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IN THE COURT OF THE IV ADDL. DISTRICT & SESSIONS JUDGE: NELLORE
(COURT OF SESSION: NELLORE DIVISION: NELLORE) Monday, this the 10th day of April 2017
Present: CH.RAMACHANDRA MURTHY IV Additional District & Sessions Judge, Nellore
CRIMINAL APPEAL No.85/2015
1.Criminal Appeal No.:-Criminal Appeal No.85/2015
2.From which court the appeal :-Assistant Session Judge, Kovur preferred
3.Number of the case in that court:-S.C.No.66/2011
4.Number of the Appeal:-C.A.No.85/2015
5.Name and Description of the :-Aare Sree Kala @ Kalavathi, Appellant/Defacto ComplainantW/o.A. Tirupathi, 24 years, Hindu, Madannagaripalli Village, Kaluvoy Mandal, Nellore District.
6.Name and Description of the :-1. State Sub-Inspector of Police, Respondent/accusedKaluvoy Police Station, Rep by Public Prosecutor,
2. Aare Tirupati, S/o Chinna Venkataiah, Hindu, aged 28 years,
3. Aare Yachendra @ Chandra, S/o Ramanaiah, 22 years, both are residents of Madannagaripalli village, Kaluvoy Mandal, Nellore District.
4. Thummala Jangamaiah, S/o Narasaiah, Hindu, aged 62 years, Ananthampalli Village, Penagalur Mandal, Kadapa District.
5. Bollineni Dhanamma, W/o Lakshmi Narayana, 37 years, Madannagaripalli village, Kaluvoy Mandal, Nellore District.
6. Bollineni Venkatamma, W/o Lakshmi Narayana, 42 years, Mittameedapalli village, Rajampet 2
Mandal, Kadapa District
7. Bollineni Lakshmi Narayana, S/o Nagaiah, Hindu, aged 47 years, Mittameedapalli village, Rajampeta Mandal, Kadapa District.
8. Daruvu Savithramma, w/o Nagaiah, Pathapalli village, Penagaluru Mandal, Kadapa District
9. Thummala Akkamma, W/o Jangamaiah, 54 years, Hindu, Ananthampalli village, Pengagalu Mandal, Kadapa District.
10. Basineni Vijayamma, W/o Nanda Kumar, Hindu, aged 42 years, Multipurpose Health Assistant, Rajampet, Kadapa District (Dismissed on 29.09.2014)
11. Aare Sankaraiah, S/o Pedda Venkataiah, 47 years, Hindu, Madannagaripalli village, Kaluvoy Mandal, Nellore District.
12. Pathipati Babu Rao, S/o Pedda Masthanaiah, 27 years, Hindu, Kammavari Palli village, P.K.Padu Panchyat, A.Sagaram Mandal, Nellore District.
13. Pathipati Pedda Masthanaiah, S/o Pedda Roshaiah, 47 years, Kammavaripalli village, Ananthasagaram Mandal, Nellore District.
14. Pathipati Audemma, W/o Pedda Masthanaiah, 42 years. Kammavaripalli village, Ananthasagaram Mandal, Nellore District.
7.The sentence and law under :-In the result, A1 to A8 and A10 to which it was imposed in Lower A13 are found not guilty for the Courtoffence punishable u/sec.120-B 3
IPC, A1 to A3 are found not guilty for the offence punishable U/Sec.498A IPC, A4 to A9 are found not guilty for the offence punishable U/Sec.313 IPC, A1 and A3 are found not guilty for the offence punishable U/Sec.417 IPC, A1, A3 and A10 to A13 are found not guilty for the offence punishable U/Sec.313 r/w.109 IPC and A2, A4 to A8 and A10 and A13 are found not guilty for the offence punishable U/Sec.417 r/w.109 IPC and according they were acquitted u/Sec.235(1) Cr.P.C.
8.Whether confirmed / modified / :-50.In the result, Criminal reverted and, if modified, the Appealpreferredbythe modificationappellant/defactocomplainant Aare Sreekala @ Kalavathi, wife of A.Tirupati against the judgment of acquittal in S.C.No.6/2011 on the file of Assistant Sessions Judge, Kovur dated 30.11.2012 is hereby dismissed by confirming the said judgment.
9.Date of Presentation:-12.6.2013
10.Date of filing:-6-4-2015
11.Date of bail bond if the :- appellants has been let out on Appeal against acquittal bail
12.Date of notice issued by the:-8.4.2015 court to appear
13.Date of respndent ordereed to :-10-6-2015 appear
14.Date of hearing:-27.3.2017
15.Date of order:-10.4.2017
16.Name of the appellant/defacto :-Sri P.B.Sudhakar Rao. complainant counselAdvocate for appellant, Nellore
17.Name of the Counsel for 1st:-Sri Sk.Rafi Malik, Respondent/State and Counsel Additional Public Prosecutor,
for Respondents 2 to9, 11 to 14Nellore
Sri P.Vijaya Kumara Reddy, Advocate, Nellore 4
This appeal coming on 27.3.2017 for final hearing before me in the presence of Sri
P.B.Sudhakar Rao advocate for the appellant/defacto complainant, and of Additional
Public Prosecutor and Sri P.Vijaya Kumara Reddy advocate for respondents, and the matter having stood over for consideration to this day, this Court delivered the following:
J U D G M E N T
1.This criminal appeal in CA 85/2015 filed by the appellants/defacto complainant Aare Sree Kala @ Kalavathi under Section 372 of Criminal Procedure Code is directed against the acquittal of the accused recorded by the Assistant Session Judge,
Kovur for the offence punishable under Section 417, 313 r/w.109 of Indian Penal Code and U/Sec.498A and 120-B of Indian Penal Code vide judgment dated 19.12.2012 in
S.C.No.66/2011, where under and whereby A1 to A8 and A10 to A13 are found not guilty for the offence punishable u/sec.120-B IPC, A1 to A3 are found not guilty for the offence punishable U/Sec.498A IPC, A4 to A9 are found not guilty for the offence punishable
U/Sec.313 IPC, A1 and A3 are found not guilty for the offence punishable U/Sec.417 IPC,
A1, A3 and A10 to A13 are found not guilty for the offence punishable U/Sec.313 r/w.109 IPC and A2, A4 to A8 and A10 and A13 are found not guilty for the offence punishable U/Sec.417 r/w.109 IPC and accordingly they were acquitted u/Sec.235(1)
Cr.P.C.
