Sri B.Devendra Reddy

C.C.No.473 of 2012 1 JFCM COURT, PENUKONDA

IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE

PENUKONDA

Present:- Sri B.Devendra Reddy,

Judicial First Class Magistrate

Madakasira

FAC: Penukonda

Monday, the 1st day of August, 2016

CALENDER CASE No.473 of 2012

Between: State represented by Sub Inspector of Police, Kothacheruvu Police Station

...Complainant

-Versus-

1. Yetti Ramu S/o Late Pedda Narasappa, Age:36 years (A-1)

2. Yetti Obulesu S/o Late Pedda Narasappa, Age:40 years (A-2)

3. Yetti Pedda Narasimhulu S/o Late Pedda Narasappa, Age:52 years (A-3)

4. Yetti Anjaneyulu S/o Late Pedda Narasappa, Age:38 years (A-4)

5. Yetti Nagesh S/o Pedda Narasimhulu, Age:20 years (A-5)

6. Yetti Raju S/o Late Pedda Narasappa, Age:22 years (A-6)

7. Yetti Anjinamma W/o Pedda Narasimhulu, Age:48 years (A-7)

8. Yetti Gangamma W/o Ramu, Age:26 years (A-8)

9. Yetti Malleswaramma W/o Anjineyulu, Age:27 years (A-9)

10.Yetti Kadirappa S/o Late Pedda Narasappa, Age:28 years (A-10) All are of Pothulakunta Village, Kothacheruvu Mandal (Caste: Madiga, Profession: A-1 to A-5 and A-7 to A-9 are coolies and A-6 and A-10 are Students)

...Accused

This case is coming on 26-07-2016 for final hearing before me in the presence of the Assistant Public Prosecutor for the Complainant and of Sri B.Abubakar, Advocate for A-1 to A-10, and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

C.C.No.473 of 2012 2 JFCM COURT, PENUKONDA

1.The Sub Inspector of Police, Kothacheruvu Police Station has laid charge sheet against A-1 to A-10 in Crime No.53 of 2012 of

Kothacheruvu Police Station for the offences punishable under Sections 324 and 326 read with 34 of Indian Penal Code.

2.The brief facts of the charge sheet are as follows:-

On 12-07-2012 at about 4:00 PM the Dwakra Group leaders came to Pothulakunta Village, Kothacheruvu Mandal and held meeting with the member of Dwakra Group at Grama Panchayath Office and instructed the members to pay installments of Dwakra Group amounts received by them regularly without fail, and then they went away.

While father of PW-1 Yetti Raghunath i.e., PW-6 Yetti Pedda Gangadhri, mother of PW-1 i.e., PW-9 Yetti Muthyalamma and aunt of the complainant i.e., PW-2 Yetti Parwathi were discussing about the difference of Dwakra Group amounts at the house of PW-6 at about 9:00 PM A-1 and his wife A-8 while going to their house passing through the house of PW-6, heard the talks of their discussion about

Dwakra Group amounts and A-8 presumed that they are talking that they have done mischief by utilizing the Dwakra Group amounts, as A- 2 is maintaining the accounts of Dwakra Group amounts and in that sense A-1 and his wife A-8 went to there and debated with them in the meantime while A-8 and A-1 and his family members A-2, A-3 to A-7, A- 9 and A-10 came there with an intent to pick up quarrel with them and on knowing it, PW-1 and his aunt PW-2 intervened and told that this is ladies issue, and they are talking with regard to differences of Dwakra

Group amounts received by them.

A-1 to A-10 came near to the house of PW-6 who is father of PW-1 in furtherance of common intention of all to beat father of PW- 1 i.e., PW-9 and their family members, and in pursuance of their common intention, A-1 beat PW-6 wit stick indiscriminately over his

C.C.No.473 of 2012 3 JFCM COURT, PENUKONDA forehead, left eye, nose and in the meanwhile A-2 beat him with stick from back side over his head and caused bleeding injury. Then A-10 kicked him with his leg from behind, due to which he fell down then A- 3, A-8 and A-9 trampled PW-6 and kicked him with legs, while he fell down and caused dumb injuries. While PW-7 Yetti Chinna Rangappa came to rescue PW-6, A-5 beat PW-7 with stick over his head and caused bleeding injury and again beat him with the same stick over his right shoulder and caused dumb injury.

While PW-1 was standing there A-6 was attempting to him with stick over his head and in that juncture when PW-1 put his hands across toward of the blow, A-6 beat over his hands with stick and caused bleeding injury over his right hand little finger and ring finger, then A-1 and his wife A-8 beat PW-1 with stick over his left shoulder and caused bleeding injury. A-10 pulled him down and kicked him with legs. Then A-4 beat PW-8 Yetti Chinna Gangadhri with stick over his left hand and caused dumb injury. Then A-10 kicked him with his legs.

When PW-3 Yetti Pedda Rangappa came to rescue PW-8, A- 10 beat PW-3 with stick over his left cheek and caused bleeding injury and again beat him with the same stick over his left shoulder and left flank of belly and caused dumb injuries. While PW-6 was fallen down and when PW-4 Yetti Narasamma came to there to see her son PW-6, A- 3 beat her with stick over her head and caused bleeding injury. A-8 beat her with stick over her left hand and caused contusion. A-9 beat

PW-9 with stick over her left hand and right leg foot and caused dumb injuries. A-7 beat PW-2 with stick over her left shoulder and hand and caused dumb injuries to her. A-10 beat PW-5 Yetti Nagarathnamma with stick over left hand and caused swelling wound and then A-1 beat her with stick over her forehead and caused swelling wound to her. A-5 and A-10 pulled LW-10 Yetti Chinna Ramaiah and kicked him with legs

C.C.No.473 of 2012 4 JFCM COURT, PENUKONDA and beat with hands. Then PW-1 took his father PW-5 who is seriously injured and other injured persons PW-2, PW-3, PW-7 to PW-9 and LW-10

Yetti Chinna Ramaiah to Penukonda at 11:30 PM and they got admitted in Government Hospital for treatment. On the advice of doctors the injured were shifted to Government Hospital, Kurnool for better treatment.

On the complaint of PW-1, PW-12 M.Karunakar, Sub

Inspector of Police, Kothacheruvu Police Station registered a case in

Crime No.53 of 2012 for the offence punishable under Section 324 read with 34 of Indian Penal Code and investigated into. During the course of investigation, PW-12 – Sub Inspector of Police, Kothacheruvu Police

Station examined PW-1 to PW-9 and LW-10 Yetti Chinna Ramaiah and recorded their statements under Section 161(3) of Criminal Procedure

Code, visited the scene of offence and seized crime weapon i.e., 10 sticks under cover of police proceedings from the scene of offence and drawn rough sketch of the scene of offence. LW-11 Dr. S.Babjan, Civil

Assistant Surgeon, Community Health Centre, Penukonda who rendered treatment to PW-1 to PW-3, PW-7 to PW-9 and LW-10 Yetti

Chinna Ramaiah and opined that they received simple injuries and further opined that PW-6 received grievous injuries. PW-10 Dr.

B.Lakshmiram Naik, Civil Assistant Surgeon, Community Health Centre,

Penukonda who rendered treatment to PW-4 and PW-5 and opined that they received simple injuries. Basing on the medical report of PW- 11 - doctor, PW-12 – Sub Inspector of Police, Kothacheruvu Police

Station added Section 326 of Indian Penal Code in addition to Section 324 of Indian Penal Code. On 20-07-2012 A-1 to A-7, A-9 and A-10 were surrendered before this Court and PW-12 – Sub Inspector of Police,

Kothacheruvu Police Station arrested A-8 on 05-09-2012 and released her on bail. After obtaining the wound certificates of the injured and

C.C.No.473 of 2012 5 JFCM COURT, PENUKONDA after completion of investigation, PW-12 – Sub Inspector of Police,

Kothacheruvu Police Station laid charge sheet against A-1 to A-10 for the offences punishable under Sections 324 and 326 read with 34 of

Indian Penal Code. Hence, the charge sheet.

3. In this case cognizance was taken for the offences punishable Sections 324 and 326 read with 34 of Indian Penal Code against A-1 to A-10.

4.When A-1 to A-10 appeared before the Court, copies of all the documents on which the prosecution relied were supplied to them under Section 207 of Criminal Procedure Code.

5.When A-1 to A-10 were examined under Section 239 of

Criminal Procedure Code they denied having committed the offences.

Thereafter, charges under Sections 324 and 326 r/w 34 of Indian Penal

Code have been framed, read over and explained to them in English for which they pleaded not guilty and claimed to be tried.

6.In support of its case, the prosecution examined PW-1 to

PW-12 and Ex.P-1 to Ex.P-14 were marked and material objects M.O.1 to M.O.10 are marked.

7.After closure of prosecution evidence, A-1 to A-10 were examined under Section 313 of Criminal Procedure Code and the substance of incriminating material deposed by the prosecution witnesses was read over and explained to A-1 to A-10 in Telugu, to which they denied the same as false and reported no defence evidence on their behalf.

8.Heard arguments. Perused the record.

9.Now the point for determination is: “Whether the

prosecution could able to prove the guilt of A-1 to A-10 for the

C.C.No.473 of 2012 6 JFCM COURT, PENUKONDA

offences punishable under Sections 324 and 326 r/w 34 of

Indian Penal Code beyond all reasonable doubt?”

10.P O I N T: To prove the case of prosecution, prosecution examined PW-1 to PW-12. PW-1 is the de facto complainant, PW-2 to

PW-9 are the eye witnesses, PW-10 and PW-11 are doctors and PW-12 is the Investigating officer.

11.PW-1 deposed that on 12-07-2012 at about 4:00 PM the

Dwakra Group officials came to their village and stated to Dwakra

Group people that they are not paying amount regularly, on the same day at about 9:00 PM PW-2, PW-6 and PW-9 are discussing about the

Dwakra Amount infront of their house the wife of A-1 who was proceeding on the way asked PW-2, PW-6 and PW-9 that they are discussing about A-2 who is working in Dwakra Group and went away.

He further deposed that A-1 along with his family members i.e., accused came to their house with a common intention to make galata

PW-2 informed that the Dwakra Group is pertaining to the Women Folk they are speaking about the woman folk. He further deposed that A-1 beat his father PW-6 over his head, right leg and on right side of nose and due to that PW-6 sustained bleeding injuries. A-2 also beat PW-6 with stick on the back of his head, when PW-7 intervened PW-5 beat him with a stick over his head, due to that he sustained bleeding injury, A-5 also beat PW-7 over his left shoulder, A-6 tried to beat him with stick over his head he placed his hand to escape the blow which hit to his right little finger, A-8 also beat him over his left shoulder, A-4 beat PW-8 over his left hand with a stick, A-10 beat PW-3 with stick over his left cheek and left side of ribs, A-3 also beat PW-4 with stick over her head, due to that she sustained bleeding injury, A-9 beat his mother PW-9 with stick over her left hand and right foot, A-7 beat PW-2 over her left shoulder and left side of ribs, A-3, A-7 to A-9 kicked PW-6

C.C.No.473 of 2012 7 JFCM COURT, PENUKONDA with legs when he fell down on the ground. Thereafter they went to

Government Hospital, Penukonda for treatment. He further deposed that police recorded his Ex.P-1 statement. In the cross examination,

PW-1 admitted that all the accused are his close relatives. He further admitted that A-10 is doing Ph.D., at Sri Krishnadevaraya University,

Ananthapuramu. He further admitted that A-2, A-3 and A-10 are physically handicapped and their hands are lean and short by birth.

When A-2, A-3 and A-10 are physically handicapped and their hands are lean and short by birth how they can beat injured as stated by

PW-1. As A-2, A-3 and A-10 are physically handicapped it is not possible to beat the injured as stated by PW-1. Hence, it can be said that with oblique motive PW-1 filed this case against A-2, A-3 and A-10.

12.Now we have to look into the other evidence i.e., PW-2 to

PW-9 whether their evidence is corroborated with the evidence of PW-1 and with the evidence of other witnesses each other. PW-2 deposed that in the year 2012 at about 4:00 PM Dwakra Group officials came to their village and asked Dwakra members to assemble near the Gram

Panchayat Office they attended their and gave cash of Rs.10,000/- to each Dwakra Group asking them to repay the same, on the same day at about 9:00 PM while herself, PW-6 and PW-9 were discussing about the Dwakra Group amount near the house of PW-6, A-8 who was proceeded on the way asked them that A-2 to A-6 working in the

Dwakra Group used to make entries about the payment in the pass book and picked up quarrel with them, they stated to her the issue is pertaining to the woman folk. In the meanwhile, A-1 to A-7, A-9 and A- 10 also came there, A-1 and A-2 beat PW-6 with stick, PW-6 fell down on the ground when PW-3 went near PW-6 A-10 beat PW-3, A-5 beat

PW-7 over his head, when they went near to them A-7 beat her over her left side of ribs, when PW-9 went near PW-6 A-9 beat PW-9 over her

C.C.No.473 of 2012 8 JFCM COURT, PENUKONDA right leg, A-3 beat PW-4, in the same incident 10 persons sustained injuries and later they went to Government Hospital, Penukonda for treatment.

13.The above evidence of PW-2 is not corroborated with the evidence of PW-1. The overtacts stated by PW-2 is not tallied with the overtacts stated by PW-1. PW-2 deposed that in the same incident 10 persons sustained injuries. She did not state who are the said 10 persons and who beat the said 10 persons. In the cross examination,

PW-2 gave answer to the question why they did not attempted to assault the persons who beat them. For which the witness stated that some of the persons who are injured victims herein are not hale and healthy. On perusal of the evidence of other injured in this case they did not state anywhere that they are not hale and healthy. So, saying by PW-2 that the other injured victims are not hale and healthy is not correct. The counsel for the accused rightly pointed out that why they did not attempt to assault the persons who beat them. If really A-1 to

A-10 attacked and beat PW-1 to PW-10 definitely they would have revolted against the accused and they would have made some efforts to assault the accused. In this case no attempt was made to assault the accused while they are beating them. So, all the accused beat

PW-1 to PW-3 with sticks is doubtful.

14.PW-3 deposed that in the month of July, 2012 at about 9:00

PM the galata took place between him and accused in relation to

Dwakra Group amount, when he went to rescue PW-6, A-1 beat him over his left cheek and left shoulder and left side of the ribs. He further deposed that all the accused beat their family members with sticks indiscriminately and caused injuries. Thereafter they went to

Government Hospital, Penukonda for treatment.

C.C.No.473 of 2012 9 JFCM COURT, PENUKONDA

15.When analyzed the evidence of PW-3, except saying that A- 10 beat him and he received injuries in the hands of A-10. He did not state that A-1 to A-10 beat the other injured i.e., PW-2, PW-4 and PW-9.

If really A-1 to A-10 beat the other injured PW-2, PW-4 and PW-9 definitely he would have stated the overtacts of the accused as stated by PW-1. So, it cannot be said that A-1 to A-10 beat the other injured i.e., PW-2, PW-4 to PW-10 with sticks and caused injuries. In the cross examination PW-3 stated that after beating him over his left cheek with stick he fell unconscious, he regained consciousness at Government

Hospital, Penukonda. When he fell unconscious how he can say that all the accused beat their family members with sticks indiscriminately and caused injuries. On perusal of the evidence of other witnesses they did not state that PW-3 fell unconscious immediately after receiving injuries in the hands of A-1 to A-10 and he regained consciousness at

Government Hospital, Penukonda. So, saying by PW-3 that after receiving injuries in the hands of A-1 to A-10 he fell unconscious and regained consciousness at Government Hospital, Penukonda is not believable one.

16.PW-4 is also another injured he deposed that on coming to know that PW-6 fell down as somebody beat him, immediately he went to the house of PW-6 at that time A-3 beat him with stick over the head due to that he sustained injuries. Except that he did not state that other accused beat PW-1 to PW-3, PW-5 to PW-9 with sticks and they also received injuries in the hands of accused. Only he stated that he received injuries in the hands of A-3. If really accused beat other injured definitely PW-4 would have stated before the Court. PW-4 did not state any incriminating evidence against other accused it can be said that other accused did not beat the other injured persons. In the cross examination PW-4 stated that immediately after receiving injury

C.C.No.473 of 2012 10 JFCM COURT, PENUKONDA he fell unconscious and regained consciousness on the next day morning. On perusal of the evidence of prosecution witnesses none were stated that immediately after sustaining injury he fell unconscious and regained consciousness on the next day morning. So, saying by PW-4 that immediately after sustaining injury he fell unconscious and regained consciousness on the next day morning is doubtful.

