G Raja Gopal

Page 1 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE: SURYAPET

(DATED THIS 19th DAY OF APRIL, 2024)

PRESENT: SRI G.RAJA GOPAL,

PRINCIPAL SESSIONS JUDGE:

SESSIONS CASE No. 108 OF 2019

IN

P.R.C.No. 99 OF 2018

(ON THE FILE OF A.J.F.C.M., SURYAPET)

IN CRIME No.90/2018 (P.S. Mothey )

Name of the Station House : The Inspector of Police, Munagala Officer Circle Name of the Committal : Addl.Judicial Magistrate of First Class, Court Suryapet. Names of the accused:

Daida Mahender S/o Venkanna, Age:20 years, Occ; Driver, R/o Namavaram village, Mothey Mandal, Suryapet District.

Offences charged : Under Sections 302 and 380 IPC.

Plea of the accused : Pleaded not guilty. Finding of the Judge : Accused found guilty for the offences u/s 302 and 380 IPC.

Sentence or order The accused is convicted for the offence punishable u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/-.

In default of payment of fine, he shall undergo S.I for a period of Six months.

Further the accused is also found guilty for the offence u/s 380

IPC and convicted u/s 235(2) of

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Cr.P.C for said offence and sentenced to undergo R.I for a period of one year and to pay fine of Rs.500/-. In default of payment of fine, the accused shall undergo S.I for a period of one month.

The remand period, if any undergone by the accused shall be given set off u/s 428 of Cr.P.C.

Both the substantial sentences shall run concurrently.

The accused is informed that an appeal lies to the Hon’ble High Court for the State of Telangana against the judgment and conviction passed by this court. It is also informed to the accused that if he has no means to prefer an appeal to the Hon’ble High Court, a legal aid counsel will be appointed on his behalf to prefer an appeal.

The Mo.1 shall be returned to PW1 after expiry of appeal time. Whether the accused is : Yes. defended during trial? By Sri. Bagala Narsimha, Counsel for whom? accused

N.B: Sri Kompelly Lingaiah, Public Prosecutor has conducted the prosecution case.

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J U D G M E N T

1. The State represented by Circle Inspector of Police, Munagala circle has filed charge sheet against the accused herein in Crime

No.90/2018 of Mothey P.S for offences under Sections 302 and 380 IPC.

2. The brief averments of the prosecution case is that the accused who is grandson of the deceased insisted the deceased to give some money out of Rs.30,000/- which was borrowed by the deceased from one G.Pullamma and when the deceased refused to give the money, the accused on 5.8.2018 at 17.00 hours killed the deceased by pressing her throat. Therefore, PW1 lodged a complaint/Ex.P1 before police requesting to take necessary action against the accused.

3. Basing on the said complaint/ Ex.P1 a case was registered in

Cr.No.90/2018 for the offence u/s 302 and 380 IPC and issued FIR to all concerned and investigation was initiated. Later, the investigation was conducted and after completion of investigation charge sheet was laid against the accused.

4. The learned Addl.Judicial First Class Magistrate, Suryapet took cognizance for the offence under Sections 302 and 380 IPC, against

Accused.

5. On appearance of the accused learned Magistrate furnished copies of case documents to them as required u/s 207Cr.P.C. After following due procedure, the case was committed to the then Principal

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Sessions Court, Nalgonda vide PRC No.99/2018 since the alleged offence

under Section 302 IPC is exclusively triable by Court of Sessions and in turn the Principal Sessions Court, Nalgonda made over the case to this Court (the then II Addl.Dist. & Sessions Judge, Suryapet) for disposal according to law.

6. On appearance of accused and upon hearing both sides charges for the offences u/s 302 and 380 IPC have been framed against the sole accused. The charges have been read over and explained to the accused for which he pleaded not guilty and claimed to be tried.

7. During the trial, PWs1 to 12 are examined, Ex.P1 to P10 and

MO.1 have been marked on behalf of the prosecution.

8. After closure of prosecution evidence, Accused is examined u/s 313 Cr.P.C by explaining the incriminating circumstances available against him in the evidence adduced on behalf of prosecution for which the accused denied the same and he did not choose to adduce any defence evidence on his behalf.

9. Heard arguments from both sides.

10. Now the points that arise for determination are:

1) “Whether the prosecution is able bring home the guilt of the accused for the offences u/s 302 and 380 IPC beyond all reasonable doubt?”

2) To what relief?

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11. POINT:To substantiate the case of the prosecution as many as 12 witnesses have been examined on behalf of the prosecution.

PW1 is the defacto complainant and daughter of the deceased. PW2 is adopted son of the deceased and an eye witness. PW3 is grandson of the deceased and son of PW2 and he is also an eye witness. PW4 is an eye witness. PWs 5 & 6 are circumstantial witnesses. PWs 7 &8 are panch witnesses for scene of offence and inquest of the deceased. PW9 is panch for confession of the accused and recovery of MO.1 cash of Rs.12,000/-.

PW10 is medical officer who conducted post mortem examination on the dead body of the deceased. PW11 and 12 are police officials and investigating officers.

The story of the prosecution as unfolded by the testimony of prosecution witnesses, in brief, is as under:

12. PW1 Smt.Akarapu Janamma is the defacto complainant and she set the criminal law into motion by lodging Ex.P1 before PW11 and she is daughter of the deceased. According to her evidence, she lives with her deceased mother along with PWs 2 & 3. Her mother/ deceased was owning some agricultural land and she borrowed an amount of Rs.30,000/- from

Gunti Pullamam (PW5) of their village for purchase of bulls and said amount was kept with her deceased mother. The accused has seen about borrowing of the said money and he came to their house and insisted the deceased to give the said amount to him and the deceased did not give the amount to the accused. About five years ago on one day PW1 went to

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Chandupatla village to attend a funeral by leaving her mother along in the house. On the same day she returned home at around 5.00 pm and found the accused in their house. When she questioned the accused why he came to their house, then the accused ran away. While the accused running away from their house PWs 2 to 4, Lw4 & LW6 have seen the accused.

Then, PW1 entered into their house and found dead body of her mother.

She also found injuries on both sides of neck and oozing of blood from her ear. She further deposed that the accused resorted to kill her mother for not giving money to him. On search she could not found Rs.30,000/- in their house. Therefore, she lodged complaint before police Mothey for taking necessary action. Ex./P1 is the report lodged by PW1 before the PW11 who is the then A.S.I of police, Mothey, P.S. On perusal of the recitals of Ex.P1, it is found that the same are corroborating with the oral evidence of PW1.

13. Basing on Ex.P1 report lodged by PW1, PW11 registered a case in Cr.No.90/2018 on 6.8.2018 u/s 302 and 380 IPC and issued FIR to all concerned vide Ex.P10m and handed over CD file to PW12 for investigation.

14. PW12 is investigating officer and according to his evidence, he is the then C.I of police, Munagala circle at the relevant point of time. After registration of FIR by PW11, he informed the same to him. Immediately, he rushed to the scene of offence situated at Namavaram village, Mothey

Mandal, Suryapet District and conducted scene of offence panchanama in the presence of PWs7 & 8 vide Ex.P5 and he also examined and recorded

Page 7 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet statements of Pws 2 to 6, LWs4, 6 and 9. He held inquest over the dead body of the deceased in the presence of same mediators vide Ex.P7. He got shifted the dead body to government hospital, Suryapet for conducting post mortem examination and accordingly, PW10 conducted post mortem examination and furnished his report vide Ex.P9. Later, he handed over the dead body to the daughter of the deceased i.e. PW1. On 8.8.2018, he received credible information from Gunjaloor bus stage stating that the accused is available at that place. Immediately, he secured mediators namely PW9 and LW14, rushed to that place along with mediators and apprehended the accused. On interrogation, the accused confessed the commission of offence before the mediators. He got recorded confessional statement of the accused and seized cash of Rs.12,000/- (MO.1) from the possession of accused under cover of Ex.P8. Later, he brought the accused to police station, effected his arrest and sent him for judicial remand. After completion of investigation, he filed the charge sheet against the sole accused herein.

15. PW2 is adopted son of the deceased. He deposed that PW3 is his son and both of them have migrated to Hyderabad for their livelihood.

PW1 used to say along with his deceased mother. 10 days prior to death of his deceased mother, he along with his son PW3 came to their village i.e.

Namavaram to cultivate their land. His deceased mother borrowed an amount of Rs.30,000/- from PW5 of their village for the purpose of purchasing bullocks and the said amount was kept with her. The accused

Page 8 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet has seen about borrowing of said money, came to their house and asked his mother to give money to him for which his deceased mother refused and the said incident took place about four years ago. After two or three days, the accused came to their house in drunken condition and demanded money from his mother and also threatened her with dire consequences if she does not give money to him. Then, PW1 sent the accused away saying that why they should give money to him. On the date of incident, himself and his son

PW3 went to their agricultural field and PW1 went to Chandupatla village to attend a funeral of their relative by leaving their deceased mother alone.

About 4.00 pm himself and his son/PW3 returned from fields and chitchatting with their caste people namely Daida Lingaiah LW4, Merige Papaiah PW4,

Kathula Venkanna, LW6 etc. By the time PW1 also returned home from

Chandupatla village. On seeing them, the accused ran away from their house. Then, they entered into their house and found the dead body of his mother with injuries on either side of the neck and blood oozing out from her ear. PW2 further deposed that the accused killed his mother for not giving money by the deceased. Out of Rs.30,000/- the accused has taken away half of the amount and the remaining amount was lying in the house and that the accused is responsible for the murder of his mother.

16. PW3 is son of PW2 and grandson of PW3. H also deposed on the similar lines with that of his father on material particulars. Though, PW2 did not state about hearing cries of PW1, however, Pw3 deposed that PW1 after returning from Chandupatla village at about 5.00 pm he heard voice of

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PW1 stating that “Yendi Maa Intlaku Vachinaav” and at the same time, the accused ran away from their house. On hearing the cries of PW1, all of them rushed to their house and found dead body of his grandmother with injuries. He further deposed that on verification an amount of Rs.30,000/- borrowed by the deceased, they found only an amount of Rs.17,400/- and the remaining amount of Rs.12,600/- was taken away by the accused.

17. PW4 is a resident of Namavaram village, Mothey Mandal,

Suryapet District and he is an eye witness. According to his evidence, PW1 lives with the deceased and the deceased used to look after her family affairs and she is having agricultural land. He also deposed that the deceased borrowed an amount of Rs.30,000/- from PW5 for the purpose of purchasing bullocks for their agricultural operations and kept the amount with her. The accused asked the deceased to give the said money to him.

The deceased refused to give. After two or three days again, the accused went to the deceased and demanded the said money. On that day Pw1 went to Chandupatla village to attend a funeral. He also deposed that on the date of incident, he along with Pws2, 3, LW4 and LW6 were chit chatting on road in their village, at the same time, PW1 returned back from Chandupatla village and went into their house at about 5.00 pm. He further deposed that

PW1 raised hues and crises and on hearing the cries they rushed to the house of the deceased and at that time, they noticed that the accused running away from the house of the deceased. He found dead body of the deceased with injuries on her both sides of neck and blood oozed out from

Page 10 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet neck. The accused killed the deceased for not giving money to him by the deceased and that they found only Rs.17,000/- and odd in the house of the deceased and the remaining amount of Rs.12,000/- and odd was not found.

18. PW5 is also resident of Namavaram village. She deposed that the deceased died about 5 ½ years ago as on the date of her evidence and 10 days prior to her death the deceased approached her and borrowed an amount of Rs.30,000/-for their agricultural purpose by executing a promissory note in her favour.

19. PW6 is nephew of the deceased and circumstantial witness and his evidence is only hear say evidence since PW1 informed the alleged incident of murder of her mother to him.

20. PW7 is a panch witness for scene of offence and inquest held on the dead body of the deceased, but he did not support the prosecution case. His signatures on scene of offence panchanama and rough sketch of scene of offence are marked as Ex.P2 and P3 and his signature on inquest report is marked as Ex.P4.