2.The parties are referred to as defacto complainant and accused and prosecution as referred before the trial court.
3.The brief facts that are necessary for disposal of the present appeal may be stated as follows:-
(i) PW1/Aare Srikala @ Kalavathi is daughter of Kommi Anjaiah/Pw2 and
Kommi Sankaramma/LW3. They fixed the marriage of defacto complainant with per 5 paternal aunt's son. A1 asked the defacto complainant to bring 20 sovereigns of gold and cash of Rs.1,50,000/-. On 11.08.2009, A1 took defacto complainant in the taxi of
Malli Venu/LW8 and droped at Tirupati. A1 to A2 purchased gold mangalasutram at
Tirupati. On 11.08.2009 at 8.00 pm A1 tied Mangalasutram around the neck of defacto complainant and married her. Defacto complainant went to Vijayawada along with A1.
She convinced A1 and brought him to Nellore. A4 and A10 threatened A1 to leave defacto complainant. A4 obtained the signatures of A1, as if A1 has no right in the family properties. Later, A4 conspired with A2, A3, A5 to A8 and A10 to A13, hatched a plan and took A1 and defactor complainant to Ananthapalli Village of Kadapa District.
(ii) A1 started harassing defacto complainant and demanded to bring more money and jewelery from her parents. On 10.10.2009, A4 to A8 forcebly took defacto complainant in an auto to the house of A9, who is working as nurse, in
Government hospital, where gave some injunction to defacto complainant for terminating her pregnancy. A9 started squezing the stomach of the defacto complainant to terminate her pregnancy due to which there was bleeding from her vagina and she was forcibly taken to the hospital of Dr.Kameswaramma/PW10 of Rajampet and same was witnessed by Thupiri Vijaya Kumar/LW14. On examination, Dr. Kameswaramma informed the defacto complainant about the risk and took the consent of defacto complainant by obtaining her signature and the signature of A5 in medical termination of pregnancy register and terminated her pregnancy at 8.30 pm, she was discharged from the hospital. Later A4 to A7 engaged one Tata Suma and took defacto complainant and went to the outskirts of Uyyalapalli Village where they forcibly removed Thalibottu from her neck. A2 took the tractor of A10 and they forcibly took defacto complainant to
Madannagaripalli Village, where A5 and A7 caught hold of hands of the defacto 6 complainant and dragged her to her house. Valluri Gopal /LW9 scolded A5 and A7.
(iii) On that defacto complainant, gave report to the police and a case is registered in Cr.No.75/2009. During the course of investigation, the then Sub-Inspector of police (PW14) recorded the statements of witnesses. From the facts collected during the course of investigation it was established that the accused conspired together and that they harassed and demanded the defacto complainant to bring
additional dowry and terminated her pregnancy forcibly and thereby committed an
offence punishable U/s.498A, 313, 417 and 120-B of Indian Penal Code. Hence the charge.
4.The learned Magistrate, Atmakur took the case on file U/S.498A, 313, 417 and 120-B IPC against A1 to A13 in PRC 2/2010. The learned Magistrate after securing the presence of A1 to A13 copies of documents were furnished to them as required
U/S.207 Cr.P.C . The learned Magistrate after hearing both sides committed the case to the court of sessions as the offence u/S.313 IPC is exclusively triable by court of sessions.
Hon’ble District and Sessions Judge after assigning SC 66/2011, made over the case to
the court of Assistant Session Judge, Kovur for disposal according to law.
5.The learned Assistant Session Judge examined the accused u/s.239 Cr.P.C, charges were framed, read over and explained to accused for the offence punishable u/sec.120-
B IPC against A1 to A8 and A10 to A13, U/Sec.498A IPC against A1 to A3, U/Sec.313 IPC against A4 to A9, U/Sec.417 IPC against A1 and A3, U/Sec.313 r/w 109 IPC against A1, A3 and A10 to A13 and U/Sec. 417 r/w.109 IPC against A2, A4 to A8 and A10 and A13. They pleaded not guilty and claimed to be trial.
6.On behalf of prosecution PW1 to 14 were examined under Ex.P1 to P15 were marked.
7.After closing the prosecution evidence the learned Magistrate examiuned 7 the A1 to A13 u/S.313 Cr.P.C for the purpose of explaining incriminating circumstance appearance in the evidence adduced by the prosecutiuon. They denied the circumstance, but they did not choose to adduce any oral evidence. But, they got marked Ex.D1 and D2 which are portions in the report of PW1 and portion in 161 Cr.P.C statement of Pw1 respectively .
