Sri.B Ramesh

SC. No.181 of 2021 Page No.1 of 25

IN THE COURT OF ASSISTANT SESSIONS JUDGE AT MEDCHAL RANGA

REDDY DISTRICT

Present: Sri. B.RAMESH, Asst. Sessions Judge, Medchal, R.R.District.

Dated this the 4th day of May, 2022

S.C. 181 of 2021

1.Name & description of the: The State of Telangana through

ComplaintStation House Officer, PS, Pet

Basheerabad.

2.Name and description of accused: Pittala Ramesh S/O Chennaiah Age 47 years Occupation: labour R/O H.No 7-123/1 Harijana Basthi Medchal

3.Offence with which charged :U/s. 307 R/w 109 of Indian Peernal Code

4.Plea of the accused: Pleaded not guilty

5.Finding of the Judge: Found guilty for the offence U/sec 323 r/w 114 IPC.

6.Sentence or Order: In the result, the accused is found not guilty for the offence under section 307 r/w 109 IPC, accordingly he is acquitted under section 235(1) of Cr.P.C. The accused is found guilty and convicted under section 235(2) of Cr.P.C. for committing an offence under section 323 r/w 114 IPC.

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The accused is sentenced to undergo rigorous imprisonment for a period of one year. The accused is entitled for set off under 428 of Cr.P.C from 25.2.2020 to till today. Since the accused is an under trial prisoner, thereby this court felt it appropriate not to award compensation to the injured. The bail bonds of accused if any shall be cancelled subject to section 437-A of Cr.P.C. The case property/Knife in CPR No.3/2021 be destroyed, subject to the result of the Appeal, if preferred by the accused. The attention of the accused is drawn to free legal aid to prefer an Appeal to challenge the conviction and sentence passed against him today. The office is directed to furnish free copy of the judgement to the accused forthwith.

7.Prosecution conducted by: Addl. Public Prosecutor.

8.Accused defended by:Legal-aid-counsel/Sri K Upender ***

This case is coming up for final hearing on 2.5.2022 for disposal in the presence of Addl. Public Prosecutor and Legal Aid-Counsel-Sri K Upender

Counsel for the accused and the matter having stood over for consideration till this day, this court delivered the following:

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J U D G M E N T

1.The under trial prisoner by name Pittala Ramesh is facing charge for the offence punishable under section 307 R/w 109 of Indian Penal Code in Crime No. 145 of 2020 of Police Station, Pet-Basheerabad

2.In brief Prosecution case is that : P.W-2 Jayraj is father of P.w-1

Tarun Raj. They are running petty shop ie Mirchi bandi in Kompally serive road. L.w-1 Prashanth, L..w-2 M. Anand L.w3/ Vanitha were workers of P.w-1 and P.w-2. In the afternoon hours of 23-2-2020, accused herein and his minor son( juvenile conflict in law) visited shop of PW-1 and PW-2, and asked for plate of eateries i.e. punugulu, when the injured demanded to pay the amount , on the instigation of accused, his minor son, in order to kill injured (Prashanth) stabbed him in the abdomen: the incident was witnessed by P.w- 1 and P.w-2 and other workers of P.w-2. The injured was shifted to the hospital for treatment later on on 23-2-2020 a report was lodged before the police.

3.P.W-4/D Mahesh inspector of police had registered the present case in

Cr.No.145/2020 for the offence under section 307 IPC and issued FIR./Ex.P8.

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P.W-4 had recorded statements of all material witnesses, and conducted crime details form/Ex.P-09 in the presence of P.w-3 and L.w-6 Nageshwar

Rao. On 24-2-2020 the accused was arrested and interrogated in the presence of P.w-3 and L.w-6 who implicated in the offence and produced

Mo-1 under Ex.P-5 and Ex.P-6. After arresting the accused, and collecting medical certificate of injured vide Ex.P-10, police have filed report under section 173 (2) of Cr.P.C. Since 25-2-2020 the accused has been in the judicial custody.

4.The learned Junior Civil Judge -cum-XXII Metropolitan

Magistrate, Cyberabad, at Medchal has taken cognizance for the offence

under 307 r/w 109 of Indian Penal Code and issued process to accused by registering the case as PRC 12 of 2020. Upon production of accused from central prison, Cherlapally, he was furnished with the copies of the documents. Later on, as the offence under section 307 of Indian Penal Code is exclusively triable by Court of Sessions, thereby it was committed to the

Hon’ble Metropolitan Sessions Judge, R.R.Dist. vide committal order dated

21-01-2021.

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5.On committal of the case to the Hon'ble Metropolitan Sessions

Judge at Cyberabad, the Hon’ble court has taken file on record as SC.No. 181

of 2021 and made over the present case to this court for disposal according to Law.

6.On production of the accused from Central prison cherlapalli, the learned Additional Public Prosecutor has opened the case as per section 226 of Cr.P.C. On 04.03.2021, on the request of Under Trail Prisoner, the services of Legal-Aid Counsel Sri K. Upender, Advocate was granted to accused to defend himself. After hearing learned Additional Public

Prosecutor and learned legal-aid counsel and upon perusal of material on record, this court had framed a charge against the accused for the offence punishable under Sec. 307 r/w 109 of Indian Penal Code. The contents of the charge were read over and explained in Telugu language, accused pleaded not guilty and claimed to be tried, hence trial proceeded.

7.In order to bring home the guilt of the accused, prosecution examined PW1 to PW4 and got exhibited Ex.P1 to Ex.P10 and Material

Object MO1 is marked on behalf of the accused. Ex.D1 was also marked.

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8.Basing on the report filed by prosecution the evidence of L.W-1/

Prashanth, L.w-2/M Anand, L.w-3/Vanitha and L.w-09/ Dr. Rathod was closed.

9.After closure of the prosecution evidence, the incriminating material found against the accused was brought to the knowledge of the accused under section 313 (1)(b) of Cr.P.C. examination and accused denied such incriminating circumstances and reported no defence evidence.

10.Heard learned Addl. Public Prosecutor and Learned legal-aid counsel and Perused the material on record. The learned additional prosecutor has submitted that the evidence of P.w-1, P.w-2 and P.w-4 is sufficient to prove the guilt of the accused for the offence charged.

Whereas the learned legal aid counsel has argued that in the case on hand the injured and medical officer is not examined to prove the incident and injuries on the injured. The evidence of P.w-1 and P.w-2 is not sufficient to prove the guilt of the accused. Therefore he prayed to acquit the accused.

11.Having heard the learned Additional Public Prosecution and learned Legal-Aid counsel, upon careful perusal of material on record, the following points arise for my determination:

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1 whether the prosecution has proved that the accused has abetted the

offence punishable under section 307 IPC.

2. whether the prosecution beyond reasonable doubt has proved the offence punishable under section 307 R./ w 109 IPC?

3. As to what result?

12. Points No.1 and 2:

The evidence of PW1 Tarun Raj Indicates his family is running a mirchi cart on the service road of Kompally; wherein: injured Prashanth, eye witnesses Anand and Vanitha were the workers. On 23.02.2020, accused and his son came there on a two wheeler and asked for some eateries, when prashanth asked for money, there was quarrel, in that quarrel, a boy of 10 to 11 years stabbed Prashanth with a knife and caused injuries in the abdomen.

The accused has provoked the boy to commit the offence. LW1 had sustained with grievous injuries in the abdomen. Cross examination of PW1 indicates, he himself lodged report to the police and the incident occurred between 2.30 to 3.00 pm and accused with his son and daughter came there.

He also admitted that generally after service of items only, money will be charged; the witness replied since it was Sunday and there was a heavy crowd, they did so. PW1 made his efforts to apprehend the accused, but in 04-05-2022 Assistant Sessions Judge.

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vain. At the time of incident, 100 to 200 people were present at the place of incident. PW1 stated that he had given the descriptive particulars of accused.

13.Evidence of PW2 Sri Jairaj indicates, his family is running a mirchi cart in Komapally service road. On 23.02.2020 on Sunday, three persons came to them on TVS XL Moped. It is PW2’s version that the person who visits their shop and habit of not paying money, therefore they asked for money for supply Mirchi and Bondas, thereby, a boy of 12 years raised quarrel stating they are localities of Medchal and need not to pay money.

Further the body annoyed, picked up knife and stabbed Prashanth in his abdomen. Accused provoked the minor boy to stab Prashanth. Cross examination of PW2 indicates, the shop runs from 10.00 am to 10.00 pm and they lodged report between 4.00 to 5.00 pm and it was scribed by writer in the Police station. He admitted that due to Sunday Market, there was heavy public. PW1 and PW2 and three workers were present at the time of the incident. He made his efforts to caught hold the accused but in vain. He also admitted that they used knife for cutting of onions, but, he denied suggestion that injured accidentally came in contact with a knife and sustained injuries.

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14.The evidence of PW3/ Sri Bhanu Prakash, panch for CDF and confession and seizure of Mo1, is hostile in nature, but in the cross examination of Addl. Public Prosecutor, he admitted the accused lead them to scene of offence and produced Mo1. In the cross examination of learned counsel for accused, it was elicited no written summons were issued to the witness.

15.The evidence of PW4/D.Mahesh, Investigating officer evidence indicates recording of statement of injured vide ExP7 and registering FIR, recording statement of material witnesses, conducting of CDF, seizure of

Mo1 from accused on 24.02.2020 and apprehension of accused. The cross examination indicates, injured cannot read and write Telugu. The distance between Ruush hospital and pet Basheerabad is 1 1/2 kilometers. He also admits that normally mirchi cart vendors used knife to cut onions and the

Mo1 is not sent for forensic examination to ascertain blood group. He admitted that he committed to collect ownership particulars of Krupa Hotel,

Kompally. PW1 and PW2 has not stated descriptive particulars of accused in their previous statement.

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16.In view of the charge levelled against the accused, burden is on the prosecution to prove the charge as per section 103 of Evidence Act.

Proceeding any further, it is better for this court to draw it’s attention to essential ingredients of 307 r/w 109 IPC.

17.In a recent judgment the hon’ble supreme court in the case of state of Madhya pradesh versus Kangha @ Omprakash Cr. Appeal No 1589/ 2018 dated 4-2-2019 observed as:

“10 Section 307 of the Penal Code reads thus:

“307.Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to suchpunishmentasishereinbeforementioned.

Attemptsbylifeconvicts.—Whenanypersonoffending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.

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Illustrations

(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section.

(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z.

He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section.(d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section.” 04-05-2022 Assistant Sessions Judge.

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First part of Section 307 refers to “an act with such intention or knowledge,and under such circumstances that, if he by that act caused death, he would be guilty of murder”. The second part of Section 307, which carries a heavier punishment, refers to “hurt caused in pursuance of such an‟ “act . ‟ “11 Several judgements of this Court have interpreted Section 307 of the PenalCode. In State of Maharashtra v Balram Bama Patil, this Court held that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted:

“9...To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted 04-05-2022 Assistant Sessions Judge.

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is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of theassaultshouldbesufficientunderordinary circumstancestocausethedeathoftheperson assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledgeandundercircumstancesmentionedinthis section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.” (Emphasis supplied)

This position in law was followed by subsequent benches of this Court.

In State of M P v Saleem, this Court held thus:

“13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, 04-05-2022 Assistant Sessions Judge.

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irrespective of its result, was done with the intention or knowledgeandundercircumstancesmentionedinthe section.Therefore,anaccusedchargedunderSection 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.” (Emphasis supplied)

In Jage Ram v State of Haryana, this Court held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted:

“12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the 04-05-2022 Assistant Sessions Judge.

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accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc.”

The above judgements of this Court lead us to the conclusion that proof of grievous or life-threatening hurt is not a sine qua non for the offence under

Section 307 of the Penal Code. The intention of the accused can be ascertained.”

18.107. Abetment of a thing.—A person abets the doing of a thing, who—(First) — Instigates any person to do that thing; or (Secondly) —

Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) —

Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or 04-05-2022 Assistant Sessions Judge.

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attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

19.On careful reading and understanding of Charge for the offence under section 307 R/W 109 IPC, it is noted that to prove the charge under this section, the prosecution must prove abetment of accused in commission of an offence under section 307 IPC by his minor son. In the light of above mentioned parameters the oral and documentary evidence led by prosecution has to assessed and appreciated.

20.Upon careful perusal of entire material, it appears the accused is trying to resist prosecution case on the ground that there is no clarity as to who had lodged report before the police. PW1 and PW2 stated they have lodged report before the police, whereas investigating officer PW4 stated, when he visited Ruush Hospital recorded statement vide ExP7 and basing on the said statement, present case is registered vide ExP8. The anomalies surfaced in the evidence of PW1 and PW2 does not go to root of the prosecution case for the reasons that, the cross examination of PW1 and

PW2 had cemented the presence of the accused at the spot and it is also fortified the versions spoken by PW1 and PW2, that the incident occurred on 04-05-2022 Assistant Sessions Judge.

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Sunday a weekly bazar day at Kompally and around 2.30 to 3.00 pm accused came there to purchase some eataries, be that mirchi or bonda. Thereby, the incident which discloses commission of cognizable offence, thus, any person can set criminal law in to motion by filing the report, except to the offence found in the chapter 20 and 20-A of IPC. Further the arguments of defence counsel in this regard may not relevant for the reasons that accused has been charged for the offence of abetment, rather than actual commission of offence. As per section 108 explanation (2) IPC, abetment of a offence itself is an offence, at though the abetted offence is not either committed or attempted.

