Smt. G. Anandi

1

IN THE COURT OF II ADDITIONAL SENIOR CIVIL JUDGE (FTC), GUNTUR.

PRESENT: Smt. G.Anandi, B.Com., LL.B., II Addl. Senior Civil Judge (FTC), Guntur.

Friday, this the 28th day of April, 2017

ORIGINAL SUIT NO.359 OF 1999 AND ORIGINAL SUIT NO.121/2001

O.S.No.359/1999:-

Between:

1. Jaya Lakshmi Exports, rep. By its partner Rayapati Gopala Krishna, S/o.Venkata Ranga Rao, R/o.K.L.P.Public School Road, Ring Road, Guntur.

2. Nuthalapati Appa Rao, S/o.Nagabhushanam, R/o.D.No.33-12-9, Sitarampuram, Vijayawada.

...Plaintiffs

And

1.Mittapalli Sarat Kumar, S/o.Rama Rao

2.Mittapalli Siva Kumar, S/o.Rama Rao

3.Mittapalli Uma Maheswara Rao, S/o.Rama Rao, D1 to D3 are R/o.Old Bank Road, Kothapet, Guntur.

4.Batchu Narasimha Rao, S/o.Venkata Seshagiri Rao, R/o.D.No.5-25-36/A, 3/7, Brodiepet, Guntur.

5.Garlapati Ramamohana Rao, S/o.Anjaneyulu, 45 years, R/o.Kothapet, Guntur.

...Defendants

O.S.No.121/2001:-

1.M/s.Mittapalli Rama Rao & Sons Tobacco Pvt., Ltd., Guntur rep. by its Director Mittapalli Siva Kumar O/o.G.T. Road, Guntur.

2.Mittapalli Siva Kumar, S/o.Rama Rao

3.Mittapalli Uma Maheswara Rao, S/o.Rama Rao,

4.Mittapalli Sarath Kumar, S/o.Rama Rao, All are R/o.Old Bank Road, Kothapet, Guntur.

...Plaintiffs

and

1. Jaya Lakshmi Exports, rep. By its Director partner Rayapati Srinivasa Rao,, S/o.Ranga Rao, Office at Ring Road, Guntur.

2. Rayapati Sreenivasa Rao, S/o.Ranga Rao, R/o.Ring Road, Guntur.

3. Muvva Venkata Rao, R/o.5-87-46, Chandramouli Nagar, Guntur-7.

4. Kondrakunta Vijjeswara Rao, S/o.Kotaiah, R/o.D.No.5-50-40, 6/13, Brodipet, Guntur -2.

2

These two suits are coming before me on 22.3.2017 for final hearing in the presence of Sri M.Seetha Rama Das, Advocate for

Plaintiffs in OS 359/99 and Defendants in OS 121/2001; Sri M.V.Subba

Rao, Advocate for Defendants 1 to 3 in OS 359/99 and Plaintiffs in OS 121/2001; and Sri A.Sanjeeva Reddy, Advocate for Defendants 4 and 5 in OS 359/1999 and after perusing the material available on record and having stood over till this day for consideration, this Court delivered the following:

C O M M O N J U D G M E N T

Both the suits being filed between the same parties interse, they were clubbed together and evidence was let in OS 359/99, which is a comprehensive suit for declaration of plaintiffs right to the schedule property and for mandatory injunction to remove structures made over plaint schedule property.

O.S.No.359/1999:-

2.The averments of the plaint in brief are:

The plaintiff is a firm registered under Indian Partnership Act, and is the owner of the plaint schedule property, having been purchased under registered sale deed dt.25.7.1994 from Divya Poultries and

Exports Pvt., Ltd., The plaintiff purchased the plaint schedule property for having access to the plaintiff's property situated in West, from the main road and NH-5 and since the date of purchase, the plaintiff is in possession and enjoyment of the property without any hindrance from anybody.

3.Defendants 1 to 3 purchased Ac.4.68 cents of land, under four different sale deeds on the same day, which is situated on the northern side of plaint schedule property from Pamulapati Sambrajyam,

Subhash Babu and Anand Babu, and the vendors defendant 1 to 3 do 3 not have any site more than that sold on 16.12.1997. Similarly, defendants 4 and 5 purchased Ac.5.12 cents to the south of Plaint schedule property from Palepu Ananda Rao under two different sale deeds, and the documents of title of the defendants though wrongly obtained, themselves clearly mention the plaintiff as adjacent owner, the recitals in the sale deeds of defendants 1 to 3 on one hand, and that of 4th defendant and 5th defendant on the other hand, clearly establishes that the plaintiff is the owner of the plaint schedule property. But the defendants with an intention to usurp the plaintiff's land, while admitting the plaintiffs right to the plaint schedule property, on other hand, contend that the plaint schedule property is in the land of defendants 4 and 5; whereas defendants 4 and 5 contend that, their

Ac.5.12 cents of land starts from a fixed boundary i.e., bode kaluva and both of them started litigating without impleading the other.

4.The plaintiffs say that except the plaintiffs' firm, no one has right over the plaint schedule property, but the defendants are trying to cause obstruction to the plaintiffs' peaceful possession and enjoyment of the plaint schedule property; they further say that defendants filed

OS 121/2001 on the file of Prl. Junior Civil Judge, Guntur describing the

plaintiffs wrongly and obtained interim injunction order by misleading the facts and under the cover of injunction an illegal survey is said to have been made, in the absence of plaintiff and the defendants have re- built the compound wall which was earlier removed, as it was sheer encroachment, even after injunction orders were passed in OS 1566/99 by the Hon'ble III Addl. District Judge, Guntur, the defendants constructed further structures over the plaintiffs land, by occupying it illegally, as the very purpose of plaintiff purchasing the land is lost and 4 frustrated by the illegal acts of the defendants, the plaintiff has filed this suit seeking declaration and for possession of the land free from obstructions created by the defendants.

5.2Nd defendant filed written statement and the same was adopted by defendants 1 and 3, through their written statement denying the plaint averments they submitted that, this suit is filed by the plaintiff as a counter blast to the suit filed by the defendants in OS 1266/99. The defendants say that, they purchased Ac.4.93 cents of land in survey No.23/1, 23/2 of Yedulapadu Agraharam village, and since then they are in possession of the said property, and that the averments of the plaintiff that, these defendants own only Ac.4.68 cents of land is a blatant lie, and defendants 4 and 5 are pressed into service by the plaintiff to act as chorus of the plaintiff. These defendants say that the lands purchased by them are contiguous plots formed into single plot and the defendants have constructed compound wall along their plot, and the alleged Ac.0.22 ½ cents as contended by the plaintiff is now vacant, which is in fact situated in survey No.23/2 not in survey No.23/1 as alleged by the plaintiff, which can be used for ingress and egress to the property of the plaintiff, the defendants further say that, when the plaintiff caused obstruction in the construction over the plots of defendants, they approached Survey Department, and after all the parties were served with notices, the Assistant Director of Survey conducted survey and boundary stones were fixed accordingly. But, the plaintiff and defendants 4 and 5 having knowledge about the same, contend that survey is illegal. They say that, their vendors and predecessors in title are having Ac.5.64 cents in D.No.23/1 and 23/2 in total out of which, the plaintiff has purchased 0.22 ½ cents in survey 5

No.23/2 for ingress and egress to reach their property situated on the western side, and the balance property i.e., Ac.4.99 cents was purchased by these defendants over which they made constructions, and that they never encroached into Ac.0.22 ½ cents of land said to be purchased by the plaintiff, hence this suit being baseless was prayed to be dismissed.

6.Defendants 4 and 5 through their written statement contend that they are unnecessarily added as parties to the suit against whom, no relief is claimed by the plaintiff. They say that they purchased

Ac.5.12 cents of land under registered sale deed dt.28.12.1995 and since then, they are in possession and enjoyment of it, and they never interfered with the possession of plaintiff or defendants 1 to 3, in fact the plaintiff who has their properties on the west and north of the property of these defendants is trying to disrupt the boundary between their properties and trying to interfere with the peaceful possession of these defendants. However, the matter was subsided by the elders, and they say that they have no objection to get their properties and the properties of the plaintiffs measured according to the existing boundaries, and fix survey stones. Hence, they say that they are not necessary parties to the suit, and prayed to dismiss the suit against them.

O.S.No.121/2001: -

7.This suit was filed by the defendants in OS 359/1999, which was initially numbered as 1266/1999, and on transfer it was re- numbered as OS 121/1999. The plaint pleadings in the said suit are nothing but replica of the written statement filed by defendants 1 to 3 in 6

OS 359/1999 contending that, they have purchased Ac.4.99 cents of

land under four registered sale deeds on 16.12.1997, and since then they are in possession of the property, and when they constructed compound wall along their property, the defendants i.e., plaintiffs in OS 359/99 obstructed the construction upon which the plaintiff approached the Survey Department got surveyed the property and fixed boundary stones, only after issuing notice to the defendants herein. But the defendants having knowledge that the compound wall is constructed within their boundaries on the southern side of the plaint schedule property, in the absence of plaintiffs have demolished part of the compound wall upon which, he gave police report but no action was taken on the report, as it was civil in nature. Hence, the plaintiff filed suit for permanent injunction against the defendants.

8.Similarly, the defendants herein who are plaintiffs in OS 359/99 filed their written statement reproducing the plaint averments in the said suit contending that the plaintiffs herein are having only

Ac.4.68 cents of land and not Ac.4.93 cents, and that they constructed their boundary wall by encroaching into Ac.0.22 ½ cents of land purchased by the defendants for the purpose of ingress and egress into their property. Hence, prayed to dismiss the suit for injunction, claiming the plaint schedule property to be their absolute property.

9.On behalf of plaintiffs PW.1 was examined Ex.A1 was marked. On behalf of the defendants DWs.1 and 2 were examined,

Exs.B1 to B6 were marked.

10.Heard both sides.

11. Basing on the pleadings, earlier the following issues were 7 framed as under : -

O.S.No.359/1999:

1. Whether the plaintiff is entitled to declaration as prayed for?

2. Whether the plaintiff is entitled to mandatory injunction as prayed for?

3. To what relief?

O.S.No.121/2001: -

1. Whether the plaintiffs are in possession of the suit schedule by the date of suit?

2. To what relief?

This court while going through the record for preparing judgment observed that, the issue on the relief claimed in OS 121/01 was not framed, and as the pleadings itself discloses that there is no dispute of plaintiff in OS 121/01 in possession of the schedule property therein, though alleged to be has encroached in to the property, the issue as framed that,

Whether the plaintiff is in possession of the property as on the date of filing the suit not being proper, the issue in OS 121/01 is recast as under?

“Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?

* For the sake of convenience the parties will be referred in the judgment as they referredin OS 359/99.

Issue No.1 in O.S.359/1999: -

12.As could be seen from the pleadings on record, the undisputed facts of the case are that, the plaintiff under Ex.A1 purchased Ac.0.22 ½ cents of land and to the north of the said property, 8

D1 and D3 have purchased property under four deeds i.e., Ex.B2 to B5, and there is no dispute that the property of plaintiff and defendants are situated adjacent to each other. It is the contention of the defendants

No.1 and 3 that the very suit is not maintainable, as the person who has given evidence as PW.1 before this court is not a authorized person to speak on behalf of the company, because he is not the person who has verified and signed the pleadings, and though PW.1 filed his chief affidavit stating himself to be an Assistant Manager of the plaintiff firm, no document is filed to show that he is authorized to represent the firm and give evidence, as such, his evidence cannot be taken into consideration and more over, the partner representing the firm named as R.Gopala Rao has not entered into the witness to speak about the case, hence, as PW.1 is not a substitute to the original party, he is not competent to appear as witness in the capacity of a party, and depose about the facts of the case. The plaintiff's counsel in support of his contentions relied upon the judgment reported in 2004 (3) ALT 213

S.Padmavathamma Vs. S.Sudharani and others wherein it was held that, “GPA holder is not a substitute to the party and not a

competent person to appear as a witness in the capacity of a

party and depose about the facts within the exclusive personal

knowledge of the party”. This court opines that, when according to order-III R 2, a recognized agent of a party holding power of attorney shall act on behalf of the principal, it also signifies that he can give evidence, but he can depose only about the facts, which are in his personal knowledge, and not as a party himself. As such PW.1 giving evidence, as to, what he knows about the schedule property as a witness cannot be alleged to be incapacitated to give evidence. More 9 over, nowhere the law mandates that the party himself shall enter the witness box and give evidence. In which event, PW.1 as an Assistant

Manager of the plaintiff firm, giving evidence on behalf of firm on the aspects those which are within his personal knowledge can be certainly accepted and received in evidence.

