Sri Dr D Hemanth Kumar

Judgment SC.223/2016 1 of 20 dated. 11-10-2022

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR FAST

TRACKING THE CASES RELATING TO ATROCITIES AGAINST

WOMEN-II-CUM-XI ADDL.METROPOLITAN SESSIONS JUDGE ::

AT HYDERABAD.

Present: Sri D. Hemanth Kumar, IV Addl. Metropolitan Sessions Judge, Hyderabad FAC.Spl.Sessions Judge for Fast Tracking the cases relating to atrocities against Women.II-cum-XI.Addl. Metropolitan Sessions Judge, Hyderabad.

Dated this the 11 th day of October, 2022

SESSIONS CASE NO. 223 / 201 6

( PRC No.16/2016 )

Committed by Smt. S. Sreedevi, VIII Addl. CMM, Hyderabad

Crime Number and Cr. No.449/2015 of P.S. Chaderghat, Police Station Hyderabad

P. Durga Prasad @ Prasad, S/o. Late Narsing Rao, Name and descriptionAged: 31 years, Occ: Race Club worker, R/o. H.No. of the accused person16-9-276, Vijaynagar Colony, Old Malakpet, Hyderabad

Name and descriptionThe State of Telangana, represented by the of the complainantInspector of Police, P.S. Chaderghat, Hyderabad

Prosecution Sri G.Narayana , Additional Public Prosecutor. conducted by

Sri Syed Kareemuddin Shakeel, Sri Shaik Abed Ali, Defence conducted by Sri Md. Ibrahim, Counsel for the accused

Offences chargedUnder Section 376 of IPC

Plea of the accusedPleaded not guilty.

Finding of the CourtFound not guilty

RESULT:- In the result, accused is found not guilty for the offence punishable under Section 376 of the Indian Penal Code and accordingly, he is acquitted under Section 235(1) of Cr.P.C. The bail bonds of the accused shall stand cancelled after expiry of appeal time. M.O.1 (Celkon mobile phone) shall be confiscated to the State after expiry of appeal time. The unmarked case property i.e., photos of the victim, which was deposited vide P.I.No. 11/2022 dated 21-07-2022, shall be destroyed

Digitally signed

Dintyala

by Dintyala HemanthHemanth Kumar Date:

Kumar

2022.10.19 17:42:46 +0530

Judgment SC.223/2016 2 of 20 dated. 11-10-2022 after expiry of appeal time. The unmarked non- valuable case property, if any, shall be destroyed after expiry of appeal time.

J U D G M E N T :: ::

1.The Inspector of Police, Police Station Chaderghat,

Hyderabad has filed this charge sheet against the accused for the offence under section 376 of IPC.

2.The case of the prosecution in brief is as follows :

(i)That on 28-08-2015 at 0430 hrs, the victim/defacto complainant lodged a complaint stating that on 27-08-2015 at about 08:30 p.m. she along with her husband slept in their house situated at Vijay Nagar colony, Old Malakpet, Hyderabad and while she was sleeping her husband woke up and went outside by keeping the door opened. On 28-08-2015 at about 00.00 to 00.30 hours one person by name Prasad (accused herein), who is residing opposite to her house, came into her room and locked the door from inside and forcibly committed rape on her without her consent in spite of her resistance and struggle with him. In the said process the accused sustained injuries on his face and other parts of the body. After sometime her husband came back to the house and immediately she informed about the same to him as well as to her sister’s husband by name Narsing Rao and other family members. Hence, she requested to take necessary action.

(ii)Basing on the complaint, the LW.16-Sri R. Krishnam Raju,

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:42:56 +0530

Judgment SC.223/2016 3 of 20 dated. 11-10-2022

Sub-Inspector of Police, Chaderghat P.S. registered the same as a case in Crime No. 449/2015 under section 376 of IPC, issued FIR and since the offence is grave in nature, he handed over the case file to LW17-Sri P.Sathaiah, Inspector of Police for further investigation. During the course of investigation, LW.17/Sri P.

Sathaiah, Inspector of Police examined and recorded the statements of the victim/LW1 and other witnesses who are family members of victim namely Sri S. Nagaraju, Sri S.Gowtham @ Ravi and Sri S.Sattaiah (Lws.2 to 4) and sent the victim to the Modern

Govt. Maternity Hospital, Petlaburz, Hyderabad for medical examination where LW10/Dr.K.Suneela, Asst. Professor (Obst/Gyn) conducted medical examination on victim/LW1, seized the material objects and sent the same to A.P.F.S.L. for analysis and report.

Thereafter, LW17/Sri P. Sathaiah, Inspector of Police visited the scene of offence and conducted scene of offence observation panchanama and drafted rough sketch of the scene in the presence of mediators/Lws.6 & 7 namely Sri M. Balu and Sri

M.Gouresh and also recorded the statement of LW5/Master D.

Bhaskar.

(iii)On receipt of credible information, on 29-08-2015 at about 08:00 hours the accused was apprehended at Wahed Nagar Water

Tank by the police and brought him to Police Station, Chaderghat and produced before LW17/Sri P. Sathaiah, Inspector of Police and on interrogation, the accused voluntarily confessed about his commission of offence and in pursuance of his confession, one cell

Digitally signed

Dintyala

by Dintyala Hemanth Kumar

Hemanth

Date:

Kumar

2022.10.19 17:43:01 +0530

Judgment SC.223/2016 4 of 20 dated. 11-10-2022 phone and photograph of victim/LW1 have been seized from the possession of accused in the presence of Lws.8 and 9 namely Sri

A. Chiranjeevi and Sri M.Rajesh under the cover confession-cum- seizure panchanama and thereafter effected the arrest of the accused. Since the accused got scratch injuries on his face and neck during the scuffle while committing rape, LW17/Sri

P.Sathaiah, Inspector of Police sent the accused to Osmania

General Hospital for medical check up where LW12/Dr. B. Shankar,

Medical Officer examined and treated the accused as outpatient and issued medical certificate. LW11/Dr.K.V. Ramesh, Asst.

Professor got conducted the potency test on accused and issued report and thereafter, the accused was sent to the Court for judicial remand. Further the Investigating Officer also collected FSL report issued by LW13/Smt.K.Arun Jyothi, Assistant Director,

APFSL, Hyderabad wherein she gave final opinion that ‘based on clinical findings, FSL report, the possibility of sexual assault/intercourse cannot be ruled out’. After collecting all the material documents and after completion of the investigation, the

LW.17/Sri P. Sathaiah, Inspector of Police, P.S. Chaderghat filed charge sheet against the accused for the offence under section 376 of IPC.

3.Cognizance of the case was taken against the accused for the offence punishable under Section 376 of IPC and numbered the same as PRC No.16/2016 on the file of learned VIII Addl. Chief

Metropolitan Magistrate, Hyderabad.

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:43:06 +0530

Judgment SC.223/2016 5 of 20 dated. 11-10-2022

4.On appearance of the accused, copies of the case documents were furnished to him as contemplated under Section 207 of Cr.P.C before the lower court. Since the offence under

Sections 376 of IPC is exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Hon’ble

Metropolitan Sessions Judge, Hyderabad, by following the due procedure as contemplated U/s.209 Cr.P.C.

5.The case was registered as SC.No.223/2016 by the Hon'ble

Metropolitan Sessions Judge, Hyderabad and made over the same to the Court of V Additional Metropolitan Sessions Judge,

Hyderabad and later, as per the directions of Hon’ble Metropolitan

SessionsJudge,HyderabadvideOrderDis.No.

4210/MSJ.OPCell/2016, dated 12-08-2016, the said case was transferred to this Court for disposal according to law.

6.On appearance of the accused and upon hearing both sides, a charge under Section 376 of IPC was framed against the accused, read over and explained to him in vernacular language, wherein the accused denied the charge, pleaded not guilty and claimed to be tried.

7.During the course of trial, the prosecution has examined

PWs.1 to 8 and got marked Exs.P1 to Ex.P9 and M.O.1 . The accused was examined under section 313 Cr.P.C explaining the

Digitally signed Dintyalaby Dintyala Hemanth

Hemanth

Kumar KumarDate: 2022.10.19 17:43:11 +0530

Judgment SC.223/2016 6 of 20 dated. 11-10-2022 incriminating circumstances appearing against him in the evidence of prosecution witnesses, for which he denied the same and reported no defence evidence.

8.Heard the arguments on both sides and perused the entire material on record.

9.Now, the point stood for consideration is:

“Whether the prosecution is able to establish the guilt of the accused for the offence punishable under Section 376 of IPC as alleged beyond reasonable doubt?”

POINT :-

10.The brief case of the prosecution is that, the accused is residing in front of the house of victim/LW.1 situated at Vijay Nagar colony, Old Malakpet, Hyderabad. He developed sexual desires on the victim and waiting for a chance. As the husband of victim woman is a drunkard, he kept his observation on him and accordingly, on the intervening night of 27/28-08-2015 the accused found the husband of victim went outside in fully drunken condition, then he entered into the room of victim/LW.1 and committed rape against her forcibly without her consent even though the victim resisted him by scratching his face and neck with her nails and thereby the accused committed the offence punishable under Section 376 of IPC.

Digitally signed by Dintyala

Dintyala

Hemanth Kumar

Hemanth

Date:

Kumar

2022.10.19 17:43:17 +0530

Judgment SC.223/2016 7 of 20 dated. 11-10-2022

11.To establish its case the prosecution examined PW.s 1 to 8 and got marked Ex.P1 to P9 and M.O.1. Among PW.s1 to 8, PW.1 is the complainant and the victim, PW.2 is the brother-in-law of victim, PW.3 is the panch witness for confession-cum-seizure panchanama, PW.4 is the panch witness for observation of scene of offence panchanama and rough sketch, PW.5 is the doctor who conducted medical examination of victim and collected blood samples and issued final report. PW.6 is the doctor who treated the accused and issued medical certificate. PW.7 is the Sub-Inspector of Police, P.S. Chaderghat, who issued FIR. PW.8 is the Investigating officer, who conducted investigation and filed charge sheet in this case. The exhibits marked by the prosecution during trial are Ex.P1 is complaint, Ex.P2 is confession-cum-seizure panchanama, Ex.P3 is scene of observation panchanama, Ex.P4 is rough sketch, Ex.P5 is F.S.L. report, Ex.P6 is final opinion, Ex.P7 is the medical certificate, Ex.P8 is the F.I.R., Ex.P9 is Potency Test of accused.

M.O.1 is the Celkon mobile phone.

12.Section 375 of IPC defines the offence of rape and the punishment prescribed is under Section 376 of IPC.

13.For the offence under Section 376 of IPC, the prosecution must prove the following ingredients as laid down in

Section 375 of IPC.

14.Section 375 of IPC says that a man is said to commit “rape” if he:

Digitally signed Dintyalaby Dintyala Hemanth

Hemanth

Kumar KumarDate: 2022.10.19 17:43:22 +0530

Judgment SC.223/2016 8 of 20 dated. 11-10-2022

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.

under the circumstances falling under any of the following seven descriptions:

First: Against her will

Second: Without her consent

Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly: With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:43:27 +0530

Judgment SC.223/2016 9 of 20 dated. 11-10-2022

Fifthly: With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly: With or without her consent, when she is under eighteen years of age.

Seventhly: When she is unable to communicate consent.

Explanation 1:- For the purposes of this section, ‘vagina’ shall also include labia majora.

Explanation 2:- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non- verbal communication, communicates willingness to participate in the specific sexual act.

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1:- A medical procedure or intervention shall not constitute rape.

Exception 2:- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

15.PW.1 is the complainant/victim. She deposed that the accused is residing in front her house at Old Malakpet, Hyderabad and on 27-08-2015 at 8.30 P.M. they slept and her husband went outside by keeping the door open in the late night. In the

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:43:33 +0530

Judgment SC.223/2016 10 of 20 dated. 11-10-2022 meantime when she felt moving of a hand on her, she opened her eyes and saw that it was the accused, but not her husband. When she tried to shout, the accused pressed her neck and forcibly committed rape and even though she tried to resist him, the accused closed her face and she scratched on the face of the accused with her nails. While going away the accused told her that he has got one photo of her. She lodged complaint vide Ex.P1

before police and the police examined and recorded her statement

and referred her to the hospital where doctor seized her clothes and handed over to the police.

15(i). In the cross-examination, PW.1 admitted that at present she is staying with her sister and previously she used to stay in Old

Malakpet where apart from herself, other family members viz., father-in-law, mother-in-law, her husband and two brothers of her husband were used to stay there. She admitted that the said house was having ground and 1st floor and they used to stay in first floor. The entrance of the house is in ground floor and during night the main entrance of the house will be closed. She stated that normally they sleep at about 08:30 p.m. and her husband sometimes go to work, sometimes not and normally he will not be in the house. She further stated that on the late night at about 01:00 A.M. on the day of incident she went to police station and informed the police orally and on the same day her statemetn was recorded by the police. She admitted that she gave written complaint on the same day of incident. She do not remember the

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:43:38 +0530

Judgment SC.223/2016 11 of 20 dated. 11-10-2022 time when she has given the written complaint.

15(ii). PW.1 stated that she has been seeing the accused since 2010 after her marriage and there are houses by the side of their house in that vicinity and she knows that accused is a married and got children, but she does not know how many children he got.

PW.1 denied the suggestion that on the night of 27.08.2015 when the incident has happened she has not given written complaint.

Witness volunteers by the time when went to the police station it was past midnight thereby on 28.08.2015 she came and then gave the complaint. She denied the suggestions of learned Defence

Counsel with regard to committing rape by the accused and the allegations made against the accused in Ex.P1.

16.PW.2 is the brother-in-law of victim. He deposed that he came to know through LW.2/S. Nagaraju, the husband of PW.1 that on 27- 08-2015 the accused went into the house of PW1 in the night hours when she was sleeping in the absence of his brother and committed rape against PW1 forcibly. Then they all went to P.S.

where PW.1 lodged complaint. His statement was recorded by the police.

16(i). In the cross-examination, PW.2 admitted that they used to stay in ground floor of their house and by that time he was not doing any work and he normally sleep after 12:00 midnight. He also stated that there is only one entrance to the said house and

Digitally signed Dintyalaby Dintyala Hemanth

Hemanth

Kumar KumarDate: 2022.10.19 17:43:43 +0530

Judgment SC.223/2016 12 of 20 dated. 11-10-2022 they close the main door during nights and on the same day of incident in the midnight at 12:00 hours he came to know about the same. His brother (victim’s husband) informed him about the incident and he also went to the police station on the same day night where police examined him. He denied the suggestions put- forth by the learned Defence Counsel.

17.PW.3 is the panch witness for confession-cum-seizure panchanama of the accused. He deposed that on 29-08-2015 at 09.00 am the police called him along with LW.9/M. Rajesh to police station Chaderghat where they found the accused in the custody of police who confessed that he trespassed into his opposite house and committed rape against a woman and the panchanama was scribed before him. In pursuance of the confession, two photos and one cell phone was recovered from the accused under cover of confession-cum-seizure panchanama vide Ex.P2.

17(i). In the cross-examination, PW.3 stated that he studied upto 7th class and he cannot read and write english and it was written in english on which his signature was taken, but the contents of the same read over and explained to him in Telugu. He admitted that he was shown the handwritten statement on which he signed, but Ex.P2 is typed written one and it is not the one which was handwritten. He denied the suggestions put-forth by the learned

Defence Counsel that no confession was recorded in his presence and he is deposing falsehood at the instance of police as he is

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:43:49 +0530

Judgment SC.223/2016 13 of 20 dated. 11-10-2022 stock witness.

18.PW.4 is the panch for observation of scene of offence panchanama. He deposed that the Inspector of Chanderghat called him to Vijaynagar colony, Malakpet to act as panch witness and informed about committing rape in the basti by one person and the police conducted scene of observation panchanama under

Ex.P3 and drew rough sketch under Ex.P4 and took his signature.

18(i). During cross-examination, PW.4 admitted that he do not know the contents of panchanama. He denied the suggestion that he is deposing falsehood at the instance of police.

19.PW.5 is the doctor, who conducted medical examination on the victim/PW.1. She deposed about conducting of medical examination on Pw.1, collecting the materials from the body of victim and sending them to F.S.L. through police and giving her final opinion basing on the F.S.L. report. She gave her final opinion under Ex.P6 that sexual assault cannot be ruled out.

19(i). During her cross-examination by the Defence Counsel, PW.5 admitted that if a victim is married sexual intercourse cannot be ruled out.

20.PW.6 is the doctor, who conducted medical examination of the accused. He deposed about conducting of medical examination of accused on 29.08.2015 at 02:00 p.m. and finding

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:43:54 +0530

Judgment SC.223/2016 14 of 20 dated. 11-10-2022 the scratch marks over face and below the neck on right side of the accused. He issued Ex.P7/Medical certificate opining the injuries are simple in nature.

21.PW.7 is the Sub-Inspector of Police, P.S. Chaderghat. He deposed about receipt of Ex.P1-complaint and issuance of Ex.P8-

FIR and handing over the case file to PW.8. In the cross- examination, PW.7 stated that after verification of the contents of the complaint, he registered the case and he cannot say who drafted the complaint and where it was drafted. He denied the suggestions given to him by the learned Defence Counsel.

22.PW.8 is the Investigating Officer. He deposed about receipt of case file from PW.7, and recording the statements of witnesses, sending the victim to the hospital for medical examination, conducting scene of offence panchanama (Ex.P3) and drawing rough sketch of the scene (Ex.P4). He also deposed about apprehending the accused, recording his confession, seizure of cell phone (M.O.1) from the accused under cover of confession-cum- seizure panchanama and other part of investigation done by him in this case. His evidence is formal as to the investigation done by him in this case.

22(i). In the cross-examination, PW.8 admitted that the place of alleged offence is a thickly populated area and he cannot say the exact measurements of the area of the house, but it could be approximately 50 to 60 sq. yards. He admitted that he examined

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:43:59 +0530

Judgment SC.223/2016 15 of 20 dated. 11-10-2022

Pws.1, 2 and Lw/2/Nagaraju and LW.4/Sathaiah at police station one after the other and he did not mention the time of examining them under Section 161 Cr.P.C. As per his investigation the accused spent half-an-hour time at the house of PW.1 and he cannot say who drafted Ex.P1-complaint. He denied the suggestion that his investigation in this case is not proper and the accused is falsely implicated in this case. He admitted that as per the record the accused is married and having four daughters.

23.The place of offence is a thickly populated area and the house of victim is approximately 50 to 60 sq. yards, in which

PW.1/victim along with her husband is residing in the first floor and the PW.2 is residing in the ground floor and entire family members have been residing in the said house. It is pertinent to note that

PW.1 in her evidence deposed that in spite of her resistance and tried to shout, the accused pressed her neck and forcibly committed rape against her and during the scuffle she scratched on the face of the accused with her nails. There arises suspicion with regard to committing such a brutal offence of rape by the accused even though the victim resisted the accused by scratching his face with her nails and it is also improbable to believe such a brutal offence of rape against PW.1 by the accused where all the inmates of the house, are living together.

The Hon’ble Supreme Court of India reported in (2018) 18

SCC 34 at Paras 6,13,22 to 25 categorically held that it is improbable to believe in the residential house where all the inmates of the house, Mother, Children, Sister and Wife of the accused was living, such a brutal offence of rape could not been executed that would make

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:44:05 +0530

Judgment SC.223/2016 16 of 20 dated. 11-10-2022 the prosecution. The Hon’ble Apex Court in (2006) 10 SCC 92, held that:

Para No.9: It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and believe the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.

Para No. 10: In the present case there were so many persons in the clinic and it is highly improbable that the appellant would have made a sexual assault on the patient who came for examination when large number of persons where present in the near vicinity. It is also highly improbable that the prosecutrix could not make any noise or get out of the room without being assaulted by the doctor as she was an able-bodied person of 20 years of age with ordinary physique. The absence of injuries on the body improbabilise the prosecution version.

24.The F.S.L. report goes to show that on examination of items no.1 to 10, semen and spermatozoa are not detected on item nos.4, 5, 7 to 10, blood is not detected on item nos. 4, 5, 8, 9 and 10, foreign material is not detected on nail clippings (item no.4), foreign hair is not found in item no.5. The F.S.L. report is also not supported the version of PW.1 more particularly when she specifically stated that she resisted and obstructed accused even by causing scratch marks on his face. This instance spelt out by her to substantiate her contention. But when this version put to the litmus test through forensic science expert evidence it fell to the ground as no foreign material found in the nail clippings of the

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:44:10 +0530

Judgment SC.223/2016 17 of 20 dated. 11-10-2022 prosecutrix. So this Court has to give much prominence to the version of expert evidence as convincing and trustworthy. So that this Court not in a position to consider the contentions of the victim to accept her contentions as true and correct. One more instance that can be culled out from the version of the prosecutrix is that the accused stayed in the room for half-an-hour by closing the door from inside and committed the said act. In the cross- examination she categorically stated that she is residing in the joint family and many persons are residing in the said house which is within the area of 50 to 60 sq. yards place. Further-more the said house is having only one entry in the ground floor and it has no other exit points. Even then she ventured to depose that her husband left the house during night hours and in the odd hours of that night she woke up and observed the person by her side as not her husband and she further shown the accusing finger towards the accused. When there was darkness in the room and after noticing the accused though she tried to raise hues and cries even then the accused pressed her neck and committed the offence against her will and without her consent by staying there for about half-an-hour is not appearing to be convincing. When able bodied person without the consent cannot perform the intercourse against the will and consent of the said person. Having regard to the above said aspects and also by considering the totality of the facts and circumstances, this Court even at the cost of repetition compelled to observe that the evidence of Ex.P5 has to be considered and when it is considered then the contention of the

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:44:15 +0530

Judgment SC.223/2016 18 of 20 dated. 11-10-2022 prosecutrix falls to the ground. It creates doubt to accept the version of victim as true and correct. No doubt ocular evidence has more reliability than medical evidence even than the FSL report i.e., Ex.P5 need not be looked with suspicion. Hence the evidence of PW.1 is not trust worthy.

25.PW.3, the panch for confession-cum-seizure panchanama, deposed that two photos and one cell phone was recovered from the accused. In the cross-examination, he admitted that he was shown the handwritten statement of the panchanama on which he signed, but the Ex.P2-confession-cum-seizure panchanama is typed written one and it is not the one which was handwritten.

Obtaining obtaining photos of ones’ is not much great difficult in the present Digital era due to advent of Technology world. Though the sole testimony of prosecutrix is to be considered, however when the court considered the totality of the facts and circumstances coupled with the evidence of PW.1, her contention is not appearing to be so convincing with regard to the alleged incident that took place on that alleged day as deposed by her, more particularly about the stay of the accused in her house for about half-an-hour there are many family members are residing in the said house. This version is not at all inspiring the confidence of the Court. Hence the prosecution has failed to establish the guilt of the accused for the offence under section 376 of IPC and as such, the accused is entitled for acquittal by giving benefit of doubt. The Point is answered accordingly.

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:44:20 +0530

Judgment SC.223/2016 19 of 20 dated. 11-10-2022

26.In the result, accused is found not guilty for the offence punishable under Section 376 of the Indian Penal Code and accordingly, he is acquitted under Section 235(1) of Cr.P.C. The bail bonds of the accused shall stand cancelled after expiry of appeal time. M.O.1 (Celkon mobile phone) shall be confiscated to the State after expiry of appeal time. The unmarked case property i.e., photos of the victim, which was deposited vide P.I.No. 11/2022

dated 21-07-2022, shall be destroyed after expiry of appeal time.

The unmarked non-valuable case property, if any, shall be destroyed after expiry of appeal time.

Directly typed to my dictation by Stenographer, corrected and

pronounced by me in the open court on this the 11th day of October,

2022. DintyalaDigitally signed by Dintyala Hemanth Hemanth Kumar KumarDate: 2022.10.19 17:44:26 +0530

IV ADDL. METROPOLITAN SESSIONS JUDGE,

FAC XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF

FOR PROSECUTION:

PW1: Complainant/Victim

PW2: Gautham @ Ravi, (brother-in-law of victim)

PW3: Chiranjeevi, (panch for confession-cum-seizure panchanama)

PW4: M. Gouresh, (pach for scene of offence observation)

PW5: Dr. K. Suneela, (Asst. Professor (Obst/Gyn) who conducted medical examination victim and issued final report) PW6: Dr. B. Shankar, (Medical Officer, OGH, Hyderabad)

PW7: R. Krishnam Raju, (S.I. of Police, P.S. Chaderghat)

PW8: P. Sathaiah, (Inspector of Police/Investigating officer)

Digitally signed

Dintyala

by Dintyala HemanthHemanth Kumar Date:

Kumar

2022.10.19 17:44:30 +0530

Judgment SC.223/2016 20 of 20 dated. 11-10-2022

FOR DEFENCE: - Nil -

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P1 : Complaint

Ex.P2 : Confession-cum-seizure panchanama

Ex.P3 : Scene of observation panchanama

Ex.P4 : Rough sketch

Ex.P5 : F.S.L. report

Ex.P6 : Final opinion

Ex.P7 : Medical certificate

Ex.P8 : First Information Report

Ex.P9 : Potency Test of accused

FOR DEFENCE: Nil.

MATERIAL OBJECTS MARKED :

M.O.1 : Celkon mobile phone. DintyalaDigitally signed by Dintyala Hemanth Hemanth Kumar KumarDate: 2022.10.19 IV ADDL. METROPOLITAN SESSIONS JUDGE,17:44:35 +0530

FAC XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

Judgment SC.305/2019 1 of 17 dated. 01-10-2022

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR FAST

TRACKING THE CASES RELATING TO ATROCITIES AGAINST

WOMEN-II-CUM-XI ADDL.METROPOLITAN SESSIONS JUDGE;

HYDERABAD.

Present: Sri D. Hemanth Kumar, IV Addl. Metropolitan Sessions Judge, Hyderabad FAC.Spl.Sessions Judge for Fast Tracking the cases relating to atrocities against Women.II-cum-XI Addl. Metropolitan Sessions Judge, Hyderabad.

Dated this the 01 st day of October, 2022

SESSIONS CASE NO. 305 of 201 9

( PRC No. 35 /2017 )

Committed bySri K. Venkatesh, XXII Addl. Chief Metropolitan

Magistrate, Secunderabad

Crime Number and Crime No.121/2016 of P.S. Trimulgherry, Police Station Secunderabad Ramaswamy Dinesh, S/o. R. Shanmugam, Aged: 22 Name and description years, Occ: Student, R/o. H.No. 12-5-188/7/3, South of the accused personLallaguda, Vijaypuri colony, Secunderabad

Name and description The State of Telangana, represented by the Inspector of the complainantof Police, P.S. Trimulgherry, Secunderabad

Prosecution conducted Sri G.Narayana , Additional Public Prosecutor. by

Defence conducted bySri P. Ekamber, Counsel for the accused

Offences chargedUnder Sections 376(1), 323 and 506 of IPC

Plea of the accusedPleaded not guilty.

Finding of the CourtFound not guilty

In the result, the accused is found not guilty for the offences under Sections 376(1), 323, 506 of IPC and accordingly, he is acquitted under section 235(1) of

Cr.P.C. The bail bonds of the accused shall stand RESULT:- cancelled after expiry of appeal time. The unmarked non-valuable case property, if any, shall be destroyed after expiry of appeal time.

Digitally signed

Dintyala

by Dintyala Hemanth Kumar

Hemanth

Date:

Kumar

2022.10.19 17:45:30 +0530

Judgment SC.305/2019 2 of 17 dated. 01-10-2022

J U D G M E N T :: ::

1.The Inspector of Police, Police Station Trimulgherry,

Hyderabad has filed this charge sheet against the accused for the offences under Sections 376(1), 323 and 506 of IPC.

2.The case of the prosecution in brief is as follows :

(a)On 12-09-2016 at 1000 hrs, the victim/LW.1 lodged a complaint stating that one person by name Dinesh (accused herein) is their family relative and she acquainted with him in the year 2014. In the month of October the said Dinesh proposed her that he loves her and wanted to marry her. Initially she refused, but after a month accepted for that proposal. Both of them used to speak with each other over telephone and also used to meet frequently. For three to four months the said Dinesh was good with her, but later he started harassing her physically and mentally. He wanted to quench his sexual lust and when she refused for the same, he used to beat her and also harass her mentally. The said Dinesh forcibly used to take her to his house and commit sexual intercourse with her. He committed sexual intercourse with her by placing her under threat by destroying her educational certificates which he took from her forcibly. The accused used to take her on his motorcycle out of the city and used to threaten her even though she was not willing to participate in the sexual intercourse with him. He used to behave in a sadistic manner and always keep her in fear of threat to her family and committed sexual assault regularly. When she intended to disclose all the above facts to her parents the accused threatened her that he would get her family members killed by engaging gundas. On 09.09.2016 at about 09:30 hours she went to the Institute in a bus and got down in paradise bus

DintyalaDigitally signed by Dintyala

Hemanth

Hemanth Kumar KumarDate: 2022.10.19 17:45:35 +0530

Judgment SC.305/2019 3 of 17 dated. 01-10-2022 stop, meantime the accused was waiting near the bus stop. He started quarrelling with her and beat her, due to which she received injury on her eyes. He forcibly took her on his motorcycle and abused her in most filthy language. Hence, she requested to take necessary action.

(b)Basing on the complaint, the LW.12-Sri R. Satyanarayana

Raju, Inspector of Police, Trimulgherry P.S. registered a case in Crime No.

121/2016 for the offences under Sections 376(1), 323 and 506 of IPC, issued FIR and took up investigation. During the course of investigation, the victim woman was sent to Gandhi Hospital for medical examination where LW.6/Dr. Krishnaveni, Asst. Professor of Obstetrics & Gynecology conducted medical examination, seized the material objects and sent the same to T.S.F.S.L. for analysis and report. Later, the statement of victim was recorded by LW.7-smt. P. Venkata Laxmi, Sub-Inspector of

Police at Bharosa Center. LW.12-Sri R. Satyanarayana Raju, Inspector of

Police examined and recorded the statements of parents of victim namely Smt. Veronika (LW.2) and Sri A. Sebastian (LW.3) and also recorded the statements of other witnesses viz., LW4-Sri Subramanyam and Smt. K. Balamani. Thereafter, LW.12 visited the scene of offence situated at Q.No. 554/3, Railway Officers colony, Bhoiguda,

Secunderabad, and as the family of accused vacated the said quarters he could not conduct the scene of offence panhanama and draw the rough sketch.

(c)On receipt of credible information on 13-09-2016 at about 17:00 hours the accused was apprehended at his house at H.No. 12-5- 188/7/3, South Lallaguda, Vijaypuri colony, Secunderabad by the police and brought him to P.S. and produced before LW12/Sri R. Satyanarayana

Raju, Inspector of Police and on interrogation, the accused voluntarily

Digitally signed

Dintyala

by Dintyala HemanthHemanth Kumar Date:

Kumar

2022.10.19 17:45:40 +0530

Judgment SC.305/2019 4 of 17 dated. 01-10-2022 confessed about his commission of offence and later produced the accused before the Court for judicial remand. Later, the potency test on the accused was got conducted by LW.8-Dr.J.Venkateshwar Reddy,

Medical Superintendent, MRD Section, Gandhi Hospital who gave his opinion stating that ‘as per Medical Board Opinion individual has no signs in favour of impotency”. He further collected FSL report issued by

LW.9/Dr. S. Gouthami, Asst. Director, T.S.F.S.L., Hyderabad. After collecting all the material documents and after completion of the investigation, the LW.12/Sri R. Satyanarayana Raju, Inspector of Police,

P.S. Trimulgherry filed charge sheet against the accused for the offences under Sections 376(1), 323 and 506 of IPC.

3.Cognizance of the case was taken against the accused for the offence punishable under Sections 376(1), 323 and 506 of IPC and numbered the same as PRC No.35/2017 on the file of learned XXII Addl.

Chief Metropolitan Magistrate, Secunderabad.

4.On appearance of the accused, copies of the case documents were furnished to him as contemplated under Section 207 of

Cr.P.C before the lower court. Since the offence under Sections 376(1) of

IPC is exclusively triable by the Court of Sessions, the learned

Magistrate has committed the case to the Hon’ble Metropolitan Sessions

Judge, Hyderabad, by following the due procedure as contemplated

U/s.209 Cr.P.C.

5.The case was registered as SC.No.305/2019 by the Hon'ble

Metropolitan Sessions Judge, Hyderabad and made over the same to this Court for disposal according to law.

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:45:48 +0530

Judgment SC.305/2019 5 of 17 dated. 01-10-2022

6.On appearance of the accused and upon hearing both sides, charges under Sections 376(1), 323 and 506 of IPC were framed against the accused, read over and explained to him in vernacular language, wherein the accused denied the charges, pleaded not guilty and claimed to be tried.

7.During the course of trial, the prosecution has examined

PWs.1 to 6 and got marked Exs.P1 to Ex.P6. The accused was examined under section 313 Cr.P.C by explaining the incriminating circumstances appearing against him in the evidence of prosecution witnesses, for which he denied the same and reported no defence evidence.

8.Heard the arguments on both sides and perused the entire material on record.

9.Now, the point for consideration is:

“Whether the prosecution is able to establish the guilt of the accused for the offences punishable under Sections 376(1), 323 and 506 of IPC as alleged beyond reasonable doubt?”

POINT :-

10.The brief case of the prosecution is that, the victim/LW.1 got acquainted with the accused in the year 2014 as he is their family relative and in the month of October the accused proposed her for love and wanted to marry her, but she refused for the same initially. After a month she accepted for his proposal and both of them started to speak each other over telephone and also used to meet frequently. For three to four months the accused behaved in a good manner, but later he started harassing her physically and mentally. He wanted to quench his

Digitally signed

Dintyala

by Dintyala Hemanth Kumar

Hemanth

Date:

Kumar

2022.10.19 17:45:54 +0530

Judgment SC.305/2019 6 of 17 dated. 01-10-2022 sexual lust and when she refused for the same, he used to beat her and also harass her mentally. The accused forcibly used to take her to his house at Railway Officers colony, Boiguda, Secunderabad and commit sexual intercourse with her by placing her under threat by destroying her educational certificates, which he took from her forcibly. The accused used to take her on his motorcycle out of the city and used to threaten her even though she was not willing to participate in the sexual intercourse with him, even than he used to behave in a sadistic manner and always kept her in fear of threat to her family and commit sexual assault regularly. When she intended to disclose all the above facts to her parents the accused threatened her that he would get her family members killed by engaging gundas. On 09.09.2016 at about 09:30 hours she went to the Institute in a bus and got down in paradise bus stop, meantime the accused was waiting near the bus stop. The accused started quarrelling with her and beat her, due to which she received injury on her eyes and thereby the accused committed the offences punishable under Sections 376(1), 323 and 506 of IPC.

11.To establish its case the prosecution examined PW.s 1 to 6 and got marked Ex.P1 to P9. Among PW.s1 to 6, PW.1 is the complainant-cum-victim, PW.2 is the mother of victim, PW.3 is the circumstantial witness, PW.4 is the S.I. of Police, Bharosa Center, CCS,

DD, Hyderabad who recorded the statement of victim under Section 161 of Cr.P.C., PW.5 is the is the doctor who conducted medical examination of victim and collected blood samples and gave final opinion, PW.6 is the

Investigating officer who conducted investigation and filed charge sheet.

The exhibits marked by the prosecution during trial are Ex.P1 is complaint, Ex.P2 is preliminary report, Ex.P3 is the FSL report, Ex.P4 is

Digitally signed

Dintyala

by Dintyala HemanthHemanth Kumar Date:

Kumar

2022.10.19 17:45:59 +0530

Judgment SC.305/2019 7 of 17 dated. 01-10-2022 final opinion issued by PW.5, Ex.5 is the original F.I.R., Ex.P6 is Potency

Test Certificate of accused.

12.For the offence under Section 323 of IPC, the prosecution must prove the following ingredients:- (1) Accused voluntarily caused bodily pain, decease or infirmity to the victim; (2) The accused did so with intention of causing hurt or with the knowledge that he would thereby cause hurt to the victim.

13.For the offence under Section 506 of IPC, the prosecution must prove the following ingredients:- (1) The accused threatened someone with injury to his person, reputation or property or to the person, reputation or property of another in whom the former was interested; (2) The accused did so with intent to cause alarm to the victim of offence; (3) the accused did so to cause the victim to perform any act which he was not legally bound to do.

14.Section 375 of IPC defines the offence of rape and the punishment prescribed is under Section 376 of IPC.

15.For the offence under Section 376(1) of IPC, the prosecution must prove the following ingredients as laid down in Section 375 of IPC.

Digitally signed

Dintyala

by Dintyala Hemanth Kumar

Hemanth

Date:

Kumar

2022.10.19 17:46:04 +0530

Judgment SC.305/2019 8 of 17 dated. 01-10-2022

Section 375 of IPC says that a man is said to commit “rape” if he:

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.

under the circumstances falling under any of the following seven descriptions:

First:Against her will

Second : Without her consent

Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly: With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly: With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly: With or without her consent, when she is under eighteen years of age.

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:47:41 +0530

Judgment SC.305/2019 9 of 17 dated. 01-10-2022

Seventhly: When she is unable to communicate consent.

Explanation 1:- For the purposes of this section, ‘vagina’ shall also include labia majora.

Explanation 2:- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non- verbal communication, communicates willingness to participate in the specific sexual act.

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1:- A medical procedure or intervention shall not constitute rape.

Exception 2:- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

16.PW.1 is the victim. She deposed that on 12.09.2016 she lodged a report at Trimulgherry police station stating that she met the accused in the year 2014 and in the month of October, 2014 he proposed that he intends to marry her. Initially for about three months they were talking to each other over phone and later the accused started harassing her sexually and mentally. When she told him that she would inform whatever happened in her house, the accused threatened that he will burn her certificates and will spoil her name. PW.1 also deposed that she used to carry the certificates every day as she used to do internship.

The version of the prosecutrix on this aspect is not at all appearing to the true and convincing for the simple reason that if she really doing internship then she ought to have kept her original certificates with her employer after verification of those certificates or the employer ought to

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:47:49 +0530

Judgment SC.305/2019 10 of 17 dated. 01-10-2022 have returned the original certificates to her. So the contention of PW.1 that she used to carry her original certificates every day to the office is appearing to be far from truth. Even for the sake of arguments the contention of the prosecutrix is considered as true and correct, then she ought to have come up with a specified date, time and place where the accused forcefully snatched those documents from her. If really the above said incident occurred then she ought to have mentioned about the same with details in Ex.P1-complaint. But on its perusal no such specific averment found place. Furthermore PW.1 in the chief examination stated that accused took her on his bike in various lanes and sub-lanes and used to beat her while they were travelling and she clearly stated that accused used to beat her with his elbow when she sat on the backside of the motorcycle of the accused and because of that beatings she received heavy bleeding during the period for nine months. Whereas in the cross-examination, she unequivocally stated that she did not state about those aspects to the police at the time of recording her statement. On perusal of the record by the date of giving the evidence the age of the prosecutrix is 26 years. So her age by the time of the alleged incident of beating is around 18 to 20 years and she is hale and healthy person and not suffering with any infirmities more particularly physical infirmities. Then undoubtedly she got every chance or occasion to take appropriate steps either to resist or to avoid the accused even then there is no material to show that any kind of resistance from the prosecutrix. This also appearing to be not convincing and trustworthy. One more instance that can be culled out is that accused made a marriage proposal to her in October, 2014, by considering the said proposal only she has consented for physical relationship with him. On this aspect it is not out of place to mention that the Hon’ble Supreme Court of India in Criminal Appeal No.

Dintyala

Digitally signed by Dintyala

Hemanth

Hemanth Kumar KumarDate: 2022.10.19 17:47:54 +0530

Judgment SC.305/2019 11 of 17 dated. 01-10-2022

635 of 2020 (Arising out of SLP (Crl.) No. 393 of 2020) in

between Maheshwar Tigga Vs. The State of Jharkhand dated 28-

09-2020 it was observed in paras-13, 14 and 17 as follows.

“13. The question for our consideration is whether the prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by the appellant or was her consent based on a fraudulent misrepresentation of marriage which the appellant never intended to keep since the very inception of the relationship. If we reach the conclusion that he intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact, the offence of rape under Section 375 IPC is clearly made out. It is not possible to hold in the nature of evidence on record that the appellant obtained her consent at the inception by putting her under any fear. Under Section 90 IPC a consent given under fear of injury is not a consent in the eyes of law. In the facts of the present case we are not persuaded to accept the solitary statement of the prosecutrix that at the time of the first alleged offence her consent was obtained under fear of injury.

14.Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her.”

17. This court recently in Dhruvaram Murlidhar Sonar vs.

The State of Maharashtra and Others, AIR 2019 SC 327

and in Pramod Suryabhan Pawar vs. State of Maharashtra

and another, (2019) 9 SCC 608 arising out of an application under Section 482 Cr.P.C. in similar circumstances where the relationship originated in a love affair, developed over a period of time accompanied by physical relations, consensual in nature, but the marriage could not fructify because the parties belonged to different castes and communities, quashed the proceedings.”

The Hon’ble Supreme Court in the above said judgment also reiterated the decisions of various Hon’ble High Courts reported in (i) Kaini Rajan Vs. State of Kerala (2013 9 SCC 113, (ii) Uday Vs. State of Karnataka (2003) 4 SCC 46 wherein it was observed that the physical relationship between the parties was established on the foundation of a promise to marry and the Court set aside the conviction under Section 376 of IPC also

Digitally signed

Dintyala

by Dintyala HemanthHemanth Kumar Date:

Kumar

2022.10.19 17:48:00 +0530

Judgment SC.305/2019 12 of 17 dated. 01-10-2022 noticing K.P. Thimmappa Gowda Vs. State of Karnataka (2011) 14 SCC.

17.Considering the citations referred above and the facts of the case on hand, in the present there are every chances for the victim to avoid and deny for the sexual intercourse even if the accused forced or threatened, but the victim failed to do so and continued the sexual relationship with the accused for about two years till the incident that was occurred on 09.09.2016 at Kanchi Kamakoti Institute at Paradise as alleged by the victim, which also creates a suspicion about the occurrence of the incident too. For all these two years what made the victim when the accused continued sexual intercourse by threatening her. It is not possible to hold in the nature of evidence on record that the appellant obtained her consent at the inception by putting her under threat or fear. Under Section 90 of IPC a consent given under fear of injury is not a consent in the eyes of law. In the facts of the present case this Court is not persuaded to accept the solitary statement of the prosecutrix that the accused threatening her and by putting fear of injury obtained her consent. Undoubtedly she got every chance or occasion to take appropriate steps either to resist or to avoid the accused, even then there is no material to show that any kind of resistance from the prosecutrix. This also appearing to be not convincing and trustworthy.

18.PW.2 is the mother of victim. She also deposed in the same lines as that of PW.1. In the cross-examination, she denied the suggestion that as they intended to perform the marriage of PW.1 with the accused and since the accused did not agree for the same, they lodged a false case against him s as to bring him to the terms of

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:48:05 +0530

Judgment SC.305/2019 13 of 17 dated. 01-10-2022 marriage. When this Court considered the evidence of PW.2, she simply narrated in this case what all heard by her from the prosecutrix and she has not personal knowledge or not aware about the alleged acquaintance in between them. So much prominence cannot be given to her version by considering the factum that there is much inconsistency culled out even from the evidence of PW.1.

19.PW.3 is the circumstantial witness. She deposed that about six years ago the daughter of PW.2 (victim) went to learn computer classes and returned home crying and PW.2 came to her and asked her to come to their house and when she eqnuired with PW.1, she informed her that the person who loved her beat her on the way while she was going to computer class and she also informed her that the said person used to threaten her and took her to his house and committed rape against her and also threatened her with dire consequences that he would kill her mother. She deposed that she observed the injuries around the eyes of PW.1 and also on right shoulder. Inthecross- examination, PW.3 stated that the marriage of Pw.2 took place in my presence and the police examined and recorded her statement at her residence as she is a cancer patient. She denied all the suggestions during her cross-examination by the Defence Counsel.

20.On perusal of PW.3’s evidence evidently she is a hearsay witness and she does not know anything about the case except what she came to know about the alleged incident through PW.1 and PW.2.

She clearly stated that PW.2’s family is known to her and she is her neighbour. So by keeping that affinity she deposed before the Court.

When the evidence of PW.1 itself not inspiring the confidence of the

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:48:09 +0530

Judgment SC.305/2019 14 of 17 dated. 01-10-2022

Court on crucial material aspects, then giving much prominence to the evidence to this witness does not arise at all.

21.The Medical Officer is examined as PW.5. She mainly deposed that based on the requisition she examined the victim girl and observed that there was external genetalia was normal and she was on menstrual cycle. She collected pubic hair and nail clippings and sent it for F.S.L. for analysis and report. Ex.P2 is the Preliminary report and

Ex.P3 is the F.S.L. report. Based on these two documents she is of the opinion that sperm and spermatozoa and blood are detected on pubic hair and nail clippings. She gave her final opinion as in Ex.P4.

22.In the cross-examination, she simply stated that Ex.P4 final opinion issued based on Exs.P2 and P3. When this Court carefully gone through Ex.P2 he simply noted down about the physical examination aspects and he observed that on 09.09.2016 at 09:30 a.m. when she was going to college he took her forcibly and abused her and injured and last sexual intercourse done about one and half week back. This aspect not even spell out by the prosecutrix herself either in Ex.P1- complaint or in her statement before the police. As per Ex.P3 report, pubic hair is marked as item no.1 and nail clippings marked as item no.2 and the report shows that semen and spermatozoa are not detected on item nos.1 and 2, blood is not detected in item nos. 1 and 2, foreign hair is not found in item no.1, foreign material is not detected in item no.2.

As per Ex.P4 she observed that based on F.S.L. report sexual assault could not ruled out.

23.With regard to the allegations that the accused caused hurt to the victim and threatened her with dire consequences, the evidence

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:48:15 +0530

Judgment SC.305/2019 15 of 17 dated. 01-10-2022 of PW.1 as well as other prosecution witnesses is not inspiring the confidence of the Court. When the prosecutrix herself categorically stated in Ex.P1 and also in her evidence that the accused beat her by coming to her institute, on that count only she reported the matter. But on perusal of the evidence of PW.5 no physical injuries mentioned except a simple injury of bruise in right lower lid. So the medical evidence put-forth by the prosecution in support of the case of the victim not inspiring the confidence of the Court.

24.It is important to note that in a ruling laid down in

Bhaiyamiyan Vs. State of Madhya Pradesh reported in 2011

Crl.L.J pg.3577 SC, it was held that when there are material contradictions in oral and medical evidence, the testimony of the prosecutrix does not inspire confidence as such, accused will be entitled for acquittal.

25.In Narender Kumar Vs. State (NCT of Delhi) reported in 2012 Crl.L.J 3033 SC, it was held that “when there are material contradictions in the oral evidence and the other evidence, the testimony of prosecution does not inspire confidence and the accused is entitled for acquittal”.

26.PW.4 is the Sub-Inspector of Police, Bharosa Center, CCS,

Hyderabad and she recorded the statement of victim girl. PW.6 who is the is Investigating Officer and he deposed about the investigation done by him in this case. The evidence of Investigation agency i.e., Pws.4 and 6 is formal and their evidence cannot be taken into consideration as they are interested witnesses in succeeding their case.

Digitally signed

Dintyala

by Dintyala HemanthHemanth Kumar Date:

Kumar

2022.10.19 17:48:21 +0530

Judgment SC.305/2019 16 of 17 dated. 01-10-2022

27.Therefore, in view of the above held discussion and also in view of rulings discussed above, it is held that the prosecution has failed to establish the guilt of the accused for the offences under section 376(1), 323 and 506 of IPC by adducing appropriate material evidence as such, the accused is entitled for benefit of doubt. The Point is answered accordingly.

28.In the result, the accused is found not guilty for the offences under Sections 376(1), 323, 506 of IPC and accordingly, he is acquitted under section 235(1) of Cr.P.C. The bail bonds of the accused shall stand cancelled after expiry of appeal time. The unmarked non-valuable case property, if any, shall be destroyed after expiry of appeal time.

Directly typed to my dictation by Stenographer, corrected and

pronounced by me in the open court on this the 01st day of October,

DintyalaDigitally signed by 2022. Dintyala Hemanth

Hemanth

Kumar KumarDate: 2022.10.19 17:48:26 +0530

IV ADDL. METROPOLITAN SESSIONS JUDGE,

FAC XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF

FOR PROSECUTION: FOR DEFENCE:

PW1: Complainant/Victim - None -

PW2: Smt. Veronika, (mother of victim woman)

PW3: Smt. K. Balamani, (circumstantial witness)

PW4: Smt. P. Venkata Laxmi, (S.I. of Police, Bharosa Centre)

PW5: Dr. Krishnaveni, (Asst. Professor (Obst/Gyn) who conducted medical examination victim and issued final opinion) PW6: R. Satyanarayana Raju, (Inspector of Police/Investigating officer)

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE:

Ex.P1 : Complaint - Nil -

Ex.P2 : Preliminary report issued by PW5

Dintyala

Digitally signed by Dintyala

Hemanth

Hemanth Kumar

Date: 2022.10.19

Kumar

17:48:33 +0530

Judgment SC.305/2019 17 of 17 dated. 01-10-2022

Ex.P3 : F.S.L. report

Ex.P4 : Final opinion issued by PW.5

Ex.P5 : Original F.I.R.

Ex.P6 : Potency Test Certificate of accused

MATERIAL OBJECTS MARKED :

- Nil - DintyalaDigitally signed by Dintyala Hemanth HemanthKumar KumarDate: 2022.10.19 17:48:37 +0530

IV ADDL. METROPOLITAN SESSIONS JUDGE,

FAC: XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD

Fair Judgment 1 of 18 SC.No. 137/2016

IN THE COURT OF THE II ADDITIONAL METROPOLITAN

SESSIONS JUDGE: HYDERABAD

Present: Sri D.Hemanth Kumar

IV Addl. Metropolitan Sessions Judge, FAC II Addl. Metropolitan Sessions Judge,

Hyderabad.

FRIDAY, THE 02 nd DAY OF DECEMBER, 2022

SESSIONS CASE NO. 137 OF 2016

(in PRC No. 09 of 2015)

Committed by VI Addl. Chief Metropolitan Magistrate, Hyderabad.

Crime Number and Police Station96 of 2013 P.S., Tappachabutra, Hyderabad.

Name & description of the A1. Ankith Jagtap S/o Raju Jagtap, Age: Accused Nos. 1 to 321 years, Occ: Employee in Kirana Shop, R/o: H.No. 13-5-164, Amlapur, Karwan, Hyderabad.

A2. Vinay Jagtap S/o Raju Jagtap, Age: 24 years, Occ: Collection Boy in Voda- fone, R/o: H.No. 13-5-164, Amlapur, Karwan, Hyderabad.

A3. Vikas Jagtap aka Vicky S/o Raju Jagtap, Age: 22 years, Occ: Employee in Kirana Shop at Begum Bazar, R/o: H.No. 13-5-164, Amlapur, Karwan, Hy- derabad.

Name and description of the com-The State represented by Inspector of plainantPolice, P.S., Tappachabutra, Hyderabad.

Prosecution conducted bySri. Sk. Subhan Javeed, Addl. Public Prosecutor.

Accused defended bySri. D. Raji Reddy, Counsel for the Ac- cused Nos. 1 to 3.

Offence chargedUnder Sections 302, 307 r/w 34 IPC and Sec. 25 (1A) of Arms Act, 1957.

Plea of accusedPleaded not guilty

Finding of the CourtAccused No. 1 to 3 are found not guilty

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ResultIn the result, the accused No. 1 to A3 are found not guilty for the offences under Sections 302, 302 r/w 34, 307 r/w 34 of IPC and

Section 25(1-A) of the Arms Act, and accordingly they are acquitted for the said offences Section 235(1) of Cr.P.C. The bail bonds of the accused shall stands cancelled after appeal time. MO.1 shall be destroyed after appeal time.

This case is coming on 28.11.2022 before me for final hearing in the presence of Sri. Sk. Subhan Javeed, Additional Public Prosecutor, for the State/Complainant and of Sri. D. Raji Reddy, Counsel for the Accused

Nos. 1 to 3 upon perusing the material papers on record, having been heard and having stood over for consideration till this day, the court de- livered the following:-

J U D G M E N T

1.The Inspector of Police, Police Station Tappachabutra,

Hyderabad has filed this charge sheet against the accused No.1 to 3 for the offences under Sections 302, 307 read with 34 of IPC and Section 25(1A) of Arms Act, 1957 vide charge sheet in Crime No. 96/2013.

2.The case of the prosecution in brief is as follows :

(i)That on 26.05.2013 at about 19:40 hours LW.1/Sri Vishnu Singh,

S/o. Late Gopal Singh, Aged: 22 years, R/o. H.No. 13-5-158/75, L.K. Nagar,

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Amlapur, Karwan, Hyderabad (PW.1) came to police station with bleeding injuries on his person and orally complained that he was assaulted by known persons at L.K. Nagar, Amlapur, Karwan, Hyderabad with a dagger causing bleeding injuries. He also stated that the known persons were also assaulted his friend namely G.Sagar with a dagger causing bleeding injuries, who was shifted to a private hospital for treatment. Immediately the complainant was sent to the Osmania General Hospital, Hyderabad for treatment under the escort of PC-4669 of Tappachabutra P.S. and after being treated as out-patient vide MLC No. 14275, he came back to police station and lodged a complaint, in which the complainant alleged that on 26.05.2013 at about 07:00 p.m. he along with his friend- Sagar sat in front of his house and suddenly known persons namely Ankith Jagtap (A- 1), Vinay Jagtap (A-2), Vicky Jagtap (A3) and others attacked him and his friend Sagar with sword and knife. As a result of which he received bleeding injury over his stomach and head. His friend- Sagar also received bleeding injuries over his stomach and chest. Immediately his friend was shifted to Premier Hospital. Hence, he requested to take necessary action.

(ii)Basing on the above complaint, Sri P. Yadagiri, Sub-Inspector of

Police, P.S. Tappachabutra (PW.8) registered a case in crime No. 96/2013 for the offence under section 307 read with 34 of IPC and handed over the case file to Sri K. Nagaraju, Sub-Inspector of Police, P.S.

Tappachabutra (PW.9) for further investigation. During the course of investigation, PW.9 examined and recorded the detailed statement of

PW.1. Thereafter, he visited the scene of offence and preserved the scene under strong picket to avoid any further incidents. In the early hours of 27.05.2013 received information about the death of injured -G.Sagar, who

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was undergoing treatment at Osmania General Hospital, Hyderabad and then the section of law was altered from the section 307 read with 34 of

IPC to 302, 307 r/w 34 of IPC and took up further investigation.

Thereafter, LW.20/S. Murali Krishna, Inspector of Police, Tappachabutra (PW.11) visited the scene which is situated on the main road in front of

H.No. 13-5-158/75, L.K. Nagar, Amlapur, Karwan and conducted scene of offence observation panchanama and also drawn rough sketch of the scene in the presence of LW.5/Sri Vishal Singh and LW.6/Sri A. Durgesh.

LW.20/Sri S. Murali Krishna, Inspector of Police recorded the detailed statements of Lws.1 to 4 namely Sri Vishnu Singh, Sri G. Anil, Sri G. Sunil and Sri Deepak Kumar. LW.1/Sri Vishnui Singh reiterated his earlier statement. On 27.05.2013 LW20/Sri S. Murali Krishna, Inspector of Police visited the Mortuary of OGH along with his staff, secured the presence of mediators LW7/Sri M. Eshwar Joshi and LW8/Sri M. Suresh and conducted

Inquest panchanama over the dead body of deceased-G. Sagar, got photographed the dead body and subjected the body for post mortem examination and after completing the P.M.E., the dead body was handed over to the blood relatives. On 30.05.2013 at about 06:00 hours on receipt of credible information, the accused No.1 to 3 were apprehended at their house at Karwan, brought them to the police station and on though interrogation, they voluntarily confessed to have committed the offence. In pursuance of their confession statements, A1 lead the police to his house along with mediators and seized one Dagger, total measuring 13 ½ “ inches in length, 1 ½” width, made of mild steel, horn shape and sharp edge, blade measuring 8 ¾ “ inches and grip 4 ¾” inches which was used in the commission of offence containing bloodstains under the cover of panchanama at the instance of A1 from his

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house in the presence of LW10/Sri R. Srikanth and LW11/Sri H. Deepak

Singh under a cover of seizure report and pasted their signed panch chits.

(iii)After completion of seizure formalities, the arrest of A1 to A3 was effected and sent them to the Court for judicial remand. Later,

LW21/Sri Mohd. Riyazuddin, Inspector of Police took up investigation.

LW14/Dr. G. Devaraju, Asst. Professor held autopsy over the dead body and furnished opinion regarding the cause of death is due to multiple stab injuries to chest and abdomen. LW16/Dr. G.V. Jagadama, Assistant

Director of FSL who examined the material objects opined that the item no. 1 is examined – human blood is detected on item no.1, but its blood group could not be determined. LW.15/Dr. V. Dhananjay, C.M.O. of OGH, who treated LW.1/Sri Vishnu Singh opined that the injuries sustained are simple/grievous in nature. After completion of investigation and after collecting all the relevant documents, LW.21/Sri Mohd. Riyazuddin,

Inspector of Police filed charge sheet against the accused No.1 to 3 for the offences under Sections 302, 307 read with 34 of IPC and Section 25(1A) of Arms Act, 1957.

3.The learned VI Additional Chief Metropolitan Magistrate,

Hyderabad, took cognizance of the case against the accused for the offences under Sections 302, 307 read with 34 of IPC and Section 25(1A) of Arms Act, 1957 and numbered it as PRC No.9 of 2015.

4.On appearance of the accused No.1 to 3, copies of the case documents were furnished to them as contemplated under Section 207 of

Cr.P.C. before the committal Court. Since the offence under Sections 302, 307 read with 34 of IPC is exclusively triable by the Court of Sessions, the

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learned Magistrate has committed the case to the Hon’ble Metropolitan

Sessions Judge, Hyderabad, by following the due procedure as

contemplated under Section 209 Cr.P.C.

5.The case was registered as SC.No. 137/2016 by the Hon'ble

Metropolitan Sessions Judge, Hyderabad and made over the same to this

Court for disposal according to law.

6.On appearance of the accused No.1 to 3 and upon hearing, charges under Sections 302, 302 r/w 34, 307 read with 34 of the Indian

Penal Code and Section 25(1-A) of Arms Act, were framed against the accused, read over and explained to them in vernacular language, wherein they denied the charges, pleaded not guilty and claimed to be tried.

7.The prosecution in order to unfold its story, has examined PWs.1 to 11 and got marked Ex.P1 to P11 documents and MO.1.

8.After closure of the above prosecution evidence, the accused were examined under Section 313 Cr.P.C explaining to them the incriminating material available on record and they denied the same and reported defence evidence on their behalf.

9.Heard the learned Additional Public prosecutor and the defence counsel.

10.Now the point for consideration is whether the accused committed offence punishable under as Sections 302, 302 r/w 34, 307 r/w 34 IPC and

Section 25(1-B) of Arms Act, as contended by the prosecution agency?

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11.POINT: As the accused are charged for the offences under Sections 302, 302 r/w 34, 307 r/w 34 IPC and Section 25(1-B) of Arms Act, the following ingredients have to be established.

Ingredients of Section 302 IPC

1. The accused did an act, pursuance of conspiracy with intention

2. The said act was done--

a) with intention of causing death, or

b) with intention of,--

(i) causing such bodily injury as the accused knew to be likely to cause the death of the person to whom the harm was to be caused, or

(ii) causing bodily injury to a person and the bodily injury intended to be caused would have been sufficient in the ordinary course of nature to cause death, or

(iii) the act, if committed, would have been so imminently dangerous that it would have in all probability caused death and the act was attempted without any justification for incurring the risk of causing death or such injury as aforesaid.

12.Ingredients of Section 307 of IPC:

1. The accused did an act

2. The said act was done--

a) with intention of causing death, or

b) with intention of,--

(i) causing such bodily injury as the accused knew to be likely to cause the death of the person to whom the harm was attempted to be caused, or

(ii) causing bodily injury to a person and the bodily injury intended to be caused would have been sufficient in the ordinary course of nature to cause death, or

(iii) the act, if committed, would have been so imminently dangerous that it would have in all probability caused death and the act was attempted without any justification for incurring the riskof

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causing death or such injury as aforesaid.

Ingredients of Section 25 of the Arms Act the accused was in possession of Knife which is prohibited arm in contravention of Section 5 of the Arms Act.

13.To prove the above charges, the prosecution examined Pws. 1 to 11 and Ex.P1 to P11 documents and Mos. 1 . PW.1 is defacto- complainant- cum- injured. PW.2 is the alleged eye witness, PW.3 is the circumstantial witness, PW.4 is panch for scene of offence and rough sketch. PW.5 is the panch for inquest panchanama of the deceased. PW.6 is the photographer, who took photos of dead body of the deceased at Osmania Government Hospital.

PW.7 is the panch for confession of the accused and seizure of weapon. PW.8 is the Sub- Inspector of Police who issued FIR. PW.9 is the Sub-Inspector of

Police, PW.10 is the doctor who treated the injured PW.1 and furnished opinion. PW.11 is the Investigating Officer in this case.

14.The first question that arises for determination is whether the death of G.

Sagar is homicidal or natural?

a)To prove the death of G. Sagar as homicidal, the prosecution mainly relied on the evidence of PW.5, PW.10, & PW.11. The doctor G. Devaraju, who conducted autopsy over the dead body of deceased is not examined and his evidence was given up. Ex.P10 PME report given by the said Doctor is marked through the evidence of PW.10 Dy. Civil Surgeon.

b) Before entering adverting to this aspect, it is necessary to refer to the decision of Hon’ble Apex Court, in State of UP Vs. Abdul and others

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reported in 1997 SCC (Cr.) 804, wherein it is held that the object of proceedings under Section 174 Cr.PC is merely to ascertain whether as person has died under suspicious circumstances or an unnatural death, and if so, what is the apparent cause of the death. The question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to be foreign to the ambit and scope of proceedings under Section 174 of Cr.P.C.

b)On combined reading of evidence of Pws.5, PW.10 and PW.11, it is revealing that G. Sagar sustained injuries to his stomach, chest, as noted in

Ex.P10 PME report, and the cause of death was due to multiple stab injuries to chest and abdomen. PW.10 in his cross examination admitted that as per

Ex.P10 no single injury mentioned in column No.9 can be cause the death; and seeing MO.1, it is clinchingly establishing that the death of victim G.

Sagar was homicidal but not natural.

15.Now the next question arises who are responsible for the death of G.

Sagar .

(1)In order to prove the same, the prosecution mainly relied upon the evidence of PW.1 to 3,6,7,8,9, 10 and 11.

(2)PW.1 deposed that he is resident of L.K. Nagar, Ambalpur,

Karwan,Hyderabad. He know the deceased Sgar and also G. Anil and G. Sunil.

He states that on 22.05.2013 at 9.00 p.m, there was some function in

Jummerath Bazar,Hyderabad and in that function the accused also attended, the deceased,himself and the accused danced in the said fucntion, arguments taken place, between the deceased and accused and the accused threatened the

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deceased with dire consequences, and some persons interfered and pacified the matter. Later on 26.05.2013 at about 7.00 p.m, himself,d eceased, Deepak

LW.4 were sitting and chit chatting at L.K.nagar, Amalpur, Hyderabad, suddenly the accused came there, attacked the deceased, A1 srtabed the deceased with a knife on his stomach, he tried to rescue the deceased,but A1 beat him on his head and stomach and on his hue and cries the locality people gathered there and on seeing the locality people, the accused persons fled away.

PW.1 further stated that Sunil and Deepak shifted the victim to nearby hospital and then to Osmania General Hospital, and he went to police station, lodged

Ex.P1 complaint, and he was sent to hospital for treatment. There after sagar succumbed to injuries.

(3)PW.1 in his cross examination stated that his complaint was not taken at first instance and that on 27.05.2013 on call given by police he went to police station and lodged Ex.P1, and police did not record his statement later on.

PW.1 in his cross examination admitted that his house is situated at 100 meters away from the scene of offence. The incident had not taken place in front of his house. This admission made by PW.1 is going against Ex.P1 complaint, wherein it was stated by him that while himself, sagar were sitting in front of his house, the accused came there and attacked him; but when comes to his chief examination, the place of offence is different, it is at about 100 meters away from his residence. According to PW.1, L.K. Nagar is a big locality and

PW.1 has categorically stated that the incident had not taken place in front of his house. So, this inconsistency elicited from the mouth of PW.1 creating doubt as to the presence of the accused at the time of offence; of course PW.1 also stated to have received injuries in the incident. In this connection, it is to

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stated that there is a counter case registered against this witness, in which Pw.1 was figured as accused No.1 in CC No.1 of 2016. Under the said circumstances, the evidence of PW.1 has to be scrutinized cautiously to see whether there is any corroboration from the independent witnesses.

(4)It was further elicited from PW.1 that he narrated about the incident in

Hindi but the police recorded in the same in Ex.P1 in English by mentioning the place of incident. He further admitted in the said incident others also attacked them but he has not given their names in the complaint as well as in his statement as he was not aware of them. Several omissions and contradictions in the evidence of PW.1 were elicited in his cross examination.

He admitted that the police have not seized his blood stained clothes.

(5)Coming to the evidence of PW.2, He also deposed about their attending to a Bharat on 22.05.2013 and quarrel that took place between the accused and

PW.1 and deceased. PW2 evidence is in consistent with the evidence of PW1 as referred below. The evidence of PW.1 is that A1 attacked the deceased with knife and stabbed while A2 and A3 caught hold the deceased and PW.1. IN the cross examination PW.2 admitted that he did not go to the police station on the date of incident. PW.1 was also present in Osmania General Hospital. He has not informed to the police about the death of the deceased on that night. Police came to the hospital when they were with the police. Police called him and

PW.1 to the police station on the next day of the incident. PW.2 admitted that he did not sign on the medical papers of the victim deceased when he was admitted in Premier Hospital as well as in Osmania General Hospital. PW.2 stated that he do not know whether the accused have also received injuries in the said incident, but admitted that there is a counter case registered against

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PW.1 and the deceased.

(6)Coming to the evidence of PW.3, he deposed about the quarrel that had taken place on 22.05.2013 and also seen the deceased Sagar on 26.05.2013 at about 7.30 p.m. leaving his home to meet Pw.1 and after some time locality people intimated that A1 to A3 attacked PW.1 and the victim deceased .

Immediately he went to the spot at Amlapur. In the cross examination he admitted that he went to the scene of offence, he did not find PW.1 at the scene of offence. He stated that PW.1 left the place through his brother received injuries and he did not shift injured to the hospital. He also admitted that he did not see the presence of PW.1 in the hospital. The material elicited from

PW.3 reveals that he did not witness the actual incident and his evidence is consistent with the evidence of PWs. 1 and 2 as to the presence of Pw.1 at the place of offence or in the hospital; thus rendering the evidence of PW.1 further doubtful.

(7)Coming to the evidence of PW.4 panch for scene of offence and through him Ex.P2 panchanama and rough sketch are marked. The evidence of PW.4 reveals that no incriminating material was found at the place of offence. PW5 is the inquest panch witness PW.6 is the photographer, who took photos of deceased at the Osmania General hospital as in Ex.P4.

(8)PW.7 is the panch for seizure and confessional statement of the accused.

His evidence is that on 30.05.2013 at about 9.00 a.m, when he was standing along with Deepak Singh at Mahankali Temple, Amlapur, Hyderabad, Inspector of Police called him and took him to the house of accused No.1 nearby lane, and there police seized MO.1 knife from the house of the accused; but he did

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not speak about any alleged confession of the accused No.1. Perusal of Ex.P5 is inconsistent with the evidence of PW.7, for the reason that their statement was initially recorded at Police Station and later they proceeded to the house of the accused. Thus, testimony of PW.7 is creating doubt about the recovery of MO.1 pursuant to the alleged confession of accused No.1 is also doubtful.

(9)The evidence of PW.8 is with regard to receipt of Ex.P1 complaint and registration of crime and issuance of Ex.P7 FIR on 26.5.2013. PW.8 in his cross examination admitted that he did not take signature of PW.1 in column

No.14 of Ex.P7. The evidence of PW.9 is with regard to alteration of section from 307 r/w 34 to 302, 307 r/w 34 of IPC.

(10)PW.10 deposed about examining PW.1 and finding injuries as noted in

Exc.P9 wound certificate. Through PW.10 Ex.P10 is also marked. PW.10 in her cross examination admitted that the injuries noted in Ex.P9 are possible due to fall from height on hard surface.

(11)Finally coming to the evidence of PW.11, his evidence is with regard to conduct of investigation in this case, visiting place of house situated at

H.No.13-5-148/75, LK Nagar, Amlapur, Karwan, conduct of Ex.P2 scene of offence and drawing of rough sketch, visit to mortuary of Osmania General

Hospital, conduct of inquest panchanama and apprehension of accused, seizure of MO.1 pursuant to the confession of accused No.1, but there is no corroboration as to the seizure of MO.1 from the accused No.1. PW.11 in his cross examination admitted that there are no persons available at the time of seizure ofMO.1. This admission goes against the very alleged confession and recovery of MO.1. further, PW.11 admitted that MO.1 was not recovered from the house of the accused when they were arrested. PW.11 further stated that no

Fair Judgment 14 of 18 SC.No. 137/2016

body came forward to give evidence except PWs. 1 and 2. PW.11 admitted that PW.1 did not state before him about the presence of PW.2 at the time of incident. Further the following infirmities were elicited from PW11 cross examination; i.I have not seized blood stained clothes of the victims.

ii.PW.1 narrated the incident in Hindi version and I recorded it in

Telugu.

iii.PW.1 did not disclose in his statement how the accused has received injuries in the said incident.

iv.PW.2 did not state to me that himself Vishnu and Sagar were sitting in front of the temple.

v.It is true that there is no mention in the statement of PW.2 that himself and others shifted the injured to Premier Hospital and OGH.

vi.It is true that PW.2 did not state to me that A1 stabbed PW.1 in his stomach.

vii.It is true that PW.2 did not state to me that A1 stabbed the deceased in his stomah.

(12) The material elicited from the cross examination of PW.11, creating doubt as to the veracity of the version putforth by PW.1 and 2 and their evidence is improvised version and thus it cannot be relied and acted upon for the reason that PW.1 is one of the accused in counter case and PW.2 evidence is distorted by inconsistency in his evidence and the material elicited from PW.11 creating doubt as to his testimony.

16.On analysing the entire evidence of prosecution witnesses, it is stated that the evidence of PWs. 1 and 2 is distorted in their cross examination when

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conjointly read with the evidence of Pw.11. There is no other material to show that the accused committed murder of G. Sagar.

17.The learned counsel for the accused relied upon the following citations.

1973 Crl.L.J. 504 Kalle Byre Vs. State Where statements in

English said to be translations in original statements made by the witness.

Prejudiced. Entitle to acquittal.

1976 Crl.LJ. 1736 Lakshmi Singh Vs. State, that non -explanation of injuries to the accused affects the prosecution case.

1996(2) ALD (Crl.) 31 Golla Jlla Reddy Vs. State, police started investigation based on oral complaint, disclosing cognizance offence, subsequent written report is hit by Section 162 Cr.PC and cannot be relied for corroboration 1999(1) ALD (Crl.) 300 AP Chigurpati Suryanayarana Vs. State, delay in lodging FIR, renders deliberate omission and adverse inference has to be drawn.

1999(1) ALD (Crl.) 519 AP Kota Peda Nagesh Vs. State, that non furnishing of entire statements recorded from direct witnesses the accused entitle to be acquitted.

2002 Crl.L.J. 3729 SC Dhanjaany Shanker Sheety Vs. State , that accused were arrested with injuries and no explanation was offered by the prosecution.

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18. In view of the ratio laid down and on reading entire evidence of the prosecution coupled with documentary evidence, it is clear that the prosecution has failed to bring home guilt of the accused for the offence under Section 302 or 302 r/w 34 of IPC. Coming to the offences under Section 307 r/w 34 IPC and 25(1-B) of Arms Act, on reading the evidence of prosecution witnesses, this Court is of the opinion that the prosecution has failed to bring home the guilt of the accused for the said offences beyond all reasonable doubts. The point is answered against the prosecution and in view of the accused.

19.In the result, the accused No. 1 to A3 are found not guilty for the offences under Sections 302, 302 r/w 34, 307 r/w 34 of IPC and Section 25(1-

A) of the Arms Act, and accordingly they are acquitted for the said offences

Section 235(1) of Cr.P.C. The bail bonds of the accused shall stands cancelled after appeal time. MO.1 shall be destroyed after appeal time.

Directly typed to my dictation by Stenographer -Gr.1 of this Court, corrected and pronounced by me in the open court on this 2 nd day of December, 2022.

IV ADDITIONAL METROPOLITAN SESSIONS JUDGE,

FAC II ADDITIONAL METROPOLITAN SESSIONS JUDGE,

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

Pw.1: Vishnu Singh

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Pw.2: Deepak Kumar

Pw.3: G. Sunil

Pw.4: Nishal Singh

Pw.5: M. Suresh

Pw.6: Hussain Khan

Pw.7: R. Srikanth

Pw.8: P. Yadagiri

Pw.9: A. Nagaraju

Pw.10: Dr. Dhananjay

Pw.11: S. Murali Krishna

FOR DEFENCE: NIL

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P.1 is the complaint.

Ex.P.2 is the Scene of offence panchanama along with rough sketch.

Ex.P.3 is the Inquest Panchanama.

Ex.P.4 is the 5 Photographs without CD (marked subject to objection).

Ex.P5 is the relevant portion of confession statement of A1.

Ex.P6 is the seizure report.

Ex.P7 is the FIR.

Ex.P8 is the section alteration memo.

Ex.P9 is the Wound certificate of PW1.

Ex.P10 is the PME Report

Ex.P11 is the FSL Report.

FOR DEFENCE: NIL

MATERIAL OBJECTS MARKED

MO-1 is the Knife.

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IV ADDITIONAL METROPOLITAN SESSIONS JUDGE,

FAC II ADDITIONAL METROPOLITAN SESSIONS JUDGE,

HYDERABAD

1 to 15SC.No.821/2017

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR FAST

TRACKING THE CASES RELATING TO ATROCITIES AGAINST

WOMEN-II-CUM-XI ADDL. METROPOLITAN SESSIONS JUDGE ::

AT HYDERABAD

Present: Sri D. Hemanth Kumar, IV Addl. Metropolitan Sessions Judge, Hyderabad FAC.Spl.Sessions Judge for Fast Tracking the Cases Relating to Atrocities Against Women.II-cum- XI.Addl. Metropolitan Sessions Judge, Hyderabad.

On this Saturday, the 15 th April,2023

S.C. NO .821 of 2017

( PRC No.40/2016 )

Committed bySri.Y.Govinda Reddy Chief Metropolitan Magistrate, Hyderabad Crime Number and Cr. No.97/2015 of PS.Kamatipura, Hyderabad. Police Station

A1.Shah Samiullah @ Mohd.Asad S/o Late Mahaboob Shareef,Age.40 years, Occ:Business (RealEstate),R/o.H.No.16-2-874/E/A,Akberbagh, Sayeedabad,Hyderabad.

A2. Mohd. Azeem Khan S/o.Md.Mahaboob Khan,Age.32years, Occ:Business(RealEstate) R/o.H.No.19-4-393/5,BesideJamaMasjid, Bahadurpura, Hyderabad.

A3.Mohd.Fayazuddin @Parvez S/o.Md.Zaffaryddub, Name and description Aged.36 years,Occ:Working at SaudiArabia, of the accused person(Abroad) R/o.H.No.19-4-430/18, Basti Nabi kalam, Tadban, Bahadupura, Hyderabad.

A4. Mohd. Shahzol S/o.Late AbdulGani Aged 38 years, Occ;Transport Business near Rama Talkies, R/o.H.No.16-4-264, Chanchalguda near Merhaba Hotel, Dabeerpura, Hyderabad.

A5. Abdul Faheem S/o.Late Abdul Nayeem, Aged.38years,Occ:FootwareBusiness, R/o.H.No.20-3-535,Jalakuncha, Hussaini Alam, Hyderabad.

Name and description The State of Telangana, represented by the of the complainant Inspector of Police, P.S. Kamatipura, Hyderabad Prosecution conducted Sri G. Narayana , Additional Public Prosecutor by

Defence conducted bySri.Mohd.Muzafarullah Khan and Raji Reddy, Counsel for the accused Offences chargedUnder Sections. 342, 323, 376-D, 506 r/w 109 of Indian Penal Code of IPC.

DintyalaDigitally signed by Dintyala

Hemanth

Hemanth Kumar KumarDate: 2023.04.17 17:15:07 +0530 2 to 15SC.No.821/2017

Plea of the accusedPleaded not guilty.

Finding of the CourtFound not guilty

In the result, the accused No.1 to A4 are found not guilty for the offences under sections 342, 376-D, 323 and 506 r/w 34 of Indian Penal Code; and A5 is found not guilty for the offences under Sections 342, 323, 376-D, 506 r/w 109 of Indian Penal Code, and, they are acquitted under section 235(1) Cr.P.C. The bail bonds of the accused shall stand RESULT:- cancelled after expiry of appeal time. MOs. 1 to 8 shall be destroyed after appeal time. Since none of the accused claimed MOs. 10 and MO.11 as that of them, MOs. 10 and 11 shall be confiscated to State after appeal time. The other invaluable property, if any shall be destroyed after appeal time.

J U D G M E NT :: ::

1. The accused No.1 to A4 stand charged for the offences punishable under Sections 342, 376-D, 323,506 r/w 34 of Indian Penal

Code, whereas the accused No.5 stands charged for the offences under

Sections 342, 323, 376-D, 506 r/w 109 IPC.

2.The case of the prosecution in brief is as follows :

(i)On 11.10.2015 the victim(PW.1) along with her husband (PW.2) came to Kamatipura Police station and orally reported about sexual assault by four persons (A1 to A4) in a transport shop at RamaTalkies,

Kamatipura, Hyderabad. Ravi Paul, Sub-Inspector of Police (PW.7) sent the victim immediately to Government Maternity Hospital for medical examination and treatment under female escort. Then, LW.15 Manohar,

Woman Sub-Inspector of Police visited PW.1, recorded her statement. The victim Pw.1 in her statement, stated that she was residing at House No.12-

DintyalaDigitally signed

by Dintyala

Hemanth

Hemanth Kumar

Date: 2023.04.17

Kumar

17:15:14 +0530 3 to 15SC.No.821/2017 2-374/1, Dyed Aliguda, Arab Galli, Gudimalkapur, Assifngar, Hyderabad along with her husband PW.2 and five children. Both PWs. 1 and 2 were eking out livelihood by doing tailoring work and running a tailor shop styled as “Razi Tailors” at Mulghi Premises No.12-2-419/B/9, situated beside Sara Dairy Farm, Hill Colony, Apathy Nagar, Asifnagar, Hyderabad.

On 10.10.2015 at about 8.00 p.m, PW1 went to her shop and taken cash of

Rs.2,000/- to purchase clothes at Panjagutta, Hyderabad. When she was on the way at Panjaugtta, she received a phone call from one Abdul

Faheem (A-5) who is known person to her. She told that she was going to

Panjaguttas to purchase clothes. After few minutes she reached panjagutta and stood near Hyderabad Central X Road. At about 9.00 p.m, she again received a phone call from Abdul Faheem (A-5) who told her stay there itself, as he too coming there and was well acquainted with a person who can give clothes on cheaper rate. She called her husband. In the meantime, three persons came and forcibly took her into their car.

They kept legs on her neck and closed her mouth tightly and brought her to Rama Talkies Road, Bahadurpura, Hyderabad, took her into a mulghi, then the cab driver left the place. One person was already present inside the mulghi. All the four persons beaten her with hands and without her consent they committed rape on her one after the other. She informed about the incident to her husband. After some time, she called her husband and informed about the incident. Thereafter they both came to

P.S. Kamatipura and reported the incident.

b)Basing on the said statement, PW.7 registered it as case in

Cr.No.97 of 2015 under Sections 363, 342, 323, 376(1)(g) r/w 34 of IPC, handed over case file to B. Ramesh , Inspector of Police (PW.18) for further investigation.

Digitally signed

Dintyala

by Dintyala Hemanth Kumar

Hemanth

Date:

Kumar

2023.04.17 17:15:18 +0530 4 to 15SC.No.821/2017

c)PW.8 took up investigation, rushed to the place of offence, situated at premises no.19-1-873/A/4, near Rama Talkies Road,

Bahadurpura, Hyderabad, examined the scene minutely, secured presence of mediators, conducted scenem of offence panchanama, got photographed and videographed the scene, summoned clues team, they developed chance prints, they furnished opinion that the finger prints are that of A1, A2 matched. PW.8 seized the material objects, recorded statement of victim Pw.1, collected information of the accused persons, apprehended A1 and A4, recorded confessional statements of A1, A4, then apprehended A5, effected their arrest, produced before the Court.

On requisition, Smt. Nirmala R.K. Dayawathi, the then V ACMM,

Hyderabad, recorded 164 Cr.PC statement of the victim, PW.6 conducted potency test of A4, A1 and A2 gave opinion. Then then I ACMM,

Hyderabad, conducted test identification parade of the accused.

d)The investigation revealed that PW.1 was working as tailor, A5 was known to her, she used to meet him regularly at different places. A1 to A5 are common friends. A4 was running transport and scrap shop, at

Kamatipura, Hyderabad. A3 worked in Saudi Arabia. During Bakrid festival

A3 came to Hyderabad. He was schedule to leave to his work place on 11.10.2015. As he intended to host a party to other accused to greet departure of A3 to Saudi. All the accused No.1 to A4 have planned to enjoy the occasion. A1 requested A5 to make arrangements of a woman for sexual enjoyment. Being friend of victim, A5 contacted victim and requested to joint party. A5 had given telephone number of A1 to PW.1. A1 and A5 contacted on mobile phone and convinced her to join the party in the night of 10.10.2015. As per the deal between the victim woman and accused, PW.1 promised to meet A1 to A3 at Panjagutta X Road around

Digitally signed

Dintyala

by Dintyala HemanthHemanth Kumar Date:

Kumar

2023.04.17 17:15:24 +0530 5 to 15SC.No.821/2017 9.30 p.m, A1 arranged a cab car on rent for pickup and transport of victim from Panjagutta to Kamatirpura. Around 9.45 p.m, PW.1 reached

Panjagutta X Road, accused A1 to A3 were waiting in the car at Panjagutta x Roads, contacted victim. She sat in the cab and proceeded to the shop of A4 situated near Rama Talkies, Bahdurpura, Hyderabad. When they are in en-route A1 to A3 purchased liquor bottles and other material. A4 was waiting in the office room. On reaching room, she feared with the atmosphere and asked them to leave her as she wanted to go back to her home. PW.1 telephoned to the cab driver also. The accused persons did not allow her to go back and forcibly took her inside the room. They tried the victim woman to consume liquor but she refused. A1 to A3 have forciblely committed sexual intercourse with her one after the other in the office room. A4 tried to have sexual intercourse with victim but she refused. But he committed sexual intercourse with her by putting her under fear of threat. They used condoms during commission of offenc.

After offence, A3 left room with victim. Around 1.30 a.m. the victim was thrown out of the office room by A1, A2 and A4. A5 abetted the offence by making arrangements for sending the victim to the accused persons.

Thus, the accused A1, A2, A3 and A4 committed offence punishable under

Sections 342, 323, 376-D, 506 r/w 34 of IPC. A5 committed an offence under Sections 342, 323, 376-D, 506 IPC r/w 109 r/w 34 of IPC.

3.The learned Chief Metropolitan Magistrate, Hyderabad, took cognizance of the case against the accused for the offences under

Sections 342, 323, 376-D, 506 r/w 34 of IPC r/w 109 IPC and numbered the same as PRC No.18 of 2019.

4.The learned Magistrate after complying the provisions of Section 207 Criminal Procedure Code by supplying copies of the documents to the

Digitally signed

Dintyala

by Dintyala HemanthHemanth Kumar Date:

Kumar

2023.04.17 17:15:29 +0530 6 to 15SC.No.821/2017 accused, committed the case against the accused to the Court of

Sessions. The Hon'ble Metropolitan Sessions Judge, took the case on file as

S.C. No. 821 of 2017, and made over to this Court, for disposal according to law.

5.On the appearance of the accused before this Court, after hearing the learned Additional Public Prosecutor and defence counsel, framed charges against the accused No.1 to A4 for the offences under

Sections 342, 323, 376-D, 506 r/w 34 of IPC and against A5 for the offences under Sections 342, 323, 376-D, 506 r/w 109 IPC, read over to the accused in that vernacular language the accused denied the same pleaded not guilty and claimed to be tried.

6.The prosecution in order to unfold its story, has examined

Pws.1 to 8 and got marked Ex.P1 to P20 documents and Mos. 1 to 11.

7. After closure of prosecution evidence, the accused were examined under Section 313 Cr.PC by explaining to them the incriminating material available on record. They denied the same and reported no defence evidence on their behalf.

8.Heard the learned Additional Public prosecutor and the defence counsel.

9.Now the point for consideration is whether the prosecution proved the guilt of the accused No. 1 to 4 for the offences under Sections 342, 323, 376-D, 506 r/w 34 of IPC and against A5 for the offences under

Sections 342, 323, 376-D, 506 r/w 34 of IPC, as contended it?

Dintyala

Digitally signed by Dintyala

Hemanth

Hemanth Kumar KumarDate: 2023.04.17 17:15:34 +0530 7 to 15SC.No.821/2017

POINT :-

10.To prove the above stated charges, the prosecution examined

PWs. 1 to 8 and got marked Ex.P1 to P20 documents and Mos. 1 to 11.

PW.1 is the defacto-complainant- cum- victim in this case. Ex.P1 and P2 are marked through PW.1. PW.2 is the husband of victim PW.1. PW.3 is the panch for scene of offence and rough sketch. Ex.P3 and P4 are marked through him. PW.4 is the panch for confessional statement of the accused persons and seizure; and Ex.P5 to P7 are marked through PW.4.

PW.5 is the Finger Print Clues Team and Ex.P8 is marked through PW.5.

PW.6 is the doctor who conducted potency test over A4, A1 and A2 and furnished opinion under Ex.P9 to P11 respectively. PW.7 is the Sub-

Inspector of Police, who registered the case under Ex.P12 FIR, PW.8 is the 1st Investigation Officer; and through him Ex.P13 to P.20 are marked and

Mo.1 to Mo.11 are also marked.

11. PW.1 deposed that she is resident of Arab Galli, Gudimalakapur,

Asifnagar, Hyderabad and she is working as Ladies Tailor. PW.2 is her husband. She do not know A1 to A5. About seven or eight years back, at about 8.00 p.m, when she was waiting in the bus stop at Panjagutta in order to go to Medhipatnam, at that time, about six persons kidnapped her in the cab and taken her near to Kamtipura area, they took her to one private office, there she found one person already present in the said office. There was no electricity in the said office at that time. Those persons beat her and committed rape on her one after the other. She became unconscious. Thereafter those persons thrown out her from the

Digitally signed

Dintyala

by Dintyala Hemanth Kumar

Hemanth

Date:

Kumar

2023.04.17 17:15:39 +0530 8 to 15SC.No.821/2017 said office at about 3.00 a.m. then she called to her husband over phone; meanwhile she asked one person who was present there near a Panshop to know about the area where she was standing at that time. She also noticed police vehicle near that place. During that time her husband came to that place. Her husband took her to Kamatipura Police Station and she gave her statement to the police and they have recorded the same. Ex.P1 is the statement given by her to the police at Maternity Hospital. PW.1 further stated that she did not give any statement under section 164 Cr.PC

before Magistrate.

12.On going through the evidence of Pw.1, though she speaks about commission of rape on her but she did not specifically identified the accused as the said persons who have committed the said offence or anything uttered against A5. The version put forth by her before this

Court is not consistent with the statement of her given before the Women

Sub-Inspector of Police under Ex.P1, in as much as in her Ex.P1 statement she specifically took the name of A5 as known person who called her twice

before the incident, and in the Ex.P1 statement she stated that she can

identify the remaining persons; but when it comes to her evidence, she did not state anything specifically against the accused persons nor identified as the persons who allegedly committed rape on her.

13.The learned Additional Public prosecutor with the permission of this

Court, examined this witness (PW1) in the manner of cross examination by confronting her Ex.P2 statement but this witness denied the same.

14.The learned Counsel for the accused, in the cross examination of

Pw.1, got it elicited from her that she had no prior acquaintance with the

Digitally signed

Dintyala

by Dintyala HemanthHemanth Kumar Date:

Kumar

2023.04.17 17:15:44 +0530 9 to 15SC.No.821/2017 accused persons who kidnapped her on that day. She admitted that it was darkness in that room and so that she could not make out to identify those persons who ravished on her upon that night. She do not know even their names. She did not state even the names of the accused to the police at the time of recording her statement. She further admitted that as the police shown the accused photos prior to identification proceedings, she identified the accused as culprits in the jail during course of Test

Identification Parade proceedings.

15.In view of the above evidence of Pw.1, it can be unhesitatingly held that there is nothing in the evidence of PW.1, to find anything incriminating against the accused herein.

16.Now this Court wants to see whether there is any incriminating material spelt out from the remaining witnesses, mainly PWs. 2 to 8.

17.PW.2 deposed that PW.1 is his wife. On 10.10.2015 at about 5.00 p.m, PW.1 informed him that one person by name Faheem (A5) asked her to provide clothes at cheaper rates so that PW.1 requested him for money and then he gave Rs.5,000/- to PW.1 for purchase of clothes for tailoring purposes and then PW.1 went to Punjagutta, telephoned to him from there and informed that the said Faheem was not present there. Thereafter he tried to contact PW.1 over phone but her cell was switched off. Again 1.30 a.m. midnight PW.1 called him over phone and informed that three to four persons kidnapped her and took her near Rama Talkies, Badhura,

Hyderabad and requested him to come over there. Immediately he tried to reach PW.1 as per information given by her but when he tried to contact her over phone to reach her, but her phone was not reachable and it was

Digitally signed Dintyalaby Dintyala Hemanth HemanthKumar KumarDate: 2023.04.17 17:15:48 +0530 10 to 15SC.No.821/2017 switched off. He searched for PW.1 in and around in the said area and he could not trace her out. At about 5.00 a.m. on 11.10.2015 once again he received phone call from PW.1 informing that she was sent out of the shutter of mulghi and asked her to come over there. Immediately he rushed to the said shutter and found PW.1 there itself. PW.1 informed him that Samiullah Asad, Aeem, Fayeem , Shazhol and Fayaz kidnapped her and committed rape on her. They went to Kamaitpura Police Station, there PW.1 narrated the entire incident to police, they reduced into a statement and registered the case. PW.2 further stated that he had seen the accused persons in the police station subsequently.

18.The evidence of PW.2 is hear say evidence, and he was not a direct witness. He stated about receipt of information of rape on her through

PW.1 only but PW.1 failed to identify any of the accused nor stated anything specifically against the accused with their over facts More over there is in consistency in the evidence of PW.2 as to place of recording of statement, in as much as Ex.P1 was recorded in the Maternity Hospital at 7.30 a.m. on 11.10.2015.

19.PW.3 is the panch for scene of offence panchanama and rough sketch. He deposed that police Kamatipura called him and another to the police station and obtained Ex.P3 and P4 signatures on the scene of offence panchanama dated 11.10.2015 and rough sketch. Similarly, PW.4, who is said to be panch for confessional statement of A1, A2 and A4 turned hostile to the case of the prosecution and he did not state anything against A1, A2 and A4.

Digitally signed

Dintyala

by Dintyala HemanthHemanth Kumar Date:

Kumar

2023.04.17 17:15:53 +0530 11 to 15SC.No.821/2017

20.PW.5 is the Finger Print Expert. He deposed that earlier he worked as Asst. Sub-Inspector of Police, in Finger Prints Unit, Hyderabad. On 11.10.2015 at 8.00 p.m, on requisition from station house Officer, he visited scene of offence, at Rama Talkies Road, Bahdurpura, Hyderabad, observed scene of offence, collected finger prints from the glass liquor bottles and plastic glasses, developed finger prints, compared with available records, they were not tallied with the finger prints records available in their data. Later on 17.10.2015 Station House Officer sent finger prints of the accused in this case, he compared the sent finger prints of the accused with the glass liquor bottles, plastic glasses and on comparison the finger prints of A1 were tallied with the finger prints on glass whiskey bottle. A2 fingerprints tallied on beer bottle. He gave Ex.P8 comparison report of chance print dated 18.10.2015.

21.PW.5 in his cross examination admitted that Station House Officer

Kamatipura PS did not collect finger prints of the accused in this case in his presence. Without furnishing the details based on the available information sent by the SHO only, after comparing those fingers prints with that of the available finger prints data of the criminals in their office, he came to know that the finger prints of A1 and A2 are only tallied with the collected samples by him on the spot at the instance of police. PW.5 further admitted that he did not mention in Ex.P8 what was the procedure he adopted while comparing those finger prints at to give the report.

22. In view of the above material omissions and commissions elicited in the evidence of PW.5, merely on the basis of Ex.P8 report, it cannot be concluded about the presence of A1 and A2 at the place of offence, on the date of offence. Even if assumed that presence of A1 and A2 is

Digitally signed

Dintyala

by Dintyala HemanthHemanth Kumar Date:

Kumar

2023.04.17 17:15:58 +0530 12 to 15SC.No.821/2017 established at the place of offence on the date of offence, nothing is spoken to by PW.1 against them specifically as to commission of rape on her.

23.The evidence of PW.6 is regard to the potency of the accused persons viz, A4, A1 and A2 furnished her under Ex.P9 toP11 but the same is not helpful to the present case on hand in view of hostile evidence of

PW.1 and inconsistencies in the evidence of PWs. 1 to 5.

24.The evidence of PW.7 is with regard to receipt of Ex.p1 statement, registration of Ex.P12 FIR.

25.Coming to the evidence of PW.8, he deposed about conduct of investigation in this case, recording statements of PWs. 1 and 2, and other witnesses, visit to the scene of offence, conduct of Ex.P13 and P14 proceedings in the presence of Pws.3 and LW.5 Abdul Wahid and seizure of MOs. 1 to 9 at the place of offence, but the said piece of evidence of

Pw.8 remained uncorroborated with the evidence of PW.3. PW.8 deposed about recovery of Mos. 10 and 11 under Ex.P15 and Ex.P16 but PW.4 did not support the same.

26.PW.8 in his cross examination admitted that he did not collect marriage certificate of PWs. 1 and 2. “PW.1 did not state before him that “A5 stated to her that he will provide clothes at cheaper rate and on informing the same to her husband, PW.2 gave Rs.5,000./-t o her and she went to Punjagutta and waited for A5 and he took her on his motor cycle to Kamatipura”. The learned counsel for the accused suggested to PW.8 that the accused did not confess and no material objects i.e, MOs. 1 to 11

DintyalaDigitally signed by Dintyala

Hemanth

Hemanth Kumar KumarDate: 2023.04.17 17:16:03 +0530 13 to 15SC.No.821/2017 were seized under cover of panchanama in the presence of mediators, and the said suggestion was denied by PW.8.

27.On going through the entire evidence of PWs. 1 to 8, Ex.P1 to P20 documents and MOs. 1 to 11, there is no material to show that PW.1 was wrongfully confined from Panjaugtta and taken to a transport shop at

Rama Talkies, Kamatipura, Hyderabad, and that the accused No.1 to A4 with the aid and support rendered by A5, had sexual intercourse with

PW.1 one after another, or gang raped her, there is no material to show that PW.1 sustained minor injury in the hands of the accused or that they threated her with dire consequences if she discloses the alleged rape to her husband and further there is no material clinchingly to show that A5 abetted the commission of offence against PW.1. The version putforth by

PW.1 is not consistent with that of Ex.p1 statement given by her before

Women Sub-Inspector of Police. The women Sub-Inspector who alleged recorded the statement of Ex.P1 is not even examined before this Court.

Even as per Ex.P17 FSL report, semen and spermatozoa are not detected on items 1, 3 to 7, 11 and 12 and no blood is detected on those items, and that no foreign hair found in item; and no foreign material is found on item No.12. Thus, there is no material to say that the accused involved in the commission of offence, and the accused are entitle to acquittal for the charges with which they are tried. The point is answered in favour of the accused.

28. In the result, the accused No.1 to A4 are found not guilty for the offences under sections 342, 376-D, 323 and 506 r/w 34 of Indian

Penal Code; and A5 is found not guilty for the offences under Sections 342, 323, 376-D, 506 r/w 109 of Indian Penal Code, and, they are acquitted

Digitally signed

Dintyala

by Dintyala HemanthHemanth Kumar Date:

Kumar

2023.04.17 17:16:07 +0530 14 to 15SC.No.821/2017 under section 235(1) Cr.P.C. The bail bonds of the accused shall stand cancelled after expiry of appeal time. MOs. 1 to 8 shall be destroyed after appeal time. Since none of the accused claimed MOs. 10 and MO.11 as that of them, MOs. 10 and 11 shall be confiscated to State after appeal time. The other invaluable property, if any shall be destroyed after appeal time.

Directly typed to my dictation by the Stenographer, corrected and pronounced by me in the open court on this the 15th day of April, 2023. DintyalaDigitally signed by Dintyala Hemanth HemanthKumar KumarDate: 2023.04.17 17:16:12 +0530

IV ADDL. METROPOLITAN SESSIONS JUDGE,

FAC XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

PW.1 XXXXX – Complainant

PW.2 Mohd.Abdul Razi- witness

PW3 Syed Abdul Rahman – Panch witnesses

PW4 Mohd.Mazhar – Panch witnesses

PW5 Sri. M.Varun – Finger Print Expert

PW6 Dr.Abhijit Subedar – Conducted Potency test

PW7 Sri.Ravi pal- Issued FIR

PW8 Sri.B.Ramesn – Investigative Officer

FOR DEFENCE: Nil

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P1. Statement given by PW1. Marked by PW.1.

Ex.P2. Statement . Marked by PW1.

Ex.P3. Signature on Scene of Offence. Marked by PW3

Ex.P4. Signature on Rough Sketch. Marked by PW3.

Ex.P5. Signature on confession statement of A1. Marked by PW4.

Ex.P6.Signature on confession statement of A2. Marked by PW4.

DintyalaDigitally signed by Dintyala

Hemanth

Hemanth Kumar KumarDate: 2023.04.17 17:16:17 +0530 15 to 15SC.No.821/2017

Ex.P7.Signature on confession statement of A4. Marked by PW4.

Ex.P8. Report of Comparison of chance print,dt.18-10-15.Marked by PW5

ExP9. Potency test Report of A4. Marked by PW6

ExP10. Potency test Report of A1 Marked by PW6.

ExP11.Potency test Report of A2. Marked by PW6

ExP12. Original FIR. Marked by Pw7

ExP13. Scene of Offence Panchanama. Marked by Pw8

EXP14. Rough Sketch. Marked by Pw8

ExP15. Relvent portions of Confession. Marked by PW8

ExP16. Seizure Panchanamas of A1 and A4. Marked by PW8.

ExP17. FSL Report,dt.23-01-2016. Marked by PW8.

ExP18. Final Opinion. Marked by PW8.

ExP19 . TIP Proceedings Report. Marked by PW8.

ExP20. Section Alteration memo altering the section of law to 363,342,323,376D,506, r/w.34 of IPC.

FOR DEFENCE: Nil

MATERIAL OBJECTS Marked : Nil

MO.1 Condoms of Kamasutra Brand.

MO.2 Gold Flake Empty Cigarette packets with three used cigarette buds.

MO.3 Long Hair

MO.4 Empty Disposal water Glasses(2in number)

MO.5 Used Double condoms.

Mo.6 Used single condom

MO.7 Empty Budwiser Beer Bottle.

MO.8 Empty Signature whiskey Half Bottle.

MO.9 Mat (Black and White Design).

Mo.10 LG Cell Phone.

MO.11 Reliance Mobile Phone.

FOR DEFENCE: NilDintyalaDigitally signed by Dintyala Hemanth

Hemanth

Kumar KumarDate: 2023.04.17 17:16:21 +0530

IV ADDL. METROPOLITAN SESSIONS JUDGE,

FAC XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD

1 of 11 Fair Judgment in Crl.A.No.114 of 2021

IN THE COURT OF THE IV ADDL. METROPOLITAN SESSIONS JUDGE;

HYDERABAD.

Present: D. Hemanth Kumar, IV Addl. Metropolitan Sessions Judge, Hyderabad.

On this Wednesday, the 19 thday of April, 2023

CRIMINAL APPEAL No.114 of 2021

From what court this appeal is XIV Special Magistrate, Hyderabad preferred Number of the case in that CourtCC. No.244 of 2018

Number of the appealCrl.A.No.114 of 2021 Name and description of the Chappidi Sudheer Reddy, S/o.Chappidi Subhan Reddy, Aged 46 years, Occ:Business, Appellant/Accused R/o.H.No.17-1-382/V/2/39, Vyshali Nagar, Karmanghat, Hyderabad. Name and description of the S.Praveen Kumar, S/o.S.Prakash Rao, Aged 39 years, Occ:Business, R/o.H.No.B6/F1, Bela Respondent/Complainant Colony, Shah Ali Banda, Hyderabad. The sentence and law under whichIn the result the accused is found guilty for the offence U/sec.138 of N.I.Act and is convicted sentence was imposed in the lower U/Sec.255(2) of Cr.P.C. Accused is undergo court rigorous imprisonment for a period of 1 year and to pay fine amount of Rs.13,54,000/- (Rupees Thirteen Lakhs Fifty Four Thousand Only) and in default to undergo simple imprisonment for a period of 6 months for the offence U/Sec.138 of N.I.Act. Out of the fine imposed it is ordered to pay compensation of Rs.13,44,000/- (Rupees Thirteen Lakhs Forty Four Thousand only) the cheque amount of Ex.P2 is of Rs.11,00,000/- with interest at @ 7% per annum would come to about Rs.13,44,000/- U/s.357(1) (b) of Cr.P.C. to the complainant S.Praveen Kumar, S/o.S.Prakash Rao, R/o.H.No.B6/F1, Bela Colony, Shah Ali Banda, Hyderabad-500065.

Whether confirmed, modified orIn the result, the criminal appeal is allowed setting aside the judgment dated 5.3.2021 Reversed,ifmodifiedthe passed by the learned XIV Special Magistrate, Modification: Hyderabad, in CC No.244 of 2018; consequently the accused is found not guilty for the offence under Section 138 of the Negotiable Instruments Act, and accordingly acquitted under Section 255(1) Cr.PC. The fine amount and compensation, if any, shall be refunded to the accused, after expiry of revision period.

DATE OR ON WHICH

Presentation26.03.2021 Filing26.03.2021 Notice issued by the Court27.03.2021 2 of 11 Fair Judgment in Crl.A.No.114 of 2021

Appearance of the Appellant22.12.2021 Hearing11.04.2023 JUDGMENT19.04.2023

This appeal is coming on for hearing before me, upon perusing the petition and record of evidence and proceedings and of appeal and upon duly considering the same after hearing the arguments of Sri B.Vijaya Simha Reddy, Counselfor the Appellants/Accused No.1 and 2 and Sri P.Chandra Mouli, Counselfor Respondent/Complainant, and having stood over for consideration till this day this court delivered the following:

:: J U D G M E N T ::

1.This Criminal Appeal is filed under Section 374(3) of Cr.P.C by the appellant- accused, aggrieved by the judgment dated 05.03.2021 passed by the learned XIV Special

Magistrate, Hyderabad, in CC No.244 of 2018, wherein and whereby, the learned Magistrate

found the accused guilty for the offence under Section 138 of the Negotiable Instruments Act, convicted him under Section 255(2) Cr.PC, sentenced the accused to undergo Rigorous

Imprisonment for a period of one (1) year and to pay fine of Rs.13,54,000/- in default to suffer

Simple imprisonment for a period of six (6) months. Out of the fine imposed, Rs.13,44,000/- was ordered to be paid as compensation to the complainant, which is cheque amount of

Rs.11,00,000/- with interest @ 7% per annum. Aggrieved by the said judgment, the present appeal is preferred.

2.For the sake of convenience, the parties will be referred to the same as they were arrayed before the trial court.

3.The brief averments of the compliant are that, the complainant himself and the accused are friends since long time and they are acquainted with each other. Complainant engaged in real estate business. The accused running educational institutions. The complainant used to purchase plots and lands by entering into agreement of sale with registered owners and sell the same to the intending purchasers. The complainant entered into agreement of sale dated 7.2.2017 with the land owner Smt. V. Karuna W/o. Sri Venkata suresh for purchase of plot bearing No.21 in Survey Nos.113 and 98 in Municipal Ward No.17, Block No.1, admeasuring 307 Sq.yards situated at Vyshali Nagar Colony, Saidabad, Hyderabad. The accused being a resident of Vyshali Nagar Colony approached the complainant to purchase part of plot admeasuring 72 sq.yards. out of 307 sq.yards of the above said described property from the 3 of 11 Fair Judgment in Crl.A.No.114 of 2021 complainant for a total sale consideration of Rs.32 lakhs and the complainant accepted. The accused made part payment of Rs.2,04,000/- in the first week of October, 2017 as a token advance and assured the complainant to pay the balance of Rs.29,96,000/- at the time of registration with a period of one month. The accused approached the complainant on 1.11.2017 and said that he is ready to pay the remaining balance consideration of Rs.29,96,000/- with a request to execute a registered sale deed in his favour on 3.11.2017 and asked the complainant to inform the same to land owner Smt. V. Karuna to come to Sub-Registrar office, Azampura,

Hyderabad to execute and register a sale deed by her on behalf of the complainant in his favour.

As per the intimation given by the complainant, the land owner Smt. V. Karuna came to the above stated Sub-Registrar Office on 3.11.2017 to execute a registered sale deed in favour of the accused. ON the said date of 3.11.2017 the accused transferred a sum of Rs.10 lakhs and

Rs.1 lakh to the land owner bank account of Smt. V. Karuna and paid cash of Rs.1,96,000/- and in all paid Rs.15,00,000/- including token advance of Rs.2,04,000/-. Due to the server problem in the office of Sub-Registrar, the document could not be registered on 3.11.2017 and postponed to 6.11.2017. The accused assured the complainant that he would pay the remaining balance of consideration of Rs.17 lakhs on 6.11.2017. On 6.11.2017 the original land owner Smt. V.

Karuna, registered the sale deed before the above named office of Sub-Registrar in favour of the accused. It is further case of the complainant that, the accused disclosed to the complainant that he was not in a position to pay balance of sale consideration of Rs.17 lakhs on 6.11.2017 and assured to pay within a period of two months by way of two installments in cash and executed a document of declaration dated 6.11.2017 in favour of the complainant; and also issued two cheques one cheque bearing No.979304, dated 1.12.2017 for Rs.6 lakhs and second cheque bearing No.979309, dated 1.11.2017 for Rs.11 lakhs; and both cheques were drawn on Canara

Bank, Vanasthalipuram Branch; and assured the complainant that he would make payment in cash of Rs.17 lakhs and take return of both the cheques from the complainant. The accused failed to pay balance consideration of Rs.17 lakhs as promised. Upon repeated demands made by the complainant, the accused failed to pay the amounts covered under both the cheques.

After repeated postponements made by the accused, requested the complainant to present cheque for Rs.11 lakhs dated 1.11.2018 with an assurance to maintain balance in his bank account to honour the cheque. Accordingly the complainant presented cheque dated 1.1.2018 for Rs.11 lakhs with his banker ICICI Bank, Santoshnagar Branch, Hyderabad in the last week 4 of 11 Fair Judgment in Crl.A.No.114 of 2021 of March, 2018 for encashment and the said cheque was dishonored and returned with an endorsement “Funds Insufficient” in the account of the accused vide cheque return memo dated 3.4.2018. Thereupon the complainant got issued legal notice dated 2.5.2018 calling upon the accused to pay the cheque amount and the said notice delivered to the accused on 4.5.2018.

Hence, the complaint.

4. In order to prove his case, the complainant himself examined as PW.1, and one

Dilli Gopal as PW.2, and Mutyala Venkat Reddy as PW.3, and got marked Ex.P1 to P11 documents. The accused was examined under Section 313 Cr.P.C by explaining to him the incriminating material spelt out against him for which he denied and reported no defence evidence.

5.Considering the oral and documentary and on hearing both sides, the trial court arrived at a conclusion as stated supra. Aggrieved by the same the present appeal filed by contending that the impugned judgment is contrary to law, weight of evidence and probabilities of the case. The learned Magistrate gave much importance to Ex.P8 copy of agreement of sale in between plot owner and the respondent herein, though the original document not placed

before the Court and inspite of taking objection, the learned Magistrate marked Ex.P9 on behalf

of the respondent herein. To prove Ex.P9 agreement of sale, its executant is not examined by the respondent nor complied the conditions under Section 65 of the Evidence Act to direct holder of the document to submit before the Court . The learned Magistrate has not considered contents of Ex.P9 agreement is valid till 3.7.2017 otherwise agreement of sale stands cancelled as per clause 9 of the said agreement. Even the said agreement of sale is not referred in Ex.P10 and

P.11 sale deeds which were executed by the original owner in favour of the respondent by the appellant respectively. Hence, the contents of Ex.P9 agreement of sale and the contents of

Ex.P10 andP11 read together the agreement of sale is not in subsistence and sale considerations are different. The learned Magistrate has failed to appreciate that there is no privity of contract in between the appellant and respondent. Either Ex.P2 or P3 does not mention the date of presentation of Ex.P2 cheque or spoken to by PW.1. The learned Magistrate brushed aside the contradictory statements of PWs. 1 to 3 regarding the date of issuance of cheque, place of execution of Ex.P1, witnesses to the document and place of presentation of Ex.P1 document.

6.Heard both sides. Perused the record.

5 of 11 Fair Judgment in Crl.A.No.114 of 2021

7.Now the points that arise for determination are:

1 'Whether the impugned judgment of the trial court suffered from any illegality or irregularity and it requires interference of this court?

2 “To what relief?

8. POINTS No.1 & 2:

In order to prove the offence under Section 138 of Negotiable Instruments Act, 1881, the following ingredients are required to be proved by the Complainant.

a) The cheque for an amount is issued by the drawer to the payee/complainant on a bank account maintained by him.

b) The said cheque is issued for the discharge, in whole or in part, of any debt or other liability.

c) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank.

d) Within 30 days demand notice is issued by the payee or the holder in due course on receipt of information by him from the bank regarding the dishonour of the cheque.

e) The drawer of said cheque fails to make the payment of the said amount of the money to the payee or the holder in due course within 15 days of the said notice.

f) The debt or liability against which the cheque was issued is legally enforceable.

9.The complainant filed his affidavit in lieu of his chief examination by reiterating the contents of his complaint, and further stated that Ex.P2 cheque was given by the accused along with another cheque in pursuance of Ex.P1 declaration dated 6.11.2017 and that when

Ex.P2 cheque was presented for encashment, it was returned dishonoured vide Ex.P3 cheque return memo. Further he got examined PW.2 who filed his chief affidavit in corroboration with the evidence of PW.1 and also about issuance of Ex.P2 cheque pursuant to execution of Ex.P1 declaration dated 6.11.2017. The evidence of PW.3 is also in similar lines with that of Pw.2.

6 of 11 Fair Judgment in Crl.A.No.114 of 2021

10.Thus, the complainant by examining himself as PW.1, and also by examining

PWs. 2 and 3 and also by marking Ex.P2 cheque supported by Ex.P1 declaration has discharged his initial onus to prove that there exists legally enforceable liability against the accused. So, also in the entire cross examination of PWs. 1 to 3, the accused has not disputed his signature on

Ex.P2 cheque. In this connection, it is necessary to refer to the following judgments.

11.In Bir Singh Vs. Mukesh Kumar reported in (2019) 4 Supreme Court Cases 197, the Hon'ble Apex Court, observed as under:

“A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted"

12. In Kalaimania Tax and another Vs. P. Balasubramaniam reported in (2021) (5) SCC 283, it was observed by the Hon’ble Apex Court that once signature in cheque is admitted, then it is mandate for the court to raise the presumption as to the legally enforceable debt.

13. In (2010) Supreme Court Cases 441 between Rangappa Vs. Sri Mohan, has observed as under:

“The presumption mandated by section 139 includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the Accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the Respondent/Complainant.” 7 of 11 Fair Judgment in Crl.A.No.114 of 2021

14.In 2011 (2) ALD (Crl) Page 847 (AP) between Videocon International Ltd.,

Hyderabad Vs.Innovations, Chirala, AP and others, the Hon'ble Apex Court held as under:

“Section 139 of the Act raises a presumption in favour of the holder to the effect that the holder of a cheque received the cheque of the nature referred in section 138 for the discharge of any debt or other liability, in whole or in part. No doubt, the said presumption under section 139 of the Act is rebuttable presumption. Opening words of section 139 reads “It shall be presumed unless the contrary is proved” In that view of the matter it is not for the complainant initially to prove existence of any legally enforceable debt or other liability for the cheques involved in these cases. The initial burden is on the accused to prove that the dishonoured cheques were not supported by any legally enforceable debt or other liability.”

15.In view of the ratio laid down in the above cited decisions, duty cast upon the

Court to raise mandatory presumption under Section 139 r/w 118 of the Negotiable Instruments

Act, that Ex.P.2 cheque was given by the accused towards discharge of legally enforceable liability. It is for the accused to rebut the said presumption. Unless and until the said presumption is rebutted, it is presumed that Ex.P2 cheque was issued in discharge of legally enforceable liability.

16.Now it is to be seen whether the accused could able to rebut the presumption raised against him by preponderance of probabilities. In order to rebut the presumption raised against him the accused mainly relied upon the cross examination of PWs. 1 to 3.

17.PW.1 in his cross examination admitted that normally the original agreement for purchase of immovable property will be with the purchaser, but added that once sale deed is executed, the agreement will be handed over to vendor. He has not filed any document to show that original of Ex.P9 agreement given to vendor. PW.1 further clarified that out of the schedule mentioned in Ex.P9 agreement, he purchased 235 sq.yards under Ex.P10 and whereas the accused purchased under Ex.P11 an extent of 72 sq.yards with his consent. He admitted that in

Ex.P10 and P11, there is no reference about Ex.P9 agreement. PW.1 stated that it is recited in 8 of 11 Fair Judgment in Crl.A.No.114 of 2021

Ex.P11 only upon payment of sale consideration to the vendor the property transferred to the accused. Further PW.1 admitted that as per Ex.P11 there is no due of sale consideration by the accused to the vendor. As per Ex.P9 agreement, it is valid till 31.7.2017. There is no document in writing by extending the period of agreement. PW.1 further admitted that there is no such document in writing to sell 72 sq.yards of land to the accused either with him or with

Smt.Karuna. PW.1 denied suggestion that he failed to deliver two cheques to Smt.Karuna and this information was having come to know by the accused and he paid the sale consideration to

Smt.Karuna and to whom he got executed Ex.P11 sale deed in his favour. PW.1 in his cross examination further admitted that it was not recited in Ex.P11 but it was executed in favour of the accused with his consent.

18.PW.2 in his cross examination stated that there was an agreement in writing for sale of 72 sq.yards of land by the complainant to the accused for consideration of Rs.32 lakhs and in his presence the said agreement entered into and in the said agreement affixed signatures of the accused, himself and Satyanarayana; but PW.2 failed to say the date of said agreement. IN addition to sale deed, Ex.P1 was executed by the accused in favour of the complainant. He is not a witness to Ex.P1.

19.PW.3 in his cross examination stated that he has not attested as witness to Ex.P9 agreement. PW.3 stated that he was present at the time of execution of Ex.P9 agreement; and that as two witnesses attested the said document he has not attested it. PW.3 admitted that there is no agreement in writing in existence entered in between the complainant and the accused. He is not a witness to Ex.P10 and P11 document. PW.3 in his further cross examination stated that Ex.P1 was prepared on NJ stamp paper worth Rs.100/-.

20.Perused Ex.P1 declaration dated 6.11.2017 said to have been executed by the accused. According to PW.3, Ex.P1 was executed on a Non-Judicial Stamp paper but it is not so. So, the presence of Pw.3 at the time of Ex.P1 has to be doubted. Admittedly PW.2 is not an witness to Ex.P1 document.

9 of 11 Fair Judgment in Crl.A.No.114 of 2021

21.In this case, entire matter revolved around E.P1 and Ex.P9 documents. Ex.P1 is a declaration given by the accused stating that he purchased 72 sq.yards of land belonging to

Smt.V.Karuna for a total sale consideration of Rs.32,00,000/- and he paid an amount of

Rs.15,00,000/- to S. Praveen Kumar and he would pay remaining Rs.17,00,000/- through two cheques. Ex.P2 is one such cheque number mentioned in Ex.P1 declaration.

22.The complainant based on Ex.P1 declaration claims that Ex.P2 cheque was issued in consideration of Ex.P1 declaration; but on perusal of Ex.P11, the entire consideration for 72 sq.yards was fixed at Rs.12,96,000/- and the same was acknowledged to have been received by the original owner Smt. Karuna, and when such is the case, there is no validity or legal sanctity to Ex.P1 declaration. Though it is widely canvassed by the complainant that there was an agreement between himself and the accused to purchase 72 sq.yards at Rs.32,00,000/- but no document in support of such agreement is filed. Pw.1 mainly relied upon Ex.P9 agreement of sale saying that he has agreement of sale for the entire extent of 307 sq.yards and that he purchased some extent of land under Ex.P10 and the remaining extent of land of 72 sq.yards was sold to the accused under Ex.P11 sale deed by the original owner. On perusal of Ex.P10 and P11 there is no mention about such agreement. It is to be stated that Ex.P9 agreement of sale is executed by the original owner of the land in favour of the complainant for total extent of 307 sq.yards on 7.2.2017; and subsequently Ex.P10 agreement of sale -cum-General Power of

Attorney with possession dated 3.11.2017 came into existence; and thus by execution of Ex.P10, the rights and liabilities created under Ex.P9 has come to extinction or merged with Ex.P10 and there exists any right in favour of the complainant to say that 72 sq.yards was sold by original owner in favour of the accused at his instance. PW.1 cannot claim any specific right based on

Ex.P9 agreement of sale as it is merged with Ex.P10 agreement and nothing is left in favour of the complainant; and in the absence of any document or agreement between the accused and the complainant prior to execution of Ex.P11 in favour of the complainant, Ex.P11 has no legal validity as the consideration mentioned in it is much more higher than what is mentioned in

Ex.P11 sale deed; and complainant cannot travel beyond the scope of Ex.P11 sale deed. It is to be noted that original land owner Smt. Karuna is not examined in this case to support the version of the complainant. Giving of Ex.P2 and another cheque to complainant by the accused for passing the same to the original owner is more probable than to say that it was given towards 10 of 11 Fair Judgment in Crl.A.No.114 of 2021 discharge of any legally enforceable liability to the complainant. Execution of Ex.P1 by the accused is not proved by the complainant. There are contradictions in the evidence of PWs. 1 to 3 on crucial material particulars with regard to execution of Ex.P1 document.

23.The accused by cross examination of Pws. 1 to 3 has improbablised the contention of the complainant that there exists legally enforceable liability against him; and it is

for the complainant to prove that Ex.P2 carries legally enforceable liability against the accused.

Further more, it is necessary for the complainant to establish that he paid entire amount mentioned under Ex.P9 to the original land owner so as to claim, money from the accused.

There is no evidence forth coming in that regard. Merely because the complainant entered into an agreement of sale of land under Ex.P9 agreement, he cannot be allowed to take undue advantage of the transaction between the accused and original land owner. As per Ex.P11 there is no averement to say that Ex.P11 was executed at the instance of PW.1 or he mediated the said transaction. From the averments of complaint itself it would show that the complainant is acting as broker for the land sales and he cannot take advantage of the subsequent transaction to claim higher exorbitant amounts by withholding the cheques received by him.

24.In view of the above discussion, this Court has no hesitation to hold that the complainant has failed to prove that there exists legally enforceable liability and in pursuance of such liability only Ex.P2 cheque issued by him that too to show Ex.P1 is a legally valid document to claim the said amount when other documents such as Ex.P9, P10 andP11 are going against the very demand of the accused, as illegal.

25.Coming to compliance of Section 138(b) of the Act, the complainant by marking Ex.P4 office copy of legal notice supported by Ex.P5 and P6 proved compliance of Section 138(b) of the Act.

26.In view of the above discussion, this Court is of the view that the complainant has failed to establish that there exists legally enforceable liability against the accused, and the accused by preponderance of provabilities rebutted the presumption raised against him. The trial Court committed error in appreciating Ex.P1, P2, P9 to P11 in proper prospective and missed sight of the factual matrix that Ex.P1 has no legal validity to claim amount from the accused when other 11 of 11 Fair Judgment in Crl.A.No.114 of 2021 documents Ex.P9 to P11 abundantly speak against the very version of the complainant that there exists no legally enforceable liability against the accused. Accordingly the point is answered in favour of appellant and the appeal deserves to be allowed.

27.In the result, the criminal appeal is allowed setting aside the judgment dated 5.3.2021 passed by the learned XIV Special Magistrate, Hyderabad, in CC No.244 of 2018; consequently the accused is found not guilty for the offence under Section 138 of the Negotiable

Instruments Act, and accordingly acquitted under Section 255(1) Cr.PC. The fine amount and compensation, if any, shall be refunded to the accused, after expiry of revision period.

Typed to my dictation, corrected and pronounced by me in open Court on this the 19 th day of April, 2023.

IV ADDITIONAL METROPOLITAN SESSIONS

JUDGE, HYDERABAD