8.After hearing both sides and on appreciation of oral and coumentary evidence, the learned Assistant Sessions Judge, held that A1 to A8 and A10 to A13 are found not guilty for the offence punishable u/sec.120-B IPC, A1 to A3 are found not guilty for the offence punishable U/Sec.498A IPC, A4 to A9 are found not guilty for the offence punishable U/Sec.313 IPC, A1 and A3 are found not guilty for the offence punishable U/Sec.417 IPC, A1, A3 and A10 to A13 are found not guilty for the offence punishable U/Sec.313 r/w.109 IPC and A2, A4 to A8 and A10 and A13 are found not guilty for the offence punishable U/Sec.417 r/w.109 IPC and accordingly they were acquitted u/Sec.235(1) Cr.P.C.
9.Aggrieved by the said conviction and sentence, appellant/ defacto complainant preferred the present appeal.
(i) In the grounds of appeal it is contended that
1.:-The court below failed to appreciate the evidence of PW-2 to PW-14
2.:-The court did not appreciate the version of victim/appellant and corroboration in all aspects of her evidence by the other prosecution witnesses and documentary evidence in Ex.P-1 to Ex.P-5.
Therefore, appellant/defacto complainant requests to allow the appeal by setting aside the judgment and convict the accused for the charges levelled against them.
10.Heard both sides and perused relevant records.
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1. NOW THE POINT FOR
DETERMINSATION IS WHETHER THE
CONVICTION AND SENTENCE
RECORDED BY THE LEARNED
Assistant Sessions Judge, Kovur IN S.C.No.66/2011 DATED 19.12.2012 IS LIABLE TO BE SET-ASIDE?
POINT
11.It is not in dispute that A4 and A7 are sisters of A1. A5 is daughter of the sister in law of PW1. PW1 married to A1 on 12.08.2009. A-2 is the grand son of Senior Paternal Uncle of A-1. A-5 is wife of A-6.
12.A-1, A-2, A-4 and A-10 are residents of Madannagaripalli vilage of Kaluvoy Mandal of Nellore District. A-3 and A-8 are residents of Ananthampalli village of Pangaluru Mandal of Kadapa District. A-5 and A-6 are residents of Mettameedipalli village of Kadapa District. PW-2/Anjaiah and Sankaramma/LW-3 are parents of PW-1.
13.Before proceeding further, it would be appropriate to deal with the subject as to whether the appeal against the acquittal is maintainable. In a decision reported in AIR 2013 Supreme Court 395 Subhash Chand Vs. State (Delhi
Administration) and contends that “ The appeal against the acquittal is not maintainable before the Sessions Court.” In the decision referred to above, it was observed that as per amended provisions of Criminal Procedure Code, an application to the High Court for granting Special Leave to the appeal is to be filed against the acquittal in a Private Complaint.
14.In a decision reported in K.Jayalakshmi Vs. G.Adi Lakshmi and another of
Honourable High Court of Andhra Pradesh (decided on 3.9.2014), a revision
was filed before the Honourable High Court of Andhra Pradesh against the
acquittal of the accused under Section 138 of Negotiable Instruments Act. In
that connection after referring to the decision of Apex court (referred to
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above) and also after referring to the provisions of Section 378, 372 and 401
of Criminal Procedure Code, it was held that revision is not maintainable
before Honourable High Court and an appeal will lies before Sessions Judge
as per provisions of Section 378 (2) or (4) or under Section 372 Proviso,
Criminal Procedure Code. By observing the same, directed the Criminal
Revision Petition to return to the party to represent the same as regular
appeal before concerned Sessions Judge. In view of the principles laid-down
in the decision by Honourable High Court of Andhra Pradesh, it is safe to
observe that the criminal appeal against the acquittal lies before the
Sessions Court. Hence, I answered the point accordingly.
15. It is well settled that in case of appeal against acquittal, there is
presumption of innocence in favour of accused and therefore, the order of
acquittal cannot be reversed. In support of his contentions he relied upon a
decision reported in
Muralidhar alias Gidda and another Vs. State of Karnataka (2014 AIR SCW 2278), wherein it was observed that merely because the appellate court on re-appreciation and re- evaluation of evidence is inclined to take a different view, infererence with the judgment of acquittal is not justified if the view taken by the Court is a possible view
16.Learned advocate for the accused argued that the appellate court re- appreciate the evidence on record and decide as to whether view taken by the trial court acquitting the accused was a reasonable and possible view and further argued that there is presumption of innocent of accused further strengthen by 10 acquittal. IN support of his contention, he relied upon a decision reported in State of Rajasthan Vs. Yusuf) 2009 (2) ALD (Criminal) 603 (SC)
Principles laid down in the above decision are not in dispute.
17. Generally the order of the acquittal shall not be interfered because presumption of innocence of accused is further strengthened by an order of acquittal. It is also not in dispute that in a criminal cases when there are two views are reasonably possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. In a case where admissible evidence is ignored, a duty cast on the appellate court to re-appreciate in evidence in a case where accused has been acquitted, for the purpose of ascertaining as to whether the accused committed any offence or not. The principles to be followed by the appellate court considering the appeal against the judgment of the appeal is to interfere only there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason of interference.
In C.Anthony Vs., K.G.Raghavan Nair, 2002 (2) ALD (Crl.) 880 (SC), wherein it was held that
This court in number of cases has held that though the appellate court has full power to review the evidence upon which the order of acquittal is founded, still while exercising such appellate power in a case of acquittal, the appellate court should not only considered every matter on record having bearing on question of fact and the reasons court below in support of his order of acquittal. It must express its reasons in the judgment which led hold that the acquittal is not justified. In those line of cases, this court has also held that the appellate court must also bear in mind the fact that the trial court had benefit of seen the witnesses in the witness box and presumption of innocence is not weakened by the order of acquittal and in such cases if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court.