13.The other objection raised by the defendants counsel was that the very plaint being silent regarding the cause of action, the suit itself is not maintainable and in support of his contentions, he also relied the following decisions.

1. 2012 (8) SCC 706

2. 2014 (1) ALT 488 DB

But this court opines that, when a plain reading of the plaint categorically discloses the cause of action for the plaintiff to institute the suit, more specifically at para-6 of the plaint, the mere oral allegation of the defendants cannot be given any importance. In fact had there was any such lacuna in the plaint, then that would be objected at the very institution of the suit, resulting in rejection of the plaint, because the plaint is self sufficient in disclosing all the material facts entitling the plaintiff to institute the suit, the suit was numbered and carried on for these long years, hence even this argument of the defendants also does not hold water, as there are no merits in their arguments.

14.As it is the plaintiff who has approached this court seeking comprehensive relief of declaration of his right over the schedule property, burden lies heavily on him to establish his absolute right over the schedule property, for which the only document filed by the plaintiff is Ex.A1 under which, the plaintiff firm is said to have purchased Ac.0.22 10 ½ cents of land in D.No.23/1 for the purpose of using it as a passage for ingress and egress into their property, which is situated to the west of the plaint schedule property; on the other hand to the west of the plaint schedule property defendants 1 to 3 purchased property under Ex.B2 to

B5. In fact neither Ex.A1 is disputed by the defendants nor Ex.B2 to B5 are disputed by the plaintiff, but the parties are at variance with regard to the physical existence of said Ac.0.22 ½ cents of land on ground, the plaintiff pleads that the defendants property purchased under Ex.B2 to

B5 is situated on the west of the plaint schedule property but they have constructed compound wall encroaching into Ac.0.22 ½ cents of land, which was exclusively used by this plaintiff for ingress and egress, but the defendants say that they have constructed compound wall within their property of Ac.4.93 cents and they have not encroached into the property of plaintiff, and that the property of plaintiff is still vacant as on today, and is very well used by the plaintiff for ingress and egress. No doubt, as could be seen from Ex.B2 to B5, they have purchased in total

Ac.4.93 cents of land (1.56+1.56+0.81+0.25+0.75) as the registered documents evidence the title of defendants 1 to 3 over Ac.4.93 cents of land, the oral contention of plaintiff that the defendants have purchased only Ac.4.68 cents of land is falsified, because in existence of registered document, any amount of oral assertions amounts to allegation which cannot be considered.

15.Further, as this court has already stated above that, when the burden is heavily upon the plaintiff to establish that their Ac.0.22 ½ cents of land is encroached into by defendants 1 to 3 by constructing their compound wall, it is for them to take steps to show that the, so called wall is constructed over their property, but as could be seen from 11 the plaint, as well as the evidence of PW.1, they have not responded to the notice issued by the District Surveyor, when defendants 1 to 3 approached, after the disputes arose between them to Survey the property and fix boundary stones, though the plaintiff contends that no such notice was issued to them by the Surveyor, and that the surveyor report was obtained by the defendant by managing the surveyor. This court opines that, even if for the sake of argument, it is believed for a moment, that no notice before survey was served on the plaintiff, and if they came to know about the survey subsequently, and if they feel aggrieved by what ever the report submitted by the surveyor, then the plaintiff has ample opportunity to question the survey report by way of appeal, as per Sec.11 of Survey Act, before the Appellate Authority, but it seems that the plaintiff never challenged the survey report, that was given by the surveyor after surveying the property of defendants 1 to 3 basing on their requisition, and has fixed boundary stones within the property of defendants 1 to 3, and the report of the Advocate commissioner who was appointed in IA 2848/1999, discloses that there is a boundary stone on the south east corner of the plaint schedule property, which one way supports the defendants' contention that, the compound wall was not reported to be constructed beyond the boundary stone, but the counsel for plaintiff argued that, as no notice was served on them before the survey, the report of such Surveyor cannot be taken into consideration being one sided and also argued that, the finding of Survey Officer is not final, as regards the title, and even regarding the boundary, and the same is final only when the party is put on notice and participates in the enquiry, in support of his contentions, he took the aid of the principle held in the judgment 12 reported in 2003 (3) ALD (3) Sree Pancha Murthy Co-op. House

Building Society Ltd., Vs. Govt. of AP and others. Of course the counsel was right in arguing that finding of the Surveyor is not final regarding title, but as already argued by the defendants, what prevented the plaintiffs to prefer an appeal against the surveyor report in spite of he having knowledge about the survey, and this court opines that though not on the date of survey, at least when subsequently, the plaintiff came to know about the survey, he would have taken the survey report in appeal, but he instead of taking any such steps alleging against the defendants that, the Survey report was obtained managing the Surveyor seems absurd to accept.

16.Above all the only one witness examined on behalf of plaintiff i.e., PW.1 also did not strengthen the case of plaintiff, because his evidence discloses that, he has no knowledge about even the contents of Ex.A1, and the defence of D1 to D3, as he admitted in his cross-examination that he did not go through Ex.A1, he do not know the written statement averments of D1 to D3, and he also admitted that he do not know whether any notice dt.9.1.1999, was issued by Survey

Department, and the fallacy of the plaintiff's case is that, their witness even does not know whether survey was conducted or not, and boundary stones were fixed in respect of defendants land. So, with the above admission of PW.1, it can be understood that, PW.1 has just filed his chief affidavit with an absolute reproduction of plaint averments, without having any knowledge about the facts and documents concerning the lis.

17.That apart, if at all, the plaintiffs are fair enough in making their claim, then nothing prevented them to ask the Surveyor to 13 measure their Ac.0.22 ½ cents of land as per Ex.A1 and fix boundary stones, so that the real facts would come into light, as to whether the alleged compound wall of the defendant was constructed within 4.93 cents of Defendants 1 to 3, or it was constructed encroaching into

Ac.0.22 ½ cents of land of plaintiff. But despite plaintiff alleging of sustaining loss, due to the acts of the defendants constructing compound wall by encroaching into their property, the plaintiff's firm kept quite without taking any possible steps, and the commissioner who was appointed at the instance of defendants, is of not much useful as he did not measure the property on ground in accordance with Ex.A1 and

Exs.B2 to B5, so as to ascertain whether the compound wall was constructed within the property covered under Exs.B2 to B5, or that it was constructed by encroaching into the property covered under Ex.A1.

So, from the discussions made above, this court has no hesitation to hold that the plaintiff having asserted his right has not come up with sufficient evidence, in support of his case and his only allegation that the defendants own only Ac.4.68 cents and not 4.93 cents, there by contending that they encroached into Ac.0.22 ½ cents of site of plaintiff, is also falsified by virtue of Ex.B2 to B5, according to which,

Defendants 1 to 3 are shown to have been purchased in total Ac.4.93 cents of land, over which they are said to have constructed compound wall.

18.Above all, as rightly put forth by the defendants, if at all the contention of plaintiff was true that, defendants 1 to 3 encroached into their site and constructed compound wall, then nothing prevented them to obstruct the construction in the beginning itself lawfully. In stead the plaintiff after the defendants have constructed the compound wall, in 14 the temporary absence of defendants have high handedly demolished part of the compound wall, which high handed acts of the plaintiff itself, speaks about the bonafides in the claim of the plaintiff and the argument of defendants on the said aspect assumes importance that claim of plaintiff is false in view of non denial by the plaintiff that they without any court order have high handedly demolished the compound wall said to be constructed by the defendants. Hence, if the acts of the plaintiff and the evidence on record, if read together, only goes to show that the plaintiff undoubtedly have purchased Ac.0.22 ½ cents under

Ex.A1 situated in survey No.23/1, but they are unable to produce any material to show that, the so called compound wall of defendants 1 to 3 was constructed by encroaching into this property in which event their claim for declaration of their title to the schedule property, fails for want of ample positive evidence. On the other hand, un-disputedly, as defendants 1 to 3 have constructed compound wall over the schedule property, signifies that they are in possession of the schedule property, and as per their document Exs.B2 to B5, they have purchased 4.93 cents as against the allegation of plaintiff that Defendants 1 to 3 have purchased only Ac.4.68 cents. As such, the documentary evidence produced by Defendants 1 to 3, over weighs the oral contentions of plaintiff, thereby establishing their claim that they are in possession of schedule property as absolute owners, and their peaceful possession is being objected by the plaintiff unlawfully. In fact the undisputed fact of plaintiff demolishing the compound wall constructed by defendants 1 to 3 amply demonstrates the high handed acts of plaintiff. Accordingly, issue No.1 in OS 359/99 is answered against plaintiff and issue No.1 in

OS 121/2001 is answered in favour of the defendants.

15

Issue No.2 in O.S.No.359/1999:-

O.S.No.359/1999:-

19.In view of this court arriving at a conclusive opinion that the schedule property is the absolute property of the plaintiff, that it is the property covered under Exs.B2 to B5 documents, under which defendants 1 to 3 purchased the property, over which, they constructed the compound wall, the plaintiff has no right to seek for demolition of the structures raised by defendants 1 to 3 over their absolute property.

Accordingly, the claim of the plaintiff for mandatory injunction fails. As against defendants 4 and 5, either the plaintiffs made any allegation nor sought any relief, in which event, as pleaded by Defendants 4 and 5 in their written statement, that they are unnecessarily impleaded in this suit has to be accepted. Accordingly, this issue is answered against the plaintiffs.

Issue No.3 in O.S.No.359/1999:-

20.In the result, the suit is dismissed with costs.

Issue No.2 in O.S.No.121/2001: -

21.In the result, the suit is decreed with costs granting permanent injunction against defendants from in any interfering with the plaintiffs' peaceful possession and construction of the southern compound wall over the plaint schedule property.

Dictated to Stenographer, transcribed by him, corrected and

pronounced by me in the open Court, this the day of 28th day of April,

2017.

II Addl.Senior Civil Judge, (FTC),Guntur.

16

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiffs: For Defendants: PW.1: Jetti Rama Rao DW.1: M.Umamaheswara Rao DW.2: M.Vengala Rao

DOCUMENTS MARKED

For Plaintiffs:

Ex.A1:Registration Extract of Sale deed dt.25.7.1994 executed by Divya Poultries and Exports Ltd.,

For Defendants:-

Ex.B1:True copy of statement of Mittapalli Siva Kumar brother of Umamaheswara Rao issued by Asst., Director Dist., Survey and Land Records, Guntur. Ex.B2:Registration extract of Sale deed dt.16.12.1997 in the name of D1 Ex.B3:Registration extract of Sale deed dt.16.12.1997 in the name of D3 Ex.B4:Registration extract of Sale deed dt.16.12.1997 in the name of D2 Ex.B5: Registration extract of Sale deed in the name of DW.1 Ex.B6:Registration extract of Sale deed dt.22.1.1999 in the name of DW1

II Addl.Senior Civil Judge, (FTC),Guntur.

1

IN THE COURT OF II ADDITIONAL SENIOR CIVIL JUDGE (FTC), GUNTUR.

PRESENT: Smt. G.Anandi, B.Com., LL.B., II Addl. Senior Civil Judge (FTC), Guntur.

Friday, this the 28th day of April, 2017

ORIGINAL SUIT NO.359 OF 1999 AND ORIGINAL SUIT NO.121/2001

O.S.No.359/1999:-

Between:

1. Jaya Lakshmi Exports, rep. By its partner Rayapati Gopala Krishna, S/o.Venkata Ranga Rao, R/o.K.L.P.Public School Road, Ring Road, Guntur.