17.PW-5 is another injured witness she deposed that nearly three years back at about 9:00 PM PW-2, PW-9 and PW-6 were discussing about the Dwakra group A-8 brought A-1 to A-7, A-9 and

A-10 and they beat them, A-10 beat her with stick over her left hand,

A-1 beat her with stick over her head, after that they went to

Government Hospital, Penukonda for treatment. This witness also did not state that the accused beat the other injured i.e., PW-1 to PW-4 and

PW-6 to PW-9. So, there is no corroboration between the evidence of

PW-1 to PW-4. If really the other accused beat PW-1 to PW-4 and PW-6 to PW-9 definitely PW-5 would have stated before the Court. As this witness also did not state any incriminating evidence against the accused it can be said that the other accused did not beat the other injured persons i.e., PW-1 to PW-4, PW-6 to PW-9. This witness stated in the cross examination that on the next day morning in between 9:00

AM to 10:00 AM he went to Government Hospital, Penukonda and took treatment. Whereas PW-10 doctor did not state that he gave treatment to PW-5 in between 9:00 AM to 10:00 AM. So, taking the treatment by

PW-5 by PW-10 is doubtful.

18.PW-6 is another injured witness he deposed that on 12-07-2012 at 9:00 PM he, PW-2 and PW-9 were discussing about

Dwakra scheme at his house A-8 asked them that they are discussing about them, A-8 brought A-1 to A-7, A-9 and A-10 armed with sticks, A-

C.C.No.473 of 2012 11 JFCM COURT, PENUKONDA 1 beat him with stick over left side of his forehead, over left hand upper, on the left side of nose, A-2 beat him with stick on the back of his head, A-10 kicked him on his back, due to that he fell down, PW-3 came to lift him, A-10 beat PW-3 over his ribs, when PW-4 intervened A- 3 beat PW-3 with stick over her head and other accused beat 10 other relatives. The evidence of PW-6 is not corroborated with the evidence of PW-1. PW-2 to PW-5 also did not corroborate with the evidence of

PW-6. So, there is no corroboration between the evidence of PW-1 to

PW-5 with the evidence of PW-6.

19.PW-7 is another injured he deposed that nearly three years back on one day at about 9:00 PM while he was at his house he heard a galata he came out from the house and found the accused assaulted

PW-6 he went there in order to rescue PW-6, A-5 beat him with stick over his head, due to that he sustained bleeding injury, A-5 also beat him with stick over his right shoulder, in the galata he along with PW-3 to PW-5, PW-8 and PW-9 sustained injuries. This witness did not state the overtacts of the accused. This witness also did not state that on which part other injured received injuries. His evidence is also not corroborated with the evidence of other witnesses.

20.PW-8 is another injured witness he deposed that on 10-07-2012 at about 9:00 PM the offence took place while he was at his house, on hearing the galata he went to the scene of offence and he found PW-6 with injuries, when he brought to rescue PW-6, A-4 beat with stick over his left hand, due to that he sustained swelling injury, all his relatives also sustained injuries. This witness also did not state the overtacts of the accused and also he did not state on which part the other injured also received injuries. He also stated that his relatives also sustained injuries atleast he did not state the names of the injured who are his relatives and who sustained injuries in the hands of the

C.C.No.473 of 2012 12 JFCM COURT, PENUKONDA accused. So, it cannot be said that A-1 to A-10 beat the other injured persons.

21.PW-9 is another injured she deposed that on 12-07-2012 at about 9:00 PM while herself along with PW-6 and PW-2 are chitchatting with each other in relation to Dwakra Group, they found A-8 proceeding on the way A-8 questioned them that they are talking about them only, they replied her that they are not talking about them. Even then A-8 picked up quarrel with them and brought all the accused beat PW-6. A- 9 beat her over right foot and left hand, in the said galata some of their relatives also sustained injuries. Thereafter they went to Government

Hospital, Penukonda for treatment. This witness also did not state the overtacts of the accused and also she did not state the names of her relatives who sustained injuries in the hands of A-1 to A-10. Only stated that their relatives received injuries in the hands of A-1 to A-10.

So, it can be said that A-1 to A-10 did not beat the other injured persons. If the relatives of PW-9 sustained injuries in the hands of accused definitely she would stated the names of the injured persons.

The evidence of PW-9 is also not corroborated with the evidence of PW- 1 to PW-8 with regard to the injuries sustained by PW-1 to PW-8 as stated by them.

22.PW-10 is the doctor who treated PW-4 and PW-5. He deposed that on 13-07-2012 at about 12:40 PM he examined PW-4 and found two simple injuries. The injuries stated by PW-4 in his evidence is not tallied with the injuries stated by PW-10 doctor and the injuries stated by PW-4 also not tallied with Ex.P-2 wound certificate of PW-4.

PW-10 also examined PW-5 and found two simple injuries i.e., swelling and tenderness on left hand and over right side forearm. On perusal of evidence of PW-5, she stated that she received injuries on her left hand and also on her head. Only one injury is tallied and another injury i.e.,

C.C.No.473 of 2012 13 JFCM COURT, PENUKONDA receiving injury by PW-4 and on the head is not stated by PW-10 doctor and the said injury is not mentioned in Ex.P-4 wound certificate. So, from the above evidence of PW-10 it can be said that there is no corroboration between the medical evidence and the occular evidence of PW-4 and PW-5. In the cross examination, PW-10 who treated PW-4 and PW-5 admitted that he has not mentioned the age of the injuries in

Ex.P-2 and Ex.P-3 wound certificates. If PW-10 mentioned the age of the injuries in Ex.P-2 and Ex.P-3 then only it can be said that whether

PW-4 and PW-5 received injuries as stated by them at the time of galata or not.

23.PW-11 is the doctor who treated PW-1 to PW-3, PW-6 to PW- 9 and LW-10 Yetti Chinna Ramaiah, he deposed that on 12-07-2012 he examined the injured and issued Ex.P-4 to Ex.P-11 wound certificates.

The injuries stated by the said injured witnesses is not tallied with the evidence of PW-11 doctor and also not tallied with Ex.P-4 to Ex.P-11.

In the cross examination PW-11 admitted that he has not submitted the

X-Ray of PW-8.

24.In this context the counsel for the accused argued that non examination of the doctor who took X-ray and non production of X-ray report is fatal to the case of prosecution. In support of his contention, he relied upon a decision reported in 1998 CRIMINAL LAW JOURNAL 3651 between P.Johnson and others Vs. State of Kerala wherein in para No.4A it was held that:

“Non production of X-Ray report and non examination of doctor who took X-ray report are sufficient to deduce the criminal liability either under

Section 325 of Indian Penal Code or under Section 326 of Indian Penal Code is not established. This flaw is also a

C.C.No.473 of 2012 14 JFCM COURT, PENUKONDA stronger one shaking the case of the prosecution.”

25.In the present case on hand also PW-11 doctor deposed that as per the Discharge summary of PW-6 CT Brain normal, X-ray of nasal bone and undisplaced fracture of nasal bone present

O.P.No.122/4926 Government General Hospital, Kurnool, he issued

Ex.P-4 wound certificate of PW-6 showing that injury No.5 is grievous in nature and injuries 1 to 4 and 6 are simple in nature caused due to hard and blunt impact. Basing on the X-Ray report PW-11 gave opinion in Ex.P-4 wound certificate that PW-6 received grievous injury. Basing on the said wound certificate and opinion of the doctor PW-11 this

Court also taken cognizance for the offence punishable under Section 326 of Indian Penal Code. To prove the offence punishable under

Section 326 of Indian Penal Code the burden lies on the prosecution that PW-6 received grievous injury and it comes under the definition of

Section 320 of Indian Penal Code. To prove the ingredients of Section 320 of Indian Penal Code and to punish the accused under Section 326 of Indian Penal Code the prosecution must produce X-ray report of PW-

6. In this case prosecution did not produce the X-Ray report of PW-6. In the absence of X-ray report it cannot be said that the accused caused grievous injury to PW-6 and they are liable for the offence punishable under Section 326 read with 149 of Indian Penal Code. Non production of X-ray report and non examination of doctor who took X-ray are sufficient to deduce the criminal liability either under Section 325 of

Indian Penal Code or under Section 326 of Indian Penal Code is not established. This flaw is also a stronger one shaking the case of the prosecution. As the prosecution did not produce X-ray report and not examined the doctor who took the X-ray is a flaw and it is a stronger one shaking the case of prosecution. In the said circumstances the

C.C.No.473 of 2012 15 JFCM COURT, PENUKONDA above said citation is quite applicable to the facts and circumstances of this case.

26.PW-12 is the investigating officer he deposed that basing on the statement of PW-1 he registered this case on 12-07-2012 and issued Ex.P-12 First Information Report, examined the witnesses and recorded their statements. He further deposed that he went to the scene of offence and drew Ex.P-4 rough sketch of the scene of offence, seized M.O.1 to M.O.10 sticks under the cover of Ex.P-14 police proceedings. No doubt, PW-12 registered this case basing on Ex.P-1 statement of PW-1 and investigated into this case. In the absence of corroboration in the evidence of PW-1 to PW-11 basing on the investigation done by PW-12 and basing on the evidence of PW-12 investigating officer conviction could not be given to the accused. In the cross examination PW-12 stated that as per Ex.P-13 the scene of offence is situated infront of house of PW-1. As per the evidence of

PW-1 to PW-9 also the scene of offence is situated at the house of PW-

1. When such is the evidence of PW-1 to PW-9 and PW-12 definitely at the time of incident number of villagers were also gathered at the scene of offence. In this case the investigating officer did not examine any of the independent witnesses only the investigating officer examined the family members of PW-1 stating that they received injuries in the incident in the hands of A-1 to A-10. When the scene of offence is situated in the village definitely number of people were gathered at the time of alleged incident at the scene of offence. Why the investigating officer did not examine any of the independent witness and why he did not cite any of the independent witness in this case. If any independent witness is examined before this Court definitely the real truth will come into light. Only basing on the evidence of interested witnesses who are injured in the absence of

C.C.No.473 of 2012 16 JFCM COURT, PENUKONDA independent witnesses convicting the accused is not safe. Besides that as discussed above there is no corroboration in the evidence of PW-1 to

PW-11. Hence, the accused are entitled for acquittal.

27.In view of the above discussion, this Court holds that the prosecution failed to prove the guilt of A-1 to A-10 beyond all reasonable doubt for the offences punishable under Sections 324 and 326 read with 34 of Indian Penal Code. Hence, A-1 to A-10 are entitled for acquittal.

28.In the result, I found A-1 to A-10 are not guilty for the offences punishable under Sections 324 and 326 read with 34 of Indian

Penal Code and they are acquitted for the same under Section 248(1) of Criminal Procedure Code. The bail bonds of A-1 to A-10 shall remain in force for further period of 6 months as per Section 437-A of Criminal

Procedure Code. M.O.1 to M.O.10 sticks shall destroyed after expiry of appeal time.

Dictated to Stenographer Grade III, transcribed by him,

corrected and pronounced by me in open Court on this the 1 st day of August, 2016

Judicial First Class Magistrate

Madakasira

FAC: Penukonda

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION

PW-1: Yetti Raghunath PW-2: Yetti Parwathi PW-3: Yetti Pedda Rangappa PW-4: Yetti Narasamma PW-5: Yetti Nagarathnamma PW-6: Yetti Pedda Gangadhri PW-7: Yetti Chinna Rangappa PW-8: Yetti Chinna Gangadhri PW-9: Yetti Muthyalamma PW-10: Dr. B.Lakshmiram Naik, CAS PW-11: Dr. S.Babjan, CAS PW-12: M.Karunakar, SI of Police

C.C.No.473 of 2012 17 JFCM COURT, PENUKONDA

FOR DEFENSE

-None-

EXHIBITS MARKED

FOR PROSECUTION

Ex.P-1: Statement of PW-1 Ex.P-2: Wound Certificate of PW-4 Ex.P-3: Wound Certificate of PW-3 Ex.P-4: Wound Certificate of PW-6 Ex.P-5: Wound Certificate of PW-7 Ex.P-6: Wound Certificate of LW-10 Ex.P-7: Wound Certificate of PW-2 Ex.P-8: Wound Certificate of PW-9 Ex.P-9: Wound Certificate of PW-1 Ex.P-10: Wound Certificate of PW-8 Ex.P-11: Wound Certificate of PW-3 Ex.P-12: First Information Report in Crime No.53 of 2012 of Kothacheruvu Police Station Ex.P-13: Rough Sketch Ex.P-14: Police Proceedings

FOR DEFENSE

-Nil-

MATERIAL OBJECTS MARKED

M.O.1 to M.O.10: Sticks

J.F.C.M

C.C.No.473 of 2012 18 JFCM COURT, PENUKONDA

IN THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE,

PENUKONDA

CALENDER CASE NO.473 of 2012

1.Date of offence : 13-07-2012

2.Date of complaint or report: 13-07-2012

3.Date of apprehension of A-1 to A-7, A-9 and A-10: 20-07-2012

4.Date of apprehension of A-8: 05-09-2012

5.Date of release on bail of A-1 to A-7, A-9 and A-10 : 20-07-2012

6.Date of release on bail of A-8: 05-09-2012

7.Date of commencement of trial: 10-11-2012

8.Date of close of trial: 21-06-2016

9.Date of sentence or Order: 01-08-2016

10.Explanation of delay if any:---

COMPLAINANT: State represented by Sub Inspector of Police, Kothacheruvu Police Station

ACCUSED:

1. Yetti Ramu S/o Late Pedda Narasappa, Age:36 years (A-1)

2. Yetti Obulesu S/o Late Pedda Narasappa, Age:40 years (A-2)

3. Yetti Pedda Narasimhulu S/o Late Pedda Narasappa, Age:52 years (A-3)

4. Yetti Anjaneyulu S/o Late Pedda Narasappa, Age:38 years (A-4)

5. Yetti Nagesh S/o Pedda Narasimhulu, Age:20 years (A-5)

6. Yetti Raju S/o Late Pedda Narasappa, Age:22 years (A-6)

7. Yetti Anjinamma W/o Pedda Narasimhulu, Age:48 years (A-7)

C.C.No.473 of 2012 19 JFCM COURT, PENUKONDA

8. Yetti Gangamma W/o Ramu, Age:26 years (A-8)

9. Yetti Malleswaramma W/o Anjineyulu, Age:27 years (A-9)

10.Yetti Kadirappa S/o Late Pedda Narasappa, Age:28 years (A-10) All are of Pothulakunta Village, Kothacheruvu Mandal (Caste: Madiga, Profession: A-1 to A-5 and A-7 to A-9 are coolies and A-6 and A-10 are Students)

SECTION OF LAW: Sections 324 and 326 read with 34 of Indian Penal Code

Finding of Court : In the result, I found A-1 to A-10 are not guilty for the offences punishable under Sections 324 and 326 read with 34 of Indian Penal Code and they are acquitted for the same under Section 248(1) of Criminal Procedure Code. The bail bonds of A-1 to A-10 shall remain in force for further period of 6 months as per Section 437-A of Criminal Procedure Code. M.O.1 to M.O.10 sticks shall destroyed after expiry of appeal time.

Sentence/Order: 01-08-2016

Judicial First Class Magistrate Madakasira FAC: Penukonda

Copy submitted to the Hon’ble II Addl. District and Sessions Judge, Hindupur

MAINTENANCE CASE NO.6 OF 2010 1 JMFC COURT, PENUKONDA

IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE,

PENUKONDA

PRESENT:-SRI B.DEVENDRA REDDY

Judicial First Class Magistrate

Madakasira

FAC: Penukonda

Monday the 18 th day of July, 2016

MAINTANANCE CASE No.6 of 2010

Between:- G.Meera Kumari W/o B.Purushotham Reddy, Age:about 35 years, Hindu, Sinecure, Vidhya Nagar, Gowribidanur, Karnataka, At present residing at Chakarlapalli, Somandepalli Mandalam

...Petitioner

AND

B.Purushotham Reddy S/o B.Sanjeeva Reddy, Age:about 32 years, Hindu, Software Engineer, Samsung Indian Software Private Limited, Baghanane Tech Park, Block-B, No.66-1, Baghanane Lake View, C.V.Raman Nagar Branch, Byara Sandra, Bangalore-560093 …Respondent

This Petition is coming before me on 27-06-2016 for final hearing in the presence of Sri L.Viswanath, Advocate for the Petitioner and of Sri G.Ramesh Reddy, Sri G.Madan Mohan Reddy and B.S.Parameshwar Reddy, Advocates for the Respondents and having stood over for consideration till today the court made the following:

O R D E R

1. This petition filed by the petitioner under Section 125 of

Criminal Procedure Code seeking maintenance of Rs.25,000/- (Rupees

Twenty Five Thousand) per month to the petitioner from the respondent.

2.The brief averments of the petition are as follows:-

(a)The marriage of the petitioner with the respondent was solemnized on 10-08-2008 at Basaveswara Kalyana Mantapa,

Gowribidanur as per Hindu Rites and Caste Customs and the said marriage was consummated and no children were born out of wedlock.

MAINTENANCE CASE NO.6 OF 2010 2 JMFC COURT, PENUKONDA

The parents of the petitioner gave Rs.9,00,000/- cash to the respondent and Rs.2,00,000/- to the parents of the respondent towards marriage expenditure. The parents of the petitioner also gave 27 tulas of gold to the petitioner at the time of marriage.

(b) Immediately after the marriage, the petitioner joined with the respondent. After the next day of the marriage the respondent used to abuse the petitioner with filthy language and behaved like sadist, the respondent at the instigation of the parents and younger brother of the respondent used to tease the petitioner that he is getting Rs.70,000/- as salary per month and the amount of Rs.9,00,000/- which is given by the parents of the petitioner is very meager amount, my colleagues are having bungalows and Cars. The respondent and his mother demanded the petitioner to get a Car from the father of the petitioner or transfer the property which is in the name of the father of the petitioner.