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In MS.Narayana Menon alias Many Vs., State of Kerala and another (2006 (2) ALD (Crl.) 317 SC), it was observed that
In any event the High Court entertained an appeal treating to be an appeal against acquittal it was infact exercising revisional jurisdiction even while exercising the appellate power against the judgment of the acquittal the High Court should have power in mind the well – settled principles of Law where two views are possible the appellate court should not be interfere with the finding of acquittal recorded by the Court below.
It is settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasonings when the appellate court in agreement with reasons assigned by the trial court acquitting the accused. (In State of Karnataka Vs., Hemareddy (Air 1981 Supreme Court 1417)).
18.In Ashok Rai Vs. State of U.P and others (2014 Crl.J.3085), b while dealing with
the powers of Appellate Court under Section 378 of Criminal Procedure Code,
against acquittal, in para 8 It was observed that:- ” the appellate court has to be very cautious while riversing an order of acquittal because order of acquittal strengthens the presumption of innocence of the accused. If the view taken by the trial court is a reasonably possible view it should not be disturbed, because Appeallate Court feels that some othe view is also possible. A perverse order of acquittal replete with gross errors of fats and law will have to be set aside to prevent miscarriage of justice because just as the court has to give due weight to the presumption of innocence and see that innocent person is not sentenced, it is equally the duty of the court to see that the guilty do not escape punishment. Unless the appellate court finds the order of acquittal to be clearly unreasonable and he is convinced that there are substantial and compelling reasons to interfere 12 with it, it should not interfere with it.
A similar view was expressed by the
Honourable Apex Court in Gurjit Singh alias
Gora & another Vs. State of Haryana (2015 Cr.L.J 1955).
19. With the above back-ground now the question is whether the evidence of prosecution witnesses is sufficient to prove the guilt of accused.
20.The main contention of the Prosecution and PW-1 is that A-1 made false promise to marry her and that A-1 married her in the presence of A-2 and tied tali around her neck in front of Dwajastambham of Tirumala Temple and that all the accused harassed her and demanded to bring dowry and further the accused forcibly get abortion to her through Medical Officer/PW-10 Dr.V.Kameswaramma of Rajampet and thereby the accused are liable for punishment for the charges levelled against them.
21.The contention of the accused is that they did not commit any offence and the case is foisted against them. Defacto complainant examined as PW-1. She deposed that she and A-1 loved each other for about two years. Her parents arranged marriage with her paternal aunt's son on 12.8.2009. A-1 eloped her and presurized her to bring
Rs.15,000/- cash and 20 sovereigns of gold as he loved her. On 11.8.2009 during night time she followed A-1 to Tirupati in Tata Indica Car provided by A-2 along with cash and jewellery, where A-1 tied tali around her neck in the presence of A-2. A-1 told her that their marriage was completed. On the same day night A-1 took her to Vijayawada, where they stayed in the house of Manemma on rent. A-4 and one Janardhan and others met at
Vijayawada and requested to stay at Nellore. They took her and A-1 to the room of PW-7
Amruthuluru Janardhan at Nellore.
(I) She further deposed that on 12.8.2009, the sister of A-1, who is A-4 and A-11 and others came to Nellore and met them, they beat her and threatened her to kill and 13 they would not allow her to lead marital life. Then PW-7 advised them to go to
Vijayawada. Then A-1 took her to Vijayawada and stayed in the house of Manemma. At the request of A-3, they both went to the house of A-3 at Ananthapalli of Rajampet, where A-1 changed his attitude and started harassing her. A-1 used to beat her and did not provide food to her.
(ii) On one day Pw-1 requested A-1 to take her to hospital. Two days later A-1 and
A-3 took her to the hospital of PW-10/Kameswaramma, who examined her and confirmed that she was carrying. One week later, A-1 and A-3 left their house and went to Rayachoti in the morning on the pretext of collecting old dues. After their departure within one hour, A-4, A-5, A-7 and A-8 approached her and beat her severely. They forcibly took her in Auto to the house of A-9/Vijayamma by inserting cloth into her mouth and threatened and demanded her to get abortion. They shifted her to the hospital of PW-10. She requested all of them not to terminate her pregnancy. But A- 9/Vijayamma forcibly administered two injections by caught hold of her by others. Then she experienced stomach pain and further bleeding and further she lost her consciousness. PW-10 came there and terminated pregnancy. She regained consciousness on the same day night at 8-00 P.M. A-4 and others shifted her to a lodge at
Rajampet and threatened her to perform marriage of A-1 with another lady as she is physically challenged woman.
(iii) She further deposed that on the next day morning A-6 came there in Tata
Sumo and took her to Uyyalapalli village and dropped her. A-4, to A-7 went away in Tata
Sumo. Then A-2 and A-10 brought a Tractor. A-11 to A-13 caught hold of her and removed Thali from her neck and put her in Tractor and took her to her village, where A- 5 and A-7 forcibly pulled her towards her houses and left there. Finally, she gave report to the police on 14.10.2009. Since physically challenged person, accused cheated her.