21. PW8 is another panch witness for scene of offence and inquest and he supported prosecution version and corroborated the version of PW12 investigating officer regarding observing the scene of offence and drawing a rough sketch of scene of offence under Ex.P5 & P6 respectivelyand holding inquest over the dead body of the deceased under Ex.P7.

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22. PW9 is the then V.R.A of Namavaram village, Mothey Mandal,

Suryapet District and he is one of the panch witness to the confessional statement of the accused and recovery of MO.1 i.e. cash of Rs.12,000/- from the possession of the accused. According to his evidence on 8.8.2018, police Mothey have requested him and another mediator i.e. LW14 to come to Gunjalooru bus stage. Accordingly, he along with another mediator rushed to the said place at about 10.30 am where the police and accused were present. Police disclosed to them that the accused herein is suspected in a murder case. On the request of police, both the mediators enquired the accused why he was in the custody of the police, then the accused voluntarily confessed that he is close relative of deceased and on 5.8.2018 during evening hours he entered into the house of deceased and killed her for gain by pressing her throat and due to fear he ran away from that place and that on 8.8.2018 he was apprehended by the police. PW8 further deposed that the police have seized an amount of Rs.12,000/- from the possession of accused under cover of Ex.P8 which is admissible portion of confessional cum seizure panchanama. The alleged confession was made by the accused before the PW9 and other mediator in the presence of police. Therefore, the said confession of the accused is not admissible in the evidence in view of Section 25 of the Indian Evidence Act. As such, only admissible portion of confessional statement of the accused regarding seizure of MO.1 cash of Rs.12,000/- is marked as Ex.P8. thus, the evidence of PW9 to the extent of recovery of MO.1 cash of Rs.12,000/- only is

Page 12 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet admissible portion, as such, the same shall be taken into consideration for just conclusion.

23. Pw10 is medical officer, who conducted inquest over the dead body of the deceased on 6.8.2018 and issued post mortem examination report vide Ex.P9. He opined that the cause of death of the deceased to the best of his knowledge and believe was due to Asphyxia due to strangulation and approximate time of death is 12 to 24 hours prior to post mortem examination.

24. Basing on the above evidence available on record, the submission of the learned Public Prosecutor is that the prosecution has proved its case against the accused for the offence u/s 302 and 380 IPC beyond all reasonable doubt since PW1 has categorically deposed as well as stated in her Ex.P1 report that on the date of incident she returned home at around 5.00 pm after attending funeral at Chandupatla village and found the accused in their house and when she questioned the accused about his presence in their house, he ran away and when she entered into their house she found dead body of her mother with injuries and that her evidence is supported by PWS 2 to 4 and by examining PW5 the prosecution has proved borrowing the amount of Rs.30,000/- from her by the deceased. He further argued that the accused is known person and relative of the deceased family and when he asked the deceased to give the money borrowed from PW5, she refused and that the accused killed the deceased by strangulation for not giving money. The medical evidence of PW10

Page 13 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet coupled with Ex.P9 supports that the deceased was died due to asphyxia due to strangulation. As such, the prosecution has proved its case for the offence 302 IPC since except the accused no one has committed the offence and the accused was found by PW1 in their house soon after the incident of killing the deceased. The learned Public Prosecutor further argued that the prosecution also proved the seizure of MO.1 cash of

Rs.12,000/- from the possession of the accused under cover of Ex.P8 panchanama which was taken away from the house of the deceased out of

Rs.30,000/- and the remaining amount of Rs.17,400/- was found in the house of the deceased after committing theft of rs.12,000/- and odd by the accused. Thus, the prosecution has proved its case against the accused for the offence us/ 380 IPC. Therefore, the Public Prosecutor submitted to convict the accused fro the offence punishable u/s 302 and 380 IPC.

25. Per contra, the learned defence counsel argued that there is no scientific evidence on behalf of the prosecution and that PW12 investigating officer categorically admitted that he did not collect any scientific evidence from the scene of offence including collection of chance finger prints from the dead body of the deceased and that the prosecution did not collect any promissory note or any other document form PW5 allegedly executed by the deceased to prove the borrowing of money by the deceased from PW5. It is further contended that the deceased was 90 year old lady and pW1 is looking after her mother and that pW1 might have killed the deceased since deceased was old aged and she was unable to see the

Page 14 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet welfare of the deceased and that having killed the deceased by PW1, she foisted a false case against the accused only to escape from her criminal liability. It is further argued that since there is no scientific evidence to prove the accused has committed the alleged offence, as such, the prosecution miserably failed to prove the guilt of the accused beyond all reasonable doubt for the charges leveled against him and that he is entitled for clean acquittal since the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt.

26. In view of the rival contention of both the prosecution and defence now it is just and essential to scrutinize the cross examination of prosecution witnesses to ascertain whether their evidence has been shaken or not, whether they are trustworthy and whether this court can act upon their evidence or not.

27. The undisputed facts of the case are that the accused, deceased, PWs 1 to 3 are residents of Namavaram village, Mothey mandal of Suryapet District. Further, the accused is related to the deceased family.

Therefore, there is no dispute regarding identity of the accused. Here it is pertinent to mention that it is not the case of the defence that there was animosity between the accused and PW1 and others and taking advantage of death of the deceased a false case has been foisted against the accused.

Even no suggestion was put to the prosecution witnesses by the defence that a false case has been foisted against the accused due to animosity or disputes in between the family of accused and deceased.

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28. The motive behind the commission of the offence according to prosecution is that the deceased borrowed an amount of Rs.30,000/- from

PW5 for the purpose of purchasing bullocks for their agriculture purpose. It is not the case of the defence that the deceased has no land at all.

According to cross examination of PW1 her mother was owning Ac.3.00 gts of land. But whereas PW2 deposed that the deceased owned Ac.2.00 gts of land. Whatever extent of the land it was, but the deceased was owning agriculture land and it is not disputed by accused. To prove the borrowing of money of Rs.30,000/- by the deceased, the prosecution has examined PW5 who deposed about lending of amount of Rs.30,000/- to the deceased for their agriculture purpose on execution of a promissory note and that the deceased borrowed amounts 10 days prior to her death. Though, PW5 was cross examined at length but nothing worthwhile could be elicited from her mouth to disbelieve her evidence or to discard her testimony. The submission of the defence is that the prosecution has not filed the so called promissory note executed by the deceased in favour of PW5. Mere non filing of the so called promissory note by the prosecution it is not a fatal to the case of the prosecution. Because PW5 simply deposed about borrowing of Rs.30,000/- by the deceased from her 10 days prior to her death and she did not depose any incriminating evidence of whatsoever against the accused herein. Therefore, the evidence of PW5 can be relied upon and can be acted upon by this court. Thus, from the evidence of PW5 it is crystal clear that she advanced an amount of Rs.30,000/- to the deceased 10 days

Page 16 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet prior to her death for their agriculture purpose. The accused demanded the deceased to give money to him, however, the deceased refused to give money to accused.

29. Now another point to be considered is whether the prosecution is able to connect the accused to the crime. As could be seen from the evidence of PWs 1 to 3 on the date of incident PW1 went to Chandupatla village to attend a funeral and whereas Pws 2 & 3 went to their agricultural operations. PW1 returned to home at Namavaram village at around 5.00 pm and found the accused in their house. In Ex.P1 also the same has been mentioned categorically. As per the recitals of Ex.P1 on seeing PW1, the accused ran away and the same was witnessed by PWS 2 to 4 and Lw4 &

LW6. According to PWs 2 & 3 on the day of incident they returned from fields at about 4.00 pm and chit chatting with their caste people i.e. PW4,

Lw4 and LW6 and that they saw while the accused running away from their house. PW4 corroborated the said version of PWs 1 to 3. Thereafter, after entering into house by PW1 she found the dead body of her mother with injuries on both sides of neck and oozing out blood from her ear. Thus, from the evidence of PWs 1 to 4 it is crystal clear that at the time of incident, the deceased was alone in her house since PW1 went to Chandupatla village to attend a funeral and whereas PWs 2 & 3 went to their agricultural fields.

Taking advantage of loneliness of the deceased and knowing that she is having money with her, the accused entered into the house of the deceased and resorted to kill her. Though PWs 1 to 4 were subjected to cross

Page 17 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet examination by the defence counsel but nothing worthwhile could be elicited from their mouth either to disbelieve their evidence or to discard their testimony. In other words their evidence has not been shaken by the defence.

30. There is no scope in criminal justice system for mere assumptions and presumptions. Because, in this case, the accused has taken a defence that the deceased was 90 years old lady and PW1 is also a 70 years lady and that PW1 due to her old age unable to see the welfare of the deceased, as such, PW1 might have killed her mother and to escape from criminal liability PW1 foisted a false case against the accused herein.

The said defence is not believable since nothing could be elicited from the prosecution witnesses to foist a false case against the accused because as already discussed above there is no enmity or disputes between the accused and deceased family members to implicate him in a false case.

Therefore, the defence taken by the accused is found to be false.

31. Now another question arises whether it was a natural death or a homicidal death. As could be seen from the evidence of PW10 coupled with Ex.P9 post mortem examination report the cause of death of the deceased was due to asphyxia due to strangulation. Pw10 also found a ligature mark anterior aspect of neck, two marks of right side and one mark on left side and that the said injuries are ante mortem. PWs 1 to 3 also categorically deposed that the deceased was found dead with injuries on both sides of neck. The said fact also recited in Ex.P1. The name of the

Page 18 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet accused also mentioned in Ex.P1 first report of PW1 and Ex.P10 FIR. The

FIR was registered on the same day of incident, therefore, implication of the accused in this case can be ruled out safely without any hesitation.

Therefore, it is not a natural death and it is a homicidal death.

32. On the date of incident when PW1 entered into their house, she could not found any other person except the accused. Therefore, in the circumstances of the case, it can be ruled out that some other person might have killed the deceased and the finger pointing out towards the accused only. There is no doubt that neither Pw1 nor other prosecution witnesses have witnessed the actual killing of the deceased by the accused. However, the accused was found in the house of the deceased when PW1 entered into their house on the date of incident at about 5.00 pm. Therefore, in the circumstances of the case, it is important to refer Section 106 of Evidence

Act as it is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.

33. The principle lays down general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience.

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34. In Trimukh Maroti Kirkan vs. State of Maharashtra, 2006 (10) SCC 681, The Hon’ble Supreme Court was considering a similar case of homicidal death in the confined house. The following observations are considered relevant in thefacts of the present case:

“14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be lead or at any rate extremely difficult to be lead.

The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The

Illustration given to Section 106 of Evidence Act are as under:

a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

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(b) A is charged with travelling on a railway without ticket.

The burden of proving that he had a ticket is on him.”

35. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be lead by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simple keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

36. Once, the prosecution established a prima-facie case of homicidal death of the deceased, the accused were obliged to furnish some explanation under Section 313 Cr.P.C with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased.

37. Under Section 101 of the Evidence Act, whoever desires any

Court to give a judgment as to a liability dependent on the existence of facts, he must prove that those facts exist. Therefore, the burden is always on the prosecution to bring home the guilt of the accused beyond a reasonable

Page 21 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet doubt. Thus, Section 106 constitutes an exception to Section 101. On the issue of applicability of Section 106 of the Evidence Act, there is a classic decision of Apex Court in the case of Shambu Nath Mehra v. The State of

Ajmer (1956) SCR page 199 which has stood the test of time. The relevant part of the said decision reads thus :- “Section 106 is an exception to section 101. Section 101 lays down the general rule about the burden of proof. "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist".

38. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused.

When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.

39. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances.

40. The accused has not given any explanation for his presence in the house of the deceased when PW1 entered into their house and also not given any explanation regarding running away from the scene of offence

Page 22 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet after entering PW1 into their house. Therefore, in view of the above said discussion, it is for the accused to explain the said facts and to prove his innocence.