2. Nuthalapati Appa Rao, S/o.Nagabhushanam, R/o.D.No.33-12-9, Sitarampuram, Vijayawada.

...Plaintiffs

And

1.Mittapalli Sarat Kumar, S/o.Rama Rao

2.Mittapalli Siva Kumar, S/o.Rama Rao

3.Mittapalli Uma Maheswara Rao, S/o.Rama Rao, D1 to D3 are R/o.Old Bank Road, Kothapet, Guntur.

4.Batchu Narasimha Rao, S/o.Venkata Seshagiri Rao, R/o.D.No.5-25-36/A, 3/7, Brodiepet, Guntur.

5.Garlapati Ramamohana Rao, S/o.Anjaneyulu, 45 years, R/o.Kothapet, Guntur.

...Defendants

O.S.No.121/2001:-

1.M/s.Mittapalli Rama Rao & Sons Tobacco Pvt., Ltd., Guntur rep. by its Director Mittapalli Siva Kumar O/o.G.T. Road, Guntur.

2.Mittapalli Siva Kumar, S/o.Rama Rao

3.Mittapalli Uma Maheswara Rao, S/o.Rama Rao,

4.Mittapalli Sarath Kumar, S/o.Rama Rao, All are R/o.Old Bank Road, Kothapet, Guntur.

...Plaintiffs

and

1. Jaya Lakshmi Exports, rep. By its Director partner Rayapati Srinivasa Rao,, S/o.Ranga Rao, Office at Ring Road, Guntur.

2. Rayapati Sreenivasa Rao, S/o.Ranga Rao, R/o.Ring Road, Guntur.

3. Muvva Venkata Rao, R/o.5-87-46, Chandramouli Nagar, Guntur-7.

4. Kondrakunta Vijjeswara Rao, S/o.Kotaiah, R/o.D.No.5-50-40, 6/13, Brodipet, Guntur -2.

2

These two suits are coming before me on 22.3.2017 for final hearing in the presence of Sri M.Seetha Rama Das, Advocate for

Plaintiffs in OS 359/99 and Defendants in OS 121/2001; Sri M.V.Subba

Rao, Advocate for Defendants 1 to 3 in OS 359/99 and Plaintiffs in OS 121/2001; and Sri A.Sanjeeva Reddy, Advocate for Defendants 4 and 5 in OS 359/1999 and after perusing the material available on record and having stood over till this day for consideration, this Court delivered the following:

C O M M O N J U D G M E N T

Both the suits being filed between the same parties interse, they were clubbed together and evidence was let in OS 359/99, which is a comprehensive suit for declaration of plaintiffs right to the schedule property and for mandatory injunction to remove structures made over plaint schedule property.

O.S.No.359/1999:-

2.The averments of the plaint in brief are:

The plaintiff is a firm registered under Indian Partnership Act, and is the owner of the plaint schedule property, having been purchased under registered sale deed dt.25.7.1994 from Divya Poultries and

Exports Pvt., Ltd., The plaintiff purchased the plaint schedule property for having access to the plaintiff's property situated in West, from the main road and NH-5 and since the date of purchase, the plaintiff is in possession and enjoyment of the property without any hindrance from anybody.

3.Defendants 1 to 3 purchased Ac.4.68 cents of land, under four different sale deeds on the same day, which is situated on the northern side of plaint schedule property from Pamulapati Sambrajyam,

Subhash Babu and Anand Babu, and the vendors defendant 1 to 3 do 3 not have any site more than that sold on 16.12.1997. Similarly, defendants 4 and 5 purchased Ac.5.12 cents to the south of Plaint schedule property from Palepu Ananda Rao under two different sale deeds, and the documents of title of the defendants though wrongly obtained, themselves clearly mention the plaintiff as adjacent owner, the recitals in the sale deeds of defendants 1 to 3 on one hand, and that of 4th defendant and 5th defendant on the other hand, clearly establishes that the plaintiff is the owner of the plaint schedule property. But the defendants with an intention to usurp the plaintiff's land, while admitting the plaintiffs right to the plaint schedule property, on other hand, contend that the plaint schedule property is in the land of defendants 4 and 5; whereas defendants 4 and 5 contend that, their

Ac.5.12 cents of land starts from a fixed boundary i.e., bode kaluva and both of them started litigating without impleading the other.

4.The plaintiffs say that except the plaintiffs' firm, no one has right over the plaint schedule property, but the defendants are trying to cause obstruction to the plaintiffs' peaceful possession and enjoyment of the plaint schedule property; they further say that defendants filed

OS 121/2001 on the file of Prl. Junior Civil Judge, Guntur describing the

plaintiffs wrongly and obtained interim injunction order by misleading the facts and under the cover of injunction an illegal survey is said to have been made, in the absence of plaintiff and the defendants have re- built the compound wall which was earlier removed, as it was sheer encroachment, even after injunction orders were passed in OS 1566/99 by the Hon'ble III Addl. District Judge, Guntur, the defendants constructed further structures over the plaintiffs land, by occupying it illegally, as the very purpose of plaintiff purchasing the land is lost and 4 frustrated by the illegal acts of the defendants, the plaintiff has filed this suit seeking declaration and for possession of the land free from obstructions created by the defendants.

5.2Nd defendant filed written statement and the same was adopted by defendants 1 and 3, through their written statement denying the plaint averments they submitted that, this suit is filed by the plaintiff as a counter blast to the suit filed by the defendants in OS 1266/99. The defendants say that, they purchased Ac.4.93 cents of land in survey No.23/1, 23/2 of Yedulapadu Agraharam village, and since then they are in possession of the said property, and that the averments of the plaintiff that, these defendants own only Ac.4.68 cents of land is a blatant lie, and defendants 4 and 5 are pressed into service by the plaintiff to act as chorus of the plaintiff. These defendants say that the lands purchased by them are contiguous plots formed into single plot and the defendants have constructed compound wall along their plot, and the alleged Ac.0.22 ½ cents as contended by the plaintiff is now vacant, which is in fact situated in survey No.23/2 not in survey No.23/1 as alleged by the plaintiff, which can be used for ingress and egress to the property of the plaintiff, the defendants further say that, when the plaintiff caused obstruction in the construction over the plots of defendants, they approached Survey Department, and after all the parties were served with notices, the Assistant Director of Survey conducted survey and boundary stones were fixed accordingly. But, the plaintiff and defendants 4 and 5 having knowledge about the same, contend that survey is illegal. They say that, their vendors and predecessors in title are having Ac.5.64 cents in D.No.23/1 and 23/2 in total out of which, the plaintiff has purchased 0.22 ½ cents in survey 5

No.23/2 for ingress and egress to reach their property situated on the western side, and the balance property i.e., Ac.4.99 cents was purchased by these defendants over which they made constructions, and that they never encroached into Ac.0.22 ½ cents of land said to be purchased by the plaintiff, hence this suit being baseless was prayed to be dismissed.

6.Defendants 4 and 5 through their written statement contend that they are unnecessarily added as parties to the suit against whom, no relief is claimed by the plaintiff. They say that they purchased

Ac.5.12 cents of land under registered sale deed dt.28.12.1995 and since then, they are in possession and enjoyment of it, and they never interfered with the possession of plaintiff or defendants 1 to 3, in fact the plaintiff who has their properties on the west and north of the property of these defendants is trying to disrupt the boundary between their properties and trying to interfere with the peaceful possession of these defendants. However, the matter was subsided by the elders, and they say that they have no objection to get their properties and the properties of the plaintiffs measured according to the existing boundaries, and fix survey stones. Hence, they say that they are not necessary parties to the suit, and prayed to dismiss the suit against them.

O.S.No.121/2001: -

7.This suit was filed by the defendants in OS 359/1999, which was initially numbered as 1266/1999, and on transfer it was re- numbered as OS 121/1999. The plaint pleadings in the said suit are nothing but replica of the written statement filed by defendants 1 to 3 in 6

OS 359/1999 contending that, they have purchased Ac.4.99 cents of

land under four registered sale deeds on 16.12.1997, and since then they are in possession of the property, and when they constructed compound wall along their property, the defendants i.e., plaintiffs in OS 359/99 obstructed the construction upon which the plaintiff approached the Survey Department got surveyed the property and fixed boundary stones, only after issuing notice to the defendants herein. But the defendants having knowledge that the compound wall is constructed within their boundaries on the southern side of the plaint schedule property, in the absence of plaintiffs have demolished part of the compound wall upon which, he gave police report but no action was taken on the report, as it was civil in nature. Hence, the plaintiff filed suit for permanent injunction against the defendants.

8.Similarly, the defendants herein who are plaintiffs in OS 359/99 filed their written statement reproducing the plaint averments in the said suit contending that the plaintiffs herein are having only

Ac.4.68 cents of land and not Ac.4.93 cents, and that they constructed their boundary wall by encroaching into Ac.0.22 ½ cents of land purchased by the defendants for the purpose of ingress and egress into their property. Hence, prayed to dismiss the suit for injunction, claiming the plaint schedule property to be their absolute property.

9.On behalf of plaintiffs PW.1 was examined Ex.A1 was marked. On behalf of the defendants DWs.1 and 2 were examined,

Exs.B1 to B6 were marked.

10.Heard both sides.

11. Basing on the pleadings, earlier the following issues were 7 framed as under : -

O.S.No.359/1999:

1. Whether the plaintiff is entitled to declaration as prayed for?

2. Whether the plaintiff is entitled to mandatory injunction as prayed for?

3. To what relief?

O.S.No.121/2001: -

1. Whether the plaintiffs are in possession of the suit schedule by the date of suit?

2. To what relief?

This court while going through the record for preparing judgment observed that, the issue on the relief claimed in OS 121/01 was not framed, and as the pleadings itself discloses that there is no dispute of plaintiff in OS 121/01 in possession of the schedule property therein, though alleged to be has encroached in to the property, the issue as framed that,

Whether the plaintiff is in possession of the property as on the date of filing the suit not being proper, the issue in OS 121/01 is recast as under?

“Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?

* For the sake of convenience the parties will be referred in the judgment as they referredin OS 359/99.

Issue No.1 in O.S.359/1999: -

12.As could be seen from the pleadings on record, the undisputed facts of the case are that, the plaintiff under Ex.A1 purchased Ac.0.22 ½ cents of land and to the north of the said property, 8

D1 and D3 have purchased property under four deeds i.e., Ex.B2 to B5, and there is no dispute that the property of plaintiff and defendants are situated adjacent to each other. It is the contention of the defendants

No.1 and 3 that the very suit is not maintainable, as the person who has given evidence as PW.1 before this court is not a authorized person to speak on behalf of the company, because he is not the person who has verified and signed the pleadings, and though PW.1 filed his chief affidavit stating himself to be an Assistant Manager of the plaintiff firm, no document is filed to show that he is authorized to represent the firm and give evidence, as such, his evidence cannot be taken into consideration and more over, the partner representing the firm named as R.Gopala Rao has not entered into the witness to speak about the case, hence, as PW.1 is not a substitute to the original party, he is not competent to appear as witness in the capacity of a party, and depose about the facts of the case. The plaintiff's counsel in support of his contentions relied upon the judgment reported in 2004 (3) ALT 213

S.Padmavathamma Vs. S.Sudharani and others wherein it was held that, “GPA holder is not a substitute to the party and not a

competent person to appear as a witness in the capacity of a

party and depose about the facts within the exclusive personal

knowledge of the party”. This court opines that, when according to order-III R 2, a recognized agent of a party holding power of attorney shall act on behalf of the principal, it also signifies that he can give evidence, but he can depose only about the facts, which are in his personal knowledge, and not as a party himself. As such PW.1 giving evidence, as to, what he knows about the schedule property as a witness cannot be alleged to be incapacitated to give evidence. More 9 over, nowhere the law mandates that the party himself shall enter the witness box and give evidence. In which event, PW.1 as an Assistant

Manager of the plaintiff firm, giving evidence on behalf of firm on the aspects those which are within his personal knowledge can be certainly accepted and received in evidence.