(c)The respondent, his father, his mother and brother torture the petitioner like anything and there are no words to describe the torture. After two months of the marriage, both petitioner and respondent set up a family at Bangalore, there also the respondent used to beat the petitioner for no fault of her. On one day the petitioner expressed her inability to get amount from her parents the respondent, his father, his mother and brother beat the petitioner indiscriminately.

The respondent pressed with leg on the throat of the petitioner and poured phenol into the mouth of the petitioner. The petitioner escaped from the clutches of the respondent and his family members with the help of the neighbours and informed the same to her father by telephone. The respondent demanded the petitioner for more dowry and a Car.

MAINTENANCE CASE NO.6 OF 2010 3 JMFC COURT, PENUKONDA

(d)The respondent driven out the petitioner from the house by taking all the jewels. Now the petitioner is residing at her parents house at Chakarlapalli, the petitioner has no other alternative except to take shelter at parents. The petitioner and her father convened panchayat through elders which proved futile. The respondent and his parents did not agree to take back the petitioner to lead happy married life, they told in that panchayat they need not want the petitioner. On account of adamant attitude of the respondent and his family members the petitioner suffered both mentally and physically.

(e)The respondent is working as Software Engineer in Samsung

Indian Software Private Limited at Bangalore and getting a salary of

Rs.70,000/- per month, apart from the salary the family of the respondent is having landed property and getting good income from the landed property. The father of the respondent is also working as

Government employee and getting good income. The respondent is getting nearly Rs.9,00,000/- per annum and the father is getting

Rs.5,00,000/- income from landed property, totally the respondent and his family is getting an income of Rs.20,00,000/- per annum. The respondent is bound to maintain the petitioner as the petitioner is legally wedded wife of the respondent. The respondent neglected the petitioner. Hence, petition.

3.The Respondent filed his counter denying the allegations mentioned in the petition and further contended that the the marriage was not consummated and hence the question of begetting children does not arises, the petitioner right from the date of marriage did not lead any marital life with the respondent. He further contended that the petitioner developed hatredness against him and she never allowed him

MAINTENANCE CASE NO.6 OF 2010 4 JMFC COURT, PENUKONDA to have sexual cohabitation. He further contended that even prior to marriage the petitioner was not willing to the marriage with the respondent, the petitioner was not shown interest to lead marital life with him and she was staying with her parents. He further contended that he and petitioner lived together for about ten days at Bangalore and she never allowed him to have sexual cohabitation. He further contended that 10 days after the marriage she left his company without informing him and she has been living with her parents.

(a)He further contended that the petitioner was not willing to reside with his parents under one roof and she had instead set up separate family, even though he set up a separate family and lived together for ten days and then she left his company by deserting him without his knowledge, hence, the petitioner is not entitled to claim maintenance. He further contended that the petitioner filed a false complaint against him, his parents and his brother with all false allegations before the Station House Officer, Somandepalli Police

Station which was registered as case in Crime No.21 of 2010 for the offences punishable under Section 498-A of Indian Penal Code and

Sections 3 and 4 of Dowry Prohibition Act and made him and his family members to suffer a lot as they were sent to judicial remand.

(b)He further contended that his father is an employee in

Electrical Department in Karnataka State and is commanding good respect in the society, on account of false implication in a criminal case by the petitioner, he and his family members subjected to lot of mental agony and they were very badly defamed in the society by the petitioner. He further contended that he and his family members are facing trial before this Court in C.C.No.180 of 2010 and the same is

MAINTENANCE CASE NO.6 OF 2010 5 JMFC COURT, PENUKONDA pending.

(c)He further contended that on account of concoction of false case against him and his family members, he was dismissed from the job and now he is penniless, he has no income source and he is not in a position to sustain himself. He further contended that he separated from his parents after the marriage and the entire income which he got from his father was spent by him for sustenance and to face false cases filed by the petitioner. He further contended that the petition is not maintainable as the petitioner is having sufficient means to sustain herself and that he has no means to pay any amount. He further contended that there is no cause of action for the petition and prayed to dismiss the petition.

4.On behalf of the petitioner, the petitioner examined herself as PW-1 and also her father examined as PW-2 and D.N.Venugopal as

PW-3 and marked Ex.P-1 to Ex.P-3. On behalf of respondent, the respondent examined himself as RW-1 and also examined one

P.Venkata Rami Reddy is examined as RW-2 and marked Ex.R-1 to Ex.R- 3.

5.Now the points for consideration are:

(1) Whether the respondent is having sufficient means to maintain the petitioner and refused or neglected to provide maintenance to her, if so what is the quantum of maintenance to be awarded to the petitioner?

(2) Whether this Court has no jurisdiction to entertain this petition as contended by the respondent?

6.Heard the arguments on both sides. Perused the material on record.

7.POINT No.2:- Whether this Court has no jurisdiction to entertain this petition as contended by the respondent?

The learned counsel for the respondent contended that this

MAINTENANCE CASE NO.6 OF 2010 6 JMFC COURT, PENUKONDA

Court has no jurisdiction to entertain this petition as the petitioner is residing at Hindupur and doing job in a private firm. It is the contention of the petitioner that she is not resident of Hindupur and doing job in a private firm. She further contended that she is living along with her parents at Chakarlapalli Village, Somandepalli Mandal which within the jurisdiction of this Court. In support of the contention of the respondent, he himself examined as RW-1 and also his senior maternal uncle is examined as RW-2. They deposed that the petitioner is residing at

Hindupur and she is doing job in a private firm. In the cross examination, RW-1 admitted that he issued legal notice to the petitioner through one Bhanu Prakash, Advocate on 12-05-2010 to Chakarlapalli

Village address calling upon the petitioner for mutual divorce. He also admitted in the cross examination that after petitioner left his company he did not go to Chakarlapalli Village. RW-2 also admitted in the cross examination that the petitioner's native place is Chakarlapalli Village,

Somandepalli Mandal. The above admissions of RW-1/respondent and

RW-2 clearly shows that at the time of filing of this petition the petitioner is residing at Chakarlapalli Village, Somandepalli Mandal. The above said village is situated within the jurisdiction of this Court. Hence, this Court is having jurisdiction to entertain this petition. Hence, this point No.2 is answered in favour of the petitioner and against the respondents.

8.POINT No.1:Whether the respondent is having sufficient means to maintain the petitioner, refused or neglected to provide maintenance to her, if so what is the quantum of maintenance to be awarded to the petitioner?

Now it has to be decided whether the respondent refused or neglected to maintain the petitioner or whether the petitioner herself left the company of the respondent on her own accord without any

MAINTENANCE CASE NO.6 OF 2010 7 JMFC COURT, PENUKONDA reasonable excuse. As the petitioner filed this petition for maintenance the burden lies on the petitioner to show that the respondent refused or neglected to maintain her having sufficient means. To prove the said fact, the petitioner herself examined as PW-1, her father examined as

PW2 and elder who attended panchyat between the petitioner and the respondent is examined as PW-3. On behalf of the petitioner, Ex.P-1 to

Ex.P-3 are marked. Ex.P-1 is the wedding card. Ex.P-2 is the photo and

Ex.P-3 is the complaint given by her to the police against the respondent and his family members. To rebut the evidence of PW-1 to

PW-3, the respondent also examined himself as RW-1 and his senior maternal uncle is examined as RW-2. On behalf of the respondent, Ex.R- 1 to Ex.R-3 are marked. Ex.R-1 is the receipt for payment of rent for the marriage choultry. Ex.R-2 is the provisions list and Ex.R-3 receipt for payment for the provisions. Ex.P-1 and Ex.P-2 shows that the petitioner marriage was solemnized with the respondent. The respondent is also not denying his marriage with the petitioner. So, there is no dispute with regard to the relationship between the petitioner and the respondent as wife and husband.

9.It is the contention of the petitioner that from the date of marriage the respondent used to abuse her and beat her for no fault on her. It is further contention of the petitioner that the respondent demanded her for more dowry and for a Car stating all his friends are having Cars and bungalows, the respondent also stated that amount given by her parents is meager amount. She further contended that the parents of the respondent are also abusing her in filthy language used to beat her and harassed her physically and mentally. She further contended that she bear all the torture of the respondent and his

MAINTENANCE CASE NO.6 OF 2010 8 JMFC COURT, PENUKONDA parents with fond hope that they will change. But, there is no change in their attitude. She further contended that on 29-09-2009 the respondent demanded her to bring more dowry from her parents, for which she expressed her inability and that the respondent beat her indiscriminately and poured phenol in her mouth, she escaped from the hands of the respondent and informed the same to her parents. She further contended that the respondent did not agree to lead happy marital life with her and he driven out her from his house by taking all jewellery as there is no alternative she took shelter with her parents and filed the present petition.

10.It is the contention of the respondent that the petitioner herself deserted him without any reasonable excuse, the petitioner never allowed him to lead marital life and she never allowed him to have sexual cohabitation. He further contended that the petitioner left his company on her own accorded without any reasonable excuse. He further contended that the marriage between him and the petitioner was not consummated and hence, the petitioner voluntarily deserted him without any reasonable excuse and that the petitioner is not entitled for claiming maintenance from him.

11.In support of the contention of the petitioner, she examined as PW-1, she filed her chief examination affidavit by reiterating the contents of the petition. In the cross examination, she stated that she studied M.Sc., B.Ed., his father was working as Secretary in Agricultural

Market Yard and he retired from service in the year 2007, she has two sisters and they were married. She further stated that her elder sister and brother-in-law are residing in United Kingdom. She denied a suggestion that when they were residing at C.V.Raman Nagar,

MAINTENANCE CASE NO.6 OF 2010 9 JMFC COURT, PENUKONDA

Bangalore she had verbal arguments with her husband following which she had returned to her parental house and the neighbours had intervened and found fault with her. She further denied a suggestion that since her husband did not agree to the relocate to United Kingdom she has left her marital home and returned to her parental house. She also further denied a suggestion that she voluntarily left marital house and that neither her husband nor her in-laws forced to do so. Even though the learned counsel for the respondent cross examined the petitioner at length he did not elicit anything in favour of the respondent and he did not elicit that the petitioner voluntarily left the company of the respondent.

12.In support of the evidence of PW-1, her father examined as

PW-2. He also corroborated with the evidence of PW-1 in the chief examination affidavit. The learned counsel for the respondent cross examined PW-2. He denied a suggestion that the petitioner pressurized the respondent to resign the job to go to England. He denied a suggestion that the respondent and his parents never made any harassment at Bangalore. He further denied a suggestion that the petitioner herself voluntarily left the company of the respondent. Even though the learned counsel for the respondent cross examined PW-2, he denied all the suggestions put by the learned counsel for the respondent. So, it can be said that the evidence of PW-2 is not shaken during the cross examination. The learned counsel for the respondent cross examined PW-2 with regard to giving dowry and his residence. To decide refusal or negligence by the respondent towards the petitioner giving dowry and residence of PW-2 who is father of the petitioner has no relevancy.

MAINTENANCE CASE NO.6 OF 2010 10 JMFC COURT, PENUKONDA

13.From the above evidence of PW-1 and PW-2, it can be said that the respondent used to abuse the petitioner with filthy language and stated that the dowry of Rs.9,00,000/- given by the parents of the petitioner is meager amount, it also can be said that the respondent harassed the petitioner stating that his colleagues are having bungalows and Cars and the respondent and his mother demanded the petitioner to get a Car from the father of the petitioner or transfer the property which is in the name of the father of the petitioner, as petitioner expressed her inability to get amount from her parents, the respondent and his parents harassed her physically, as the petitioner did not fulfill the desire of the respondent and his parents, they forced the petitioner to left the matrimonial home.

14.It is the contention of the petitioner that her parents conducted panchayat to reunion her and the respondent to lead marital life. To prove the said fact on behalf of the petitioner the elder who attended panchayat is examined as PW-3. He deposed that he is the senior maternal uncle of the petitioner's mother. He acted as mediator to join the petitioner and the respondent on the request of the father of the petitioner. He further deposed that himself, RW-2, Sivasankar

Reddy, Hanumantha Reddy and Srinivas Reddy and other elers went to the house of the respondent for panchayat, in the panchayat the respondent and his family members did not agree to take back the petitioner to lead marital life and also told that they need not want the petitioner. He further deposed that he tried his level best to convene the respondent and his family members to take the petitioner to lead marital life, the respondent and his parents did not heed his words and bluntly refused to take back the petitioner into his house. He further

MAINTENANCE CASE NO.6 OF 2010 11 JMFC COURT, PENUKONDA deposed that they convened a panchayat at the house of the respondent which proved futile.

15.PW-2 corroborate with the evidence of PW-3 with regard to the conducting panchayat between the petitioner and the respondent at the house of the respondent. It shows that the parents of the petitioner tried their level best to reunion the petitioner and the respondent. From the evidence of PW-1 to PW-3 it can be said that the respondent and his parents did not agree to lead marital life with the petitioner by the respondent. It shows that the respondent refused and neglected to maintain the petitioner. As per the evidence of PW-2 and

PW-3, they conducted panchayat at the house of the respondent, it shows that they are ready to sent the petitioner to lead marital life with the respondent. If the respondent is intending to lead marital life with the petitioner he would have went to the village of the parents of the petitioner and he would have conducted a panchayat to take back his wife to lead marital life. In the cross examination also RW-1 admitted that after the petitioner left his company he did not go to Chakarlapalli

Village. The above admission clearly shows that he never went to the house of parents of the petitioner where the petitioner is residing after leaving the company of the respondent. It shows the conduct of the respondent that he did not want to lead marital life with the petitioner instead of conducting any panchayat with the parents of the petitioner by going to their house he sent legal notice to the petitioner to

Chakarlapalli Village address which is the village of the parents of the petitioner. In the cross examination, RW-1 admitted that the petitioner also gave reply to his notice stating that she is ready to lead marital life with him. It shows that the petitioner is ready and willing to lead marital

MAINTENANCE CASE NO.6 OF 2010 12 JMFC COURT, PENUKONDA life with the respondent. But the respondent did not make any efforts to take her back to his house to lead marital life. RW-1 further admitted that he filed M.C.No.845 of 2011 on the file of I Addl.Principal Judge,

Family Court, Bangalore for divorce. Even though the petitioner gave reply to the notice of the respondent stating that she is ready and willing to live with him, filing of the above Miscellaneous Case in

Bangalore for divorce by the respondent shows the attitude and character of the respondent and it shows that he is not willing to lead marital life with the petitioner. From the above also it can be said that the respondent refused and neglected to maintain the petitioner. In the cross examination RW-1 stated that he did not know whether the said

M.C.No.845 of 2011 is pending or not. Being educated person studied

M.Tech., he can say whether the said M.C., is pending or not. But he intentionally avoided to say whether the said M.C., is pending or not, it also shows the conduct of the respondent that he is not fare enough.

16.In support of the evidence of RW-1, his senior maternal uncle is examined as RW-2. He deposed that the petitioner left the company of the respondent and went to her parents house without informing the respondent and his parents. He further deposed that the petitioner voluntarily deserted the respondent and she was not at all willing to lead marital life with the respondent. He further deposed that they conducted panchayat between the petitioner and the respondent along with Hanumantha Reddy and Srinivas Reddy at Gowribidanur, in the panchayat the petitioner was not convinced and she refused to lead marital life with the respondent. He further deposed that the parents of the petitioner demanded the respondent and his parents to pay huge sum to sever the marital relationship of the respondent, the respondent

MAINTENANCE CASE NO.6 OF 2010 13 JMFC COURT, PENUKONDA and his parents refused to pay amount by the petitioner and her parents. The respondent in his chief examination affidavit as RW-1 did not depose about the demand made by the petitioner and her parents as stated by RW-2. So, RW-2 invented new story stating that the parents of the petitioner demanded huge sum to sever marital relationship with the respondent. So, he is not a trustworthy witness. From the above evidence of RW-2 it can be said that a panchayat was convened between the petitioner and the respondent by the elders at

Gowribidanur which is the village of respondent, it also shows that the parents of the petitioner went to Gowribidanur along with the elders convened panchayat between the petitioner and the respondent. It shows that the petitioner and her parents are ready and willing to sent the petitioner to the house of the respondent to lead marital life. As already stated above, if the respondent is not harassed as stated by the petitioner and her father PW-2, the respondent, his parents and elders would have went to the village of the petitioner and convened panchayat at the house of the parents of the petitioner at Chakarlapalli

Village, Somandepalli Mandal. But the respondent did not do so. So, conducting panchayat by the parents of the petitioner at the house of the respondent shows that the they are ready and willing to send the petitioner for marital life.