41. With the foregoing discussion and in view of the oral and documentary evidence available on hand this court finds that the prosecution is able to prove the ingredients of Section 302 of IPC against the accused beyond all reasonable doubt. Accordingly, the accused is found guilty for the offence us/ 302 IPC and convicted u/s 235(2) Cr.P.C.

42. Now coming to the offence us/ 380 IPC, the accused was found in dwelling house of PW1 and deceased. The motive of the accused to enter into the house of the deceased was to take away money of

Rs.30,000/- borrowed by the deceased from PW5. As per Ex.P1 report out of Rs.30,000/- the accused had taken an amount of Rs.12,600/- and left

Rs.17,400/- in the house of the deceased. The stolen property was recovered by PW12 i.e. Rs.12,000/- (MO.1) from the possession of the accused in the presence of two mediators. One of the mediators is examined as PW9. PW9 categorically deposed regarding recovery of MO.1 from possession of accused on the date of apprehending him at Gunjaloor bus stage on 8.8.2018. According to cross examination of PW9 he acted as panch witness in police case for the first time in this case only. PW9 was also subjected to cross examination by the defence, but his evidence has not been shaken either to disbelieve or to discard his testimony. Therefore, this court finds that the evidence of PW9 is believable and can be acted

Page 23 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet upon and he supported the version of PW12 investigating officer regarding apprehending the accused on 8.8.2018 at Gunjaloor bus stage and recovery of Rs.12,000/- from the possession of accused. No explanation was offered by the accused for possessing MO.1. Even no suggestion was put to PWs9 & 12 by the defence counsel that MO.1 cash exclusively belongs to the accused. In the absence of brining on record any material by the defence, this court believes the version of PWs 9 & 12 regarding seizure of MO.1 ash and it is stolen property and committed theft in the house of the deceased on the date of incident. Therefore, the prosecution also proved the ingredients of Section 380 IPC against the accused beyond all reasonable doubt as such the accused is found guilty for the offences u/s 380 IPC also.

43. The accused placed reliance on the following decisions.

1) Mathura Yadaiah @ Mathura Mahato and others vs State of

Bihar reported on 2002 (6) SCC 451

2) Lallu Manjhi and another vs.State of Jharkhand reported in 2003 AIR- JH.A.R.H.C.R-267.

44. I have given thoughtful consideration to the said decisions and found that they are neither relevant nor useful to the accused defence.

Because, there is no infirmities in the prosecution evidence and the defence has not seriously disputed the presence of PWs 2 to 4 nearby the scene of offence and hearing the cries of PW1 and accused running away from the house of the deceased on seeing PW1 etc.

Page 24 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

45. As a result, Accused is found guilty for the offence u/s 302 and 380 IPC and convicted u/s 235 (2) Cr.P.C for the offence u/s 302 & 380 IPC.

Dictated to Personal Assistant, transcribed by him, corrected and

pronounced by me in the open court on this the 19 th day April, 2024.

PRINCIPAL SESSIONS JUDGE

SURYAPET

46. The accused is questioned with regard to quantum of sentence to be imposed against him for the offence punishable u/s 302 & 380 IPC.

The accused stated that he is having one unmarried sister and there is no other person to look after her and he is the only person to look after her and if he is sent to jail, she will be put to starvation and requested to take a lenient view.

47. Having regard to the facts and circumstances of the case, this

Court is of the considered opinion that it is not a rarest of rare case to impose capital punishment. Therefore, the accused is convicted for the offence punishable u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/-. In default of payment of fine, he shall undergo S.I for a period of six months.

48. Further the accused is also found guilty for the offence u/s 380

IPC and convicted u/s 235(2) of Cr.P.C for said offence and sentenced to undergo R.I for a period of one year and to pay fine of Rs.500/-. In default of payment of fine, the accused shall undergo S.I for a period of one month.

Page 25 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

49. The remand period, if any undergone by the accused shall be given set off u/s 428 of Cr.P.C.

50. Both the substantial sentences shall run concurrently.

51. The accused is informed that an appeal lies to the Hon’ble

High Court for the State of Telangana against the judgment and conviction passed by this court. It is also informed to the accused that if he has no means to prefer an appeal to the Hon’ble High Court, a legal aid counsel will be appointed on his behalf to prefer an appeal.

52. The Mo.1 shall be returned to PW1 after expiry of appeal time.

Dictated to Personal Assistant, transcribed by him, corrected and

pronounced by me in the open court on this the 19 th day April, 2024.

Sd/-

PRINCIPAL SESSIONS JUDGE

SURYAPET

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF PROSECUTION:

PW.1 LW1Akarapu Janamma Complainant and daughter of deceased PW.2 LW2Kathula Madhar Adopted son of deceased and eye witness PW.3 LW3Kathula Nagaiah Grand son of deceased and eye witness PW.4 LW5Meriga Papaiah Eye witness PW.5 LW7Gunti Pullamma Circumstantial witness PW.6 LW8Kodi Ravi Kumar Nephew of deceased and Circumstantial witness PW.7 LW10Raparthi pullaiah Panch for scene of offence and inquest PW.8 LW11Thandu Malsoor Panch for scene of offence & inquest PW.9 LW13Kotha Srinu Panch for confession and recovery PW.10 LW15Dr.BM.MChandra Shekar Conducted post mortem

Page 26 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet examination PW.11 LW16L.Pandu Naik 1st investigating officer PW.12 LW17S.Shiva Shanakr 2ND investigating officer

WITNESSES EXAMINED ON BEHALF OF DEFENCE:

None

EXHIBITS MARKED ON BEHALF OF PROSECUTION:

Ex.P1 Complaint Ex.P2 Signature of PW7 on scene of offence panchanama Ex.P3 Rough sketch Ex.P4 Signature of PW7 on inquest panchanama Ex.P5 Scene of offence panchanama Ex.P6 Rough sketch Ex.P7 Inquest report Ex.P8 Admissible portion of confessional panchanama Ex.P9 Post Mortem Examination Report Ex.P10 FIR

EXHIBITS MARKED ON BEHALF OF DEFENCE:

-Nil-

MATERIAL OBJECTS MARKED:

MO.1 Cash of Rs.12,000/-

Sd/-

PRINCIPAL SESSIONS JUDGE

SURYAPET

Page 1 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE: SURYAPET

(DATED THIS 19th DAY OF APRIL, 2024)

PRESENT: SRI G.RAJA GOPAL,

PRINCIPAL SESSIONS JUDGE:

SESSIONS CASE No. 108 OF 2019

IN

P.R.C.No. 99 OF 2018

(ON THE FILE OF A.J.F.C.M., SURYAPET)

IN CRIME No.90/2018 (P.S. Mothey )

Name of the Station House : The Inspector of Police, Munagala Officer Circle Name of the Committal : Addl.Judicial Magistrate of First Class, Court Suryapet. Names of the accused:

Daida Mahender S/o Venkanna, Age:20 years, Occ; Driver, R/o Namavaram village, Mothey Mandal, Suryapet District.

Offences charged : Under Sections 302 and 380 IPC.

Plea of the accused : Pleaded not guilty. Finding of the Judge : Accused found guilty for the offences u/s 302 and 380 IPC.

Sentence or order The accused is convicted for the offence punishable u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/-.

In default of payment of fine, he shall undergo S.I for a period of Six months.

Further the accused is also found guilty for the offence u/s 380

IPC and convicted u/s 235(2) of

Page 2 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

Cr.P.C for said offence and sentenced to undergo R.I for a period of one year and to pay fine of Rs.500/-. In default of payment of fine, the accused shall undergo S.I for a period of one month.

The remand period, if any undergone by the accused shall be given set off u/s 428 of Cr.P.C.

Both the substantial sentences shall run concurrently.

The accused is informed that an appeal lies to the Hon’ble High Court for the State of Telangana against the judgment and conviction passed by this court. It is also informed to the accused that if he has no means to prefer an appeal to the Hon’ble High Court, a legal aid counsel will be appointed on his behalf to prefer an appeal.

The Mo.1 shall be returned to PW1 after expiry of appeal time. Whether the accused is : Yes. defended during trial? By Sri. Bagala Narsimha, Counsel for whom? accused

N.B: Sri Kompelly Lingaiah, Public Prosecutor has conducted the prosecution case.

Page 3 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

J U D G M E N T

1. The State represented by Circle Inspector of Police, Munagala circle has filed charge sheet against the accused herein in Crime

No.90/2018 of Mothey P.S for offences under Sections 302 and 380 IPC.

2. The brief averments of the prosecution case is that the accused who is grandson of the deceased insisted the deceased to give some money out of Rs.30,000/- which was borrowed by the deceased from one G.Pullamma and when the deceased refused to give the money, the accused on 5.8.2018 at 17.00 hours killed the deceased by pressing her throat. Therefore, PW1 lodged a complaint/Ex.P1 before police requesting to take necessary action against the accused.

3. Basing on the said complaint/ Ex.P1 a case was registered in

Cr.No.90/2018 for the offence u/s 302 and 380 IPC and issued FIR to all concerned and investigation was initiated. Later, the investigation was conducted and after completion of investigation charge sheet was laid against the accused.

4. The learned Addl.Judicial First Class Magistrate, Suryapet took cognizance for the offence under Sections 302 and 380 IPC, against

Accused.

5. On appearance of the accused learned Magistrate furnished copies of case documents to them as required u/s 207Cr.P.C. After following due procedure, the case was committed to the then Principal

Page 4 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

Sessions Court, Nalgonda vide PRC No.99/2018 since the alleged offence

under Section 302 IPC is exclusively triable by Court of Sessions and in turn the Principal Sessions Court, Nalgonda made over the case to this Court (the then II Addl.Dist. & Sessions Judge, Suryapet) for disposal according to law.

6. On appearance of accused and upon hearing both sides charges for the offences u/s 302 and 380 IPC have been framed against the sole accused. The charges have been read over and explained to the accused for which he pleaded not guilty and claimed to be tried.

7. During the trial, PWs1 to 12 are examined, Ex.P1 to P10 and

MO.1 have been marked on behalf of the prosecution.

8. After closure of prosecution evidence, Accused is examined u/s 313 Cr.P.C by explaining the incriminating circumstances available against him in the evidence adduced on behalf of prosecution for which the accused denied the same and he did not choose to adduce any defence evidence on his behalf.

9. Heard arguments from both sides.

10. Now the points that arise for determination are:

1) “Whether the prosecution is able bring home the guilt of the accused for the offences u/s 302 and 380 IPC beyond all reasonable doubt?”

2) To what relief?

Page 5 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

11. POINT:To substantiate the case of the prosecution as many as 12 witnesses have been examined on behalf of the prosecution.

PW1 is the defacto complainant and daughter of the deceased. PW2 is adopted son of the deceased and an eye witness. PW3 is grandson of the deceased and son of PW2 and he is also an eye witness. PW4 is an eye witness. PWs 5 & 6 are circumstantial witnesses. PWs 7 &8 are panch witnesses for scene of offence and inquest of the deceased. PW9 is panch for confession of the accused and recovery of MO.1 cash of Rs.12,000/-.

PW10 is medical officer who conducted post mortem examination on the dead body of the deceased. PW11 and 12 are police officials and investigating officers.

The story of the prosecution as unfolded by the testimony of prosecution witnesses, in brief, is as under:

12. PW1 Smt.Akarapu Janamma is the defacto complainant and she set the criminal law into motion by lodging Ex.P1 before PW11 and she is daughter of the deceased. According to her evidence, she lives with her deceased mother along with PWs 2 & 3. Her mother/ deceased was owning some agricultural land and she borrowed an amount of Rs.30,000/- from

Gunti Pullamam (PW5) of their village for purchase of bulls and said amount was kept with her deceased mother. The accused has seen about borrowing of the said money and he came to their house and insisted the deceased to give the said amount to him and the deceased did not give the amount to the accused. About five years ago on one day PW1 went to

Page 6 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

Chandupatla village to attend a funeral by leaving her mother along in the house. On the same day she returned home at around 5.00 pm and found the accused in their house. When she questioned the accused why he came to their house, then the accused ran away. While the accused running away from their house PWs 2 to 4, Lw4 & LW6 have seen the accused.