13.The other objection raised by the defendants counsel was that the very plaint being silent regarding the cause of action, the suit itself is not maintainable and in support of his contentions, he also relied the following decisions.

1. 2012 (8) SCC 706

2. 2014 (1) ALT 488 DB

But this court opines that, when a plain reading of the plaint categorically discloses the cause of action for the plaintiff to institute the suit, more specifically at para-6 of the plaint, the mere oral allegation of the defendants cannot be given any importance. In fact had there was any such lacuna in the plaint, then that would be objected at the very institution of the suit, resulting in rejection of the plaint, because the plaint is self sufficient in disclosing all the material facts entitling the plaintiff to institute the suit, the suit was numbered and carried on for these long years, hence even this argument of the defendants also does not hold water, as there are no merits in their arguments.

14.As it is the plaintiff who has approached this court seeking comprehensive relief of declaration of his right over the schedule property, burden lies heavily on him to establish his absolute right over the schedule property, for which the only document filed by the plaintiff is Ex.A1 under which, the plaintiff firm is said to have purchased Ac.0.22 10 ½ cents of land in D.No.23/1 for the purpose of using it as a passage for ingress and egress into their property, which is situated to the west of the plaint schedule property; on the other hand to the west of the plaint schedule property defendants 1 to 3 purchased property under Ex.B2 to

B5. In fact neither Ex.A1 is disputed by the defendants nor Ex.B2 to B5 are disputed by the plaintiff, but the parties are at variance with regard to the physical existence of said Ac.0.22 ½ cents of land on ground, the plaintiff pleads that the defendants property purchased under Ex.B2 to

B5 is situated on the west of the plaint schedule property but they have constructed compound wall encroaching into Ac.0.22 ½ cents of land, which was exclusively used by this plaintiff for ingress and egress, but the defendants say that they have constructed compound wall within their property of Ac.4.93 cents and they have not encroached into the property of plaintiff, and that the property of plaintiff is still vacant as on today, and is very well used by the plaintiff for ingress and egress. No doubt, as could be seen from Ex.B2 to B5, they have purchased in total

Ac.4.93 cents of land (1.56+1.56+0.81+0.25+0.75) as the registered documents evidence the title of defendants 1 to 3 over Ac.4.93 cents of land, the oral contention of plaintiff that the defendants have purchased only Ac.4.68 cents of land is falsified, because in existence of registered document, any amount of oral assertions amounts to allegation which cannot be considered.

15.Further, as this court has already stated above that, when the burden is heavily upon the plaintiff to establish that their Ac.0.22 ½ cents of land is encroached into by defendants 1 to 3 by constructing their compound wall, it is for them to take steps to show that the, so called wall is constructed over their property, but as could be seen from 11 the plaint, as well as the evidence of PW.1, they have not responded to the notice issued by the District Surveyor, when defendants 1 to 3 approached, after the disputes arose between them to Survey the property and fix boundary stones, though the plaintiff contends that no such notice was issued to them by the Surveyor, and that the surveyor report was obtained by the defendant by managing the surveyor. This court opines that, even if for the sake of argument, it is believed for a moment, that no notice before survey was served on the plaintiff, and if they came to know about the survey subsequently, and if they feel aggrieved by what ever the report submitted by the surveyor, then the plaintiff has ample opportunity to question the survey report by way of appeal, as per Sec.11 of Survey Act, before the Appellate Authority, but it seems that the plaintiff never challenged the survey report, that was given by the surveyor after surveying the property of defendants 1 to 3 basing on their requisition, and has fixed boundary stones within the property of defendants 1 to 3, and the report of the Advocate commissioner who was appointed in IA 2848/1999, discloses that there is a boundary stone on the south east corner of the plaint schedule property, which one way supports the defendants' contention that, the compound wall was not reported to be constructed beyond the boundary stone, but the counsel for plaintiff argued that, as no notice was served on them before the survey, the report of such Surveyor cannot be taken into consideration being one sided and also argued that, the finding of Survey Officer is not final, as regards the title, and even regarding the boundary, and the same is final only when the party is put on notice and participates in the enquiry, in support of his contentions, he took the aid of the principle held in the judgment 12 reported in 2003 (3) ALD (3) Sree Pancha Murthy Co-op. House

Building Society Ltd., Vs. Govt. of AP and others. Of course the counsel was right in arguing that finding of the Surveyor is not final regarding title, but as already argued by the defendants, what prevented the plaintiffs to prefer an appeal against the surveyor report in spite of he having knowledge about the survey, and this court opines that though not on the date of survey, at least when subsequently, the plaintiff came to know about the survey, he would have taken the survey report in appeal, but he instead of taking any such steps alleging against the defendants that, the Survey report was obtained managing the Surveyor seems absurd to accept.

16.Above all the only one witness examined on behalf of plaintiff i.e., PW.1 also did not strengthen the case of plaintiff, because his evidence discloses that, he has no knowledge about even the contents of Ex.A1, and the defence of D1 to D3, as he admitted in his cross-examination that he did not go through Ex.A1, he do not know the written statement averments of D1 to D3, and he also admitted that he do not know whether any notice dt.9.1.1999, was issued by Survey

Department, and the fallacy of the plaintiff's case is that, their witness even does not know whether survey was conducted or not, and boundary stones were fixed in respect of defendants land. So, with the above admission of PW.1, it can be understood that, PW.1 has just filed his chief affidavit with an absolute reproduction of plaint averments, without having any knowledge about the facts and documents concerning the lis.

17.That apart, if at all, the plaintiffs are fair enough in making their claim, then nothing prevented them to ask the Surveyor to 13 measure their Ac.0.22 ½ cents of land as per Ex.A1 and fix boundary stones, so that the real facts would come into light, as to whether the alleged compound wall of the defendant was constructed within 4.93 cents of Defendants 1 to 3, or it was constructed encroaching into

Ac.0.22 ½ cents of land of plaintiff. But despite plaintiff alleging of sustaining loss, due to the acts of the defendants constructing compound wall by encroaching into their property, the plaintiff's firm kept quite without taking any possible steps, and the commissioner who was appointed at the instance of defendants, is of not much useful as he did not measure the property on ground in accordance with Ex.A1 and

Exs.B2 to B5, so as to ascertain whether the compound wall was constructed within the property covered under Exs.B2 to B5, or that it was constructed by encroaching into the property covered under Ex.A1.

So, from the discussions made above, this court has no hesitation to hold that the plaintiff having asserted his right has not come up with sufficient evidence, in support of his case and his only allegation that the defendants own only Ac.4.68 cents and not 4.93 cents, there by contending that they encroached into Ac.0.22 ½ cents of site of plaintiff, is also falsified by virtue of Ex.B2 to B5, according to which,

Defendants 1 to 3 are shown to have been purchased in total Ac.4.93 cents of land, over which they are said to have constructed compound wall.

18.Above all, as rightly put forth by the defendants, if at all the contention of plaintiff was true that, defendants 1 to 3 encroached into their site and constructed compound wall, then nothing prevented them to obstruct the construction in the beginning itself lawfully. In stead the plaintiff after the defendants have constructed the compound wall, in 14 the temporary absence of defendants have high handedly demolished part of the compound wall, which high handed acts of the plaintiff itself, speaks about the bonafides in the claim of the plaintiff and the argument of defendants on the said aspect assumes importance that claim of plaintiff is false in view of non denial by the plaintiff that they without any court order have high handedly demolished the compound wall said to be constructed by the defendants. Hence, if the acts of the plaintiff and the evidence on record, if read together, only goes to show that the plaintiff undoubtedly have purchased Ac.0.22 ½ cents under

Ex.A1 situated in survey No.23/1, but they are unable to produce any material to show that, the so called compound wall of defendants 1 to 3 was constructed by encroaching into this property in which event their claim for declaration of their title to the schedule property, fails for want of ample positive evidence. On the other hand, un-disputedly, as defendants 1 to 3 have constructed compound wall over the schedule property, signifies that they are in possession of the schedule property, and as per their document Exs.B2 to B5, they have purchased 4.93 cents as against the allegation of plaintiff that Defendants 1 to 3 have purchased only Ac.4.68 cents. As such, the documentary evidence produced by Defendants 1 to 3, over weighs the oral contentions of plaintiff, thereby establishing their claim that they are in possession of schedule property as absolute owners, and their peaceful possession is being objected by the plaintiff unlawfully. In fact the undisputed fact of plaintiff demolishing the compound wall constructed by defendants 1 to 3 amply demonstrates the high handed acts of plaintiff. Accordingly, issue No.1 in OS 359/99 is answered against plaintiff and issue No.1 in

OS 121/2001 is answered in favour of the defendants.

15

Issue No.2 in O.S.No.359/1999:-

O.S.No.359/1999:-

19.In view of this court arriving at a conclusive opinion that the schedule property is the absolute property of the plaintiff, that it is the property covered under Exs.B2 to B5 documents, under which defendants 1 to 3 purchased the property, over which, they constructed the compound wall, the plaintiff has no right to seek for demolition of the structures raised by defendants 1 to 3 over their absolute property.

Accordingly, the claim of the plaintiff for mandatory injunction fails. As against defendants 4 and 5, either the plaintiffs made any allegation nor sought any relief, in which event, as pleaded by Defendants 4 and 5 in their written statement, that they are unnecessarily impleaded in this suit has to be accepted. Accordingly, this issue is answered against the plaintiffs.

Issue No.3 in O.S.No.359/1999:-

20.In the result, the suit is dismissed with costs.

Issue No.2 in O.S.No.121/2001: -

21.In the result, the suit is decreed with costs granting permanent injunction against defendants from in any interfering with the plaintiffs' peaceful possession and construction of the southern compound wall over the plaint schedule property.

Dictated to Stenographer, transcribed by him, corrected and

pronounced by me in the open Court, this the day of 28th day of April,

2017.

II Addl.Senior Civil Judge, (FTC),Guntur.

16

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiffs: For Defendants: PW.1: Jetti Rama Rao DW.1: M.Umamaheswara Rao DW.2: M.Vengala Rao

DOCUMENTS MARKED

For Plaintiffs:

Ex.A1:Registration Extract of Sale deed dt.25.7.1994 executed by Divya Poultries and Exports Ltd.,

For Defendants:-

Ex.B1:True copy of statement of Mittapalli Siva Kumar brother of Umamaheswara Rao issued by Asst., Director Dist., Survey and Land Records, Guntur. Ex.B2:Registration extract of Sale deed dt.16.12.1997 in the name of D1 Ex.B3:Registration extract of Sale deed dt.16.12.1997 in the name of D3 Ex.B4:Registration extract of Sale deed dt.16.12.1997 in the name of D2 Ex.B5: Registration extract of Sale deed in the name of DW.1 Ex.B6:Registration extract of Sale deed dt.22.1.1999 in the name of DW1

II Addl.Senior Civil Judge, (FTC),Guntur.

IN THE COURT OF I ADDITIONAL ASSISTANT SESSIONS JUDGE, GUNTUR

Present: Smt G.Anandi, B.Com., LL.B., II Addl. Assistant Sessions Judge, Guntur. FAC I Addl. Assistant Sessions Judge, Guntur

Tuesday, this the 10th day of May, 2016.

SESSIONS CASE. 137 / 2016

(PRC.27/14, Cr.No. 499/2014 of Kothapet P.S.)

Between State: Sub-Inspector of Police, Kothapet Police Station …. Complainant

And

Karasala Yesu Raju, S/o Baburao, 20 years, C/Madia, 6th lane, Siva Naga Raju Colony, Guntur …Accused

This case is coming on 06-05-2016 before me for final hearing in the presence of the learned Additional Public Prosecutor (Smt Y.Pushpa) for the State/complainant and Sri Brahmeswararao, learned counsel for the accused and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The Sub Inspector of Police, Kothapet Police Station filed charge sheet against the accused in Cr.No. 499/2014 for the offence punishable u/secs.307 of Indian

Penal Code.