17.As per the evidence of the petitioner, she studied M.Sc.,

B.Ed., being an educated person she would not leave the matrimonial home without any fault of her husband or in-laws. The evidence of

PW-1 to PW-3 also clearly shows that the respondent is not ready and willing to live with the petitioner. From the evidence of respondent also it can be said that even though the petitioner is ready and willing to live

MAINTENANCE CASE NO.6 OF 2010 14 JMFC COURT, PENUKONDA with him, he filed M.C., for divorce on the file of I Addl.Principal Judge,

Family Court, Bangalore. From the evidence of PW-1 to PW-3 and the evidence of RW-2 clearly shows that the parents of the petitioner went to the house of the respondent and convened a panchayat between the petitioner and the respondent, it shows that the petitioner is ready and willing to live with the respondent but the respondent refused to lead marital life with the petitioner. The respondent failed to prove that the petitioner herself left the matrimonial home and refused to live with him.

18.In view of the above discussion, this Court holds that the respondent refused and neglected to maintain the petitioner and due to the acts of the respondent and his parents the petitioner let the matrimonial home and that the petitioner is entitled for maintenance from the respondent.

19.Coming to the means of the respondent to pay maintenance, it is the contention of the petitioner that the respondent is studied M.Tech., and he is working as Software Engineer in Samsung

Company, Bangalore and getting Rs.70,000/- per month. It is the contention of the respondent that the petitioner is working in a private firm and getting Rs.15,000/- per month and that she is having sufficient means to maintain herself. He further contended that on account of false case against him and his family members he was dismissed from the job and now he is penniless, he has no source of income and he is not in a position to sustain himself and that he has no means to pay maintenance to the petitioner as the petitioner deserted him on her own accord and without reasonable excuse.

20.On perusal of the evidence of respondent who is examined

MAINTENANCE CASE NO.6 OF 2010 15 JMFC COURT, PENUKONDA as RW-1 he admitted that he used to get Rs.20,000/- to Rs.25,000/- per month as salary. He further stated that he used to get Rs.28,000/- per month in the year 2010 as salary per month. He denied a suggestion that he used to get salary of Rs.80,000/- per month in the year 2010.

The above evidence of RW-1/respondent clearly shows that he was getting Rs.28,000/- per month in the year 2010 as salary. This

Maintenance Case is filed in the year 2010. Even though the petitioner contended that the respondent is getting Rs.80,000/- per month as salary in the year 2010 she did not produce any oral or documentary evidence in support of her contention. Hence, it cannot be said that the respondent is getting Rs.80,000/- per month as salary. As respondent admitted in the year 2010 he used to get Rs.28,000/- per month as salary. The said admission is taken into consideration and it is treated that the respondent was getting Rs.28,000/- per month towards salary in the year 2010. As the respondent stated that he was dismissed from the job and now he is penniless. As per the admission made by the respondent in the cross examination that he studied upto M.Tech., and he is qualified to work as Software Engineer. He also further stated that he has joined as Software Engineer in Samsung Company at Bangalore in the year 2007 and worked till 2010. He also further admitted that the

Samsung Company is a Multi National Company. So, from the above evidence of the respondent, it can be said that he is a qualified

Software Engineer studied M.Tech., It is not believable one as the petitioner filed Criminal Case and this case against him he was dismissed from service and now he is penniless. Having good qualification and good experience in a Multi National Company as

Software Engineer the version of the respondent that he is not doing

MAINTENANCE CASE NO.6 OF 2010 16 JMFC COURT, PENUKONDA any job and now he is depending on his parents is also not believable one. So, this Court taken into consideration the salary admitted by the respondent as Rs.28,000/- per month, in the year 2010 to award maintenance to the petitioner.

21.The respondent/RW-1 in the chief examination affidavit stated that his father was an employee in KPTCL of Karnataka

Government and he has good reputation in the society. He also stated in the cross examination that his younger brother is practicing advocate in Bangalore. He denied a suggestion that his younger brother used to stay with them in Bangalore as he has no income. From the above evidence of respondent, it can be said that the father of the respondent worked as an employee in KPTCL, Karnataka Government and his brother is practicing advocate in Bangalore and their family is having good respect in the society. The respondent is also a Software Engineer.

Taking into consideration of the family background of the respondent maintenance has to be awarded to the petitioner. Coming to the family background of the petitioner, she studied upto M.Sc., B.Ed., her father was also worked as Secretary, Agricultural Market Yard and retired from service in the year 2007. The petitioner has two sisters and they were married and elder sister and brother-in-law are residing at United

Kingdom. The above evidence of the petitioner also shows that their family also respectable family and educated family. Considering the background of the family of petitioner and the respondent it is just and necessary to award maintenance of Rs.10,000/- to the petitioner to live on par with the dignity of her in-laws family and her parents family.

22.As per the evidence of the respondent his father was a retired employee worked under KPTCL, Karnataka Government and his

MAINTENANCE CASE NO.6 OF 2010 17 JMFC COURT, PENUKONDA brother is also practicing advocate. Hence, there is no responsibility on the respondent to maintain his parents and brother. In view of the said circumstances it is just and necessary to award maintenance amount of

Rs.10,000/- per month to the petitioner. If the petitioner proved the salary of the respondent as Rs.80,000/- per month as pleaded by her definitely this Court would have granted Rs.25,000/- as sought for by her. In this case, the petitioner failed to prove the salary of the respondent as Rs.80,000/- per month. Hence, she is entitled for maintenance of Rs.10,000/- per month as the respondent admitted that he used to get salary of Rs.28,000/- per month in the year 2010.

23.In view of the above discussion, this Court came to a conclusion that the respondent refused and neglected to maintain the petitioner without any fault of her. The grounds urged by the respondent is not proved. Since the date of filing of the petition the petitioner is residing in the house of her parents on their mercy. As already discussed above the respondent also failed to prove that the petitioner is working in a private firm and getting Rs.15,000/- per month. Hence, it can be said that totally the petitioner is depending on her parents for her livelihood and other expenses, after desertion of respondent no interim maintenance is awarded to the petitioner earlier in this petition. Hence, it is just and necessary to award maintenance to the petitioner from the date of petition i.e., 15-04-2010. In view of above discussion, point No.1 answered in favour of the petitioner and against the respondent.

24.In the result, the petition is allowed directing the respondent to pay maintenance of Rs.10,000/- (Rupees Ten Thousand only) per month to the petitioner from the date of the petition dt:15-04-2010.

MAINTENANCE CASE NO.6 OF 2010 18 JMFC COURT, PENUKONDA

As no interim maintenance is granted to the petitioner, petitioner is entitled for maintenance from the date of petition. The respondent shall pay the said amount either to the petitioner directly or deposit the same into the bank account of petitioner which shall be furnished by the petitioner under intimation to the Court on or before 10th of every succeeding month. The respondent further directed to pay Rs.3,000/- (Rupees Three Thousand only) towards costs of the petition. The office is directed to serve free copy of the order to the petitioner forthwith.

Dictated to Stenographer Grade III, transcribed by him,

corrected and pronounced by me in open Court on this the 18 th day of July, 2016

Judicial First Class Magistrate Madakasira FAC: Penukonda

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

PETITIONER: RESPONDENT PW-1: G.Meera Kumari(petitioner) RW-1: B.S.Purushotham Reddy PW-2: G.Damodara Reddy (respondent) PW-3: D.N.Venugopal RW-2: P.Venkata Rami Reddy

EXHIBITS MARKED FOR PETITIONER

Ex.P-1: Wedding Card of G.Meera Kumari and B.S.Purushotham Reddy

dt:10-08-2008

Ex.P-2: Marriage Photo indicating Purushotham Reddy and Meerakumari with garlands Ex.P-3: Copy of complaint lodged in Somandepalli Police Station

EXHIBITS MARKED FOR RESPONDENT

Ex.R-1: Receipt for payment of marriage choultry rent charges

dt:09-08-2008 along with translated copy

Ex.R-2: List provisions purchased for the marriage dt:09-08-2008 along with translate copy Ex.R-3: Receipt for the payment of amount for purchase of provisions

J.F.C.M.

MC No. 31 of 2011 1 JMFC Court, Penukonda.

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS

PENUKONDA

PRESENT:-SRI B.DEVENDRA REDDY

JUDICIAL FIRST CLASS MAGISTRATE

MADAKASIRA

FAC: JUDICIAL FIRST CLASS MAGISTRATE

PENUKONDA

Tuesday, the 19 th day of January, 2016

MAINTENANCE CASE No.31 OF 2011

Between:- Syeda Hafsa @ Syeda Waseema w/o Syed Haseeb Pasha, D/o Syed Shakirulla Hussaini, aged 18 years, house wife, r/o D.No.2-241, Dargapet, Penukonda, Anantapuramu District. …Petitioner

AND

Syed Haseeb Pasha s/o Syed Ghesu Peer Khadri, aged 29 years, Police constable, presently camping at Sports Complex, Saliwan Police Hockey Ground, Magrath Road, Bangalore 560 024, r/o C.P.C.476, 101, 8th block, Blackpalli, Police Quarters,Shivajinagar, Bangalore-1. …Respondent

This Petition is coming before me on 29-12-2015 for final hearing in the presence of Sri Md.Asif, Advocate for the petitioner and of Sri L.Viswanath and Sri K.Yerri Swamy, Advocates for the Respondent and having stood over for consideration till today the court made the following:

O R D E R

1. This petition is filed by the petitioner under Section 125 of

Criminal Procedure Code seeking maintenance of Rs.10,000/- per month to the petitioner from the Respondent.

2.The brief averments of the petition are as follows:-

The petitioner is the legally wedded wife of the respondent.

The marriage of the petitioner with the respondent was an arranged one and solemnized on 28-02-2011 as per the customs and rites of

MC No. 31 of 2011 2 JMFC Court, Penukonda.

Shariath, the Muslim Personal Law at Muslim Shadimahal, Kamalapur,

Bellary District, Karnataka State at request of respondent and his parents. The parents of the petitioner have presented cash of

Rs.2,08,000/- and a motor cycle to the respondent, 10 tulas gold ornaments and all Zahej articles worth about Rs.3,00,000/- to the petitioner and also presented gifts worth of Rs.3,00,000/- to the parents and other relatives of respondent on their demand at the time of marriage and performed the marriage by spending nearly

Rs.12,00,000/-. After the marriage, the petitioner joined the respondent to lead a happy and amicable marital life, but all the hopes and desires of the petitioner and her parents were simply shattered with in a short span of one month after the marriage due to adamant attitude and persecution of the respondent, his parents and other family members. Being not satisfied with the presentations given to them at the time of marriage, the respondent, his parents elder sister and her husband started to harass the petitioner for want of additional dowry and other house hold articles. The respondent is having bad vises and used to come to the house in late hours of the night and used to beat the petitioner indiscriminately for simple and negligible things and without any fault of her, so also his parents and his elder sister also used to harass, heckle and humiliate the petitioner for want of

additional dowry without providing proper food and cloths. The

petitioner further submits that she informed the humiliation to her parents who in turn came and requested the respondent they are not in a position to pay additional dowry, but the respondent and his relatives did not heed the requests of the parents of the petitioner and

MC No. 31 of 2011 3 JMFC Court, Penukonda.

infurtherence of their harassment, the respondent and his parents miscarried the pregnancy of the petitioner forcibly by compelling her to consume some un advisable medicine. The petitioner subjected to all sorts of cruelty by the respondent, his parents and his sister and her husband and they tried seriously to get rid off the petitioner by approaching the community elders and different forums with false and baseless allegations against the petitioner for which the petitioner refused to leave the respondent and all their endeavors turned futile and finally on 26-09-2011 they left the petitioner in her parents house forcibly, abused them and warned that they would perform the second marriage of respondent, if their demands are not fulfilled. The petitioner and her parents convened many panchayaths through elders for reunion but the respondent and his parents bluntly refused to take back the petitioner without additional dowry amount of Rs.2,00,000/-.

It is further submitted that the respondent is working as police constable and getting salary of Rs./15,000/- per month and being a player of State police volley ball team, he receives perks and incentives about Rs.10,000/- per month besides his salary. In spite of having sufficient means, the respondent has totally neglected and refused to maintain the petitioner though it is his bounden duty whereas the health of the petitioner is deteriorated due to physical harassment and mental agony given by the respondent. Hence, this petition.

3.The Respondent filed counter denying all the allegations made in the petition and contended that he and his family belongs to a reputed Syed and Priestly family belongs to Kamalapur District, Bellary,

MC No. 31 of 2011 4 JMFC Court, Penukonda.

Karnataka State, since last more than 10 years they are residing in a rented house at Hospet, since 17-11-2004 he is working as Police

Constable on deputation at Bangalore. He further contended that the parents of the petitioner and her elder brother belongs to Penukonda and the marriage was performed on 28-02-2011 at Kamalapur Village,

Bellary District, Karnataka State, neither during the course of marriage not after the marriage he, his parents of his family members demanded and accepted any dowry in any form from the parents of the petitioner.

He further contended that he was on leave for marriage from 22-02-2011 to 13-03-2011, after marriage on the first night itself the petitioner disclose to him that she is in love with some other person her parents forcibly took her to far away place which is situated more than 300 KMs from her native place and forcibly performed her marriage against her will with him, as a result the marriage remained unconsummated. He further contended that he was a wounded solder went back to Bangalore and joined to his job and since then he is staying at Bangalore only.

He further contended that on 16-06-2011 he approached the “Markazi Darul Qaza”, Imarat-e-Shariah Karnataka Arabic College

Campus, Bangalore-45, a Muslim religious institution, the said institution registered a matrimonial case at file No.3340, on 22-09- 2011 the Quazi Sahab got the presence of petitioner, her parents and brother as well he and his father and brothers and in their presence, the divorce proceedings were completed and he pronounced the divorce to the petitioner on 22-09-2011 in the presence of Quazi also, from that day onwards there is no relationship of wife and husband

MC No. 31 of 2011 5 JMFC Court, Penukonda.

between he and the petitioner. He further contended that on the same day the petitioner and her parents challenged against him and given threat and given harassment by filing a false case in respect of Dowry demand as well as the above said case for maintenance, he also filed a criminal case against the petitioner, her father, her mother, her brother under Section 200 of Criminal Procedure Code for the offences punishable under Sections 341, 504 and 506 r/w 34 of Indian Penal

Code the same is pending before the Assistant Chief Metropolitan

Magistrate No.11 at Bangalore and this Court passed an interim order

to pay the maintenance of Rs.2,500/- per month dt:18-11-2011, against the said order he has approached the appellate Court at

Hindupur.

He further contended that as per Section 3 of The Muslim

Women (Protection of Rights on Divorce) Act, 1986 the petitioner is entitled to claim mehar, maintenance till her iddath period only they agreed mehar of Rs.11,786/- in the form of demand draft No.758564

dt:07-10-2011 for Rs.11,786/-, he though not liable to pay anything

was made to deposit maintenance amount of Rs.7,000/- in Court, that may please be treated as maintenance for the iddath period, that all the gold and silver ornaments offered by her parents and offered by him and his parents are already taken by the petitioner along with her on 17-03-2012 while leaving with his house at Hospet and prayed to dismiss the petition with costs.

4.On behalf of the petitioner, she examined herself as PW-1 and also examined one Syed Shakeerulla Hussaini as PW-2 and Ex.P-1 to Ex.P-3 are marked. On behalf of respondent, he examined himself as

MC No. 31 of 2011 6 JMFC Court, Penukonda.

RW-1 and no exhibits are marked.

5.Now the point for consideration are:

1) Whether the respondent pronounced talak and if so, it is a valid one?

2) Whether the respondent is having sufficient means to maintain the petitioner and refused or neglected to provide maintenance to her? If so, what is the quantum of maintenance to be awarded to the petitioner?

6.Heard the arguments on both sides. Perused the material on record.

7.POINT NO.1: Whether the respondent pronounced talak and if so, it is a valid one?

There is no dispute with regard to marriage of the petitioner with the respondent. The respondent contended that on 16- 06-2011 he approached “Markazi Darul Qaza”, Imarat-e-Shariah

Karnataka Arabic College Campus, Bangalore-45, a Muslim religious institution, the said institution registered a matrimonial case at file

No.3340. He further contended that on 22-09-2011 the Quazi Sahab got the presence of petitioner, her parents and brother as well the respondent, his father, brothers and in their presence, the divorce proceedings were completed and the respondent pronounced the divorce to the petitioner on 22-09-2011 in the presence of Quazi also, from that day onwards there is no relationship of wife and husband between the petitioner and respondent.

8.The petitioner contended that no talak or divorce was

pronounced by the respondent on 22-09-2011 and there was no

communication to her and she is a legally wedded wife of respondent.

To prove the contention of the respondent, he examined himself as

RW-1, he filed his chief examination affidavit by reiterating the

MC No. 31 of 2011 7 JMFC Court, Penukonda.

contents of his counter. In the cross examination, he admitted his marriage with PW-1 is an arranged marriage. He further admitted that their marriage was performed at Kamalapur, Karnataka State. So, there is no dispute with regard to the marriage of petitioner with the respondent. He further admitted that there are three types of pronouncement of talak, he has not issued any notice to the petitioner for reconciliation and for re-union prior to the pronouncement of talak.