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(iv) During her cross-examination she expressed her ignorance as to the date of termination of pregnancy at Rajampet. She denied a suggestion that her parents and her relatives got prepared Ex.P-1 and obtained her signature and that she does not know the contents therein. She denied a suggestion that on 19.10.2009 her parents and group of leaders of their party in the village took her to police station and prepared Ex.P-1 after due deliberations and consultations and foisted the case against the accused. She denied a suggestion that she did not mention in Ex.P-1 report that A-4, A-5, A-7 and A-8 beat her in the house of A-3 and took her to Rajampet for abortion and that A-4, A-5, A-7 and A-8 inserted cloth in her mouth while taking her to the house of A-9 and that accused took her to the house of A-9.
(v) PW-1 admitted that she did not mention in Ex.P-1 that she was forcibly taken away by A-4, A-5, A-7 and A-8 from the house of A-3 to the hospital of PW-10 and terminated her pregnancy ( as in Ex.D-1) . She adds that at first instance she was taken to the house of A-9 and from there to the hospital. She did not state before the police that on 10.10.2009 at Kameswaradmma hospital, Rajampet, PW-10 examined her and informed that there is no abortion and there was no danger to her life and on their request she put her signature in the register as 'Kalavati' with her consent. She did not state before the police as in Ex.D-2.
(vi) As per her evidence A-5 is the wife of A-6. A-5 is paternal aunt of A-1. A-7 is mother-in-law of Bollineni Narasimhulu, who is maternal uncle son of A-1. A-12 is husband of A-13. A-11 is son of A-12 and A-13. A-13 is junior maternal aunt of A-1. She denied a suggestion that she herself took away A-1 to Vijayawada in the name of Love and stayed there for sometime and meanwhile, her parents and group of leaders forcibly brought her to Vijayawada and foist this case and A-2 to A-13 are nothing to do with this case. She also denied a suggestion that A-1 never promised to marry her and he never 15 took her to Tirupati in the Car provided by A-2 and he never tied Thali around her neck.
She denied a suggestion that accused never forcibly took her to her village in the
Tractor.
22.PW-2 is father of PW-1. He deposed that the marriage of PW-1 was fixed with his sister's son. One day before the marriage, A-1 took away PW-1 from their house. They came to know that PW-1 lodged report against Accused with Kaluvoy police. His daughter narrated the entire incident to them regarding her marriage with A-1 at
Tirumala and their living sometime at Vijayawada and going to Ananthapalli of Kadapa
Districrt and also ill-treatment subjected her and forcible termination of her pregnancy.
(I) During his cross-examination he deposed that he does not know about the galata took place after her daughter eloped with A-1. Before fixing the marriage, he obtained consent of PW-1. He denied a suggestion that A-1 did not take away his daughter, but his daughter took away A-1 in the name of Love to Vijayawada and that he and his relatives brought back his daughter forcibly and lodged complaint with the police.
23.PW-3 who is private car driver, who deposed that A-2 engaged his Tata Indica Car bearing No.AP 26 K 6773 to go to Tirupati. A-1, PW-1 and A-2 boarded his Car. He dropped them at Tirupati Bus Stand and returned back.
(I) During his cross-examination he deposed that he had no prior acquaintance with A-1 and A-2. He denied a suggestion that he never dropped A-1, A-2 and PW-1 at
Tirupati and that he is deposing false at the instance of PW-2 after taking money.
(I) PW-4 is Tractor Driver of Madannagaripalli village. He deposed that he does not know anything about this case. Police did not examine him. The learned Additional
Public Prosecutor declared him as hostile and cross-examined him. But nothing has been 16 elicited from his cross-examination against the accused. He denied to have been stated
before the police as in Ex.P-2.
24.PW-5 deposed that in the month of October 2009 A-5 and another lady dropped
PW-1 near his house and left the place. He identified A-7 as lady who dropped PW-1 along with A-5.
(I) During his cross-examination he denied a suggestion that A-5 and A-7 never dropped PW-1 near his house and that he belongs to Telugu Desam Party and that he is deposing false. He did not participate in test identification parade of A-7.
25.PW-6 deposed that on 10.10.2009 at 2.30 P.M., he took his wife to the hospital of
PW-10/Kameswaramma of Rajampet for treatment as his wife suffered from stomach ache. At about 3-00 or 3.30 P.M., he observed five or six persons bringing a lady to the hospital and found bleeding to her. The doctor went into the room, where the said lady was kept. The doctor did not come out from the room for about half an hour. Then he took his wife to another hospital for treatment. He cannot identify those persons, who brought the lady to the hospital. The learned Additional Public Prosecutor declared him as hostile and cross-examined him. But nothing has been elicited from his cross- examianation against the accused. He denied to have been stated before the police as in
Ex.P-3.
26.PW-7 is resident of Madannagari palli village. He deposed that in the year 2009, A- 4 and two others came to his shop and stated to him that A-1 and PW-1 were in vijayawda and requested him to go to Vijayawada along with them to bring back them.
He accompanied them to Vijayawada and brought A-1 and PW-1 to his room in Nellore at about 12-00 noon. A-4 told A-1 and PW-1 that they were not having any property rights over the joint family of father of A-1 as they married against their will. A-4 also brought 17 a paper and obtained signatures of A-1 and PW-1. Later A-4, A-1, PW-1 and some other relatives left his room in the evening. Later he came to know that they went to
Ananthampalli village of Kadapa District.
(I) During his cross-examination he deposed that he knew maternal uncle of PW-1 by name Tellabati Ramachandraiah and Ramanaiah, who are his friends. His parents are residing in the house of Tellabati Ramanachandraiah and Ramanaiah without paying any rent. He denied a suggestion that he did not go to Vijayawada and bring back PW-1 and
A-1 to Nellore and that he is deposing false out of friendship with maternal uncle of PW- 1.