2. The averments of the charge sheet in brief are:

The accused and L.W.6 Gudipudi Ashok are vendors in Guntur Railway

Station Canteen, and about three months back, the accused borrowed a sum of

Rs.2,000/- from L.W.6 Gudipudi Ashok. Later, some disputes arose between the accused and L.W.6 Gudipudi Ashok in connection with their business. While so, on 19-10-2014 at 8-00 p.m., when accused was near Pallavi theater, L.W.6 Gudipudi

Ashok asked him about the debt, for which the accused replied that he will repay the amount very soon. But L.W.6 Gudipudi Ashok was not satisfied with the answer given by accused, upon which a wordy quarrel ensued between them and since then, the accused bore grudge against L.W.6 Gudipudi Ashok for insulting him in the presence of known persons, and decided to kill him.

On 20-10-2014, the accused went to the house, where eatables were prepared for the Canteen, and found L.W.6 Gudipudi Ashok lying on a cot in one of the rooms of the house situated at 3rd lane, Railpet, Guntur, picked up a knife and hacked him indiscriminately causing bleeding injuries all over the body of L.W.6 Gudipudi

Ashok, when L.W.6 Gudipudi Ashok raised cries, L.W.1 Yaramala Vijaya Kumar and

L.W.2 Shaik Jony, who were then in the Kitchen, rushed to the scene, seeing whom, the accused ran away. When L.W.1 Yaramala Vijaya Kumar and L.W.2 Shaik Jony shifted the injured to Government General Hospital, Guntur for treatment. As L.W.6

Gudipudi Ashok was unconscious, L.W.1 Yaramala Vijaya Kumar, who witnessed the occurrence, gave statement to the police.

Basing on the statement of L.W.1, the present Crime was registered and investigated into by L.W.13 Head Constable 1315 of Kothapet Police Station, who during the course of investigation, visited the scene of offence, and in the presence of mediators L.W.8 Vadde China Venkateswarlu and L.W.9 Thalapati Chennaiah observed the scene, prepared Observation report as well as Rough Sketch and also photographed the scene. He also secured and recorded the statements of L.W.1

Yaramala Vijaya Kumar, L.W.2 Shaik Jony, L.W.3 Parisapogu Naga Babu, L.W.4

Gudipudi Chiranjeevi, L.W.5 Marasa Kranthi Kumar, L.W.6 Gudipudi Ashok and L.W.7

Parisapogu Yesu Babu, and on 24-10-2014, on credible information, he arrested the accused near Simla Tea Center, Railway Station road, Guntur at 5-30 p.m., in the presence of mediators L.W.10 Shaik Baji and L.W.11 Kutala Venkat and sent him to the Court for remand. He also recovered a knife from the possession of the accused, which was used by him in the commission of offence. Later, on completion of entire investigation, and on receipt of Wound Certificate of L.W.6 Gudipudi Ashok, the

Sub-Inspector of Police Kothapet i.e., L.W.14 filed charge sheet in this case.

7. The IV Addl. Junior Civil Judge, Guntur on filing the charge sheet took cognizance for the offence punishable u/secs.307 of Indian Penal Code against the accused. The offence alleged against the accused for the offence punishable

U/sec.307 of Indian Penal Code, being exclusively triable by Court of Sessions, the case was numbered as PRC.27/14, after appearance of the accused and after complying with the statutory formalities like distribution of copies of document etc., the case was committed to Court of Sessions for trial. The Hon’ble District & Sessions

Judge, Guntur division took the case on file and numbered it as SC. No.137/16 and

made it over to the I Addl. Assistant Session Judge's Court, Guntur for trial and disposal in accordance with law.

8. After appearance of the accused, charge was framed for the offence punishable u/secs.307 of Indian Penal Code against accused and read over the charges to the accused, who having understood the charge pleaded not guilty and claimed to be tried.

9. During the course of trial, P.W.1 to P.W.10 were examined and Ex.P1 to

P10 and M.O.1 are marked.

10. After closure of the prosecution evidence, the accused was examined under section 313 Cr.P.C and he denied the incriminating evidence brought on record against him and reported no defence.

11. Heard both sides.

12. Now the points for consideration are:

Whether the prosecution could establish the guilt of the accused beyond reasonable doubt for the offence punishable u/sec.307 of Indian Penal Code?

P O I N T :

13. The prosecution in order to substantiate its case of the injured/P.W.4, being assaulted by the accused with an intention to kill him, in view of prior business rivalry, has got examined three independent witnesses as P.Ws. 1 to 3, apart from examining the injured as P.W.4. The learned Addl. Public Prosecutor argued that though none among P.Ws. 1 to 3, stated that they saw the accused at the scene, while he assaulting the injured, the testimony of P.Ws. 1 and 2 in saying that on 19-10-2014 at 3-00 a.m., when they were in the Kitchen room of the house, where eatables were prepared on behalf of the Canteen and the injured/P.W.4 was sleeping on a cot in another room, they heard cries of P.W.4 and when they rushed to the room, they saw P.W.4 with bleeding injuries on his face and head, which establishes the important circumstance in this case that P.W.4 suffered injuries as on 19-10-2014 and with regard to the identity of the person as to who caused those injuries, admittedly except the evidence of

P.W.4, there is no other material.

14. The Addl. Public Prosecutor argued that merely because no independent witness could speak about the identity of the offender, who assaulted P.W.4, the sole evidence of P.W.4 in identifying the accused herein to be the offender cannot be doubted, in fact the sole testimony of the injured itself is sufficient to prove the charge levelled against the accused. The prosecution further says that though P.Ws. 1 to 3 are not aware about the prior disputes between accused and P.W.4, the testimony of P.W.4 in saying that because they had prior disputes with regard to their business and also as the accused having borrowed Rs.2,000/- from him failed to discharge the debt, and when P.W.4 asked the accused to repay the amount, the accused could not digest, and in view of the said two reasons, he bore grudge against P.W.4 and intended to kill him.

So, the learned Addl. Public Prosecutor argued that the motive for the accused to assault P.W.4 is evident from the evidence of the injured. Hence, the prosecution through the evidence of P.Ws. 1 and 2, coupled with the oral evidence of P.W.4 and the medical evidence of the Doctor P.W.9 claims to have established that P.W.4 suffered injuries as on 19-10-2014 and those injuries were caused by M.O.1 knife by the accused, and the motive for the accused to attack P.W.4 is crystal clear from the evidence of P.W.4, as such, the prosecution pleads to have successfully established the ill intention of the accused in attacking P.W.4 to kill him, because if P.W.4 dies, there will be an end to the business rivalry, and also there would be no need for him to discharge the loan of Rs.2,000/- taken by him from P.W.4.

15. On the other hand, the defence counsel argued that when P.Ws. 1 and 2 are said to be available in the house, where the alleged incident is said to have taken place, if at all any incident as alleged by the Prosecution had taken place, then the occasion for P.Ws. 1 and 2 to witness the offender, who assaulted P.W.4 cannot be doubted, because as seen from the evidence of P.W.1 himself, the said house consists of three rooms. So, if at all any incident took place within split seconds P.Ws. 1 and 2, if supposed to be another room could reach the room, where the alleged incident took place, P.Ws. 1 and 2 saying that they did not see the person, who caused injuries to

P.W.4 is not believable, in which circumstance, the sole evidence of P.W.4 in saying that it is the accused, who attacked him is not safe to be relied.

16. Added to it, the defence counsel argued that if at all the version of P.W.4 was true in saying that he was attacked by the accused herein, who is admittedly known to him, then nothing prevented the injured to state the name of the assaulter to the doctor ,who treated him, because as per Ex.P6 Wound Certificate which discloses that

P.W.4 is said to have stated to the Doctor that he was assaulted by 'KNOWN PERSON' and the doctor who was examined as P.W.9 admitted that the name of the person who assaulted P.W.4 was not stated to him. If at all, it was the accused herein who assaulted P.W.4, then what prevented P.W.4 to state the name of the accused to the

Doctor as well. Hence, P.W.4's sole evidence in saying that the injuries on his person as could be seen in Ex.P6 Wound Certificate, were caused by the accused is not safe to be relied. More over, according to the prosecution as P.W.4 insisted the accused to discharge the loan amount, on 19-10-2014 in the night near Pallavi theater and the same was witnessed by P.W.7, but the very P.W.7 turned hostile in which event, the motive for the accused to attack P.W.4 as alleged by the prosecution that because

P.W.4 demanded the accused to discharge the loan amount, he intended to kill P.W.4 is not proved. Hence, considering the above discussed arguments submitted by the defence counsel, he prayed for the acquittal of the accused.

17. This Court considering the material on record, and the arguments put forth by both counsel opines that as rightly submitted by the learned Addl. Public

Prosecutor, though there is no material forthcoming from the evidence of P.Ws. 1 and 2 with regard to the identity particulars of the person(s) who assaulted P.W.4, the evidence of P.Ws 1 and 2 in categorically saying that on 19-10-2014, when they were in the Kitchen of the house consisting of three rooms alleged incident took place around 3-00 a.m., and they heard the cries of P.W.4, who was sleeping on a cot in another room, and they rushed to the room and saw him in a pool of blood with injuries to his face and head, and the cross examination of P.Ws. 1 and 2 discloses that the accused has not denied of P.W.4, being found with injuries as on 19-10-2014 at 3-00 a.m., at the scene of offence. So, it can be safely held that the evidence of P.Ws. 1 and 2 establishes the important circumstance in this case, that on the day of alleged incident

P.W.4 was attacked by some offender, and the wound certificate Ex.P6 coupled with the oral evidence of the Doctor P.W.9 substantiates the version of P.Ws. 1 and 2 with regard to the injuries that were found on the body of P.W.4. Now, who caused those injuries to P.W.4 is a question that is to be answered by the prosecution with cogent evidence, and the prosecution to prove the identity of the offender who caused the injuries as shown in Ex.P6 Wound Certificate on the person of P.W.4 has completely relied on the evidence of the injured himself. However, this Court has no hesitation to accept the argument of prosecution that merely because no independent witness could speak about the identity of the offender, the sole testimony of the injured himself in saying that it was the accused herein who assaulted him cannot be looked upon with suspicion. In fact, if the version of the injured is consistent and trustworthy, then there is no need to insist for corroboration from any outside evidence.

18. Coming to the evidence of P.W.4, he stated that the accused borrowed an amount of Rs.2,000/- from him and when he demanded the accused to discharge the amount many a times, he did not repay the loan and on 19-10-2014 also at 8-00 p.m., he demanded the accused to discharge the loan, for which the accused was hurt for

P.W.4 demanding the accused in public place and added to it, there was dispute between him and the accused in connection with sale of eatables on the platform. So, as seen from the evidence of P.W.4, the accused has two reasons to bore grudge against P.W.4. One is that he is indebted to P.W.4 and the other one is that there existed a business rivalry between them, the cross examination of P.W.4 discloses that no material worth in support of the accused, denying the said allegations by the prosecution could be elicited by the accused. In fact the accused except putting a suggestion that he is falsely implicated into the crime in view of business rivalry, which was also denied by P.W.4, no venture was made by accused to rebut the contentions of

P.W.4. In fact the entire evidence of P.W.4 discloses that the accused has not denied about he borrowing Rs.2,000/- from P.W.4, in which event, this Court has no hesitation to arrive at a opinion that in view of prior disputes and debt due by accused to P.W.4 there existed unpleasant relationship between accused and P.W.4 which the prosecution claims to be the intention for the accused to attack P.W.4. In fact P.W.4 very categorically stated that when he was sleeping on the cot, he heard some noise and woke up at that time, he saw the accused with a knife, who attacked him and caused injuries on his head, left cheek, left shoulder, stomach and chest and when he raised cries, the accused ran away from the scene and the injuries as spoken by

P.W.4 are evident from Ex.P6 wound certificate. When the prosecution could establish the mensrea behind the commission of crime, the sole evidence of P.W.4 in saying that the accused was the person, who attacked him as on 19-10-2014 at 3-00 a.m., seems probable and believable. Added to it, P.W.4 categorically stated that the accused while attacking him uttered “If I die, there will be no competition for him” So, the evidence of P.W.4 makes it clear that the accused due to business rivalry coupled with his indebtedness to P.W.4 bore grudge against him because of which he intended to do away with the life of P.W.4 and attacked P.W.4 with knife, and the investigating agency could also seize and produce the knife i.e., M.O.1 said to be used in the commission of offence under Ex.P10 Mediators report and the knife was also identified and admitted by P.W.4 that it was the knife with which he was attacked by the accused on the date of incident.