Then, PW1 entered into their house and found dead body of her mother.

She also found injuries on both sides of neck and oozing of blood from her ear. She further deposed that the accused resorted to kill her mother for not giving money to him. On search she could not found Rs.30,000/- in their house. Therefore, she lodged complaint before police Mothey for taking necessary action. Ex./P1 is the report lodged by PW1 before the PW11 who is the then A.S.I of police, Mothey, P.S. On perusal of the recitals of Ex.P1, it is found that the same are corroborating with the oral evidence of PW1.

13. Basing on Ex.P1 report lodged by PW1, PW11 registered a case in Cr.No.90/2018 on 6.8.2018 u/s 302 and 380 IPC and issued FIR to all concerned vide Ex.P10m and handed over CD file to PW12 for investigation.

14. PW12 is investigating officer and according to his evidence, he is the then C.I of police, Munagala circle at the relevant point of time. After registration of FIR by PW11, he informed the same to him. Immediately, he rushed to the scene of offence situated at Namavaram village, Mothey

Mandal, Suryapet District and conducted scene of offence panchanama in the presence of PWs7 & 8 vide Ex.P5 and he also examined and recorded

Page 7 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet statements of Pws 2 to 6, LWs4, 6 and 9. He held inquest over the dead body of the deceased in the presence of same mediators vide Ex.P7. He got shifted the dead body to government hospital, Suryapet for conducting post mortem examination and accordingly, PW10 conducted post mortem examination and furnished his report vide Ex.P9. Later, he handed over the dead body to the daughter of the deceased i.e. PW1. On 8.8.2018, he received credible information from Gunjaloor bus stage stating that the accused is available at that place. Immediately, he secured mediators namely PW9 and LW14, rushed to that place along with mediators and apprehended the accused. On interrogation, the accused confessed the commission of offence before the mediators. He got recorded confessional statement of the accused and seized cash of Rs.12,000/- (MO.1) from the possession of accused under cover of Ex.P8. Later, he brought the accused to police station, effected his arrest and sent him for judicial remand. After completion of investigation, he filed the charge sheet against the sole accused herein.

15. PW2 is adopted son of the deceased. He deposed that PW3 is his son and both of them have migrated to Hyderabad for their livelihood.

PW1 used to say along with his deceased mother. 10 days prior to death of his deceased mother, he along with his son PW3 came to their village i.e.

Namavaram to cultivate their land. His deceased mother borrowed an amount of Rs.30,000/- from PW5 of their village for the purpose of purchasing bullocks and the said amount was kept with her. The accused

Page 8 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet has seen about borrowing of said money, came to their house and asked his mother to give money to him for which his deceased mother refused and the said incident took place about four years ago. After two or three days, the accused came to their house in drunken condition and demanded money from his mother and also threatened her with dire consequences if she does not give money to him. Then, PW1 sent the accused away saying that why they should give money to him. On the date of incident, himself and his son

PW3 went to their agricultural field and PW1 went to Chandupatla village to attend a funeral of their relative by leaving their deceased mother alone.

About 4.00 pm himself and his son/PW3 returned from fields and chitchatting with their caste people namely Daida Lingaiah LW4, Merige Papaiah PW4,

Kathula Venkanna, LW6 etc. By the time PW1 also returned home from

Chandupatla village. On seeing them, the accused ran away from their house. Then, they entered into their house and found the dead body of his mother with injuries on either side of the neck and blood oozing out from her ear. PW2 further deposed that the accused killed his mother for not giving money by the deceased. Out of Rs.30,000/- the accused has taken away half of the amount and the remaining amount was lying in the house and that the accused is responsible for the murder of his mother.

16. PW3 is son of PW2 and grandson of PW3. H also deposed on the similar lines with that of his father on material particulars. Though, PW2 did not state about hearing cries of PW1, however, Pw3 deposed that PW1 after returning from Chandupatla village at about 5.00 pm he heard voice of

Page 9 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

PW1 stating that “Yendi Maa Intlaku Vachinaav” and at the same time, the accused ran away from their house. On hearing the cries of PW1, all of them rushed to their house and found dead body of his grandmother with injuries. He further deposed that on verification an amount of Rs.30,000/- borrowed by the deceased, they found only an amount of Rs.17,400/- and the remaining amount of Rs.12,600/- was taken away by the accused.

17. PW4 is a resident of Namavaram village, Mothey Mandal,

Suryapet District and he is an eye witness. According to his evidence, PW1 lives with the deceased and the deceased used to look after her family affairs and she is having agricultural land. He also deposed that the deceased borrowed an amount of Rs.30,000/- from PW5 for the purpose of purchasing bullocks for their agricultural operations and kept the amount with her. The accused asked the deceased to give the said money to him.

The deceased refused to give. After two or three days again, the accused went to the deceased and demanded the said money. On that day Pw1 went to Chandupatla village to attend a funeral. He also deposed that on the date of incident, he along with Pws2, 3, LW4 and LW6 were chit chatting on road in their village, at the same time, PW1 returned back from Chandupatla village and went into their house at about 5.00 pm. He further deposed that

PW1 raised hues and crises and on hearing the cries they rushed to the house of the deceased and at that time, they noticed that the accused running away from the house of the deceased. He found dead body of the deceased with injuries on her both sides of neck and blood oozed out from

Page 10 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet neck. The accused killed the deceased for not giving money to him by the deceased and that they found only Rs.17,000/- and odd in the house of the deceased and the remaining amount of Rs.12,000/- and odd was not found.

18. PW5 is also resident of Namavaram village. She deposed that the deceased died about 5 ½ years ago as on the date of her evidence and 10 days prior to her death the deceased approached her and borrowed an amount of Rs.30,000/-for their agricultural purpose by executing a promissory note in her favour.

19. PW6 is nephew of the deceased and circumstantial witness and his evidence is only hear say evidence since PW1 informed the alleged incident of murder of her mother to him.

20. PW7 is a panch witness for scene of offence and inquest held on the dead body of the deceased, but he did not support the prosecution case. His signatures on scene of offence panchanama and rough sketch of scene of offence are marked as Ex.P2 and P3 and his signature on inquest report is marked as Ex.P4.

21. PW8 is another panch witness for scene of offence and inquest and he supported prosecution version and corroborated the version of PW12 investigating officer regarding observing the scene of offence and drawing a rough sketch of scene of offence under Ex.P5 & P6 respectivelyand holding inquest over the dead body of the deceased under Ex.P7.

Page 11 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

22. PW9 is the then V.R.A of Namavaram village, Mothey Mandal,

Suryapet District and he is one of the panch witness to the confessional statement of the accused and recovery of MO.1 i.e. cash of Rs.12,000/- from the possession of the accused. According to his evidence on 8.8.2018, police Mothey have requested him and another mediator i.e. LW14 to come to Gunjalooru bus stage. Accordingly, he along with another mediator rushed to the said place at about 10.30 am where the police and accused were present. Police disclosed to them that the accused herein is suspected in a murder case. On the request of police, both the mediators enquired the accused why he was in the custody of the police, then the accused voluntarily confessed that he is close relative of deceased and on 5.8.2018 during evening hours he entered into the house of deceased and killed her for gain by pressing her throat and due to fear he ran away from that place and that on 8.8.2018 he was apprehended by the police. PW8 further deposed that the police have seized an amount of Rs.12,000/- from the possession of accused under cover of Ex.P8 which is admissible portion of confessional cum seizure panchanama. The alleged confession was made by the accused before the PW9 and other mediator in the presence of police. Therefore, the said confession of the accused is not admissible in the evidence in view of Section 25 of the Indian Evidence Act. As such, only admissible portion of confessional statement of the accused regarding seizure of MO.1 cash of Rs.12,000/- is marked as Ex.P8. thus, the evidence of PW9 to the extent of recovery of MO.1 cash of Rs.12,000/- only is

Page 12 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet admissible portion, as such, the same shall be taken into consideration for just conclusion.

23. Pw10 is medical officer, who conducted inquest over the dead body of the deceased on 6.8.2018 and issued post mortem examination report vide Ex.P9. He opined that the cause of death of the deceased to the best of his knowledge and believe was due to Asphyxia due to strangulation and approximate time of death is 12 to 24 hours prior to post mortem examination.

24. Basing on the above evidence available on record, the submission of the learned Public Prosecutor is that the prosecution has proved its case against the accused for the offence u/s 302 and 380 IPC beyond all reasonable doubt since PW1 has categorically deposed as well as stated in her Ex.P1 report that on the date of incident she returned home at around 5.00 pm after attending funeral at Chandupatla village and found the accused in their house and when she questioned the accused about his presence in their house, he ran away and when she entered into their house she found dead body of her mother with injuries and that her evidence is supported by PWS 2 to 4 and by examining PW5 the prosecution has proved borrowing the amount of Rs.30,000/- from her by the deceased. He further argued that the accused is known person and relative of the deceased family and when he asked the deceased to give the money borrowed from PW5, she refused and that the accused killed the deceased by strangulation for not giving money. The medical evidence of PW10

Page 13 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet coupled with Ex.P9 supports that the deceased was died due to asphyxia due to strangulation. As such, the prosecution has proved its case for the offence 302 IPC since except the accused no one has committed the offence and the accused was found by PW1 in their house soon after the incident of killing the deceased. The learned Public Prosecutor further argued that the prosecution also proved the seizure of MO.1 cash of

Rs.12,000/- from the possession of the accused under cover of Ex.P8 panchanama which was taken away from the house of the deceased out of

Rs.30,000/- and the remaining amount of Rs.17,400/- was found in the house of the deceased after committing theft of rs.12,000/- and odd by the accused. Thus, the prosecution has proved its case against the accused for the offence us/ 380 IPC. Therefore, the Public Prosecutor submitted to convict the accused fro the offence punishable u/s 302 and 380 IPC.

25. Per contra, the learned defence counsel argued that there is no scientific evidence on behalf of the prosecution and that PW12 investigating officer categorically admitted that he did not collect any scientific evidence from the scene of offence including collection of chance finger prints from the dead body of the deceased and that the prosecution did not collect any promissory note or any other document form PW5 allegedly executed by the deceased to prove the borrowing of money by the deceased from PW5. It is further contended that the deceased was 90 year old lady and pW1 is looking after her mother and that pW1 might have killed the deceased since deceased was old aged and she was unable to see the

Page 14 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet welfare of the deceased and that having killed the deceased by PW1, she foisted a false case against the accused only to escape from her criminal liability. It is further argued that since there is no scientific evidence to prove the accused has committed the alleged offence, as such, the prosecution miserably failed to prove the guilt of the accused beyond all reasonable doubt for the charges leveled against him and that he is entitled for clean acquittal since the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt.

26. In view of the rival contention of both the prosecution and defence now it is just and essential to scrutinize the cross examination of prosecution witnesses to ascertain whether their evidence has been shaken or not, whether they are trustworthy and whether this court can act upon their evidence or not.

27. The undisputed facts of the case are that the accused, deceased, PWs 1 to 3 are residents of Namavaram village, Mothey mandal of Suryapet District. Further, the accused is related to the deceased family.

Therefore, there is no dispute regarding identity of the accused. Here it is pertinent to mention that it is not the case of the defence that there was animosity between the accused and PW1 and others and taking advantage of death of the deceased a false case has been foisted against the accused.

Even no suggestion was put to the prosecution witnesses by the defence that a false case has been foisted against the accused due to animosity or disputes in between the family of accused and deceased.