He further admitted that the talak is to be pronounced in the presence of minimum two witnesses. He stated that in the presence of the petitioner, her parents and in the presence of his father and one Quazi

Haroon Rasheed he pronounced talak to the petitioner. RW-1 further admitted that he did not make any representations in the writing to the

Muthawali of Jamia Mosque, Kamalapur to cancel Dafthar intimating them that he had pronounced talak to the petitioner. He further admitted that he did not give any representation to Quazi of Penukonda intimating about the pronouncement of talak to the petitioner.

9.As per the evidence of RW-1, he pronounced talak in the presence of Quazi Haroon Rasheed. To prove the talak the said Quazi

Haroon Rasheed is not examined before the Court. The respondent also did not prove that the talak was intimated to the petitioner. As per the admission of RW-1 the talak is to be pronounced in the presence of minimum two witnesses. RW-1 stated one witness name as Quazi

Haroon Rasheed but, he did not state the other witnesses names who present at the time of pronouncing talak to the petitioner. As per the contention of the respondent before the Court of “Markazi Darul Qaza”,

Imarat-e-Shariah Karnataka Arabic College Campus, Bangalore-45 in

MC No. 31 of 2011 8 JMFC Court, Penukonda.

case bearing No.3340 of 2011 on 22-09-2011 the Quazi Saheb got the presence of his parents, himself as well the petitioner and her father and after due enquiry, he pronounced talak on 22-09-2011. Thereafter the said Court passed orders, since that date he asked Quazi Saheb to accept Mehar amount and also the amount for the iddath period for the same, they refused. When such is the contention of the respondent, the learned counsel for the petitioner argued that the said Court has no authority or power to impose his opinion and enforce the fatwa on any one by any coercive methods. He further argued that fatwa has no place in Independent India and our Constitutional scheme. He further argued that even though “Markazi Darul Qaza” Court at Bangalore-45 enquired into the matter and after that the respondent pronounced talak to the petitioner that talak has no legal sanctity and it can simply be ignored. In support of the contention of the learned counsel for the petitioner,herelieduponadecisionreportedin

2014 Supreme Appeals Reporter (Civil) 891 Supreme Court in

between Vishwa Lochan Madan Vs. Union of India and others

wherein in para 11 and 12 it was held that:

“A Quazi or Mufti has no authority or powers to impose his opinion and enforces fatwa on anyone by any coercive methods and that the fatwa has no place in independent India under our constitutional scheme and that it has no legal sanction and cannot be enforced by any legal process either by Dar-ul-qaza issuing that or the person concerned or for that matter anybody and that person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any Court of law and that it can simply be ignored and that in case any person or body tries to impose it, their act would be illegal and that therefore the grievance that Dar-ul-qazas and

Nizam-e-Qaza are running a parallel judicial system is misconceived.”

MC No. 31 of 2011 9 JMFC Court, Penukonda.

10.The petitioner is examined herself as PW-1 and her father is examined as PW-2, they were cross examined by the learned counsel

for the respondent with regard to the talak no suggestion was put to

PW-1 and PW-2. The respondent also did not examine the persons in whose presence he pronounced talak to the petitioner. Except his self serving testimony of RW-1 no oral or documentary evidence is produced before the Court in support of his contention that he

pronounced talak to the petitioner on 22-09-2011. “Markazi Darul

Qaza”, Imarat-e-Shariah Karnataka Arabic College Campus, Bangalore- 45 has no authority or power to imposed his opinion or to pass any order on any one by any coercive methods. If any order passed by the said “Markazi Darul Qaza” has no legal status nor constitutional scheme. The establishment of network of judicial system throughout the country for muslims to get disputes decided by Quazis, though may have a laudable object but it has no legal status. It is bereft of any legal pedigree and has no sanction in laws of the land. They are not part of Corpus Juris of the State. A fatwa is an opinion which only an expert is expected to give, it is not a decree nor binding on the Court or the state of individual. Hence, after enquiry before the said Quazi “Markazi Darul Qaza” the respondent pronounced talak on 22-09-2011 is not proved by the respondent and said “Markazi Darul Qaza” has no authority or power to impose his opinion and enforce fatwa on the petitioner and basing on the opinion of said “Markazi Darul Qaza” pronouncing the talak by the respondent to the petitioner has no legal sanctity.

11.As per the admissions of the respondent he has not

MC No. 31 of 2011 10 JMFC Court, Penukonda.

intimated the said talak to cancel the dafthar intimating them that he had pronounced talak to the petitioner and he had not given any representations to the Quazi of Penukonda intimating about the pronouncement of talak to the petitioner. The respondent stated in his cross examination that he pronounced talak to the respondent for three times in a single sitting in support of his evidence has not produced them. Hence, it can be said that no talak was pronounced by the respondent.

12.In view of the above discussion this point No.1 is answered in favour of the petitioner and against the respondent.

13.POINT NO.2: Whether the respondent is having sufficient means to maintain the petitioner and refused or neglected to provide maintenance to her? If so, what is the quantum of maintenance to be awarded to the petitioner?

This maintenance case is filed by the petitioner contending that the respondent refused and neglected to maintain her and that she prayed to grant maintenance of Rs.10,000/- per month from the respondent. The learned counsel for the respondent contended that the petitioner herself left the matrimonial home of the respondent and even after mediations the petitioner did not join with the respondent and that the respondent pronounced talak on 22-09-2011 and that the respondent need not pay the maintenance to the petitioner.

14.There is no dispute with regard to the marriage between the petitioner and the respondent. The respondent also admitted the marriage between the petitioner and himself. He also further admitted that after marriage the petitioners parents sent petitioner along with

MC No. 31 of 2011 11 JMFC Court, Penukonda.

Zeher articles i.e., one double wooden cot, wardrobe, show case, dressing table, household utensils. He further admitted that he shifted the above articles to the house of his brother. He further admitted that the petitioners father gave demand draft to his brother and brother-in- law. He further admitted that PW-1 is his distant relative. He further admitted that the parents of the petitioner also presented gold necklace, ear studs and bangles to the petitioner. No more evidence is required to say that the parents of the petitioner presented Zeher articles and also gave demand draft to the younger brother and brother-in-law of the respondent.

15.Now it has to be decided whether the petitioner voluntarily left the matrimonial home of the respondent or respondent refused or neglected the petitioner to maintain her. The contention of the petitioner is that the respondent and his parents demanded additional dowry of Rs.2,00,000/-. As her parents did not fulfill the demand of the respondent and his parents they used to beat her indiscriminately for simple and negligible things and without any fault of her. It is further contention of the petitioner is that not only the respondent but his parents and his elder sister also used to harass and humiliate her for want of additional dowry, her parents did not fulfill the demand of the respondent and his parents they took the petitioner to Penukonda on 26-09-2011 and left her in her parents house forcibly, after that the respondent did not come and took her to his house. Hence, this maintenance case is filed for Rs.10,000/- from the respondent.

16.In support of the contention of the petitioner, the petitioner herself examined as PW-1, in the chief examination affidavit she

MC No. 31 of 2011 12 JMFC Court, Penukonda.

reiterated contents of petition. The learned counsel for the respondent cross examined PW-1 at length. In the cross examination, he suggested that she eloped with one Rizwan her younger brother-in-law (sisters husband) prior to the marriage. The said suggestion was denied by PW-1. With regard to the family affairs of PW-1 the learned counsel for the respondent made cross examination in four pages. In the said four pages he did not elicit anything that the respondent and his parents did not demand additional dowry and they did not harass her. In the fifth page of the cross examination of PW-1 the learned counsel for respondent suggested that her husband filed divorce petition in Bangalore for that PW-1 denied. She further denied a suggestion that her marriage was dissolved. She further denied a suggestion that the respondent sent mehar amount to her by way of demand draft after divorce. In the cross examination PW-1 stated that the parents of respondent, sister-in-law and her husband used to demand her to bring money, hence, dispute arose. She further stated that the respondent and his family members did not allow her to come out of their house, hence she could not file report before Kamalapur

Police. She further stated that she informed fact of the case to her parents when they met them at Hospet. PW-1 further stated that on 26-09-2012 her in-laws brought her to her parents house and left her there since then she has been living with her parents.

17.PW-2 is father of PW-1, he deposed that the respondent and his parents demanded Rs.2,00,000/- additional dowry as they did not met the demand of the respondent, the respondent and his parents harassed PW-1. He further deposed that as they did not met the

MC No. 31 of 2011 13 JMFC Court, Penukonda.

demand of the respondent, the parents of the respondent brought his daughter-PW-1 to his house on 26-09-2011 and left her in his house, since then PW-1 has been living with him. He further deposed that the respondents parents refused to take back his daughter-PW-1 till their demand is fulfilled. He further deposed that he tried to convene the respondent through elders but in vain. He further deposed that father of the respondent bluntly refused to take his daughter to his house unless Rs.2,00,000/- is paid. He further deposed that his daughter filed a report at Penukonda Police Station against the respondent and his parents for dowry harassment and the said case is pending. The learned counsel for the respondent cross examined PW-2. He denied a suggestion that the respondent never demanded additional dowry. He further denied a suggestion that the respondent and his parents harassed PW-1 physically and mentally. At the time of cross examination, the petitioner expressed her readiness and willingness to live with the respondent now also.

18.Even though the learned counsel for the respondent cross examined PW-1 and PW-2 he did not elicit that the respondent and her parents did not demand additional dowry of Rs.2,00,000/- and he did not disprove that the respondent left the petitioner at Penukonda in the house of PW-2 on 26-09-2011. If really PW-1 intends to live with the petitioner what prevented him to take back to his home when she expressed her readiness and willingness to live with her.

19.The respondent himself examined as RW-1, he reiterated the contents of his counter in his chief examination affidavit. The learned counsel for the petitioner cross examined RW-1. In the cross

MC No. 31 of 2011 14 JMFC Court, Penukonda.

examination, he stated that he has not put up separate family with the petitioner at Bangalore though he has been working at Bangalore. He further stated that he used to visit his parents house at Kamalapur where the petitioner was staying. He further admitted that he never tried to convince the petitioner to join the matrimonial home. If really

RW-1 want to lead happy marital life with the petitioner why he has not taken the petitioner along with him to Bangalore where he has been working. It is also further contended by the respondent that as petitioner went with said Rizwan her father filed a complaint before the police stating that his daughter was missing. In support of his contention, the respondent did not file any document or he did not adduce any oral evidence. In the cross examination he stated that he did not personally see that the petitioner is in intimacy with others. So, except making bald allegations against the petitioner the respondent did not adduce any oral or documentary evidence. On the other hand, the petitioner and her father who is examined as PW-2 consistently stated that the respondent and his parents demanded additional dowry of Rs.2,00,000/-, as they did not fulfill the demand made by the respondent and his parents they harassed the petitioner and they left the petitioner at Penukonda in the house of PW-2 after that they did not taken back the petitioner to their house. Even though the learned counsel for the respondent cross examined PW-1 and PW-2 nothing is elicited to disprove the evidence of PW-1 and PW-2. At the end of cross examination of PW-1, she stated that she is ready to join with the respondent now. If the respondent has no bad intention and he has not demanded additional dowry of Rs.2,00,000/- and he has not harassed

MC No. 31 of 2011 15 JMFC Court, Penukonda.

her why he has not taken back the petitioner into his matrimonial home. So, the conduct of the respondent shows that he refused and neglected to maintain the petitioner.

20.In view of the above discussion, this Court holds that the respondent refused and neglected to maintain the petitioner. As the respondent refused and neglected now it has to be decided the quantum of sentence to be awarded to the petitioner. The maintenance has to be awarded to the petitioner basing on the source of income and earning capacity of the respondent. Coming to the income of the respondent, it is the evidence of PW-1 that she deposed that the respondent is working as Police Constable at Hospet and drawing salary of Rs.15,000/- per month. She further deposed that being the player of said Karnataka Police Volley Ball Team he receives perks and incentives about Rs.10,000/- per month besides his salary. In the cross examination also PW-1 stated that the respondent is drawing

Rs.10,000/- salary per month. PW-2 who is father of PW-1 deposed that the respondent is drawing Rs.12,000/- per month as on the date of marriage. He further deposed that he has no capacity to maintain her daughter. The learned counsel for the respondent nothing suggested to PW-2 with regard to the salary of Rs.15,000/- by the respondent. Even though the learned counsel for the respondent suggested to PW-1 that the respondent is not earning Rs.15,000/- per month as sportsmen the said suggestion was denied by PW-1. Coming to the evidence of RW-1, he admitted that he has joined as Police

Constable on 15-10-2005. He further admitted that he is a representative of Karnataka Volley Ball Team. He further stated that his

MC No. 31 of 2011 16 JMFC Court, Penukonda.

gross salary per month is Rs.15,000/-. When RW-1 himself admitted that he is getting Rs.15,000/- salary, no need to adduce any documentary evidence by the petitioner to prove the salary of RW-1. As per the evidence of RW-1 he joined as a police constable on 15-10- 2005. In general every employee is getting one increment in a year and also the Government giving two dearness allowances per year to the employee. When RW-1 joined as constable in the year 2005, now he has completed 10 years of service. So, he would get salary of rupees more than Rs.15,000/- per month. It is the bounden duty of the husband to provide food, shelter and clothes as per the status of the respondent. Being the wife of a police constable the petitioner has to maintain some dignity on par with the respondent. Hence, it is just and necessary to grant maintenance to the petitioner. Considering the earning capacity of the respondent, the petitioner is entitled for

Rs.6,000/- per month as because nowadays house rents, costs of vegetables and provisions are sky rocketing. One can spend Rs.200/- per day for minimum requirements.

21.The learned counsel for the respondent argued that the petitioner is not entitled for maintenance under Section 125 of Criminal

Procedure Code as because she belongs to Muslim Community she has to claim the maintenance under Muslim Personal Law. For this the learned counsel for petitioner argued that the Muslim woman is entitled for maintenance under Section 125 of Criminal Procedure Code as she has not a divorced woman. In support of contention of the learned counsel for the petitioner, he relied upon a decision reported in

2012(3) ALT (Criminal) 86 (Andhra Pradesh) in between

MC No. 31 of 2011 17 JMFC Court, Penukonda.

Dudekula Mahboob Saheb Vs. Dudekula Shahnaz Begum and

others wherein in para 18 it was held that:

“Wife got right to approach under Section 125 of Criminal

Procedure Code for her maintenance unless it is proved that there was divorce between them.”

22.As already discussed above in this case, the talak was not proved by the respondent-RW-1, hence, the petitioner who is a muslim women is entitled for maintenance under Section 125 of Criminal

Procedure Code as per the above decision rendered by the Hon’ble High

Court of Andhra Pradesh. So, I do not find any force in the arguments of the learned counsel for the respondent in this aspect.

23.In the result, the petition is allowed directing the respondent to pay maintenance of Rs.6,000/- (Rupees Six thousand only) per month to the petitioner from the date of order i.e., 19-01- 2016. The respondent shall pay the said amount either to the petitioner directly or deposit the same into the bank account of petitioner which shall be furnished by the petitioner under intimation to the Court on or

before 5th of every succeeding month. The respondent further directed

to pay Rs.5,000/- (Rupees Five Thousand only) towards expenses of the proceedings. The office is directed to serve free copy of the order to the petitioner forthwith.

Dictated to Stenographer Grade III, transcribed by him,

corrected and pronounced by me in open Court on this the 19 th day of January, 2016

JUDICIAL MAGISTRATE OF FIRST CLASS

MADAKASIRA

FAC: JUDICIAL MAGISTRATE OF FIRST CLASS

PENUKONDA

MC No. 31 of 2011 18 JMFC Court, Penukonda.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER: FOR RESPONDENT

PW-1 - Syeda Hafsa(petitioner)RW-1 - Syed Hasib Pasha PW-2 - Syed Shakeerulla Hussaini

EXHIBITS MARKED

FOR PETITIONER:

Ex.P-1: Wedding Card. Ex.P-2: Translated copy of Marriage certificate. Ex.P-3: Photographs.

FOR RESPONDENT:

- NIL-

JUDICIAL MAGISTRATE OF FIRST CLASS

MADAKASIRA

FAC: JUDICIAL MAGISTRATE OF FIRST CLASS

PENUKONDA

C.C.No.471 of 2012 1 JFCM COURT, PENUKONDA

IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE

PENUKONDA

PRESENT:-SRI B.DEVENDRA REDDY

Judicial First Class Magistrate

Madakasira

FAC: Judicial First Class Magistrate

Penukonda

Tuesday, the 29th day of March, 2016

CALENDAR CASE No.471 of 2012

Between: State Represented by Sub-Inspector of Police Roddam Police Station

...Complainant

AND

V.Maruthi S/o Ramanjineyulu, Age:24 years, Roddam Village and Mandal, Driver of Cruiser Bearing No.AP 04 W 5861

...Accused

This case is coming before me on 22-03-2016 for final hearing

before me in the presence of Assistant Public Prosecutor for the state

and of Sri M.Sreenivasulu, Advocate for Accused and having stood over for consideration till today the Court made the following:

J U D G M E N T

1.The Sub-Inspector of Police, Roddam Police station filed a charge sheet in Crime No.79 of 2012 of Roddam Police Station for the offence punishable under Section 338 of Indian Penal Code against accused.