19. Hence, this Court from the above made discussions arrives at a considered opinion, that the prosecution could successfully establish that the accused in view of his prior business rivalry and also in view of his indebtedness to P.W.4 intended to do away with the life of P.W.4 because of which he attempted to kill P.W.4 on 19-10-2014 at 3-00 a.m., by attacking him with knife and the injuries on the vital organs of P.W.4 itself is suggestive of the fact that the accused intended to kill P.W.4.

Accordingly this point is answered.

In the result, the accused is found guilty for the offence punishable

U/sec.307 of Indian Penal Code and he is convicted of the same u/sec. 235(2) of

Cr.P.C. M.O.1 knife is ordered to be destroyed by the Committal court after expiry of appeal time.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in the open Court on this the 10th day of May, 2016.

II ADDL.ASSISTANT SESSIONS JUDGE,

FAC I ADDL. ASSISTANT SESSIONS JUDGE,

G U N T U R.

30.On questioning the accused about the quantum of sentence to be imposed on him, he submitted saying that he lives along with his aged parents, who have no one to take care except the accused himself, and if he is sent to jail, they will not have source of income, as his earnings as a vendor on railway platform is the only source of living for his parents. He also stated that this is the first offence committed by him. Hence, prayed to take a lenient view.

Considering the submissions made by accused on the quantum of sentence to be imposed on him, also the nature of offence committed by the accused, and the age of the accused, who says to be 20 years, this Court opines that considering the socio-economic condition of the accused, and his age, imposing of minimum punishment would meet the ends of justice.

Accordingly, I hereby sentence the accused to undergo Rigorous

Imprisonment for a period of TWO years and also to pay a fine of Rs.1,000/- in

default for Simple Imprisonment for 20 days. The period of remand undergone by the Accused from 25-10-2014 to 21-11-2014 and from 17-02-2016 to 10-05-2016 (109 days) shall given set off U/sec. 428 of Cr.P.C.

FAC I ADDL. ASSISTANT SESSIONS JUDGE,

G U N T U R.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence: PW.1/Y. Vijaya Kumar None PW.2/Sk. Jony PW.3/P. Naga Babu PW.4/G. Ashok PW.5/V.China Venkateswarlu PW.6/T.Chennaiah PW.7/P. Yesu Babu PW.8/Shaik Baji PW.9/Dr.P.Anil Kumar,CMO, Government General Hospital, Guntur PW.10/P.Karunakar, HC 1315 of Kothapet Police Station

For Prosecution:For Defence: Ex.P1/Report of PW.1 Nil Ex.P2/Signature of P.W.5 in Mahazar, dt. 20-10-2014 Ex.P3/Signature of P.W.6 in Mahazar, dt. 20-10-2014 Ex.P4/Sec. 161 Cr.P.C. Statement of P.W.7 Ex.P5/Signature of P.W.8 in Mediator nama, dt. 24-10-2014 Ex.P6/Wound certificate of P.W.4 issued by P.W.9 Ex.P7/ First Information Report Ex.P8/ Observation report, dt. 20-10-2014 Ex.P9/Rough sketch of scene of offence Ex.P10/Mediators report, dt. 24-10-2014

M.Os. Marked:M.O.1 Knife

II A.A.S.J.,GUNTUR.

FAC I A.A.S.J., GUNTUR

CALENDAR AND JUDGMENT

IN THE COURT OF II ADDITIONAL ASSISTANT SESSIONS JUDGE, GUNTUR.

1. Number of the Sessions Case: S.C. No. 137/2016

2. Name of the Committal Court : IV Addl. Junior Civil Judge, Guntur. and number of it’s filePRC.27 / 2014

3. Name of the complainant and : Sub Inspector of Police, Kothapet P.S Crime No. : Cr.No.499/14, Kothapet P.S

4. Name of the accused : Karasala Yesu Raju, S/o Baburao, 20 years, C/Madia, 6th lane, Siva Naga Raju Colony, Guntur

5. Date of committal :01-03-2016

6. Date of appearance of accused: 04-04-2016

7. Date of commencement of trial: 21-04-2016

8. Date of close of trial : 04-05-2016

9. Date of Judgment : 10-05-2016

10. Nature of offence : U/secs.307 of Indian penal Code

11. Plea of accused: The accused denied the charges with which leveled against him.

12. Finding: Found guilty for the offence punishable U/sec. 307 of Indian Penal Code

14. Sentence or order In the result, the Accused is found guilty for the offence punishable under section 307 of Indian Penal Code and he is convicted of the same under section 235(2) of Cr.P.C. He is sentenced to undergo Rigorous Imprisonment for a period of TWO years and also to pay a fine of Rs.1,000/- in default for Simple Imprisonment for 20 days. The period of remand undergone by the Accused from 25-10-2014 to 21-11-2014 and from 17-02-2016 to 10-05-2016 (109 days) shall given set off U/sec. 428 of Cr.P.C.

15. Explanation for the delay : This case was received by made over from the Hon'ble District Sessions Judge, Guntur for disposal according to law. Soon after appearance of accused, charges framed for the offence punishable U/secs.307 of Indian Penal Code against the accused on 11-04-2016. On 21-04-2016, P.Ws. 1 to 3 were examined and Ex.P1 was marked. On 22-04-2016, P.W.4 to P.W.6 were examined and Exs. P2 and P3 were marked. On 27-04-2016, P.W.7 was examined and Ex.P4 was marked. On 04-05-2016, P.Ws. 8 to 10 were examined and Exs. P5 to P10 were marked and the evidence of L.Ws. 11 to 14 was given up by the learned Addl. Public Prosecutor and the evidence of prosecution is closed. On 05-05-2016 accused was examined U/sec.313 Cr.P.C., examination and he denied the incriminative evidence spoken against him and reported no defence on his side. Heard arguments on finally on 06-05-2015. Judgment was pronounced on 10-05-2016.

II ADDL.ASSISTANT SESSIONS JUDGE,

FAC I ADDL. ASSISTANT SESSIONS JUDGE,

G U N T U R

Copies submitted to:

1. The Hon’ble Registrar, High Court of A.P., Hyderabad. (Through The Hon’ble District Judge, Guntur

2. The Hon’ble District Judge, Guntur

Copies to: The Director of Prosecutions, D.G.P. Office Complex, Saifabad, Hyderabad. The Superintendent of Police, Guntur Urban, Guntur. The District Collector, Guntur. The IV Addl. Junior Civil Judge, Guntur. The Addl. Public Prosecutor, I ASJ Court, Guntur.

Note: Accused paid the fine amount of Rs.1,000/- on 10-05-2016.

1

IN THE COURT OF VI ADDL.JUDICIAL MAGISTRATE OF I CLASS:

GUNTUR

PRESENT: : Smt. G. ANANDI, B.Com., L.L.B.,

VI ADDL.JUDL. MAGISTRATE OF I CLASS,

GUNTUR

TUESDAY, THE 19 th DAY OF MAY, 2015

C.C.NO.360/2012

Between:

State: Station House Officer, Women Police Station Guntur Urban (Cr.No.182/12 of Old Guntur P.S) ….Complainant

And

1. Rayapati Ram Mohana Rao S/o.Raja Rao Age about 32 years, caste: Telaga, R/o.4th lane, Seethanagar, Old Guntur, Guntur.

2. Rayapati Subbulu W/o.Raja Rao Age about 50years, Caste: Telaga,

R/o.4th lane, Seethanagar, Old Guntur, Guntur....Accused

This case is coming on 14.05.2015 before me for final hearing in the presence of APP Grade-II- for State and of Sri J.Suresh Babu, Advocate for accused, perusing the evidence and documents and the matter having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The Station House Officer, Women Police Station, Guntur Urban filed Charge-sheet against the accused in Crime No.182/12 for the offences punishable u/s.498-A IPC and u/s.3 and 4 of Dowry Prohibition Act.

2. The averments of the Charge-sheet in brief are as follows: L.W.1 Rayapati Prameela Rani was married to A1 on 21.11.2010 and at the time of marriage cash of Rs.3,00,000/- and 4 ½ sovereign gold was given to A1 towards dowry, they lead marital life peacefully for about two months, and in the month of January, 2011 when L.W.1 Rayapati Prameela Rani and A1 went to the house of L.W.2 Pothuri Rama Devi A1 picked up quarrel demanding Suit for Rs. 10,000/- for him, and after returning to their house A1 and A2 harassed L.W.1 Rayapati Prameela Rani physically and mentally demanding

additional dowry. In the meanwhile, L.W.1 Rayapati Prameela Rani

conceived and A1 pressurized her to undergo abortion for which she did not agree and gave birth to a male child.

3. Further, L.W.1 Rayapati Prameela Rani on the demand of accused brought Rs.25,000/- from her parents but the accused did not satisfy with the amount and demanded for additional dowry of Rs.1,00,000/-. Due to the unbearable harassment of accused on 15.5.2012, L.W.1 Rayapati Prameela Rani went to her parents house 2 approached the police and gave report.

4. Basing on the report of complainant, the present crime was registered by L.W.7 Sayed Mustafa, C.I of Police, Old Guntur P.S against A1 and A2 only and sent copy of F.I.R to Women P.S for investigation. On that L.W.8 Ch.Seetaamaiah, C.I of Police, Women P.S., Guntur Urban received FIR, took up investigation in this case, visited the scene of offence, observed the the same, prepared rough sketch, examined and recorded the statements of six prosecution witnesses, and on 21.06.2012 he served notices u/s.41-A Cr.P.C to A1 and A2 and on completion of further investigation, he filed charge-sheet in this case.

5. This case was taken on file for the offences u/s.498-A and u/s.3 and 4 of Dowry prohibition Act against accused and proceeded with as per law. On appearance of accused before this Court, they were furnished with copies of documents relied on by prosecution in compliance of section 207 Cr.P.C. Thereafter accused were examined u/s.239 Cr.P.C, read over and explained to the accused in Telugu, having understood the charges, they pleaded not guilty and claimed to be tried.

6.During trial, on behalf of prosecution P.W.1 to P.W.5 were examined and Exs.P1 to P3 were marked.

7.After closure of prosecution evidence, accused were examined u/sec 313 Cr.P.C by putting incriminating material available against them, from the evidence of prosecution witnesses and they denied the truth of such incriminating material and reported no defence.

8.Heard the arguments of both sides.

9.POINT:- Whether the prosecution could establish the guilt of accused for the offences punishable u/s.498-A IPC and u/s.3 and 4 of Dowry Prohibition Act beyond all reasonable doubt?

10. POINT:The prosecution by relying on the evidence of P.W.1, her mother P.W.2 and her uncle P.W.3 contended that as their evidence is consistent and substantiating each other's evidence in saying that A1 and A2 harassed P.W.1 demanding additional dowry, and an amount of Rs.25,000/- was paid by the parents of P.W.1 to the accused towards

additional dowry, but the accused who were not satisfied with the

amount harassed her, because of which P.W.1 was forced to leave her matrimonial home and report against the accused.

11.A.P.P contends that as it is a matrimonial offence, no independent witness can be expected to-speak in support of the complainant as there will be no independent eye witnesses to the harassments meted out to the victims in matrimonial offences. Hence, he prayed to convict the accused considering the evidence of P.Ws 1 to 3.