27.PW-8 deposed that police did not observe the scene of offence in his presence.
But polie obtained his signatures on blank papers. His signatures are marked as Ex.P-4 and Ex.P-5. He denied a suggestion that police observed the scene of offence in his presence and prepared observation report and that he is deposing false.
28.PW-9 deposed that on 10.10.2009 he went to Basinigaripalli village, near
Rajampet of Kadapa District on his personal work. In the evening he came to Rajampet
Bus Stand on his return journey. Then he observed A-4 to A-8 shifting PW-1 in an Auto and proceeding towards Kameswaramma hospital., Rajampet. He also heard the cries of
PW-1.
(I) During his cross-examination he observed that A-10 is his natural brother. His father and father of A-1 are natural brothers. His father and father of A-4 are brothers.
A-5 and A-8 are his paternal aunts. There are property disputes in between him and A-
10. There are about 15 houses in between R.T.C., Bus Stand and Kameswaramma
Hospital, Rajampet. He has no disputes with PW-1 and her family members. He did not give any report to the police against A-4 to A-8. He did not note down the Auto number.
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He denied a suggestion that taking advantage of property disputes with A-10, he is deposing false and that he did not go to Rajampet on 10.10.2010 and that he never heard the cries of PW-1.
29.PW-11 who is resident of Vijayawada deposed that A-1 and PW-1 resided in the house of Manemma on rent for about 1 and ½ months. On enquiry, PW-1 stated to her that she is native of village near Nellore.
(I) During her cross-examination she denied a suggestion that A-1 and PW-1 never stayed in Vijayawada and she is deposing false.
30.PW-12, who is resident of Vijayawada deposed that A-1 worked under him and attended Centering work for a period of one and half month. A-1 stayed with his wife at
Ambedhkar Nagar, Vijayawada. He used to pay daily wages to A-1. He denied a suggestion that he is deposing false at the instance of maternal uncle of PW-1.
31.PW-14 is Investigation Officer, who deposed about investigation done by him. He also seized medical records from PW-10 under cover of mahazar under Ex.P-14.
(I) During his cross-examination he deposed that the pregnancy of PW-1 was terminated on 10.10.2009. PW-1 lodged report with the police on 14.10.2009. He came to know that on 10.10.2009 PW-1 lodged report with Superintendent of Police, Nellore.
PW-1 did not state the name of A-9 and role of A-9 in termination of her pregnancy. PW- 1 made allegations against PW-10 in First Information Report in Ex.P-11, PW-10 is arrayed as A-9. PW-10 obtained anticipatory bail. PW-10 produced Ex.P-7 and Ex.P-8 medical records. He denied a suggestion that the case is foisted against the accused without any proper investigation.
32.From the evidence of prosecution witnesses, it is clear that PW-1 is physically challenged lady. She fell in love with A-1. As per evidence of PW-1, A-1 took her to 19
Tirupati along with A-2 in a Taxi, where he tied Tali around her neck in the presence of A-
2. PW-3, who is Car driver categorically supported the version of PW-1 and deposed that
A-1, A-2 and PW-1 boarded TATA INDICA Car bearing No.AP 26 K 6773 and he dropped them at Tirupati Bus Stand. He denied a suggestion that he did not drop A-1, A-2 and
PW1 at Tirupati on 11.8.2009. I do not find any strong motive for PW-3 to falsely depose evidence against A-1 and A-2.
33.PW-11 is resident of Vijayawada. She deposed that A-1 and PW-1 lived in the house of Manemma on rent for a period of one and half months. She denied a suggestion that A-1 and PW-1 never stayed in the house of Manemma and that she is deposing fals.
34.PW-10, who is resident of Vijayawada also supported the version of PW-11 and deposed that A-1 stayed in Ambedhkarnagar Colony along with his wife Srikala. A-1 used to attend coolie work and worked under him. He used to pay daily wages to A-1. Nothing has been elicited from the cross-examination of PW-11 and PW-12 to disprove their evidence.
35.PW-7, who is resident of Madannagaripalli village categorically deposed that he went to Vijayawada along with A-4 and others and brought A-1 and PW-1 to his room in
Nellore. It was suggested to PW-1 on behalf of accused that she herself took away A-1 to Vijayawada in the name of love and stayed there for sometime and meanwhile, her parents and group of leaders forcibly brought her from Vijayawada and foisted this case. She denied the same. As per suggestion put to PW-1, it can safely be held that A-1 and PW-1 lived at Vijayawada. It cannot be ruled out. Taking into consideration of evidence on record, it is clear that A1 married to PW-1 and lived as wife and husband for some time in Vijayawada and A-1 used to attend coolie work in Vijayawada.
20
It is alleged by the prosecution that A-1 and A-3 subjected PW-1 to cruelty by demanding her to bring money and jewellery and thereby committed an offence punishable under Section 498-A IPC.
36.Admittedly, it is for the prosecution to prove that A-1 and A-3 harassed and ill- treated PW-1 and subjected her to physical and mental cruelty as defined under Section 498-A IPC.
37.As argued by learned advocate for accused PW-1 nowhere stated in her evidence that A-1 and A-3 demanded her to bring more money and jewellery and subjected her to cruelty as defined under Section 498-A IPC.