21The presence of accused is spoken by PW1 and PW2, however but in the cross examination of PW1 and PW2, they have stated that they gave a descriptive particulars of accused in 161 Cr.P.C. statement, however the author of 161 Cr.P. C statements replied in his cross examination to the affect that PW1 and PW2 failed to gave such descriptive particulars in their previous statement. Basing on this ambiguity, the learned defence counsel has submitted the identity of accused is not proved by the prosecution. The arguments of learned defence counsel looks lucrative at initial stage but when it appreciated in the backdrop of, time of offence, duration of offence 04-05-2022 Assistant Sessions Judge.

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and other attending circumstances, the same does not hold water. As seen from the investigation and the evidence of material witness, including admissions elicited in the cross examination of PW1 and PW2, the alleged incident occurred in the broad daylight and the accused said to have visited the Mirchi cart of PW1 and PW2 to purchased some food items, later there was an altercation followed by the stabbing incident, hence PW1 and PW2 have chased the accused, but, they were not successful. Identification of accused before the court by witness is a substantive piece of evidence. In a given circumstance, the identification of accused, by witness without identification parade can be relied upon, provided the prosecution has proved the victim has ample opportunity to observe the features of accused.

In other words with a prosecution proves that the accused was at the scene of offence for considerable period, then it can be acted upon without any corroboration by way of TI Parade. At the same time if the accused successful to show that the witness had fleeting glimpse of accused then such identification without TI parade cannot be accepted. When the above parameters are applied to the case on hand, in the cross examination, the presence of accused so also presence of PW1 and PW2 including the unsuccessful attempt of , PW1 and PW2 to nab the accused were elicited, thereby, as the incident occurred in the mid day of 23-02-2020, there was 04-05-2022 Assistant Sessions Judge.

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sufficient light and the accused came to Mirchi card of PW1 and PW2, thereby the identification of accused PW1 and PW2 without TI parade can be acted upon.

22.The learned defence counsel also submitted the evidence of

PW1 and PW2 even if take on the face value, it does not make out an offence under section 307 r/w 109 IPC. This court has to accept, the arguments of learned defence counsel in this regard. The fundamental ingredient for U/s 307 IPC is intention or knowledge of accused to do away with the life of injured. In the case on hand though there is a specific reference in ExP7, statement of injured that attempt was made to kill him but the injured is not examined before the court to prove the contents of ExP7. The eye witnesses who are “eyes and ears of justice” merely stated about stabbing of Prashanth and abetment of accused to stab Prashanth. There is no reference in the evidence of PW1 and PW2 that the accused wanted to kill the injured and with such an intention the offecne was committed, thereby, the essential ingredient of U/s 307 IPC is not made out from the evidence of PW1 and

PW2.

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23.The acts of accused in provoking his son to stab injured will “ifso facto” makes out an offence under section 307 r/w 109 IPC. Abetment of a thing defined under section 107 IPC has to be understood and appreciated in the back drop of mental faculty of the accused. 107 IPC divides abetment in to 3 sub categories i.e. instigation, engaging or intentional aid. In this case engaging cannot be pressed in to service. Provoke is a similar word to instigation further, suc h provoke what is referred by Pw-1 and PW-2 has done at the spot, where the offence was committed. Thereby, the presence of abetor at the commission of offence which is a punishable act as per section 114 of IPC. According to it, when ever any person, who is absent would be liable to be punished as an abetor, his present when the act are offence for which he would be punishable in consequence of the abetment committed, is shall be deemed to have committed such act or offence.

24.In the cross examination of Pw-1 Ex.D1 is marked however, Ex.D1 is not duly marked through investigating officer. As seen from the statement of Pw-1, it appears the accused made such references “inkapoduvu ani anuchundaga memu antha varini patukonutaku prayathnichaga akkadi nundi parepoyaru”. The learned defence counsel in the arguments has fairly conceded Ex.D1 which has to be confronted through investigating officer, 04-05-2022 Assistant Sessions Judge.

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but it was not done so. Be that what it may as section 145 of India Evidence act is not followed to prove the statement marked through Ex.D1 is said to be called as duly proved. Thereby, Ex D1 will not support the case of the defence. The oral evidence of Pw-1 and Pw-2 indicates in the incident of stabbing the injured sustained bleeding injury. However neither injured nor medical officer are examined to prove the nature of injury or MO No.1, was used in the commission of offence. Therefore, the evidence led by the prosecution in the shape of Pw-1 and Pw-2 has not proved the nature of injuries found on the person of injured. However by that lacunae the charge against accused cannot be rejected for the reason that the offence charged against the accused completed as soon as he provoked his son to stab the injured irrespective of its actual commission of the offence or result of abetment as per section 108 of IPC. Therefore, this court is of the considered opinion that by act of provoking his son to stab the injured the accused committed an offence of abetment however since there is no medical evidence with regard to nature of injuries and the seizure weapon is not proved to amplify the offence abetted from 323 IPC to either 324 of 326 IPC. Therefore, this court is of the considered opinion that the accused can be held guilty for abetting an offence under section 323 R/w 114 IPC.

Accordingly point No.1 and 2 are answered.

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25.P OINT NO.3:

The accused is charged for 307 r/w 109 IPC whether he can be convicted for the offence under section 323 r/w 114 IPC without there being a formal charge. The ingredients of 323 rw/ 114 IPC is already sufficiently drawn to the knowledge of accused at the time of his examination. Further the offence proved is a minor offence then the offence charged, thereby, by following section 222 of Cr.P.C. the accused can be convicted for the offence under section 323 r/w 114 IPC even though he is not formerly charged for the offence.

26.POINT No.4:

In the result the accused is found guilty, and convicted under section 235 (2) of CR.P.C for the offence punishable under section 323 r/w 114 IPC.

(Partly typed by me, and partly typed to my dictation by Steno and corrected and pronounced by me in the open court on this the 4 th day of May, 2022)

ASST. SESSIONS JUDGE,

MEDCHAL, RANGA REDDY DISTRICT.

04-05-2022 Assistant Sessions Judge.

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HEARING ON SENTENCE

27.Accused is produced from Central prison, Cherpally and he is heard on the point of quantum of sentence proposed to be imposed on him.

He submitted that he has not committed the offence and prayed for leniency. The learned Legal-aid Counsel has submitted that the accused has been under trial prisoner since 25.02.2020 and he is not a previous convict, thereby he requested the court to take lenient view in sentencing the accused. The learned Additional Public Prosecutor is reportedly appearing

before the District Court at Ranga Reddy , thereby he could not be heard on

the point of sentence.

28. Owing to the peculiar facts and circumstances of the case on hand, this court is of the considered opinion that it is not fit case to invoke the provisions of Probation of Offenders Act or section 360 of Cr.P.C. However, in view of the languishment of the accused in jail since 25.02.2020, appropriate sentence can be awarded. Thereby, the court proceeded to pass following order.

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29.In the result, the accused is found not guilty for the offence under section 307 r/w 109 IPC, accordingly he is acquitted under section 235(1) of Cr.P.C. The accused is found guilty and convicted under section 235(2) of Cr.P.C. for committing an offence under section 323 r/w 114 IPC.

The accused is sentenced to undergo rigorous imprisonment for a period of one year. The accused is entitled for set off under 428 of Cr.P.C from 25.2.2020 to till today. Since the accused is an under trial prisoner, thereby this court felt it appropriate not to award compensation to the injured. The bail bonds of accused if any shall be cancelled subject to section 437-A of

Cr.P.C. The case property/Knife in CPR No.3/2021 be destroyed, subject to the result of the Appeal, if preferred by the accused. The attention of the accused is drawn to free legal aid to prefer an Appeal to challenge the conviction and sentence passed against him today.

The office is directed to furnish free copy of the judgement to the accused forthwith.

(Partly typed by me, and partly typed to dictation by Steno and corrected and pronounced by me in the open court on this the 4 th day of May, 2022)

ASST. SESSIONS JUDGE,

MEDCHAL, RANGA REDDY DISTRICT.

04-05-2022 Assistant Sessions Judge.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defen c e

PW1 – Tarun Raj /ComplainantNIL PW2 – JaiRaj /eye witness PW3 – Bhanu Prakash/CDF PW4 – Mahesh /IO

EXHIBITS MARKED

For Prosecution:

Ex.P1 to P4 signatures of PW-3 on CDF, Rough sketch, Ex.P5 relevant portion in seizure panchanama Ex.P6 Relevant portion in confession cum discloser panchanama Ex.P7 Statement of LW-1 Prashanth. Ex.P8 FIR Ex.P9 CDF Ex.P10 Medical Certificate of Prashanth.

For Defense:

Ex.D1 : Relevant portion of 161 Statement of Pw-01

MATERIAL OBJECTS MARKED

MO1 Knife (CPR No.03/2021)

ASST. SESSIONS JUDGE,

MEDCHAL, RANGA REDDY DISTRICT.

04-05-2022 Assistant Sessions Judge.

O.S.NO. 251 of 2015

1 of 18

IN THE COURT OF PRL. SENIOR CIVIL JUDGE -CUM- ASSISTANT

SESSIONS JUDGE, :: MEDCHAL-MALKAJGIRI DISTRICT, AT MEDCHAL

Present : Sri B.Ramesh, Prl. Senior Civil Judge, Medchal-Malkjgiri District At Medchal,

Dated this the 23rd day of April, 2024

OS No. 251 of 2015

Between:

1. M. Padma w/o Late M. Bhoomaiah , (Since deceased as per legal heirs)

2. M. Satyanarayana @ Sathi Babu, S/o Late M. Bhoomaiah (Since deceased as per legal heirs)

3. M. Balamani W/o M. Satyanarayan @ Sathi Babu, Aged about 42 years, Occ: Housewife,

4. M. Chetan S/o Late M. Satyanarayana @ Sathi Babu Aged 25 years, Occ: Private

5. M. Pavan S/o Late M. Satyanarayana @ Sathi Babu Aged 23 years, Occ: Private

6. M. Bharat S/o Late M. Satyanarayana @ Sathi Babu Aged 21 years, Occ: Nil

7. M. Sravya D/o Late M. Satyanarayana @ Sathi Babu Aged 18 years, Occ: Student.

All are R/o H.No. 6-1-269/24, Hamal Basthi, Padma Rao Nagar, Secunderabad – 25 TS (Since deceased and plaintiff No.1)

....Plaintiffs

AND

23-04-2024Prl. Senior civil judge, Medchal

O.S.NO. 251 of 2015

2 of 18

1. Bandela Bhagavan Das, S/o Late B.Mallaiah, (Since deceased as per legal heirs)

2. Bandela Rekha W/o Late Bandela Bhagvan Das, Aged about 59 years, Occ: Housewife.

3. B. Deepthi D/o Late B. Bhagvan Das Aged about 39 years, Occ: Not known

4. B.Sandeep S/o Late B. Bhagvan Das Aged about 37 years, Occ: Pvt.

5. B. Shushma D/o Late B. Bhagvan Das, Aged about 35 years, Occ: Not known

6. B. Karthik S/oLate B.Bhagvan Das, Aged about 32 years, Occ: Pvt. R/o H.nO. 10-2-317/A/6, Vijaynagar Colony, Opp: Hanuman Temple, Mallepally, Hyderabad – 500057, TS

All are R/o H.no.10-2-317/A/6, Vijaynagar Colony, Opp: Hanuman Temple, Mallepally, Hyderabad – 500057, TS

....Defendants

This suit is coming before me today for final hearing in the presence of Sri. G. Babu Rao and Sri. K. Santhanam Iyengar learned counsel for Plaintiff and Sri Ram Mohan counsel for defendants and on perusal of the material papers on record and the matter having been stood over for consideration till this day, this Court delivered the following :

JUDGMENT

1.Initially the plaint was filed in the year 2014 before Prl. Senior Civil

Judge, R.R.District at L.B.Nagar vide O.S No. 212/2014 however in the year

2015 the suit was transferred to this court and renumbered as O.S No.251/2015 and taken up for disposal.

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O.S.NO. 251 of 2015

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2.Initially suit was filed by plaintiff No.1 and 2 however on the death of both plaintiffs their legal heirs were impleaded plaintiff No.3 to 7 vide I.A No.

1012/2021 Dt: 05.10.2021. Subsequently on the death of the sole defendant his legal heirs were impleaded as defendant No.2 to 6 as per orders in I.A NO.

1657/2022 dt 15.12.2022.

3.The plaintiffs have sought the relief of cancellation of regd. Sale deed bearing doc no. 4049/2010 Dt 27.12.2010 executed and regd before sub registrar Medchal by plaintiff in favour of the defendant No.1 or alternatively direct the defendant to pay Rs.1,54,000/- with future interest on Rs.1 lakh @ 18 % p.a. The regd. Sale deed doc no. 4049/2010 has been executed in respect of Ac 00-07 Gts of land in Sy No.672 of Dabilpur village and Gram

Panchayat Medchal Mandal, M.M. District bounded by North: Venkateswara

Gorak Trust, South: Agricultural land of Anji Reddy , East: Agricultural land

Yamzal Sudhakar Reddy and West: Venkateswara Gorak Trust. [ This property herein after for short referred as suit schedule property].