2.Brief facts of the prosecution case are as follows:

On 22-09-2012 at about 5:00 PM PW-1 Ediga Kiran Sai and

PW-2 Mangala Manju along with accused left Roddam Village to go to

Patharlapalli for immersion of Festival of Ganesh Idols in Cruiser bearing

No.AP 04 W 5861 belongs to LW-6, while they reached Peddakodipalli

Village the accused who is the driver of Cruiser drove it in a rash and negligent manner, when they reached near the house of Gudise

C.C.No.471 of 2012 2 JFCM COURT, PENUKONDA

Pathanna of Peddakodipalli Village, the accused lost control over it, due to which Cruiser fell turtle on the road, then PW-1 sustained fracture to his left hand and accused also sustained dumb injury on his chest, but

PW-3 did not sustained any injury.

On the statement of PW-1 before PW-9 R.Dhanunjaya Babu,

Head Constable, Penukonda Police Station, PW-10 D.Subbaram Naik,

Head Constable, Roddam Police Station registered a case in Crime

No.79 of 2012 of Roddam Police Station for the offence punishable under Section 338 of Indian Penal Code and investigated into. During the course of investigation, PW-10 D.Subbaram Naik, Head Constable,

Roddam Police Station examined PW-1, PW-2, PW-3 Boya

Ramanjineyulu, PW-4 Boya Pothanna and PW-5 Boya Karenna, recorded their statements, visited the scene of offence, examined the scene of offence, seized the crime vehicle Cruiser bearing No.AP 04 W 5861 to

PW-6 G.Sathyanarayana, Owner of the Crime vehicle Cruiser bearing

No.AP 04 W 5861 under cover of police proceedings on 23-09-2012 at 11:30 AM and prepared rough sketch of the scene of offence. On 10-10- 2012 LW-11 S.Haroon Basha, Sub Inspector of Police, Roddam Police

Station arrested the accused and sent him to the Court for judicial remand. PW-7 Dr. Thyagaraj, Civil Assistant Surgeon, Medical Officer,

Government Hospital, Penukonda who examined and rendered treatment to PW-1 issued wound certificate opining that the injuries sustained by PW-1 are grievous in nature. After obtaining the wound certificate of PW-1, verifying the investigation done by PW-9

R.Dhanunjaya Babu, Head Constable, Penukonda Police Station and PW- 10 D.Subbaram Naik, Head Constable, Roddam Police Station, LW-11

S.Haroon Basha, Sub Inspector of Police, Roddam Police Station laid

C.C.No.471 of 2012 3 JFCM COURT, PENUKONDA charge sheet against the accused for the offence punishable under

Section 338 of Indian Penal Code. Hence, the charge sheet.

3. This case was taken on file under Section 338 of Indian

Penal Code against accused. On appearance of accused, copies of all the documents on which the prosecution relied were supplied to accused as contemplated under Section 207 of Criminal Procedure

Code.

4. On appearance of accused copies of documents were furnished to them and examined him under Section 251 of Criminal

Procedure Code and read over and explain to accused in Telugu for which he pleaded not guilty and claimed to be tried.

5.During the course of trial, the prosecution examined PW-1 to PW-10 and got marked Ex.P-1 to Ex.P-8.

6.After closure of prosecution evidence, accused was examined under Section 313 of Criminal Procedure Code and the substance of incriminating material deposed by the prosecution witnesses was read over and explained to accused in Telugu, to which he denied the same as false and reported no defence evidence on his behalf.

7.Heard the arguments of both sides. Perused the record.

8.Now the point for determination is

Whether the prosecution has proved the guilt of accused

for the offence punishable under Section 338 of Indian Penal

Code beyond reasonable doubt?

9.P O I N T: To prove the case of prosecution, prosecution examined PW-1 to PW-10. PW-1 is the injured, PW-2 to PW-5 are witnesses to the occurrence, PW-6 is the owner of the crime vehicle,

C.C.No.471 of 2012 4 JFCM COURT, PENUKONDA

PW-7 is the doctor, PW-8 is the motor vehicle inspector and PW-9 and

PW-10 are the investigating officers.

10.PW-1 deposed that on 22-09-2012 at about 5:00 PM himself along with PW-2 and accused started in Crime vehicle driven by the accused to go to Patharlapalli Village for attending Immersion of Lord

Ganesh Idol, the accused drove the crime vehicle in a rash and negligent manner, due to that the crime vehicle turned turtle at

Peddakodipalli near the house of PW-4, in the said accident he sustained fracture to his left hand, the accused also sustained injury over his chest. Thereafter, they were shifted to Government Hospital,

Penukonda. The statement of PW-1 at Government Hospital, Penukonda is marked as Ex.P-1. He further deposed that police examined him and recorded his statement.

11.The learned counsel for the accused cross examined PW-1, in the cross examination PW-1 stated that on the same day itself police examined him. On perusal of Section 161 of Criminal Procedure Code statement of PW-1 police recorded the statement of PW-1 on the same day. In the cross examination PW-1 admitted that he stated to the police that the accident took place at 5:00 PM. On perusal of Section 161 of

Criminal Procedure Code statement of PW-1, he stated before the police that accident occurred at 5:00 PM. So, even though the learned counsel

for the accused cross examined PW-1 on 01-04-2015 after two and half

years, he has not deviated his Section 161 of Criminal Procedure Code statement which was recorded by the police on 22-09-2012. He stated in the cross examination on 01-04-2015 what he stated before the police at the time of recording his Section 161 of Criminal Procedure

Code statement on 22-09-2012. PW-1 denied a suggestion that he

C.C.No.471 of 2012 5 JFCM COURT, PENUKONDA never travelled in the crime vehicle on 22-09-2012, taking advantage of the injuries sustained by him by falling down from a motor cycle he foisted a false case against the accused to claim compensation. He denied a suggestion that the accused is no way responsible for the accident and for causing injury to him. So, it can be said that PW-1 travelled in the crime vehicle on 22-09-2012 as stated by him in the chief examination. The learned counsel for the accused suggested that

PW-1 fell down from a motor cycle and sustained injuries taking advantage of the same he foisted this false case against the accused to claim compensation. But, the learned counsel for the accused did not produce any evidence where PW-1 fell down and from which motor cycle he fell down. The said suggestion was denied by PW-1. Hence, it can be said that PW-1 did not fell down from motor cycle and did not receive injuries due to fell down from a motor cycle.

12.PW-2 is also a person who travelled in the crime vehicle deposed that on 22-09-2012 at about 5:00 PM himself along with PW-1 and accused started in the crime vehicle driven by the accused to go to

Patharlapalli Village for attending immersion of Lord Ganesh Idol. The accused drove the crime vehicle at high speed, when they reached

Peddakodipalli the crime vehicle turned turtle to its right side, in the said accident PW-1 sustained fracture to his left hand, the accused also sustained injury over his chest. Thereafter he shifted PW-1 and accused to Government Hospital, Penukonda, police examined him and recorded his statement.

13.The learned counsel for the accused cross examined PW-2, in the cross examination he stated that they started at 5:00 PM at

Roddam and they reached to Peddakodipalli Village at 5:30 PM. He

C.C.No.471 of 2012 6 JFCM COURT, PENUKONDA further stated that on the next day police examined him and recorded his statement. On perusal of Section 161 of Criminal Procedure Code statement of PW-1 police examined him and recorded his statement on the next day of the accident. So, there is no deviation from the chief examination. He denied a suggestion that himself along with PW-1 never travelled in the crime vehicle on 22-09-2012, PW-1 sustained injury when they fell down from a moving motor cycle himself and

PW-1 were proceeding on motor cycle, with an intent to get compensation this case is foisted against the accused by involving the crime vehicle and that the accused and crime vehicle are no way concerned with the case. As PW-2 denied the said suggestion it can be said that PW-1 and himself travelled in the crime vehicle on the date of accident. The accused did not prove that PW-1 and PW-2 fell down from which motor cycle they fell down. Even though the learned counsel for the accused suggested as above, the said suggestion was denied by PW-2. Hence, it can be said that PW-1 and PW-2 travelled in the crime vehicle driven by the accused and accused drove the crime vehicle in a rash and negligent manner and he is responsible for the accident and also for the injuries to PW-1.

14.PW-3 and PW-4 are witnesses belongs to Peddakodipalli

Village where the crime vehicle turned turtle. Both are not supported the case of prosecution. They deposed that they did not know anything about the facts of this case. Hence the learned Assistant Public

Prosecutor declared them as hostile and cross examined them with the permission of the Court. In the cross examination they denied a suggestion that they stated before the police as in Ex.P-2 and Ex.P-3.

The said PW-3 and PW-4 are not the persons travelled in the crime

C.C.No.471 of 2012 7 JFCM COURT, PENUKONDA vehicle they are only witnesses present where the crime vehicle turned turtle.

15.PW-5 is the witness for the occurrence, he deposed that nearly two years ago, on one day at about 5:30 PM while he was sitting infront of house of PW-4, he found one Zeep which came at high speed from Roddam and fell down on the road side margin, immediately he went near to the Zeep and lifted PW-1, PW-2 and accused from inside the Zeep. PW-1 sustained fracture to his left hand, accused sustained injury over his chest. He further deposed that the accused is driving the crime vehicle at the time of accident. PW-2 has not sustained any injury, thereafter he shifted PW-1 and accused to Government Hospital,

Penukonda in the Zeep. In the cross examination, he denied a suggestion that PW-1 and PW-2 never travelled in the crime vehicle along with accused, PW-1 sustained injury when he fell down from a moving motor cycle and intentionally this case is foisted against the accused involving the crime vehicle with an intent to get compensation and that he is deposing falsehood to help PW-1.

16.From the above evidence of PW-5 who is witness to the occurrence it can be said that the accused is the driver of crime vehicle, he drove it in a high speed and crime vehicle turned turtle, PW-1, PW-2 and accused are in the Zeep, as Zeep turned turtle PW-1 sustained fracture to his left hand and accused sustained injury over his chest.

The evidence of PW-5 who is an independent witness is corroborated with the evidence of PW-1 and PW-2.

17.PW-6 is the owner of the crime vehicle, he deposed that he owned the crime vehicle bearing No.AP 04 W 5861, nearly three years back the crime vehicle met with accident at Patharlapalli Village of

C.C.No.471 of 2012 8 JFCM COURT, PENUKONDA

Roddam Mandal, at that time the driver of crime vehicle was accused herein. He further deposed that on the date of accident during early morning at about 5:00 AM the accused who was working as driver under him took the crime vehicle to go to Pavagada on the same day at 5:00 PM or 5:30 PM one Chandra informed him over phone that the crime vehicle met with accident near Peddakodipalli Village while the accused is proceeding from Roddam to Penukonda. He further deposed that immediately he rushed to the scene of offence and found the crime vehicle turned turtle and came to know that the injured victims were shifted to Government Hospital, Penukonda, on the next day he handed over the records of crime vehicle to Roddam Police. He stated in the cross examination that he did not produce any records to show that the accused is working as driver under him, he shifted the crime vehicle to the police station on the next day at 12:00 Noon. The learned counsel

for the accused argued that as the owner of the crime vehicle who is

PW-6 did not produce any records to show that the accused worked as driver under him, so, the accused is not the driver of crime vehicle as on the date of accident. In general to a private vehicle no one can maintain records to show that particular person is a driver to the private vehicle. Only in Government departments and corporations record is being maintained by the authorities to show that the vehicle is handed over on a particular day to particular driver. As the crime vehicle is a

Cruiser and it is maintained by a private person expecting the record to show that owner entrusted the vehicle to the accused is not correct. As

PW-1, PW-2 and PW-5 stated that as on the date of accident the accused was the driver of the crime vehicle and he drove the crime vehicle in a rash and negligent manner and he is responsible for turned turtle of the crime vehicle, it can be said that the accused was the

C.C.No.471 of 2012 9 JFCM COURT, PENUKONDA driver of the crime vehicle as on the date of accident. No need to say false to PW-6 who is the owner of the crime vehicle that he handed over the crime vehicle to accused and accused was the driver of the crime vehicle as on the date of accident. The learned counsel for the accused did not elicit anything that there is enmity between PW-6 owner of the crime vehicle and the accused. Hence, it can be said that the accused was the driver of the crime vehicle on the date of accident.

18.PW-7 is the doctor, he deposed that on 22-09-2012 at 7:30

PM he examined PW-1 and found the following injuries. (1) Big abrasion 2 X 2 inches over the left forearm with swelling, X-ray shows fracture left ulna and second metacarpal bone, (2) Lacerated wound present over the left thinner muscle and (3) Punctured wound 3 cms X 1 cms X 0.5 cms over the middle 1/3rd of left humorous, X-ray shows fracture middle 1/3rd of left humorous. He opined that the injuries 1 and 3 are grievous in nature, injury No.2 is simple in nature might have been caused by impact of hard object, the duration of injuries is within one hour prior to his examination. He issued Ex.P-4 wound certificate.

19.The learned counsel for the accused cross examined PW-7 doctor in length. The learned counsel for the accused posed question whether he has mentioned about the injuries in the intimation sent to the police. For which the witness stated that in intimation to the police they will not mention the injuries sustained by the injured. Knowing very well that no doctor will mention the injuries sustained by the patient in medical admit intimation sent to the police, the learned counsel posed the said question to PW-7-Doctor. PW-7 stated that he addressed the intimation to Sub Inspector of Police, Penukonda. The witness voluntarily says that there is a common format available at the

C.C.No.471 of 2012 10 JFCM COURT, PENUKONDA hospital which is addressed to Magistrate and same is sent to Sub

Inspector of Police, Penukonda. On perusal of Ex.P-5 hospital intimation it is addressed to the Magistrate. In the cross examination, he denied a suggestion that the date is altered by making “27” as “22” on the request of police for the purpose of this case and though actually hospital intimation is issued on 27-09-2012, as such, he did not mention the date underneath his signature in hospital intimation. On perusal of

Ex.P-5 medical admit intimation there is some correction in the date portion. On perusal of Ex.P-1 report which was recorded by the investigating officer clearly shows that the statement of PW-1 was recorded on 22-09-2012. Ex.P-7 FIR also shows that the accident occurred on 22-09-2012. If PW-7 doctor sent Ex.P-5 medical admit intimation to the police on 27-09-2012 how police can record statement of PW-1 at the hospital on 22-09-2012. Endorsement on Ex.P-1 by the police clearly shows that police recorded statement of PW-1 on 22-09- 2012. Basing on it, the investigating officer registered this case and issued Ex.P-7 FIR and took up investigation. So, it cannot be said that the doctor sent Ex.P-5 medical admit intimation on 27-09-2012.

20.In view of the above discussion, it can be said that the doctor sent medical admit intimation on 22-09-2012 even though there is correction on Ex.P-5 medical admit intimation in the date portion. The learned counsel for the accused posed question to PW-7 doctor that whether the name of Radiologist who took X-ray film is mentioned in

Ex.P-4 wound certificate. PW-7 doctor further stated that after obtaining opinion from Radiologist he issued Ex.P-4 wound certificate. Even though the name of Radiologist is not mentioned in Ex.P-4 wound certificate it is not an improvement. Non mentioning of the Radiologist

C.C.No.471 of 2012 11 JFCM COURT, PENUKONDA name in Ex.P-4 wound certificate it is not fatal to the case of prosecution. In a case of this nature punishable under Section 338 of

Indian Penal Code proving of injuries by the prosecution is not necessary. Only aspect to be proved by the prosecution is whether the accused drove the crime vehicle in a rash and negligent manner or not, whether the accused was the driver of the crime vehicle as on the date of accident and whether the injured sustained simple or grievous injuries. In this case, from the above evidence of PW-1, PW-2, PW-5 and

PW-6 it can be said that accused was the driver of the crime vehicle and he drove the crime vehicle in a rash and negligent manner and he is responsible for turning turtle of the crime vehicle and also responsible for the injuries sustained by PW-1. As per Section 60 of Indian Evidence

Act oral evidence must be direct. The said Section 60 of Indian Evidence

Act, 1862 envisages that if it is refers to opinion or grounds on it that opinion is held it seems to be evidence of the person who holds that opinion on this grounds. In this case, PW-7 doctor gave opinion that PW- 1 sustained simple and grievous injuries. Hence, his evidence is sufficient without examining the Radiologist who took X-ray of PW-1 to say that PW-1 sustained simple and grievous injuries as per Section 60 of Indian Evidence Act. PW-7 denied a suggestion that Penukonda police never came to the hospital on 22-09-2012 at about 7:30 PM and they never recorded the statement of PW-1. He further denied a suggestion that PW-1 never came to the hospital and never examined him and never treated PW-1 and due to that he did not mention all the particulars in the hospital intimation said to have been issued to

Penukonda police.