Page 15 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

28. The motive behind the commission of the offence according to prosecution is that the deceased borrowed an amount of Rs.30,000/- from

PW5 for the purpose of purchasing bullocks for their agriculture purpose. It is not the case of the defence that the deceased has no land at all.

According to cross examination of PW1 her mother was owning Ac.3.00 gts of land. But whereas PW2 deposed that the deceased owned Ac.2.00 gts of land. Whatever extent of the land it was, but the deceased was owning agriculture land and it is not disputed by accused. To prove the borrowing of money of Rs.30,000/- by the deceased, the prosecution has examined PW5 who deposed about lending of amount of Rs.30,000/- to the deceased for their agriculture purpose on execution of a promissory note and that the deceased borrowed amounts 10 days prior to her death. Though, PW5 was cross examined at length but nothing worthwhile could be elicited from her mouth to disbelieve her evidence or to discard her testimony. The submission of the defence is that the prosecution has not filed the so called promissory note executed by the deceased in favour of PW5. Mere non filing of the so called promissory note by the prosecution it is not a fatal to the case of the prosecution. Because PW5 simply deposed about borrowing of Rs.30,000/- by the deceased from her 10 days prior to her death and she did not depose any incriminating evidence of whatsoever against the accused herein. Therefore, the evidence of PW5 can be relied upon and can be acted upon by this court. Thus, from the evidence of PW5 it is crystal clear that she advanced an amount of Rs.30,000/- to the deceased 10 days

Page 16 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet prior to her death for their agriculture purpose. The accused demanded the deceased to give money to him, however, the deceased refused to give money to accused.

29. Now another point to be considered is whether the prosecution is able to connect the accused to the crime. As could be seen from the evidence of PWs 1 to 3 on the date of incident PW1 went to Chandupatla village to attend a funeral and whereas Pws 2 & 3 went to their agricultural operations. PW1 returned to home at Namavaram village at around 5.00 pm and found the accused in their house. In Ex.P1 also the same has been mentioned categorically. As per the recitals of Ex.P1 on seeing PW1, the accused ran away and the same was witnessed by PWS 2 to 4 and Lw4 &

LW6. According to PWs 2 & 3 on the day of incident they returned from fields at about 4.00 pm and chit chatting with their caste people i.e. PW4,

Lw4 and LW6 and that they saw while the accused running away from their house. PW4 corroborated the said version of PWs 1 to 3. Thereafter, after entering into house by PW1 she found the dead body of her mother with injuries on both sides of neck and oozing out blood from her ear. Thus, from the evidence of PWs 1 to 4 it is crystal clear that at the time of incident, the deceased was alone in her house since PW1 went to Chandupatla village to attend a funeral and whereas PWs 2 & 3 went to their agricultural fields.

Taking advantage of loneliness of the deceased and knowing that she is having money with her, the accused entered into the house of the deceased and resorted to kill her. Though PWs 1 to 4 were subjected to cross

Page 17 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet examination by the defence counsel but nothing worthwhile could be elicited from their mouth either to disbelieve their evidence or to discard their testimony. In other words their evidence has not been shaken by the defence.

30. There is no scope in criminal justice system for mere assumptions and presumptions. Because, in this case, the accused has taken a defence that the deceased was 90 years old lady and PW1 is also a 70 years lady and that PW1 due to her old age unable to see the welfare of the deceased, as such, PW1 might have killed her mother and to escape from criminal liability PW1 foisted a false case against the accused herein.

The said defence is not believable since nothing could be elicited from the prosecution witnesses to foist a false case against the accused because as already discussed above there is no enmity or disputes between the accused and deceased family members to implicate him in a false case.

Therefore, the defence taken by the accused is found to be false.

31. Now another question arises whether it was a natural death or a homicidal death. As could be seen from the evidence of PW10 coupled with Ex.P9 post mortem examination report the cause of death of the deceased was due to asphyxia due to strangulation. Pw10 also found a ligature mark anterior aspect of neck, two marks of right side and one mark on left side and that the said injuries are ante mortem. PWs 1 to 3 also categorically deposed that the deceased was found dead with injuries on both sides of neck. The said fact also recited in Ex.P1. The name of the

Page 18 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet accused also mentioned in Ex.P1 first report of PW1 and Ex.P10 FIR. The

FIR was registered on the same day of incident, therefore, implication of the accused in this case can be ruled out safely without any hesitation.

Therefore, it is not a natural death and it is a homicidal death.

32. On the date of incident when PW1 entered into their house, she could not found any other person except the accused. Therefore, in the circumstances of the case, it can be ruled out that some other person might have killed the deceased and the finger pointing out towards the accused only. There is no doubt that neither Pw1 nor other prosecution witnesses have witnessed the actual killing of the deceased by the accused. However, the accused was found in the house of the deceased when PW1 entered into their house on the date of incident at about 5.00 pm. Therefore, in the circumstances of the case, it is important to refer Section 106 of Evidence

Act as it is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.

33. The principle lays down general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience.

Page 19 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

34. In Trimukh Maroti Kirkan vs. State of Maharashtra, 2006 (10) SCC 681, The Hon’ble Supreme Court was considering a similar case of homicidal death in the confined house. The following observations are considered relevant in thefacts of the present case:

“14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be lead or at any rate extremely difficult to be lead.

The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The

Illustration given to Section 106 of Evidence Act are as under:

a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

Page 20 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

(b) A is charged with travelling on a railway without ticket.

The burden of proving that he had a ticket is on him.”

35. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be lead by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simple keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

36. Once, the prosecution established a prima-facie case of homicidal death of the deceased, the accused were obliged to furnish some explanation under Section 313 Cr.P.C with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased.

37. Under Section 101 of the Evidence Act, whoever desires any

Court to give a judgment as to a liability dependent on the existence of facts, he must prove that those facts exist. Therefore, the burden is always on the prosecution to bring home the guilt of the accused beyond a reasonable

Page 21 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet doubt. Thus, Section 106 constitutes an exception to Section 101. On the issue of applicability of Section 106 of the Evidence Act, there is a classic decision of Apex Court in the case of Shambu Nath Mehra v. The State of

Ajmer (1956) SCR page 199 which has stood the test of time. The relevant part of the said decision reads thus :- “Section 106 is an exception to section 101. Section 101 lays down the general rule about the burden of proof. "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist".

38. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused.

When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.

39. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances.

40. The accused has not given any explanation for his presence in the house of the deceased when PW1 entered into their house and also not given any explanation regarding running away from the scene of offence

Page 22 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet after entering PW1 into their house. Therefore, in view of the above said discussion, it is for the accused to explain the said facts and to prove his innocence.

41. With the foregoing discussion and in view of the oral and documentary evidence available on hand this court finds that the prosecution is able to prove the ingredients of Section 302 of IPC against the accused beyond all reasonable doubt. Accordingly, the accused is found guilty for the offence us/ 302 IPC and convicted u/s 235(2) Cr.P.C.

42. Now coming to the offence us/ 380 IPC, the accused was found in dwelling house of PW1 and deceased. The motive of the accused to enter into the house of the deceased was to take away money of

Rs.30,000/- borrowed by the deceased from PW5. As per Ex.P1 report out of Rs.30,000/- the accused had taken an amount of Rs.12,600/- and left

Rs.17,400/- in the house of the deceased. The stolen property was recovered by PW12 i.e. Rs.12,000/- (MO.1) from the possession of the accused in the presence of two mediators. One of the mediators is examined as PW9. PW9 categorically deposed regarding recovery of MO.1 from possession of accused on the date of apprehending him at Gunjaloor bus stage on 8.8.2018. According to cross examination of PW9 he acted as panch witness in police case for the first time in this case only. PW9 was also subjected to cross examination by the defence, but his evidence has not been shaken either to disbelieve or to discard his testimony. Therefore, this court finds that the evidence of PW9 is believable and can be acted

Page 23 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet upon and he supported the version of PW12 investigating officer regarding apprehending the accused on 8.8.2018 at Gunjaloor bus stage and recovery of Rs.12,000/- from the possession of accused. No explanation was offered by the accused for possessing MO.1. Even no suggestion was put to PWs9 & 12 by the defence counsel that MO.1 cash exclusively belongs to the accused. In the absence of brining on record any material by the defence, this court believes the version of PWs 9 & 12 regarding seizure of MO.1 ash and it is stolen property and committed theft in the house of the deceased on the date of incident. Therefore, the prosecution also proved the ingredients of Section 380 IPC against the accused beyond all reasonable doubt as such the accused is found guilty for the offences u/s 380 IPC also.

43. The accused placed reliance on the following decisions.

1) Mathura Yadaiah @ Mathura Mahato and others vs State of

Bihar reported on 2002 (6) SCC 451

2) Lallu Manjhi and another vs.State of Jharkhand reported in 2003 AIR- JH.A.R.H.C.R-267.

44. I have given thoughtful consideration to the said decisions and found that they are neither relevant nor useful to the accused defence.

Because, there is no infirmities in the prosecution evidence and the defence has not seriously disputed the presence of PWs 2 to 4 nearby the scene of offence and hearing the cries of PW1 and accused running away from the house of the deceased on seeing PW1 etc.

Page 24 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

45. As a result, Accused is found guilty for the offence u/s 302 and 380 IPC and convicted u/s 235 (2) Cr.P.C for the offence u/s 302 & 380 IPC.

Dictated to Personal Assistant, transcribed by him, corrected and

pronounced by me in the open court on this the 19 th day April, 2024.

PRINCIPAL SESSIONS JUDGE

SURYAPET

46. The accused is questioned with regard to quantum of sentence to be imposed against him for the offence punishable u/s 302 & 380 IPC.

The accused stated that he is having one unmarried sister and there is no other person to look after her and he is the only person to look after her and if he is sent to jail, she will be put to starvation and requested to take a lenient view.

47. Having regard to the facts and circumstances of the case, this

Court is of the considered opinion that it is not a rarest of rare case to impose capital punishment. Therefore, the accused is convicted for the offence punishable u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/-. In default of payment of fine, he shall undergo S.I for a period of six months.

48. Further the accused is also found guilty for the offence u/s 380

IPC and convicted u/s 235(2) of Cr.P.C for said offence and sentenced to undergo R.I for a period of one year and to pay fine of Rs.500/-. In default of payment of fine, the accused shall undergo S.I for a period of one month.

Page 25 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet

49. The remand period, if any undergone by the accused shall be given set off u/s 428 of Cr.P.C.

50. Both the substantial sentences shall run concurrently.

51. The accused is informed that an appeal lies to the Hon’ble

High Court for the State of Telangana against the judgment and conviction passed by this court. It is also informed to the accused that if he has no means to prefer an appeal to the Hon’ble High Court, a legal aid counsel will be appointed on his behalf to prefer an appeal.

52. The Mo.1 shall be returned to PW1 after expiry of appeal time.

Dictated to Personal Assistant, transcribed by him, corrected and

pronounced by me in the open court on this the 19 th day April, 2024.