4.According the plaint one Sri. Bhoomaiah who is the husband of 1st plaintiff and father of 2nd plaintiff was the absolute owner and peaceful possessor of Ac 00-07 Gts of land referred above. Revenue records were also 23-04-2024Prl. Senior civil judge, Medchal

O.S.NO. 251 of 2015

4 of 18 mutated in his favour. During his lifetime he had executed a Will on 12.01.2007 in favour of the plaintiff and bequeathed the property. On the death of

Bhoomaiah on 16.06.2007 the Will came into operation thereby the plaintiffs have succeeded the property by virtue of Will left by Bhoomaiah. The defendant

No.1 had purchased this property through document No.4049/2010 Dt:

27.12.2010 registered before SRO Medchal for total sale consideration of

Rs.2,62,500/-. At the time of execution of sale deed an amount of Rs.1,62,500/- was paid by way of cash and promise to pay further Rs.1 lakh and executed a document in this regard on 27.10.2012. further the defendant issued 2 blank cheques NO. 551537 and 551538 drawn on bank of baroda, Mehdipatnam

Branch. The defendant assured the plaintiff to pay Rs. 1 Lakh in case of default he had permitted the plaintiffs to take appropriate steps. There-after the sale deed was executed but the defendant No.1 had failed to pay the entire sale consideration , when the plaintiff approached the defendant and sought re payment of entire amount the defendant unable to pay the same and handed- over original regd sale document and link documents I.,e Pattadar Passbooks and title deeds in respect of suit schedule property and assured the he will clear the amount within short time however he did not complained the same. Thus, the original sale deed , pattadar passbook, title deeds are lying with the plaintiffs. In view of the non payment of the entire sale consideration inspite of 23-04-2024Prl. Senior civil judge, Medchal

O.S.NO. 251 of 2015

5 of 18 demand of the plaintiffs including legal notice dated 28.10.2013 which was returned as refused thereby the suit was filed seeking cancellation of sale deed or alternative return as of Rs.1,53,450/- including interest from 27.12.2010 to 15.12.2013.

5.The written statement of the 1st defendant / Bhagawan Das indicates that he has denied plaint averments, however he admitted that

Plaitiffs were absolute owners and possessor of A.c 0-07 guntas in Sy.no. 672 of Dabeerpur village of Medchal Mandal. Further the pattedar pass books and title deeds were also issued in his favour. It is further contended that during life time of Bhoomaiah Husband of plaintiff No.1 and father of plaintiff No.2 executed a will deed in favour of the plaintiff and expired on 16.6.2007 thereby plaintiffs became owner of suit schedule property by virtue of will dated 12.1.2007.

6. It is further contended by the defendants he has purchased the suit schedule property by paying entire sale consideration of Rs. 2,62500/- and became absolute owner and possessor of suit schedule property by virtue of document No.4049/2010 dt. 27.12.2010. In terms of the sale deed was inducted in to possession. It is specifically denied that he has not paid Rs.1,00,000/- 23-04-2024Prl. Senior civil judge, Medchal

O.S.NO. 251 of 2015

6 of 18 towards sale consideration and paid only Rs. 1,62,000/- ; further there is a reference in the sale deed about payment of entire sale consideration.

7. It is further contention of the defendant No.1 that on 27.12.2010 the plaintiff requested loan of Rs.1 lakh repayable within 6 months thereby a receipt was executed and plaintiff, had requested to come on next date to receive the amount but but they failed to pay the amount; further the defendant

No.1 had issued 2 cheques towards collateral security and basing on the same the present suit is filed and sought for dismissal of the suit. The legal heirs of the defendant / Bhagawan das who added as D2 to D6 failed to appear and they were set exparte. Hence proceeded further.

8.Upon perusal of pleadings and after compliance of Sec. 89 CPC the following issues were settled on 24.10.2019.

1) Whether the plaintiff is entitled for relief of cancellation of regd. Sale deed doc no. 4049/2010 Dt: 27.12.2010 executed by the plaintiff in favour of the defendant ?

2) Whether the plaintiff is entitled for alternative relief directing the defendants to pay a sum of Rs.1,54,450/- in all with interest on Rs.1 lakhs @ 18 % p.a as prayed ?

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3) As to what relief?

9.During course of trial plaintiff Sathyanarayana examined as PW-1 and through him Ex.A1 to A10 are marked. Ex.A1 is the notarized copy of hand loan amount executed by defendant in favour of the plaintiff. Ex.A2 and A3 are two original cheques issued by the defendants in favour of the plaintiff. Ex.A4 is the original sale deed document NO. 4049/2010 dt. 27.12.2010 registered

before SRO Medchal. Ex.A5 and A6 are pattadar pass book and title deed of

first defendant Bhagavandas. Ex.A7 is the office copy of legal notice issued to the defendant, where under balance sale consideration of Rs. 1,00,000/- was demanded. Ex.A8 is the original postal receipts. Ex.A9 and A10 are the returned postal covers addressed to the defendant / Bhagavan Das. By virtue of this documents the plaintiff is trying to assert that the suit schedule property belongs to one Bhoomaiah who is the husband of plaintiff No.1 and father of plaintiff NO.2. Bhoomaiah was owner and possessor of a.c 0-07 guntas of land in Sy.no.672 of Dabilpur village and even pattedar pass book and title deeds were issued in his favour. During life time of Bhoomaiah on 12.1.2007 had executed a will deed bequeathing the property in favour of his wife / first plaintiff and his son / Pw-1. On the death of Bhoomaiah, the will came in to existence and both plaintiffs became owner of the suit schedule property.

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Thereafter, on 27.12.2010 sale deed Ex.A4 executed by both plaintiffs in favour of the defendant No.1 Bhagavandas. Wherein the suit schedule property was agreed to be sold for Rs. 2,62,000/-. According to Pw-1 and Pw-2, out of this total sale consideration only Rs. 1,62,000/- was paid for remaining amount the defendant on the same day executed hand loan agreement in favour of the plaintiffs and issued two cheques Ex.A2 and Ex.A3 towards secutiry which were drawn on Bank of Baroda Mehdipatnam Branch. As the defendant failed to pay the part sale consideration a notice was issued on 28.10.2013 calling the defendant to pay the amount of Rs. 1,00,000/- with interest @ 18% per annum. The legal notice dispatched under Ex.A8 however it was returned as refused under Ex.A9. Thereby the suit was filed seeking cancellation of sale deed executed by plaintiffs in favour of first defendant or in alternative return of the balance sale consideration with interest @ 18 % per annum. The defendant failed to cross-examine Pw-1. The evidence of third party to the proceedings by name A. Anjaneyulu/ PW-2, shows that the father of Pw-1 was the owner and possessor of ac. 0-07 guntas in Sy.no. 672 of Dabeerpur village. During his life time of father of Pw-1 executed will deed in favour of Pw-1 and his mother ( wife of Bhoomaiah) bequeathing suit schedule property, thereby plaintiff became owner of the suit schedule property. Further under Ex.A4 plaintiff agreed to sell the property to the defendant for Rs. 2,62,500/- and executed 23-04-2024Prl. Senior civil judge, Medchal

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Ex.A4 as the defendant could not pay entire sale consideration for the balance sale consideration of Rs.1,00,000/- the defendant executed a hand loan agreement under Ex.A1 and issued two cheques. Thereafter as he failed to pay the amount legal notice was issued which was refused thereby suit was filed.

10.As seen from the written statement of the defendants it appears that there is no dispute with regard to acquisition of Ac. 0-07 guntas of land in

Sy.nO. 672 of Dabeerpur village by Bhoomaiah. It is also remained admitted fact that during the life time of Bhoomaiah he had executed a will deed in favour of PW-1 and first plaintiff on 12.1.2007 and on the death of Bhoomaiah the will came in to operations, thereby both plaintiffs became owners of suit schedule property. Defendant also admitted that under Ex.A4, a sale deed was executed by plaintiffs in his favour wherein the Pw-1 and his mother have agreed to sell this property to Rs. 262500/- , accordingly executed sale deed.

11.Now coming to the disputed fact that is whether on 27.12.2010 under Ex.A10 the plaintiffs have received entire sale consideration or they received only Rs. 1,62,000/-? ; According to Pw-1 and Pw-2 the defendant No.1 towards the said balance said consideration had executed handloan agreement under Ex.A1 and also issued Ex.A2 and A3. This has to be proved by plaintiff.

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Whereas the defendant NO.1 contention that defendant No.1 had paid entire sale consideration and there is a reference about payment of entire sale consideration to Ex.A4 itself. However on the same day of sale transaction the defendant No.1 sought for hand loan of Rs. 1,00,000/- the plaintiff prompted him to pay the amount and obtained signature on Ex.A1 to A3 and later on failed to pay the loan amount. It is the specific case of the defendants that two cheques vide Ex.A2 and A3 were issued towards collateral security. The burden of proof of this aspect is on the defendant.

12.Thus the primary question would be a person can be lead oral evidence against the contents of written document. The same is dealt under section 91 and 92 of evidence act. while dealing with scope and ambit of section 91 and 92 of evidence act, the Hon’ble supreme court of India in the case of R Janakiram versus state through CBI AIR 2006 Sc 1106 page observed as 11.2 In Krishna Bai v. Appasaheb AIR 1979 SC 1880, this Court observed:

...when there is a dispute in regard to the true character of a writing, evidence de hors the document can be led to show that the writing was not the real nature of the transaction, but was only an illusory, fictitious and colourable device which cloaked something else, and that the apparent state of affairs was not the real state of affairs.

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11 of 18 11.3 We may next refer to the following observations in Gangabai v. Chhabubai interpreting Section 92:

11...Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, Sub-section (1) of Section 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. And the first proviso to Section 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by Sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.

(emphasis supplied) 11.4 The above view was reiterated in Ishwar Dass Jain v. Sohan Lal and it was held that the bar under Section 92(1) would arise only 23-04-2024Prl. Senior civil judge, Medchal

O.S.NO. 251 of 2015

12 of 18 when the document is relied upon, but, at the same time, its terms are sought to be varied and contradicted.

11.5 In Parvinder Singh v. Renu Gautam , this Court observed:

The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction.

11.6 We may cull out the principles relating to Section 92 of the Evidence Act, thus:

i) Section 92 is supplementary to Section 91 and corollary to the rule contained in Section 91.

ii) The rule contained in Section 92 will apply only to the parties to the instrument or their successors-in-interest. Strangers to the contract (which would include the prosecution in a criminal proceeding) are not barred from establishing a contemporaneous oral agreement contradicting or varying the terms of the instrument. On the other hand, Section 91 may apply to strangers also.

iii) The bar under Section 92 would apply when a party to the instrument, relying on the instrument, seeks to prove that the terms of the transaction covered by the instrument are different from what is contained in the instrument. It will not apply where anyone, including a party to the instrument, seeks to establish that the transaction itself is different from what it purports to be. To put it differently, the bar is to oral evidence to disprove the terms of a contract, and not to disprove the contract itself, or to prove that the document was not intended to be acted upon and that intention was totally different.

Applying the aforesaid principles, it is clear that the bar under Section 92 will apply to a proceeding inter-parties to a document and not to a criminal proceeding, where the prosecution is trying to prove that a particular document or set of documents are fictitious documents created to offer an explanation for disproportionate wealth. Oral evidence can always be led to show that a 23-04-2024Prl. Senior civil judge, Medchal

O.S.NO. 251 of 2015

13 of 18 transaction under a particular document or set of documents is sham or fictitious or nominal, not intended to be acted upon.

13.In view of sec.91 and 92 of Indian Evidence Act such oral evidence has spoken by PW1 and 2 can be taken into consideration which is against to the contents of written document Ex. A4. The judgments of Hon’ble Supreme court referred supra makes it clear that the party to a document or in successor is permitted to lead evidence as per proviso to Sec.92 of Evidence Act. Therefore in the light of above discussion and settled legal position by virtue of section 92 Evidence Act.

The Plaintiff being party to Ex.A4 contradict or vary the terms of the contract under Ex.A4 to prove that the contract is voidable one, due to non payment of sale consideration.

14. Here as per Ex.A4 the entire sale consideration was already paid and there is a reference in the sale deed, but when the evidence adduced by the plaintiff which is remained unshaken shows that out of the sale consideration Rs. 1,00,000/- was not paid thereby for that amount, loan agreement was executed and in that hand loan agreement itself issuance of Ex.A2 and A3 is referred /stating towards collateral security

Ex.A2 and A3 were handed over. The theory proposed by the defendant 23-04-2024Prl. Senior civil judge, Medchal

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No.1 that he was in need of money thereby on the day of very execution of sale deed itself, he requested plaintiff to lend and amount of Rs. 1,00,000/- they agreed and thereby an agreement was executed, subsequently failed to pay the amount seems to be not convincing since, the sale deed contends that the sale consideration was already paid; further more on the very day of the execution of sale deeds itself executing another agreement, and it shows the conduct of the parties to the proceedings.

The evidence of PW-1 and PW-2 shows that Ex.A1 was executed towards the payment of part sale consideration . Accordingly two cheques were issued towards colleteral security is appears more probable for the reasons that the date of execution of sale deed and date of hand loan amount are one and the same and further the defendants not at all cross- examined Pw-1 and PW-2 dispute with regard to these aspects. Therefore, by virtue of unchallanged evidence of Pw-1 andPw-2 , it has to be held that though there is reference in Ex.A4 with regard to payment of entire sale consideration, in fact an amount of Rs. 1,00,000/- remained unpaid.

15. This brings us to next leg of plaintiffs claim, that due to non payment of part of sale consideration whether the sale deed can be cancelled? It is settled law that when the intention of the purchaser is not 23-04-2024Prl. Senior civil judge, Medchal

O.S.NO. 251 of 2015

15 of 18 to pay the consideration the sale deed, without payment of entire sale consideration can be considered as a void document and it can be liable to be cancelled. In this regard this court is guided by the judgment of

Hon’ble Supreme court in the case of Vidyadhar v. Manikrao & Anr. (1999)

3 SCC 573. “ This Court held that the words “price paid or promised or part paid and part promised” indicates that actual payment of the whole of the price at the time of the execution of the Sale Deed is not a sine qua non for completion of the sale. Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale would be complete, and the title would pass on to the transfer under the transaction.