12.On-the-other-hand, the defence counsel argued that the learned A.P.P was right in contending that in matrimonial offences one can seldom except eye witnesses to-speak in-support of the victims, and it is always the kith and kin of the victims with whom the victims share 3 their agony, speak in-support of them. Hence, the evidence of victim and interested witnesses can certainly be relied, if their evidence is consistent and reliable, but in this case the evidence of P.W.1 is not consistent for the reason that she stated before the Court as if the accused demanded Rs.25,000/- for performing ''Annaprasana'' which her mother gave and apart it her mother also gave Rs.50,000/- to the accused but the accused were not satisfied with the said amounts, which averment does not find place in her 161 Cr.P.C statement or P.W.2 and P.W.3 stated that an amount of Rs.50,000/- was given to the accused towards additional dowry.

13. More-over, P.W.1 stated that her mother was beat by accused when she came to her matrimonial house to question the accused about his behaviour, but her mother examined as P.W.2 did not speak about any such incident, had really P.W.2 was beat by the accused, will she keep quiet without stating about it before the Court? Hence it certainly shows that not only the evidence of P.W.1 is full of contradictions, but also her evidence before Court is an improved version. He further contends that according to P.W.1 and P.W.2 the harassment started when the complainant conceived as the accused did not want child, but P.W.3 who looked after the welfare of complainant did not speak about the said incident at all. In-fact, the evidence of P.W.3 shows that after delivery when they went to P.W1's house, they gave household articles worth of Rs.50,000/- which is neither spoken by P.W.1 nor P.W.2. More-over, according to him Annaprasana was celebrated at temple for which the accused did not attend, whereas P.W.1 stated that Annaprasana was celebrated at her in-law's house and expenses were borne by her mother who have gave Rs.25,000/- to perform Annaprasana. Hence, it shows that there is no consistency between the evidence of P.Ws 1 to 3 in-view of their evidence as discussed above in respect of performing Annaprasana. Hence, he says that when the evidence of P.Ws 1 to 3 is inconsistent how can basing on their such evidence, the prosecution claim to have established its case. Hence, he prayed for acquittal of accused.

14. This Court considering the arguments of both Counsel and the evidence on record observes that admittedly the mother and uncle of complainant are the only witnesses who spoke in-support of P.W.1, and as rightly argued by A.P.P in matrimonial offences, one can seldom except any independent witness to-speak about the prosecution's case, as generally the matrimonial offences take place within the four walls of a house and except the victim in almost all the cases no-one will have personal knowledge about the harassments, hence certainly it is the kith and kin of victim(s) who would speak in-support of them, who come to know about the harassments through victim(s). But, in this case, there is any amount of contradiction in between the evidence of P.Ws 1 to 3, because according to P.W.1 and P.W.2 the first cause for the dispute is when A1 demanded for a Suit of Rs.10,000/- which P.W.2 could not afford. In this regard, this Court opines that the argument of defence Counsel was right in saying that when A1 is a Mason (Beldar mastry) why would he demand Suit for him, which he can ever wear at any occasion in-view of his occupation as cooli, had P.W.1 alleged that A1 demanded for any article for the house or bike for him, there can be some chance to believe, but A1 being a mason(Beldar mastry) said to have demanded a suit for Rs.10,000/- is unbelievable more-over as 4 rightly put-forth by the defence Counsel when the father of P.W.1 died long back and the brothers of P.W.1 joined in petty jobs after the death of their father to bear the family expenses, who admittedly have no immovable properties in which case how-far P.W.1and P.W.2 saying that P.W.2 gave cashof Rs.3,00,000/- and 4 ½ sovereign gold is believable, if they had the capacity of giving Rs.3,00,000/- as dowry, then why would P.W.1 and P.W.2 say that they did not have capacity to afford a suit for Rs.10,000/- to A1. Hence, in these circumstances, certainly the capacity of P.W.2 to give dowry as stated by her is doubtful.

15.P.W.1 stated that when she conceived the accused wanted her to abort the child which she did not agree, but coming to the evidence of P.W.3, there is no whisper of any such incident, in-fact he stated as if P.W.1 was brought to their house for delivery and after delivery they left PW.1 at her parents house, and there is no whisper in his evidence that the accused were ever against P.W.1's conceiving. Further if-at-all the accused did not want a child, then why would they demand money for performing Annaprasana of the child? Even with regard to giving of cash of Rs.25,000/- to the accused to meet the expenses of Annaprasana, only P.W.1 spoke about it because P.W.3 stated that they performed Annaprasana at temple for which the accused did not attend, which means according to him there was no demand of money from accused to perform Annaprasana. Further, P.W.1 stated that apart from the said Rs.25,000/- her mother on the demand of accused gave Rs.50,000/- by pledging her gold chain to the accused, which is not stated by P.W.2 herself and she stated as if she pledged chain and gave Rs.25,000/- to the accused and not Rs.50,000/-, and either of the amounts or incident of P.W.2 pledging the gold chain was spoken by P.W.3. In-fact he gave a different version stating that after delivery while dropping P.W.1 at her marital home, they gave household articles worth of Rs.50,000/-, from which discussions it is evident that none among P.Ws 1 to 3 spoke consistently, if any alleged incident had taken place, then certainly, the version of family members should be on similar lines, but in this case as discussed supra there is no corroboration among the evidence of P.Ws 1 to 3 with regard to any incident spoken by them.

16. More importantly as argued by defence Counsel, if-at-all the accused had beat P.W.2, will that woman would keep quiet without stating it before the Court? which itself shows that P.W.1 out of anxiety to strengthen her case has created a concocted story before the Court. Hence, from the discussions made above, this Court observes that in- view of material put-forth from the evidence of P.W.1 to 3 to bring home the guilt of accused that he demanded and harassed P.W.1 for additional dowry and that P.W.1 was subjected to cruelty that suffices the definition of cruelty as explained (A)(B) of Sec.498-A IPC, this Court holds without any hesitation that the prosecution failed in establishing the guilt of accused for the charges leveled against them beyond all reasonable doubt.

17.In the result, A1 and A2 are found not guilty for the offences punishable u/s.498-A IPC and u/s.3 and 4 of Dowry Prohibition Act and they are acquitted of the same u/s.248(1) Cr.P.C. The bail bonds of the accused shall remain in force for six months.

Dictated to the Personal Assistant, transcribed by him, corrected

and pronounced by me in the open court, this the 19th day of May, 2015.

5

Sd/-G.Anandi

VI ADDL.JUDL. MAGISTRATE OF I CLASS ,

GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:- FOR DEFENCE : None

P.W.1: Rayapati Prameela Rani

P.W.2: Pothuri Rama devi

P.W.3: Pothuri Raja Babu

P.W.4: Syed Mustafa

P.W.5: Ch.Seetharamaiah

EXHIBITS MARKED

FOR PROSECUTION :

Ex.P1: Report ofP.W.1 Crayapati Prameela Rani given to Old Gunturu

P.S

Ex.P2:F.I.R.

Ex.P3:Rough sketh

FOR DEFENCE: Nil

M.Os. Marked

--NIL---Sd/-G.Anandi

VI A.J.C.J, G.N.T.

6

CALENDER AND JUDGMENT

IN THE COURT OF VI ADDL. JUDICIAL MAGISTRATE OF I CLASS: GUNTUR

C.C.No.360/12

Date of OffenceFilingApprehenReleased CommeClosure Sentence sionon bailncement of the Order/ of trialtrial 29.5.1214.8.1205/11/12----22.9.1431.3.1519.5.15 EXPLANATION FOR DELAY: 5.11.12 on appearance of accused before the court, copies of documents were furnished to the accused as contemplated U/Sec.207 Cr.P.C. This case is posted from time to time for examination of accused u/s.239 Cr.P.C for the offence u/s.498-A and u/s.3 & 4 of D.P.Act. 24.5.14 accused were examined u/s. 239 Cr.P.C for the offence punishable u/s.498-A Cr.P.C and u/s.3 & 4 of Dowry Prohibition Act, having understood the charges, they denied and claimed to be tried. On 22.9.14 P.W.1 was examined in chief and Ex.P1 was marked. On 18.12.14 P.W.1 was cross examined. On 5.1.15 P.W.2 was examined. On 5.2.15 P.W.3 was examined. Evidence of L.W.3 to 5 given up by APP. On 18.2.15 P.W.4 was examined and Ex.P2 was marked. This case is posted from time to time for evidence of remaining prosecution witnesses. On 31.3.15 P.W.5 was examined and Ex.P3was marked. Prosecution evidence was closed. On 30.4.15 accused were examined u/s 313 Cr.P.C to which they reported no defence evidence.On 14.5.15 heard arguments of both parties. On 19.05.2015 Judgment was pronounced. Name of the complainant: Sate:Station House Officer, Cr.No. 182/2012 Women Police Station Name of the father’s agereligioncallingVillage. accusedname

1. Rayapati Ram Mohana Rao S/o.Raja Rao, Age about 32 years, caste: Telaga, R/o.4th lane, Seethanagar, Old Guntur, Guntur.

2. Rayapati Subbulu W/o.Raja Rao Age about 50years, Caste: Telaga, R/o.4th lane, Seethanagar, Old Guntur, Guntur.

Offence: U/s. 498-A IPC and u/s.3 & 4 of D.P.Act.

Finding: Not Guilty

Sentence or Order : A1 and A2 are found not guilty for the offences punishable u/s.498-A IPC and u/s.3 and 4 of Dowry Prohibition Act and they are acquitted of the same u/s.248(1) Cr.P.C. The bail bonds of the accused shall remain in force for six months.

Sd/-G.Anandi

VI ADDL.JUDL. MAGISTRATE OF I CLASS,

GUNTUR. Copy submitted to:

1.The Hon'ble Chief Judl. Magistrate, Guntur

2. The Superintendent of Police, (Urban) Guntur.

1

IN THE COURT OF VI ADDL. JUDICIAL MAGISTRATE OF I

CLASS :: GUNTUR

PRESENT: : Smt. G. ANANDI, B.Com., L.L.B.,

VI ADDL.JUDL. MAGISTRATE OF I CLASS,

GUNTUR

TUESDAY, THE 19 th DAY OF MAY, 2015

C.C.NO.312/2012

Between:

State: Sub Inspector of Police, Prathipadu Police Station (Cr.No.66/12) ….Complainant

And

1. Ganeshuni Narasa Reddy S/o.Rama chandra Reddy Age about 33 years, caste: Reddy, Cultivation, R/o.Prathipadu village·

2. Bapathu Srinivasa Reddy S/o.Pitchi reddy, Age about 42 years, caste;Reddy, Culivation, R/o.Prathipadu village·

3. Bapathu Venkateswara Reddy S/o.Siva Reddy age about 33 years, caste:Reddy, Cultivation, R/o.Prathipadu village·

4. Inguturi Rama Koti reddy S/o.Parama Reddy Age about 33 years, caste: Reddy Cultivation, R/o.Prathipadu village·

5. Boya Tandava Krishna S/o.Veeraiah Age about 45 years, caste: Telaga,

Cultivation, R/o.Prathipadu village·...Accused

This case is coming on 15.05.2015 before me for final hearing in the presence of APP Grade-II- for State and of Sri S.Srinivasa Reddy, Advocate for accused, perusing the evidence and documents and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

The Sub-Inspector of Police, Prathipadu Police Station, filed Charge-sheet against the accused in Crime No.66/2012 for the offence punishable u/s.171(E) IPC.

2. The averments of the Charge-sheet in brief are as follows: On 11.6.2012 at 5.00 P.M L.W.1 Manchala Koteswara Rao, S.I of Police, Old Guntur P.S i/c. Route No.23, Mobile, Prathipadu, who was incharge of Route No.23 Mobile, was conducting vehicle checking at Thimmapuram village, in-view of by-election to be held in Prathipadu Constituency on 12.6.2012, at that time L.W.1 Manchala Koteswara Rao, S.I of Police, Old Guntur P.S i/c. Route No.23, Mobile, Prathipadu, L.W.2 TSR Bapaiah, P.C No.847 Old Guntur P.S., L.W.3 P.Raja Sekhar, Medikondur P.S., L.W.4 K.Anjaneyuu, ARPC, Guntur and L.W.5 N.Siva Nageswara Rao, ARPC, Guntur were proceeding in a car bearing No.AP 2 7BB 2225, on seeing the police has tried to escape by reversing the car, and when L.W.1 Manchala Koteswara Rao, S.I of Police, Old Guntur P.S i/c. Route No.23, Mobile, Prathipadu, with the assistance of his staff, stopped the car and questioned the accused, all of them confessed that they are active members of Y.S.R. Congress party, and were going to distribute Rs.3000/- by keeping them in 20 envelope covers to each polling agents in Thimmapuram, Mallayapalem, Ginjupallivaripalem, Kotha mallaya palem village, since party leaders gave amount along with the party symbol voter lists book.