Sd/-

PRINCIPAL SESSIONS JUDGE

SURYAPET

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF PROSECUTION:

PW.1 LW1Akarapu Janamma Complainant and daughter of deceased PW.2 LW2Kathula Madhar Adopted son of deceased and eye witness PW.3 LW3Kathula Nagaiah Grand son of deceased and eye witness PW.4 LW5Meriga Papaiah Eye witness PW.5 LW7Gunti Pullamma Circumstantial witness PW.6 LW8Kodi Ravi Kumar Nephew of deceased and Circumstantial witness PW.7 LW10Raparthi pullaiah Panch for scene of offence and inquest PW.8 LW11Thandu Malsoor Panch for scene of offence & inquest PW.9 LW13Kotha Srinu Panch for confession and recovery PW.10 LW15Dr.BM.MChandra Shekar Conducted post mortem

Page 26 of 26 S.C.No.108 of 2019 on the file of Prl.Sessions Judge, Suryapet examination PW.11 LW16L.Pandu Naik 1st investigating officer PW.12 LW17S.Shiva Shanakr 2ND investigating officer

WITNESSES EXAMINED ON BEHALF OF DEFENCE:

None

EXHIBITS MARKED ON BEHALF OF PROSECUTION:

Ex.P1 Complaint Ex.P2 Signature of PW7 on scene of offence panchanama Ex.P3 Rough sketch Ex.P4 Signature of PW7 on inquest panchanama Ex.P5 Scene of offence panchanama Ex.P6 Rough sketch Ex.P7 Inquest report Ex.P8 Admissible portion of confessional panchanama Ex.P9 Post Mortem Examination Report Ex.P10 FIR

EXHIBITS MARKED ON BEHALF OF DEFENCE:

-Nil-

MATERIAL OBJECTS MARKED:

MO.1 Cash of Rs.12,000/-

Sd/-

PRINCIPAL SESSIONS JUDGE

SURYAPET

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Faired and prints taken

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE: SURYAPET

PRESENT :- SRI G.RAJA GOPAL

PRINCIPAL SESSIONS JUDGE

(Dated this the 11th day of October, 2023)

CRL. R.P.NO. 3 of 2018

Between

1. Nagabhushanam S/o Narsaiah, Age: 47 years, Occ: VRO Thummalapenpahad, Atmakur (S) mandal, Nalgonda District.

2. Smt.Kosanam Dhanalaxmi W/o K.Venkat Reddy, Age: 39 years, Occ: House Hold R/o Plot No.1, Road No.4K, H.No.4-9-760, Lecturers colony, Hayathnagar, Hyderabad. …Revision petitioners

And

1. Gunthakandla Pitchi Reddy S/o Late Ram Reddy, Age: 80 years, Occ: Agriculture R/o Vidyanagar Colony, Vardhamanukota village, Jajireddygudem (Arvapally) mandal, Nalgonda District.

2. The State through Public Prosecutor, Nalgonda. .

Respondents

ON REVISION AGAINST THE ORDER PASSED BY THE JUDICIAL MAGISTRATE

OF FIRST CLASS, THUNGATHURTHY, DT.23.10.2017

IN

Crl.Mp.No.989/2014

Between:

Gunthakandla Pitchi Reddy S/o Late Ram Reddy, Age: 80 years, Occ: Agriculture R/o Vidyanagar Colony, Vardhamanukota village, Jajireddygudem (Arvapally) mandal, Nalgonda District Petitioners

AND

1. Nagabhushanam S/o Narsaiah, Age: 47 years, Occ: VRO Thummalapenpahad, Atmakur (S) mandal, Nalgonda District.

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2. Smt.Kosanam Dhanalaxmi W/o K.Venkat Reddy, Age: 39 years, Occ: House Hold R/o Plot No.1, Road No.4K, H.No.4-9-760, Lecturers colony, Hayathnagar, Hyderabad. …Respondents

This revision is coming before me for hearing in the presence of Sri M.Ramachandra Rao, Counsel for the revision petitioners No.1 & 2 and of Sri Bagala Narsimha, Counsel for the respondent No.1 and Sri Kompelly Lingaiah, Public Prosecutor for the respondent No.2, and having stood over for consideration till this day this court delivered the following:

O R D E R

1. This revision petition is filed by the revision petitioners/ accused against the respondent/ complainant u/s 397 of Cr.P.C feeling aggrieved by taking of cognizance of the offences u/s 419. 420, 468, 471 r/w 120B IPC against the revision petitioners herein vide order dt: 23.10.2017 in Crl.Mp.no.989/2014 in Cr.No.76/2013 of P.S

Arvapally by the learned Judicial First Class Magistrate, Thungathurthy.

2. The parties hereinafter referred to as shown in the original complaint for the sake of convenience.

3. The grounds of revision petition are as under:

1) That the revision petitioner No.1 is a government employee and attributing of crime against this petitioner in cheating and creating fake documents with the collusion of revision petitioner No.2 is not maintainable. That the revision petitioner No.1 is a public servant and he was discharging his duties at the time of alleged offence. Therefore a permission is required from the government for initiating criminal action against this respondent u/s 197 Cr.P.C.

2) That the 2nd revision petitioner is daughter of respondent No.1/ defacto complainant and respondent No.1 executed a gift settlement deed on 13.12.1999 gifting his land in Sy.No. 474 to an extent of Ac.5.00 gts of land in her favour through

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a registered gift settlement deed document NO.5260/1999 on the file of SRO

Suryapet and the revision petitioner No.1 and the revenue authorities have mutated the survey numbers in favour of revision petitioner No.2 as per the procedure. The order was challenged by the first respondent before the RDO and RDO refused to accept the contention of respondent No.1, thereafter revision petition was preferred

before the Joint Collector, Nalgonda and the same was dismissed. Thus, the case is

of civil nature and the respondent No.1 instead of fighting in civil court came up with his private complaint before J.F.C.M, Thungathurthy. The police have filed a final report stating that offence leveled against these revision petitioners was not found and that final report was filed by police Arvapally in the above crime. On the said final report the police have issued a notice to the respondent No.1 and he filed protest petition before J.F.C.M, Thungathurthy and that the cognizance was taken against the revision petitioners is not sustainable for want of sanction u/s 197 of

Cr.P.C against the revision petitioner No.1.

3) That the 2nd revision petitioner filed civil a case before Junior Civil

Judge, Thungathurthy. Later the same was transferred to Junior Civil Judge,

Suryapet and the same is pending for consideration.

Hence, it is therefore, prayed to set aside the order passed by the J.F.C.M,

Thungathurthy in Crl.Mp.No.989/2014 in Cr.No.76/2013 of P.S Arvapally and cognizance taken by the learned Magistrate against the revision petitioners may be cancelled in the interest of justice.

4. Heard arguments from both sides. Perused the record.

5. Now the points for consideration in this revision petition are:

1) Whether a prima facie case is made out against the revision petitioners for taking cognizance for the offences u/ss 419. 420, 468, 471 r/w 120B

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IPC by the learned J.F.C.M, Thungathurthy vide Crl.Mp.no.989/2014 in Cr.No.76/2013 of P.S Arvapally dt: 23.10.2017?

2) Whether the impugned order of taking cognizance suffers from any irregularities and illegalities? If so, the same is liable to be set aside?

3) To what relief?

6. Points No.1 & 2: Whether a prima facie case is made out against the revision petitioners for taking cognizance for the offences u/ss 419. 420, 468, 471 r/w 120B IPC by the learned J.F.C.M, Thungathurthy vide Crl.Mp.no.989/2014 in Cr.No.76/2013 of P.S Arvapally dt: 23.10.2017? and Whether the impugned order of taking cognizance suffers from any irregularities and illegalities? If so, the same is liable to be set aside?

The record reveals that the revision petitioner No.2 is daughter of respondent

No.1/ defacto complainant. The revision petitioner No.1 s V.R.O of Thummala

Penpahad of Athmakur (S) village, Suryapet District. Originally the revision petition was filed against respondent No.1 and during pendency of the revision petition he died as such his legal heirs were brought on record as respondents No.3 to 6 as per orders in Crl.Mp.No.141/2018 dt: 4.7.2023.

7. The record reveals that the respondent No.1 being defacto complainant filed a complaint u/s 200 Cr.P.C dt: 13.3.2017 against the revision petitioners herein on the file of learned J.F.C.M, Thungathurthy with the following averments.

8. That the complainant is owner and possessor of the land admeasuring

Ac.5.00 gts of land in Sy.No.474 situated at Vardhamanukota revenue village. But the actual physical land is Ac.4.13 gts though it is recorded as Ac.5.00 gts in the records and the same is in possession and enjoyment of the complainant. The remaining Ac.0.27 gts had gone under the road leading from Suryapet to Janagaon

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in the year 1999. The daughter of the complainant revision petitioner No.2/A2 and her husband K.Venkat Reddy insisted the complainant to give Ac.1.00 gts of land in

Sy.NO.474. Accordingly, the complainant gifted Ac.1.00 gts of land to A2 under registered gift settlement deed bearing document No.5260/1999 dt: 13.12.1999. but

A2 obtained gift deed by got mentioning the land as Ac.5.00 gts of land instead of

Ac.1.00 gts of land therein by playing fraud upon the complainant.

9. In the year 2000, A2 created a forged title deed 206225 and sold

Ac.1.00 gts of land through three registered sale deeds on 4.5.2000 to different persons Viz. D.Naga Laxmi, Y.Somaiah and B.Mallaiah respectively.

10. In the year 2011, A2 filed an application u/s 4 of ROR Act for mutation of the land in possession. According to procedure, the Tahsildar has to issue notice to the present possessor of the land calling for objection if any. Likewise, a notice was sent by MRO vide proceedings 5107/2011 dt: 27.5.2011 through VRO-II (A1) to the complainant. A1 having glove in hand with A2 with an intention to grab away

Ac.2.33 gts in Sy.No.474 of the complainant and keeping him away from participating in the proceedings, concealed the facts of notice and forged the signature of the complainant on notice and reported to the MRO as if it was served on him. Based on the said fraud report sent by A1 MRO passed an order in proceedings No.5107/2011, mutated the land in the name of A2. As such, A2 was given pattadar pass book

No.1011068 and patta No.2919 dt: 12.09.2011.

11. That A1 and A2 with an intention to grab the land of the complainant, forged his signatures and got mutated the land in the name of A2 and thereby caused loss to the complainant. A2 created title deed No.206225 without any

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proceeding by the MRO and by forging his signature and with the forged title deed A2 sold the land.

12. That A2 filed a suit for injunction pertaining to land in Sy.No.474 against the complainant and his sons in September 2012 and the complainant was under the shock and dismay. Then, he approached the office of Arvapally for obtaining certified copies of records but they have not issued the same stating that

A2 filed an application not to issue any records pertaining to the land in Sy.NO.474.

Later, the complainant applied for obtaining certified copies of the documents on 17.6.2013 and received the same on 26.2.2013. After going through the documents he came to know that A2 with an intention to grab the land of the complainant, in a much planned manner since 2000 has been creating documents, forging signatures by making false representations, has grabbed the land of complainant and sold his land and thereby caused loss to the property of the complainant. Thus, the acts of the accused attract the ingredients of Section 419, 420, 465, 468, 471 r/w 120B IPC.

As such, the accused are liable for punishment.

13. The learned Judicial Magistrate of First Class, Thungathurthy has referred the said complaint to the SHO, Arvapally u/s 156 (3) of Cr.P.C to register a case and to investigate and file report by 8.8.2013.

14. After receiving the said complaint a case in Cr.NO.76/2013 for the offences u/ss 419, 420, 464, 465, 468, 471 and 120B IPC was registered on 20.07.2013 in P.S Arvapally. The investigating officer conducted investigation in the above crime and filed final report and referred the case as “Mistake of Facts”. Upon receiving the notice in the final result, the defacto complainant constrained to file a

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protest petition before the learned Judicial Magistrate of First Class, Thungathurthy u/s 202 Cr.P.C vide Crl.Mp.No.989/2014.

15. During the course of enquiry before the learned Judicial Magistrate of

First Class, Thungathurthy, the defacto complainant was examined as PW1, one

D.Gangaiah is examined as PW2 and one E.Gangaiah was examined as PW3. PW2 deposed that he went to MRO office once and the Tahsildar obtained his signature on notice and he does not know what that notice was. That form No.8 dt: 27.5.2011 bears his signature. There are no other signatures reflected on that paper. He did not saw Pitchi Reddy i.e. defacto complainant or any of his associates at that office on that day. PW3 also deposed on the similar lines with that of PW2. The complainant got himself examined as PW1 and deposed that he gifted Ac.1.00 gts of land in sy.no.474 to A2. But he came to know through registration office that A2 who is his daughter got entered his total ac.5.00 of land instead of Ac.1.00 gts in sy.no.474 on her name. He did not attest on any mutation in the name of his daughter for the said Ac.4.00 gts. The revenue authorities issued pattadar pass book and title deed for Ac.4.00 gts of land on her name. Out of his ac.4.00 gts he sold

Ac.0.10 gts of land to Kadari Lingaiah and another Ac.0.10 gts of land went under canal, and also received money from the government. The remaining land is in existence. Basing on the above said material the learned Magistrate has passed impugned order of taking cognizance of the offence against A1 and A2. The cryptic impugned order dt: 23.10.2017 is extracted hereunder for the sake of convenience.

