Sri B.Srinivasarao

IN THE COURT OF THE SESSIONS DIVISION ; VIZIANAGARAM

BEFORE THE II ADDITIONAL DISTRICT AND ASSISTANT SESSIONS JUDGE ;

PARVATIPURAM

Present: Sri B.Srinivasa Rao, II Addl.District & Assistant Sessions Judge

Thursday, the 20th day of February, 2020

SESSIONS CASE NO.35 of 2015

Name of the State represented by the Sub complainantDivisional Police Officer, Bobbili

Name of the Accused1.Sunkari Sudheerbabu, S/o Saibaba, aged 35 years, Kalinga vysya by caste, Main road, Market, Bobbili Town.

2. Sunkari Vimala, W/o Saibaba, aged 55 years, rest-do- 3.SunkariSaibaba,S/olate. Satyanarayana, aged 62 years, rest- do-.

ChargeCharges for the offences under Sections 302, 304-B r/w 34 I.P.C and Sections 3,4 and 6(2) of Dowry Prohibition Act.

Plea of the accused Pleaded not guilty

Finding of the Judge Accused 1 to 3 found not guilty for the charges under sections 3,4 and 6(2) of Dowry Prohibition Act and A.2 and A.3 are found not guilty for the charge under sec.304-B I.P.C. A.1 is found guilty of the charge under sec.304-B I.P.C.

Sentence or order Accused 1 to 3 are found not guilty of the charges punishable under sections 3, 4 and 6(2) of Dowry Prohibition Act, and A.2 and A.3 are found not guilty of the charge under sec.304-B I.P.C and they are acquitted under sec.235(1) Cr.P.C. A.1 is convicted under sec.235(2) Cr.P.C., for the offence under sec.304-B I.P.C and sentenced tosuffer Rigorous imprisonment for Seven years and to pay a fine of RS.5,000/- (Rupees Five Thousand only), in default to suffer S.I for six months for the offence under sec.304-B IPC. (The remand period of if any shall be given set of under sec.428 Cr.P.C.) 2

M.Os 1 to 6 shall be returned to the daughter of the deceased and A.1 as it is the property of the deceased. Since the daughter of the deceased is minor, the M.Os shall be returned to the grandfather i.e, A.3 and directed him that the property shall be given to the daughter of the deceased and A.1 viz., Rishita Accused 2 and 3 are directed to execute bond for Rs.10,000/- (Rupees Ten thousand only) under Section 437-A Cr.P.C., for enabling the appellate court to secure the presence of the accused 2 and 3

before the appellate Court, in the

event of preferring appeal against the present judgment.

Prosecution conductedSri A.Narayana Raju, byPublic Prosecutor, Parvatipuram

Accused defended bySri G.G.K.Sarma, Advocate for the accused.

This case has been committed by the learned Additional Judicial

Magistrate of the I Class, Bobbili vide P.R.C.No.28/2013 dated 24.12.2014

(corresponding to Crime No.266/2012 of Bobbili Police Station).

This case is coming for final hearing before me on 07.02.2020 in the presence of the Sri A.Narayana Raju, learned Addl.Public Prosecutor representing the State and of Sri G.G.K.Sarma, advocate for the accused and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

1.The Sub Divisional Police Officer, Bobbili Sub-Division, laid charge sheet against the accused 1 to 3 in Crime No.266/2012 of Bobbili Police station, for the offences punishable under Sections 3, 4 and 6(2) of Dowry Prohibition Act and Sec.498-A, 406 I.P.C and alternative charges under sec.306, 304-B and 302 r/w 34 IPC.

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2.The brief facts of the prosecution case are that: The deceased Aruna

Kumari is the daughter of L.Ws.1 and 2 viz., Botu Venkataramana (Pw.1) and Botu

Rama Koteswari (Pw.2). The deceased was given in marriage to A.1 on 10.05.2007 at Bobbili town and their marriage was performed according to Hindu rites and caste custom. During the negotiations the accused demanded dowry and PWs.1 and 2 paid the accused Rs.4,00,000/- and also household articles worth about Rs.1 lakh. The deceased adorned with gold ornaments at the time of “pradhanam” (Bethrosal). The deceased joined her marital home immediately after marriage but her marital life went smoothly for short time of one month. Thereafter, A.2 used to starve her by stating that the deceased enjoying everything at her in laws house and also used to comment that the deceased was sporting make up just like a prostitute and questioned her, as to where she is going. A.1 used to dance to the tunes of his mother A.2 and pass acidic comments against the deceased without any verification. All the accused made several attempts to beat the deceased. The deceased was always treated as slave but not as a member of family. In the month of August, 2008 a female child was born to the deceased. Subsequently after gap of 3 years the deceased became pregnant, she was taken to Bilaspur by the accused for determination of sex of the child which is still in the womb. After ascertaining that the child is of female sex, the deceased was brought to

Parvathipuram and got aborted in February, 2011 at the hospital of a private practitioner of Dr.Padmaja in Parvathipuram against the wish of the deceased, however did not keep any record in the hospital, since she is aware that such act is illegal and punishable with imprisonment. The accused also commented the deceased hurting her mentally and physically that she is unable to give birth to male progeny.

All the accused continued to torture the deceased mentally and Pws.1 and Pw.2 and Pw.8 viz., Botu Venkataramana, Botu Ramakoteswari and Botu

Ramesh Kumar approached L.W.16 (Pw.12) Sunkari Sai Ramesh (relation of accused) to soften the attitude of the accused but the accused increased their 4 harassment by demanding the accused to bring additional dowry of Rs.2 lakhs from her parents. The deceased conveyed this torture to her parents over phone,

P.W.1 Venkata Ramana approached Pw.5-Gembali Mohana Rao, told him about the harassment. The deceased called up her father at about 10 P.M., on 26.11.2012 from the cell phone of A.1 and spoke continuously for considerable time. While so, on the intervening night of 27/28.11.2012 at about 4.10 A.M., L.W.13-Gode

Aravind/Dw.1 (friend of A.1) rang up P.W.1-Venkataramana and told him that the deceased was missing, again he telephoned and informed that the dead body was found in the Well. P.Ws.1, 2, 4 and Pw.8 viz., Botu Venkataramana, Botu Rama

Koteswari, Botu Ramesh Kumar and Vaddi Manmada Rao rushed to Bobbili from

Kurupam. After seeing the dead body P.W.1 Venkataramana gave report to Bobbili

Town P.S. where Head constable 1028 (Pw.16) registered the F.I.R in

Cr.No.266/2012 under sec.498-A and 306 I.P.C against A.1 to A.3 and two married daughters of A.2 and A.3.

The inquest was conducted by the Mandal Executive Magistrate, Bobbili/ (Pw.17) and the Inspector of Police, Bobbili took up investigation and section of law altered by adding Sec.304-B I.P.C and memo was filed in AJFCM Court, Bobbili on 28.11.2012. The Postmortem report discloses that as many as 8 external injuries on the dead body of the deceased and injuries 3 and 4 are in the region of neck.

The piece of sternum bone and the pieces of lungs and water in the well were sent in 3 separate sealed containers and diatoms are not detected in item No.s1 and 2.

Dr.M.D.Ismail, Professor, Forensic Medicine Department, AMC, Visakhaptnam opined that diatoms test is not diagnostic and that the death is due to drowning as per the Postmortem findings. The team of 3 Doctors of Community Health Center,

Bobbili opined that the injuries found on the dead body are ante-mortem even though they are not sufficient to cause death and the deceased was alive at the time of drowning. A.1 to A.3 were present in their house on the night of the offence, physically assaulted the deceased to cause her death thinking that she was dead, dumped the body into the Well to make it appear that, it is a case of 5 death by voluntarily drowning. The Charge sheet is not laid against the sisters of

A.1 viz., Andhavanapu Saritha and Bogi Swapna as there is no evidence against them in harassing the deceased. Hence the Charge sheet.

3.The learned Additional Judicial Magistrate of the Ist Class, Bobbili took cognizance of the case under Sections 3,4 and 6(2) of Dowry Prohibition Act and

Sections 306, 304-B and 302 r/w 34 I.P.C against A.1 to A.3 and on appearance of the accused 1 to 3 before her, the learned Magistrate complied with the formalities as required under Section 207 Cr.P.C like supply of copies etc. Since the offence punishable under Section 302,304-B and 306 IPC are exclusively triable by the

Court of Sessions, the learned Magistrate committed the case to the Sessions

Court, Vizianagaram, as required under Section 209 Cr.P.C. In turn, the Sessions

Court assigned Sessions Case No.35/2015and made over the same to this Court for disposal according to law.

4.After receipt of the summons, the accused 1 to 3 made their appearance before this Court and engaged counsel. The accused did not wish to avail the services of the legal aid counsel. Heard the prosecution and defence counsel as required under Section 226 Cr.P.C. Charges under Sections 302, 304-B r/w 34 I.P.C and Sections 3,4 and 6(2) of Dowry Prohibition Act were framed against the accused 1 to 3, as required under Section 228 Cr.P.C, read over and explained to them in Telugu, for which they denied and claimed to be tried.

Thereupon, this court fixed schedule for trial.

5.To prove the case of the prosecution, prosecution examined P.Ws 1 to 20 and got marked Exs.P.1 to P.13, M.Os.1 to 6. D.W.1/Lw.13 is examined and no documents are marked on behalf of the accused.

6.After closure of the prosecution side evidence, the accused 1 to 3 were examined under Section 313 Cr.P.C, so as to enable them to explain the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same.

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7.The arguments of the learned Addl.P.P., were heard on facts of the case and points of law under sec.234 Cr.P.C. The learned defence counsel submitted written arguments.

8.The learned defence counsel filed written arguments and he has discussed the evidence as threadbare and he has dealt various contentions in minute details. He cited a decisions Nelaturi Chandra Sekahr Vs. State SDP Guntur

Town, Guntur reported in 2018(2) ALT (Crl) 58 (A.P) wherein it was held that:

“Giving of the dowry at the time of marriage would not be relevant for assessing the guilt of the accused for the offence under Section 304-B I.P.C, as the said fact is not one of the ingredients of Section 304-B and the ingredient of Section 304-B is harassment with a demand of dowry soon before the death of the deceased. The proximity between death of the deceased and the harassment by the appellant is the clinching aspect, which would prove the guilt of the accused. The reason for the dullness cannot be inferred to be the harassment of the deceased unless the harassment is independently proved. Material evidence suffers from several inconsistencies and is not sufficient to invoke the presumption adumbrated under Section 113-B of Indian Evidence Act, in order to throw the burden on the appellant. “

He also cited a decision Baijnath and others Vs. State of Madhya Pradesh reported in 2017(2) ALT Crl 266 (SC) wherein it was held that:

“Sections 304-B and 498-A I.P.C. Prosecution failed to prove the crucial ingredient of cruelty and harassment by direct and cogent evidence. A cumulative consideration of the overall evidence on the facet of dowry, leaves us unconvinced about the truthfulness of the charge qua the accused persons. The prosecution in our estimate, has failed to prove this indispensable component of the two offences beyond reasonable doubt. The factum of unnatural death in the matrimonial home and that too within seven years of marriage therefore is thus ipso facto not sufficient to bring home the charge under sections 304-B and 498-A of the Code against them.”

9.The main contention of the accused is that P.W.1 did not lodge any report against the accused in the Police Station with regard to the harassment by the accused to the deceased and P.W.1 also complained to P.W.12 and P.W.14 about 2 ½ years prior to the incident about the harassment meted out by the accused to the deceased but P.W.12 and 14 did not speak any harassment made by the accused to the deceased physically and mentally and at that time P.W.1 never complained with regard to the demand of additional dowry of Rs.2 lakhs and further contended that according to the evidence of P.W.8, P.W.12, P.W.1 and others complained to them the accused are not providing proper food to the deceased 7 and further contended that one Varanasi Nageswara Rao is very important and vital witness to the incident but he was not examined in this case and further contended that P.W.1 never complained about the harassment and demanding of dowry towards his deceased daughter by the accused to his neighbours. P.W.2 who is the wife of P.W.1 and mother of the deceased did not speak that the accused are demanding for additional dowry of Rs.2 lakhs and the accused are harassing for that amount. In the cross examination P.W.2 stated that the deceased used to tell about the harassment by the accused to her owner of the house viz., Gillella Hari and Annapurna but they were not examined by the Investigation officer and not cited them as witnesses. P.W.3 who is the brother of P.W.1 stated that after one year of the marriage, they raised dispute before P.W.12 except that he did not speak anything. According to the evidence of P.W.4 the deceased used to complain that the accused harassing her by not providing food but he did not speak with regard to the harassment made by the accused to the deceased for demanding additional dowry of Rs.2 lakhs. According to the evidence of Pw.5, the dispute was held in the year 2010 and he does not know the reason for the death of the deceased and also P.W.1 did not inform him over the phone that the accused were harassing the deceased for additional dowry and the deceased also did not complain anything about the harassment. According to evidence of P.W.5, who admitted in his cross examination that P.W.1 did not inform over phone that the accused was harassing the deceased for additional dowry. When P.W.5 convinced on the accused and the deceased at their house the deceased did not complain anything about the demand of additional dowry. P.W.6 who refused to get down into the well and told the accused one Chenchayya of Gollapalli(Pw.9) get into the

Well. P.W.7 simply stated that P.W.6 went and brought P.W.9 Chenchayya and he removed the dead body from the Well. P.W.8 who is the son of P.W.1 and 2 and brother of the deceased and he came to know about the incident through P.Ws.1 and 2 and he does not know anything specifically what are the dates on which the harassment was made by the accused to the deceased as such his evidence is 8 only hear say evidence and it is not admissible under Evidence Act. In his cross examination he stated that he was present when P.W.1 prepared Ex.P.1 report and further stated that he came to know all the things as deposed by him in his chief examination through P.Ws.1 and 2. P.W.9 who removed the dead body from the

Well. P.W.10, who took photographs under Ex.P.2. P.W.9 stated that himself and

D.W.1 suspected that the deceased might have fallen into the Well after seeing the candle, match box and mobile stand etc., at the Well. P.W.12 who is the elder in whose presence the dispute raised and he stated that the deceased and P.W.1 never complained him that the accused harassing for additional dowry and he further stated that P.W.1 was always insisting the deceased to put up separate family with her husband(A.1). As per the evidence of P.W.12 before whom a dispute was raised by P.Ws.1 to 3 and deceased in which the deceased stated that the deceased came to him with smile and stated that she does not have any grievance and she further stated that her father was always insisting her to put up separate family with her husband A.1. In his cross examination, he further stated that P.W.1 had advised the deceased to threaten the accused to jump from the upstairs, so that the accused would come to her terms. P.W.13, is the Doctor who conducted Postmortem over the dead body of the deceased and gave opinion that the death is due to asphyxia due to ante mortem drowning, which means at the time of drowning she was alive as per Exs.P.4 and P.5. P.W.14 in the cross examination stated that himself and P.W.1 belong to Kurupam. P.W.1 is his cousin brother. When they enquired the deceased in the house of accused, she did not complain him anything about the demand of additional dowry. The deceased told him that her father was insisting her for separate family with her husband. P.W.15, who is the mediator, for scene observation report/Ex.P.7. P.W.16 who is the Head constable and who registered Ex.P.9, in which it is not mentioned that the accused did not demand any additional dowry. P.W.16 who registered F.I.R categorically stated that it is not mentioned in Ex.P.1 at the time of marriage P.W.1 gave dowry of Rs.4 lakhs, sare samans worth Rs.1 lakh to the accused and further stated that 9 in Ex.P.1 it is not mentioned at the time of engagement P.W.1 gave Rs.1,50,000/- towards expenditure to A.1, he further admitted that in Ex.P.1 it is not mentioned that P.W.1 gave Rs.50,000/- to A.1 at different occasions and also it is not mentioned that the accused demanded additional dowry of Rs.2 lakhs. P.W.18 to 20 are the I.Os and categorically stated that the father of the deceased had bluntly refused to take the dead body of the deceased and further the call data of cell phones of the accused and P.W.1 but call data record is not produced and further the learned advocate for the accused praying the Court to acquit all the accused.

10.On the other hand, the learned Addl.P.P., vehemently contended that the deceased-Aruna Kumari is the daughter of P.Ws.1 and 2 and she is given in marriage to A.1 on 10.05.2007 and the marriage was performed according to

Hindu religious rites and caste customs and during the marriage negotiations the accused demanded dowry to P.W.1 and 2 and that P.W.1 paid Rs.4 lakhs and sare samans worth about Rs.1 lakh towards dowry and the deceased was also adorned with gold ornaments, at the time of betroal function. The deceased joined her marital home immediately, after the marriage, but her marital life went on smoothly only for a period of one month and thereafter her life faced rough weather till her death. A.2 used to starve her and pass comments that the deceased was enjoying everything at her in laws house and A.2 also used to comment that the deceased was sporting make up just like a prostitute and questioned her as to where she is going. A.1 also pay heed to the words of his mother A.2 and pass acidic comments against the deceased without any verification. All the accused made several attempts to beat the deceased. The deceased was always treated as a slave but not as a member of the family. He further contended that in the month of August, 2008, a female child was born to the deceased and subsequently after gap of 3 years the deceased became pregnant and she was taken to Bilaspur by the accused for determination of sex of the child which still in the womb. After ascertaining that the child is of female sex, the deceased was brought to Parvathipuram and the pregnancy was got 10 terminated in February, 2011 at the private hospital of Dr.Padmaja, against the wishes of the deceased. However, P.W.1, 2 and deceased did not keep any record in the hospital though they are aware that such act is illegal and punishable. The accused also commented against the deceased hurting her mentally and physically that she is unable to give birth to male child and further contended that all the accused continued to torture the deceased mentally, P.Ws.1, 2 and 8 and stepped up their harassment by demanding the deceased to bring additional dowry of Rs.2 lakhs from her parents and further contended that the deceased conveyed their torture to her parents through phone and P.W.1 approached P.W.14 told him that the harassment and the situation worsened. The deceased called up

P.W.1 at about 10 P.M., on 26.11.2012 from the cell phone of A.1 and spoke continuously for a considerable time. While so, on intervening night of 27/28.11.2012 at about 4.10 A.M., D.W.1 –L.W.13 friend of A.1 rang up P.W.1 and told him that the deceased was missing and again he telephoned and informed that the dead body was found in the Well and further contended that A.1 to A.3 who are present in their house on the night of offence physically assaulted the deceased to caused her death and thinking that she was dead, dumped the body into the Well to make it appear that it is the case of death of voluntary drowning and further contended that the accused demanded and received dowry which are punishable under sec.3 and 4 of Dowry Prohibition Act and dowry have not returned to the parents of deceased and praying the Court to convict the accused.

11.Now the points for determination are,

1. Whether the accused 1 to 3 committed the murder of deceased-Aruna Kumari intentionally and knowingly by pulling her into the Well and thereby committed the offence punishable under sec.304-B alternatively Sec.302 of I.P.C?

2. Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for the offence punishable under

Section 302, 304-B r/w 34 I.P.C and Sec.3, 4 and 6(2) of Dowry

Prohibition Act ?

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12.Points 1 and 2: Before going to decide the guilt or otherwise of the accused banking on the rival contentions of the prosecution and defence, let us see what is the evidence available on record.

13.P.W.1 who is the father of the deceased categorically stated that the marriage of his deceased daughter was performed with A.1 on 10.05.2007 at

Gayatri Kalyana Mandapam, Bobbili as per Hindu customs, at the time of marriage, as per agreement, he paid Rs.4 lakhs towards pasupu kunkuma and dowry in the presence of Korada Prasada Rao (not cited), Ippili Kurmayya (not cited), Gembali

Gowri Prasad (not cited).At the time of engagement he spent Rs.1,50,000/- towards bracelet, ring, dress, silver items and other articles. . After marriage, he gave sare samans worth of Rs.1 lakh to A.1. After marriage, the deceased was sent to the house of the accused for marital life. She lived with A.1 for about one month happily. Later on mother of A.1 i.e, A.2 started harassing and abusing his daughter for silly things, inspite of informing this to A.1 by his daughter, he was not responding. A.2 was not providing sufficient food to his daughter. A.2 was abusing his daughter stating that they have no money for providing food to his daughter, that his daughter is enjoying life in the house of the accused. A.1 was not caring the deceased and he was avoiding her. The grandmother of A.1 used to attribute thefts to his daughter by concealing gold ornaments in a hidden place and he was also abusing his daughter stating that she was careless. A.1 got two sisters viz.,

Saritha and Swapna . Saritha is resident of Srikakulam and Swapna is resident of

Veeraghattam. They used to instigate A.2 over phone to harass his daughter, his daughter gave birth to a female child on 08.08.2008 at Jayasri Hospital,

Parvathipuram through cesarean operation. After delivery they took his daughter to their house. During the 5th month of baby, they sent his daughter and the baby to the house of the accused. While so in February, 2011, the deceased conceived pregnancy for 2nd time. A.1 took her daughter to Bilaspur in Chattisgarh for ascertaining the sex of fetus. From Bilaspur directly A.1 brought the deceased to his house. When the deceased was present in his house, the hospital authorities of 12

Bilaspur had informed over phone that the 2nd baby is also a female baby. A.1 had asked his daughter to go for abortion, his daughter did not agree for it and protested. In spite of it A.1 had insisted for abortion and tried to convince them also. They also did not agree for it. Due to compulsion made by A.1 they took the deceased to Dr.Padmaja and got the pregnancy aborted, at Jayasri Hospital,

Parvathipuram by Dr.Padmaja. Two, Three months thereafter, after keeping the deceased in their house due to weakness and after recovery they sent her to the house of the accused. The deceased was complained them that all the accused used to harass her for additional dowry of Rs.2 lakhs. He used to express his inability to pay that amount. They tried to convince the accused through their common relative Gembali Mohanarao P.W.5, Varanasi Nageswararao of Bobbili-

L.W.17, Botu Peeru Sankaranarayana-P.W.14 of Visakhaptnam who is his cousin brother. At the beginning of their counseling the accused used to keep quiet and subsequently they used to harass the deceased. All the accused directly and the sisters of A.1 indirectly used to harass his daughter for not giving birth to a male child. On 26.11.2012 at about 10 P.M., he talked to the deceased over phone and on enquiry about her welfare she expressed her sorrows saying they are as usual, as routine problems. When he tried to complain the matter to Police and Mahila

Sangam, his wife had advised him not to resort to such things, as the harassment would be more and due to her interference, he did not go to the Police Station or

Mahila Sangam. On 28.11.2012 in the early hours at about 4 A.M., one Bode

Aravind-D.W.1, who is friend of A.1-(L..W.13) had telephoned him and enquired him about his daughter stating that she was not seen in the house of the accused since the previous night and he asked him whether his daughter came to his house. He replied stating that he does not know about it. D.W.1 asked him to come to Bobbili.