38.PW-2, who is father of PW-1 also nowhere deposed that A-1 and A-3 demanded his daughter to bring more money and jewellery and for that they harassed her and subjected to cruelty. The evidence of PW-1 would not attract the provisions of Section 498-A IPC. Therefore, the prosecution failed to prove the ingredients of Section 498-A
IPC against A-1 and A-3. Accordingly, A-1 and A-3 are not liable for punishment under
Section 498-A IPC.
SECTION 313 IPC AGAINST A-4 TO A-9 and under Section 313 read with 109 IPC against A-1, A-3, A-10 to A-13
39.The contention of the prosecution and defacto complainant is that in the absence of A-1, A-4 to A-9 forcibly took PW-1 to the hospital of PW-10 and terminated her pregnancy. The contention of the accused is that A-1, A-4 to A-9 did not take PW-1 to the hospital of PW-10 and that the parents of PW-1 took her to hospital and got abortion.
40.After lodging report with the police, PW-1 was taken to hospital. PW-13, who is
Working as Civil Assistant Surgeon in District Head Quarters Hospital, Nellore. She deposed that on 14.10.2009, at 1.15 P.M., PW-1 was produced before her by the Women 21
Police Constable of 1760 of Kaluvoy Police Station. On examination of PW-1, she found her Vagina congested. Cervics dilated (two centimeters) and congested and bleeding was present. She issued Ex.P-10 certificate. She opined that PW-1 underwent
Dialatation Curettage, which means termination of pregnancy. The learned advocate for accused reported no cross-examination. From the evidence of PW-13 coupled with Ex.P- 10, it can safely be held that PW-1 underwent surgery and terminated her pregnancy.
41.Learned advocate for the accused argued that in order to save PW-10
Dr.B.kameswaramma of Rajampet, it is alleged by the prosecution that A-9, who is nurse administered injection to PW-1, which resulted there was heavy bleeding. Admittedly, the first information report was also registered against PW-10, who arrayed as A-9. PW- 10 also obtained anticipatory bail. After completion of investigation, the investigation officer filed charge sheet deleting the name of PW-10 from the list of accused.
42.PW-10, who is running Nursing Home in the name and style of Bhavana, Rajampet, deposed that on 5.,10.2010 A-1 brought his wife who is PW-1 to her hospital. On examination she declared that PW-1 was pregnant. Five days later, A-9 along with A-5 and others brought PW- 1 to her hospital. A-9 is working as Nurse in Government
Hospital. Her nurse examined PW-1 and informed that there was bleeding. Ten minutes later she examined PW-1 and advised her to terminate her pregnancy as there was bleeding and products were seen through the servical opening. With the consent of PW- 1, she terminated the pregnancy. PW-1 did not tell to her about administering injection to her for forcible termination of pregnancy at the house of A-9.
Through her evidence Ex.P-7 M.T.P. Register and Ex.P-8 Casualty Registerare marked.
43.The learned Additional Public Prosecutor declared her as hostile and cross- 22 examined her. But nothing has been elicited from her cross-examination against the accused. She denied to have been stated before the police as in Ex.P-9. According to suggestion put to PW-10, she terminated pregnancy without consent of PW-1. PW-10 categorically deposed that with the consent of PW-1 only, she terminated her pregnancy.
44.The prosecution relies upon the evidence of PW-9. According to PW-9, he saw A-4 to A-8 shifting PW-1 in Auto and proceeding towards Kameswaramma's hospital,
Rajampet. He also heard the cries of PW-1. PW-1 nowhere deposed that she raised cries at RTC Bus Stand, Rajampet. According to PW-1, she was taken to the hospital of PW-10 after she fell unconscious. Meanwhile, PW-10 terminated her pregnancy. She regained consciousness at about 8-00 P.M., in hospital, which is contrary to the evidence of Pw-10.
45.The prosecution is also relying upon the evidence of PW-6, who is resident of
Rajampet. According to him, he went to the hospital of PW-10 along with his wife as his wife complains stomach pain. He observed five or six persons bringing a lady to the hospital of PW-10 as there was bleeding. He failed to identify any of the accused. His evidence is no way helpful to the case of prosecution to prove that A-4 to A-8 took PW-1 to the hospital of PW-10 and forcibly terminated her pregnancy. Except the evidence of
PW-1, there is no other supporting evidence that A-4 to A-9 forcibly terminated pregnancy of PW-1 through PW-10,. The evidence of PW-10 is not corroborated with the evidence of PW-1. As per evidence of PW-10, with the consent of the victim, she terminated her pregnancy. PW-10 admitted in her cross-examination that she used to attend termination of pregnancy cases 10 to 15 per month, as per Ex.P-7 register. PW-1 admitted that A-1 took her to the hospital of PW-1. On that day, PW-10 examined her and confirmed pregnancy. Taking into consideration of evidence of PW-10 coupled with the documents in Ex.P-7 and Ex.P-8, it is not safe to conclude that Pw-10 terminated 23 pregnancy of PW-1 without her consent and A-4 to A-9 forcibly terminated pregnancy of
PW-1. As per provisions of Section 313 of Indian Penal Code, the accused shall be punishable if the prosecution proves that the accused terminated pregnancy without the consent of PW-1. If there is any consent, the question of convicting the accused under
Section 313 IPC does not arise. In the present case, as per evidence of PW-10 with the consent of PW-1 only she terminated her pregnancy. As argued by the learned advocate
for the accused, when there are two views regarding the commission of offence, the
view favourable to the accused has to be accepted. In the circumstances of the case and for the above reasons, I hold that the prosecution failed to prove the ingredients of
Section 313 of Indian Penal Code and accordingly A-4 to A-9 are found not guilty for the offence punishable under Section 313 IPC and A-1, A-3 and A-10 to A-13 are not found guilty for the offence punishable under Section 313 read with 109 of Indian Penal Code.