21.As already discussed above, no need to mention all the

C.C.No.471 of 2012 12 JFCM COURT, PENUKONDA particulars of the injuries sustained by the injured in medial admit intimation, only doctor has to be mentioned in medical admit intimation sent to police the particulars of injured. On perusal of Ex.P-5 medical admit intimation doctor PW-7 mentioned the particulars of injured. PW- 7 evidence is supported by PW-1 and PW-2 that PW-1 went to the

Government Hospital, Penukonda for treatment on the date of accident itself. PW-7 doctor also stated that PW-1 came to the hospital on 22- 09-2012 and he gave treatment to PW-1. The learned counsel for the accused posed question with regard to the endorsement of PW-7 doctor about the consciousness of PW-1 at the time of recording of statement of PW-1 by the police in the hospital. For that PW-7 doctor replied that prior to recording statement of PW-1 he orally informed to the police that PW-1 is in conscious and after recording statement of PW-1 he made endorsement about the consciousness of PW-1. On perusal of

Ex.P-1 report doctor endorsed on it that PW-1 is conscious. It shows that

PW-1 is conscious at the time of recording of statement. PW-7 doctor has not committed any error in endorsing the consciousness of PW-1 on

Ex.P-1. PW-1, PW-2 and PW-5 did not state that PW-1 went unconscious after accident. So, question of consciousness of PW-1 does not arise.

However, the learned counsel for the accused posed questions to PW-7 doctor, with regard to unconsciousness.

22.From the above evidence of PW-7 doctor it can be said that

PW-1 sustained injuries mentioned in Ex.P-4 in the accident and PW-7 treated PW-1 and basing on the medical admit intimation of PW-7 doctor PW-9 recorded Ex.P-1 statement and the same was forwarded to

Roddam Police Station on the point of jurisdiction. PW-9-investigating officer also stated that he obtained endorsement from PW-7 doctor

C.C.No.471 of 2012 13 JFCM COURT, PENUKONDA about the consciousness of PW-1 to give his statement. PW-9- investigating officer denied a suggestion that he never went to the

Government Hospital, Penukonda on 22-09-2012 at about 7:30 PM he recorded the statement of PW-1 at Government Hospital, Penukonda and he prepared Ex.P-1 complaint at the police station in order to help

PW-1 to get compensation amount by foisting this case against the accused taking advantage of injuries sustained by PW-1 somewhere else. As PW-9 denied the said suggestion it can be said that PW-9 went to the hospital on 22-09-2012 at 7:30 PM and he recorded the statement of PW-1. The said evidence of PW-9 is also corroborated with the evidence of PW-1 who is injured in this case.

23.PW-8 is the motor vehicle inspector deposed that he inspected the crime vehicle on 27-09-2012 and found damages and he issued Ex.P-6 report. He opined that the accident was not occurred due to any mechanical defects. In the cross examination, he denied a suggestion that he has not inspected the crime vehicle and he issued

Ex.P-6 at the request of LW-11 Sub Inspector of Police. So, the above evidence of PW-8 shows that the crime vehicle was damaged and accident was not occurred due to any mechanical defects. So, it can be said that the accused drove the crime vehicle in a rash and negligent manner and that crime vehicle turned turtle and vehicle was damaged.

24.PW-10 is the investigating officer who registered this case basing on Ex.P-1 report of PW-1 which was received from Penukonda

Police Station. He further deposed that he issued Ex.P-7 FIR, examined the prosecution witnesses and recorded their statements. He further deposed that he prepared Ex.P-8 rough sketch of the scene of offence.

He further stated that he handed over the case file to LW-11 Sub

C.C.No.471 of 2012 14 JFCM COURT, PENUKONDA

Inspector of Police for further investigation. He further deposed that LW- 11 Sub Inspector of Police arrested the accused on 10-10-2012 and after completion of investigation, LW-11 Sub Inspector of Police laid charge sheet against the accused. In the cross examination, he stated that he had seized the records of crime vehicle and filed the same into the Court. He denied a suggestion that he did not examine PW-3 and

PW-4 and entire records is built up at the police station. Even though the learned counsel for the accused cross examined PW-10 nothing is elicited in favour of the accused and he did not disprove the evidence of

PW-10-investigating officer.

25.In view of the above discussion, this Court holds that PW-1,

PW-2, PW-5 and PW-6 categorically stated that accused was the driver of the crime vehicle as on the date of accident and he drove the crime vehicle in a rash and negligent manner and he is responsible for the accident and also he is responsible for the injuries sustained by PW-1.

The evidence of PW-7 doctor is corroborated with the evidence of PW-1 injured that he received injuries in the accident.

26.In view of the above discussion, this Court holds that the prosecution proved the guilt of accused for the offence punishable under Section 338 of Indian Penal Code, hence, accused is convicted for the same under Section 255(1) of Criminal Procedure Code.

Judicial First Class Magistrate

Madakasira FAC: Penukonda

27.When accused questioned about the quantum of sentence, he submitted that he is only male person and he has oldaged parents and two female children and he is only bread winner of his family and

C.C.No.471 of 2012 15 JFCM COURT, PENUKONDA prayed pardon. Considering the injuries sustained by PW-1 and as PW- 2 who is also travelling in the crime vehicle was not received any injury in the accident and accused also has not received any injuries in the accident, it is a fit case to take lenient view in imposing the sentence and considering the facts and circumstances of the case it is not a fit case to invoke the provisions of Probation of Offenders Act or Section 360 of Criminal Procedure Code to accused.

28.In the result, accused is found guilty for the offence punishable under Section 338 of Indian Penal Code and he is convicted for the same under Section 255(2) of Criminal Procedure Code and he is sentenced to pay fine of Rs.1,000/- (Rupees One Thousand only), in default of payment of fine he shall undergo simple imprisonment for a period of two months.

Accused is informed about his right of appeal against this

Judgment before the Hon'ble District Court, Ananthapuram. Accused reported that he has means to engage a counsel to prefer an appeal.

Dictated to the Stenographer Grade III, transcribed by him,

corrected and pronounced by me in the open Court on this the 29 th day of March, 2016.

Judicial First Class Magistrate Madakasira FAC: Penukonda

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW-1: Ediga Kiran Sai None PW-2: Mangala Manju PW-3: Boya Ramanjineyulu PW-4: Boya Pothanna PW-5: Boya Karennna PW-6: G.Sathyanarayana PW-7: Dr. Thyagaraj, CAS PW-8: Madhavareddy, MVI PW-9: R.Dhanunjaya Babu, HC PW-10: D.Subbaram Naik, HC

C.C.No.471 of 2012 16 JFCM COURT, PENUKONDA

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P-1 : Statement of PW-1 recorded at Government Hospital, Penukonda Ex.P-2 : Section 161 of Criminal Procedure Code Statement of PW-3 Ex.P-3 : Section 161 of Criminal Procedure Code Statement of PW-3 Ex.P-4 : Wound Certificate of PW-1 Ex.P-5 : Hospital Intimation Ex.P-6 : Motor Vehicle Inspection report Ex.P-7 : FIR in Crime No.79 of 2012 of Roddam Police Station Ex.P-8: Rough Sketch

FOR DEFENCE: -NIL-

MATERIAL OBJECTS FOR PROSECUTION

-Nil-

J.F.C.M.

C.C.No.471 of 2012 17 JFCM COURT, PENUKONDA

EXAMINATION OF THE ACCUSED UNDER SECTION 255(2) OF CRIMINAL

PROCEDURE CODE

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,

MADAKASIRA

C.C.No.471 of 2012

Name: V.Maruthi Calling:

Father's Name: Ramanjineyulu Religion: Hindu

Village: Roddam Age: 28 years

Mandal: Roddam Date: 29-03-2016

Question: Hearing the accused under Section 255(2) of Cr.P.C., about quantum of sentence for the offence punishable under Section 338 of

Indian Penal Code. What do you say?

Ans:-

C.C.No.471 of 2012 18 JFCM COURT, PENUKONDA

IN THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE,

PENUKONDA

CALENDER CASE NO.471 of 2012

1. Date of offence : 22-09-2012

2. Date of complaint or report: 22-09-2012

3. Date of apprehension of Accused : 10-10-2012

4. Date of release on bail of Accused : 10-10-2012

5. Date of commencement of trial: 24-03-2015

6. Date of close of trial: 07-09-2015

7. Date of sentence or Order: 29-03-2016

8. Explanation of delay if any: –

COMPLAINANT: State Represented by Sub-Inspector of Police Roddam Police Station in Crime No.79 of 2012.

ACCUSED: V.Maruthi S/o Ramanjineyulu, Age:24 years, Roddam Village and Mandal, Driver of Cruiser Bearing No.AP 04 W 5861

Section of Law : Section 338 of Indian Penal Code

Finding of Court : In the result, accused is found guilty for the offence punishable under Section 338 of Indian Penal Code and he is convicted for the same under Section 255(2) of Criminal Procedure Code and he is sentenced to pay fine of Rs.1,000/- (Rupees One Thousand only), in default of payment of fine he shall undergo simple imprisonment for a period of two months. Accused is informed about his right of appeal against this Judgment before the Hon'ble District Court, Ananthapuram. Accused reported that he has means to engage a counsel to prefer an appeal.

Sentence/Order: 29-03-2016.

Judl.Magistrate of First Class Madakasira

Copy submitted to the Hon’ble II Addl. District and Sessions

Judge, Hindupur.

O.S.No.47 of 2011 1 JCJ Court, Penukonda

IN THE COURT OF JUNIOR CIVIL JUDGE, PENUKONDA

PRESENT:-SRI B.DEVENDRA REDDY

JUNIOR CIVIL JUDGE

MADAKASIRA

FAC: JUNIOR CIVIL JUDGE

PENUKONDA

Monday the 1st day of February, 2016

ORIGINAL SUIT No.47 OF 2011

Between:

Mohanamma ...Plaintiff

-Versus-

Peerul Haji alias Shammu …Defendant

This suit is coming on 21-12-2015 before me for final hearing in the presence of Sri D.Pakkeera Reddy, Sri R.Sreekantha Reddy and P.Abdul Mujeeb Khan, Advocates for the Plaintiff and of Sri Md.Asif, Advocate for the Defendant upon hearing the arguments of plaintiff counsel, defendant counsel, having perused the material papers on record, and having stood over for consideration till this day this Court delivered the following :-

J U D G M E N T

1.This is a suit filed for recovery of Rs.43,000/- on the foot of promissory note dt:07-03-2008.

2.The brief averments of the plaint are as follows :

The defendant borrowed Rs.25,000/- on 07-03-2008 from the plaintiff promising to pay on demand with interest at 24% per annum and executed the promissory note payable to the plaintiff on demand with interest at 24% per annum on 07-03-2008. It is further submitted that the defendant intentionally put the date underneath his signature below the stamps as 09-04-2009 and signed on the stamps as Shammu instead of signing Peerul Haji alias Shammu. Evidently, the defendant did so, with intent to defraud the plaintiff and the plaintiff and her people could not notice the evil intention of the defendant and did not also notice the date as 09-04-

O.S.No.47 of 2011 2 JCJ Court, Penukonda

2009 underneath the stamps. The defendant did not pay the amount despite demands by registered notice and he sent a reply notice with false allegations. Hence, the suit.

3.The defendant filed written statement denying allegations mentioned in the plaint and further contended that there were cordial relations between his mother and the plaintiff while they were at Penukonda and the plaintiff used to come to the house of defendant very frequently and she used to take the help of the defendant's mother in all means. It is further submitted that the plaintiff has taken golden ear studs, golden ring and golden neck chain of defendant's wife to attend a function but did not return the same in spite of several demands of the wife of defendant and subsequently some differences have been cropped in between them and the defendant and his wife took up this matter to the notice of elders where in the plaintiff admitted her misuse of said golden jewelry and promised to return the said jewelry very soon but did not do till now and a complaint is also pending before the police, Penukonda with regard to said jewelry against the plaintiff preferred by the wife of this defendant. It is further submitted that the son of plaintiff by name Gopi @ Fakroddin embraced Islam religion and married the sister's daughter of this defendant and this is also one of the reasons to the plaintiff for becoming aversion against the defendant. Only with an intention to grab the said jewelery, to defame the defendant and also to get wrongful gain the plaintiff filed the above suit on the basis of a fabricated document at ill advise of some litigant brains.

It is further submitted that the defendant never borrowed any amount from the plaintiff nor executed any promissory note muchless the

O.S.No.47 of 2011 3 JCJ Court, Penukonda

suit promissory note in favour of the plaintiff at any point of time and that the plaintiff has no capacity to advance such huge amounts to anybody nor the defendant got such necessity to borrow amount from the plaintiff and this defendant also issued reply notice suitable to the notice issued by the plaintiff on 02-02-2011. It is further submitted that the fact of signing as

Shammu and putting date below the stamps as 09-04-2009 by the defendant in the suit promissory note are not at all mentioned by the plaintiff in her notice dated 02-02-2011 and all these subsequent developments clearly establish that the alleged suit promissory note was created one and also materially altered and the alleged promissory note did not disclose its scribe.

There is no endorsement on the back side of the suit promissory note about the signature, number of attestors and scribe and the said promissory note is purely created and materially altered one and prays to dismiss the suit.

4.Basing on the above pleadings the following issues are settled for trial.

1) Whether the suit pronote is materially just altered?

2) Whether the suit promissory note is true, valid and binding on the defendant?

3) Whether the suit can be decreed as prayed for?

4) If so, to what relief?

5. On behalf of plaintiff, the plaintiff himself is examined as PW-1 and

Ex.A-1 to Ex.A-3 are marked. The plaintiff also examined one G.Ravi as

PW-2. On behalf of defendant, the defendant himself is examined as DW-1 and also examined one S.Shanu as DW-2 and got marked Ex.B-1 to Ex.B-8 on his behalf.

6.Heard the arguments on behalf of both side counsels. Perused the record.

O.S.No.47 of 2011 4 JCJ Court, Penukonda

7.ISSUE No.1: Whether the suit pronote is materially just altered?

This is a suit filed by the plaintiff for recovery of Rs.43,000/- on the foot of promissory note dt:07-03-2008 executed by the defendant for

Rs.25,000/- agreeing to repay the same with interest @ 24% per annum.

The learned counsel for the plaintiff argued in support of contents of the plaint and he further argued that no material alteration was made in Ex.A-1 promissory note. He further argued that the plea of material alteration on

Ex.A-1 promissory note was not taken by the defendant in Ex.A-2 reply notice. The learned counsel for the defendant argued that the plaintiff has not mentioned in the plaint and in Ex.A-2 notice about signing by the defendant as Shammu and putting date below the stamp as 09-04-2009, on perusal of Ex.A-1 promissory note at the top the date is mentioned by the plaintiff as 07-03-2008 and beneath the revenue stamp the date is mentioned as 09-04-2009, so, the plaintiff suppressed the said fact and filed the present suit by materially altering the dates and prayed to dismiss the suit as promissory note is materially altered.

8.In support of the contention of the plaintiff, the plaintiff herself examined as PW-1, she filed her chief examination affidavit by reiterating the contents of the plaint. In the cross examination, she denied a suggestion that one Shammu put the signature on empty promissory note dt:09-04- 2009 and got filled up with the name of the defendant and filed the present suit against the defendant. She further denied a suggestion that there are several material alterations in Ex.A-1 and that it is not a valid. PW-1 admitted that the date is mentioned as 09-04-2009 underneath the signature of Shammu in Ex.A-1 and date on the top on Ex.A-1 is mentioned as 07-03-

O.S.No.47 of 2011 5 JCJ Court, Penukonda

2008. She further stated that she found the said difference in the dates on

Ex.A-1 before issuing the notice as her counsel explained the same to her. In support of the contention of plaintiff, the attestor of Ex.A-1 is examined as

PW-2. In the chief examination, he deposed that “the defendant himself scribed Ex.A-1 promissory note, the defendant signed on revenue stamps as

Shammu instead of signing Peerul Haji @ Shammu and put date underneath his signature below the revenue stamps as 09-04-2009”. In the cross examination, PW-2 stated that Ex.A-1 promissory note was executed on 07- 03-2009. In support of the evidence of PW-1 and PW-2, the plaintiff marked

Ex.A-1 promissory note dt:07-03-2008. On perusal of the said Ex.A-1 promissory note the date on the top of Ex.A-1 is mentioned as 07-03- 2008 beneath the revenue stamps the date is mentioned as 09-04- 2009.

9.To prove the contention of the material alteration of Ex.A-1 the defendant himself examined as DW-1. He filed his chief examination affidavit by reiterating the contents of written statement. In the cross examination, he denied a suggestion that Ex.A-1 promissory note purposefully with a view to make wrongful gain he signed as Shammu on revenue stamps by putting date as 09-04-2009 though he mentioned his name as Peerul Haji S/o Abdul

Ajeez. On perusal of Ex.A-1 it is vividly manifests that on the top of Ex.A-1 promissory note the date is mentioned as 07-03-2008 and underneath the revenue stamps the date is mentioned as 09-04-2009. The burden lies on the defendant to prove this issue as because the defendant taken plea that

Ex.A-1 promissory note is materially altered one. To prove his contention, he examined as DW-1. In the cross examination, he denied a suggestion that

O.S.No.47 of 2011 6 JCJ Court, Penukonda

intentionally with a view to make wrongful gain he made date as 09-04-2009 beneath the revenue stamps instead of mentioning the date as 07-03-2008. However, on perusal of Ex.A-1 on the top of Ex.A-1 the date is mentioned as 07-03-2009 and beneath the revenue stamp the date is mentioned as 09-04-2009, the defendant has not explained how it is material alteration. The plaintiff also admitted the mentioning of dates by the defendant on the top of Ex.A-1 as 07-03-2009 and underneath the revenue stamp as 09-04-2009. On perusal of Ex.A-1, this Court do not find any material alteration on Ex.A-1 in the dates, only on the top of Ex.A-1 the date is mentioned as 07-03-2008 and underneath the revenue stamp the date is mentioned as 09-04-2009. Merely mentioning two different dates by the defendant on Ex.A-1 it cannot be said that Ex.A-1 is materially altered one.