When he was preparing to go Bobbili, by arranging a vehicle, 10 minutes thereafter Bode Aravind/Dw.1 had telephoned him and informed that his daughter was found dead in the Well situated in the house of the accused. Immediately, he went to the house of the accused at Bobbili by 6 A.M , he saw the dead body in the 13 well of the accused. Then immediately he lodged report in the Police Station under

Ex.P.1. The dead body was removed from the Well by breaking the parapet wall.

They saw the dead body at the mortuary before conducting Postmortem examination. At their request the dead body was handed over to the accused for conducting funeral ceremony as per custom, his daughter was having gold pustela tadu with pustelu, 6 kasulu puste, gold ear studs , 6 gold bangles, 2 big size bangles, a pair of toe rings and silver anklets MOs.1 to 6.

14.In cross examination, he stated that after the dead body was removed from the well he did not see the dead body. He cannot say the date or time when they complained the harassment of the accused to elders i.e, Ippili Kurmayya,

Korada Prasada Rao (not cited). The deceased did not write any letters narrating the harassment by the accused to him and she did not tell the other relatives about the harassment. The deceased used to talk to him through cell phone of A.1.

On 26.11.2012 at 10 P.M., the deceased talked to him through the mobile of A.1 to his cell phone. After police and MRO arrived at the house of accused, the dead body was removed from the Well. He did not enquire the persons who gathered at the house of the accused for the death of the deceased. He did not enquire the relatives of the accused who are residing adjacent to their house about the reason for the death of his daughter. MRO., had taken his statement while conducting inquest. The statement of his wife Ramakoteswari-P.W.2, his brother Ramesh

Kumar –P.W.3, Vadde Manmadha Rao-P.W.4 were recorded by the MRO, while conducting inquest. They did not refuse to receive the dead body for conducting funerals as it is not customary practice among Hindus that the funerals have to be conducted by the husband only. He admitted that A.3 conducted the funerals and obsequies. He denied the suggestion that in Ex.P.1 the cash and other particulars about the dowry are not mentioned. He denied the suggestion that in Ex.P.1 he did not mention that the accused demanded his daughter for Rs.2 lakhs as

additional dowry in the presence of elders Ippili Kurmarao, Korada Prasada Rao

and Gembali Gowri Prasad (not cited). When his daughter was harassed by the 14 accused they did not lodge report against the accused in the Police Station. He complained about the harassment of the deceased by the accused to P.W.12,

L.W.17 Varanasi Nageswararao and P.W.14 about 2 ½ years prior to the incident.

Occasionally he used to visit the house of the accused and stay there for one day prior to her death. He denied the suggestion that he is a petition monger and used to send petitions against his superiors. He denied the suggestion that he used to harass his daughter to bring money from the accused for his vices of playing cards and for investing money in the shares business. He denied the suggestion that his daughter died as she could not bear his harassment of insisting her to demand A.1 for separate family away from his parents that his daughter did not die due to harassment by the accused. The daughter of the deceased is residing with the accused only. He denied the suggestion that his daughter gave CZS chain (haram) with ear tops, necklace with leaf design with ear rings, gold chain (haram), Miriyam step chain, fancy ear tops 5 sets, rings two in number, and cash of Rs.3 lakhs to him which were presented by A.1 to her. MOs.1 to 4 were purchased by the accused with the money given by him. He never complained about the harassment of his daughter by the accused to his neighbours. He do not know whether on the request of A.1 only D.W.1 Aravind had telephoned him and informed about missing of his daughter and presence of dead body in the Well. He denied the suggestion that on the date of incident, A.1 went to night show and after returning from the night show, he found his daughter only in the house and he did not find his wife that since there was match stick and a put off candle at the Well, out of suspicion they searched for the deceased through his relatives and friend Aravind, verified the Well and found the dead body in the

Well, his son Udaykumar-P.W.8 came to their house from Delhi on the night of 27.11.2012. He denied the suggestion that the accused did not harass his daughter that they never demanded any additional dowry of Rs.2 lkahs that he did not give any dowry to the accused that his daughter died due to his harassment that to avoid repayments of the amounts taken by him from the deceased, he 15 foisted this case against the accused. He denied the suggestion that he did not state in Ex.P.1 about conceiving pregnancy by his daughter for the 2nd time and the abortion conducted by Dr.Padmaja at Jayasri Hospital, Parvathipuram .

15.Botu Ramakoteswari, wife of P.W.1 has been examined as P.W.2 , her evidence is corroborated with the evidence of P.W.1 with regard to the marriage with A.1 and Rs.4 lakhs towards pasupu kunkuma and dowry to A.1. She categorically stated that they gave Rs.30,000/- towards sare samans. At the time of engagement they gave gold ornaments and silver articles to A.1. After the marriage, the deceased was sent to the house of accused for marital life and she lived with A.1 for about one month. Later on all the accused, the sisters of A.1 and the grandmother of A.1 started harassing and abusing her daughter for silly things. A.1 to A.3 used to beat her daughter which fact is not stated by Pw.1. She also further stated that the accused were not providing sufficient food to her daughter. A female child was born to the deceased in the year 2008. For 5 months after the delivery, the deceased stayed in their house and thereafter they sent the deceased to the house of the accused. All the accused again started harassing the deceased. The deceased used to tell her about the harassment by the accused.

A.1 though used to visit their house, he was not even taking a glass of water at their house. The sisters of A.1 viz., Saritha and Swapna also were harassing her daughter, her daughter was made to do all sorts of house work. Subsequently again her daughter conceived pregnancy. Then she was taken to Bilaspur by A.1 for knowing the sex of fetus. After testing it revealed that it is a female baby. A.1 took the deceased to Padmaja hospital at Parvathipuram and got the pregnancy aborted. A.3 used to hide the gold articles for days together and harass her daughter stating that he lost those valuables and she has no care. A.2 and A.3 used to keep a side the receiver and go out of station, her daughter was not allowed to talk in the landline, they have to call the friend of A.1 over his mobile and through his mobile phone only they used to talk to the deceased.

“Whereas P.W.1 categorically stated that he used to talk with the deceased through the cell phone of A.1. Moreover, P.W.1 also stated that on 26.11.2012 16 about 10 P.M., or 10.30 P.M., he talked with the deceased over phone and enquired about her welfare.”

16.P.W.2 further stated that her husband tried for negotiations to convince the accused through P.W.12, P.W.3 and another person. During counseling and after a few days of counseling the accused used to keep quiet and again subsequently they used to harass his daughter. About 4 years back on 27th

November, Aravind D.W.1, L.W.13 had telephoned to P.W.1 at about 4 A.M., and informed that his daughter was missing in the house of the accused and he enquired whether she came to their house. 10 minutes thereafter, again Aravind telephoned her husband P.W.1 and informed that his daughter was found dead in the Well of the house of the accused. Immediately they went to the house of the accused at Bobbili and found the dead body in the Well of the house of the accused. After the dead body was removed, it was taken to hospital. The accused are responsible for the death of her daughter.

17.In cross examination after receiving phone call from Aravind D.W.1, they went to Police Station and thereafter they went to the house of the accused.

They lodged report in the Police Station. She was present when P.W.1 prepared the report, her husband was not aware of harassing the deceased by A.1 stating that she was not looking good and he wants to marry another girl. She did not go near the Well and see the dead body. She denied the suggestion that she did not state

before the Police that A.3 used to hide the gold ornaments and other articles for

days together and later on used to show them to the deceased and abused her that she was careless. Within one year after the marriage of the deceased with

A.1 they requested P.W.3, P.W.12 and another to convince the accused not to harass the deceased. Though she tried to state before the police about conceiving pregnancy by the deceased for the 2nd time and aborting the pregnancy the police did not record that statement. Her husband tried to lodge report in the Police

Station before this incident, when the accused used to harass the deceased but she stopped him from doing so. She saw the dead body of her daughter for the 17 first time when it was kept in the rickshaw. The ornaments wore on the dead body were purchased with the Rs.4 lakhs cash given by them to the accused. She denied the suggestion that she did not state before the Police that A.1 to A.3 used to beat her daughter. The deceased used to tell about the harassment by the accused to the owner of their house viz., Gillella Hari and neighbours viz.,

Annapurna (not cited). In the ground floor of the house of accused a shop is situated. In the 1st floor A.2 and A.3 reside. In the 2nd floor A.1 used to reside along with the deceased. She denied the suggestion that she did not state before the

Police that A.1 was not taking even a glass of water at their house whether he used to visit their house during the pregnancy by the deceased. They used to visit the house of accused on occasions. She denied the suggestion that her daughter gave CZS chain (haram) with ear tops, necklace with leaf design with ear rings , gold chain (haram) miriyam step chain, fancy ear tops 5 sets, rings 2 in number and cash of Rs.3 lakhs to her husband which was presented by A.1 to her, that due to harassment by her husband only her daughter committed suicide that A.1 to 3 did not commit any offence that they are not responsible for the death of her daughter.

18.One Botu Ramesh Kumar, resident of Kurupam who is brother of P.W.1 has been examined as P.W.3. He categorically stated that he do not know P.W.6, 7 ,

P.W.9 , P.W.10 and he further stated that the marriage of the deceased was performed with A.1 on 10.05.2007, at the time of marriage P.W.1 gave dowry of

Rs.4 lakhs to the accused. The marriage was performed at Bobbili. Immediately after the marriage, the deceased was sent to the house of the accused. In the house of accused A.1 to A.3, the maternal grandmother of A.1 were residing. After the marriage, the accused treated the deceased properly for 4 months and thereafter disputes arose, he came to know about the disputes from the deceased only whenever she used to visit the house of P.W.1 and when he went to see the deceased. The accused were harassing the deceased for want of money, the accused were treating the deceased as a maid servant without giving any respect 18 to her as their daughter in law. The deceased used to tell all these things to him.

He pacified the deceased. One year after the marriage, himself and P.W.1 one

Netaji (not cited) went to the house of P.W.12 who is their relative at Bobbili for holding a mediation when the deceased complained about the harassment. P.W.12 had convinced the deceased and them assuring that the accused would not harm the deceased. Even then the accused continued harassing the deceased. On 8.8.2012 at 4 A.M., in the early hours P.W.1 had telephoned him and informed that he received telephone information stating that the deceased died. Immediately they rushed to the house of the accused at Bobbili. They found the dead body of the deceased in the Well situated in the backyard of the house of the accused. The accused had killed the deceased for additional dowry of Rs.2 lakhs and they had thrown the dead body in their Well. He was present when the Tahasildar conducted inquest over the dead body.

19.In cross examination he stated that he was not present when his statement was recorded by the Police. P.Ws.1,2 , P.W.4 Botu Vijay Kumar (not cited) also came with him when he went to the Well of the accused and found the dead body. From there they directly went to the Police Station, where P.W.1 lodged report. The Tahasildar who conducted inquest had noted down all the injuries found on the dead body. He admitted that at the time of mediation P.W.12 Sunkari

Sai Ramesh became angry. He denied the suggestion that the deceased used to insist A.1 for separate family. He denied the suggestion that Sunkari Sai Ramesh

P.W.12 became angry when P.W.1 advised the deceased to insist for separate family else to jump from the upstairs. He denied the suggestion that the accused never harassed the deceased for money that the accused had not committed any offence, that he is deposing false, as the deceased is the daughter of his elder brother.

20.Vadde Manmadharao, resident of Kurupam has been examined as

P.W.4, he stated that the deceased Aruna Kumari is the daughter of P.W.1 and 2.

She died in the year 2012. The deceased was given in marriage to A.1, the 19 marriage of deceased was performed with A.1 in the year 2007. The marriage was performed at Bobbili. At the time of marriage P.W.1 gave dowry of Rs.4 lakhs to

A.3. Immediately after the marriage, the deceased was sent to the house of the accused at Bobbili. All the accused were living together in the same house. The deceased used to come to their house also whenever she used to visit her parents house at Kurupam. The deceased used to complain that A.2 and A.3 were harassing her that they used to instigate A.1 also to harass her that all the accused were not providing proper food also to her. The deceased used to complain that A.1 used to beat her at the instigation of A.2 and A.3. One year

before the incident the dispute was raised before elders at Bobbili in the house of

P.W.12. He do not know who attended that mediation. In the winter of 2012 at about 4 A.M., P.W.1 had telephoned him and stated that Sai Ramesh –P.W.12 telephoned him stating that the deceased was not found in the house of the accused. Half an hour thereafter, P.W.1 again telephoned him and informed him that the dead body of the deceased is found in the Well situated in the house of the accused. Immediately himself , P.W.1, 2 , his wife Bhudevi went to the house of the accused. They found the dead body of the deceased in the Well of the accused. The accused killed the deceased for want of additional dowry of Rs.2 lakhs, he was present when inquest was conducted over the dead body. In cross examination he categorically stated that he did not act as elder at the time of negotiations for giving dowry. He had advised P.W.1 to hold a mediation in this regard. He stated this fact before the Police when he was examined. He was present when the Mandal Executive Magistrate held inquest over the dead body and noted down the jewellery and injuries found on the dead body. He signed the inquest report along with others. He denied the suggestion that the accused never harassed the deceased for money that the accused had not committed any offence that he is deposing false as the deceased is the daughter of his co son in law.

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21.Gembali Mohana Rao, resident of Bobbili has been examined as P.W.5, he stated that P.W.1 is his distant relative, A.1 is the husband of the deceased. In the year 2010 or like that P.W.1 used to telephone him and informed that the deceased is not happy at the house of the accused, he asked him to convince the accused. Accordingly he convinced and advised all the accused and deceased to live peacefully. He came to know that the deceased died in the Well of the house of the accused in the year 2012. He do not remember the date but it happened in

Kartikamasam. He do not know the reason for the death of the deceased.

22.In cross examination he stated that P.W.1 did not inform him over phone that the accused were harassing the deceased for additional dowry. When he convinced all the accused and the deceased at their house, the deceased did not complain anything about demand for additional dowry. He had simply advised all of them to forget small disturbance and live peacefully.

23.Gampa Polayya, resident of Bobbili has been examined as P.W.6, he did not support the case of the prosecution. The learned Addl.P.P treated him hostile and cross examined him and in cross examination by learned Addl.P.P., he stated that about five years back Kolusu Venkanna P.W.7 called him at about 3-30 A.M., when he was sleeping in his house and took him to the house of the accused and then the accused asked him to see whether there is any dead body in the Well of their house. P.W.7 told him that the wife of A.1 is not found in the house. When he pulled two pipes which are placed in the Well by standing outside, he found some obstruction. He refused to get into the Well and told them P.W.9 of Gollapalli can get into the Well. Then the accused asked him to bring P.W.9. Then himself, P.W.7 brought P.W.9 to the house of the accused. P.W.9 got down into the Well and brought one female dead body and again he dropped the dead body in the Well as he was asked by the accused to remove it after the arrival of Police. Thereafter

Police came to that place, P.W.9Chenchayya again got into the Well, he and himself pulled the dead body from the Well.

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24.Kolusu Venkanna who is resident of Bobbili has been examined as

P.W.7. He stated that about 5 years back Sunkari Gangaraju who is the cousin of

A.1 had telephoned him in the early hours stating that the wife of A.1 is not found in the house and they are suspecting that she is in the Well of the house of the accused. He was asked to bring somebody to get down into the Well, accordingly he took P.W.6 to the house of the accused. P.W.6 had removed two pipes of the motor and found some obstruction in the Well. P.W.6 refused to get into the Well.

Subsequently at the request of the accused P.W.6 brought P.W.9. P.W.9 got into the

Well and brought up the dead body of a female. P.W.9 refused to bring out the dead body as it is a Police case. After arrival of the Police, P.W.9 removed the dead body from the Well. The learned defence counsel reported Nil cross examination.

25.One Botu Uday Kumar who is son of P.W.1 and 2 has been examined as

P.W.8, he supported the version of P.Ws.1 and 2 , his entire evidence is that he came to know about the facts from his parents as he stated that he was not present at the time of paying dowry to the accused but he was informed by his parents.

26.In cross examination he stated that he came to know all these things as deposed by in his chief examination through his parents and the deceased. He cannot say the specific dates of information received by him from his parents and the deceased. On the date of incident he was present at Kurupam and he visited the house of accused along with his parents. He had not seen the dead body while it was present in the Well. He was present when his father P.W.1 prepared Ex.P.1 report. He do not know whether in Ex.P.1 payment of dowry of Rs.4 lakhs at the time of marriage and subsequent demand for additional dowry of Rs.2 lakhs are mentioned or not. He had not attended the mediation which was held before

P.W.12. He denied the suggestion that he did not state before the Police that

P.W.12 had proclaimed that they would do in what manner they like. He denied the suggestion that his parents used to instigate the deceased to put up separate family away from A.2 and A.3 that his parents used to advice the deceased to 22 pretend to commit suicide by jumping from terrace and for that reason P.W.12 had admonished his parents that he did not altercate with his parents for any other reason. They did not lodge report in Police Station being afraid of the spoiling of marital life of deceased for last 6 years prior to her death. He denied the suggestion that he is deposing false to the dictation of his parents, but he do not know anything. He was examined by police on 28.11.2012 as suggested.

27.Bogadi Chenchayya, resident of Gollapalli has been examined as P.W.9.

He categorically stated that about 4 years back in the early hours when he was sleeping in his house, P.W.6 and 7 came to his house and called him to see the

Well in the house of the accused, as they are suspecting there is some female dead body in the well of the accused, then he was taken by P.W.6 and 7 to the house of the accused. On enquiry he came to know that A.1’s wife was found missing. He was asked to get into the Well of the accused. Accordingly, he got into it and found the dead body of the deceased in the Well, then he brought the dead body outside the Well. He was told that it is a Police case and he was asked to leave the dead body in the Well and accordingly he left the dead body in the Well and went to his house. On the same day, he was called by the Police at about 10

A.M., and removed the dead body from the Well of the accused at the instance of

Police.

28.In cross examination he stated that P.W.6 and 7 came to his house and told him that some woman was found missing and they were searching for her and he was asked to search in the Well as she was suspected to have fallen in the Well.

29.One Maripini Ganesh, photographer of Bobbili has been examined as

P.W.10. He stated that on 28.11.2012 at the request of Bobbili Police, he went to the house of the accused and photographed the scene of offence under Ex.P.2 , 14 photos along with CD.

30.One Kalivarapu Murali Krishna , R/o Bobbili has been examined as

P.W.11. He categorically stated that on the intervening night of 27/28.11.2012 A.1 telephoned him at about 1 A.M., and informed him that his wife was not found and 23 he asked him to come to his house. Accordingly he went to the house of the accused. In the meanwhile L.W.13 Aravind/D.W.1 and Sunkari Gangaraju –L.W.14 came there. All of them searched for the deceased in the house of the accused.

Aravind had telephoned to P.W.1 and informed him stating that the deceased was not found in the house of the accused and he enquired that whether the deceased came to the house of P.W.1. In the meanwhile they found a candle, match box , mobile stand on a pot situated by the side of the Well of the accused. They suspected the deceased might have fallen in the Well. Sunkari Gangaraju –L.W.14 had telephoned to one Venkanna and asked him to bring somebody to search in the Well. After a sometime Venkanna and POlayya (P.Ws.6 and 7 ) came to the house of accused, Gangaraju L.W.14 asked P.W.6 to get into the Well , P.W.6 had moved the water pipes in the Well and stated that there is some obstruction in the

Well. Gangaraju again asked P.W.6 to get into the Well but P.W.6 refused to get into the Well and P.W.6 suggested to bring one Chenchayya of Gollapalli-P.W.9.

