the Committing Court.

Sd/- A. Mary Grace Kumari,

rSpecial Judge for speedy trial of offences under POCSO Act, 2012, FAC: V Additional District &

Sessions Judge, West Godavari,

Eluru.

Copies to:

1.The Registrar (Judicial), High Court of Andhra Pradesh.

2.The District Collector, W.G., Eluru.

3.The Judicial First Class Magistrate Court, Chintalapudi.

4.The Superintendent of Police, W.G., Eluru.

5.The Additional Public Prosecutor, V Addl. District and

Sessions Court –cum-Special Court for trial of offences against

women, W.G., Eluru