“Heard. Perused the material placed before me/ available before me. The complaint so given is taken cognizance for the offence u/s 419, 420, 468, 471 r/w Section 120B of IPC against A1 and A2. Issue summons to A1 and A2. Call on 23.11.2017.”

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16. From the above said cryptic order it is crystal clear that the learned

magistrate without application of mind has passed impugned order without a

speaking order by assigning reasons for taking cognizance of the offence against A1 and A2 and the same is now under challenge by A1 and A2.

17. A perusal of the record available it is found that the defacto complainant has executed a registered gift settlement deed bearing document

No.5260/1999 dt: 13.12.1999 in favour of his daughter i.e. A2 wherein the defacto complainant had gifted Ac.5.00 gts of land in Sy.No.474 situated at Vardhamanukota revenue village of Aravapally mandal. The alleged private complaint was filed on 9.7.2013 after a lapse of near about 14 years delay.

18. As afore said, in the instant case, the FIR was lodged by the complainant after an inordinate and unexplained delay of near about 14 years that too before the Judicial Magistrate of First Class, Thungathurthy by way of a private complaint and the same was referred to police u/s 156 (3) of Cr.P.C and FIR was issued on 20.6.2013 which renders the FIR in this case wholly unreliable. The delay in lodging the FIR corrodes the credibility of the defacto complainant‟s story. The Hon‟ble Supreme Court in several cases held that delay in lodging FIR, court to doubt, if the said delay is not properly explained.

19. In Satpal Singh vs State of Haryana reported on 2010 (8) SCC, the Hon‟ble Supreme Court of India has observed that “This Court has consistently highlighted the reasons, objects and means of prompt lodging of

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FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same for the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety.”

20. In Kishan Singh (D) Thru Lrs vs Gurpal Singh & Ors reported in 2010 (8) SCC 775 the Hon‟ble Supreme Court of India held that with regard to effect of delay in lodging FIR “ that indicates where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal.”

21. In Manoj Kumar Sharma vs State Of Chhatisgarh(2016) 9 SCC the Hon‟ble Supreme Court of India has held that “delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated

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story. In our opinion, such extraordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made therein.”

22. The above said rulings of Hon‟ble Supreme Court of India squarely applicable to the facts of the case on hand. As above discussed, the abnormal delay has not been explained by the defacto complainant and the lodging of complaint by the defacto complainant is only an afterthought.

23. After obtaining the above said registered gift deed by A2 from her father her name was mutated in revenue records as pattadar and possessor of the land covered by the registered gift deed. During the course of investigation in the above crime, the investigating officer has collected documentary evidence more particularly the proceedings of Revenue

Divisional Officer, Suryapet dt: 29.03.2014. The proceedings were initiated at the instance of the defacto complainant i.e. father of A2 challenging the mutation of the land in Sy.No.474 of Vardhamanukota village to an extent of

Ac.4.13 gts of land. After due contest the Revenue Divisional Officer has passed an order as under:

“The lower court mutated the same u/s 5 of the ROR Act duly following the procedure prescribed under the Act and Rules after serving the notice in form No.8 on the appellant i.e. defacto complainant. This court does not find any irregularity in the proceedings of the lower court. R-26 of the Rules 1989 prescribe that pattadar pass book has to be issued for the extent under possession of pattadar. The respondent No.1 who sold Ac.1.00 gts or the said land is entitled for pattadar pass book and title deed after deducting the area sold by her and area acquired for S.R.S.P project. The lower

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court is directed to rectify the extent in pattadar pass book and title deed accordingly.”

24. Accordingly, the appeal filed by the defacto complainant was dismissed. According to the learned counsel for revision petitioners feeling aggrieved by the orders of the revenue divisional officer an appeal was preferred

before the Joint Collector, Nalgonda and the same was also dismissed. The said fact

was not disputed by the respondent /defacto complainant.

25. The submission of the learned counsel for the respondent/ defacto complainant is that revision petitioners/ A1 and A2 have preferred criminal petition

No.13388 and 9703/2013 u/s 482 of Cr.P.C before the Hon‟ble High Court seeking quash of criminal proceedings against them in Cr.nO.76/2013 on the file of SHO

Arvapally P.S and that the Hon„ble High Court pleased to dismiss the said quash petition vide order dt: 18.6.2014. As such, it is contended that since the High Court has not interfered to quash the criminal proceedings against the revision petitioners, therefore, the revision petition is not maintainable and liable to be dismissed. On perusal of the order in the above said criminal petitions it is observed by the Hon‟ble

High Court that A1 is a government servant and A2 is a lady. The dispute undoubtedly has civil flavour, although criminal elements are also found in the case.

Therefore, in the circumstance of the case, the Hon‟ble High Court directed the police not to arrest the accused pending investigation and with a liberty to the police to proceed with the investigation in Cr.mnO.76/2013 of Arvapally P.S Nalgonda District.

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26. After due investigation the police have filed final report as Mistake of

Fact as discussed above. The submission of the learned counsel for revision petitioners is that revision petitioner No.1 in discharge of his official duties has followed the due procedure regarding mutation of the land in favour of the revision petitioner/A2, as such, for prosecution of revision petitioner No.1 a sanction is required form government u/s 197 of Cr.P.C and in this regard he relied on a decision of Hon‟ble Supreme Court of India in Crl.Appeal No.2417/2010 between

A.Srinivasulu vs. State represented by the Inspector of police.

27. Per contra the learned counsel for respondent relied on decision of

Hon‟ble High Court of Telangana in Akarapu Dinesh Chandra Reddy vs The State of

Telangana in Crl.Petition No.2141/2017 and contended that the protection u/s 197

Cr.P.C can be given to a public servant only if it is proved that the alleged act was done only in furtherance of his official duties. It is further contended that the Act of revision petitioner No.1/A1 in mutating the land in favour of revision petitioner

No.2/A2 is not in furtherance of his official duties and he has not followed the due procedure as contemplated under ROR Act. But said contention has no force in view of the orders passed by the Revenue Divisional Officer as referred above and dismissal of appeal filed before the Joint Collector, Nalgonda. Therefore, the citation on which the respondents relied has no application to the case on hand.

28. The learned counsel or the revision petitioners further contended that the dispute is purely civil in nature and admittedly the revision petitioner No.2/A2 filed civil suit against her father / respondent No.1/ defacto complainant and the same is pending on the file of learned Junior Civil Judge, Suryapet. That the pendency of the

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said suit is not denied or disputed by the respondent. It is further contended that in the similar circumstances, the Hon‟ble High Court quashed the criminal proceeding against the alleged accused in Pasupuleti Raviteja vs. State of Andhra Pradesh reported in 2018 (2) HLT (Crl) 504 and the revision petitions also relied on a decision of Hon‟ble Supreme Court of India in Deepak Gaba and others vs. State of U.P and another reported in AIR 2023 sc (Crl.) 214. So also in Ramesh Chandra Gupta vs.

State of U.P and others reported in AIR 2023 SC (Crl.) 224.

29. From the material available on record and by taking into consideration of oral submissions of both parties and memorandum of grounds of revision petition, this court is of the considered opinion that the learned Magistrate has passed a cryptic order without assigning valid reasons for taking cognizance against the revision petitioners for the offences u/s 419, 420, 468, 4781 r/w 120B IPC which is a grave irregularity and the trial court has committed illegality. Further, the revision petitioner No.1/A1 being public servant and he has discharged his duties in furtherance of his official duties and the same was confirmed by the Revenue

Divisional Officer in the appeal filed by the defacto complainant herein. Therefore, for prosecution of petitioner/ A1 being public servant a sanction is required from the government u/s 197 Cr.P.C which is a protection given to the public servant to protect from malicious prosecution.

30. That there was abnormal delay in lodging FIR as discussed above and as observed by the Hon‟ble High Court in quash petition that there is essence of civil flavour and undisputedly a civil suit is pending between the parties herein before the learned junior civil Judge, at Suryapet. In view of the law laid down by the

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constitutional courts discussed above and in view of the material available on record, this court is of the considered opinion that the dispute between parties is purely civil in nature. Therefore no criminal prosecution can be allowed. Accordingly, the point is answered.

31. Point No.3: To what relief?

As a result, the criminal revision petition is allowed, the impugned order dt: 23.10.2017 in Crl.Mp.No.989/2014 in Cr.NO.76/2013 taking cognizance for the offences u/s 419, 420, 468, 471 r/w 120B IPC against the revision petitioners/ A1 and A2 is set aside. Consequently, the protest petition filed by the defacto complainant in Crl.Mp.No.989/2014 is dismissed.

Dictated to Stenographer, transcribed and typed by him, corrected and

pronounced by me in the open Court on this the day of 11 th day of October, 2023.

Sd/-

PRINCIPAL SESSIONS JUDGE

SURYAPET

APPENDIX OF EVIDENCE

--NIL—

Sd/-

PRINCIPAL SESSIONS JUDGE

SURYAPET

Page 1 of 12 Criminal R.P.No.2 OF 2024

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IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE: SURYAPET

PRESENT :- SRI G.RAJA GOPAL

PRINCIPAL SESSIONS JUDGE

(Dated this the 22nd day of April, 2024)

CRL. R.P.NO. 2 of 2024

Between

1. Dr.Gujjula Pratap Reddy S/o Saidi Reddy, Age: 45 years, Occ: Doctor

2. Gujjula Venkata Rami Reddy S/o Saidi Reddy, Age: 50 years, Occ: Business

3. Gujjula Punyavathi W/o Venkata Rami Reddy, Age: 43 years, occ:House hold

4. Gujjula Achamma W/o Saidi Reddy, Age:68 years, Occ: House Hold All R/o Plot NO.11-3-13/1, Sunrise Golden Residency , Ankura Hospital Road, Balaji Nagar, Khammam City and District.

…Appellants/ Respondents

And

1. Dr. Karuna Sri Vanka W/o Gujjula Pratap Reddy D/o V.Venkat Reddy, Age: 42 years, Occ: Doctor

2. Gujjula Sathwik Reddy S/o G.Pratap Reddy, Age: 7 years, Occ: minor rep.by his natural mother and guardian Smt Dr.Karuna Sri Both R/o Dharani Hospital, Huzurnagar Road, Kodad, Suryapet

3. The State rep.by Public Prosecutor, Suryapet.

…Respondents/Aggrieved Parties

ON REVISION AGAINST THE ORDER PASSED BY THE PRINCIPAL JUDICIAL

MAGISTRATE OF FIRST CLASS, AT KODAD, DT.29.01.2024

IN

Crl.Mp.No.159/2023

in

DVC.NO. 29 of 2022

Between:

1. Dr. Karuna Sri Vanka W/o Gujjula Pratap Reddy D/o V.Venkat Reddy, Age: 42 years, Occ: Doctor

2. Gujjula Sathwik Reddy S/o G.Pratap Reddy, Age: 7 years, Occ: minor rep.by his natural mother and guardian Smt Dr.Karuna Sri Both R/o Dharani Hospital, Huzurnagar Road, Kodad, Suryapet

3. The State rep.by Public Prosecutor, Suryapet. …Aggrieved parties.

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AND

1. Dr.Gujjula Pratap Reddy S/o saidi Reddy, Age: 45 years, Occ: Doctor

2. Gujjula Venkata Rami Reddy S/o Saidi Reddy, Age: 50 years, Occ: Business

3. Gujjula Punyavathi W/o Venkata Rami Reddy, Age: 43 years, occ:House hold

4. Gujjula Achamma W/o Saidi Reddy, Age:68 years, Occ: House Hold All R/o Plot NO.11-3-13/1, Sunrise Golden Residency, Ankura Hospital Road, Balaji Nagar, Khammam City and District.