The non-payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground, alone.

16.Thereby as per the settled proposition of law to complete the sale, sale consideration need not be entirely paid; further sale consideration might be paid, or part paid part promised, or promised.

Therefore, in this case on hand, even as per the plaintiff version , part sale consideration was paid and remaining sale consideration of Rs.1,00,000/- 23-04-2024Prl. Senior civil judge, Medchal

O.S.NO. 251 of 2015

16 of 18 was not paid. Therefore, the plaintiffs are unable to prove that they are entitled for cancellation of sale deed for non payment part of sale consideration. At the same time as the plaintiffs, alternatively sought for recovery of Rs.1,00,000/- with interest then the plaintiffs are entitled for alternative relief of repayment of balance sale consideration; since as per section 55 of Transfer of Property Act an unpaid seller is entitled for charge on the property, to the extent of unpaid sale consideration.

17.Coming to the defendants case as the defendant though claimed several aspects in the written statement with regard to the loan was not paid to him and entire sale consideration was paid under Ex.A4, but in view of the earlier discussion and finding reached by this court, the onus shift on the defendants to prove the payment of entire sale consideration. But the defendant neither cross examined the plaintiff witnesses nor lead any evidence to prove the contentions raised in the written statement, therefore the defendant No.1 and his legal heirs failed to discharge the onus casted upon them.

18.Accordingly the issues are answered by holding that plaintiffs are entitled for alternative relief of recovery of balance consideration from 23-04-2024Prl. Senior civil judge, Medchal

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17 of 18 the defendants No.2 to 6 (since defendant No.1 is no more). At the same the interest payable on the balance sale consideration has to be 9 % per annum. Accordingly issues are answered.

19.Issue N o. 3 In the result suit is partly decreed without costs in the following manner.

(a) The relief of cancellation of sale deed document No.4049/2010 dt.

27.12.2010 executed before SRO Medchal is dismissed; however, the plaintiffs are entitled for alternative relief of payment of balance sale consideration from the defendants No.2 to 6. Accordingly defendants No.2 to 6 who are the legal heirs of defendant No.1, directed to pay Rs.1,00,000/- ( balance sale consideration), to the plaintiffs along with interest @ 9% per annum from 27.12.2010 to till filing of the suit; future interest @ 6% per annum on

Rs.1,00,000/- till realization. Further the due amount is to be recoverable from the estate of defendant no.1 lying in the hands of defendant No.2 to 6 and not duly disposed off. Personal decree against defendant No.2 to 6 is not granted.

(d) Draw decree accordingly.

( Typed to my dictation by stenographer-II , corrected and pronounced by me in the open court on this the 23 rd April, 2024).

Prl.Senior Civil Judge, Medchal- Malkajgiri district, At Medchal.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff For Defendant

PW-1 : M. Satyanarayana @ Sathi Nil P.W.2 : A. Anjaneyalu

EXHIBITS MARKED

For Plaintiff

Ex.A.1. Original copy of notarized copy of Hand loan agreement with receipt executed by defendant in favour of the plaintiffs for a sum of Rs. 1,00,000/-

Ex.A2 : original cheque bearing No. 551537 drawn on Bank of Baroda Mehdipatnam branch, Hyderabad

Ex.A3 : original cheque bearing No. 551538 drawn on Bank of Baroda Mehdipatnam branch, Hyderabad

Ex.A4 :Original copy of the registered sale deed document Br.No. 4049/2010 dt. 27.12.2010.

Ex.A5 : Original pattedar pass book bearing No. 1098 issued by the Mandal Revenue Officer. Medchal Mandal, R.R.District.

Ex.A6 : Original copy of the title deed bearing No. 1098 issued by the Mandal Revenue officer, Medchal Mandal,

Ex.A7 copy of the legal notice . Ex.A8 original postal receipt. Ex.A9 : Returned postal cover with AD Ex.A10 Returned postal cover with AD

For Defendants -Nil-

Prl.Senior Civil Judge, Medchal- Malkajgiri district, at Medchal.

23-04-2024Prl. Senior civil judge, Medchal

SC. No. 622 of 2018 Page No.1 of 22

IN THE COURT OF ASSISTANT SESSIONS JUDGE

AT MEDCHAL RANGA REDDY DISTRICT

Present: Sri. B.RAMESH, Asst. Sessions Judge, Medchal, R.R.District.

Dated this them 30 th day of May, 2022

S.C.No.622 of 2018

1.Name & description of the: The State of Telangana through Station House Officer, Complaint PS, Jeedimetla

2.Name and description of: Bandhalapati Prakash S/o Yesh, Aged 26 years, Occ: Pvt. Job, accused R/o H.No.6-374/2, Ganesh Nagar, Chintal, Jeedimetla N/o JammalamaduguVillage, MundlamuruMandal, Prakasham District.

3.Offence with which charged : U/s. 498-A and 306 of Indian Penal Code

4.Plea of the accused: Pleaded not guilty

5.Finding of the Judge: Not guilty

6.Sentence or Order: Accused is found not guilty for the offence punishable Under section 498-A and 306 IPC, 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.2 of 22

accordingly he is acquitted under section 235(1) Cr.P.C.

The bail bonds of the accused shall be in force for six months from today as per section 437-A of Cr.P.C.

7.Prosecution conducted by: Addl. Public Prosecutor.

8.Accused defended by:Sri. G.V.L.Murthy, learned counsel for accused.

This case is coming up today for final hearing for disposal in the presence of Addl. Public Prosecutor and Sri. G.V.L. Murthy, Counsel for the accused and the matter having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1.Sole Accused/ Bandalapati Prakash is charged for the offence punishable under section 498- A and 306 of Indian Penal Code in Crime No. 2 of 2015 of Police Station, Jeedimetla.

2.In brief Prosecution case is that PW-1 / Koteshwar Rao is the father of the deceased Ashwini; Koteshwar Rao had performed the marriage of deceased with accused in the year 2013 and it was an 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.3 of 22

arranged marriage ; after the marriage the accused and deceased shifted to Ganeshnagar Chinthal, Hyderabad and they were residing in a rented house. On 31.12.2014 in the afternoon hours while Pw-1 was attending his agricultural operations at village Kondaiahpalem of

Prakasham District his son Anil/Pw-2 came to him and informed him about suicidal death of Ashwini ; thereby PW-1 to PW-3 and their relatives came to Hyderabad and they found their daughter /deceased is no more. On 1.1.2015 vide Ex.P1 report was lodged stating soon after the marriage the accused started ill-treating the victim by doubting her fidelity and he was not giving enough money for house hold expenses. Pw-1 gave Rs.10,000- to deceased for purchasing double cot and accused used to ill-treat her stating that amount was insufficient. At the time of marriage towards Lanchanam 4 tulas of gold was presented to the deceased and the parents of the deceased took 2 tulas of gold and pledged them in the bank and obtained loan; on this issue also the accused used to ill-treat the deceased, thereby unbearable with the harassment the deceased committed suicide.

30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.4 of 22

3. Basing on the report filed by PW-1/ [LW-1] Chandrashekar the than Inspector of police registered the present case in

Cr.No.2/2015 for the offence punishable under section 498-A and 306

IPC and issued FIR/Ex.P10. As per the instruction of LW-11, PW-9/

K.Lingya Naik, Inspector of police took up the investigation and he recorded statement of Pw-1 to PW-3. He visited the house bearing

No.6-374/2, Ganeshnagar, Chinthal, Hyderabad and in the presence of

PW-6/ Devadanam and LW-7/Radha he conducted panchanama vide

Ex.P8. The dead body of deceased was shifted to Gandhi Hospital after drawing inquest panchanama, where PW-8/ Krinivas Deputy, Tahsildar conducted inquest in the presence of PW-6 and LW-7 /Radha vide

Ex.P8. The medical officer PW-7/Dr. Mohan Singh having conducted autopsy, issued report vide Ex.P9 stating that the cause of death as hanging. After arresting the accused he was charged.

4.On 27.2.2015 the learned Additional Junior Civil Judge- cum- VIMetropolitan Magistrate, Medchal had taken cognizance of the offence punishable under section 498-A and 306 of Indian Penal Code against accused and issued summons to accused by registering the 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.5 of 22

case as PRC 19 of 2015. After appearance of accused, he was furnished with copies of the documents. Later on, as the offence under section 306 of Indian Penal Code is exclusively triable by Court of Sessions, thereby it was committed to the Hon’ble Metropolitan Sessions Judge,

R.R.Dist. vide committal order dated 2.7.2018

5.On committal of the case to the Hon'ble Metropolitan

Sessions Judge at Cyberabad, had taken the file on record, as

SC.No.622/2018 and made over the present case to this court for

disposal, according to Law.

6.On appearance of the accused, the learned Additional Public

Prosecutor had opened the case as per section 226 of Cr.P.C. Upon perusal of material submitted with the police report and upon hearing the learned Additional Public Prosecutor and learned defence counsel, this court had framed a charge against the accused for the offence punishable under Sec 498-A and 306 of Indian Penal Code. The contents of the charge were read over and explained in Telugu language, the accused had denied the charge and claimed to be tried, hence trial proceeded.

30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.6 of 22

7.In order to bring home the guilt of the accused, prosecution had examined P.w-1 to P.w-9 and got marked Ex.P1 to Ex.P-11. The family members of the deceased i.e. father Koteshwar Rao, mother

Mariyamma and brother Anil are examined as PW-1 to PW-3. Through informant Ex.P1 report was marked. The resident of locality at KPHB, examined as PW-4 i.e. P.Yedukondalu and one of the relative G.Haibabu was examined PW-5. The Panch for CDF and inquest was examined as

PW-6 through him Ex.P2 to P8 are marked. Medical officer -Mohan

Singh is examined as PW-9 through him Ex.P9 autopsy is marked.

Thasildar Sri Srinivas examined through him inquest panchanama Ex.P8 was marked.

8. The prosecution had not examined the remaining witnesses and closed its evidence. After closure of the prosecution evidence, the incriminating material found against the Accused were brought to his knowledge under section 313 (1)(b) of Cr.P.C. examination and accused had denied such incriminating circumstances and reported no defence evidence.

9.Heard learned Addl. Public Prosecutor and Learned defence 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.7 of 22

counsel and Perused the material on record. The learned public prosecutor has submitted within couple of years from the marriage the deceased committed suicide due to the unbearable harassment of the accused and which is supported by the family members of the deceased who has first hand knowledge about the acts of the accused. Further the evidence of the family members of the deceased aptly corroborated with the remaining witnesses be that locality people, circumstantial witnesses i.e., panch for inquest, CDF , medical officer and investigating officer, thereby accused is liable to be convicted.

Interalia learned defence counsel has submitted that the evidence of

PW-1 to PW-9 is silent with regard to abetment caused by the accused which forms core for the charge under section 306 IPC. The admissions elicited in the cross examination by material witnesses is sufficient to dispel the prosecution case with regard to dowry harassment and other allegations for cruelty under 498-A IPC therefore the learned defence counsel has submitted to acquit the accused.

10. Upon careful perusal of record the following points arise for the determination of the court:

30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.8 of 22

1. Whether the prosecution could able to prove that on

31.12.2014 deceased /Ashwini had committed suicide?

2. Whether the prosecution could able to prove that accused abetted her to commit suicide?

3. Whether the prosecution has proved that the accused ill- treated and harassed deceased /Ashwini?

4. Whether the prosecution beyond reasonable doubt, could able to prove that accused had committed an offence punishable under 498-A and 306 of Indian Penal Code?

5. As to what result?

Point No.1 to 4 :

11. In brief, through evidence of PW1 to PW9 and Ex.P1 to

Ex.P11, the prosecution is trying to impress upon the court, that accused being husband of the deceased Ashwini subjected her to cruelty by doubting her fidelity and abetted suicide of the deceased.

To prove the charge the prosecution examined parents of deceased as

PW-1 and PW-3 and brother of deceased as Pw-2; known persons as

PW-4 and PW-5, inquest mediator as PW-6 , Doctor as PW-7 , Tahasildar as PW-8 and Investigating officer as PW-9. The material witnesses evidence has supported the case of the prosecution. The defence of 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.9 of 22

accused is of total denial. As per section 103 of Indian Evidence Act the prosecution must prove the its case.

11 (a).As the accused is tried for the offence under section 306

IPC, hence for better appreciation the section 306 IPC is reproduced as:

“306. Abetment of suicide. — If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 11(b).107. Abetment of a thing.—A person abets the doing of a thing, who—(First) — Instigates any person to do that thing; or (Secondly) —Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) — Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.—A 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.10 of 22

person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

12.Honourable Supreme Court in the case of Gurucharan Singh

Vs. The State of Punjab Criminal Appeal No 40 of 2011 dated Ist

October 2020 has observed as

The essential ingredients for the offence under section 306

IPC was considered in the case SS Chheena Vs. Vijay Kumar Mahajan (2010) 12 SCC 190 where explaining the concept of abetment, Justice

Dalveer Bhandari wrote as :- “25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.11 of 22

option and that act must have been intended to push the deceased into such a position that he committed suicide.”

13.While dealing with a case of abetment of suicide, the

Hon’ble Apex Court in Amalendu Pal alias Jhantu vs. State of West

Bengal (2010) 1 SCC 707, Dr. Justice M.K. Sharma writing for the

Division Bench explained the parameters of Section 306 IPC in the following terms:

“Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.12 of 22

the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable”.

14. In order to bring a case within the purview of Section 306

IPC there must be a case of suicide and in the commission of the said suicide, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.” All these ingredients were also referred by honourable Supreme court in the case Geo varghese vs.