The prosecution also alleged that A-1 and A-3 colluded with each other and decided to send PW-1 from their house and got abortion to her and that A-2 A-4 to A-8 and A-10 and A-13 abetted A-1 and A-3 for termination of pregnancy of PW-1.
44.To hold a person guilty of cheating it is necessary to show that he had fradulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise, subsequently such a culpable intention right at the beginning, i.e., when he made the promise cannot be presumed.
45.As stated above, as per evidence of PW-10, she terminated pregnancy of PW-1 with the consent of PW-1 only. There is no whisper in the evidence of PW-10 and PW-13
Medical Officers that any injection was administered to PW-1 by A-9 for termination of her pregnancy. If really, A-2, A-4 to A-8, A-10 and A-13 abetted A-1 and A-3 for termination of pregnancy of PW-1 forcibly, PW-1 would have raised cries in the hospital of PW-10. Though, PW-9 deposed that he heard the cries of PW-1, he nowhere deposed that A-4 to A-9 forcibly took PW-1 in Auto. Admittedly, as per admission made by PW-9, 24 there are property disputes in between him and A-10. Even admitted for a moment that
A-1, A-3 at the instance of other accused terminated pregnancy of PW-1, the said Act would not amount to Cheating. The evidence of PW-1 is not sufficient to prove the ingredients of Section 417 of Indian Penal Code. Viewed from any angle, the accused are not liable to be convicted for the offence punishable under Section 417 and under
Section 417 read with 109 of Indian Penal Code.
A-1 to A-8 and A-10 to A-13 charged for the offence punishable under Section 120-B of Indian Penal Code alleging that they conspired together and hatched plan and to get rid off PW-1.
46.It is the evidence of PW-1 that A-6 took her in Tata Sumo Vehicle and dropped her near Uyyalapalli village, where A-4 to A-7 took away Tata Sumo vehicle. A-2 and A-10 brought her in a Tractor to her village and dropped her at her village. The evidence of
PW-4 is not helpful to the prosecution as he did not support the case of prosecution to prove that PW-1 was forcebly brought to Uyyalapalli village in his Tractor. As per evidence of PW-5, in the month of Ocotber 2009, A-5 and another lady dropped PW-1 near his house and left her there. He also identified A-7. Admittedly, A-5 and A-7 are not known to PW-5. No test identification parade was conducted by Investigation Officer to identify A-5 and A-7 through PW-5. Taking into consideration of evidence of proseuction witnesses there is no material placed by the prosecution to prove that the above accused conspired together and hatched a plan to drive out PW-1 from the house of A-1.
47.Learned advocate for the accused argued that first information report was fabricated document and it cannot be looked into. In support of his contentions he relied upon a decisoin reported in ( Murudanal Augusti Vs. State of Kerala ) 1980 Supreme
Court Cases ( Criminal) 985, (Y.s.Nanji Reddy Vs. State of A.P) 2000 (2) ALD (Criminal) 546 A.P wherein it was observed that in above decisions, there was delay in reaching the first 25 information report to the Court. In that connection it was observed that there was serious doubt in prosecution case.
(i) In the present case, Pw-1 gave report to the police on 14.10.2009 and whereas the alleged incident of termination of pregnancy had taken place on 10.10.2009. Within reasonable time, PW-1 lodged report with the police. As per endorsement on Ex.P-1 first information report, the learned Magistrate received first information report on 19.10.2009 at 4.50 P.M., and where as First Informatoin Report was issued on 14.10.2009.
PW-14 who is Investigation Officer did not explain the delay in sending the first information report to the concerned court.
48.As per evidence of PW-14, PW-1 gave complaint to Superintendent of Police,
Nellore and the same was referred to him for investigation. He did not enclose the complaint given by PW-1 to Superintendent of Police, Nellore along with charge sheet.
Admittedly, the complaint given by PW-1 to the Superintendent of Police is not produed
before this Court. Prosecution suppressed the same. As argued by the learned advocate
for defacto complainant, question of delay does not arise in case of continuing offence.
PW-1 alleged that accused harassed her. Taking into consideration of material on record, the delay in sending first information report to the concerned Magistrate is not a ground to disbelieve the evidence of prosecution witnesses, if otherwise acceptable.
49.Taking into consideration of evidence on record, the finding recorded by the court below is valid and justified. There are no grounds to interfere with the finding recorded by the court below. Hence, the said finding is valid and justified and the same is liable to be confirmed.
50.In the result, Criminal Appeal preferred by the appellant/defacto complainant
Aare Sreekala @ Kalavathi, wife of A.Tirupati against the judgment of acquittal in
S.C.No.6/2011 on the file of Assistant Sessions Judge, Kovur dated 30.11.2012 is hereby 26 dismissed by confirming the said judgment.
Typed on my direct dictation by steno, corrected and pronounced by me in the open Court on this the 10th day of April 2017.
Sd/-Ch.Ramachandra Murthy,
IV ADDL. DISTRICT & SESSIONS JUDGE
NELLORE.
APPENDIX OF EVIDENCE
NIL
Sd/-Ch.Ramachandra Murthy,
IV ADDL. DISTRICT & SESSIONS JUDGE
NELLORE.
// True Copy //
IV ADDL. DISTRICT & SESSIONS JUDGE
NELLORE.
Copy submitted to
The Honourable Registrar (Judicial), High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh.