Sri D. Tirumala Rao

IN THE COURT OF THE PRL. SESSIONS JUDGE AT NALGONDA.

(Dated this the 31st day of December, 2018)

Present: Sri D.Tirumala Rao., Prl. Sessions Judge, Nalgonda.

Crl. Appeal No. 70 of 2017

Between:

1. Noone Ramesh S/o Chandraiah, age: 27 years, Occupation: Lorry Driver, R/o Padamatpally.

2. Podella Sathyanarayana S/o Lachaiah, age: 28 years, Occupation: Agriculture, R/o Padmatpally.

3. Boddupally Kondal S/o Krishnaiah, age: 34 years, Occupation: Agriculture, R/o Padmatpally village of Deverakonda Mandal, Nalgonda District.

'.Appellants

V/s

The State of Telangana R/by Public Prosecutor, Prl.Sessions Court, Nalgonda.

2Respondent

On Appeal against the Judgment & sentence dt:21.03.2017 in

SC No. 264 of 2013 on the file of the Assistant Sessions Judge at

Nalgonda

Between: The State of Telangana through Sub-Inspector of Police, Station House Officer, Deverakonda Police Station.

2Complainant

V/s

1. Noone Ramesh S/o Chandraiah, age: 27 years, Occupation: Lorry Driver, R/o Padamatpally.

2. Podella Sathyanarayana S/o Lachaiah, age: 28 years, Occupation: Agriculture, R/o Padmatpally.

3. Boddupally Kondal S/o Krishnaiah, age: 34 years, Occupation: Agriculture, R/o Padmatpally village of Deverakonda Mandal, Nalgonda District. 2Accused

This Criminal Appeal is coming before me on this day for final hearing and disposal in the presence of Sri L.Sreenivasulu, Counsel

for appellants and Sri.N.Gopala Krishna, In-charge Public Prosecutor and

after having stood over for consideration till this day, this Court delivered the following 2

JUDGMENT

1. This Criminal Appeal is filed under Sec.374 (3) Cr.P.C.

assailing the judgment and sentence dt:21.03.2017 in SC No.264 of 2013 on the file of the Assistant Sessions Judge, Nalgonda, wherein the Court below convicted the accused for the offence under Sections 354, 326 read with 34 of I.P.C. along with fine and also default clauses.

2. The parties are arrayed as parties before the trial court from hereinafter for the sake of convenience.

3. The brief facts of the case are that on 09.10.2011 at 13:00 hours PW.1 came to the P.S., and lodged a Telugu written report stating that on 09.10.2011 morning at 09:00 A.M., PW.3 and PW.2 were proceeding to their agricultural well, on the way when they reached near

Dhanalaxmi Rice Mill, their villagers, A.1 to A.3 went on to his wife and daughter together and A.1 caught-hold of his daughter’s hand with an evil intention to outrage her modesty and while he was dragging her into rice mill PW.3 went across and the said A.1 to A.3 threatened PW.3 as “aristhe ninnu kuda pattukupoi manabhangam chestamu” and when PW.3 raised hues and cries the said three persons slapped PW.3 and PW.2.

Immediately PW.3 rang up to him and informed the same and when he rushed there A.2 and A.3 caught-hold his hands and the accused no.1 beat him with a stick (bandi gadagoyya) on head and left hand and caused injuries, when they raised hue and cries PW.5 rushed there by running and on seeing him the accused nos.1 to 3 fled away by leaving them, hence, he requested to take necessary legal action against them.

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4. Basing on the above report, PW.7 registered Crime

No.261/2011 under Section 354 and 326 I.P.C., and took up investigation.

5. During the course of investigation PW.7 examined and recorded the statements of PWs.1 to 4 and referred PW.1 to Government

Hospital, Deverakonda for treatment and for issuance of the wound certificate. Later, PW.7 visited the scene of offence at Dhanalaxmi Rice

Mill situated at the outskirts of Padamatpally village, observed the scene of offence, secured the presence of LW.7/Katam Laxmaiah and PW.5 and observed the scene of offence, prepared scene observation report, rough sketch and seized the stick used by the accused no.1. At the scene of offence, PW.7 recorded the statements of PW.4 and LW.6/Pathlavath

Cheenya @ Srinu.

6. On 21.10.2011 at about 13:00 hours, the accused nos.1 to 3 came to police station and surrendered before PW.7 by admitting the guilt of offence. During the interrogation, the A.1 confessed that he threw the stick at the scene of offence, which was used by him in the commission of offence. PW.7 effected arrest of the accused nos.1 to 3 and got them

before the concerned court. Subsequently PW.9 took up further

investigation and collected wound certificate of PW.1 and after completion of the entire investigation he laid the charge sheet.

7. The committal court took the cognizance of the above case for the offences under Sections 354 and 326 read with 34 I.P.C..against the accused vide PRC No.58/2012 and issued summons to the accused. After appearance of the accused nos.1 to 3 the committal court furnished the copies to the accused nos.1 to 3. Since the offence under Section 354 is exclusively triable by the Court of Sessions, the committal court committed 4 the case to the Sessions Division and the case was registered as SC 264 of 2013 and made over to the Assistant Sessions Judge, Nalgonda for disposal according to law.

8. The trial court issued summons to the accused A.1 to A.3 and on their appearance, heard on charges and charges framed separately for the offence under Section 354, 326 r/w 34 of I.P.C., read over and explained to A.1 to A.3 for which A.1 to A.3 pleaded not guilty and claims to be tried.

9. During the course of trial, to substantiate the same the prosecution examined PWs.1 to 9 and got marked Exs.P.1 to P.5 and

M.O.1 marked. After completion of the prosecution evidence the accused were examined under Section 313 Cr.P.C. by explaining the incriminating evidence appears from the prosecution witnesses against the accused

Nos.1 to 3, who denied the same and reported no evidence.

10. The court below having heard the learned Assistant Public

Prosecutor and the learned defence counsel for the accused nos.1 to 3 and having considered the evidence available on record, and also having verified the documentary evidence available on record found guilt of the accused nos.1 to 3 for the offences under Sections 354 and 326 read with 34 of I.P.C. and sentenced A.1 to undergo simple imprisonment for a period of two years for the offence under Section 354 of I.P.C., and to pay a fine of Rs.2,000/- in default of payment of fine, sentenced to undergo simple imprisonment for one month and also sentenced A.1 to A.3 to undergo simple imprisonment for 3 months with fine of Rs.5,000/- each for the offence under Section 326 read with 34 of I.P.C., in default of payment of fine, sentenced to undergo simple imprisonment for one month and the 5 imprisonment of the accused no.1 is directed to run concurrently.

Aggrieved by the said judgment and order dt:21.03.2017 in SC No.264 of 2013 the appellants preferred the present appeal on various grounds.

11. I have heard the learned counsel for the appellants and the learned Public Prosecutor.

12. Now the points for determination are :

1. Whether the prosecution has been able to bring home the guilt of the accused nos.1 to 3 for the offences under Sections 354 and 326 read with 34 of I.P.C., beyond reasonable doubt?

2. To what relief?

POINT Nos.1 and 2 :.

13. The case of the prosecution is that the accused no.1 outraged the modesty of PW.2 and when intervened A.1 to A.3 threatened PW.2 and attacked PW.1 with M.O.1 weapon.

14. To substantiate the same, the prosecution examined PWs.1 to 9 and got marked Exs.P.1 to P.5. PW.1 is the injured and complainant,

PW.2 is the victim, PW.3 is the wife of PW.1 and mother of victim. PWs.4 and 6 are stated to be eye witnesses, PW.5 is the panch witness for the scene of offence, PW.7 is the investigating officer, PW.8 is doctor who treatged PW.1, PW.9 is the investigating officer, who filed the charge sheet. Ex.P.1 is the report lodged by PW.1, Ex.P.2 is 161 Cr.P.C.

statement of PW.4, Ex.P.3 is the scene of offence panchanama and rough sketch marked through PW.5, Ex.P.4 is F.I.R., Ex.P.5 is medical certificate issued by PW.7.

15. PW.1 deposed that PW.2 is the victim and his daughter, PW.3 is his wife. He knew A.1 to A.3. He lodged a report against A.1 on two occasions on the ground of his threats to PW.2 to marry him. When A.1 6 made such threats on one occasion he went to the house of the accused no.1 and admonished the accused no.1. On the next day in the morning time at about 09:00 A.M. when PW.2 and PW.3 were going towards well the accused no.1 came there and caught hold of PW.2 and tried to take her to Dhanalaxmi Rice Mill on the ground that she gave a complaint against A.1 to his parents. When PW.3 raised hue and cries and made phone call to him, he rushed to the spot. When he questioned the accused no.1 about his behavior the accused nos.2 and 3 caught him on the shoulders and the accused no.1 hit on his head with a stick. When he tried to ward-off the attack on second time, the accused no.1 hit him on the left hand. Immediately after the incident he went to the hospital and took treatment. On the next day morning police came to his house and then he gave a report to the police. Ex.P.1 is the report given by him, M.O.1 is a stick, with which the accused hit him.

16. During the cross-examination of PW.1, it is elicited that he is an illiterate. Ex.P.1 was prepared by the police. He does not know what is mentioned in the Ex.P.1 report. His building is situated by the side of the road leading from Deverakonda to Mahabubnagar. His house is situated on the left side of the road and after the house the mill is situated on the road leading from Padamatpally village road to Kandukur road. It is a damber road. The rice mill belong to K.Venkataiah, who belongs to his village. Accused no.1 is a driver. Accused belongs to Schedule Caste community. He generally go on motor cycle to any place.

17. PW.2 deposed that she is the victim in this case. She knows the accused nos.1 to 3. She knows the reason why PW.1 gave a report against the accused nos.1 to 3. On 09.10.2011 at about 09:30 A.M. while 7 she and PW.3 were going to the well and when they reached

Dhanalakshmi Rice Mill, the accused no.1 caught-hold her hand and tried to take her in to the rice mill. Seeing that when PW.3 admonished the accused no.1, accused nos.1 to 3 abused her mother and threatened to commit rape on her, if she meddles with the issue. Then PW.3 made a phone call to PW.1. Immediately PW.1 came to that place. Then the accused nos.1 and 2 caught-hold PW.1 on his shoulder and the accused no.1 hit PW.1 on the head and left shoulder with the stick. Then PW.5,

PW.4 and Pathlavath Cheenya alias Sreenu (LW.6) and on seeing them the accused nos.1 to 3 fled away. Then they took PW.1 to the hospital for treatment. On the same day the police came to her house.

18. During her cross-examination, it is elicited that she did not go to Police Station along with PW.1. They went to hospital at about 11:00

A.M. She along with PW.1 and 2 PW.5 and another 15 persons went to the hospital. She does not have acquaintance with the accused no.1. She does not know that the accused no.1 is running an auto. She admitted that once the accused no.1 approached her mother and her, proposing to marry her. Their house is situated on the left side of the road, leading from Padmatapally to Kandukur village.

Dhanalaxmi rice mill is within the proximity of their house. The road is

PWD road and several vehicles passed through that road. The workers of the mill as well as owner will stay in that mill. She admitted that the Thanda of PW.4 and LW.6 (Pathlavath Cheenya alias Sreenu) is behind the rice mill at a distance of half kilometer. She admitted that PW.1 can drive motorcycle and PW.1 regularly drives motorcycle.

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19. PW.3 deposed that PW.1 is her husband. PW.2 is her daughter. PW.5 is her brother-in-law. About 6 years ago, at about 09:30

A.M., she and PW.2 were going towards their land. When they reached

Dhanalaxmi Rice Mill, the accused no.1 came and caught-hold of the hand of PW.2. When she abused the accused no.1 for holding the hand of

PW.2, he abused her and beat her. Then he made a phone call to PW.1.

When PW.1 came the accused no.1 hit on the head and left hand of PW.1 with a stick. At that time, A.2 and A.3 caught hold the hands of PW.1.

Hearing her hue and cries PW.4, PW.5 and LW.6 (Pathlavath Cheenya alias Sreenu) came there and on seeing them the accused nos.1 to 3 fled away. Earlier A.1 used to persuade PW.2 to marry her. One week before the incident, they admonished the accused no.1 not to persuade PW.1 as they belong to different religion. When A.1 hit PW.1 with stick, PW.1 sustained a bleeding injury as such, they took PW.1 to government hospital and there from to Medicare Hospital at Hyderabad. At the hospital, PW.1 underwent treatment for 10 days. On the day of incident,

Police came to their house and recorded her statement.

20. During her cross-examination it is elicited that she is an illiterate. PW.2 studied up to 10th class. PW.1 is not moving in any political party. She does not know whether earlier cases are there against PW.1 in

Deverakonda Court. She admitted that two years prior to lodging Ex.P.1 report, PW.2 and A.1 loved with each other. A.1 belongs to Schedule

Caste and they belong to Muslim religion. They did not agree for the marriage between PW.2 and A.1. She accompanied PW.1 to the P.S. and along with them nearly 10 people came to the police station. She did not state before the police that one week before the incident, she admonished 9

A.1. It is a PWD road and several vehicles pass through that road every day.

21. PW.4 turned hostile but the trial court considered his evidence as corroborative piece of evidence.

22. PW.5 deposed that he noticed galata near Laxmi Rice Mill five years ago. Immediately he went there and on seeing them A.1 to A.3 ran away. Then on the same day, at 2:30 P.M. police came there and conducted panchanama in his presence and recovered a stick from the scene of offence. During his cross-examination it is elicited that PW.1 is doing cultivation as well as moving in the political parties.

23. PW.6 deposed that PW.1 is his brother. About 4 or 5 years ago, at about 10:00 A.M. while PWs.2 and 3 were going to their agricultural well, the accused obstructed them and A.1 caught hold of PW.2 and dragged her towards the rice mill, which is near that place. Then immediately PW.3 made a phone call to PW.1 and PW.1 went there holding a stick. Then A.1 hit PW.1, with a stick, and caused injuries on the left hand wrist and on the head. On seeing them he rushed there and on seeing him, A.1 to A.3 ran away from that place. Earlier to that incident,

A.1 started persuading PW.2 for four months, claiming that he is loving her. As PW.2 did not accept the love proposal of A.1, on the date of incident, A.1 caught hold of the hand of PW.2 and took her to the rice mill to ravish her. Subsequent to this incident, he along with PWs.1 and 3 and their villagers went to the police station. During his cross-examination, it is elicited that they went to the police station and PW.1 gave report to the police. The report was prepared at Police Station by some others as PW.1 is an illiterate. PW.1 is associated with political parties. PW.5 used to move 10 with PW.1. He admitted that criminal cases are pending against PW.1 on the file the Judicial First Class Magistrate, Deverakonda. He admitted that by the time he reached the place of incident, A.1 to A.3 were not present there. He admitted that about the love affair between PW.2 and A.1, a panchayath was held in the presence of village elders and elders admonished the accused no.1.

24. PW.7 deposed that basing on the report lodged by PW.1, he registered a case in Crime No.261/2011 under Sections 354, 326 read with 34 I.P.C. and issued Ex.P.4-F.I.R. Then he recorded the statements of

PWs.1 to 3. On the same day, he visited the scene of offence and prepared the scene observation report and rough sketch and also seized

M.O.1. After registering the F.I.R., he referred PW.1 to Government

Hospital, Deverakonda for treatment and on 21.10.2011 he arrested the accused nos.1 to 3. During his cross-examination it is elicited that PWs.1 to 3 came to the police station for lodging report. He admitted that A.1 and

PW.2 loved with each other and wanted to marry. He also admitted that when PW.2 wanted to marry A.1 her parents refused for the same. The place of offence is situated on the road. He did not examine any workers of the mill about the said incident. As per their investigation, prior to the incident a panchayath was held before the elders on two or three occasions. PW.3 did not state before him that PW.1 underwent treatment for ten days at Medicare Hospital. He admitted that Thanda of PW.4 and

LW.6 (Pathlavath Cheenya alias Sreenu) is two kilometers away from

Dhanalaxmi Rice Mill.

25. PW.8 deposed that he gave treatment to PW.1 at about 03:00

P.M. and found the following injuries : i) one laceration at the left parietal 11 region of the head, which is a simple injury ii) a swelling on the left hand and it is a grievous in nature. He issued Ex.P.5 wound certificate. During his cross examination it is elicited that the above said injuries are possible when a person fall on a road from a motor-cycle.

26. Basing on the evidence of PW.8 it is established that PW.1 received one simple lacerated injury and one swelling injury on the left hand with a grievous nature.

27. The prosecution has to establish the occurrence of injuries in the alleged incident. Ex.P.1 is the first information and Ex.P.4 FIR is based on Ex.P.1 report. When observing Ex.P.1 report minutely, it speaks that the incident occurred at 09:30 A.M. at the rice mill and on the road touching the rice mill. PW.1 denied the suggestion of love affair between

PW.2 and A.1 and also denied the pending of cases against him in

Deverkonda court. These two facts are very essential to consider the evidence of PW.1. PW.6 admitted about the pendency of criminal cases against PW.1 on the file of the Judicial First Class Magistrate,

Deverakonda. PW.6 admitted that by the time he had reached there A.1 to

A.3 were not present. PWs.2 and 3 speaks that the accused came there and caught-hold the hand of PW.2. Mere caught-holding of hand is not outraging the modesty of a woman. The prosecution must establish the intention on the part of the accused to establish his intention to outrage the modesty of PW.2 for the offence under Section 354 I.P.C. As per the elicited facts the scene of offence is situated in the open place and alleged incident occurred in the day-light more particularly in the presence of

PW.3, who is natural mother of PW.2. It is also established that PW.1 rushed there after receiving information from PW.3 about the alleged 12 incident, which is highly doubtful on the ground that any kind of offences against woman generally occur in the secluded places but not on the public places and more particularly in the presence of a mother of a victim, which gives a shadow of doubt about the case of the prosecution as alleged and appears suppression of facts from the prosecution witnesses and it appears the missing of naturality in the prosecution case. PWs.1 to 3 in one voice deposed that PW.1 was shifted to the hospital, immediately after the incident, and thereafter police came there and recorded their statements. PW.1 admitted that he is an illiterate and he does not know the contents of Ex.P.1-report and it was drafted by police. Whereas the evidence of investigating officer, i.e., PW.7 speaks that PW.1 came to the police station and lodged Ex.P.1 report and thereafter PW.1 was referred to hospital and he was treated in the hospital by PW.8. Ex.P.5-wound certificate is very clear that the patient was treated on 09.10.2011 at 03.00

P.M. Quite contrary to the above fact, PWs.1 to 3 speak that PW.1 was joined in the hospital first and police came later. PW.3 also developed that

PW.1 was treated in Medicare Hospital, Hyderabad for ten days but PW.7 speaks that that was not informed to him. As per the version of PW.7,

PW.1 was treated only for one day and the entire case is based on PWs.1 to 3 and other witnesses, are not direct witnesses to the incident. The surprising aspect is that Ex.P.3 was drafted at 2:30 P.M., on 09.10.2011 and M.O.1 was seized from the scene of offence in the presence of PW.1.

But quite contra, by that time, PW.1 was with the police. M.O.1 was recovered at the scene of offence and PW.6 speaks that PW.1 came to the scene of offence holding a stick, but PW.1 did not whisper about his holding the stick. So, the above observations gives a shadow of doubt 13 about the prosecution version and as per the evidence of PW.6, it is established that he did not examine any independent witness and PWs.1 to 3 are interested witnesses and it appears that they suppressed the material facts and the ingredients of Section 354 and 326 of I.P.C., have not been attracted but the trial court failed to consider the above facts properly and the admission of PW.7 itself speaks that these injuries may be possible when a person falls on a road from motor-cycle and inconsistent timings of the prosecution witnesses from PWs.1 to 3 also supports the same and it is the considered opinion of this court that the prosecution miserably failed to prove the case against the accused nos.1 to 3 beyond all reasonable doubt as discussed supra and the recovery of

M.O.1 and the treatment of PW.1 for the alleged injuries and non- examination of the independent witnesses and inconsistent versions of

PWs.1 to 3 with the support of interested witnesses i.e., PW.4 to 6, gives a reasonable doubt, as rightly pointed out by the learned counsel for the appellants and the prosecution version is doubtful and the benefit of doubt is extended to the accused A.1 to A.3 and the charges under Section 354 and 326 I.P.C., failed in proof beyond reasonable doubt with clinching evidence and also to rely totally on the versions of PWs.1 to 3 and the trial court failed to consider the factual matrix in a perspective manner and came to erroneous conclusion ignoring material inconsistencies, hence, the finding of the trial court is liable to be set aside. Accordingly, this point is answered.

28. In the result, the judgment and sentence, dt:21.03.2017 in SC 264 of 2013 on the file of the Assistant Sessions Judge, Nalgonda is set aside. The accused-A.1 is found not guilty for the offence under Section 14 354 of I.P.C. Therefore, A.1 is acquitted under Section 235(1) Cr.P.C. for the offence under Section 354 I.P.C. The accused-A.1 to A.3 are found not guilty for the offence under Section 326 r/w 34 of I.P.C. Therefore, A.1 to A.3 are acquitted under Section 235(1) Cr.P.C. for the offence under

Section 326 read with 34 I.P.C. The bail bonds of the accused–A.1 to A.3 stands cancelled. M.O.1 shall be destructed after appeal is over.

Directly typed to my dictation by Stenographer Grade-I, corrected and pronounced by me in the open Court on this the 31st day of December, 2018.

Prl. Sessions Judge, Nalgonda.

APPEDIX OF EVIDENCE

- NIL -

Prl. Sessions Judge, Nalgonda.

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A.1 is called

A.2 is called

A.3 is called

Judgment pronounced in the open court (VSJ). In the result, the judgment and sentence, dt:21.03.2017 in SC 264 of 2013 on the file of the Assistant

Sessions Judge, Nalgonda is set aside.

The accused-A.1 is found not guilty for the offence under Section 354 of I.P.C.

Therefore, A.1 is acquitted under

Section 235(1) Cr.P.C. for the offence under Section 354 I.P.C. The accused-

A.1 to A.3 are found not guilty for the offence under Section 326 r/w 34 of

I.P.C. Therefore, A.1 to A.3 are acquitted under Section 235(1) Cr.P.C.

for the offence under Section 326 read with 34 I.P.C. The bail bonds of the accused –A.1 to A.3 stands cancelled.

M.O.1 shall be destructed after appeal is over

PSJ

IN THE COURT OF THE PRL. DISTRICT JUDGE AT NALGONDA.

(Dated this the 31st day of December, 2018)

Present: Sri D.Tirumala Rao., M.A., LL.B., Prl. District Judge, Nalgonda.

AS.No. 16 of 2016

Between:

1. Medi Narsimha S/o Gopaiah, aged: 52 years,

2. Medi Rama Lingaiah S/o Somaiah, aged: 52 years, all are agriculturists by occupation R/o Vanipakala village of Chityala Mandal, Nalgonda District. 7.Appellants/Plaintiff Nos. 1 and 3 AND

1. Barre Muthaiah S/o Pullaiah (died)

2. Barre Yadaiah S/o Muthaiah, aged: 46 years,

3. Barre Yettamma W/o Muthaiah, aged: 70 years, 7Respondents/Defendants Nos.1 to 3

4. Medi Mallaiah S/o Narsimha, aged: 57 years, all are agriculturists by occupation R/o Vanipakala village of Chityala Mandal, Nalgonda District. 7Respondent /Plaintiff No.2

On appeal against the Decree and Judgment

Dated:28.08.2013 on the file of the Junior Civil Judge, Ramannapet

In

OS No. 141 of 2004

Between:

1. Medi Narsimha S/o Gopaiah, aged: 52 years,

2. Medi Mallaiah S/o Narsimha, aged: 57 years,

3. Medi Ramalingaiah S/o Somaiah, aged: 52 years, all are agriculturists R/o Venipakala village of Chityal Mandal, Nalgonda Distirct.

7. Plaintiffs. AND

1. Barre Muthaiah (died)

2. Barre Yadaiah S/o Muthaiah, age: 46 years,

3. Barre Yettamma W/o Muthaiah, age: 70 years, all are agriculturists R/o Vanipakala village of Chityala Mandal, Nalgonda District. 7Defendants 2

This Appeal is coming on this day for final hearing and disposal

before me in the presence of Sri Kampati Venkateshwarlu, Counsel for

Appellants and Sri G.Venkat Narayana, Counsel for the respondent No.2 and having stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

1. This is an appeal filed by the appellants/Plaintiff nos.1 and 3 under Sec. 96 R/W Order 41 Rule 1 C.P.C., assailing the Decree and

Judgment dt.28.08.2013 in O.S.No.141 of 2004 on the file of the

Junior Civil Judge at Ramannapet wherein the suit filed by the plaintiffs was partly decreed for recovery of Rs.25,000/- with interest @ 6% per annum from the defendants 2 and 3 from the assets of the defendant No.1 which are in the hands of the defendant nos.2 and 3 and also awarded compensation of Rs.5,000/- for breach of contract.

2. The parties are arrayed as parties before the Court below for the sake of convenience from hereinafter.

3. The brief facts of the plaintiff case are that the suit filed by the plaintiffs against the defendant nos.1 to 3 for specific performance of agreement of sale directing the first respondent to receive the balance sale consideration if any after paying his loan amount in primary agricultural co- operative society Vattimarthy to execute a registered sale deed in favour of the plaintiffs in respect of half share on getting partition of the plaint schedule lands in two equal shares by Commissioner and to put the plaintiffs in possession of the land covered by the registered sale deed so effected by the first defendant and in the alternative to refund a sum of

Rs.25,000/- taken by the defendant No.1 with interest at the rate of 2% per month from the date of suit till the date of payment and also for payment of 3 future sum of Rs.5,000/- as compensation for breach of contract committed by him.

4. It is further case of the plaintiffs that the defendant nos.1 and 2 are joint owners of the suit schedule property. The defendant no.1 offered to sell his half share out of the schedule property including the agricultural well located therein to the plaintiffs and the plaintiffs agreed to purchase the same for a sum of Rs.65,000/- . The defendant No.1 executed an agreement of sale dt:18.09.2003 in favour of the plaintiff agreeing to sell the said half share for a sum of Rs.65,000/- and received Rs.5,000/- as part payment of the sale consideration and the same was acknowledged in the agreement itself. In the agreement it was stipulated that out of the balance sale consideration amount the plaintiffs have to pay a sum of

Rs.20,000/- within two months from the date of the said agreement of sale and out of the remaining balance sale consideration the plaintiffs should discharge the outstanding loan amount payable by the defendant no.1 to the PACS Vattimarthy and to pay the balance amount if any remained after discharging the said loan amount. Thereafter the defendant No.1 should execute and register a regular sale deed in the name of the plaintiffs or their nominees as and when they require for the said purpose. It is also provided in the agreement that if the plaintiffs violate the terms of the contract the agreement stands cancelled and they shall forfeit the advance paid by them. Similarly it is also provided in the agreement that if the defendant no.1 violates the terms of contract he shall return the advance amount besides an additional amount of Rs.5,000/- towards the compensation.

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5. Accordingly, the plaintiffs paid Rs.20,000/- on 12.11.2003 and the defendant no.1 executed a receipt on the same day. The defendant no.1 also handed over his original pattedar pass book and title deed to the plaintiffs. It was also assured by the defendant no.1 in the receipt that the possession of the land will be given on the same day. But to the surprise of the plaintiffs the defendant no.1 declined to give possession of the land to the plaintiffs stating that it will be given after payment of balance of sale consideration. Therefore, the plaintiffs secured the residue balance of

Rs.40,000/- and called upon the defendant No.1 to accompany to the

PACS Vattimarthy for payment of the loan amount payable by the defendant no.1. But the defendant no.1 postponed the matter and thereby causing delay in execution of the sale deed in furtherance of the agreement of sale.

6. The plaintiffs issued legal notice dt:20.07.2014 through their counsel to defendant no.1 calling upon him to accompany them for payment of their loan amount in PACS Vattimarthy and to receive balance amount of sale consideration if any after payment of the said loan amount and to execute a registered sale deed in favour of the plaintiffs in respect of half share in the suit land and put the plaintiffs in possession of the same. But the defendant no.1 having received the notice kept quiet. The plaintiffs are ready and willing to pay balance sale consideration and to get the sale deed executed and registered at their expenses by the defendant no.1. There is no breach of contract on the part of the plaintiffs and the defendant no.1 only committed breach of contract. The defendant no.2 is impleaded as he is necessary and proper party to the suit. Therefore, the plaintiffs prayed for the relief of specific performance.

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7. The defendant nos.1 and 2 filed their written statements separately denying the averments of the plaint. The defendant No.3 was brought on record as the legal representative of the defendant no.1 and the defendant no.1 did not appear before the court below and remained exparte.

8. The contention of the first defendant is that the second defendant filed OS 463/1989 on the file of the Junior Civil Judge,

Ramannapet for partition and separate possession of Ac.09.13.gts., in

Survey No.41/A, 41/AA, 42/A, 42/AA, 43, 45 and 46/A (‘A’ schedule property) and after full trial a preliminary decree was passed in favour of the defendant no.1 on 16.01.1998. The suit schedule property in the present suit is part and parcel of the land in O.S.463/1989. Aggrieved by the said decree and judgment the defendant no.1 preferred AS 51/1999 on the file of this court and the same was dismissed by this Court on 31.10.2002. Thus, since final decree was passed by this court on 09.11.2004 the question of entering into agreement of sale during pendency of final decree proceedings before the trial court does not arise at all. The plaintiffs are well aware with regard to passing of final decree and pendency of final decree. Without getting and allotting half share to the defendant no.1, without fixing boundaries as per the final decree the question of sale and transfer of any piece of land does not arise under any circumstance. The alleged sale agreement is vague and does not contain even boundaries for identification of purchased property. Due to illiteracy, lacking of legal knowledge and due to old age defendant no.1 could not reply to the legal notice. The plaintiffs have fabricated the sale agreement.

6

9. It is the contention of the second defendant that the second defendant is no way concerned to the agreement between the plaintiffs and the defendant no.1 is no way concerned to the second defendant and his half schedule property covered in OS 463/1989. The sale agreement is alleged to have been created by the plaintiffs against the first defendant during the pendency of OS 463/1989 and transfer of the schedule property if any does not contain any legal sanctity and legal identity as OS 463/1989 was sub-judice before the Court for passing final decree and the same was passed on 09.11.2004. Even by the date of filing of the written statement by the defendant no.1 they have not received final decree copies and they were not put into their respective half share of possession covered under alleged agreements between the plaintiffs and the defendant no.1. Hence, the plaintiffs are not entitled for the suit reliefs.

10. Basing on the above pleadings the court below settled the following issues for trial :

1. Whether the agreement of sale dt:18.09.2003 and 12.11.2003 are true, valid and binding on the defendants?

2. Whether the plaintiffs are entitled for grant of the relief as prayed for?

3. Whether the plaintiffs are entitled for refund of amount of Rs.25,000/- from the defendants in the alternative?

4. Whether the plaintiffs are entitled for compensation of Rs.5,000/- from the defendants as prayed for?

5. To what relief?

11. During the course of trial, on behalf of the plaintiffs, PWs.1 and 2 are examined and got marked Exs.A.1 to A.5. On behalf of the defendants, DWs.1 and 2 are examined and got marked Exs.B.1 to B.10.

7

12. Having heard the learned counsels on record for both the parties and having considered the available evidence on record the trial

Court partly decreed the suit with costs. Aggrieved by the same, the plaintiff nos.1 and 3 preferred the present appeal on various grounds.

13. I have heard the learned counsel for the appellants and also the learned counsel for the respondents.

14. Basing on the above rival submissions now the points for determination are :

1. Whether the agreement of sale dt:18.09.2003 and 12.11.2003 are true, valid and binding on the defendants?

2. Whether the plaintiffs are entitled for grant of the relief as prayed for?

3. Whether the plaintiffs are entitled for refund of amount of Rs.25,000/- from the defendants in the alternative?

4. Whether the plaintiffs are entitled for compensation of Rs.5,000/- from the defendants as prayed for?

5. To what relief?

POINT No.1 :

15. To establish the case of the plaintiffs PWs.1 to 3 were examined and got marked Ex.A.1 to A.5. Ex.A.1 is original sale agreement

dt:18.09.2003. Ex.A.2 is original receipt dt:12.11.2003. Ex.A.3 is office

copy of the legal notice dt:20.07.2014. Ex.A.4 is original postal receipt bearing No.3492, dt:20.07.2014. Ex.A.5 is served acknowledgement card.

PW.1 is the first plaintiff in the above case and PW.2 is attestor to the

Ex.A.1 document. Both PWs.1 and 2 deposed in one voice that Exs.A.1 and A.2 were executed by the defendant no.1 for the sale of suit schedule property. The learned counsel for the appellant vehemently submitted that 8 though the defendant no.2 did not file any appeal he can challenge the same finding in issue no.1 and relied on a ruling in (2003) 5 Supreme

Court Cases 321 between Postgraduate Institute of Medical Education and Research and another Vs. A.P.Wasan and others. As per the observation on the said ruling it is relied on by the learned counsel for the appellant that though the defendant no.2 did not file cross-appeal, he can challenge the finding. But non-challenging of an adverse finding is different from non-filing of cross-appeal; the defendant must take the ground as a challenge and has to pay court fees in the appeal to register the appeal as cross-appeal. So, the observation of that ruling is totally on different context and it does not mean that the defendant no.2 has right to oppose the adverse finding of trial court without filing cross-appeal. Hence, with great respect the observation in that ruling is no way helpful to the defendant no.2. Moreover, the defendant no.2 is a party to the Ex.A.1 and

A.2 agreements. The defendant no.2 has right to contest the suit by taking all defences and the defendant no.2 also must take steps for disproving the signatures or alleged thumb impression of his father, but the defendant no.2 did not take any steps to that extent and mere denial is not sufficient and the trial court rightly answered the issue holding that Exs.A.1 and A.2 are proved and there are no grounds for interfering into that finding.

POINT No.2 :

16. The learned counsel for the appellant vehemently argued that pending of the suit is no way concerned to Exs.A.1 and A.2-agreements.

On hearing the same the learned counsel for the respondents vehemently submitted that an undivided property cannot be permitted to sell. But there is no force in the argument of the learned counsel for the appellants 9 on the ground that any intending buyer can enter into an agreement for sale of the undivided property and that agreement is valid and binding on the other co-sharers, subject to seeking partition of his share and the law is settled on that aspect as per Section 40 of the Transfer of Property Act and to that extent there is no force. Basing on the evidence of DWs.1 and 2 read with Exs.B.1 to B.13 it is established that by the time of Exs.A.1 and

A.2-documents the partition suit was pending between the defendant nos.1 and 2 in OS 463/1989 on the file of the Junior Civil Judge, Ramannapet. It is established that subsequently, the suit was decreed and partition was effected. It is also established that both the defendant nos.1 and 2 are no more and the defendant no.2 is the successor of the defendant no.1’s property. However, the trial court by considering all the material facts gave a negative finding that the plaintiffs are not entitled for the specific performance and granted alternative relief. The learned counsel for the plaintiffs vehemently argued that the trial court neglected to grant specific relief, though the trial court considered that Exs.A.1 and A.2-documents stand proved. No doubt, the first issue was answered in favour of the plaintiffs and prayed this court to grant the relief. It is established on record that the agreements under Exs.A.1 and A.2 were executed in the year 2003 and due to passing of time from 2003 to this time, lot of changes might have been occured regarding the suit schedule property and the trial court considered the then situations in the suit schedule properties basing on Exs.B.1 to B.13 and subsequent developments may also cause lot of inconvenience on the ground-level and this is considered opinion of ths

Court that the trial court rightly refused to grant the relief of specific performance and rightly granted alternative relief and there are no grounds 10 for setting aside that finding and more over, strong justifiable grounds to that effect for interfering into that finding. Accordingly this point is answered against the plaintiff and the trial court finding to that effect is confirmed.

POINT Nos.3 & 4 are interlinked. Hence, clubbed together.

17. It is undisputed fact that Rs.25,000/-was passed to the father of the plaintiffs under Exs.A.1 and A.2 out of Rs.65,000/- as agreed for the sale of the suit schedule property and it is also undisputed fact that

Rs.5,000/- was to be paid by the defendant no.1 by way of compensation, when he fails to execute sale deed. It is established on record with sufficient evidence of PWs.1 and 2 read with Exs.A.1 to A.5 the plaintiffs took steps to get the execution of the sale deed in pursuance of Exs.A.1 and A.2-documents and Exs.B.1 to B.13 establishes the pendency of suit in OS.463/1989 on the file of the Junior Civil Judge, Ramannapet and also pendency of AS 51/1999 on the file of IV Additional District Judge (Fast

Track Court No.2), Nalgonda and are the causes for non-execution of the sale deed and it is established that there are faults on both parties ont he ground that the plaintiffs entered into agreement under Exs.A.1 and A.2 knowing well about the pendency of the suit between the defendant nos.1 and 2 in OS 463/1989, hence, both parties are burdened by the trial court in consideration of alternative relief and awarding compensation of

Rs.5,000/-as stipulated in Ex.A.1document and the trial court rightly considered the facts in a proper perspective leaving no grounds for interference. Accordingly, these two points are also answered confirming the findings of the trial court under issues Nos.3 and 4 accordingly, for the 11 entitlement of return of earnest money and payment of compensation by the defendant no.2.

POINT No.5 :

18. In the result, the appeal is dismissed confirming the decree and judgment dt:28.08.2013 in OS 141/2004 on the file of the Junior Civil

Judge, Ramannapet. Both parties shall bear their own costs.

Directly typed to my dictation by the Stenographer Grade-1, corrected and pronounced by me in the open Court on this the 31st day of December, 2018.

Prl. District Judge, Nalgonda.

APPENDIX OF EVIDENCE

- NIL –

Prl. District Judge, Nalgonda.

12

Judgment pronounced in the Open Court (VSJ). In the result, the appeal is dismissed confirming the decree and judgment dt:28.08.2013 in OS 141/2004 on the file of the Junior Civil Judge,

Ramannapet. Both parties shall bear their own costs.

PDJ

IN THE COURT OF THE PRL. SESSIONS JUDGE AT NALGONDA.

(Dated this the 31st day of December, 2018)

Present: Sri D.Tirumala Rao., Prl. Sessions Judge, Nalgonda.

Crl. Appeal No. 51 of 2018

Between:

1. Nenavath Redya S/o Laxman, aged: 50 years,

2. Nenavath Rajya S/o Laxman, aged: 52 years,

3. Nenavath Chandu S/o Rajya, aged: 28 years,

4. Nenavath Dasru S/o Rajya, aged: 22 years,

5. Nenavath Ganesh S/o Rajya, aged: 20 years, all are agriculturists and R/o Kalamandabhavi Thanda H/o Pasunur

(v), Nampally (M), Nallagonda District. (.Appellant

V/s

The State of Telangana R/by Public Prosecutor, Prl.Sessions Court, Nalgonda.

3Respondent

On Appeal against the Judgment & sentence dt:19.02.2018 in

CC No. 1673 of 2017 (Old CC No.545 of 2011 on the file of

Additional Judicial First Class Magistrate, Deverakonda

Between: The State of Telangana through Sub-Inspector of Police, Station House Officer, Nampally Police Station.

3Complainant

V/s

1. Nenavath Redya S/o Laxman, aged: 50 years,

2. Nenavath Rajya S/o Laxman, aged: 52 years,

3. Nenavath Chandu S/o Rajya, aged: 28 years,

4. Nenavath Dasru S/o Rajya, aged: 22 years,

5. Nenavath Ganesh S/o Rajya, aged: 20 years, all are agriculturists and R/o Kalamandabhavi Thanda H/o Pasunur

(v), Nampally (M), Nallagonda District. 3Accused This Criminal Appeal is coming before me on this day for final hearing and disposal in the presence of Sri Munagala Narayana Rao, Counsel for appellants and Sri.N.Gopala Krishna, In-charge Public Prosecutor and after having stood over for consideration till this day, this Court delivered the following

JUDGMENT

1. This Criminal appeal is filed under Sec.374 (3) Cr.P.C.

assailing the judgment and sentence dt:19.02.2018 in CC 1673 of 2017 2 (Old CC 545 of 2011) on the file of Additional Judicial First Class

Magistrate, Deverakonda, wherein the Court below convicted the accused

for the offence under Section 143, 323, 506 of I.P.C. along with fine and also default clauses.

2. The parties are arrayed as parties before the trial court from hereinafter for the sake of convenience.

3. The brief facts of the case are that on 24.10.2011 at 9.00 A.M.

PW.1 came to the P.S. and lodged a report stating that on 23.10.2011 at 8:00 P.M. she sat in front of her house. At that time, A.1 to A.5 by keeping previous grudges in their mind, came to her, abused her saying “lanjadana, nee mogudu ekkada vunnade, maa gurinchi ekkuvaga matladuthunnadu” so saying they threatened her that they would kill her husband, when and where they would find him. In the meantime, her husband came there and on that all the above A.1 to A.5 beat her husband with hands, threatened him that they would kill him if he comes in their way and fled away. PW.1 further averred that she put the matter before the elders at 8:00 A.M. on 24.10.2011 and the elders summoned the A.1 to A.5 but they did not turn up. However, they warned that they would kill if anybody discuss the matter against them. Hence, she requested legal action.

4. Basing on the above report, LW.8 D.Praneeth Kumar, Sub-

Inspector of Police, registered a case in Crime No.138/2011 under Section 143, 506, 509 and Section 323 r/w 34 I.P.C and took up the investigation.

He visited the scene of offence, examined and recorded the statements of witnesses, conducted scene of offence panchanama and after completion of the investigation he laid the charge sheet.

3

5. The learned Judicial First Class Magistrate, Deverakonda took cognizance of the above case for the offences under Sections 143, 506, 509 and 323 r/w 34 I.P.C. against the accused in CC No.545 of 2011 and subsequently the case was transferred to the trial court and again the case was renumbered as CC 1673 of 2017 on the file of the Addl. Judicial First

Class Magistrate, Deverakonda. On appearance of the accused copies were furnished to the accused nos.1 to 5 under Section 207 Cr.P.C. A.1 to

A.5 were examined under Section 251 Cr.P.C., for the offences punishable under Section 143, 506, 509, 323 r/w 34 I.P.C., for which they pleaded not guilty and claimed to be tried.

6. To substantiate the same the prosecution examined PWs.1 to 5 and got marked Exs.P.1 and P.2. After completion of the prosecution evidence the accused were examined under Section 313 Cr.P.C. by explaining the incriminating evidence appears from the prosecution witnesses against the accused Nos.1 to 5, who denied the same and reported no evidence.

7. The court below having heard the learned Assistant Public

Prosecutor and the learned defence counsel for the accused nos.1 to 5 and having considered the evidence available on record, and also having verified the documentary evidence available on record found guilt of the accused nos.1 to 5 for the offences under Section 143, 323, 506 and 509 r/w 149 I.P.C. and sentenced A.1 to A.5 to undergo rigorous imprisonment for a period of one month for the offence under Section 143 of I.P.C., sentenced to undergo rigorous imprisonment for six months with a fine of

Rs.1,000/- with default clause for the offence under Section 323 of I.P.C., and also sentenced to undergo rigorous imprisonment for 9 months with 4 fine of Rs.500/- along with default clause for the offence under Section 506 of I.P.C., and also to undergo imprisonment for a period of one year with a fine of Rs.500/- and with default clause for the offence under Section 509 of I.P.C. with a direction to run all the substantive sentences concurrently and all the default sentences consecutively. Aggrieved by the said judgment and order dt:19.02.2018 in CC No.1673 of 2017 (Old CC No.545 of 2011) the appellants preferred the present appeal on various grounds.

8. I have heard the learned counsel for the appellants and the learned Public Prosecutor.

9. Now the points for determination are :

1. Whether the prosecution has been able to bring home the guilt of the accused nos.1 to 5 for the offences under Sections 143, 506, 509 and 323 r/w 149 of I.P.C., beyond reasonable doubt?

2. To what relief?

POINT Nos.1 and 2 :.

10. The case of the prosecution is that PWs.1 and 2 are wife and husband. A.1 and A.2 are brothers. A.3 to A.5 are sons of the accused

No.2. All the accused and defacto-complainant hail from Kalamandabavi

Thanda H/o Pasunur village. A.2 and PW.2 have disputes between them.

Keeping this in mind, the accused persons A.2 to A.5 formed themselves as unlawful assembly on 23.10.2011 and went to the house of PW.1 and started abusing PW.1 and asked for the PW.2 and thereafter threatened the PW.1 with dire consequences to kill PW.2. Meanwhile, PW.2 came to the house. On seeing the PW.2 the accused attacked on PW.1 and also beat PW.2 with hands.

11. To substantiate the same, the prosecution examined PWs.1 to 5 and got marked Exs.P.1 and P.2. PW.1 is the complainant. PW.2 is 5 husband of PW.1. PWs.3 and 4 are stated to be eye witnesses. PW.5 is panch for scene of offence. Ex.P.1 is report lodged by PW.1. Ex.P.2 is scene of offence panchanama.

12. Now coming to the evidence available on record, it is deposed by PW.1 that PW.2 is her husband, the accused are her relatives. About 6 years ago, on one day during night time, at 08:00 P.M. while her husband was at her in-law’s place, she was sitting in front of her house. Then all the accused came to her house in a drunken condition disputed with her in view of various disputes, abused her in filthy language and threatened that they will kill them. On hearing noise, PW.2 came there. All the accused beat the PW.2. Later, they left the place. On the next day morning they went to the police station and lodged Ex.P.1 report. During the cross examination of PW.1, it is elicited that they do not have previous disputes prior to the incident, Police scribed Ex.P.1 report. She did not report

before the police that they have previous disputes and panchayaths as in

Ex.D.1. PW.2 accompanied her to the police station.

13. PW.2 deposed that on 23.10.2011 at about 08:00 A.M., the accused came to their house in his absence disputed with PW.1 in a filthy language and beat her. Meanwhile, he returned from the fields and when he asked them about it they beat him also. On the next day, they went to the police station and lodged report. During his cross-examination, it is elicited that while the accused were beating PW.1 he reached there. They do not have previous disputes prior to the incident. Police scribed Ex.P.1 report on their narration of the incident.

14. PW.3 deposed that the accused, PWs.1 and 2 are her relatives. About six years ago, PW.2 went to his field during night 6 time.PW.1 was alone at that time. Accused came there and abused her in the filthy language. Meanwhile, PW.2 came there and accused beat both of them with hands. She witnessed the incident. During the cross- examination of PW.3 it is elicited that her house is situated at some distance behind the house of PW.1. She does not know whether the parties had any land disputes. The incident occurred at 08:00 P.M. There was sufficient lighting.

15. PW.4 deposed that about six years ago, PW.2 went to the fields and PW.1 was alone at that time. Accused came there and abused her in filthy language, disputing with her with regard to path dispute near their fields. Meanwhile, PW.2 came there and the accused beat both of them with hands. She witnessed the incident. During her cross- examination, she deposed that there were no previous disputes between the parties. At the time of the incident, she was at her house.

16. PW.5 deposed that about six years ago, the accused disputed with PWs.1 and 2 at the house of PW.1 with regard which on the same night police came to her house and observed the same in her presence.

Later, Police drafted a panchanama to that effect and obtained her signature. Ex.P.2 is the scene of offence panchanama, which bears her signature. During her cross-examination it is elicited that Ex.P.2 contains her three signatures. The contents of Ex.P.2 were not read over to her

before obtaining her signatures. PW.1 is her sister-in-law.

17. Ex.P.1 is the report dt:24.10.2011. In Ex.P.1, PW.1 reported that the accused came to her house on 23.10.2011 at 08:00 P.M. and asked her husband and thereafter when PW.2 came there, they beat him and she lodged the report on the next day and she also stated that there 7 are disputes between them. But in the evidence she denied the same, which is contrary to the contents of her report. PW.1 deposed that A.1 to

A.5 beat the PW.2. But PWs.2 to 4 quite contrarily deposed that A.1 to A.5 also beat PW.1 and also deposed that there are no disputes between complainant-party and accused-party which is quite contrary to the version of PW.1, who stated that there were disputes between them and A.1 to

A.5. PW.5 deposed that on the same day of the incident, Police came to the scene of offence and obtained her signature on Ex.P.3-the scene of offence panchanama without reading out the contents of the same to her.

Whereas Pw.1 deposed that she lodged the report on the next day of the incident and Ex.P.2 speaks that it was prepared on 24.10.2011 at 12:00 noon, which is contrary to the version of PW.1 read with Ex.P.2 contents.

It is deposed by PWs.1 and 2 that Ex.P.1 report was drafted by the police and as per the version of PW.5 Police came to the scene of offence panchanama immediately after the incident and appears that Ex.P.1 and

P.2 were prepared to tune their case, but the trial court failed to consider the same. The another important aspect is that the investigating officer was not examined and FIR was not marked before the trial court. Though the non-examination of the Investigating Officer is not fatal but as far as this case is concerned his presence is fatal on the ground that all the witnesses speak that Ex.P.1 and P.2 are prepared by the police, which gives a reasonable doubt in the mind of the court and the inconsistent versions of the prosecution witnesses regarding earlier disputes and improper explanation by the prosecution witnesses and the same is contrary to the contents of Ex.P.1 report which speaks that there were disputes between the accused-party and the complainant-party but the 8 complainant-party suppressed the same fact and it is established as under

Ex.D.1 but that fact should be established by examining Investigating

Officer and the Investigating Officer is not examined and delay in lodging

FIR is also improperly explained and it cannot be ruled that Ex.P.1 and P.2 are fabricated for the purpose of the case contrary to the original fact of incident and the trial court failed to consider these aspects and relied on inconsistent versions of PWs.1 and 2. PW.1 speaks that A.1 to A.5 beat

PW.2 whereas PW.2 speaks that A.1 to A.5 also beat PW.1 and PWs.3 to 5 also speaks that A.1 to A.5 beat both PWs.1 and 2 and the versions of

PWs.2 to 5 are at variance with the version of PW.1 and gives a shadow of doubt in the mind of the court and the trial court failed to consider these aspects and also ignored the establishment of the prosecution case beyond reasonable doubt and came to an erroneous conclusion, which is liable to be set aside. Accordingly, this point is answered.

18. In the result, the appeal is allowed and the judgment and sentence dt:19.02.2018 in CC 1673/2017 (Old CC 545/2011) on the file of the Addl. the Judicial First Class Magistrate, Deverakonda is hereby set aside. The accused nos.1 to 5 are found not guilty for the offences under

Section 143, 506, 509, 323 r/w 149 of I.P.C. The accused Nos.1 to 5 are acquitted under Section 255 (1) Cr.P.C. for the offences under Section 143, 506, 509, 323 r/w 149 of I.P.C. The bail bonds of the accused shall stand cancelled. The fine amounts paid by the accused nos.1 to 5 shall be returned after appeal period is over.

Directly typed to my dictation by Stenographer Grade-I, corrected and pronounced by me in the open Court on this the 31st day of December, 2018. Prl. Sessions Judge, Nalgonda.

APPEDIX OF EVIDENCE

- NIL -

Prl. Sessions Judge, Nalgonda.

9

Judgment pronounced in the open Court (VSJ). In the result, the appeal is allowed and the judgment and sentence

dt:19.02.2018 in CC 1673/2017 (Old CC

545/2011) on the file of the Addl. the

Judicial First Class Magistrate,

Deverakonda is hereby set aside. The accused nos.1 to 5 are found not guilty for the offences under Section 143, 506, 509, 323 r/w 149 of I.P.C. The accused

Nos.1 to 5 are acquitted under Section 255 (1) Cr.P.C. for the offences under

Section 143, 506, 509, 323 r/w 149 of

I.P.C. The bail bonds of the accused shall stand cancelled. The fine amounts paid by the accused nos.1 to 5 shall be returned after appeal period is over.

PSJ

IN THE COURT OF THE PRL. SESSIONS JUDGE AT NALGONDA.

(Dated this the 31st day of December, 2018)

Present: Sri D.Tirumala Rao., Prl. Sessions Judge, Nalgonda.

D.V.C. Appeal No. 56 of 2018

Between:

Vanguri Veeraiah S/o Pakheer, aged: 45 years, Occ: Driver, R/o Lingotam (Shali Lingotam) (v) of Shaligouraram (M), Nalgonda District.

*.Appellant

V/s

Vanguri Saidamma W/o Veeraiah, aged: 36 years, Occ: House- hold, R/o Lingotam (Shali Lingotam village of Shaligouraram Mandal, Nalgonda District, presently R/o Boyawada, Nalgonda town and District.

5Respondent

On Appeal against the orders dt:25.01.2018 in DVC 12 of 2015 on

the file of Judicial First Class Magistrate (Special Mobile Court),

Nalgonda

Between:

Vanguri Saidamma W/o Veeraiah, aged: 36 years, Occ: House- hold, R/o Lingotam (Shali Lingotam village of Shaligouraram Mandal, Nalgonda District, presently R/o Boyawada, Nalgonda town and District *.Aggrieved Person

V/s

1.Vanguri Veeraiah S/o Pakheer, age: 42 years, Occ: Driver,.

2.Vanguri Somalingamma W/o Pakheer, age: 55 years, Occ: Coolie,

3.Vanguri Pakheeru S/o Nil, age: 58 years, Occ: Coolie, R1 to R.3 are the R/o Lingotam (v), Shaligouraram Mandal, Nalgonda District.

4.Vanguri Laxmamma W/o Somalingaiah, age: 45 years, Occ: Coolie,

5.Vellamula Somaiah S/o Pitchaiah, age: 47 years, Occ: Agriculture, R.4 and R.5 are R/o Kadaparthy (v), Nakrekal (M), Nalgonda District. 5Respondents

This DVC Appeal is coming before me on this day for final hearing and disposal in the presence of Sri Ch.Gopal, Counsel for appellant and Sri.G.Jawaharlal, Counsel for the Respondent and after having stood over 2 for consideration till this day, this Court delivered the following

JUDGMENT

1. This DVC appeal is filed under Sec.29 DVC Act r/w Section 374 of Cr.P.C. assailing the order dt:25.01.2018 in DVC 12 of 2015 on the file of Judicial First Class Magistrate, (Special Mobile Court) at Nalgonda, wherein the Court below partly allowed the relief against the respondent no.1 and dismissed the reliefs against R.2 to R.5.

2. The parties are arrayed as parties before the trial court from hereinafter for the sake of convenience.

3. The brief facts of the case are that the aggrieved person filed a complaint before the protection Officer, Nalgonda against her husband/R.1 and the relatives of her husband/R.2 to R.5. The Protection

Officer forwarded the Domestic Incident Report to the trial court in Form

No.1 along with the Forms 2 and 3 as prescribed under the protection of women from Domestic Violence Rules 2006 and the aggrieved person stated in her report that R.1 is her husband. R.2 is her mother-in-law, R.3 is father-in-law. R.4 is sister-in-law. R.5 is the husband of sister-in-law.

Her marriage with R.1 was performed in 1994 at Shali Lingotam,

Gouraram Mandal. At the time of marriage her parents gave Rs.40,000/- net cash, 2 tulas of gold and house-hold articles towards dowry to R.1.

After marriage she joined the conjugal society of the respondent at Shali

Lingotam. She and R.1 to R.3 lived in a joint family. Out of wedlock she gave birth to a doctor who is now aged about 15 years. She is studying 10th class. R.1 used to harass her physically and mentally in a drunken condition and also on the ground that she gave birth to a female child. He also harassed her for additional dowry of Rs.30,000/-. The amount was 3 given to him by her parents in the presence of elders. But he did not change and again harassed her for additional dowry of Rs.20,000/-. He used to beat her daily. R.2 and R.3 also used to support him. Hence, she prayed to i) grant protection order, ii) residential order, iii) maintenance at

Rs.5,000/- each to her and her daughter., iv) compensation of

Rs.10,00,000/-.

4. The Court below on receipt of the above Domestic Incident

Report registered it as a case under Protection of Women from Domestic

Violence Act, 2016 against the respondents and issued notice to them.

5. After receipt of the notices the respondents appeared before the Court below and the respondents did not choose to file counter even after conditional orders. As such, the right to file counter was forfeited on 3.11.2015.

6. The court below framed the following points for consideration :

1. The domestic relation between the petitioner and the respondent?

2. The domestic violence as defined under Section 3 of the

Act?

3. Whether the petitioner is entitled for the reliefs sought by her in her petition?

7. During enuqury, the aggrieved person got examined herself as

PW.1 and also examined PW.2 apart from marking Exs.P.1 to P.3. The first respondent was examined himself as RW.1 and no documentary evidence was adduced.

8. The court below having heard the learned counsels for aggrieved person and the respondents and having considered the 4 evidence available on record for both parties and also having verified the documentary evidence available on record dismissed the claim against the respondent nos.2 to 5 and partly allowed claim against the respondent

No.1 by granting an amount of Rs.5,000/- as maintenance per month, directed to transfer Ac.0.03,.gts., of land in the name of daughter of the

PW.1 within six months, directed R.1 to pay an amount of Rs.1,00,000/- to

PW.1 as compensation. . Aggrieved by the said order the first respondent preferred the present appeal on various grounds.

9. I have heard the learned counsel for the appellant and the learned counsel for the respondent.

10. Now the points for determination are :

1. Whether the appellant has established any justifiable grounds for interference into the order of the court below as prayed for?

2. Whether the order passed by the Court below is sustainable in the eye of law?

POINT Nos.1 and 2 :

11. The undisputed facts are that both the aggrieved person and respondent got married in the year 1994. The respondent without giving any divorce and during the subsistence of the first marriage got married

PW.2. Both PW.1 and the respondent lived together in Shaligowraram till 2012. PW.1 filed 498(A) case against the respondent and his family members. The respondent was convicted in that case and the appeal was also dismissed and C.R.P. is pending before the Hon’ble High Court. PW.2 also filed DVC 16 of 2015 and Ex.P.3 is certified copy of the said DVC

Order. On behalf of the aggrieved party PWs.1 and 2 are examined and got marked Exs.P.1 to P.3. Ex.P.1 is complaint, Ex.P.2 is certified copy of the agreement dt:3.2.2006, Ex.P.3 is certified copy of DVC 16/2015 5

dt:24.01.2017. PW.1 deposed that the respondent used to harass her

physically and mentally in a drunken condition and also on the ground that she gave birth to a female child. He insisted her to bring additional dowry of Rs.30,000/- and that amount was paid by her parents but the respondent did not change his attitude and subsequently married PW.2 and she filed Ex.P.2 copy of agreement.

12. Chief affidavit of PW.2 filed. PW.2 deposed by way of chief- examination that by suppressing the fact of earlier marriage the respondent got her married as a second wife and started harassing her leading to filing of DVC 16/2015 on the file of the same trial court.

13. RW.1 deposed that PW.1 falsely filed the DVC and there is no material to establish the alleged allegations against him and those are baseless.

14. It is established basing on the admitted facts that both PW.1 and RW.1 are wife and husband and PW.2 was also got married by the

RW.1 after the desertion of PW.1 and both PW.1 and PW.2 deposed in one voice about their sufferance at the hands of RW.1 which clearly established the attitude of the RW.1 and the trial court rightly came to a conclusion to give a clear finding about the act of domestic violence on the part of PWs.1 and 2 on their respective Domestic Violence Cases and basing on the admissions made by the RW.1 regarding his readiness to give Rs.1,00,000/- for the settlement of the case and basing on his willingness to transfer Ac.0.03.gts., of land in the name of his daughter and basing on his admission about having agricultural lands the trial court rightly concluded and the finding of the trial court is with sound reasons leaving no grounds for interference and the trial court finding is justifiable 6 on that grounds and there are no merits for warranting the interference of this Court. Accordingly, these two points are answered.

15. In the result, the appeal is dismissed confirming the Order

dt:25.01.2018 in DVC 12/2015 on the file of the Judicial First Class

Magistrate (Special Mobile Court), at Nalgonda.

Directly typed to my dictation by Stenographer Grade-I, corrected and pronounced by me in the open Court on this the 31st day of December, 2018.

Prl. Sessions Judge, Nalgonda.

APPEDIX OF EVIDENCE

- NIL -

Prl. Sessions Judge, Nalgonda.

7

Judgment pronounced in the open Court (VSJ). In the result, the appeal is dismissed confirming the Order

dt:25.01.2018 in DVC 12/2015 on the

file of the Judicial First Class

Magistrate (Special Mobile Court), at

Nalgonda.

PSJ

IN THE COURT OF THE PRL. SESSIONS JUDGE:: NALGODNA

(Dated this the 31st day of December, 2018)

Present: Sri D.Tirumala Rao,

Prl. Sessions Judge Nalgonda.

Crl. REVISION PETITION No. 34 of 2018

Between :

Sanda Sri Ramulu S/o Samuel, age: 59 years, Occ: Retired Govt. Servant, R/o Jajireddygudem (v), Arvapally Mandal, Suryapet District.

6.Revision Petitioner AND

Sanda Somakka W/o Sri Ramulu, age: 55 years, Occ: House- hold, R/o Chittalooru (v), Shaligouraram Mandal, Nalgonda District.

.... Respondent

On revision against the orders dated 19.03.2018 on the file of the Judicial First Class Magistrate at Nakrekal In

Crl.M.P.2279 of 2016

In

M.C.No.04 of 1990

Between :

Sanda Somakka W/o Sri Ramulu, age: 55 years, Occ: House- hold, R/o Chittalooru (v), Shaligouraram Mandal, Nalgonda District.

6.Petitioner AND

Sanda Sri Ramulu S/o Samuel, age: 59 years, Occ: Retired Govt. Servant, R/o Jajireddygudem (v), Arvapally Mandal, Suryapet District.

.... Respondent

This Revision Petition is coming before me for final hearing in the presence of Sri G.Srinivas Chakravarthy,Counsel for the Revision petitioner and of Sri Sudini Srininivas Reddy, Counsel for the Respondent, upon perusing the material on record, stood over for consideration till this day, this Court delivered the following :

2

O R D E R

1. This is a Criminal Revision petition filed under Sec.397 r/w

Section 399 Cr.P.C., praying this Court to revise the Order dt: 19.03.2018 in Crl.M.P.No.2279/2016 in M.C.No.04 of 1990 on the file of Judicial First

Class Magistrate, Nakrekal wherein the amount was enhanced by the learned trial court from Rs.5,000/- to Rs.9,000/-.

2. The parties are arrayed as parties before the trial court for the sake of convenience from hereinafter.

3. The brief facts of the petitioner case are that the petitioner filed M.C.No.4 of 1990 which was allowed by granting monthly maintenance at Rs.250/-. Subsequently it was enhanced up to Rs.5,000/- as per orders dt:14.05.2013 in Crl.M.P.No.1270/2011. However, since the date of said order prices of all essential commodities as well as other necessities raised abnormally. Apart from that the petitioner has been suffering from ill-health. Moreover, in the year 2004, the petitioner performed her daughter’s marriage by spending huge amount borrowed from third parties. Therefore, due to raise in the price as well as her health condition, the petitioner is in dire need of an amount of Rs.25,000/- per month for her maintenance. Since the respondent is working as Mandal

Revenue Inspector at Arvapally Mandal and is drawing an amount of

Rs.50,405/- per month. Besides that he is having Ac.4.00 of lemon garden and thereby he is getting an amount of Rs.5,00,000/- per annum including the house-rents. Thus, she sought for enhancement of monthly maintenance from Rs.5,000/- to Rs.25,000/- in the interest of justice.

4. On the other hand, the respondent opposed the petition by filing his counter interalia stated that this is the fourth petition filed by the petitioner ever since from the date of order granting monthly maintenance.

3 The respondent is aged about 54 years and having his old aged mother who is suffering from filaria besides that she is suffering from chronic diseases such as diabetes and other ailments. Therefore, he has to look after his mother and thereby liable to incur huge amount for her treatment and medication etc., Apart from his mother, the respondent is also suffering from hyper-tension. Therefore, needs constant medical-aid.

Hence, he obtained a loan from Bank to meet their medical expenses and still he is paying installments from out of his salary.

5. He further submitted that at the time of filing his counter he is getting an amount of Rs.16,205/-. Out of which he is paying an amount of

Rs.5,000/- to the petitioner. Therefore, the remaining amount will be suffice towards the maintenance of himself and his mother. Thus, he is not in a position to pay any amount exceeding Rs.5,000/- per month. Moreover, as the petitioner is having a own-house at Chithaloor village apart that she is having Ac.2.00.gts. of agricultural land thereby getting an amount of

Rs.1,00,000/- per month. Thus, she has sufficient means for her maintenance besides the monthly maintenance being paid by him. Further more, as the petitioner performed her daughter’s marriage without any dowry and even did not incur any amount for such marriage. In view of aforesaid facts, there is no change in the circumstances under which monthly maintenance was ordered at Rs.5,000/-, hence, sought for dismissal of the petition.

6. During the course of enquiry, the petitioner herself has been examined as PW.1 and got marked Ex.P.1 salary certificate, dt:2.11.2014.

The respondent himself has been examined as RW.1 and no documentary evidence is adduced for the respondent.

4

7. Having heard the learned counsels for both the parties and having considered the evidence available on record the court below enhanced the amount from Rs.5,000/- to Rs.9,000/-. Aggrieved by the said order the respondent/husband preferred the present appeal on various grounds.

8. I have heard the learned counsel for the revision petitioner and also learned counsel for the respondent.

9. Now the points for determination are :

1. Whether the revision petitioner established any justifiable grounds for consideration of the revision petiton?

2. Whether the order passed by the Court below is sustainable under law?

3. To what relief?

5. Both Point Nos. 1 & 2 are inter-linked. Hence clubbed together and decided simultaneously.

POINT Nos.1 & 2:

6. It is undisputed fact that this is the fourth application. Both the petitioner and the respondent are wife and husband. The respondent was getting an amount of Rs.60,000/- per month. The mother of the respondent is getting monthly pension. The respondent retired from service. It is the case of the respondent that after the retirement the respondent is not able to pay such kind of huge amount due to his financial inability but the trial court failed to consider that fact and enhanced the amount from Rs.5,000/- to Rs.9,000/- without considering his resistance.

In consideration of the same this court verified the available evidence led by both parties before the trial court. The respondent contended that the petitioner got lands after the death of Buchi Ramulu who is alleged to have 5 adopted the petitioner, but there is no evidence on record to that extent. It is admitted by the respondent that he got Rs.22,00,000/- as retirement benefits and it also stands proved that he got agricultural land. The petitioner successfully established the reasons for enhancement on the ground that she is suffering from ill-health and in consideration of the present market values she requires more amount. The trial court considered the facts in a proper perspective and answered very reasonably in consideration of the pension of the respondent after his retirement with sound reasons and the order of the court below is reasoned one with justifiable grounds and there are no grounds for interference into the trial court order. Accordingly these two points are answered and the revision petition is devoid of merits.

POINT No.3:

7. In the result, the Revision Petition is dismissed confirming the order dt:19.03.2018 in Crl.M.P.No.2279 of 2016 in MC 4/1990 on the file of the Judicial First Class Magistrate, Nakrekal.

Dictated to Stenographer Grade-I, transcribed by him, corrected and

pronounced by me in the open Court on this the 31st day of December,

2018.

Prl. SESSIONS JUDGE,

NALGONDA

6

Orders pronounced in the open court (VSO).

In the result, the Revision Petition is dismissed confirming the order

dt:14.05.2013 in Crl.M.P.No.1270 of 2011 in

MC 4/1990 on the file of the Judicial First

Class Magistrate, Nakrekal.

PSJ