P.Ws.6 and 7 brought P.W.9. P.W.9 got into the Well and he had shown the dead body of the deceased by bringing up to the water level. Then they informed P.W.9 to leave the dead body in the Well, as it is a police case. He was not cross examined by the defence, as defence counsel absent.

31.Sunkari Sai Ramesh of Bobbili has been examined as P.W.12. He categorically stated that the marriage of the deceased was performed with A.1 in the year 2007 at Bobbili as per Hindu religious customs and he is an elder among their caste people. 2 ½ months prior to the date of incident, P.W.1, 3 , one Netaji came to him at his house in Bobbili and they informed him that the deceased was being harassed by her inlaws and husband. They had complained him that the accused are not providing proper food to the deceased. Except this they did not complain anything against the accused. Immediately he took them to the house of the accused. At that time A.2 and A.3 and the deceased were present in their house. A.1 had been on camp at that time. He alone went as an elder along with

P.Ws.1,3 and Netaji. Then he enquired the deceased about her grievances. The 24 deceased came to him with smile and stated that she does not have any grievance and she further stated that her father was always insisting her to put up separate family with her husband. Subsequently, the deceased died in the house of the accused. After coming to know about the incident, he went to the house of the accused. The learned Addl.P.P treated him as hostile and cross examined him as he reassailed from his earlier statement recorded by Police under 161 Cr.P.C statement and marked his 161 Cr.P.C statement as in Ex.P.3.

32.In cross examination by learned Addl.P.P he denied the suggestion that that he did not state before the Police that about 2 ½ years back P.Ws.1 and 3 came to him and complained that all the accused are harassing the deceased physically and mentally that immediately along with their caste elders went to the house of the accused and a mediation was held that in the mediation they had admonished the accused and advised them to look after the deceased properly and sent away P.W.1 assuring safety to the deceased at the house of the accused that he stated before the Police, as in Ex.P.3 and that deposing false as the accused are his close relatives.

33.In cross examination by defence counsel he stated that the deceased had stated before them that she does not have any grievance against the accused and her father always was insisting to put up separate family with her husband. In the meanwhile P.W.1 had advised the deceased to threaten the accused to jump from upstairs so that the accused would come to her terms. Then he admonished

P.W.1 only stating that he should not advise his daughter like that.

34.Dr.G.Sesibushana Rao, has been examined as P.W.13 and he deposed that on 28.11.2012 he received requisition from Tahasildar, Bobbili at 3-40 P.M., to conduct Postmortem over the dead body of Sunkari Aruna Kumar, aged 26 years, thereafter himself and Dr.M.Suryanarayana, CAS, G.Venkatanaiaud, CAS, Bobbili had commenced Postmortem at 4.00 P.M., and found the height of the deceased is approximately 5’4”, normal complexion, moderately built, well nourished, black colour hair and eyes present, external findings:

25 1.There is mild appearance of the rigor mortis of the body present.

2.There is fine and brownish red coloured frothy fluid coming from the nasal orifices. It appears of fine bubbles.

3. A brownish red contusion to the right side of neck region of about 5 X 3 inches. It extends centre part of the neck up to the nape of the neck.

4.A brownish to black coloured contusion with cyanosed area, it measured about 5 X 5 inches present on left side of the neck region. It extends just below the centre point of the neck upto the nape of the neck on left side. Washerman hands and feet are observed on the body.

5. The eyes are congested, the conjunctiva also congested, the pupils are dilated.

6. A brownish red contusion present on the right side lateral side of the right elbow joint. It is about 6 X 5 inches with small abrasions of about 2 X 1 cm

7. A brownish red contusion to the left side just below lateral aspect of the left elbow joint, it is of about 5 X 5 inches.

8. A 2 X 1 cm skin deep abrasion present to the dorsal aspect of the right and left hands of the middle fingers of the 1st phalynx.

Internal findings:

1.After opening of the neck, there is severe congestion of the neck muscles with blood clots at the respective contusions of the both the side i.e, right and left sides of the neck.

2. After opening of the thorax and abdomen all the internal organs are congested.

3. After opening of the lung tissue, there is watery fluid coming from the lung tissue.

4. In the stomach there is semi digested food present.

5. Hyoid bone is intact.

6. After opening of the skull, the brain tissues congested.

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7. The uterus is normal in size and nothing specific was observed in the uterus.

8. After opening of the right side contusion area of elbow, there is severe congestion of the muscles with blood clots on the muscles observed.

The following organs were preserved for chemical and biological analysis at

RFSL, Visakhaptnam. (1) Stomach and small intestine, (2) Sternum bone (3) Spleen (4) Lung tilssues (5) Liver (6) Kidney (7) Sample solution and he issued Preliminary report which is Ex.P.4, as per Ex.P.4, the approximate time of death is 17 to 18 hours prior to Postmortem examination.

As per RFSL report No.1 file No.VSP TOX/894/2012, dated 17.12.2012

Hqrs, Visakhaptnam report is as follows:

The above items 1 to 6 are analysed but poisonous substance is not found in all of them.

As per RFSL Report No.2 File No.VSP/SER 421/2012 dated 18.12.2012

Hqrs, Visakhaptnam, report is as follows:

Nature of examination is microscopic examination. Items No 1 to 3 are examined. Diatoms are detected in Item No.3. Diatoms are not detected in items 1 and 2.

Basing on the above findings and preliminary Postmortem examination, their team of doctors opined that the cause of death is due to

Asphyxia due to ante mortem drowning. It is means at the time of drowning she was alive. Ex.P.5 is the final report. On 18.05.2013 he received a questionnaire from SDPO, Bobbili and accordingly he answered the two questions confirming their final opinion with regard to cause of death. Ex.P.6 is the questionnaire from the SDPO, Bobbili along with his answers consisting of two sheets. The external injuries observed in the Preliminary Postmortem report are possible by applying external forces. The first injury mentioned in the internal findings is possible by applying external force like in the case of throttling. In the case of homicidal death there is possibility of more injuries than in the case of suicidal death. The witness 27 adds the injuries in the case of drowning are possible before, at the time of, or , after immersion. Before immersion they may be of accidental, suicidal, or, homicidal origin and the manner of death cannot be interpreted from autopsy alone, the findings have to be viewed with the circumstances, as per medical jurisprudence written by Dr.K.Narayanareddy. He further stated that as per the findings given, the possibility of throttling is more as injuries were observed on the neck externally and internally. The remaining external injuries are possible while throttling.

35.In cross examination on seeing the photographs he stated that the external injuries as deposed by him above are possible if a person falls in such

Well. He admitted that those injuries are possible by coming into contact with the internal wall and pipe line in the Well as shown in the photographs. He denied the suggestion that in the case of throttling injuries would be even on both sides. He did not find any nail marks on the dead body. The external injuries on the neck are possible when the body comes into contact with any object like pipeline in this case. The injury on the elbow as shown in the external injury No.6 is possible by coming into contact with a pipeline or any hard surface like Wall.

In Re examination by Addl.P.P he admitted that a person falls in such a

Well there is possibility of sustaining head injury. He admitted that there is no head injury observed by him.

36.Botu Peeru Sankarayana Murthy has been examined as P.W.14, he categorically stated that A.3 is his brother in law , A.2 is wife of A.3, A.1 is son of

A.2 and A.3. The marriage of the deceased was performed with A.1 in the year 2007 at Bobbili, as per Hindu religious custom, he do not know what was presented by the parents of the deceased to her. 3 years after the marriage, P.W.1 had telephoned him and informed him that the accused are not providing proper food to the deceased. Immediately he had telephoned to A.2 and enquired about the complaint made by P.W.1 saying that they were not providing proper food to the deceased and good milk to the daughter of the deceased. A.2 had replied that 28 they are providing the same food to the deceased which is consumed by them, that they are mixing a little water to the milk for feeding of the baby from health point of view only, but not as harassing them. Thereafter, P.W.1 had been repeatedly complaining the same and he was telling that he had enquired the accused. In the year 2010 himself and his wife came from Visakhaptnam to the house of the accused, and stayed for one day in their house and during that period they questioned the deceased about the complaint made by her father, but the deceased stated that she was not harassed. Thereafter, he advised both sides to live peacefully. The deceased died in the house of accused in the year 2012.

37.In cross examination P.W.1 and himself belong to Kurupam. P.W.1 is his cousin brother. When they enquired the deceased in the house of the accused, she did not complain him anything about the demand of additional dowry. The deceased told him that her father was insisting her for separate family with her husband.

38.P.W.15 P.S.N.Sarma had been examined and he is the VRO of

Ushakonda village of Kurupam. Previously he worked as VRO of Gollapalli, he categorically stated that on 28.11.2012 when he was present in MRO Office,

Bobbili along with Ravi Apparao, Bobbili police sent a word through their constable and asked them to come to the house of the accused, accordingly, himself and

Ravi Apparao, and their Tahasildar reached there at 8.30 A.M on the same day, in their presence the dead body of A.1 ‘s wife was brought out from the Well situated in the house of Accused. Police had observed the scene of offence in their presence and got the same photographed and thereafter scene observation report was prepared by the Police which is signed by him and another VRO. Ex.P.7 is the scene observation report, thereafter they were taken by the Police to CHC, Bobbili on the same day. Their Tahasildar conducted inquest over the dead body at CHC,

Bobbili in their presence and in the presence of blood relatives of the deceased. He do not have any idea about the opinion expressed by them. He scribed the inquest 29 report . Ex.P.8 is the inquest report, he signed on it. In Ex.P.8 it is mentioned that

A.1 had pushed the deceased in the Well.

39.In cross examination he stated that on seeing the photographs he admitted that two photos out of them show the Well in the house of the accused.

He had scribed Ex.P.8 to the dictation of Inspector of Police and SDPO, Bobbili and as per the statements given by the witnesses. In about 15 cases of Bobbili Police

Station, he signed as witness, in such reports.

40.One P.Sanyasi Rao, Head constable has been examined as P.W.16. He categorically stated that on 28.11.2012, when he was present in the Police Station as in charge, at about 6.30 A.M., P.WS.1 and 2 came to Police Station and P.W.1 lodged a written report which is Ex.P.1. Basing on which, he registered it as a case in cr.No.266/2012 under sections 498-A, 306 I.P.C , Ex.P.9 is the original F.I.R submitted to AJFCM , Bobbili and copies thereof to his superior officers and informed to their Inspector of Police about the incident. After registering the F.I.R immediately, he rushed to the scene of offence which is house of the accused and in the meanwhile their Inspector of Police, arrived there and took up investigation.

41.In cross examination, he admitted that in Ex.P.1, it is not stated that at the time of marriage P.W.1 gave dowry of Rs.4 lakhs, sare samans of Rs.1 lakh to the accused and further admitted in Ex.P.1 it is not stated that at the time of engagement P.W.1 gave Rs.1,50,000/- towards expenditure to A.1. He further admitted in Ex.P.1 it is not stated P.W.1 gave Rs.50,000/- to A.1 at different dates.

He further admitted that in Ex.P1. it is not stated that accused demanded

additional dowry of Rs.2 lakhs from the deceased.

42.Bommali Sudarshan Dora, Spl.Dy.Collector has been examined as

P.W.17. He categorically stated that in November, 2012, he was in charge of

Bobbili for 4 days. On 28.11.2012 at about 8 AM., he received a requisition from

S.H.O, Bobbili Police Station for conducting inquest over the dead body of Sunkari

Aruna Kumari. At about 8.30 AM, he reached the house of accused, by that time their VRO P.W.15 and Apparao S.I of Police , Inspector of Police and other officials 30 were present. There is a Well in the house of the accused. Two persons were brought and through them the dead body was got removed from the Well. The dead body was a female dead body aged about 26 years. The Police had observed the Well. They found a cell phone stand, burnt candle and match box. A part of the

Well was covered with mesh. The Police had prepared scene observation report and it was signed by him and others. Ex.P.7 is the scene observation report. Later on he conducted inquest over the dead body from 12 noon to 2 P.M on the same day in the presence of blood relatives of the deceased and panchayatdars i.e,

P.W.15 and Apparao. They found golden pustela tadu, pair of ear studs, gold bangles , pair of silver anklets. They observed froth from the mouth of the dead body and the injury on the hands. The golden jewellery of dead body was seized.

The panchayatdars opined that the deceased might have been killed or she might have fallen in the Well due to depression. Thereafter, the dead body was forwarded to Postmortem examination. The inquest report was prepared and it was signed by the panchayatdars and him. Ex.P.8 is the inquest report.

43.In cross examination he stated that he had examined the statements of the witnesses at the time of inquest whose names are mentioned in the inquest report. Inquest was conducted at CHC, Bobbili. He know inquest must be conducted at the place where the dead body is found and inquest was conducted in a day time. The police obtained the statements of witnesses recorded by him along with the inquest report. He admitted that in the inquest report in col.No.7 at page No.2 of Ex.P.8, it is mentioned that they found a laceration on the right elbow joint. He further admitted that in col.No.14 of Ex.P.8 it is mentioned that it is decided to hand over the dead body to the accused since the father of the deceased and his relatives refused to conduct funerals of the dead body. S.I of

Police had seized the cell phone stand , burnt candle, match box. He denied the suggestion that the witnesses did not state before him anything that Ex.P.7 and 8 are prepared in the Police Station by the Police and he had simply signed them in the Police Station, that the witnesses did not state anything with regard to the 31 harassment of the deceased by the accused, for that reasons those statements were not furnished.

44.Pw.18 L.Rajeswararao, the then Inspector of Police, Bobbili deposed that on 28.11.2012 at 7 AM., he was informed by Pw.16 about lodging report by

P.W.1 and about registration of F.I.R, he went to Bobbili Police Station, perused the

F.I.R, sent requisition to P.W.17 to hold inquest over the dead body, since the death of the deceased took place within seven years of her marriage. Immediately he along with his staff , P.W.17 and mediators i.e, P.W.15 and Maripi Ravi Apparao, went to the scene of offence i.e., the house of the accused. He observed the scene of offence in the presence of mediators and P.W.17, he got the scene of offence photographed and videographed along with the dead body, got the dead body removed from the Well by P.W.6 and others. The scene of offence was observed from 8.15 am., to 10.15 A.M.,, Ex.P.7 is Scene observation report. He further deposed that he found a cell phone stand, burnt candle and a match box on a ‘reku’ by the side of the well, on a tank. He got prepared rough sketch of the scene of offence, Ex.P.10 is rough sketch, since it was dark at that place, he shifted the dead body to CHC, Bobbili. Inquest was conducted by P.W.17 at mortuary in CHC,

Bobbili. He also recorded their statements under sec.161 Cr.P.C and they found gold pustela tadu with sathamanams, one pair of gold ear studs, six small gold bangles, two big gold bangles, six bangles on right hand, a single bangle on the left hand, a pair of silver anklets, four silver toe rings (Mo.1 to 6). He seized all these articles and the clothes found on the dead body, except an injury on the right elbow no other injuries were found. Thereafter, the dead body was forwarded for Postmortem examination. After conducting Postmortem examination, the dead body was handed over to A.1. The father of the deceased had bluntly refused to take the dead body. Basing on the statements of P.Ws.1 to 4 recorded by him and basing on the inquest report, he added Section 304-B I.P.C and Ex.P.11 is the alteration memo consisting of two sheets, filed by him before AJFCM, Bobbili and further investigation took up by SDPO, Bobbili.

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45.In the cross examination he denied the suggestion that they have concocted all the statements and reports in the Police Station in consultation with his superiors to foist the case against the accused. He denied the suggestion that in order to get some time to foist a case, against the accused, inquest was held at

CHC, Bobbili.

46.N.Sridevi Rao, Dy.Superintendent of Police, Bobbili , has been examined as P.W.19 and she deposed that on 29.11.2012 she took up investigation in this case after alteration memo was filed by P.W.18 and she peruced the CD and the documents, rushed to the scene of offence situated in the house of accused, re-examined the same, secured the presence of P.Ws.1 to 4 and 8, examined them and recorded their statements, on 30.11.2012 secured the presence of P.Ws.5 to 7, 9 , Rajana Ramu, Rajana Suri, examined them and recorded their statements , on 1.12.2012 secured the presence of Sunkari Gangaraju, P.W.11, Gode Aravind,

P.W.12, examined them and recorded their statements. On the same day, she collected wedding card and marriage photos of the deceased with A.1, from P.W.1.

On 4.12.2012 on information that the accused were present at RTC complex,

Bobbili, she rushed there, after getting them identified, effected their arrest at 3

P.M., and brought them to Police Station at 3.15 P.M., and produced before AJFCM

Court, Bobbili. ON 5.12.2012 she received preliminary Postmortem certificate pending final report and on 13.12.2012 she forwarded the material objects to

RFSL, Visakhaptnam through letter of advice, to know whether they were having any poisonous substance and presence of diatoms. On 28.12.2012 she received

RFSL report Ex.P.12 consisting two sheets, which shows diatoms were not present in items 1 and 2 and diatoms were detected in item No.3 and Item No.1 is sternum bone, item NO.2 is piece of lungs, item NO.3 is clear liquid which was collected from Well by P.W.18 and Ex.P.12 shows no poisonous substance was found. On 4.1.2013 she sent a requisition to the Superintendent of Police, Vizianagaram to obtain call data of 9490051074, 9440114043 and 0894 4254354 and on 7.1.2013 she obtained call data record of the above three numbers.

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47.In the cross examination she stated that in Ex.P.1, the giving of dowry of Rs.4 lakhs, saree samans worth Rs.1,50,000/- , Rs.50,000/- on different occasions and demanding of additional dowry of Rs.2 lakhs by the accused is not mentioned. She did not examine Botu Anasuyamma, Ippili Kurmarao, Korada

Prasada Rao and Gembali Gowriprasad. She stated that P.W.1 did not state before her that the grandmother of A.1 used to attribute thefts to the deceased by concealing gold ornaments. P.W.2 did not state before her that A.1 to A.3 used to beat the deceased and A.3 used to conceal gold ornaments and attribute laziness to the deceased. She did not examine the neighbours of P.Ws.1 and 2 at Kurupam.

P.W.11 and Gode Aravind/Dw.1 stated before her that they found a phone stand, half burnt candle and a match box. She did not try to recover cell phone of the deceased from the Well. There was no roofing on the Well. The dead body was got removed from the Well in the day time. She denied the suggestion that though

F.I.R was registered under sec.498-A and 306 I.P.C, to implicate the accused for the offence under sec.304-B I.P.C, she got prepared the statements of P.Ws.1 to 4 and that she is deposing false.

48.T.Phalgunarao, the then Dy.Superintendent of Police, Bobbili has been examined as P.W.20. He deposed that on 25.02.2012 he took up investigation in this case, on the same day received final opinion from P.W.13 and on 1.3.2012 examined Varanasi Nageswararao, Dr.Y.Padmaja and on 14.3.2012 addressed a letter to the Professor, Forensic Medicines, Andhra Medical College, Visakhaptnam, for clarifying the cause of death along with questionnaire. The professor answered to both the questions as mentioned in the questionnaire by stating that the injuries are not sufficient to cause death of the deceased and as per P.M findings the death is due to drowning, diatoms test is not diagnostic and Ex.P.13 ils questionnaire with a requisition and answers thereon. On 16.3.2012 he analysed the call details of cell phone of P.W.1 and the cell phone number and landline number of the accused, to confirm whether there was any conversation between the deceased and accused. On 21.3.2012 he examined P.W.12, 14 and recorded 34 their statements. On 10.07.2013 he examined Ch.Nageswararao, P.W.16,

Vasanthala Vasu and on completion of investigation he filed Charge sheet against all the accused.

49.In the cross examination he stated that P.W.12 stated before him that a dispute was raised before him by P.W.1 and others 2 ½ years prior to death of the deceased. He did not put a question in the questionnaire under Ex.P.13 to the

Professor to know whether the injuries are ante mortem, or Postmortem in nature.

He had perused the inquest report col.NO.VII of Ex.P.8 shows only one injury on right elbow which is visible. The statements of P.Ws.1 to 4 recorded under sec.161

Cr.P.C., were sent to the Court along with the Charge sheet. He stated that originally F.I.R was registered under sec.498-A and 306 I.P.C. The half burnt candle, match box and cell phone stand were not seized by P.W.18. Since he verified the call data to know whether there was any conversation between the deceased and her father, he did not cite any telephone officials as a witness. He had not examined Botu Anasuyamma, Ippili Kurmarao, Korada Prasadarao and Gembali

Gowri Prasad. Since he did not get any useful information, he did not cite

Dr.Y.Padmaja as a witness. He did not seize the mobile phones of P.W.1 and accused. He denied the suggestion that his investigation is not proper and that this case is foisted against the accused with fabricated documents and that he is deposing false.

50.That being the evidence adduced by the prosecution.