State of Rajasthan Crl. Appeal No.1164/2021, dt. 5.10.2021.

15.On careful reading and understanding of section 306 IPC, it is noted that to prove the charge under this section, the prosecution must prove the suicide of the deceased and then it must also prove that such suicide is abetted by the accused by playing an active role by instigation or facilitating the commission of suicide. In determining the 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.13 of 22

active role of the accused in abetment of suicide of deceased, the ingredients to section 107 IPC must be kept in mind.

16.As the prosecution is trying the accused for the charge under section 306 IPC, thereby the burden is on the prosecution to prove the charge levelled against accused beyond reasonable doubt. At the same time a presumption which is available to prosecution in case of a married woman under 113-A of Indian Evidence Act, as seen from the evidence the marriage of deceased with accused took place in the year 2013 and she committed suicide in the year 2014, thereby within 7 years she had committed suicide and to invoke such presumption the prosecution has to fulfill the three conditions i.e. death of the married woman is within 7 years of her marriage and prosecution must prove that the husband or relative or husband of the deceased had subjected her to cruelty and then the presumption can be raised. Since the presumption under 113-A of Evidence Act is a may presumption thereby the initial burden is on the prosecution to put forth relevant material to raise presumption, if such presumption is raised the onus is on the accused to rebut the presumption by showing existence of 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.14 of 22

preponderance of probabilities in the view point of an ordinary prudent man.

17. The first and foremost ingredient in 306 IPC, is suicidal death of deceased. The death of the deceased is not disputed fact, further at the time of alleged suicide PW-1 to PW-3 were their respective village of Kondayapallam village of Prakasham District.

Whereas the deceased and her husband / accused were residing in

Ganeshnagar of Chinthal, Hyderabad. The evidence of Pw-8 Srinivas executive magistrate who drew inquest proceedings and evidence of

Pw-6- Devedanam in whose presence inquest was drawn is relevant to show the apparent cause of death of deceased. As seen from the Ex.P8

Panchanama the apparent cause of death was due to hanging and the mediator ie. Pw-6 has noticed a ligature mark across the neck of deceased, which is corroborating with the evidence of PW-7 Dr.Mohan

Singh, According to PW-7, at the time of drawing autopsy on 1.1.2015 between 1:10 AM to 2:40 PM he noticed a ligature mark of 21 x 3 cm.

On the front and back side of the neck and base of ligature mark was brown in colour, however the hyoid and thyroid cartilage was intact.

30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.15 of 22

The cause of death was due to hanging and death might have took place 24 hours prior to autopsy. As per PW-1 to PW-3 around 3 PM of 31.12.2014 they have received information about suicide of the deceased and the mediator to inquest has spoken the injuries found on the dead body thereby all the evidence cumulatively leads to conclude that deceased Ashwini committed suicide by hanging on 31.12.2014.

18.As the deceased a married woman and her suicide took place within 7 years of her marriage thereby now it has to be seen whether a presumption under 113-A of Evidence Act can be drawn? As per the “may” presumption the prosecution must discharge it’s initial burden with regard to following three facts: “ death of the married woman must be within the 7 years of date of her marriage and either the husband or the relative of husband had subjected such deceased woman to cruelty. Here the cruelty must be understood as defined under section 498-A IPC.

19.As the evidence of Pw-1 to PW-3 who are the family members of the deceased have first hand knowledge about the affairs between the accused and deceased, on oath have testified that the 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.16 of 22

accused used to ill-treat the victim. PW-2 the bother of the deceased stated that after three months from the blissful married life the deceased was subjected to harassment by accused by suspecting her fidelity as well as he was beating her. This aspect is found place in the initial version of the prosecution i.e. Ex.P1 report filed on 1.1.2015 with police concern. According to Ex.P1 soon after the marriage the accused was doubting the fidelity of the victim and he was not looking after the maintenance of the house and when ever deceased asked for money in this regard he used to abuse her. It is also referred in Ex.P1 that the family of the deceased gave Rs. 10,000/- to the victim for purchasing of cot but the accused was stating that the amount was insufficient. The accused was also harassing the deceased as part of gold jewellery presented to her by her parents was hyphothicated by her family to raise a gold loan. All these aspects which leads to infer that the deceased was subjected to cruelty, soon before her death thereby she has committed suicide accordingly the presumption under 113- A of

Evidence Act is drawn.

30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.17 of 22

20.Upon drawing such presumption, the onus is on the accused to show existence of preponderance of probabilities in his favour to say that the presumption is rebutted . In doing so the accused can rely upon the evidence put forth by the prosecution witnesses and/ or, lead defence evidence, however mere because defence evidence is not lead no adverse inference can be drawn against the accused in view of section 315 of Cr.P.C and the accused has a constitutional right of silence. Thereby the evidence available on record has to be appreciated in the back drop of above touch stone in arrive to a finding whether the accused could able to make out his case and successful in rebutting the presumption under 113-A of evidence Act.

21.The informant/PW-1 in the cross examination has admitted that the marriage between accused and deceased is a love marriage and out of their free will they have presented 4 tulas of gold to deceased and two tulas to accused. Presentation of gold ornaments to the bride and bridegroom before the marriage , at the marriage or after the marriage by near relatives is out side the purview of dowry defined under section 2 of Dowry prohibition Act 1961. PW-1 also 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.18 of 22

admitted that out of his own volition he presented Rs.10,000/- to his daughter for purchase of cot and accused never demanded it and he also admitted that he failed to state in Ex.P1 that on the request of his daughter he presented the amount. A fatal admission is also elicited in the cross examination of Pw-1 that accused supported and looked after deceased well and inspite of his enquiry deceased has not told anything. Thereby as from the cross examination of PW-1 it appears the accused treated the victim will and he never subjected the deceased for cruelty either by doubting her fidelity or even by demanding

additional dowry.

22.The cross examination of PW-3 the mother-in-law of the accused also indicates that as a customary practice they have presented 4 tulas of gold to the daughter; here the evidence of Pw-1 and PW-2 is at variance with regard to giving of Rs. 10,000/- to the deceased for purchasing of a cot. PW-2 stated that apart from gold they have presented a cot to their daughter. If it is so once again giving another

Rs.10,000/- for purchasing of cot by accused and subsequent prosecution allegations that the accused was stating that amount of 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.19 of 22

Rs. 10,000/- was insufficient would fall to stony ground. According to

PW-2 also on their request accused brought the deceased to their house and left for Hyderabad, thereafter she received a call from her husband later she informed to her parents that accused fallen sick thereby she was sent to Hyderabad with the help of one of their known person. The chief and cross examination of PW-2 is not in consistence with regard to demand of Rs.10,000/- by accused for purchasing of cot.

23.The brother-in-law of accused PW-2 in his cross examination stated that he cannot remember that whether he stated to police in his previous statement about suspecting of fidelity of deceased. He also admitted that he failed to state before the police that the accused quarreled with deceased and PW-1 as to why the gold jewellery of Pw-1 was pledged with Bank. He also admitted that for the first time he stated before the court due to the quarrel between the accused and deceased, the deceased came to their house and a panchayat was also held in this regard. PW-3 also admitted that deceased never spoken about the financial difficulties, however she was asking her parents for money. The learned defence counsel has submitted that even if the 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.20 of 22

version of Pw-3 is taken as true that the deceased was asking her parents for money, it does not if so facto amounts to dowry demand raised by the accused.

24.The evidence of PW-4 and Pw-5 deals with the visiting the house of the deceased on the information of the suicide thereby it is not relevant to discuss with the aspect of cruelty and abetment of suicide charge. The evidence led by the prosecution if analyzed in the back drop of the events and the material projected the cross examination it appears that accused is able to make out preponderance of probabilities, thus exists in his favour. Thereby, the accused is successful in rebutting the presumption raised against him.

Once such presumption is rebutted the burden is back on the prosecution to prove its case beyond shadow of doubt and prosecution cannot be permitted to rely upon the presumption any more. If the evidence is scanned and appreciated in the back drop of the above material as it appears that the evidence of PW-1 to Pw-9 never reveals that the accused was directly responsible for the suicide of the deceased. Abetment of offence is a psychological fact and the 30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.21 of 22

prosecution must lead evidence with regard to a nexus between the act committed by the accused with the suicide of the deceased. The learned defence counsel has submitted that mere because a married women has committed suicide her husband cannot be held responsible, unless the prosecution proves the essentials of the charge. One has to agree with the arguments of the defence counsel; as that in the case on hand the evidence of the prosecution falls short in proving the case beyond shadow of doubt. Accordingly point No.1 to 4 are answered in favour of the accused.

25.Point No.5 : In the result Accused is found not guilty for the offence punishable Under section 498-A and 306 IPC, accordingly he is acquitted under section 235(1) Cr.P.C. The bail bonds of the accused shall be in force for six months from today as per section 437-A of Cr.P.C. No case property to order.

(Typed to my dictation by stenographer G-III, corrected and

pronounced by me in the open court on this the 30 th day of May, 2022)

ASST. SESSIONS JUDGE,

MEDCHAL RANGA REDDY DISTRICT.

30-05-2022 Assistant Sessions Judge.

SC. No. 622 of 2018 Page No.22 of 22

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defen c e

PW-1 R.Koteshwar RaoNil PW-2 R.Anil PW-3 Ranthu Mariamma PW-4 P.Edukondalu PW-5 G.Hybabu PW-6 Devdanam PW-7 S.Mohan Singh PW-8 A.Srinivas PW-9 K.Lingya Naik

EXHIBITS MARKED

For Prosecution: Ex.P1 Report Ex.P2 Signature of PW-6 on scene of offence panchanam, Ex.P3 Signature of PW-6 on Rough Sketch Ex.P4 Signature of PW-6 on Inquest panchanama Ex.P5 Signature of PW-6 on Inquest panchanama Ex.P6 Signature of PW-6 on Inquest panchanama Ex.P7 Signature of PW-6 on Inquest panchanama Ex.P8 Signature of PW-6 on Inquest panchanama Ex.P9 Autopsy report. Ex.P10 FIR Ex.P11 Scene of offence panchanama along with rough sketch

For Defense: Nil

MATERIAL OBJECTS MARKED

Nil

ASST. SESSIONS JUDGE,

MEDCHAL , RANGA REDDY DISTRICT.

30-05-2022 Assistant Sessions Judge.

E.P.No.04/2019Page No.1 of 14

IN THE COURT OF THE SENIOR CIVIL JUDGE, MEDCHAL,

RANGA REDDY DISTRICT.

PRESENT : Sri B.RAMESH,

Senior Civil Judge,

Medchal, Ranga Reddy District.

Dated on this the 25th day of October, 2021.

EP.No.4 of 2019

Between: 1.Pedda Vijaya Kumar, S/o.Late Sri Peddi Ramalingam, Aged about 67 years, Occ:Business, R/o.H.No.7-2-30, Sanath Nagar, Hyderabad

2. M.N.Srinivas Rao, S/o.Narasimha Rao, Aged about 46 years, Occ:Business, R/o.H.No.SRT 144, Jawaharnagar Colony,

Chikkadpally, Hyderabad..Petitioners/Decree Holders

A N D

1.Smt.Aruna M.Dixit, W/o.Late Sri Mahendernath V.Dixit, Aged about 45 years, Occ:Housewife, R/o.H.No.8-2-85, Plot No.14-S, Old Bowenpally, Secunderabad

2. Kailash Nath Dixit, S/o.Late Sri Vishwanath Dixit, Aged about 43 years,, Occ:Business, R/o.H.No.3-2-59, Pet-Basheerabad Village, Quthbullapur Mandal,

Ranga Reddy District ...Respondents/Judgment Debtors

This petition is coming before me for final hearing on 28.09.2021, in the presence of Sri. V.Srihari, Advocate for Petitioners/Decree Holders and Sri Arjun, Advocate for Respondent/Judgment Debtor No.1 and the matter having stood over for consideration till this day, delivered the following order.

O R D E R

1.By this Execution Petition, Decree holders praying the court to direct the Judgement Debtors No.1 and 2 to execute rectification deed to the 25.10.2021Senior Civil Judge, Medchal

E.P.No.04/2019Page No.2 of 14

registered sale deeds vide documents No.718/2001 and 762/2001 dt.

29.01.2001 for correcting the Sy.No.89/part as Sy.No.88 in favour of the decree holders and further prayed to get register the rectification deeds in respect of the suit schedule property as per the Judgement and Decree in

OS No. 113 of 2014 dated 02.11.2015.

2.The affidavit filed in support of the Execution petition shows that the Decree holders have obtained decree against Judgement Debtors, the

Judgement Debtor No.1 made his appearance through his counsel, whereas

notice on Judgement Debtor No.2 was not served, thereby substitute service by virtue of publication was ordered on 12.09.2019, the publication was properly published. As the Judgement Debtor No.2 failed to appear before the court, hence he was set exparte on 12.09.2019. The

Judgement Debtor No.1 has filed counter resisiting the claim of the Decree

holder by stating EP itself is not maintainable since, the suit was filed against dead person i.e. Judgement Debtor No.2 Kailash Nath Dixit who died on 17.08.2007, thereby the decree dated 02.11.2015 passed by Hon’ble

Senior Civil Judge, Medchal in OS 113 of 2014 directing the defendants No.1

and 2 therein and Judgement Debtor No.1 and 2 herein to execute

Rectification deeds to the registered sale deeds No.718/2001 and 762/2001

dated 29.01.2001, cannot be enforceable and not executable decree.

Further, it is contended that one of the executant to the sale deed i.e.