Even calculating from the date i.e., 09-04-2009 the suit is not barred by limitation as this suit is filed on 07-03-2011.

10.In view of the above discussion, this Court holds that there is no material alteration in Ex.A-1 promissory note. Hence, this issue No.1 is answered in favour of the plaintiff and against the defendant.

11.ISSUES 2 AND 3:

2) Whether the suit promissory note is true, valid and binding on the defendant?

3) Whether the suit can be decreed as prayed for?

These issues 2 and 3 are taken up together for discussion for convenience sake.

12.The learned counsel for the plaintiff argued that the defendant executed suit promissory note in favour of the plaintiff borrowing an amount of Rs.25,000/- on 07-03-2008 agreeing to repay the same with interest @

O.S.No.47 of 2011 7 JCJ Court, Penukonda

24% per annum. He further argued that the defendant instead of signing as

Peerul Haji which name is mentioned in Ex.A-1 in borrower column he signed as Shammu and received consideration under Ex.A-1 suit promissory note from the plaintiff. He further argued that intentionally the defendant signed as Shammu on Ex.A-1 promissory note and now denying that he is not

Shammu is not sustainable one, taking contention that he is not Shammu is only to defeat and defraud the plaintiff and to get wrongful gain. In support of the arguments of the learned counsel for the plaintiff, the plaintiff herself examined as PW-1, she filed her chief examination affidavit as PW-1 and got marked Ex.A-1 to Ex.A-3. The learned counsel for the defendant cross examined PW-1. In the cross examination, she denied a suggestion that the defendant is known as Peerul Haji but not Shammu. She further denied a suggestion that Shammu is other person than the defendant. She further denied a suggestion that the defendant never borrowed any amount from her nor executed the suit promissory note. She further denied a suggestion that one Shammu put signature on empty promissory note dt:09-04-2009 and she got filled up with the name of the defendant who filed the present suit against the defendant. Even though the learned counsel for the defendant cross examined PW-1, he did not shaken the evidence of PW-1. The learned counsel for the defendant did not elicit in the cross examination that the defendant did not sign as Shammu on Ex.A-1. PW-1 consistently stated that the defendant signed as Shammu on the revenue stamp.

13.In support of her evidence, one attestor is examined as PW-2. He deposed that the defendant borrowed Rs.25,000/- from the plaintiff on 07- 03-2008 and executed suit promissory note in favour of the plaintiff. He

O.S.No.47 of 2011 8 JCJ Court, Penukonda

further deposed that the defendant himself scribed the promissory note. He further deposed that the defendant signed on the revenue stamps as

Shammu instead of signing Peerul Haji @ Shammu and put the date underneath his signature below the revenue stamps as 09-04-2009. He further deposed that the signature signed as Shammu on revenue stamps is that of the defendant. He further deposed that the defendant received amount from the plaintiff in his presence and executed promissory note in favour of the plaintiff in his presence. In the cross examination, he stated that he worked as Cleaner for the vehicle of Shammu for six months about five years ago. He admitted that father of Shammu by name Ramu was working in Young India Project. He further admitted that the particulars of defendant were mentioned in Ex.A-1 promissory note. He further stated that the person whose particulars mentioned in Ex.A-1 promissory note and who borrowed amount from the plaintiff is Peerul Haji S/o Ramu of Penukonda and these particulars were mentioned in his presence in Ex.A-1 promissory note and he has seen the same. He further stated that Ex.A-1 promissory note was written on 07-03-2008. He further stated that signature on revenue stamps on Ex.A-1 is Shammu but not Peerul Haji. “The witness voluntarily says that Peerul Haji signed as Shammu.” He admitted that the particulars of Peerul Haji is mentioned as Abdul Haji of Kadiri in Ex.A-1 promissory note. PW-2 further stated that Ex.A-1 promissory note is not executed in his presence and he does not know where it was executed. He admitted that he does not know the transaction covered under Ex.A-1 promissory note and he is the attestor to the promissory note in which the name of particulars of borrower were mentioned as Peerul Haji of Penukonda.

O.S.No.47 of 2011 9 JCJ Court, Penukonda

He denied a suggestion that Peerul Haji is not having any other name as he is known as Peerul Haji only. “The witness voluntarily says that Peerul

Haji is known as Shammu.” He further denied a suggestion that Peerul

Haji is not know as Shammu and he is speaking falsehood at the instance of the plaintiff. He admitted that son of plaintiff is converted into Islam and married the sister's daughter of Peerul Haji.

14.From the above cross examination of PW-2, it can be said that

Peerul Haji is called as Shammu and Peerul Haji (defendant) signed as

Shammu on Ex.A-1 promissory note. Even though at no point of time PW-2 stated that Ex.A-1 promissory note is not executed in his presence and he does not know where it was executed. But, in the same cross examination

PW-2 admitted the particulars of Peerul Haji is mentioned as S/o Abdul Haji of Kadiri in Ex.A-1 promissory note. Even though he stated that promissory note is not executed in his presence and the residential particulars of defendant mentioned in Ex.A-1 as Penukonda in the promissory note executed in his presence but not as resident of Kadiri. The said evidence is not believable one as because in the same evidence PW-2 stated that the residential particulars of defendant is mentioned as Kadiri in Ex.A-1 and whose father name is also mentioned as Abdul Haji, the said evidence i.e., defendants father name as Abdul Haji as stated by PW-2 is tallied with

Ex.A-1 and also residential particulars of defendant is tallied with Ex.A-1.

PW-2 also further stated that Ex.A-1 promissory note was written on 07- 03-2008. The learned counsel for the defendant argued that as stated by

PW-2, Peerul Haji S/o Ramu of Penukonda is a person executed Ex.A-1 not the defendant. The said evidence of PW-2 is not believable one as because

O.S.No.47 of 2011 10 JCJ Court, Penukonda

Peerul Haji is a Muslim and fathers name as stated by PW-2 is Ramu which name is not a Muslim persons name. So, much weight could not be given to the evidence of PW-2 with regard to stating that Peerul Haji is the son of one

Ramu of Penukonda, except that the other cross examination of PW-2 supports the evidence of PW-1 and Ex.A-1 promissory note.

15.The learned counsel for the defendant argued that the defendant never signed as Shammu and he is not called as Shammu. He further argued that one Shammu who is different person might have executed Ex.A-1 and signed on the revenue stamps, to get wrongful gain and to cause troubles to the defendant the plaintiff filled Ex.A-1 promissory note in the name of the defendant and filed the present suit. Hence, prayed to dismiss the suit.

16.The learned counsel for the plaintiff argued that the plaintiff examined herself as PW-1 and by examining attestor as PW-2 and by marking Ex.A-1 to Ex.A-3 successfully proved that the defendant signed as

Shammu and executed Ex.A-1 promissory note and as the defendant did not discharged the suit promissory note amount the plaintiff filed the present suit and prayed to decree the suit. PW-1 deposed that the defendant borrowed

Rs.25,000/- on 07-03-2008 and executed Ex.A-1 promissory note. The defendant instead of signing Peerul Haji he signed as Shammu. In support of her evidence, the scribe of Ex.A-1 is also examined as PW-2. He deposed that the defendant borrowed Rs.25,000/- from the plaintiff and he signed on the revenue stamps as Shammu instead of signing Peerul Haji @ Shammu and put the date underneath his signature below the revenue stamps as 09-04-2009. On perusal of Ex.A-1 it reveals that one Peerul Haji executed

Ex.A-1 in favour of the plaintiff on 07-03-2008. The signature on revenue

O.S.No.47 of 2011 11 JCJ Court, Penukonda

stamps on Ex.A-1 is Shammu. In support of the contention of the defendant, the defendant himself examined as DW-1, he deposed that he is having only one name i.e., Peerul Haji he has no nick name and no one called him as

Shammu. He further deposed that he did not execute Ex.A-1 promissory note in favour of the plaintiff. In support of his contention, none were examined and no documents are marked. In the cross examination, the defendant admitted that he received summons from the Court through Process Server, after seeing his name in summons as Peerul Haji @ Shammu S/o Abdul Haji.

If really he is not called alias Shammu why the defendant received summons.

As the defendant received summons in which his name is mentioned as

Peerul Haji @ Shammu S/o Abdul Haji the Court believes that the defendant is also called as Shammu and he signed in Ex.A-1 on the revenue stamp as

Shammu. On the other hand, PW-2 who worked as a Cleaner to the vehicle of Shammu for six months voluntarily stated that Peerul Haji is also called as

Shammu. He also voluntarily says that Peerul Haji signs as Shammu. When such is the evidence of PW-1 and PW-2 why the defendant did not choose to sent Ex.A-1 promissory note to Handwriting Expert for comparison of his

Handwriting and signature with the admitted Handwritings and signature. As per Section 102 of Indian Evidence Act the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. In this case the plaintiff proved by examining herself as PW-1 and by examining the scribe of Ex.A-1 as PW-2 and by marking Ex.A-1 promissory note that Peerul Haji signed on the revenue stamps as Shammu and he is also called as Shammu. Then the burden lies on the defendant to disprove the said evidence of the plaintiff. In this case except DW-1 none

O.S.No.47 of 2011 12 JCJ Court, Penukonda

were examined and no documents are marked. Even though the learned counsel for the defendant cross examined PW-1 and PW-2, they stated that

Peerul Haji is called as Shammu and he signed on Ex.A-1 on revenue stamps as Peerul Haji @ Shammu. In view of the above discussion, it can be said that the defendant failed to discharge his burden and he failed to rebut the evidence of PW-1 and PW-2.

17.The learned counsel for the defendant argued that in Ex.A-2 legal notice the plaintiff did not mention that the defendant signed on revenue stamps as Shammu, mentioning in the plaint that Peerul Haji @ Shammu borrowed Rs.25,000/- under Ex.A-1 from the plaintiff is after thought and not to consider that Peerul Haji as Shammu and Peerul Haji (defendant) never signed as Shammu on Ex.A-1 and prayed to dismiss the suit.

18.On perusal of Ex.A-2 in Ex.A-2 the name of the defendant is mentioned as Peerul Haji, it is not mentioned in Ex.A-2 Peerul Haji @

Shammu. Mere non mentioning alias names in Ex.A-2 legal notice by the plaintiff there is no hard and fast rule not to mention in the plaint and plaint has to be drafted in accordance with Ex.A-2 legal notice when plaintiff mentioned in plaint Peerul Haji @ Shammu the defendant signed on the revenue stamps as Shammu the burden lies on the plaintiff to prove the same. As already stated above the plaintiff successfully proved that Peerul

Haji signed on revenue stamps as Shammu and he has also called as

Shammu. In support of the contention of the defendant that he never called as Shammu and in no document it is mentioned that Peerul Haji @

Shammu. To prove the above said contention, he filed Ex.B-1 to Ex.B-8 i.e.,

Andhra Bank Pass book, Certificate dated 30-08-2014, Driving License,

O.S.No.47 of 2011 13 JCJ Court, Penukonda

Election identity card, House hold card, Health card, H.P.Gas connection document and Notice. On perusal of said Ex.B-1 to Ex.B-8 the name of defendant is mentioned as Peerul Haji, there is no mentioning of Peerul Haji @ Shammu. In general no nick names will be entered in any records of a person. Every person will enter in the records only his original name. There is no hard and fast rule one can sign his original name as it is, a person can sign as he likes. In this case, the defendant denying his signature on Ex.A-1.

When he denies his signature after examining plaintiff as PW-1 and examining the attestor as PW-2 and even after both witnesses stated that

Peerul Haji signed as Shammu what prevented the defendant to sent Ex.A-1 promissory note for comparison of his signature with the admitted signatures. As per the evidence of PW-1 she is an illiterate and she is a

Tamilian. There is no chance to create Ex.A-1 promissory note and there is no chance to the plaintiff to forge the signature of defendant which is in

English. Mere denial of his signature on Ex.A-1 by the defendant is not sufficient. He has to prove his contention. As defendant failed to prove that he has not signed on Ex.A-1 as Shammu this Court holds that the defendant signed on revenue stamps as Shammu and he executed Ex.A-1 promissory note. Ex.A-1 promissory note is true, valid and binding on the defendant and plaintiff is entitled for a decree. Hence, these issues 2 and 3 are answered in favour of the plaintiff and against the defendant.

19.ISSUE No.4: To what relief?

In the result, the suit is decreed for Rs.43,000/- (Rupees Forty

Three Thousand only) with costs and with subsequent interest at 12% per annum from the date of suit till the date of decree and thereafter at 6% per

O.S.No.47 of 2011 14 JCJ Court, Penukonda

annum till realization on Rs.25,000/- (Rupees Twenty Five Thousand only).

Dictated to Stenographer Grade III, transcribed by him,

corrected and pronounced by me in the open Court on this the 1 st day of February, 2016

JUNIOR CIVIL JUDGE

MADAKASIRA

FAC JUNIOR CIVIL JUDGE

PENUKONDA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFF DEFENDANT

PW-1: MohanammaDW-1: Peerlu Haji PW-2: G.Ravi DW-2: S.Shanu

EXHIBITS MARKED FOR PLAINTIFF

Ex.A-1 : Promissory note dt.07-03-2008. Ex.A-2 : Office copy of notice, dated 02-02-2011. Ex.A-3 : Reply notice.

EXHIBITS MARKED FOR DEFENDANT: Ex.B-1: Andhra Bank Pass book. Ex.B-2: Certificate dated 30-08-2014. Ex.B-3: Driving License. Ex.B-4: Election identity card. Ex.B-5: House hold card. Ex.B-6: Health card. Ex.B-7: H.P.Gas connection document. Ex.B-8: Notice.

J.C.J.

O.S.No.47 of 2011 15 JCJ Court, Penukonda

IN THE COURT OF THE JUNIOR CIVI JUDGE, PENUKONDA

Present: Sri B.Devendra Reddy, Junior Civil Judge, Madakasira. FAC: Junior Civil Judge, Penukonda Monday, the 1st day of February, 2016

O.S.No.47 of 2011

Between:- Mohanamma W/o Chendrayudu, Age:about 50 years, Hindu, Coolie, Venkatareddypalli, Penukonda Mandalam …Plaintiff -Versus-

Peerul Haji alias Shammu S/o Abdul Azeez, Age:about 45 years, Muslim, 14-166-196, Kadiri, C/o Shanu W/o Peerul Haji alias Shammu, (Defendant), Sree Sanskema Trust, Yerradoddi, Kadiri …Defendant

Suit for recovery of Rs.43,000/- (Rupees Forty Three Thousand only) under suit promissory note.

Plaint Presented on: 07-03-2011 Plaint numbered on: 24-03-2011

Suit is valued for the purpose of Court fee and jurisdiction on promissory note is at Rs.43,000/- and a Court fee of Rs.2,206/- is paid and on thereon under Section 20 of A.P.C.F. and S.V.Act.

The Cause of action for the suit arose on 07-03-2008 when the defendant borrowed Rs.25,000/- from the plaintiff at Venkatareddypalli H/o Penukonda and Venkatareddipalli where the defendant executed the promissory note within the jurisdiction of this Hon’ble Court.

This suit is coming on this day for final hearing before me in the presence of Sri D.Pakkeera Reddy, Sri R.Sreekantha Reddy and P.Abdul Mujeeb Khan, Advocates for the Plaintiff and of Sri Md.Asif, Advocate for the Defendant and having stood over for consideration and THIS COURT DOTH ORDER AND DECREE AS FOLLOWS:-

1.That the defendant do pay a sum of Rs.43,000/- (Rupees Forty Three Thousand only) with subsequent interest on the principal amount of Rs.25,000/-(Rupees Twenty Five thousand only) @ 12% p.a from the date of filing of the suit viz. 07-03-2011 till the date of decree and thereafter @ 6 % p.a from the date of decree till the date of realization;

O.S.No.47 of 2011 16 JCJ Court, Penukonda

2.That the defendant do also pay to the plaintiff a sum of Rs.5,588/- towards the costs of the suit and do also pay his own costs of Rs.2/-.

Given under my hand and the seal of the Court this the 1st day of February, 2016

JUNIOR CIVIL JUDGE

MADAKASIRA

FAC: JUNIOR CIVIL JUDGE

PENUKONDA

Table of Costs Plaintiff Defendant

Stamp on plaint Rs. 2,206-00 Rs. --- Stamp on vakalat Rs. 2-00 Rs. 2-00 Process Rs. 60-00 Rs. ---- Typing charges Rs. 20-00 Rs. --- Advocate Fee Rs. 3,300-00 Rs. ----

- - - - - - - - - - - - - - - - - - - -

Total : Rs.5,588-00 Rs.2-00

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J.C.J.