51.L.W.13 has been examined as D.W.1 he categorically stated that himself and A.1 went to watch the movie of Damarakam 2nd show on 27.11.2012 , after watching the movie they returned back to the house of A.1 at about 12-45 mid night and after dropped him at his house he went to his house. At about 1

A.M., A.1 telephoned him stating that his wife was not found in the bed room and he found only his daughter viz., Rihita in the bed room. Aruna Kumari is the wife of

A.1. By that time A.2 and A.3 were sleeping in their bed room, in the middle room of the house and all of them got searched for the wife of A.1, immediately he 35 telephoned to P.W.1, who is father of deceased Aruna Kumari and informed him that the deceased was not found in the house. They all found there match sticks which were half burnt, half burnt candle and cell phone stand at the Well, they all suspected that the deceased might have fallen into the Well. P.W.9 removed the dead body from the Well, again he telephoned to P.W.1 and informed him that the dead body of the deceased was found in the Well. A.1 went to the Police Station,

Bobbili and gave complaint to the Police. Immediately the Police rushed to the scene of offence, to his knowledge there was no harassment towards the deceased by the accused for any disputes or for additional dowry. The dead body of the deceased was not removed from the Well till the Police arrived to the scene of offence. A.1 is staying in the upper portion of his house, A.2 and A.3 are staying in the middle portion of the house and shop and Well are situated in the Ground floor.

He was examined by the Police as L.W.13.

52.In cross examination by Addl.P.P., he stated that his shop is situated at

Medara junction, Municipal shopping complex since 10 years. Himself and accused are all same caste. He has acquaintance with A.1 since 20 years. They are not having relationship with A.1 to discuss about family affairs. They decided to go to 2nd show movie at about 9 P.M. He stated the fact at first time into Court that he watched movie along with A.1 on the date occurrence of the offence. Except himself and A.1 no one accompanied with them to watch the movie. He denied the suggestion that that he did not state before the Police that he went to watch movie along with A.1 on date of occurrence of the offence. He do not have any knowledge personally about the disputes between A.1 and his wife. He cannot say diameter of the Well. He has seen the dead body of the deceased when it was taken from the Well at about 4 A.M. He has not particularly observed any injuries on the body of the deceased. He denied the suggestion that he is deposing false by creating a story that on the date of occurrence of the offence he along with A.1 watch 2nd show movie in order to help the accused as he is his friend and relative.

53.That being the evidence adduced on behalf of the defence.

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54.It is the specific case of the prosecution that the accused killed the deceased and thrown the deceased into the Well. P.Ws.1 and 2 who are parents of the deceased and P.W.3 is the brother of P.W.1 , P.W.4 is the co son in law of P.W.1.

P.W.5 is the distant relative of P.W.1. They are interested and inter related with each other. P.W.1 categorically stated that he paid Rs.4 lakhs towards pasupu kunkuma and dowry in the presence of Korada Prasada Rao, Ippili Kurmayya,

Gembali Prasad, but they were not examined by the prosecution nor cited as List witnesses at the time of investigation. P.W.1 and 2 stated that they did not provide proper food to his daughter. In cross examination P.W.1 categorically stated that the deceased was complaining them that all the accused used to harass for

additional dowry of Rs.2 lakhs and he used to express his inability to payment of

that amount. In cross examination he cannot say the date or time when they complained the harassment of the accused to the elders Ippili Kurmayya, Korada

Prasada Rao. Korada Prasada Rao and Ippili Kurmayya are material witnesses with regard to demanding of additional dowry. The learned advocate of the defence drawn my attention to the 161 Cr.P.C statement of P.W.1 wherein P.W.1 categorically stated before the Police while recording his statement that he used to talk with the deceased through the cell phone of A.1 on 26.11.2012 at 10 P.M., the deceased talked to him through the Mobile of A.1 to his cell phone and she spoke to me well. Moreover, the deceased completed her Bachelor Degree through correspondence course from Andhra University but she did not write any letters narrating the harassment by the accused to him and she did not tell the other relatives about the harassment.

55.P.Ws.1 and 2 categorically stated that the deceased used to tell her grievances about the harassment to the neighbours of P.W.1 and 2. But they are not examined by the prosecution, nor cited as witness in this case. It is the specific case of prosecution is that the accused used to harass the deceased with regard to

additional dowry. But it is very vital and material fact which does not found place

37 in Ex.P.1. Ex.P.1 is addressed to Inspector of Police, Bobbili and it was dated 28.11.2012 and the contents of Ex.P.1 report are as follows:

“He performed his daughter’s marriage with one Sunkari Sudheerbabu,

S/o Saibaba, at Main Road, Bobbili on 10.05.2007. After marriage her daughter lead conjugal life happily up to one month without any problems.Then after her daughter’s mother in law, father in law and husband treated her cruelty and the sister in laws of her daughter i.e, elder sister in law Andavarapu Saritha,

Srikakulam and younger sister in law Bhogi Swapna, Veeraghattam used to talk over phone and instigated their parents and brother for the harassment and finally all the family members harassed his daughter and killed. During the last 6 years in so many times put the harassment in the notice of their relatives, but they deaf eared and continued their harassment towards his daughter and finally killed.

Their daughter was blessed with a daughter on 8.8.2008 in Dr.Padmaja hospital,

Parvathipuram by scissurin. The details of the in laws of her daughter 1) Father in law, Sunkari Saibabu (2) Mother in law, Sunkari Vimala (3) Husband (their daughter) Sunkari Sudheerbabu (4) Sinster in laws: 1)Andavarapu SAritha,

Srikakulam (2) Bhogi Swapna, Veeraghattam. Even a day before the death they had conversation with her freely about ½ hour at 10 P.M., on 26.11.2012. But in the early hours of 28.11.12 at 4-10 AM one Aravind the friend of their son in law informed them over phone that their daughter was found missing since the night of 27.11.12. But it was not informed by their son in law or family members. Again at 4-30 AM the same Aravind informed them over phone that their daughter was found died in the well in the house of her in laws. Then after they started from

Kurupam at 4-40 AM., seen the dead body of their daughter came to P.S and presented this report. ”

56.The above contents of Ex.P.1 shows that the demanding of additional dowry of Rs.2 lakhs was not mentioned and also it is not found in Ex.P.1 that P.W.1 paid Rs.4 lakhs and sare saman worth Rs.1 lakh and Rs.1,50,000/- towards bracelet, ring, dress, silver items and other articles were not mentioned. It is the case of the defence that the parents of the deceased refused to receive the dead body for conducting funerals and further P.W.1 admitted that the father in law of the deceased performed the obsequies of the deceased. P.W.1 denied the suggestion that in Ex.P.1 he did not mention that the accused demanded his daughter for Rs.2 lakhs as additional dowry in the presence of elders Ippili 38

Kurmarao, Korada Prasada Rao and Gembali Gowri Prasad. Though the above said persons are material witnesses, they were not examined by the prosecution. P.W.1 further admitted that when his daughter was harassed by the accused they did not lodge report against the accused in the Police Station. If really the deceased was being harassed by the accused, they would have reported the matter either to the

Police or to the elders. According to the prosecution, the alleged elders are P.W.12 and 14 and L.W.17 Varanasi Nageswararao, they did not support the case of the prosecution.

57.P.W.1 further stated that after Police and MRO, arrived at the house of the accused, the dead body was removed from the Well.. He did not enquire the persons who gathered at the house of the deceased for the death of the deceased.

He did not enquire the relatives of the accused who are residing adjacent to their house about the reason for the death of his daughter.

58.P.W.17 categorically stated that he recorded the statements of witnesses at the time of conducting inquest under Ex.P.8. P.Ws.1, 2 , P.Ws.3,4 and 8 categorically stated the MRO had taken their statements while conducting inquest under Ex.P.8 but those statements were not came into light till date.

59. P.W.2 in her evidence categorically stated that all the accused, the sisters of A.1 and grandmother of A.1 started harassing and abusing her daughter for silly things. She further stated that A.1 and A.3 used to beat her daughter, which fact is not stated by P.W.1 in his evidence. Admittedly, P.W.1 to 3 and 8 are interested and inter related to each other. P.W.5 is the distant relative of P.W.1, as per his evidence in the year 2010 or like that P.W.1 used to telephone him and inform that the deceased is not happy at the house of the accused and asked him to convince the accused. Accordingly, he convinced and advised all the accused and deceased to live peacefully. He came to know that the deceased died in the

Well of the house of the accused in the year 2012. He do not remember the date, but it was happened in Karthikamasam. He do not know the reason for the death of the deceased. In cross examination he categorically stated that P.W.1 did not 39 inform him over phone that the accused was harassing the deceased for additional dowry. He further stated that when he convinced all the accused and deceased at their house the deceased did not complain anything about the demand for

additional dowry. According to the prosecution, he is the independent and material

witness to the prosecution. But he did not state anything adverse to the accused, moreover, he stated that the deceased did not complain anything about demand for additional dowry.

60.P.Ws.1 to 5 and 8 are the interested and important witnesses to prove the case of the prosecution for the offence under section 304-B I.P.C. The prosecution has to prove the following ingredients for the offence under sec.304-B

I.P.C.

Ingredients: (1) Death of a woman is either by burns or bodily injury or otherwise, than under normal circumstances.

(2) It should be within 7 years of marriage (3) It should also be shown that soon before the death she was subjected to cruelty or harassment by husband or relative of the husband.

(4) Such, harassment or cruelty should pertain to the demand for dowry.

61.According to the evidence of P.W.1, the marriage of his deceased daughter was performed with A.1 on 10.05.2007 at Kalyana Mandapam, Bobbili as per Hindu customs. According to his evidence, the deceased was died on 27.11.2012. Admittedly, the deceased died within 7 years of her marriage. Now we have to examine as to whether the prosecution proved the 2nd to 4th ingredients.

There is no specific evidence to show that soon before the death of the deceased, she was subjected to cruelty or harassment either by A.2 and A.3 or their relatives.

It is specific evidence of P.W.1 is that the mother of A.1 i.e, A.2 started harassing and abusing his daughter for silly things, that in spite of informing this to A.1 by his daughter, he was not responding. A.2 was not providing sufficient food to his daughter. A.2 was abusing his daughter stating that they have no money for 40 providing food to his daughter, that his daughter is enjoying life in the house of accused. P.W.2, categorically stated that A.1 and A.3 used to beat her daughter.

The accused were not providing sufficient food to her daughter. All the accused again started harassing the deceased. The deceased used to tell her about the harassment by the accused.

62.P.W.1 in his cross examination categorically stated that he cannot say the date or time when they complained the harassment of the accused to the elders i.e, Ippili Kurmayya, Korada Prasada Rao. Though the deceased studied up to Degree, she did not write any letters by narrating the harassment by the accused to P.W.1, she did not tell the other relatives about the harassment as stated by P.W.1 and moreover, the day on which the deceased died, the deceased used to talk with P.W.1 through the cell phone of A.1. On 26.11.2012 at 10 P.M., the deceased talked to P.W.1 through the mobile of A.1 to his cell phone. Though P.W.1 denied the material facts which are not mentioned in Ex.P.1 report the person who registered Ex.P.1 categorically stated that P.W.1 did not mention the fact to the effect that at the time of marriage he gave Rs.4 lakhs of dowry, sare samans worth

Rs.1 lakh to the accused. He did not mention the fact to the effect that at the time of engagement, he gave Rs.1,50,000/- towards expenditure of A.1. He did not mention the fact to the effect that he gave Rs.50,000/- to A.1 at different times. It is not mentioned in Ex.P1. that the accused demanded additional dowry of Rs.2 lakhs from the deceased, which are important and material facts. P.W.2 in her cross examination stated that her husband was not aware of harassing the deceased by A.1 stating that she was not looking good and wants to marry another girl. On her cross examination she further stated that within one year after marriage of the deceased with A.1, they requested P.W.3 and 12 and another to convince the accused not to harass the deceased which is not the case of P.W.1 and further she categorically stated that the deceased used to tell about the harassment by the accused to the owner of their house viz., Gillela Hari and 41 neighbours viz., Annapurna, whose names were not cited as list witnesses and the prosecution failed to examine them.

63.P.W.3, who is the brother of P.W.1 in cross examination he categorically stated that he was not present when his statement was recorded by the Police.

64.The learned advocate cited a decision reported in 2008 (2) ALT (Crl) 58 (AP) wherein it was held that :

“Giving of dowry at the time of marriage would not be relevant for assessing the guilt of the accused for the offence under sec.304-B I.P.C, as the said fact is not one of the ingredients of Sec.304-B and the ingredients of Sec.304-B is harassment with a demand of dowry soon before the death of the deceased and the proximity between death of the deceased and the harassment by the appellant is the clinching aspect which would prove the guilt of the accused and the reason for the dullness cannot be inferred to be the harassment of the deceased unless the harassment is independently proved.”

In the case on hand, the material evidence of the prosecution witnesses P.Ws.1 to 5 and 8 suffers from several inconsistencies and is not sufficient to invoke the presumption adumbrated under sec.113-B of Indian Evidence Act in order to throw the burden on the accused. The ingredients of Section 304-B I.P.C is harassment with a demand of dowry soon before the death of the deceased. The proximity between death of the deceased and the harassment as stated by the prosecution witnesses is the clinching aspect which would prove the guilt of the accused. P.W.1 categorically stated that his deceased daughter lived with A.1 for about one month happily that A.2 who is the mother of A.1 harassing and abusing his daughter for silly things that inspite of informing this to A.1 by his daughter he was not responding, A.2 was not providing sufficient food to his daughter and his daughter gave birth to a female child on 8.8.2008 at Jayasri hospital, Parvathipuram through cesarian operation, after delivery they took his daughter to their house, during the 5th month of baby, they sent his daughter and baby to the house of the accused, his daughter was provided with copper “T” as family planning to avoid further pregnancy as the daughter is born in cesarian operation. On the advice of

Dr.Padmaja the copper tea was removed from the deceased. While so, in February, 2011, the deceased conceived pregnancy for 2nd time, A.1 took his daughter to 42

Bilaspur in Chattisgarh for ascertaining the sex of the fetus. From Bilaspur directly

A.1 brought the deceased to his house. When the deceased was present in his house, the hospital authorities of Bilaspur had informed over phone that the 2nd baby is also female baby. A.1 had asked his daughter to go for abortion , his daughter did not agree for it and protested. In spite of it, A.1 had insisted for abortion and tried to convince them also. They did not agree for it. Due to compulsion made by A.1, they took the deceased to Dr.Padmaja and got the pregnancy aborted at Jayasri hospital, Parvathipuram by Dr.Padmaja. Two, Three months thereafter after keeping the deceased in their house, due to weakness and after recovery they sent her to the house of the accused. The deceased was complaining them all the accused used to harass for additional dowry of Rs.2 lakhs. He used to express his inability to pay that amount. They tried to convince the accused through their common relatives Gembali Mohanarao-P.W.5, Varanasi

Nageswararao (not cited), P.W.14 Sankaranarayana.

65.P.W.12 Sunkari Sai Kumar categorically stated that 2 and 3 months prior to the date of incident, P.W.1, 3 and one Netaji came to him at his house in

Bobbili and they informed him that the deceased was being harassed by her in laws-A.2 and A.3 and husband A.1. They had complained him that the accused are not providing proper food to the deceased. Except this, they did not complain anything against the accused. Immediately he took them to the house of the accused. At that time A.2 and A.3 and deceased were present in their house, A.1 had been on camp at that time. He alone went as elder as he is a caste elder, along with P.W.1 , 3 and Netaji, then he enquired the deceased about her grievances. The deceased came to him with smile and stated that he does not have any grievance and she further stated that her father was always insisting her to put up separate family with her husband. Subsequently, the deceased died in the house of the accused. In cross examination by Addl.P.P., he denied the suggestion that he did not state before the Police that about 2 ½ years back

P.Ws.1 and 3 came to him and complained that all the accused are harassing the 43 deceased physically and mentally, that immediately he along with their caste elders went to the house of the accused and a mediation was held that in the mediation they had admonished the accused and advised them to look after the deceased properly and sent away P.W.1 assuring safety to the deceased at the house of the accused, his 161 Cr.P.C statement marked as Ex.P.3. In cross examination by defence, he had stated before them that she does not have any grievance against the accused and her father always insisting her to put up separate family with her husband. In cross examination he further stated that in the meanwhile P.W.1 had advised the deceased to threaten the accused to jump from the upstairs so that the accused would come to her terms. Then he admonished P.W.1 only stating that he should not advise his daughter like that.

66.P.W.14 categorically stated that P.W.1 had telephoned him and informed him that the accused are not providing proper food to the deceased.

Immediately he had telephoned to A.2 and enquired about the complaint made by

P.W.1 saying that they were not providing proper food to the deceased and good milk to the daughter of the deceased. He further stated that A.2 had replied that they are providing the same food to the deceased which is consumed by them, that they are mixing a little water to the milk for feeding the baby from health point of view only but not harassing them. Thereafter, P.W.1 had been repeatedly complaining the same and was telling that he had enquired the accused. In the year 2010, himself and his wife came from Visakhaptnam to the house of the accused and stayed for one day in their house and during that period they questioned the deceased about the complaint made by her father but the deceased stated that she was not harassed. Thereafter, he advised both sides to live peacefully. The deceased died in the house of the accused in the year 2012.

In cross examination he stated that both P.W.1 and himself belong to Kurupam,

P.W.1 is his cousin brother. When they enquired the deceased in the house of the accused, she did not complain anything about the demand of additional dowry.

44

The deceased told him that her father was insisting her for separate family with her husband.

67.Though P.Ws.1 and 2 categorically stated that the deceased being harassed by the accused, no cogent and legally acceptable evidence adduced to believe that A.2 and A.3 harassed the deceased. It is specific case of P.Ws.1 to 3 and 8 that accused did not provide proper food to the deceased. But P.W.14 categorically stated that on the repeated complaints by P.W.1, he asked A.2, who is mother of A.1 with regard to the complaint made by P.W.1, A.2 stated to him that they provided the food to the deceased which consumed by them and keeping the health of the kid of the deceased and A.1, they used to mix water in the milk but they are not harassing the deceased. P.W.12 and 14 categorically stated that the deceased stated to them that she has no grievances and her father insisted her to put up separate residence with A.1 away from A.2 and A.3. Though P.W.12 turned hostile no oblique motive attributed against P.W.12 as to why he spoke against the prosecution. P.W.14 is the relative of accused and cousin brother of P.W.1.

68.It is the specific case of prosecution that the accused killed the deceased and thrown the dead body into the Well. In such a case the evidence of the Doctor having more significance to decide as to whether the death of the deceased is antemortem drowning or she killed by accused. P.W.13 who conducted

Postmortem stated that he issued preliminary report under Ex.P.4. After receipt of

RFSL report, he perused the same, as per RFSL report the above items 1 to 6 are analysed but poisonous substance is not found in all of them. He further stated that as per RFSL report No.2 nature of examination is microscopic examination, item Nos.1 to 3 are examined. Diatoms are detected in Item no.3. Diatoms are not detected in Item Nos.1 and 2. Basing on the above findings and Preliminary

Postmortem examination Ex.P.4, their team of doctors opined that the cause of death is due to asphyxia, due to antemortem drowning. It means at the time of drowning she was alive. Moreover, the diatoms are present in Item No.3 which supports the death of the deceased is asphyxia due to antemortem drowning.

45

Ex.P.5 is the final report. On 18.05.2013 he received questionnaire from P.W.20 and accordingly he answered two questions confirming their final opinion with regard to cause of death. Ex.P.6 is the questionnaire from P.W.20 along with his answer consisting of two sheets. The external injuries observed in Ex.P.4 are possible by applying external forces. The first injury mentioned in the internal findings is possible by applying external force like the case of throttling. In the case of homicidal death there is possibility of more injuries than in the case of suicidal death. Witness adds the injuries in the case of drowning are possible

before at the time of, or , after immersion. Before immersion, they may be of

accidental suicidal or homicidal origin and the manner of death cannot be interpreted from autopsy alone, the findings have to be viewed with the circumstances as per medical jurisprudence written by Dr.Narayana Reddy. He admitted as per the findings given the possibility of throttling is more as the injuries were observed on the neck externally and internally. He admitted the remaining external injuries are possible while throttling. In cross examination, after seeing the photos which were submitted by the police along with Charge sheet and out of them two photos show the alleged Well in the house of the accused.

The external injuries as deposed by him above are possible if a person falls in such a Well. He further admitted that those injuries are possible by coming into contact with the internal wall and pipe line in the well as shown in the photos. He denied the suggestion that in the case of throttling the injuries would be even on both sides. He did not find any nail marks on the dead body. The external injuries on the neck are possible when the body comes into contact with any object like pipeline in this case. The injury on the elbow as shown in the external injury No.6 is possible by coming into contact with a pipe line or any hard surface like wall. In re examination by Addl.P.P, he admitted that a person falls in such a Well there is possibility of sustaining head injury. He admitted that there is no head injury observed by them. The doctor who conducted Postmortem is not consistent in giving his findings, at one breath he admitted that as per the findings given by 46 them the possibility of throttling is more as injuries were observed on the neck externally and internally and in the cross examination by the defence, he stated that the external injuries as deposed by him above are possible if a person falls in such a Well. He further admitted that those injuries are possible by coming into contact with the internal wall and pipe line in the Well as shown in the photos.