3. Upon which L.W.1 Manchala Koteswara Rao, S.I of Police, Old Guntur P.S i/c. Route No.23, Mobile, Prathipadu, seized Rs.60,000/- from the twenty envelope covers along with party symbol voter lists five books from the possession of A1, and Rs.3550/- from the possession of A2 for violating the code of election under cover of police proceedings as none came forward to act as mediator, then L.W.1 Manchala Koteswara Rao, S.I of Police, Old Guntur P.S i/c. Route No.23, Mobile, Prathipadu,handed over the money and books to L.W.6 P.Srinivasa Rao, S.I of Police, Prathipadu P.S along with the police proceedings and accused, as the said offence is non-cognizable in-nature, he did not arrest the accused, and after obtaining permission from the Hon'ble Court, the present crime was registered and investigated into.

4.During investigation, he examined and recorded the statements of five prosecution witnesses, visited the scene of offence, prepared rough sketch, seized Rs.60,000/- from the twenty envelope covers and Rs.3550/- and on completion of further investigation, he filed charge sheet in this case.

5. This case was taken on file for the offence u/s.171(E) IPC against the accused and proceeded with as per law. On appearance of the accused before this Court, they were furnished with copies of documents relied on by prosecution in compliance of section 207 Cr.P.C. Thereafter the accused were examined u/s.251 Cr.P.C, read over and explained to the accused in Telugu, having understood the accusation, they pleaded not guilty and claimed to be tried.

6.During trial, on behalf of prosecution P.W.1 to P.W.3 were examined and Exs.P1 to P3 and MO1 to MO4 were marked.

7.After closure of prosecution evidence, accused were examined u/sec 313 Cr.P.C by putting incriminating material available against them, from the evidence of prosecution witnesses and the accused denied the truth of such incriminating material and reported no defence.

8.Heard the arguments of both sides.

9.POINT:- Whether the prosecution could establish the guilt of accused for the offence punishable u/s.171(E) IPC beyond all reasonable doubt?

10. POINT: P.W.1 is the S.I of Police, who conducted raid in this case and P.W.2 is one of the constables who assisted P.W.1 in the raid and P.W.3 is the Investigating Officer who basing on Ex.P1 police 3 proceedings registered the present crime. The learned A.P.P argued that when P.W.1 and P.W.2 are Police officials who have neither acquaintance or animosity with the accused, what would be the reason for them to foist false case against the accused, hence considering the consistent evidence of P.W.1 and P.W.2 and Ex.P1 police proceedings, he prayed to convict the accused and confiscate MO1 and MO2 to state.

11. The defence Counsel contended that firstly no identity proof of the persons said to be apprehended by P.W.1 from the car is filed by P.W.1, and not even the owner of the car is examined to speak as to who were the persons that travelled in his car as on 11.06.2012. Added to it, when he says that he stopped the car at 5.00 P M near Luthern church which is admittedly located in a busy locality, for the reasons best known to P.W.1, he did not choose to secure any independent witness at the scene and simply stated that none came forward to act as mediator, and in his cross-examination he categorically admitted that he did not serve Summons on any one calling upon to act as mediators, in which case, how far Ex.P1 police proceedings alone can be based to prove that A1 to A5 were found in the car bearing No.AP 07 BB 2225.

12. More-over P.W.1 stated that on his dictation Ex.P1 was prepared by one of his constables and he also admitted that the signature of the scribe of Ex.P1 was not obtained on Ex.P1, but whereas P.W.2 stated that P.W.1 himself drafted Ex.P1 police proceedings, which inconsistency in the evidence of P.W.1 and P.W.2 itself shows that Ex.P1 is a table made document. Added to it, if-at-all P.W.2 was present at the scene during the raid, then he should have spoken on the similar lines of P.W.1, but his evidence as discussed above is not consistent with the evidence of P.W.1 more-over he categorically admitted that he did not observe whether the signatures of accused were obtained on MO1 to MO4 or not, if-at-all P.W.1 and P.W.2 were present at the scene, how is that he can have no knowledge as to the proceedings that took place.

13.Added to it, the very signature of P.W.2 who says to have accompanied P.W.1 does not find place in Ex.P1 which itself shows that P.W.1 has no knowledge about the proceedings as he was not present at the scene and Ex.P1 having prepared at P.S was pressed into service to register this false case against the accused for statistical purpose during elections. Hence he argues that the prosecution without producing iota of material to show that MO1 and MO2 were possessed by A1and A2 for distribution to the polling agents in-view of elections is unbelievable, as none of the polling agents to whom, the amount is intended to be distributed was examined. In which case, it has to be held that the prosecution without producing any iota of material that MO1 and MO2 was intended to be given to Polling agents to bribe the voters, which in- fact is the personal money of A1 and A2 has implicated the accused into the false case only for statistical purpose. Hence prayed to acquit the accused.

14. This Court considering the material on record observes that admittedly except the evidence of P.W.1 and P.W2, the police witness there is no other material in-support of prosecution's case, of course, this Court accepts the argument of A.P.P that merely because P.W.1 and P.W.2 are police officials, their evidence shall not be looked upon with suspicion, but coming to the evidence of P.W.2 who stated in-contra to 4 the evidence of P.W.1, that P.W.1 himself drafted Ex.P1 police proceedings and that he did not observe whether the signatures of accused were obtained on MO1 to MO4, and more importantly his signature not being found on Ex.P1 Police proceedings lends support to the argument of defence Counsel that the very presence of P.W.2 at the scene is doubtful, because had he was at the scene during the raid then his evidence shall not be in-contra to the evidence of P.W.1 who stated that Ex.P1 was drafted by one of the constables. Further as the signature of scribe Ex.P1 is not found on it, this Court is unable to accept the evidence of either P.W.1 or P.W.2 in saying as to who scribed Ex.P1.

15.Added to it, when the scene is admittedly very busy locality and the time of raid not being an odd hour, P.W.1 saying that he could not secure independent witness to act as mediator does not inspire confidence. Adverting to the above, when the prosecution says that MO1 and MO2 were being carried by the accused for distribution to the polling agents, then certainly examination of any such polling agent would have helped in strengthening the prosecution's case, but unfortunately none such polling agent was examined and merely because certain YSR Congress Party Symbol voters' list books are said to be found with the accused, the suspicion of P.W.1 that the said amount was being transported for distribution of money to the voters is unconvincing. Hence it appears that except the suspicion of P.W.1 that the said amount was intended to be distributed among voters there is no other material produced before the Court, to show the amount that was found transporting in the car was intended to be used for an electoral corruption practice or for giving them to any person either as gratification with an object of inducing such person(s) to exercise electoral right or as reward to an any one for having exercised electoral right to constitute bribery as defined u/s. 171-B IPC. More-over there is no material forth-coming along with the charge sheet to say whether any electoral right had been declared in Prathipadu constituency at the relevant point of time. Hence, from the above discussions, it is manifestly clear that no material is produced to show that MO1 and MO2 was carried for any particular candidate nor the material on record would indicate that the money was meant to voters for distribution with an object of directly or indirectly inducing elector either to caste vote in respect of particular candidate or as reward for having exercised right''. Hence, in-view of the matter, this Court is of considered opinion that the prosecution failed in producing cogent material to connect the accused herein of possessing MO1 and MO2 to be distributed among voters beyond all reasonable doubt. In which case certainly the accused are entitled to benefit of doubt.

16.In the result, A1 to A5 are found not guilty for the offence punishable u/s.171(E) IPC and they are acquitted of the same u/s.255 (1) Cr.P.C. The bail bonds of the accused shall remain in force for six months. MO1 and MO2 shall be returned to P.W.1 and P.W.2 and MO3 and MO4 shall be destroyed after expiry of appeal time.

Dictated to the Personal Assistant, transcribed by him, corrected

and pronounced by me in the open court, this the 19th day of May, 2015.

Sd/-G.Anandi

VI ADDL.JUDL. MAGISTRATE OF I CLASS ,

GUNTUR.

5

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:- FOR DEFENCE : None

P.W.1: Manchala Koteswara Rao

P.W.2: TSR Bapaiah

P.W.3:P.Srinivasa Rao

EXHIBITS MARKED

FOR PROSECUTION :

Ex.P1: Police Proceedings

Ex.P2:F.I.R

Ex.P3:Rough sketch

FOR DEFENCE: NIL

M.Os. Marked

MO1: cash of Rs.60,000/-

MO2: Cash of Rs.3,550/-

MO3:Five books YSR Congress party

MO4:20 Envelop covers

Sd/-A.Anandi

VI A.J.C.J, G.N.T.

6

CALENDER AND JUDGMENT

IN THE COURT OF VI ADDL. JUDICIAL MAGISTRATE OF I CLASS: GUNTUR

C.C.No.312/12

Date of OffenceFilingApprehenReleased CommeClosure Sentence sionon bailncement of the Order/ of trialtrial 11/06/1207/07/1204/10/12----17.3.1513/05/1519.5.15 EXPLANATION FOR DELAY: 4.10.12 on appearance of accused before the court, copies of documents were furnished to the accused as contemplated U/Sec.207 Cr.P.C. On 24.9.14 accused were examined u/s.251 Cr.P.C for the offence u/s.171(E) IPC, read over and explained to the accused in Telugu, having understood the accusation, he pleaded not guilty and claimed to be tried. On 17.3.15 P.W.1 was examined in chief. Ex.P1 and MO1 was marked. On 7.4.15 P.W.1 was cross examined. On 17.4.15 P.W.2 was examined. On 13.5.15 P.W.3 was examined and Ex.P2 was marked. Evidence of L.Ws 3 to 5 given up by APP. Prosecution evidence was closed. On 15.5.15 accused was examined u/s 313 Cr.P.C to which they reported no defence evidence and heard arguments on the same day. On 19.5.2015 Judgment was pronounced. Name of the complainant: Sate:Sub Inspector of Police , Cr.No. 66/12 Prathipadu Police Station Name of the father’s agereligioncallingVillage. accusedname

1. Ganeshuni Narasa Reddy S/o.Rama chandra Reddy Age about 33 years, caste: Reddy, Cultivation, R/o.Prathipadu village·

2. Bapathu Srinivasa Reddy S/o.Pitchi reddy, Age about 42 years, caste;Reddy, Culivation, R/o.Prathipadu village·

3. Bapathu Venkateswara Reddy S/o.Siva Reddy age about 33 years, caste:Reddy, Cultivation, R/o.Prathipadu village·

4. Inguturi Rama Koti reddy S/o.Parama Reddy Age about 33 years, caste: Reddy Cultivation, R/o.Prathipadu village·

5. Boya Tandava Krishna S/o.Veeraiah Age about 45 years, caste: Telaga, Cultivation, R/o.Prathipadu village·

Offence: U/s 171(E) IPC

Finding: Not Guilty

Sentence or Order : A1 to A5 are found not guilty for the offence punishable u/s.171(E) IPC and they are acquitted of the same u/s.255 (1) Cr.P.C. The bail bonds of the accused shall remain in force for six months. MO1 and MO2 shall be returned to P.W.1 and P.W.2 and MO3 and MO4 shall be destroyed after expiry of appeal time.

Sd/-G.Anandi

VI ADDL.JUDL. MAGISTRATE OF I CLASS,

GUNTUR. Copy submitted to:

1.The Hon'ble Chief Judl. Magistrate, Guntur

2. The Superintendent of Police, (Urban) Guntur.