Mahender Nath Dixit survived by his wife/Judgement Debtor No.1 and two children Anisha and Ashmit, but these two children of Judgement Debtor

No.1 who are legal heirs to Mahender Nath Dixit are not made party to the proceedings, thereby EP application has to be dismissed on this score also.

25.10.2021Senior Civil Judge, Medchal

E.P.No.04/2019Page No.3 of 14

It is also contended that the sale deeds sought to be recitified were jointly executed by Mahender Nath Dixit and Kailash Nath Dixit, thereby without bringing the legal heirs of deceased defendant, no effective execution of decree can be done. It is also submitted by Judgement Debtor No.1 that she has instituted suit vide OS No. 303 of 2007 on the file of III Additional

District Judge(FTC), RR District, At LB Nagar for recovery of possession of

Ac.0.6 guntas of land in Sy.No.88-Part situated at Petbasheerabad i.e. suit schedule property herein and the said suit was dismissed on 31.01.2012.

By challenging the dismissal of the suit, an Appeal was filed vide AS No.553 of 2012 on the file of Hon’ble High Court wherein the children of deceased

Judgement Debtor No.2 were also party. Further, vide ASMP No.1524 of

2012 in AS No.553 of 2012 the Hon’ble High Court has passed prohibitory orders against the respondents therein who are Decree holders herein in alienating schedule property, thereby the EP filed is liable to be dismissed.

3.On either sides no oral evidence is adduced and no documents are marked.

4.Heard the learned counsel for Decree holders and Judgement

Debtor No.1.

5(a).The learned counsel appearing for Decree holders has submitted that Judgement Debtor No.1 herein was defendant No.1 in suit OS 113 of 2014 is none other than sister-in-law of Judgement Debtor No.2, in such circumstances, had it been death of Judgement Debtor No.1 took place prior to inistitution of suit, the duity is casted upon her to intimate the death of

Judgement Debtor No.2 herein to the court, so that necessary steps can be

25.10.2021Senior Civil Judge, Medchal

E.P.No.04/2019Page No.4 of 14

taken by the plaintiffs/DHRs herein. The learned counsel also submitted that in the suit also basing on the substitute service of summons, the defendant

No.1 therein made her presence and filed written statement wherein she has not whispered about the death of her brother-in-law and the said defence is set forth for the first time in the execution proceedings, thereby the conduct of Judgement Debtor No.1 has disentitled to claim any relief in her favour. It is also submitted by the learned counsel for Decree holder that vide Final Decree proceedings in OS No.133/1998 on the file of II Addl.

District and Sessions Judge, RR District, At L.B.nagar, Judgement Debtor

No.1 herein and Judgement Debtor No.2 were directed to execute rectification deeds in respect of the suit schedule property in favour of

Decree Holders herein who are defendants No.12 and 13 in the final decree proceedings, thereby by virtue of directions in Final Decree proceedings, the present proceedings can be maintainable against the Judgement Debtors.

(b).The learned counsel appearing for JDR No.1 submitted that the suit against dead person is Nullity and it can be challenged in any proceedings including execution proceedings. The learned counsel for

Judgement Debtor No.1 also submitted that during course of enquiry, death

certificate of Judgement Debtor no.2 and certified copy of order in AS No.

553 of 2012 was also filed which shows by the year 2013 itself the legal heirs of Kailash Nath Dixit/defendant No.2 in the main suit i.e. OS 113 of 2014 were brought on record. Further, in such proceedings the Decree

Holders herein were also party, thereby by the year 2013 itself the Decree

Holders are having knowledge about the death of Kailash Nath Dixit, but they kept mum and not taken any steps in bringing the legal heirs of

Kailash Nath Dixit on record; in OS 113 of 2014.

25.10.2021Senior Civil Judge, Medchal

E.P.No.04/2019Page No.5 of 14

(c). The learned counsel for Judgement Debtor No.1, in support of the contention of Judgement Debtor has filed four judgements i.e.

1) Ashok Transport Agency Vs.Awadhesh Kumar reported in (1998) 5

Supreme Court Cases 567

2) Immadi Laxmi Vs. Sreyabhilashi Chit Funds, Khammam and others reported in 2001 SCC Online AP 907: (2002) 1 ALT 411

3) Gurnam Singh Vs. Gurbachan Kaur reported in (2017) 13 Supreme Court

Cases 414

4) Brakewell Automotive Components Vs. P.R.Selvam Alagappan reported in (2017) 5 Supreme Court Cases 371

6.Having heard the counsel for Decree Holders and Judgement

Debtor No.1, the following points arise for determination:

1. Whether the decree passed in OS 113 of 2014 dated 02.11.2015 is

Nullity and not binding on Judgement Debtors No.1 and 2?

2. Whether the execution proceedings can be permitted to be continued in the absence of all legal heirs of husband of Judgement Debtor no.1 brought on record?

3. To what relief?

7.On perusal of record, in OS 113/2014, it appears it was instituted in the year 2009 vide OS No.404/2009 on the file of II Additional Senior Civil

Judge, Ranga Reddy District and transferred to this court in 2014 and

renumbered as OS 113 of 2014. On registering the suit, summons were issued to both defendants and by virtue of substitue service of summons by publication, the first defendant therein entered her appearance and resisted 25.10.2021Senior Civil Judge, Medchal

E.P.No.04/2019Page No.6 of 14

the suit. Whereas, the second defendant was remained exparte. The first defendant has denied the relief sought by the plaintiffs, however she has admitted execution of sale deed vide document No. 762/2001 marked as

Ex.A2 in the suit, whereas she denied the execution of another sale deed vide document No. 718/2001 marked as Ex.A1 in the suit. The parties were put on trial and the plaintiffs/DHRs herein lead their evidence by examining the Vijay Kumar as PW1 and on his behalf Ex.A1 to Ex.A3 are marked.

Whereas, defendants failed to adduce any evidence. Basing on the material and evidence adduced before the court, this court has decreed the suit with costs on 02.11.2015by directing the defendants to execute

Rectification Deeds to the registered sale deeds vide document Nos.

718/2001 and 762/2001 dt. 29.01.2001 by correcting the Sy.No.89 part to be read as Sy.No.88, within three months from the date of decree.

8.It appears till now the Judgement and Decree in OS 113 of 2014 passed by this court on 02.11.2015 is operating the filed. The present EP is filed in the year of 2019 under Rule 34 Order XXI of Civil Procedure Code, in turn notice was issued to Judgement Debtors, as Judgement Debtors avoided to appear, substitute service was ordered by way of Publication, in turn of it, Judgement Debtor no.1 appeared and filed counter, whereas JDR

No.2 was set exparte. The death of Judgement Debtor No.2 was put forth in the counter of Judgement Debtor No.1. She further stated, since death of

Judgement Debtor No.2 took place in the year of 2007 i.e. prior to the

institution of the suit, the decree dated 02.11.2015 itself is Nullity, thereby it cannot be executed. Further, it was averred that Mahender Nath Dixit is the husband of first Judgement Debtor and his children Anisha and Ashmit are not made as party to the present proceedings, thereby the present EP 25.10.2021Senior Civil Judge, Medchal

E.P.No.04/2019Page No.7 of 14

has to be dismissed due to non filing of EP against all legal heirs of

Mahender Nath Dixit.

9.Now the court has to decide as to what is effect of the decree passed on 02.11.2015 in OS 113/2014; if it is passed against dead person, whether entire decree is Nullity and not executable against Judgement

Debtor No.1 and 2?

10.There is general proposition that suit against dead person is

Nullity and not binding, as the legal representatives of the deceased defendants were not having an opportunity to defend their case.

11(a).The Hon’ble Supreme Court in the case of N.Jayaram

Reddy and another Vs. Revenue Divisional Officer and Land Acquisition

Officer, Kurnool reported in (1979) 3 Supreme Court Cases 578 para No.5 has observed as “ It has to be appreciated that a decree against a dead person is not necessarily a nullity for all purposes. It will be sufficient to say that such a decree has been held to be nullity because it cannot be executed against his legal representative for the simple reason that he did not have a full opportunity of being heard in respect of it and the legal representative cannot be condemned.

(b).The learned counsel appearing for the Judgement Debtor has relied on the Judgement in Ashok Transport Agency Vs.Awadhesh Kumar reported in (1998) 5 Supreme Court Cases 567 wherein the Hon’ble

Supreme Court held that decree against the Proprietor of Ashok Transport

Agency is not binding on the Manager, since the Proprietor died and no 25.10.2021Senior Civil Judge, Medchal

E.P.No.04/2019Page No.8 of 14

steps were taken to bring his legal heirs on record.

(b)(i).Similarly in Immadi Laxmi Vs. Sreyabhilashi Chit Funds,

Khammam and others reported in 2001 SCC Online AP 907: (2002) 1 ALT 411, in para No.5 it is observed that “decree obtained against a dead person without complying the Order 22 Rule 4 of Civil Procedure Code is a nullity and it is not executable against the legal representatives of the deceased defendant”.

(b)(ii). In Gurnam Singh Vs. Gurbachan Kaur reported in (2017) 13

Supreme Court Cases 414 , in para No.21, the Hon’ble Supreme Court held that “It is fundamental principle of law laid down in the case of Kiran Singh that a decree passed by the court, if it is a nullity, its validity can be questioned in any proceedings including execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder”.

In this Judgement, the Hon’ble Supreme Court also referred the

Judgement of N.Jayaram Reddy and another Vs. Revenue Divisional Officer

and Land Acquisition Officer, Kurnool referred supra.

(b)(iii). In Brakewell Automotive Components Vs. P.R.Selvam

Alagappan reported in (2017) 5 Supreme Court Cases 371, the Hon’ble

Supreme Court held that “When a decree which is nullity, for instance, where it is passed without bringing legal representatives on record of a person who died at the date of decree, or against a ruling prince without a certificate, is sought to be executed aan objection in that behalf can be raised in an execution proceedings”.

12(a). Thereby, the objections with regard to execution or non- 25.10.2021Senior Civil Judge, Medchal

E.P.No.04/2019Page No.9 of 14

execution of decree in OS No.113 of 2014 dated 02.11.2015 as its stands can be raised before this executant court. It is settled law that the powers of executing court are not identical to civil court, and the powers of executing court are succintly summarised in Section 47 of Civil Procedure

Code. In brevity, it can be said that all questions arising out of decree with regard to execution, discharge and satisfaction can be raised and answered by the executing court while dealing with execution of decree. The learned

Decree holder counsel has submitted that the case is not covered under section 47 of Civil Procedure Code, in fact it is covered under Order XXII

Rule 6 of Civil Procedure Code. Upon bear perusal of Order XXII Rule 6 of

Civil Procedure Code, it indicates there is no abatement by reason of death after hearing is different than the powers envisaged to the executing court under section 47 of Civil Procedure Code. Thereby, by virtue of Judgement relied on behalf of Judgement Debtor No.1 and more particularly in the case of Gurnam Singh Vs. Gurbachan Kaur referred above, the objection with regard to maintainability of execution petition is maintainable.

(b). Here one thing that is to be kept in mind is that Judgement

Debtor No.1 is sister-in-law of Judgement Debtor No.2 Kailash Nath Dixit.

The same is evident from the record. In the counter it is contended by the

Judgement Debtor No.1 that earlier she has filed suit against Decree holder

1 and 2 and Kailash Nath Dixit in respect of present EP schedule property vide OS No. 303 of 2007 on the file of III Additional District Judge, Ranga

Reddy District seeking relief of possession to herself and third defendant therein i.e. Kailash Nath Dixit. The DHRs herein who are the defendants in

OS 303 of 2007 remained exparte. In view of death of Kailashnath

25.10.2021Senior Civil Judge, Medchal

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Dixit/defendant No.3 in OS 303 of 2007, Judgement Debtor No.1 herein i.e.

Smt. Aruna Dixit who also representing the suit on behalf of her children

Anisha and Asmith filed an application vide IA No. 452 of 2007 to bring

Sunitha and Vikas K Dixit on record the legal heirs of Kailashnath Dixit as defendants No.4 and 5. It was allowed by the court on 24.09.2010.

[Judgement in OS 303 of 2007 reflects so]. Thereby it appears by filing of IA 452 of 2007 in OS 303 of 2007 the plaintiffs therein i.e. Smt. Aruna Dixit and others are having knowledge of death of Kailashnath Dixit/defendant

No.3 therein and Judgement Debtor No.2 herein.

13.In the main suit i.e. OS 113 of 2014, the first defendant has filed written statement in the year of 2012, that too after dismissal of the suit vide OS No. 303 of 2007. In para No.7 of the written statement dated 23.02.2012, the first defendant Smt. Aruna Dixit has even mentioned about filing of suit in OS No.303 of 2007 and dismissal dated 31.01.2012 and it is also mentioned that the plaintiffs in OS 303 of 2007 are taking steps for filing Appeal, but surprisingly the defendant No.1 has no where taken a ground that Kailash Nath Dixit is no more and he breathed his last in the year of 2007, that too prior to filinf of the suit i.e. perhaps by it, the learned counsel for Decree holder submitted that the conduct of Judgement Debtor is blame worthy. Thereby, such contention in Execution proceedings for the first time cannot be taken. During the crouse of arguments, the Judgement

Debtor No.1 has filed copy of order passed in ASMP No.1524 of 2012 in AS

No.553 of 2012 wherein the first Judgement Debtor No.1 herein has filed

Appeal challenging the decree in OS No.303 of 2007 on the file of III

Additional District Judge, Ranga Reddy District. The Hon’ble High Court

25.10.2021Senior Civil Judge, Medchal

E.P.No.04/2019Page No.11 of 14

after hearing the counsels for petitioners/ P.Vijay Kumar and M.S.Srinivas

Rao/Decree holder No.1 and 2, the Hon’ble High Court has passed interim orders and disposed of ASMP on 22.01.2013. Further the cause title in

ASMP shows the legal heirs of Kailashnath Dixit i.e. Sunitha and Vikas

K.Dixit are also figured in the proceedings as respondents No.4 and 5. It is also made clear in cause title that in view of death of Kailashnath Dixit, he is represented by respondents No.4 and 5. In these circumstances, Decree

Holders are not permitted to take stand that till filing of counter in EP, the death of Kailashnath Dixit is not within their knowledge. The order passed by the Hon’ble High Court in ASMP dated 22.01.2013 made it clear that the death of Kailashnath Dixit and it was in the deemed knowledge of the

Decree holder herein. Thereby, they ought to have taken stepts in the present suit basing on the information and orders passed by the Hon’ble

High Court, but the Decree holder failed to take such steps in the present suit OS 113 of 2014 and continued to prosecute the claim and obtain decree on 02.11.2015 against defendants No.1 and 2 and one of them i.e.