P.W.6 categorically stated in his cross examination by the prosecutor that when he pulled two pipe lines which are placed in the Well by standing outside he found some obstruction.

69.P.W.7 categorically stated that P.W.6 had removed two pipes of the motor and found some obstruction in the well. P.W.9 categorically stated that he got into the Well and found the dead body of the deceased in the Well, then he brought the dead body outside the Well. Admittedly, there are pipelines are present in the Well. According to the Doctor, if a person fallen in the Well certainly she would contact pipe lines and thereby sustain injuries.

70.P.W.15 categorically stated that on 28.11.2012 when he was present in

MRO Office, Bobbili along with Ravi Apparao, Bobbili Police sent a word through their constable and asked them to come to the house of the accused, accordingly, himself and Ravi Apparao and Tahasildar reached there at 8.30 AM., and in their presence, the dead body of A.1 wife was brought out from the Well situated in the house of the accused and Police had observed the scene in their presence under

Ex.P.7. In cross examination he was shown the photos which were filed by the

Police along with Charge sheet. He admits that two photos out of them show the

Well in the house of the accused.

71.P.W.17 categorically stated that himself , P.W.15 went to house of the accused there they found Police officials and found Well in the house of the accused and two persons brought and through them the dead body was got removed from the Well. In his presence, the Police observed the scene and inquest was held in his presence and the panchayatdars unanimously opined that the deceased might have been killed or she might have fallen in the Well due to 47 depression. In cross examination he admitted that in the inquest report in col.No.7 at page No.2, of Ex.P.8 it is mentioned that they found a laceration on the right elbow joint. He further admitted in Col.No.14 of Ex.P.8 it is mentioned that it is decided to hand over the dead body of the accused since the father of the deceased and his relatives refused to conduct funerals of the dead body. From it is clear that the father of the deceased P.W.1 refused to take the dead body along with him after completion of inquest for cremation. Though P.W.1 in his chief examination stated that as per custom the husband has to perform the obsequies.

It is surprised to note that when he lodged report against A.1 how he could perform obsequies of the deceased and moreover the daughter of the deceased and A.1 with the accused but not with P.W.1.

72.According to the evidence of P.W.13, the opinion is not in a conclusive nature. At one breath he stated that injuries are possible in case of throttling and another breath he stated that the injuries are possible when the accused fallen in the Well and contacted the pipe lines, but in inquest report only one injury on the right elbow is shown as per the evidence of P.W.17.

73.It is settled law that when two views are possible, the view always favourable to the accused in view of the decision reported in AIR 1973 S.C.2773

Kali Ram Vs. State of Himachal Pradesh wherein it was held that:

“Another golden threat which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have benefit of that doubt.” In view of the decision of the Hon’ble Apex Court and taking into consideration the evidence of the Doctor that the deceased died due to asphyxia due to ante mortem drowning, it means at the time of drowning she was alive.

48

74.P.W.2 categorically stated that in the ground floor of the house of the accused a shop is situated, in the first floor A.2 and A.2 are residing, in the 2nd floor

A.1 used to reside along with the deceased. Admittedly, the deceased and A.1 used to reside in the 2nd floor and A.2 and A.3 are residing in the 1st floor. As per the evidence of P.W.11 and D.W.1/L.W.14 on the intervening night of 27/28.11.2012 A.1 telephoned him at about 1 A.M., and informed that his wife was not found and he asked him to come to his house. Accordingly, he went to the house of the accused, in the meanwhile D.W.1 /L.W.14 Sunkari Gangaraju came there, all of them searched for the deceased in the house of the accused. D.W.1 had telephoned to P.W.1 and informed him that the deceased was not found in the house of the accused and he enquired that whether the deceased came to the house of P.W.1 in the meanwhile they found a candle, match box, mobile stand on a pot by the side of the well of the accused, they suspected the deceased might have fallen in the well.

75.P.W.17 who conducted inquest under Ex.P.8 and in whose presence the

Police observed the scene under Ex.P.7 categorically stated that the dead body was of a female dead body , aged about 26 years, Police had observed the Well , they found a cell phone stand, a burnt candle and match box.

76.P.W.18 Inspector of Police categorically stated that on 28.11.2012 at about 7 A.M., he was informed by P.W.16 about the registration of F.I.R , then he went to Bobbili Police Station and sent requisition to P.W.17. Immediately along with his staff P.W.17 and mediators P.W.15 and Maripi Ravi Apparao went to the scene of offence to the house of the accused and observed the scene in the presence of mediators and P.W.17, he got the dead body removed from the Well by

P.W.6 and others. He found cell phone stand, burnt candle and match box on a ‘reku’ by the side of the Well on a tank. Those objects were not produced before the Court. The prosecution since beginning suspect the role of the investigating officer but the prosecution fails to remove the doubt from mind of Court as to how, 49 match box, half burnt candle and cell phone stand on the “reku” situated by the side of the well.

77.P.W.18 to 20 are the Police officials. Their evidence is also with regard to the Investigation. Though in the Charge sheet the name of L.W.13 is cited, he was not examined by the prosecution. But the defence examined him as D.W.1. He categorically stated that on the date of incident himself and A.1 went to second show Cinema Dhamarakum and after watching the cinema, they returned back to the house of A.1 at 12-45 mid night and he dropped him at his house and went to his house. At about 1 A.M., A.1 telephoned him stating that his wife was not found in the bed room and found only his daughter viz., Rishita in the bed room,

Arunakumari is wife of A.1. By that time A.2 and A.3 were sleeping in their bed room in the middle portion of the house. All of them got searched for the wife of

A.1, immediately he telephoned to P.W.1, who is the father of the deceased Aruna

Kumari and informed him that the deceased was not found in the house. They all found there match sticks which were half burnt, half burnt candle and cell phone stand at the Well. They all suspected that the deceased might have fallen into the

Well. P.W.9 removed the dead body from the Well. Again he telephoned to P.W.1 and informed him that the dead body of the deceased was found in the Well. He categorically stated that A.1 went to Police Station, Bobbili and gave a complaint to the Police. Immediately police rushed to the scene. To his knowledge there was no harassment to the deceased by the accused or any disputes or for any

additional dowry. The dead body of the deceased was not removed from the Well

till the police arrived to the scene of offence. A.1 is staying in the upper portion of his house, A.2 and A.3 are staying in the middle portion of the house and shop and

Well are situated on the ground floor.

78.It is the contention of the prosecution that A.1 did not give report to the police till P.W.1 arrived to his house. But D.W.1 stated that A.1 went to Police

Station and lodged report. However, the police cited L.W.26 Ch.Nageswararao,

P.C.1516 of Bobbili Police Station to speak about his receiving phone call from A.1 50 regarding missing of the deceased and his informing the same to in charge HC 1028, S.I of Police and Inspector of Police and etc fact. But e was given up for the reasons best known to the prosecution.

79.Absolutely, there is no evidence with regard to harassment of

additional dowry by A.2 and A.3. In fact the deceased died in the house of A.1. As

per the evidence of P.W.2 and D.W.1 , A.2 and A.3 are residing in the middle of the house i.e, 1st floor and A.1 and deceased were residing in the 2nd floor. The husband has to explain as to why his wife died and under what circumstances she died. A.1 failed to explain the reason for the death of the deceased. It appears from the evidence that when the A.1 went to Cinema along with D.W.1 as stated by D.W.1, the deceased might have with a depression mood she died. But the fact remains that the deceased died in the house of A.1. The prosecution miserably failed to prove the case against A.1 to A.3 for the offences punishable under

Sections 3,4 and 6(2) of Dowry Prohibition Act and failed to prove the offence against A.2 and A.3 for the offences under sec.304-B I.P.C. The prosecution proved the guilt of the accused against A.1 for the offence under sec.304-B I.P.C.

80.In the result, accused 1 to 3 are found not guilty for the offences under Sections 3,4 and 6(2) of Dowry Prohibition Act, and accordingly, they are acquitted under Section 235(1) Cr.P.C. A.2 and A.3 are found not guilty for the offence under sec.304-B I.P.C and accordingly, they are acquitted under sec.235(1)

Cr.P.C. A.1 is found guilty for the offence under sec.304-B I.P.C and accordingly he is convicted under sec.235(2) Cr.P.C.

Sd/- B.Srinivasa Rao,

II Addl.District & Sessions Judge, Parvathipuram.

81. When questioned A.1 with regard to quantum of sentence he stated that ( in telugu): He has old aged parents. He has to look after everything to his daughter Rishitha and they all depending on me.

51

82.After pronouncing the Judgment, the accused No.1 is heard with regard to sentence to be imposed against him. A.1 stated that he has got old parents and daughter viz., Rishitha, he has to look after the welfare and well-being of his daughter, as well as his old parents and all of them are depending upon him. This is not rarest of rare offence and I do not find any circumstances to impose death penalty in this case. The offence took place due to the depression of the deceased and quarrels between the deceased and A.1. In these circumstances, A.1 is sentenced to suffer Rigorous imprisonment for Seven years and to pay a fine of

RS.5,000/- (Rupees Five Thousand only), in default to suffer S.I for six months for the offence under sec.304-B IPC. (The remand period of if any shall be given set of under sec.428 Cr.P.C.)

It is an admitted case that the daughter of the deceased and A.1 viz., Rishita is living with the accused and the M.Os 1 to 6 shall be returned to the daughter of the deceased and A.1 as it is the property of the deceased. Since the daughter of the deceased is minor, the M.Os shall be returned to the grandfather i.e, A.3 and directed him that the property shall be given to the daughter of the deceased and

A.1 viz., Rishita

Accused 2 and 3 are directed to execute bond for Rs.10,000/- (Rupees

Ten thousand only) under Section 437-A Cr.P.C., for enabling the appellate court to secure the presence of the accused 2 and 3 before the appellate Court, in the event of preferring appeal against the present judgment.

Typed to my dictation, by the Stenographer Gr.II (on deputation) corrected and pronounced by me in open court on this the 20th day of February, 2020.

Sd/- B.Srinivasa Rao,

II ADDL.DISTRICT & SESSIONS JUDGE,

PARVATIPURAM.

52

Appendix of Evidence Witnesses Examined

For Prosecution For Defence: P.W.1: Botu VenkataramanaD.W.1: G.Aravind Kumar. P.W.2: Botu Ramakoteswari P.W.3: B.Ramesh Kumar P.W.4: V.Manmadha Rao P.W.5: Gembali Mohanarao P.W.6: G.Polayya P.W.7: K.Venkanna P.W.8: Botu Uday Kumar P.W.9: Bogadi Chenchayya P.W.10: M.Ganesh P.W.11: K.Muralikrishna P.W.12: Sunkari Sai Ramesh P.W.13: Dr.G.Sesibushanarao P.W.14: B.P.Sankarayanamurthy P.W.15: T.S.N.Sarma P.W.16: T.Sanyasirao P.W.17: B.Sudarshana Dora P.W.18: L.Rajeswararao, Inspector of Police. P.W.19: N.Sridevi Rao, Sub Divisional Police Officer. P.W.20: T.Phalgunarao, Sub Divisional Police Officer.

Documents Marked For Prosecution: Ex.P.1: Report Ex.P.2: 14 photos with CD Ex.P.3: 161(3) Cr.P.C statement of P.W.12 Ex.P.4: Preliminary report Ex.P.5: Final report Ex.P.6: Questionnaire Ex.P.7: Scene observation report Ex.P.8: Inquest report Ex.P.9: Original F.I.R Ex.P.10: Rough sketch Ex.P.11: Alteration memo Ex.P.12: RFSL report Ex.P.13: Questionnaire with requisition.

For Defence: Nil 53

Material objects Marked

M.O.1: Gold Pustelutadu with six kasulu, pusthe M.O.2: Two gold kankanams (which are cut) M.O.3: Six cut golden bangles M.O.4: Pair of gold ear studs M.O.5: Pair of silver anklets M.O.6: Three pairs of toe rings.

Sd/- B.Srinivasa Rao,

II ADDL.DISTRICT & SESSIONS JUDGE,

PARVATIPURAM.

54

1

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE AT

PARVATHIPURAM

PRESENT: Sri B.Srinivasa Rao, II Additional District Judge, Parvathipuram.

Thursday, the 2nd day of May, 2019.

APPEAL SUIT NO. 27/2017

Between:­ 1.Marrapu Rupavathi @ Mahalakshmi 2.Marrapu Narayana Rao . Appellants/Defendants

A n d:­

Marrapu Narayana Swamy

..Respondent/Plaintiff. 

(ON APPEALAGAINST THE DECREE AND JUDGMENTIN O.S.NO.26/2016 DATED 10.04.2017ONTHEFILEOFPRINCIPAL JUNIOR CIVIL JUDGE,

PARVATHIPURAM)

Between:­

Marrapu Narayana Swamy

... Plaintiff

A n d:­ 1.Marrapu Rupavathi @ Mahalakshmi 2.Marrapu Narayana Rao

... Defendants

This appeal is coming on 18.04.2019 for final hearing before me in the presence of Sri P.Rajeswara Rao, Advocate for appellants/defendants and of Sri G.K.Maro, Advocate for the respondent/Plaintiff and having stood over for consideration till this day, this Court delivered the following :

JUDGEMENT

1. This appeal is preferred against the Decree and Judgment dated 10.04.2017 in O.S.No.26/2016 on the file of Principal Junior Civil Judge's

Court, Parvathipuram, filed by the unsuccessful defendants.

2

2.The suit is filed by the plaintiff before the lower court in

O.S.26/2016 for permanent injunction restraining the defendants and

their men from ever interfering with plaintiff’s possession and enjoyment of the Plaint schedule property . 

3.For convenience sake, the parties herein be referred to as arrayed in the suit before the lower Court.

4.The plaintiff’s case before the Lower Court is that: One Marrapu

Saminaidu possessed ABCD marked Ac.0­21 cents of wet land pertaining to S.No.245/2 at Neelamambapuram, he got four sons viz., Marrapu

Suryanarayana, Marrapu Lakshmunaidu, Marrapu Narayanaswamy and

Marrapu Gurumurthy. The father of plaintiff died in the year 1989, brother of plaintiff viz., Gurumurthy died in the year 2001 lweaving behind him his sons viz., Marrapu Mahesh, Marrapu Venkataramana

Murthy and Satyanarayana, after death of Marrapu Gurumurthy, the family members constructed a “gindam or samadhi” of Gurumurthy, arranged in the North east portion of the Plaint schedule property shown in blank colour in the plan. The husband of 1st defendant died some time back, thereafter the son of late.Saminaidu succeeded ABCD mentioned

Ac.0­21 cents of alnd and also to the Ac.0­04 cents of land shown to the

West of ABCD land in the rough plan. For some time the plaintiff and

Marrapu Suryanarayana and 1st defendant kept joint of Ac.0­21 cents of land shown as ABCD in the rough plan and used to tether their cattle therein. The sons of late Gurumurthy viz., Marrapu Venkataramana

Murthy and Satyanarayana, were given by the other heirs of land Ac.0­04 cents situated to the West of ABCD mentioned land, Ac.0­21 cents of land pertaining to S.No.245/2 and they were satisfied with that as their share and those two brothers are enjoying their Ac.0­04 cents and constructed 3 foundation, tethering their cattle therein, so Ac.0­21 cents of land in

S.No.245/2 belonged to the plaintiff and 1st defendant and also co sharer viz., Marrapu Suryanarayana in three equal shares. While so, the plaintiff and 1st defendant and Marrapu Suryanarayana partitioned Ac.0­ 21 cents of and pertaining to S.No.245/2 about 15 years back in the presence of middlemen, in that partition the plaintiff got Northern portion

Ac.0­07 cents of land shown as ABEF in the plaint and also shown in the plaint schedule towards his 1/3rd share, 1st defendant got towards her share and of Ac.0­07 cents share as EFGH in the attached plan and also shown as EFGH in the plaint plan hereunder and Marrapu

Suryanarayana got towards his share the remaining Ac.0­07 cents of land shown as CDGH in the plaint plan. Thus they got each Ac.0­07 cents divided shares out of an extent of Ac.0­21 cents total land covered under

S.No.245/2 and they are in possession and enjoyment of their respective shares of Ac.0­07 cents each. Thus each of them got their respective shares from West to East, to the East of the ABCD land there is adjacent road on the bund for ingress and egress. Towards Northern portion allotted to the plaintiff’s share of AC.0­07 cents and the Gundam or

Samadhi in memory of late Gurumurthy is situated shown in black colour in the rough plan. Thus, the ABEF marked portion shown in the rough plan Ac.0­07 cents of land was allotted to the plaintiff. The EFGH marked portion shown in the plaint plan Ac.0­07 cents is the divided share of the 1st defendant i.e. Marrapu Rupavathi. The GHCD marked portion shown in the rough plan Ac.0­07 cents is the share of Marrapu Suryanarayana, as their divided shares of Ac.0­07 cents each since about last 15 years.

While so, the plaintiff came to know that recently 1st defendant is trying to sell away the plaintiff’s allotted share of Ac.0­07 cents shown as 4

ABEF in the plaint plan including Gurumurthy’s Gundam or Samadhi, without any valid right therein and the plaintiff came to know that D.2 is trying to purchase plaintiff’s allotted ABEF land in the plaint plan from 1st defendant and making attempts and proclaiming in the village to that effect. Hence this suit. 

5.The defendant No.1 filed his written statement, the same was adopted by D.2 by filing a memo, denying the allegations made in the plaint, and contended that: the plaint plan and schedule attached to the plaint are wrong. Marrapu Saminaidu has got only Ac.0­21 cents of land in S.No.245/2 and Ac.0­04 cents of land shown in the plaint said to have been allotted to the share of children of Gurumurthy is also the part of said Ac.0­21 cents of land, but it is not a separate AC.0­04 cents of land apart from Ac.0­21 cents of land as mentioned in the plaint.

Neelamambapuram village is a small hamlet village, the said village is having only one street and the said road is lying from East to West. All the houses in the said village and in the said street which are situated on either side of the said road are facing the said road. There is no road on the East of the suit property and it is only a field bund in a width of 1 ½ feet leading from the road to the fields of the villagers and it is highly impossible to fix the entrances of the facing of the sites towards the said field bund instead of the road by giving a go bye to the custom and practice of the village. Ac.0­21 cents of land of Saminaidu is situated within the human habitation of the village and as such the said land is being used as a vacant site. The said Ac.0­21 cents of land was originally partitioned among 3 sons of Saminaidu and each got AC.0­07 cents of land excluding the sons of deceased Gurumurthy by taking into consideration certain factors of land and said site was divided into three 5 parts from North to South, but not from East to West. But, subsequently the sons of Gurumurty were allotted Ac.0­04 cents of land towards

Western end and to his East Suryanarayana was allotted Ac.0.5 ½ cents of land and to his East the plaintiff was allotted with Ac.0.5 ½ cents and to his East and to the West of the field bund. D.1 was allotted Ac.0­06 cents of land. The plaintiff raised a tin roof shed towards Northern side in a part of his site abutting main road for tethering his cattle land Marrapu

Suryanarayana raised a cattle shed in a part of his site abutting main road. The sons of Gurumurthy, particularly, Venkat Ramana raised a stone foundation in the site allotted to their share in the back side and the front portion abutting main road was allotted to Satyanarayana. So, it is very clear from the existence of the sites itself that AC.0­21 cents of site was divided into four shares from North to South, but not from East to

West and the plaint plan is misleading. The husband of 1st defendant died long back and she has got only one daughter and she is eking out her livelihood by doing coolie works only. D.1 is in dire need of money as such she intend to sell away the site allotted to her share and the plaintiff asked D.1 to sell away the same to him, so that it will help him to construct a big house, but the plaintiff offered a very cheap rate, when

D.1 refused to do so,l the plaintiff filed the suit. The 2nd defendant came forward to purchase the site by offering a better price which became an eyesore to the plaintiff as such he filed this suit bu furnishing wrong particulars and wrong boundaries. There are only 25 to 30 houses in the village. The suit for injunction without seeking declaration of title is not maintainable and liable to be dismissed.

6

6.Basing on the pleadings, the following issues are settled for trial

before the lower court.

1. Whether the plaintiff is in possession and enjoyment of schedule property as on the date of suit?

2. Whether the plaintiff is entitled for permanent injunction against the defendants?

3. To what relief?

7.Before the Lower Court, on behalf of the plaintiff, Pws.1 and 2 are examined and Exs.A.1 to A.6 are marked. On behalf of the defendants,

D.Ws.1 to 3 are examined and Ex.B.1 is marked.

8.After appreciating the oral and documentary evidence on record, the lower court answered the issues in favour of the plaintiff and decreed the suit with costs. Hence the appeal by the unsuccessful defendants .

9.In the grounds of appeal, the defendants alleged that the judgment and decree of the lower court is contrary of law, weight of evidence and probabilities of the case. The Trial Court ought to have seen that the defendants have denied the boundaries and the schedule of the plaint and the plaint plan and the lower court ought to have seen that the plaintiff failed to prove the boundaries to the Plaint schedule property.

The lower court ought to have seen that Neelamambapuram is a small hamlet and the said village is having only one street and the said rod is lying from East to West, all the houses in the said village situated on either side of the said road are facing the road and there is no road on the

East of the suit schedule property and it is only a field bund in a width of 1 ½ feet leading from the Road to the fields of the villagers and it is the practice and custom in the village.

7

The lower court having observed in its Judgment in last lines of para 11 and held that all the houses in the village passing towards north to south and there is a shed facing on the northern side belong to the plaintiff and the road is leading from East to West, decreed the suit of the plaintiff is not correct. The lower court ought to have seen that the plaintiff is claiming that Ac.0­21 cents of property is divided as three shares lying from East to West having entrances tot he North towards field bund and the 1st defendant is contending that the site was partitioned into four shares and the shares are lying from North south having entrances to the Main road. The lower court ought to have seen that the plaintiff filed the photographs of the part of suit property only, but not depicting the entire property and the lower court also did not consider the photographs filed by the 1st defendant which discloses the entire suit property. 

The observation of the lower court that the 1st defendant did not take any commission to localize the schedule property is beyond the comprehension and against the established principles of law. The lower court ought to have seen that when the defendants are denied the very lying of the property from East to West as contended by the plaintiff, it is for the plaintiff to prove his contention by placing cogent evidence and the said burden cannot be shifted to the defendants. 

The observation of the lower court that the Exs.A.1 and A.2 proves the title, possession of the plaintiff over the suit schedule property is beyond the comprehension of a common man because the dispute is not as to the title, but only as to the lying of the properties whether from East to West or South to North. The lower court ought to have seen that the pattadar pass book and title deed will not contain any boundaries and the 8 plaintiff in view of the specific contention of the defendants did not place any evidence to prove the boundaries of the title allotted to the share of the plaintiff.

The lower court also did not consider that Marrapu Sambinaidu has got only Ac.0­21 cents of land in S.No.245/2 and Ac.0­04 cents of land shown in the plaint said to have been allotted to the share of children of Gurumurthy is also the part of said Ac.0­21 cents of land but it is not a separate Ac.0­04 cents of land apart from the AC.0­21 cents of land as mentioned in the plaint and the said allegation is mentioned in the plaint in a scheming manner to grab the property of the 1st Defendant.

The lower court also not considered the fact that AC.0­21 cents of land was originally partitioned among 3 sons of Sambinaidu and each got

AC.0­07 cents of land exclusion the sons of deceased Ganapathirao by taking into consideration of certain other facts and the said site was divided into three parts from North to South, but not from East to West and subsequently the sons of Gurumurthy were allotted Ac.0­04 cents of land towards western end and as such the extent in the three sharers was decreased and Satyanarayana allotted Ac.0.5 ½ cents and to his east the plaintiff was allotted Ac.0.5 ½ cents and the D.1 was allotted Ac.0.06 cents to the east of the plaintiff and West of field bund and since Gundam was situated in the site allotted to her, she was given with Ac.0.06 cents of site.

The lower court ought to have seen that all the three brothers are having sheds abutting main Road and if really the lying of site is from

East to West and the plaintiff was allotted the site as claimed in the plaint, it is not possible for all the brothers to have sheds abutting main road and and prayed to allow the appeal. 

9

10.Arguments heard from both sides. 

11.Now, the point for consideration in this Appeal is (I)Whether the appellants are entitled for setting aside the decree and judgment in O.S. No.26/2016, dt.10.04.2017 passed by the learned Principal Junior Civil Judge, Parvathipuram ?

POINT :

12.The learned counsel for the appellants contended that the judgment and decree of the lower court is contrary of law, weight of evidence and probabilities of the case. The Trial Court ought to have seen that the defendants have denied the boundaries and the schedule of the plaint and the plaint plan and the lower court ought to have seen that the plaintiff failed to prove the boundaries to the Plaint schedule property.

The lower court ought to have seen that Neelamambapuram is a small hamlet and the said village is having only one street and the said rod is lying from East to West, all the houses in the said village situated on either side of the said road are facing the road and there is no road on the

East of the suit schedule property and it is only a field bund in a width of 1 ½ feet leading from the Road to the fields of the villagers and it is the practice and custom in the village. The lower court having observed in its

Judgment in last lines of para 11 and held that all the houses in the village passing towards north to south and there is a shed facing on the northern side belong to the plaintiff and the road is leading from East to

West, decreed the suit of the plaintiff is not correct. The lower court ought to have seen that the plaintiff is claiming that Ac.0­21 cents of property is divided as three shares lying from East to West having entrances tot he

North towards field bund and the 1st defendant is contending that the site was partitioned into four shares and the shares are lying from North 10 south having entrances to the Main road. The observation of the lower court that the Exs.A.1 and A.2 proves the title, possession of the plaintiff over the suit schedule property is beyond the comprehension of a common man because the dispute is not as to the title, but only as to the lying of the properties whether from East to West or South to North. The lower court ought to have seen that the pattadar pass book and title deed will not contain any boundaries and the plaintiff in view of the specific contention of the defendants did not place any evidence to prove the boundaries of the title allotted to the share of the plaintiff.

The lower court also did not consider that Marrapu Sambinaidu has got only Ac.0­21 cents of land in S.No.245/2 and Ac.0­04 cents of land shown in the plaint said to have been allotted to the share of children of Gurumurthy is also the part of said Ac.0­21 cents of land but it is not a separate Ac.0­04 cents of land apart from the AC.0­21 cents of land as mentioned in the plaint and the said allegation is mentioned in the plaint in a scheming manner to grab the property of the 1st Defendant.

The lower court also not considered the fact that AC.0­21 cents of land was originally partitioned among 3 sons of Sambinaidu and each got

AC.0­07 cents of land exclusion the sons of deceased Ganapathirao by taking into consideration of certain other facts and the said site was divided into three parts from North to South, but not from East to West and subsequently the sons of Gurumurthy were allotted Ac.0­04 cents of land towards western end and as such the extent in the three sharers was decreased and Satyanarayana allotted Ac.0.5 ½ cents and to his east the plaintiff was allotted Ac.0.5 ½ cents and the D.1 was allotted Ac.0.06 cents to the east of the plaintiff and West of field bund and since Gundam was situated in the site allotted to her, she was given with Ac.0.06 cents 11 of site. The lower court ought to have seen that all the three brothers are having sheds abutting main Road and if really the lying of site is from

East to West and the plaintiff was allotted the site as claimed in the plaint, it is not possible for all the brothers to have sheds abutting main road and and prayed to allow the appeal. 

13.Per contra, the learned counsel for the respondent contended that the the learned Trial judge has appreciated the evidence and documents on right perspective and dismissed the suit and prayed to dismiss the appeal with costs. 

14.It is the case of the plaintiff that 1st defendant, Marrapu

Suryanarayana and plaintiff partitioned Ac.0­21 cents of land pertaining to S.No.245/2 about 15 years back, in the said partition he got Northern portion of Ac.0­07 cents of land showed as ABEF in the plaint plan towards his share, D.1 got Ac.0­07 cents share as shown EFGH in the plaint plan, Marrapu Suryanarayana got remaining Ac.0­07 cents of land showed as CDGH in the plaint plan, they are enjoying their respective shares from the date of partition. D.1 is trying to sell away his share to 2nd defendant without any right, hence the plaintiff filed this suit.

15.On the other hand, the case of the defendants is that Ac.0­21 cents of land of Saminaidu is situated within the habitation village as such the said land is being used as vacant site, partitioned among three sons of Saminaidu, each got Ac.0­07 cents of land excluding the sons of deceased Gurumurthy, the said site is divided into 3 parts from North­

South, but not from East to West, subsequently the sons of Gurumurthy were alloted Ac.0­04 cents of land towards Western end and to his East

Suryanarayana was allotted 5 ½ cents of land and to his East, the 12 plaintiff was allotted 5 ½ cents of land and to his east and to the West of field bund the defendant was allotted with Ac.0­08 cents of land. The defendants are denying the possession of the plaintiff over the suit schedule property. 

16.A perusal of Exs.A.1 to A.3 pattadar pass book, title deed and land revenue receipts establish the possession of the plaintiff over the

Plaint schedule property. D.W.1 in the cross examination categorically admitted that the plaintiff and defendants partitioned the property of their father Saminaidu after his death, and they are enjoying their respective shares, mutated their names in Revenue records . Gurumurthy

Naidu pre­deceased to her husband, there is no disputes after partition, there is a cement road from cementry to Cheruvu gattu, she is paying tax to the share of her husband, she has not filed tax receipt into Court, cementry is adjacent to Northern side road, the plaintiff recently constructed house, raised shed 20 years back near cementry, cattle shed at a distance of 10 feet to the road. Thus it is clear that D.W.1 admitted partition and mutation of names in the revenue records. He also admitted that C.C road on the northern side and a road on bund on

Eastern side, gundam and cattle shed in the share of plaintiff.

17.The evidence of D.Ws.2 and 3 also clearly establishes the possession of the plaintiff over the Plaint schedule property.

18.The plaintiff categorically established his possession and enjoyment over the Plaint schedule property as on the date of filing of the suit. Whereas the defendants failed to prove their possession over the

Plaint schedule property. The defendants though denied the boundaries and measurements, but did not make any efforts to prove it either through oral or documentary evidence. Thus there is prima facie case and 13 balance of convenience in favour of the plaintiff and if injunction is not granted, the plaintiff will suffer irreparable loss. Accordingly, the Trial

Court rightly granted injunction in favour of the plaintiff, appreciated the oral and documentary evidence on right perspective and decreed the suit, which needs no interference from this Court’s end. 

19. In the result the appeal is dismissed with costs by confirming the decree and Judgment passed by the learned Principal Junior Civil

Judge, Parvathipuram in O.S.No.26/2016, dt.10.04.2017.

Typed to my dictation, corrected and pronounced by me in open Court, this the 2nd day of May, 2019.

Sd/­ B.Srinivasa Rao,

II ADDITIONAL DISTRICT JUDGE,

PARVATHIPURAM. 

APPENDIX OF EVIDENCE

No oral or documentary evidence is adduced on either side.

Sd/­ B.Srinivasa Rao,

II ADDITIONAL DISTRICT JUDGE,

PARVATHIPURAM. 

14

1

BEFORE THE MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL -CUM- II

ADDITIONAL DISTRICT JUDGE, PARVATHIPURAM

Present: Sri B.Srinivasa Rao, Chairman, Motor Vehicles Accidents Claims Tribunal -Cum- II Additional District Judge, Parvathipuram

Monday, the 24th day of February, 2020

M.V.O.P.No.73/2018

Between:

1.Smt.Yejju Mahalakshmi, W/o late.Triandha Dora, Hindu, aged about 47 years, Household duties, R/o D.No.2-184, Yerakalapeta, Gavarampeta,

Jiyyammavalasa village and Mandal. Vizianagaram District.

2. Yejju Chandra Dora, S/o late. Trinadha Dora, Hindu, aged about 24 years, rest-do-

3. Bonu Santhoshi, D/o late. Trinadha Dora, Hindu, aged about 27 years, rest- do-.

...Petitioners

A n d:

1. Karri Srinu, S/o Venkataramana, Hindu, aged about 24 years, Driver of luggage van bearing No.AP35V 8243, Chandrasekhararajupuram village, Jiyyammavalasa Mandal. Vizianagaram District.

2. Dwarapureddi Venkata Tirupathi Rao, S/o late. Balaramaswamynaidu, Hindu, owner of luggage van bearing No.AP35V 8243, R/o Karshaka Maharshi hospital, D.No.13-1-5, Belagam street, Parvathipuram. Vizianagaram District.

3. United India Insurance Company Ltd., reptd by its Divisional Manager, Srikakulam.

...Respondents

DATE OF ACCIDENT: -06.12.2015

INSURANCE POLICY VALID : - Valid from 19.11.2015 to mid night of 18.11.2016

This petition coming on 10.01.2020 for final hearing before me in the presence of Sri G.Rama Mohana Rao, Advocate for petitioner, R.1 and 2 remained ex parte, and Sri G.Venkata Rao, Advocate for R.3, and having stood over for consideration till this day, this Court delivered the following:

2

O R D E R

This petition is filed by the petitioners under Section 166 of Motor

Vehicles Act and R/w 455 of M.V. Rules for grant of compensation of

Rs.3,00,000/- for the injuries and subsequent result of death of deceased-

Yejju Trinadha Dora in a motor accident that occurred on 06.12.2015 at about 2 P.M., near Chinthalabelagam junction main road, Jiyyammavalasa Mandal.

Vizianagaram District.

2.The petitioners are residents of D.No.2-184, Yerakalapeta,

Gavarampeta, Jiyyammavalasa Mandal of Vizianagaram District. The 1st petitioner is wife, 2nd petitioner is son and 3rd petitioner is married daughter of deceased Yejju Trinadha Dora. The 1st respondent is the driver and 2nd respondent is owner of the van bearing No.AP35V 8243 and 3rd respondent is insurance company with which the vehicle is insured with policy

No.1504023115P109609188 and it is valid from 19.11.2015 to 18.11.2016.

On 06.12.2015 at about 2 P.M., when the deceased-Trinadhadora was walking on the road near Chintalabelagam junction Main road,

Jiyyammavalasa Mandal, at the time, the 1st respondent drove the van bearing No.AP35V 8243 in rash and negligent manner with high speed and without blowing horn came behind him and dashed him, as a result, the said

Trinadhadora fell down on the road and received bleeding injuries on his back side of the head. Immediately, he was taken to Area hospital, Parvathipuram, where he was given first aid and thereafter he was shifted to K.G.H,

Visakhapatnam where he underwent treatment as an inpatient for some time. The deceased was bedridden till 1st August, 2017 and died due to injuries. He was quite hale and healthy by the date of accident and used to work as labourer and earn Rs.300/- per day.

The deceased was aged about 50 years and he was quite hale and healthy by the date of accident and used to work as labourer and earn

Rs.300/- per day. The 1st petitioner lost her husband in the ghostly accident.

3

The petitioners incurred Rs.25,000/- towards transport, medical and

Rs.15,000/- towards funeral expenses. Hence, this Petition.

3. The 1st and 2nd respondents remained exparte. The 3rd respondent/Insurance Company filed it’s counter, denying the manner of accident, age of the claimant and the earning capacity of the claimant as claimed in the claim petition.

It is contended that the 1st respondent is not having valid and effective driving license to drive the van at the time of accident. The entire treatment and medicines are free of cost under Arogya sri scheme and the petitioners did not file any medical prescription or bills along with the petition to prove the case. It is not admitted that the 2nd respondent was holding valid fitness certificate etc., to his vehicle at the material time. The 2nd respondent has not complied the mandatory provision under sec.134© of

M.V.Act. The S.H.O concerned has not complied the mandatory provision under sec.158(6) of M.V.Act. The interest and compensation claimed is excessive and the petition is liable to be dismissed.

4.The respondent No.3/Insurance company filed petition under sec.170 of M.V.Act and the same is allowed.

5.Basing on the above pleadings, the following issues have been settled for trial:

1. Whether the accident occurred resulting death

of the deceased-Yejju Trinadha Dora is due to

rash and negligent driving of the van bearing

No.AP35V 8243 by its driver-R.1?

2. Whether the petitioner is entitled for

compensation, if so, at what quantum and

from whom?

3. To what relief ?

4

6.On behalf of the claimants P.Ws.1 and 2 are examined and

Exs.A.1 to A.6 are marked. No oral evidence is adduced on behalf of the respondents but Ex.B.1 is marked by consent.

7.Heard both sides.

8.ISSUE NO. 1 :- “Whether the accident occurred resulting death of

the deceased Yejju Trinadha Dora is due to rash and negligent

driving of the van bearing No.AP35V 8243 by its driver-R.1?

9.P.W.1 the wife of the deceased-Yejju Trinadha Dora, clearly and categorically stated that this accident occurred due to rash and negligent driving of the 1st respondent, she further deposed that on 06.12.2015 at about 2 p.m., when her husband Yajju Triandhadora was walking on the road near Chinthalabelagam junction main road, Jiyyammavalasa Mandal, at the time the 1st respondent drove the van bearing No.AP35V 8243 in rash and negligent manner and with high speed, without blowing horn, came behind her husband, dashed him thereby her husband Trinadhadora fell down on the road, received bleeding injuries on the back side of his head, immediately he was taken to Area hospital, Parvathipuram where he was given first aid and thereafter shifted to Visakhaptnam where her husband was given first aid and thereafter shifted to Visakhaptnam where her husband underwent treatment as in patient for some time, her husband bed ridden till 1st August, 2017 and died due to injuries. Ex.A.1 F.I.R., was registered basing on the statement of son of Traindha Dora, on the date of accident itself. It cannot be said that with an intention to claim compensation he made allegations against the 1st respondent as it was recorded immediately after the accident.

The averments made in Ex.A.1 fully supports the evidence of P.Ws.1 and 2 in all material particulars. I do not find any material to disbelieve the evidence of P.Ws.1 and 2 and the contents of Ex.A.1.

5

The respondents did not adduce any rebuttal evidence to disprove the evidence of P.Ws.1 and 2 and the contents of Ex.A.1.

The proper person to speak about the manner of accident is the driver of the offending vehicle. He is not examined, thereby the respondents failed to discharge the burden shifted to it.

The petitioners by examining P.W.1 and by also examining P.W.2 and by marking Exs.A.1, A.3 and A.4 proved that this accident was due to rash and negligent driving of the 1st respondent and not due to any mechanical defects of the offending vehicle. For the above reasons, this issue is answered holding that this accident occurred due to rash and negligent driving of the driver of the van baring No.AP35V 8243 i.e, the 1st respondent.

10.ISSUE NO. 2: -

“ Whether the petitioner is entitled for compensation, if so, at

what quantum and from whom? ”

The petitioners examined the 1st petitioner- wife of the deceased as

P.W.1. The petitioner claimed Rs.3 lakhs under various heads. From the evidence and the documents that are filed under Exs.A.1 to A.6, it is now necessary to consider the quantum of compensation to which the petitioners are entitled.

On a careful scrutiny of the claims made under various heads, this

Tribunal has no hesitation to hold that the claims are nothing but mis description. Hence the claim of compensation of Rs.3 lakhs claimed under various heads is considered.

(1)Compensation to injuries (2)Extra nourishment and attendant charges (3)Loss of consortium (4)Funeral expenses.

6

11.Compensation to the injuries:

The deceased-Trinadha Dora sustained four grievous injuries i.e, (1) A laceration of size 7 X 2 cm over left side of the occipit (2) Abrasion of eye 1 X 1 cm noted on left side of occipit (3) Multiple abrasions noted on the face (4) Abrasion of size 2 X 2 cm noted over left ear lobe. The petitioner suffered from untold pain and mental agony and he used to work as labourer and earn Rs.300/- per day and died subsequently due to injuries sustained by him in the accident. Considering the evidence of P.Ws.1 and 2 coupled with the Ex.A.2 an amount of Rs.1,00,000/- (Rupees One Lakh only) is quite reasonable and the same is awarded under this head.

12.Extra nourishment and attendant charges and medical expenses:

Admittedly, the deceased Trinadha Dora sustained injuries in the accident on 06.12.2015 and took treatment in the hospital for some time and bed ridden till 1st August, 2017 and died due to injuries subsequently and by taking into consideration the duration of treatment, evidence of P.W.1 and

Ex.A.2 an amount of Rs,50,000/- (Rupees Fifty Thousand only) is awarded under this head.

13.In the present case on hand, as per the decision reported in SLP

Civil No.3192/2018 Magna General Insurance Company Ltd., Appelant Vs.

Nanu Ram alias Chuhru Ram and others wherein it was held that:

8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium. In legal parlance, “consortium” is a compendious term which encompasses ‘spousal consortium’, ‘parental consortium’, and ‘filial consortium’.The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, itwouldincludesexual relations with the deceased spouse.3 Spousal consortium is generally defined as rights pertaining to the relationship of a husband wife which allows compensation to the surviving spouse for loss of “company, society, co- operation, affection, and aid ofthe other in every conjugal relation.”4 Parental consortium is granted to the child uponthe premature death of a parent, for loss of “pare ntalaid, protection, affection, society, discipline, guidance and training.” Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parentsand 3 Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 544 BLACK'S LAW DICTI ONARY (5th ed. 1979) family of the deceased. The greatest agony for a parentis to lose their chi 7 ld during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions worldover have recognized that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions thereforepermitparentstobeawarded compensation under loss of consortium on the death of a child. The amount awarded to theparentsisa compensation for loss of the love, affection, care and companionship of the deceased child. The Motor Vehicles Act is a beneficial legislation aimed atprovidingrelieftothevictimsortheir families, in cases of genuine claims. In case where aparent has lost their minor child, or unmarrie d son ordaughter, the parents are entitled to be awarded lossof consortium under the head of Filia l Consortium. Parental Consortium is awarded to children wholose their parents in motor vehicle accidents under the Act.A few High Courts have awarded compensation on this count5. However,therewasnoclaritywith5 Rajasthan High Court in Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors 2017 (4) RLW 3368 (Raj);Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep K umar & 6 Ors. respect to the principles on which compensation could be awarded on loss of Filial Consortium. The amount of compensation to be awarded as consortiumwillbegovernedbytheprinciplesof awarding compensation under ‘Loss of Consortium’ as laid down in Pranay Sethi (supra).In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial Consortium. 9.In light of the above mentioned discussion, Respondent Nos. 1 and 2 are entitled to the following amounts : Head Compensation awarded i. Income: Rs. 6,000 ii. Future Prospects: Rs. 2,400 (i.e. 40% of the income) iii. Deduction towards Rs. 2,800 [i.e. 1/3rd of personal expenditure: (Rs.6,000 + Rs.2,400) iv. Total Income: Rs. 5,600 [i.e. 2/3rd of (Rs.6,000 + Rs.2,400] vi. Loss of future income: Rs. 12,09,600 (Rs.5,600 x 12 x

18) vii. Loss of love and Rs. 1,00,000 (Rs. 50,000 each) affection:”

In view of the law laid down supra, and considering the facts and circumstances of case, this Tribunal deems it appropriate to award a sum of

Rs.40,000/- as loss of spouse consortium to the 1st petitioner The petitioners are also entitled to Rs.10,000/- towards funeral expenses.

Thus, in all, the petitioners are entitled to the following amounts.

HeadCompensation (Rs.) Compensationtothe 1,00,000 injuries Extra nourishment and50,000 attendant charges and medical expenses Loss of consortium40,000 Funeral expenses10,000 Total 2,00,000 (Rupees Two Lakhs only)

14.The learned counsel for the petitioners contended that the deceased Yejju Trinadha Dora sustained grievous injuries and took continuous treatment and died as such the legal heirs of the deceased-Trinadha Dora i.e, 8 petitioners 1 to 3 are entitled for compensation. In support of his contention, he relied on a decision Reliance General Insurance Co.Ltd., Vs. B.Mallailah (died) as per L.Rs and others reported in 2014 ACJ 930 wherein it was held that:

“When the petitioner No.1 died, the petitioner Nos.2 and 3 came on record as the legal representatives of the petitioner No.1. They were continuing the cause of action of the petitioner No.1. The petitioner Nos.2 and 3 were not seeking a relief through a fresh cause of action. I am afraid, when the cause of action was alive during the lifetime of the petitioner No.1, it does not die with the death of the petitioner No.1. Indeed, Section 306 of the Indian Succession Act, 1925, certainly comes into operation leading to abatement of the cause of action on the death of the deceased subject to the condition that the claim was not made by the deceased while he was alive. Section 306 o the Indian Succession Act, 1925 has no application to the case where the death was after the institution of the claim. Consequently, the contention of the learned standing counsel for the insurer that the case is hit by the maxim action personalis moritur cum persona and that the claim consequently does not survive on the demise of the petitioner No.1 cannot be accepted and is accordingly rejected.”

15.On the other hand, the learned counsel for the R.3 contended that the petitioners are not entitled for compensation as the person injured died subsequent to the accident and cause of action would not survive to the legal representatives. But the respondents neither adduced any rebuttal evidence to prove the said fact nor cited any legal position.

16.Though the respondent No.3 contended that the 1st respondent has no valid and effective driving license etc facts in the counter, no rebuttal, no rebuttal evidence is adduced to that effect. It is not in dispute that the driver of the van bearing No.AP35V 8243 drove the vehicle in a rash and negligent manner and caused the accident. Ex.B.1 policy is in force as on the date of accident. The 1st respondent being the driver , 2nd respondent being the owner and 3rd respondent being the insurer of the offending vehicle are liable to pay compensation to the petitioner. So the respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioners along with interest accrued thereon. There is no evidence on record to prove that there are violations of terms and conditions of Policy, issued by the 3rd respondent 9 in favour of the 2nd respondent. Therefore, the 3rd respondent is liable to indemnify the 2nd respondent. This issue is answered accordingly.

17.ISSUE NO.3: - “To what relief?”

In the result, the petition is partly allowed and awarded compensation of Rs.2,00,000/- (Rupees Two Lakhs only) with proportionate costs with subsequent interest at 09% per annum from the date of petition till the date of deposit. Advocate fee is fixed at Rs.2,000/- (Rupees Two

Thousand only).

The 3rd respondent is directed to deposit Rs.70,000/- (Rupees

Seventy Thousand only) with accrued interest and costs by drawing the account payee cheque on the name of the 1st petitioner and file the same

before the Tribunal with due notice to the 1st petitioner within 30 days from

this day. The 1st petitioner shall file her bank pass book, on that the pass book and cheque shall be sent to the bank where the 1st petitioner has account after due identification.

In respect of the remaining amount of 1st petitioner i.e, Rs.70,000/- (Rupees Seventy Thousand only) with accrued interest the respondent No.3 is directed to take fixed deposit receipt in the name of the 1st petitioner for a period of 1 (one) year on furnishing the PAN and other necessary particulars by the 1st petitioner and deposit the same before the Tribunal within 30 days. The 1st petitioner is entitled for monthly interest on the fixed deposit on filing her saving bank account particulars. The interest will be credited monthly in her account and she can withdraw the interest amount for her maintenance. After due maturity the 1st petitioner is entitled for the fixed deposit receipt from the Tribunal and the fixed deposit receipt will be forwarded to the 1st petitioner’s bank, after her due identification, for the encashment.

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The 1st to 3rd respondents or any other shall not cancel nor encash the fixed deposit receipt under any circumstances without prior orders of the

Tribunal. If the 3rd respondent could not take the fixed deposit receipt for non-furnishing of PAN and other necessary particulars by the 1st petitioner, the 3rd respondent shall deposit the same by way of cheque drawn in the name of the Tribunal and the same shall be kept in any Nationalized bank for a period of one year, after maturity the 1st petitioner is entitled to withdraw the same with accrued interest.

The 3rd respondent is directed to deposit Rs.30,000/- (Rupees Thirty

Thousand only) each with accrued interest and costs by drawing the account payee cheque on the name of the petitioners 2 and 3 and file the same

before the Tribunal with due notice to the petitioners 2 and 3 within 30 days

from this day. The petitioners 2 and 3 shall file their bank pass books, on that the pass books and cheques shall be sent to the bank where the petitioners 2 and 3 have account after due identification.

Dictated to Stenographer Gr.II(on deputation), transcribed by him,

corrected and pronounced by me in the open Court on this the 24th day of February, 2020.

Sd/- B.Srinivasa Rao,

Chairman, Motor Vehicles Accidents Claims Tribunal -cum- II Addl. Dist. Judge, Parvathipuram .

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner: For Respondents:

P.W.1: Y.MahalakshmiNone.

P.W.2: Y.Ramakrishna

DOCUMENTS MARKED

For Petitioner:

Ex.A.1: Attested copy of F.I.R

Ex.A.2: Attested copy of wound certificate.

Ex.A.3: Attested copy of MVI report.

Ex.A.4: Attested copy of Charge sheet.

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Ex.A.5: Family member certificate.

Ex.A.6: Death certificate.

For Respondents:

Ex.B.1: Copy of Policy.

Sd/- B.Srinivasa Rao,

Chairman, Motor Vehicles Accidents Claims Tribunal -cum- II Addl. Dist. Judge, Parvathipuram .

12 13 14

1

BEFORE THE MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL

-CUM- II ADDITIONAL DISTRICT JUDGE, PARVATHIPURAM

Present: Sri B.Srinivasa Rao, Chairman, Motor Vehicles Accidents Claims Tribunal -Cum- II Additional District Judge, Parvathipuram

Wednesday, the 1st day of May, 2019

M.V.O.P.No.24/2017 Between:

Bangari Suman Pratap, s/o Kunjo, aged 27 years, R/o Bandugam village and block, Koraput district, Odissa state.

...Petitioner

A n d:

1. Kalyampudi Satyanarayana, s/o late Swaminaidu, aged 43years,Jogumpeta(V),Seethanagaram(M), Vizianagaram (D).

2. Ch.Divya Harika, w/o Ravikumar, R/o Jyathi automobiles, Rajivgandha marg, Parvathipuram muncipality and mandal, Vizianagaram district.

3. National Insurance Co.Ltd., reptd by its Divisional Manager, 10-1-31, 3rdfloor, Signature towers, Asilmetta, Siripuram road, Visakhapatnam.

...Respondents

DATE OF ACCIDENT: -27.12.2013.

INSURANCE POLICY VALID : - From 11.07.2013 to midnight of 10.07.2014

This petition coming on 24.04.2019 for final hearing before me in the presence of Sri B.Satyanarayana, Advocate for the petitioner and, respondents 1 and 2 remained ex parte, Sri N.Rajeswara Rao, Advocate for

R.3 and having stood over for consideration till this day, this Court delivered the following:

O R D E R

This petition is filed by the petitioner under Section 166 of Motor

Vehicles Act and R/w 455 of M.V. Rules for grant of compensation of

Rs.3,00,000/- for the injuries sustained by him in a motor accident that occurred on 27.12.2013 at about 11-30 hours near Lovavalasa village Road 2 turning, Parvathipuram Mandal, due to the rash and negligent driving of the

R.1 of lorry bearing No.AP35 U 1129 .

2.The Claimant was aged about 27 years at the time of accident, he was hale and healthy prior to the date of the accident, he is working as

Development Officer in IAEET Company at Narayanapatnak field

Management unit under Koraput Forest Divison, Odissa state and used to earn Rs.9,000/- per month.

3.On 27.12.2013 morning the petitioner and his friend Biddika

Prakash started on motor cycle bearing No. OR 13 D 1172 along with his friend Biddika Prakash from his native place i.e. Bandugam of Odissa State to

Parvathipiuram town to attend their domestic works. On way, they proceeding in slow manner and careful driving on the left side of the road margin, when they left Chidivalasa gate near Lavavalasa village road turning, at the same time one lorry bearing No.AP35U 1129 which was coming from

Parvathipuram towards Alamanda village of Odissa state at high speed and in a rash and negligent manner without blowing horn, without following traffic rules and dashed against the motor cyc,le of the petitioner. As a result, the petitioner and pillion rider Biddika Prakash thrown out and fell beside the road margin. The petitioner sustained injuries in his right fore leg and his thigh, chin and nose. Immediately one trucker driver shifted the petitioner/injured to Area Hospital, Parvathipuram, for medical treatment. On the advise of the Medical Officer, the petitioner shifted to Vistnasvi Hospital,

Visakhapatnam for better treatment. The Parvathipuram Rural Police registered a case in Cr.No.134/2013 under sec.338 IPC against the driver of the lorry bearing No.AP35U 1129 i.e. the 1st respondent. The Medical Officer issued wound certificate and opined that the injuries sustained by the petitioner are grievous in nature.

a)It is further contended that the petitioner is aged about 25 years on the date of accident and he was hale and healthy, working as 3

Development Officer in I.A.E.E.T.Company at Narayanapatnam, field management unit under Koraput Forest Division, Odissa state. Due to the above accident, the petitioner sustianed fracture injuries in his right fore leg and right leg thigh, knee joint. Due to the accident, the petitioner suffered a lot, untold mental agony. The petitioner had taken two months treatment in

Vistnavi hospital, Visakhapatnam as in patient and outpatient. On the advise of Medical Officer, the petitioner had taken bed rest for another period of 4 moths in his house and spent Rs.1,50,000/- for medical treatment, transport to hospital and extra nourishment. Due to the accident, the petitioner could not attend to his duty for a period of six months. Thereafter also the petitioner could not attend his work properly. The petitioner could not able to attend his works properly as prior to the accident.

b)It is further contended that the above accident occurred due to rash and negligent driving of the 1st respondent i.e. the driver of the lorry bering No.AP35U 1129. The 1st respondent being the driver, 2nd respondent being the owner of the lorry and 3rd respondent being the insurance company are jointly liable to pay the amount.

4. The 1st and 2nd respondents remained exparte. The 3rd respondent/Insurance Company filed it’s counter, denying the manner of accident, age of the claimant and the earning capacity of the claimant as claimed in the claim petition.

a)It is contended that the petitioner is put to strict proof with regard to his age, occupation and earning, residence etc. The petitioner did not file any salary certificate to prove his employment. The petitioner did not file any medical reports to prove his treatment and he was inpatient and out patient. The petitioner has to prove the negligence of the lorry bearing

No.AP35U 1129, the Court has to look into the fact on whose fault the accident was occurred.

b)It is further contended that there is no valid and subsisting 4 insurance at the time of accident to the crime vehicle lorry bearing No.AP35U 1129 and 2nd respondent owner and 3rd respondent insurance company are not liable to pay any compensation. Even if the insurance policy is established, this insurance company is not liable unless it is proved that

Section 64-V.B of Insurance Act, 1938 and rules 58/59 of Insurance Rules 1959 are complied. Due to passengers vehicle, the driver lost his control over the vehicle and hit the petitioner and the insurance company is not liable to pay compensation to the petitioner. The amounts claimed in the petition are excessive. The interest claimed is also excessive. The petition is bad for non joinder of driver, owner and insurance company of the motor cycle bearing No.OR 13D 1172. The respondent reserves right to take defence under sec.170 of M.V.Act and Sec.11(4-B) of Insurance policy. The 2nd respondent has not complied with mandatory provision of Sec.134(c) of

M.V.Act. The SHO, Parvathipuram Rural Police station has not complied the mandatory provision of Sec.158(6) of M.V.Act and therefore, the investigation is not fair and proper and based on it the liabilities of the contesting parties cannot be decided and prayed to dismiss the petition with costs.

5. Basing on the above pleadings, the following issues have been settled for trial:

1. Whether the accident occurred resulting in

injuries to the petitioner, is due to rash and

negligent driving of the lorry bearing No.AP35

U 1129 by its driver R.1?

2. Whether the petitioner is entitled for

compensation, if so, at what quantum and

from whom?

3. To what relief ?

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6.On behalf of the claimant, P.Ws.1 to 5 are examined and marked

Exs.A.1 to A.8. On behalf of the 3rd respondent, Rw.1 is examined and

Exs.B.1 to B.3 are marked and Ex.X.1 and X.2 are marked.

7.Heard arguments.

8.ISSUE NO. 1 :- “Whether the accident occurred resulting in injuries to the petitioner, is due to rash and negligent riding of the lorry bearing

No.AP35 U 1129 by its driver R.1?”

9.P.W.1 clearly and categorically stated that this accident was due to rash and negligent driving of the 1st respondent and at that time the petitioner and his friend Biddika Prakash started on motor cycle bearing No.

OR 13 D 1172 along with his friend Biddika Prakash from his native place i.e.

Bandugam of Odissa State to Parvathipiuram town to attend their domestic works. On way, they proceeding in slow manner and careful driving on the left side of the road margin, when they left Chidivalasa gate near Lavavalasa village road turning, at the same time one lorry bearing No.AP35U 1129 which was coming from Parvathipuram towards Alamanda village of Odissa state at high speed and in a rash and negligent manner without blowing horn, without following traffic rules and dashed against the motor cyc,le of the petitioner. As a result, the petitioner and pillion rider Biddika Prakash thrown out and fell beside the road margin. The petitioner sustained injuries in his right fore leg and his thigh, chin and nose. It is suggested to P.W.1 that all the injuries under Ex.A.2 are simple in nature and no fractures. The above suggestion remains as suggestion only without any material. Ex.A.1 F.I.R., was registered basing on the statement recorded from P.W.1 . It cannot be said that with an intention to claim compensation he made allegations against the driver of the offending vehicle, as it was recorded two days after 6 accident. The averments made in Ex.A.1 fully supports the evidence of P.W.1 in all material particulars.

10.The learned counsel for the respondent/Insurance company vehemently contended that there is no valid and subsisting insurance at the time of accident to the crime vehicle lorry bearing No.AP35U 1129 and 2nd respondent owner and 3rd respondent insurance company are not liable to pay any compensation. Even if the insurance policy is established, this insurance company is not liable unless it is proved that Section 64-V.B of

Insurance Act, 1938 and rules 58/59 of Insurance Rules 1959 are complied.

Due to passengers vehicle, the driver lost his control over the vehicle and hit the petitioner and the insurance company is not liable to pay compensation to the petitioner. The amounts claimed in the petition are excessive. The interest claimed is also excessive. The petition is bad for non joinder of driver, owner and insurance company of the motor cycle bearing No.OR 13D 1172. As such the petitioner is not entilted for any claim and the offending vehicle involved in this crime with the active assistance of the petitioner with

Investigating Officer. I do not find any material to disbelieve the evidence of

P.W.1 and R.W.1 and the contents of Ex.A.1 and A.8.

11.The respondent examined its employee as R.W.1, his evidence is not helpful in any way to disprove the contents of Ex.A.1 or the evidence of

P.W.1, as he is not an eyewitness to the accident.

12.The proper person to speak about the manner of accident is the driver of the offending vehicle is not examined. Moreover, R.W.1 categorically admitted that it is mentioned in counter filed by them that there was a valid and subsisting driving license and insurance at the time of accident to the crime vehicle. He further admitted that it is mentioned in their counter that

R.1 is the driver , R.2 is the owner and R.3 is the insurance company.

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13.Considering the above facts and circumstances submitted by the learned counsel for the petitioner and counsel for the 3rd respondent, I hold that the petitioner by examining herself as P.W.1 and marking Ex.A.1 and A.8 proved that this accident was due to rash and negligent driving of the 1st respondent. For the above reasons, this issue is answered holding that this accident occurred due to rash and negligent driving of the offending vehicle lorry bearing No.AP35U 1129 driven by the 1st respondent.

14.ISSUE NO. 2: - “Whether the petitioner is entitled for compensation, if so, at what quantum and from whom?”

The learned counsel for the petitioner contended that the petitioner sustained the following injuries which mentioned in Ex.A.2.

1. Swelling and deformity of right thigh x-ray showed fracture femur®

2. Deep lacerated injury surrounding ® knee joint.

a) The person who issued Ex.A. 2 opined that Injury No.1 is grievous, injury No.2 is simple.The injured person examined the doctors who treated him as Pw.2 to 4. Pw.2 stated that he conducted a surgery to the petitioner who sustained degloring injury of his right thigh with fracture femur. Skin grafting surgery was done in Vyshnavi Hospital, Visakhaptnam on 5.1.2014. due to skin grafting he will have decreased sensation on right thigh. It is permanent loss of sensation to the patient.

b)Pw.3 stated that the petitioner was admitted in Vyshnavi

Hospital, Visakhaptnam and he was operated on 30.12.2013 for fracture femun with inter locking heiling and debidement done onn 5.1.2014 and skin grafting was done on 10.1.2014.

c)Pw.4 stated that on 28.12.2013 at 8 p.m he examined the petitioner and found following injuries:

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1. Swelling and deformity of right thigh x-ray showed fracture femur®

2. Deep lacerated injury surrounding ® knee joint.

He opined that injury No.1 is grievous and No.2 is simple in nature and he issued Ex.A.2 Wound certificate. Pw.5 also stated the same facts who issued

Ex.X.2 disability certificate to the petitioner.

Though Pw.2 to 5 were cross examined at length nothing has been elicited to disbelieve their evidence.

15.Hence, the quantum of Rs.3,00,000/- claimed under various heads is considered towards pain and suffering, partial loss of earnings, extra nourishment and attendant charges , medical expenses and permanent disability.

Pain and suffering

No evidence is necessary to hold that, the petitioner suffered hell of pain during the course of treatment, as she received grievous injuries as per Ex.A.2. Taking into consideration the nature of injuries and the duration of the period taken for treatment I hold that awarding sum of Rs.20,000/- Towards pain and suffering would meet the Ends of justice. Hence an amount of Rs.20,000/-Rs.20,000- 00 Is awarded under this head.

Partial loss of earnings

From Ex.A.2, it is clear that the petitioner sustained One grievous injury and one simple injury and the petitioner could not attend his duties. As per the evidence of P.W.1, he underwent treatment as in patient from 28.12.2013 to 20.01.2014 i.e. 23 days under Ex.X.1 However, an amount of Rs.20,000/- is quite reasonable and the sameRs.20,000- 00 is awarded under the said head.

Extra nourishment and attendant charges

The petitioner produce the bills for Rs.1,14,791/- to prove the actual expenditure. He stated in 9 his evidence that she has spent Rs.1,50,000/- for treatment, medicines. On other hand, it is the contention of the respondent that that the petitioner is not entitled to any compensation. Considering the evidence of P.W.1 Coupled with Ex.A.2 Pw.2 to 4 an amount of Rs.20,000/- Rs.20,000/- is quite reasonable and the same is awarded under the said head as the petitioner would have spent some amount as he sustained one grievous injury and one simple injury and also spent some amount towards extra nourishment and towards attendant charges.

Medical expenses

The petitioner filed Ex.A.6 medical bills For an amount of Rs.1,14,791/-, Pw.3 categorically Stated that their hospital issued medical bills Under Ex.A.6. considering the evidence of Pw.1 coupled with Ex.A. 6 an amount of Rs.1,00,000/- Rs.1,00,000/- is quite reasonable and same is Awarded under this head.

Permanent disability.

The petitioner filed disability certificate under Ex.X.2, the person who issued Ex.X. 2 is examined As Pw.5 assessed the disability at 35% in cross Examination he admitted that the petitioner took Treatement in K.G.H, Visakhapatnam for free of Cost. He denied the suggestion that Pw.1 did not Have any difficulty in future in attending his Regular activities, he further denied that he assessed the disability at higher rate. Considering the evidence of Pw.5 couple with Ex.A. 2 the disability is reduced from 35% to 25%. For computing compensation I have taken the annual income of the petitioner is 15000/- p.a. as the petitioner failed to examine the person who issued Ex.A.5. As per Ex.X.2 the age of petitioner is 29 years the Appropriate multiplier between the age group 26 to 30 is “17” so it comes Rs.15,000/- x 25 / 100 x 17 = 63,750/- Hence an amount of Rs.63,750 is awardedRs.63,750/-

Therefore, the petitioner Is entitled to a sum of Rs.50,000/- with interest at 9% p.a., from the date of petition till the date of realization. The respondents 1 to 3 shall pay the same. The issue is answered accordingly.

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16.ISSUE NO.3: - “To what relief?”

IN THE RESULT, the claim of the petitioner is partly allowed awarding compensation of Rs.2,23,750/- (Rupees two lakhs twenty three thousand seven hundred and fifty only) with proportionate costs in favour of the petitioner and directing the respondents 1 to 3 to pay the said amount with subsequent interest @ 9% p.a, from the date of filing of the petition till the date of deposit.

The respondents 1 to 3 are directed to deposit the above compensation amount with accrued interest by drawing an Account payee cheque on the name of the petitioner and file the same before the Tribunal with due notice to the petitioner within thirty days from this date.

The petitioner shall file his Bank Pass book, on that the pass book and cheque shall be sent to the Bank where the petitioner has account after due identification. The petitioner is permitted to entire amount considering the age and medical expenditure which necessary to the petitioner.

If the petitioner fails to submit PAN or other necessary particulars, 3rd respondent shall take the account payee cheque in the name of the Tribunal, the same shall be kept in any Nationalized bank for a period of 1 (one) year, after maturity, the petitioner is entitled to withdraw the same with accrued interest and costs.

Advocate’s fee is fixed at Rs.2,000/- only.

Typed to my dictation by Typist, corrected and pronounced by me in the open Court on this the 1st day of May, 2019.

Sd/- B.Srinivasa Rao-

Chairman, Motor Vehicles Accidents Claims Tribunal -cum- II Addl. Dist. Judge, Parvathipuram .

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner:

P.W.1: Bangari Suman Pratap

P.W.2: Dr.P.R.K.Prasad

P.W.3: Dr. G.N.Srinivas

P.W.4: Dr.K.Rajasagar

P.W.5: Dr. B.Uday Kumar

For Respondents:

RW.1: Rampilla Shivaji

DOCUMENTS MARKED

For Petitioner:

Ex.A.1: Attested cop of FIR in Cr.No.134/13

Ex.A.2: Attested copy of wound certificate

Ex.A.3: Attested copy of motor vehicle inspector report

Ex.A.4: Attested copy of charge sheet

Ex.A.5: is the salary certificate

Ex.A.6: Bunch of Medical bills for Rs.1,14,791.25p.m

Ex.A.7: prescriptions 24 in number with 11 reports

Ex.A.8: two x-rays

For Respondents:

Ex.B.1: Copy of Policy

Ex.B.2: MVI ereport

Ex.B.3: Fitness certificate

Ex.X.1: Case sheet

Ex.X.2: Disability certificate.

Sd/- B.Srinivasa Rao-

Chairman, Motor Vehicles Accidents Claims Tribunal -cum- II Addl. Dist. Judge, Parvathipuram .

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BEFORE THE MOTOR VEHICLES ACCIDENTS CLAIMS TRIBUNAL -CUM- II

ADDITIONAL DISTRICT JUDGE, PARVATHIPURAM

Present: Sri B.Srinivasa Rao, Chairman, Motor Vehicles Accidents Claims Tribunal -Cum- II Additional District Judge, Parvathipuram

Monday, the 24th day of February, 2020

M.V.O.P.No.80/2017

Between:

Gorle Sai, S/o Satyanarayana, Hindu, aged about 22 years, R/o Kanimeraka veedhi, Ramabhadrapuram Mandal. Vizianagaram District.

...Petitioner

A n d:

1. Naidana Venkata Krishna Rao, S/o Kasiyya, Hindu, aged about 46 years, Driver of the car bearing No.AP35M 8571, Main Road, Salur Town. Vizianagaram District.

2. N.V.Satyanarayana, S/o Parvateesam, Hindu, aged about 40 years, owner of the car bearing No.AP35M 8571, residing at D.No.12-32, Chodavaram, Visakhaptnam.

3. Bharti Axa General Insurance Company Ltd., reptd by the Divisional Manager, Visakhaptnam.

...Respondents

DATE OF ACCIDENT: -16.01.2017

INSURANCE POLICY VALID : - Valid from 18.03.2016 to mid night of 17.03.2017

This petition coming on 10.02.2020 for final hearing before me in the presence of Sri G.Ramamohana Rao, Advocate for petitioner and Sri Sri

N.Rajeswara Rao, Advocate for R.3, R.1 and 2 remained ex parte and having stood over for consideration till this day, this Court delivered the following:

O R D E R

This petition is filed by the petitioner under Section 166 of Motor

Vehicles Act and R/w 455 of M.V. Rules for grant of compensation of

Rs.10,00,000/- for the injuries sustained by him in a motor accident that occurred on 16.01.2017 at about 6.15 P.M., at Kanimeraka veedhi junction,

Ramabhadrapuram village.

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2.The petitioner is resident of Kanimeraka veedhi,

Ramabhadrapuram Mandal. The 1st respondent is the driver of the car bearing No.AP35M 8571 and 2nd respondent is owner of the said vehicle and

R.3 is insurance company with which the vehicle is insured with policy

No.FPV/S4520004/A1/03/005056 and valid from 18.03.2016 to 17.03.2017.

On 16.01.2017 at about 6.15 P.M., when the petitioner and other persons were going to Kanimeraka veedhi to Salur on their motor cycle bearing No.AP35 AD 1736, when they reached bypass road junction by that time the 1st respondent drove the aforesaid car in rash and negligent manner without blowing horn, came from Vizianagaram side to go to Salur and dashed their motor cycles, as a result, they fallen down on the road and the petitioner received fracture injuries on his right shoulder, right foot and right hip abrasion, injury found on the right knee and right eye. Immediately, the petitioner was taken to CHC, Badangi where he was given first aid and thereafter taken to Sri Sai P.V.R. hospital, Vizianagaram where he was admitted on 16.01.2017 and discharged on 30.01.2017, surgeries were conducted on 17.01.2018, 18.01.2017 and 22.01.2017. The petitioner was quite hale and healthy by the date of accident and the petitioner did B.Tech, now he is unable to attend any work and bedridden. The petitioner suffered with untold pain and mental agony. Hence, this Petition.

3. Respondents 1 and 2 remained ex parte. The 3rd respondent/

Insurance Company filed it’s counter, denying the manner of accident, age of the claimant and the earning capacity of the claimant as claimed in the claim petition.

a)It is contended that without prejudice and without admitting the involvement of the vehicle in the alleged accident, this respondent submits that the person driving the vehicle has no relation in force as on the date of accident to drive the crime vehicle. The 1st respondent has no valid and effective driving license to drive the crime 3 vehicle. The rider of the motor cycle bearing No.AP35AD 1736 was instrumental for occurrence of the accident. The 2nd respondent failed to comply the provisions of sec.134© of M.V.Act. The concerned Police Station failed to forward the relevant documents under sec.158(6) of M.V.Act. The respondent put the petitioner to strict proof that the car bearing registration

No.AP35M 8571 is having a valid registration certificate, permit and fitness to ply on the roads. The petitioner did not file any documents regarding the injuries and regarding treatment and medical bills with prescriptions and there is no functional or permanent disability and he is attending his normal duties and work and there is no loss of income. The interest, compensation claimed is excessive and the petition is liable to be dismissed.

5.The respondent No.3/Insurance company filed petition under sec.170 of M.V.Act and the same is allowed.

6.Basing on the above pleadings, the following issues have been settled for trial:

1. Whether the accident occurred resulting

injuries to the petitioner due to rash and

negligent driving of the Car bearing No.

AP35M 8571 by its driver-R.1?

2. Whether the petitioner is entitled for

compensation, if so, at what quantum and

from whom?

3. To what relief ?

7.On behalf of the claimant himself is examined as P.W.1 and got examined P.W.2, and marked Exs.A.1 to A.9. On behalf of R.3 no oral evidence is adduced but marked Ex.B.1 by consent.

8.Heard arguments of both sides.

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9.ISSUE NO. 1 :- “Whether the accident occurred resulting injuries to

the petitioner due to rash and negligent driving of the car

bearing No.AP35 M 8571 by its driver-R.1??”

P.W.1 clearly and categorically stated that this accident occurred due to rash and negligent driving of the 1st respondent and on 16.01.2017 at about 6.15 P.M., when the petitioner and other persons were going to

Kanimeraka veedhi to Salur on their motor cycle bearing No.AP35 AD 1736 and when reached bypass road junction, by that time the 1st respondent drove the car in a rash and negligent manner without blowing horn came from Vizianagaram side to go to Salur and dashed their motor cycle, as a result, they fell down on the road and he received fracture injuries on his right shoulder, right foot and right hip, abrasion injury found on the right knee and right eye. It is suggested to P.W.1 that the accident occurred due to negligence of the petitioner but not the negligence of the 1st respondent. The above suggestion remains as suggestion only without any material. Ex.A.1

F.I.R., was registered basing on the statement of the petitioner on the date of accident itself. It cannot be said that with an intention to claim compensation he made allegations against the 1st respondent as it was recorded immediately after the accident. The averments made in Ex.A.1 fully supports the evidence of P.W.1 in all material particulars. I do not find any material to disbelieve the evidence of P.W.1 and the contents of Ex.A.1.

The respondents did not adduce rebuttal evidence to disprove the evidence of P.W.1 and the contents of Ex.A.1.

The proper person to speak about the manner of accident is the driver of the offending vehicle. He is not examined, thereby the respondents failed to discharge the burden shifted to it.

The petitioner by examining himself as P.W.1 and by marking

Exs.A.1, A.3 and A.4 proved that this accident was due to rash and negligent driving of the 1st respondent but not due to any mechanical defects of the 5 offending vehicle. For the above reasons, this issue is answered holding that this accident occurred due to rash and negligent driving of the driver of the car bearing No.AP35M 8571 i.e, the 1st respondent.

10.ISSUE NO. 2: -

“ Whether the petitioner is entitled for compensation, if so, at

what quantum and from whom? ”

The petitioner examined himself as P.W.1 and examined the doctor who treated the petitioner as P.W.2. The petitioner claimed Rs.10 lakhs under various heads. From the evidence and the documents that are filed under

Exs.A.1 to A.9, it is now necessary to consider the quantum of compensation to which the petitioner is entitled.

On a careful scrutiny of the claims made under various heads, this

Tribunal has no hesitation to hold that the claims are nothing but mis description. Hence the claim of compensation of Rs.10 lakhs claimed under various heads is considered.

(1)Pain and suffering (2)Partial loss of earnings (3)Compensation to injuries (4)Extra nourishment and attendant charges (5)Medical expenses (6)Permanent disability.

11.Pain and suffering:

No evidence is necessary to hold that the petitioner suffered hell of pain during the course of treatment as he has received three grievous injuries i.e, (1) A diffuse swelling seen right M/3rd and L/3rd jt of the humerus, creprouse, tenderness deformity seen L/3rd, M/3rd of the memerus. (2) A diffuse swelling right hip joint adduction internal rotation shortening right lower limb seen (3) A diffuse swelling seen lower 1/3rd right leg with ankle of tenderness, crepeoduse, felt lower 1/3rd of the tibula and lower 1/3rd of the 6 fibula , X.ray right humerus, commutted fracture of right M/3rd and L/3rd of the humerus (2) X.ray right hip joint injury, posterior dislocation of right hip joint (3) X.ray right leg, commutted fracture of lower 1/3rd right tibia and commutted fracture of lower 1/3rd of right fibula. Taking into consideration nature of injuries, duration of the period taken for treatment, this Tribunal hold that awarding a sum of Rs.50,000/- as claimed by the petitioner in the petition towards pain and suffering would meet the ends of justice. Hence an amount of Rs.50,000/- (Rupees Fifty Thousand only) is awarded under this head.

12.Partial loss of earnings:

A perusal of Ex.A.2, A.5 to A.9 the petitioner sustained three grievous injuries, admitted in the hospital on 16.01.2017 and discharged from the hospital on 30.01.2017 and surgeries were also conducted. P.W.1 categorically stated that he was quite hale and healthy by the date of accident and completed B.Tech and now unable to attend any work and bed ridden. Considering the evidence of P.W.1, Exs.A.2, A.5 to 9, an amount of

Rs.10,000/- (Rupees Ten Thousand only) is quite reasonable and the same is awarded under this head.

13.Compensation to the injuries:

The petitioner sustained three grievous injuries (1) A diffuse swelling seen right M/3rd and L/3rd jt of the humerus, creprouse, tenderness deformity seen L/3rd, M/3rd of the memerus. (2) A diffuse swelling right hip joint adduction internal rotation shortening right lower limb seen (3) A diffuse swelling seen lower 1/3rd right leg with ankle of tenderness, crepeoduse, felt lower 1/3rd of the tibula and lower 1/3rd of the fibula , X.ray right humerus, commutted fracture of right M/3rd and L/3rd of the humerus (2) X.ray right hip joint injury, posterior dislocation of right hip joint (3) X.ray right leg, commutted fracture of lower 1/3rd right tibia and commutted fracture of lower 1/3rd of right fibula. In support of his contention, the petitioner got examined 7

P.W.2 Dr.P.V.N.Malleswara Rao and he deposed that the petitioner sustained above injuries and underwent treatment in Sri Sai PVR Hospital,

Vizianagaram from 16.01.2017 to 30.01.2017 and on 17.01.2017 under general ansthesia posterior dislocation of right hip joint closed reduction was done, on 18.01.2017 S.A.I.L nailing done for right L/3rd tibia S.A Orif with square nailing done for commutted fracture of L/3rd right fibula, on 22.01.2017 F.A Orif with 8 hole D.C.P plate and screw fixation done, U slab given for fracture of right humerus. On 26.01.2017 suiture removal was done right leg wound heel well and healthy, On 29.01.2017 suiture removal done for right humerus wound heel well and healthy, advised complete bed rest for one month and also prescribed medicines. He assessed the disability at 20%. Considering the evidence of P.W.2 coupled with the Ex.A.2, Ex.A.5 to 9 an amount of Rs.2,00,000/- (Rupees Two Lakhs only) is quite reasonable and the same is awarded under this head.

14.Medical Expenses, Extra nourishment and attendant charges:

Admittedly, the petitioner took treatment in the hospital, also purchased medicines under Ex.A.5, the petitioner also claimed Rs.1,70,656/- under the head medical expenses, extra nourishment, special diet and other incidental expenses and by taking into consideration the evidence of P.W.2 and Ex.A.5 medical bills and surgeries conducted to P.W.1, I hold that an amount of Rs.1,70,000/- (Rupees One Lakh Seventy Thousand only) is quite reasonable for extra nourishment, attendant charges and medical expense and the said amount is awarded under this head.

15.Permanent disability:

P.W.2 categorically deposed and assessed the disability of petitioner at 20%. The petitioner deposed that he was aged 24 years and prior to the accident he did his B.Tech and unable to attend any work and now bed ridden due to the accident. However considering the age and 8 present day cost of living, income of the petitioner is taken as Rs.36,000/- p.a. As per wound certificate the age of the petitioner is 22 years and the same is taken into consideration. Hence considering the age of the petitioner and by taking into consideration the income of the petitioner at

Rs.36,000/- p.a., and by applying the multiplier as per Sarla Varma Case i.e, 21 to 25 years ‘18’ arrived as follows:

Rs.36,000/- X 20/100 X 18= Rs.3,88,800/- (Rupees Three Lakhs Eighty Eight

Thousand Eight Hundred only) and accordingly the said amount is awarded under the head permanent disability.

Thus, in all, the petitioner is entitled to the following amounts.

HeadCompensation (Rs.) Pain and suffering50,000 Partial loss of earnings 10,000 Compensationtothe2,00,000 injuries Extra nourishment and1,70,000 attendant charges and medical expenses Permanent disability3,88,800 Total 8,18,800 (Rupees Eight Lakhs Eighteen Thousand Eight Hundred only)

16. No rebuttal evidence is adduced on behalf of the 3rd respondent.

Insurance policy was issued by the 3rd respondent Insurance company, in the name of 2nd respondent, who is the owner of the offending vehicle car bearing No.AP35M 8571 which covers for the period from 18.03.2016 to 17.03.2017 whereas the accident in the present case was occurred on 16.01.2017 and the policy is in force as on the date of accident.

17.Though the respondent No.3 contended that the 1st respondent has no driving license, and the accident occurred due to fault of the petitioner, R.3 did not examine anybody to prove its contention therefore, the contention of R.3 cannot be accepted. It is not in dispute that the driver of car bearing No.AP35M 8571 drove the vehicle in a rash and negligent 9 manner and caused the accident. The 1st respondent being the driver, the 2nd respondent being the owner and the 3rd respondent being the insurer of the offending vehicle are liable to pay compensation to the petitioner. So the respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioner along with interest accrued thereon. There is no evidence on record to prove that there are violations of terms and conditions of Policy, issued by the 3rd respondent in favour of the 2nd respondent. Therefore, the 3rd respondent is liable to indemnify the 2nd respondent. This issue is answered accordingly.

18.ISSUE NO.3: - “To what relief?”

In the result, the petition is partly allowed and awarded compensation of Rs.8,18,800/- (Rupees Eight Lakhs Eighteen Thousand

Eight Hundred only) with proportionate costs with subsequent interest at 09% per annum from the date of petition till the date of deposit. Advocate fee is fixed at Rs.8,188/- (Rupees Eight Thousand One Hundred Eighty Eight only).

The 3rd respondent is directed to deposit Rs. 4,18,800/- (Rupees

Four Lakhs Eighteen Thousand Eight Hundred only) with accrued interest and costs by drawing the account payee cheque on the name of the petitioner and file the same before the Tribunal with due notice to the petitioner within 30 days from this day. The petitioner shall file his bank pass book, on that the pass book and cheque shall be sent to the bank where the petitioner has account after due identification.

In respect of the remaining amount of petitioner i.e,

Rs.4,00,000/- (Rupees Four Lakhs only) with accrued interest the respondent No.3 is directed to take fixed deposit receipt in the name of the petitioner for a period of 1 (one) year on furnishing the PAN and other necessary particulars by the petitioner and deposit the same before the

Tribunal within 30 days. The petitioner is entitled for monthly interest on the 10 fixed deposit on filing his saving bank account particulars. The interest will be credited monthly in his account and he can withdraw the interest amount for his maintenance. After due maturity the petitioner is entitled for the fixed deposit receipt from the Tribunal and the fixed deposit receipt will be forwarded to the petitioner’s bank, after his due identification, for the encashment. The 1st to 3rd respondents or any other shall not cancel nor encash the fixed deposit receipt under any circumstances without prior orders of the Tribunal. If the 3rd respondent could not take the fixed deposit receipt for non-furnishing of PAN and other necessary particulars by the petitioner, the 3rd respondent shall deposit the same by way of cheque drawn in the name of the Tribunal and the same shall be kept in any Nationalized bank for a period of one year, after maturity the petitioner is entitled to withdraw the same with accrued interest.

Dictated to Stenographer Gr.II(on deputation), transcribed by him,

corrected and pronounced by me in the open Court on this the 24th day of February, 2020.

Sd/- B.Srinivasa Rao,

Chairman, Motor Vehicles Accidents Claims Tribunal -cum- II Addl. Dist. Judge, Parvathipuram .

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner: For Respondents:

P.W.1: G.SaiNone.

P.W.2: Dr.G.V.Sankararao.

DOCUMENTS MARKED

For Petitioner:

Ex.A.1: Attested copy of F.I.R

Ex.A.2: Attested copy of wound certificate.

Ex.A.3: Attested copy of MVI report.

Ex.A.4: Attested copy of Charge sheet

Ex.A.5: Bunch of medical bills for Rs.1,70,656/- 11

Ex.A.6: Discharge summary

Ex.A.7: Old X.ray

Ex.A.8: Disability certificate.

Ex.A.9: Latest X.ray.

For Respondents:

Ex.B.1: Copy of policy.

Sd/- B.Srinivasa Rao,

Chairman, Motor Vehicles Accidents Claims Tribunal -cum- II Addl. Dist. Judge, Parvathipuram .

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