Kailashnath Dixit was no more by the date of decree, thereby the

Judgement Debtor No.1 is right in taking objection with regard to execution

of present EP against Judgement Debtor No.1 and 2; since the Decree

dated 02.11.2015 passed in OS 113 of 2014 cannot bind on the legal

representatives of Judgement Debtor No.2 by name Kailashnath Dixit.

14.The judgement in OS 113 of 2014 shows that the first defendant/

Judgement Debtor has admitted execution of sale deed vide document

No.762/2001 i.e. Ex.A2 was done by her husband Mahender Nath Dixit, whereas she denied Ex.A1 sale deed bearing No.718/2001 dated 25.10.2021Senior Civil Judge, Medchal

E.P.No.04/2019Page No.12 of 14

29.01.2001, however, court passed Decree against JDRs. On perusal of

Ex.A1, it appears under Ex.A1, each of the executant/vendor has agreed to alienate Ac.0.03 guntas of land to purchasers i.e. Decree Holders 1 and 2.

Thereby, property of two individuals was sold to DHRs herein by virtue of single sale deed. Thus, the interest of the purchasers in Ex.A1 i.e.

Doc.No.718/2001 in OS 113 of 2014 is distinct and different and it cannot be said to be joint. Further, vide compromise in final decree proceedings

Judgement Debtor No.1 and 2 were directed to execute rectification deed in

respect of suit schedule property in favour of Decree holder herein. The first JDR also contended that apart from Judgement Debtor No.1, Anisha and

Asmith are also legal heirs of Mahender Nath Dixit. In their absence, no effective execution can be done but this court is unable to accept the contention raised by Judgement Debtor No.1 since her contention was disallowed by the court in OS No. 303 of 2007 and further had it been there was fraud in drafting of filing decree a suit has to be maintainable as per the procedure under order XXIII of Civil Procedure Code, inspite of such reference and finding in OS 303 of 2007, it appears till now no steps are taken by first defendant. Further, Anisha and Asmith were minors and they are represented by their natural mother i.e.Judgement Debtor No.1. On this score also, the objection raised by Judgement Debtor No.1 with regard to maintainability of execution proceedings on the ground of non impleading of other legal heirs of Mahendernath Dixit has to be rejected.

15.The discussion in the preceeding paragraphs drives the court to conclude that the death of Judgement Debtor No.2 Kailash Nath Dixit was within the knowledge of JDR No.1 by the year 2007, inspite of that she has 25.10.2021Senior Civil Judge, Medchal

E.P.No.04/2019Page No.13 of 14

not intimated the fact of such death to plaintiffs in her written statement, though written statement was filed in the year of 2012. Further, the DHRs as respondents 1 and 2 in ASMP No.1524 of 2012 filed before the Hon’ble

High Court in AS No.553 of 2012 challenging the Judgement and Decree in

OS 303 of 2007 on the file of III Additional District Judge, Ranga Reddy

District have also came to know about the death of Judgement Debtor No.2

Kailashnath Dixit as on the date of passing of orders in ASMP No.1524 of 2012. Thereby, inspite of these facts neither the Judgement Debtor No.1 nor Decree Holders herein have taken steps for intimating the court about the death of JDR No.2 and proceeded further which ultimately resulted passing of Decree against Judgement Debtor No.1 and Kailashnath Dixit who is no more by the date of passing of the decree as well as institution of the suit, therefore the decree passed against the dead person on 02.11.2015 is nullity to the extent of his property since the case of

Judgement Debtor No.2 is not represented by legal heirs, thereby the

following principle enunciated in the case of N.Jayaram Reddy and another

Vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool referred supra; further, the decree passed in OS 113 of 2014 is not joint decree and it can be executed in part in respect of Judgement Debtor No.1, by virtue of Judgement and Decree passed in OS 113 of 2014 dated 02.11.2015; further by virtue of final decree proceedings in OS 113/1998.

The Judgement Debtor No.1 can be permitted to direct to execute rectification deed as per the directions of the court in filing decree proceedings as well as the present decree by following principle of no person is permitted to take advantage of his own lapses at subsequent stage of the proceedings, to cause prejudice to the otherside. Accordingly 25.10.2021Senior Civil Judge, Medchal

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Points No.1 and 2 are answered.

16. Point No.3:

In view of Points No.1 and 2, the objections raised by Judgement

Debtor No.1 with regard to maintainability fo execution petition in respect of Judgement Debtor No.1 and 2 has to be accepted in part with regard to

JDR No.2 Sri Kailashnath Dixit. In consequence of such finding, the Decree holder cannot execute the decree dated 02.11.2015 against JDR No.2

Kailashnath Dixit, since it was passed against dead person. At the same time, the decree can be executed against Judgement Debtor No.1 Smt.

Aruna Dixit in the capacity of LR of Mahendernath Dixit. The objections are accordingly answered. Call on 10.11.2021 for steps.

(Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in the open Court on this the 25th day of October, 2021)

SENIOR CIVIL JUDGE,

MEDCHAL, RANGA REDDY DISTRICT.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

EXHIBITS MARKED

- NIL -

SENIOR CIVIL JUDGE,

MEDCHAL, RANGA REDDY DISTRICT.

25.10.2021Senior Civil Judge, Medchal

SC. No.1082 of 2021 Page No.1 of 17

IN THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE -CUM- ASSISTANT

SESSIONS JUDGE, AT MEDCHAL,MEDCHAL-MALKAJGIRI DISTRICT

Present: Sri. B.RAMESH, Asst. Sessions Judge, Medchal, Medchal-Malkajrigi District.

Dated this the 23rd day of April 2024.

S.C.No.1082 of 2021

1.Name & description of the: The State of Telangana through Station House Officer, PS, Complainant Jeedimetla

2.Name and description of accused:S 1. Sasapu Ramanamma W/O Gouri Naiduy Aged 40 years occupation:Business, R.O H.No 6-138 Quthbullapur billage, Native of Rajam village, Srikakulam District.

2. 2. Mohd. Lukman S/O MD Miskim, Aged About 28 years R/O H.NO 5-27-36 Rodamestri Nagar, Shapur Nagar, Native of Yakuthpura, Hyderabad

3. Mohd Zubair Ahmed S/O Khairath, Aged aboput 25 years Occuapaiton;Sales boy R/No H.No.24-10-70/3C PrakashampantuluNagar, GajularamamRoad, Jagathgirigutta

3.Offence with which charged :U/s. 370 of Indian Penal Code and section 3,4 and 5 of Immoral Traffic Prevention Act, 1956.

4.Plea of the accused: Pleaded not guilty 23-04-2024 Assistant Sessions Judge, Medchal

SC. No.1082 of 2021 Page No.2 of 17

5.Finding of the Judge: Not Guilty

6.Sentence or Order: In the result, accused No 1 to 3 are found not guilty for the offences punishable under section 370 A IPC and offence U/s.3,4,5 of Immoral traffic prevention act, 1956, accordingly, they are acquitted U/s. 235(1) Cr.P.C. Accused no.1 to 3 are set at liberty. The bail bonds of accused, be in force for six months from today. Unmarked case property cash of 500/- ordered to confiscated to the State: whereas two unused condoms packets being worthless, shall be destroyed after expiry of appeal period.

7.Prosecution conducted by: Addl. Public Prosecutor.

8.Accused defended by: Sri. Boyani Venuraj Yadav

This case is coming up today for final hearing for disposal in the presence of Addl. Public Prosecutor and Sri. Boyani Venuraj Yadav learned advocate for the accused and the matter having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1.Accused No.1 to 3 are charged for the offence punishable under section 370 A IPC of Indian Penal Code and section 3,4,5 of Prevention of

Immoral Traffic Act, 1956 in Crime No.236 of 2020 of PS Jeedimetla.

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SC. No.1082 of 2021 Page No.3 of 17

2.In brief Prosecution case is that : Accused No-1 Ramanamma is residing in house bearing No 6-138 of Vimanapuri Colony, Quthbullapur. A-1 has been involved in vegetable selling. A-1 was also using her house premises as Brothel. While so on 14-3-2020 around 4-15 PM P.w-6 /E

Chandraiah sub inspector of police had received a credible information about prostitution activities in H.No.6-138 of Vimanapuri Colony. Thereby he along with raiding party ie P.w-2 Balakrishna ( police constable) P.w-3

Lavanya ( women police constable) L.w-3 K Narender (police constable) L.w- 6 Venkat Narayana and two mediators by name P.w-4 David and P.w-5

Venkateshwara Rao , rushed to the premises. On reaching there the raiding party had noticed the accused no.1 was in front of her house, and involved in vegetable selling. The raiding party had informed A1 about the purpose for visiting the premises and entered inside the house. The raiding party had found A-2 and A-3 and victims P.w-1 and another victim in the premises.

( identity of victims is not revealed) On the enquiry A-1 said to have implicated as an organizer of brothel, and allowing the victims and accused no.2 and 3 to use her premises as brothel, by receiving amount from them.

From the possession of accused no 2 and 3 Rs. 500 /- cash and two packets of unused XXX condoms were seized under panchanama. The confession of accused No.1 to 3 was reduced in to writing, Cash of Rs.500/ - and Two packets unused XXX condoms were seized under panchanama - Ex.P-14.

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SC. No.1082 of 2021 Page No.4 of 17

Later on all the accused and property seized including victim were taken to police station for further course of action.

3. On reaching to police station the present case was registered in

Cr. No.236 of 2020 for the offence under section 370 I.P.C. and sections 3,4,5 of Prevention of Immoral Traffic Act, 1956 vide Ex.P15. During course of investigation statements of raiding party members were recorded. All the accused and victim were produced before the Magistrate for the necessary action. Thereafter police have filed report under section 173 (2) of Cr.P.C.

4.Learned Ist Additional Junior civil judge- cum- VI th Metropolitan

Magistrate, Medchal had taken cognizance for the offence under 370 Indian

Penal Code and section 3,4 and 5 of prevention of Immoral Traffic Act, 1956 against accused No.1 to 3 and issued summons to accused by registering the case as PRC 15 of 2020. After appearance of accused no 1 to 3, they were furnished with copies of the documents. Later on, as the offence under section 370 of Indian Penal Code is exclusively triable by Court of Sessions, thereby it was committed to the Hon’ble Metropolitan Sessions Judge,

R.R.Dist. vide committal order dated 17-10-2021

5.On committal of the case to the Hon'ble Metropolitan Sessions

Judge Ranga Reddy District at Cyberabad, had taken file on record, as

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SC. No.1082 of 2021 Page No.5 of 17

SC.No.1082 of 2021 and made over the present case to this court for disposal

according to law.

6.On appearance of the accused, the learned Additional Public

Prosecutor had opened the case as per section 226 of Cr.P.C. Upon perusal of material submitted with the police report and upon hearing the learned

Additional Public Prosecutor and learned defence counsel, this court has

framed a charge against the accused no. 1 to 3 for the offence punishable under Sec.370 A, of Indian Penal Code and section 3, 4, 5 of Prevention of

Immoral Traffic Act, 1956 against accused no.1 was framed ; the contents of the charge were read over and explained in vernacular, the accused had denied the charge and claimed to be tried, hence trial proceeded.

7.In order to bring home the guilt of the accused, prosecution had examined the members of raiding party as P.W-2( Balakrishna) , P.w- 3( Lavanya) Investigating officer (E Chandraiah ) as P.w-6. Vicitm as P.w-1 and mediators search and seizure proceedings as P.w-4 and 5. Prosecution had also got exhibited Ex.P-1 to Ex.P15. Basing on the report filed by the police the evidence of L.W-2 victim was closed.

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SC. No.1082 of 2021 Page No.6 of 17

8. The evidence of raiding party witness i.e., P.w-2, 3 and 6 speaks about their visit to place of offence and removal of accused no.1 to 3 and victims from the brothel.

9.The evidence of P.W-1 P.w-4 and 5, is hostile one, according to them, they do not the details of prosecution case.

10.The evidence of investigating officer/P.w-6 reflect the process of conducting search and seizure. The cross examination material witnesses will be discussed at relevant part of this judgment.

11. After closure of the prosecution evidence, the incriminating material found against the Accused was brought to their knowledge under section 313 (1)(b) of Cr.P.C. examination and accused had denied such incriminating circumstances and reported no defence evidence, on their behalf.

12.Heard learned Addl. Public Prosecutor and Learned defence counsel and Perused the material on record. The learned additional public prosecutor has argued that the evidence of police officials is sufficient to convict the accused for the offence charged: whereas the learned defence 23-04-2024 Assistant Sessions Judge, Medchal

SC. No.1082 of 2021 Page No.7 of 17

counsel has argued that, there is no evidence to show that A-1 organized brothel, and A-2 and are customer of the brothel; further as the victim and mediators to the search and seizure did not supported to prove the incident, thereby the prosecution must fail. According to the learned defence counsel as the investigation has not complied with the mandatory provisions of PITA Act, 1956, thereby no credence can be placed on the evidence of police officials.

With these ground prayed to acquit the accused.

13. Upon careful perusal of record the following point arise for the determination of the court:

1. Whether the prosecution could able to prove that accused No- 1 used the premises of H.NO 6-138 of Vimanapuri colony as brothel ?

2. Whether the prosecution could able to prove that A-1 was living on the earning of prostitution?

3. Whether the prosecution has proved that accused no 1 to 3 are involved in trafficking?

4. Whether the prosecution could able to prove the charge against A-1 to A-2 for the offence under 370 (A) IPC and

section 3,4,5 of Prevention of Immoral Traffic Act. 1956?

5. To what result?

14 Point No.1 to 4 will be discussed together for the sake of brevity and to avoid repetition.

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SC. No.1082 of 2021 Page No.8 of 17

15.In nutshell, the prosecution evidence is that on 14-3-2020 at 04-15

P.m. or so, PW6/the then SI of police Jeedimetla had received a credible information with regard to the prostitution activities in the H.No .6-138 of

Vimanapuri colony, Quthbullapur thereby PW-6 along with PW-2 and P.w-3/ police constables rushed there by securing P.w-4 and P.W-5 and conducted search proceedings in the House which was in the possession of A1. A-1 was involved in vegetable selling . After informing the reasons for the search, search was carried out, wherein they found A-2 and A-3 were involved in the offence prostitution and they in the company of victims ie P.w-1 and L.w-2 .

When accused were interrogated in the presence of P.w-4 and P.w-5 they have confessed to have involved in prostitution, and A-1 used her house as

Brothel. In pursuant to the confession of accused 500 Rs Cash, and two unused packets of condoms were seized under panchanama Ex.P-14. The case of accused is of total denial.

16. To prove its case, the prosecution has relied on the evidence of police officials as Pw 2, 3 and 6; victim as P.w-1 and mediators as P.w-4 and 5 but these witnesses did not supported the prosecution case, through them

Ex.P-1 and P-2 to Ex.P-13 were marked. Inspite of their cross examination by learned Additional prosecutor nothing useful is elicited to discredit their evidence. The defence of accused is that the premises, were never used as a 23-04-2024 Assistant Sessions Judge, Medchal

SC. No.1082 of 2021 Page No.9 of 17

brothel and the investigation done by PW6 is in contravention of mandatory of provisions of sec.13 and 15 of Immoral Traffic Prevention Act, thereby they are entitle for an acquittal.

17. The prosecution case for the sake of clarity can be discussed in two limbs. First one for the offence under section 3, 4, and 5 of prevention

Immoral Traffic Act 1956 and another is for the offence under section 370 A

Indian Penal code. The prosecution has relied on the evidence of PW-2,

P.W-3 and 6 to prove that A1 used the premises as brothel house: where as accused no 2 and A-3 came there with victims for prostitution activities.

18. Two victims are rescued from the premises, but L.w-2 could not be examined as her whereabouts are non known. Whereas P.w-1 through examined did not supported the prosecution case. According to her when she went to accused no.1 for selling of vegetable, police took her and other male persons in to their custody. Later on she came to know that she was taken in to custody on the allegation of the prostitution, but she never involved in the same. In view of the fact that when the police officials visited the house of accused no1 she was found selling vegetables, thereby mere presence of victim at the house of A-1 a vegetable seller, that too around 5:00 PM, of 14-3-2020, ( during morning and evening hours people would like to purchase 23-04-2024 Assistant Sessions Judge, Medchal

SC. No.1082 of 2021 Page No.10 of 17

vegetables). Thus the evidence of P.w-1 is not helpful to unfold the prosecution case. Therefore, entire case now rests on the evidence of P.w- 2 , P.w-3 and 6.The evidence of these witnesses speaks about the alleged acts of prostitution activities at the scene of offence, and visiting of police and drawing of panchanama vide Ex-14 and seizure property cash of Rs.500/- and two unused condoms packets. The learned defence counsel resisted the prosecution version on the ground that there is breach of mandatory provision of sec.13, 15 Immoral Traffic Prevention Act. Apart from the evidence of police officials, none have supported the prosecution version. Basing on these discrepancies, the learned defence counsel appearing for the accused submitted that the evidence of PW-2, 3 and 6, though supports the prosecution case is not sufficient to place reliance.

19. According to learned defence counsel, Immoral Traffic Prevention

Act, 1956 is a special Act and it is a self containing code, thereby the virtue of sec.4 of Cr.P.C. the provisions are strictly complied by the prosecution.

20. On perusal of entire prosecution evidence including oral and documentary evidence, this court is of the considered opinion that there are several lacunaes in the prosecution case, which goes to very root of the prosecution version. According to section 13 of Immoral traffic prevention 23-04-2024 Assistant Sessions Judge, Medchal

SC. No.1082 of 2021 Page No.11 of 17

act, investigation had to be conducted by a special trafficking officer of rank of inspector of police, but here in this case major part of investigation with regard to conducting search and seizure, apprehension of accused and rescuing victims were done by P.w-6 who is sub-inspector of police: further

P.w-6 informed the information of brothel activities to inspector of police, and rushed to the spot, thus there was an ample opportunity for police to comply section 13 of Immoral Traffic Prevention Act, however they have failed to comply the mandate of the Act.

21. If the evidence adduced by the prosecution is appreciated in the of backdrop of sec. 15 of Immoral traffic prevention act, the following

Infirmities/breach of section 15 of Immoral traffic prevention act are noticed.

(a) As per sec. 15 (1)of Immoral traffic prevention act, search has to be conducted by the special police officer or trafficking police officer designated by the central government and these officers alone are entitle to enter into the brothel house by obtaining search warrant. If there is no time for obtaining search warrant and there is reason to apprehend that evidence is likely to be destroyed, special police officer or trafficking officer after recording reasons for such search can proceed with the search. The evidence of PW6, reveals that at 4-15 PM of 14-3-2021 he received the credible information and after reporting the same to Inspector of police, he rushed to the spot, and 23-04-2024 Assistant Sessions Judge, Medchal

SC. No.1082 of 2021 Page No.12 of 17

conducted the proceedings. No explanation is forthcoming from the prosecution whether any search warrant was taken, and/or by recording the reasons the search was carried on. In the absence of the same, search proceedings conducted by the prosecution can certainly held in contravention of sec. 15(1) of Immoral Traffic Prevention Act.

(b)Sec. 15(2) of Immoral traffic Prevention Act also speaks that whenever search is conducted by the special police officer or special trafficking officer two or more respective residents of the locality have to be called as a mediators to the search. Further out of them, one must be a woman, provided woman need not to be ordinary resident of the locality. No doubt in this case search was conducted in the presence of P.W4 and P.w-6 but none of them are resident of the locality, and no woman was taken as a mediator to the search and seizure. In the cross examination of P.w 6 he admitted this aspect.

Even no reasons were assigned by P.w-6 why such mandatory procedure was dispensed with. Thereby the search is violation of sec. 15(2) of Immoral traffic prevention act.

(c) According to sec.15(4) of Immoral traffic prevention act, after completing search, if special police officer or trafficking police officer found any person in brothel house or the place where search was carried on, then all the persons, who were found in the place have to be removed and they have to be produced before nearest Magistrate for necessary action. Further before their 23-04-2024 Assistant Sessions Judge, Medchal

SC. No.1082 of 2021 Page No.13 of 17

production, medical examination of all the persons is imperative to say about whether the persons who removed from the brothel house are sexually exploited or effected with any sexually transmitted diseases, this is also not followed by the prosecution.

(d) As per the prosecution, accused were arrested and victim was rescued from the brothel house on 14-03-2020 and though they were taken to police station the medical examination of accused no.1 to 3 is not carried out. Further the victims was also not examined by the registered medical practitioner in terms of sec.15(4) of Immoral traffic prevention act to find out whether they were having any sexually transmitted diseases. Further dent in the prosecution version is violation of Sec.15(6)(A) act, which speaks at the time of conducting search, atleast two women police officers have to be participated in the raids, but the prosecution has not complied this mandate under sec. 15(6)(A) of Immoral traffic prevention act: though the search took place in the presence of one woman police constable /ie P.w-3 the same is not strict compliance of above section. Thus the investigation is not done by the competent officer,further it has not complied the vigour of sec. 15 Immoral

Traffic Prevention Act, as there is breach of sub (1)(2)(4)(6A) of Section 15 of

Immoral Traffic prevention Act.

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SC. No.1082 of 2021 Page No.14 of 17

22. In these circumstances, this court is of the considered opinion that though PW 2, 3 and 6 speaks about removal of accused and victims from a brothel house, but search and seizure conducted by PW6 is breach of mandatory provisions U/s.13 and 15 of Immoral traffic prevention act, thereby no credence can be placed on the evidence of PW2, 3 and 6.

23. Coming to section 370 IPC against A-1 and 2 it is alleged that they are involved in trafficking of victims for sexual exploitation, once trafficking persons is exploited section 370 (A) of IPC would come in to play.

24. For better appreciation relevant portion of section 370 IPC is reproduced as

“by inducement, including the giving or receiving of

payments or benefits, in order to achieve the consent of

any person having control over the person recruited,

transported, harboured, transferred or received,commits

the offence of trafficking.

Explanations:

1. The expression “exploitation” shall include any

act of physical exploitation or any form of sexual

exploitation, slavery or practices similar to slavery,

servitude, or the forced removal of organs.

2. The consent of the victim is immaterial in determination of the offence of trafficking".

23-04-2024 Assistant Sessions Judge, Medchal

SC. No.1082 of 2021 Page No.15 of 17

25. It is already observed by this court that victims has not supported the prosecution case. Even the police officials testimony is also found short of proving the ingredients of section 370 and 320 (A) of IPC. The best person to speak about these aspect is either victim or accused. But, as the victim turn hostile to the case of prosecution has left vacuum in it’s case.

26. The offence under 370 and 320 (A) IPC and 3 to 5 of PITA act, are cognizable offences, the material investigation I.e., drawing of panchanama and seizure of cash and condoms, were done prior to registration of FIR- Ex.P-15. Basing on seizure panchanama Ex.P-14 drawn at 05-00 PM of 14-03-2020, FIR -Ex.P-15 was registered at 08-00 PM of 14- 3-2020. Now it has to discussed the effect of drawing of panchanama, without any FIR, or General Dairy Entry.

27Admittedly, Police has not filed any General Dairy extract recorded by P.w-6 at 4-15 PM of 14-03-2020. It is settled law that any information with regard to commission of cognizable offence FIR must be registered, and Station House officer, is not supposed to verify the truthfulness of information, prior to registration of FIR. As the vital part of investigation vide Ex.P-14 was done even before FIR was lodged, and police have failed to file general dairy extract recorded at 4-15 PM of 14-03-2020, thereby Ex.P-14 has contravened provisions of Section 154 of Cr.P.C., thus 23-04-2024 Assistant Sessions Judge, Medchal

SC. No.1082 of 2021 Page No.16 of 17

the very basis for the registering the case is not in accordance with law, once

Ex.P-14 is excluded from consideration, there is absolute no evidence what so ever, to prove the allegations against the accused. To this extent this court fortified by the Judgment of constitutional Bench in the case of Lalitha Kumari

Versus Government of UP. Writ petition(Criminal) 68 of 2008 dt. 12-11-2013.

28. In view of above discussion, the prosecution miserably failed to prove the case against A1 to A-3 : thus, they are entitle for an acquittal for the offences U/s. 370 A IPC and 3,4,5 of Immoral traffic prevention act, 1956. The points are answered against to the prosecution and in favour of accused.

29. POINT No . 5 : In the result, accused No 1 to 3 are found not guilty for the offences punishable under section 370 A IPC and offence U/s.3,4,5 of

Immoral traffic prevention act, 1956, accordingly, they are acquitted U/s.

235(1) Cr.P.C. Accused no.1 to 3 are set at liberty. The bail bonds of accused, be in force for six months from today. Unmarked case property cash of 500/- ordered to confiscated to the State: whereas two unused condoms packets being worthless, shall be destroyed after expiry of appeal period.

(Typed, corrected and pronounced by me in the open court on this the 23 rd day of April, 2024)

ASST. SESSIONS JUDGE,

MEDCHAL MEDCHAL MALKAJGIRI DISTRICT.

23-04-2024 Assistant Sessions Judge, Medchal

SC. No.1082 of 2021 Page No.17 of 17

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defen c e

PW-1 : Victim (identity concealed) Nil PW-2 : Balakrishna ( PC) PW-3 : Lavanya (WPC) PW-4 : David ( mediator) PW-5 : K Venkateshwara Rao (Mediator) PW-6 : E Chandraiah ( IO)

EXHIBITS MARKED

For Prosecution:

Ex.P1 : Relevant portion in 161 Cr.P.C statement of P.W-1 Ex.P2 to Ex.P-7 signature of P.w-4 on panchanama Ex.P8 to Ex.P-13 signature of P.w-5 on panchanama Ex.P14 Relevant and admissible portion dated 14-3-2020 Ex.P15 : FIR.

For Defense:

-NONE

MATERIAL OBJECTS MARKED

NIL

ASST. SESSIONS JUDGE,

MEDCHAL MEDCHAL MALKAJGIRI DISTRICT

23-04-2024 Assistant Sessions Judge, Medchal