…Respondents

This petition is coming before me for hearing in the presence of Sri M.Ramachandra Rao, Counsel for the Appellants/ Respondents and of Sri S.Ram Reddy, Counsel for the Respondents/ aggrieved parties, and having stood over for consideration till this day this court delivered the following :

O R D E R

1. This criminal revision petition is filed by the revision petitioner u/s 399 of

Cr.P.C feeling aggrieved by the impugned order dt:29.01.2024 in Crl.Mp.No.159/2023 in DVC.NO.29/2022 passed by the learned Principal Judicial Magistrate of First Class, at Kodad.

2. The parties hereinafter referred to as shown in the cause title of the original petition for the convenience sake.

3. The revision petitioners herein are respondents and the respondents herein are petitioners/aggrieved persons before the trial court in Crl.Mp.No.159/2023 in

DVC.NO.29/2022.

4. The petitioners/ aggrieved persons have instituted Crl.Mp.No.159/2023 in DVC.NO.29/2022 u/s 21 of Domestic Violence Act with a prayer to direct the respondents to get the custody of the petitioner’s younger son to the petitioner and further to allow the petitioner to see younger son along with elder son of the petitioner

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on every week till disposal of the main case either at Kodad or at Khammam and spend with younger son whole day in the interest of justice.

The brief averments of the petition filed by the petitioners/ aggrieved persons is as under:

5. The marriage of the petitioner No.1 was solemnized on 8.8.2008 with respondent No.1. The marriage also consummated. Immediately they started their life at rented house at Khammam. During their stay the petitioner No.1 observed that her husband is suspicious character and used to harass her but she adjusted with her husband as they are in dignified medical professions as doctors.

6. That there are no issues to them out of their wedlock for about 2 years due to some problems in both of them. As such, both of them decided to get the children under VIF procedure and petitioner No.1 given birth to male twins in Nice

Hospital, Hyderabad on 23.09.2016 and they were named as Sathwik Reddy and

Karthik Reddy, now they are aged 6 years. That respondent No.1/ husband and his family members developed hatredness on the petitioner No.1 and her children. Her husband got illegal contacts with his sister-in-law which fact also known to his mother.

7. That the respondent No.1/ husband developed ill feelings against the petitioner No.1 by attaching illegal contracts with her colleague doctor Mr. Vijay

Chawan of Khammam where they worked together as doctors. That her husband always insisting for divorce even during her stay with her husband at Khammam. Her husband has fixed his mind set that she married doctor Mr. Vijay Chawan and he tied

Taali to her.

8. From the last two years always her husband not allowing her to see her younger son, and her other son Sathwik Reddy is staying with her and younger son

Karthik Reddy is in the forcible custody of her husband. That her husband and his

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family members totally creating distance with her younger son by not allowing to see him.

9. The harassment of incident started from 17.11.2019 by the respondents and they did not allow her to enter into the marital house. Her husband kept her in a rented house for about 10 days and kept her two children with her younger brother and sister-in-law and not allowed the petitioner No.1 to see them and used to blackmail her by creating havoc on her. The efforts made by her parents for reunion also futile. On 5.12.2019 her husband sent her out Khammam by subjecting her to physical and mental torture by not allowing her to see her children. The efforts made by her to see her children also not materialized. On 17.1.2020 she along with her mother went to see her children at the house of her husband. But they were not in the house, as such she went to the house of husband’s brother where her children were there and her husband followed her to his brother’s house, beat her indiscriminately and caused bleeding injuries, on hearing her cries the neighbour rescued her.

10. It is further averred that her husband totally discontinued to see her children and sent them as promised by him with a pre-plan and with a great difficulty she would be able to give custody of elder son Sathwik Reddy and younger son is in forcible custody of her husband. That her husband is not allowing her elder son

Sathwik Reddy to see his younger son Karthik Reddy. Her husband also threatened her if she makes any venture or lodge any complaint against her husband and his family members he will throw her younger son from the highest floor of the building to kill him. The petitioner apprehending danger and she refrained herself from lodging any complaint against them till date. To her surprise her husband got issued a legal notice for divorce by attaching illegal contracts with her colleague doctor for which she gave a suitable reply.

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11. The petitioner No.1 and her elder son Sathwik Reddy are unable to live without seeing younger son Karthik Reddy and she is unable to see her child without aid and assistance of the court. Her younger son is away from her for the last two years and the separation of her son leading her to commit suicide. Therefore, the petitioner prayed to direct the respondents to give custody of her younger son.

Counter filed by the respondents with the following averments.

12. The relationship between the parties is not disputed by these respondents. These respondents have denied material averments of the petition averments. It is contended that the petitioner NO.1 left the matrimonial house about 3 ½ years back by leaving child i.e. Karthik Reddy at respondent No.1 and she has no love and affection on the child. Ever since the respondent No.1 looking after the welfare of the child and providing amenities to him for his better future. If the court permits to frequent visit custody of the child to the petitioner No.1 she will create so many problems and may cause harmful to the child and his education will be ruined.

Hence, the respondents, therefore, prayed to dismiss the petition in the interest of justice and equity.

13. After hearing arguments from both sides and assessing the material placed before the trial court the impugned order was passed and the petition filed by the petitioner/ wife was allowed granting custody of minor child Karthik Reddy to the petitioner who is in the custody of the respondents. The respondent was given visitation rights to see their child.

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14. Feeling aggrieved by the impugned order passed by the trial court the unsuccessful respondents constrained to file the present criminal revision petition on the following grounds.

1) That the order under appeal is illegal and against the facts of the case and liable to be set aside.

2) The respondent No.1 filed the petition u/s 21 of Domestic Violence Act seeking visitation rights initially to see the minor child by name G. Karthik Reddy on every week pending disposal of the main case at Kodad or at Khammam as the court so generous it has granted the permanent custody of minor child Master Karthik Reddy to the custody of respondent No.1 though such prayer was not made by respondent

No.1.

3) That the children are very much attached to the revision petitioner No.1.

Since November 2018 and thereafter both children are staying with revision petitioner

No.1. But, in the month of Marcy-2020, the respondent No.1 wanted one child to be kept with her and requested the revision petitioner to handover the Sathwik Reddy to her and out of generosity the revision petitioner No.1 allowed Sathwik Reddy to stay with respondent No.1. The respondent No.1 tried to kidnap Karthik Reddy who is staying with revision petitioner No.1 on 17.1.2023 and a case registered against the respondent No.1 and others and the matter was settled before Lok Adalat. That the trial court granting custody of G. Karthik Reddy to respondent NO.1 is illegal and further the relief granted though, without any proper. The child is overmuch attached to the revision petitioner No.1. Further, the respondent No.1 did not choose to take up any step though she aborted the child long back in the month of November 2019.

Thus, the order of the trial court is illegal and improper and liable to be set aside.

Further, the trial court is not having power to order the custody of the child, though the relief is under Guardians and Wards Act.

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Hence, the revision petitioner, therefore, prayed to set aside the impugned order passed in Crl.Mp.No1.59/2023 and allow the revision.

15. Heard arguments from both sides. Bothe parties have filed their written arguments and this court has given thoughtful consideration to the said written arguments.

16. Now the points for consideration in this revision petition are:

1) Whether the respondent No.1 is entitled for child custody as prayed for?

2) To what relief?

17. Point No.1:Whether the respondent No.1 is entitled for child custody as prayed for?

The undisputed facts of the case are that the revision petitioner No.1 and respondent No.1 herein are legally wedded husband and wife, and their marriage took place in 2008. However, no children were born to them naturally. Therefore, through process of IVF, the respondent No.1 gave birth to twins namely G.Sathwik Reddy and

G. Karthik Reddy who were born on 23.09.2016. Disputes arose between husband and wife, as such the respondent NO.1/ wife is residing in Kodad town and whereas the revision petitioner NO.1/ husband is residing at Khammam and both are medical doctors.

18. According to the revision petitioner No.1, in the month of March 2020, the respondent No.1 wanted one child to be kept with her and on her request the revision petitioner No.1 handed over G.Sathwik Reddy (elder son) to her out of generosity and allowed the said G.Sathwik Reddy to stay with the respondent NO.1.

19. While that being so, respondent NO.1/ wife has instituted

DVC.NO.29/2022 on the file of learned Principal Judicial Magistrate of First Class, at

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Kodad and she also filed Crl.Mp.No.159/2023 in the said DVC u/s 21 of Domestic

Violence Act, 2005 seeking custody of her younger son. After due enquiry the learned

Magistrate has passed impugned order now under challenge dt: 29.01.2024 granting

custody of the child/ G.Karthik Reddy who is in the custody of revision petitioner No.1.

The husband was given visitation rights to see their child.

20. The contention of the revision petitioner is that the trial court granted custody of G. Karthik Reddy to the mother is illegal and without any prayer. But, as could be seen from the prayer in the petition the aggrieved person/ mother sought relief of custody of the child alternatively visitation rights. However, the trial court granted custody of the minor to the aggrieved person/ mother and visitation rights were given to the father of the child. It is also contention of the revision petitioner herein that respondent No.1/ aggrieved person also field petition for custody of minor children

before the Judge, Family Court at Khammam vide GWOP.no.22/2023. It is contended

that the criminal court has no jurisdiction to take cognizance of the case the matter is civil in nature and the court should discourage the parties in filing criminal cases and relied on a ruling on Hon’ble Supreme Court i.e. 2019 (1) SCC 762 (but the copy of ruling is not filed for perusal by this court).

21. In Oliver Menazes vs. Serita Theresa Mathias dt: 20.05.2021 the

Hon’ble Court of Karnataka held that as per Section 21 of Domestic Violence Act,

2005, it is observed as follows:

“Domestic Violence Act is a special legislation enacted for the purpose of promoting the family relationship and institution of family. The Act is an intermediary between the civil laws like Guardians and Wards Act, Hindu Minority and Guardianship

Act, Hindu Marriage Act etc., and the criminal laws like Section 361, 498-A IPC or such offences under the Indian Penal Code.”

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22. It is was further held by the Hon’ble High Court of Karnataka that

Section 21 of Domestic Violence Act has a overriding effect on any other law and that temporary custody of the children could not only be dealt within the presiding under the Divorce Act or Guardians and Wards Act.”

23. No doubt the welfare of minor is predominant criteria in granting custody of the child. As held by Apex court in Mrs Elizabeth Dinshaw, Petitioner Vs. Arvand

M.Dinshaw and another relied by the revisions petitioner herein.

24. InAparna Ajinkya Firodia vs Ajinkya Arun Firodia dt: 20.02.2023, the

Hon’ble Supreme Court of India had expressed that best interest of the child should be

invoked. It opined that “ the Phrase “Mankind owes to the child the best it has to give” clearly under lines out duty towards children and entitles them to the best that mankind can give.” This implies that the interest of the child should be given primary consideration in actions involving children. The Hon’ble supreme Court further quoted article 3 of the conventions of the rights of the child which reads as “ In all actions concerning children, whether under taken by public or private, social welfare institutions, courts of law, administrative authorities or legislative bodies the best interest of child shall be primary consideration.”

25. Section 21 of the Domestic Violence Act 2005 deals with custody orders. The same is hereinafter extracted hereunder for ready reference.

“Section.21- Custody Orders: Notwithstanding anything contained in any other law for the time being in force the Magistrate may at any stage of hearing of the application for protection order or any other relief under this Act, grant temporary custody of any child or children to the aggrieved person or the person making an

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application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent.”

26. The aforesaid provision shows that a discretionary power has been given to the Magistrate to grant temporary custody of the child to the aggrieved person (Normally a mother of a child) and simultaneously Magistrate has also has given another discretionary power to specific if the father will have any visitation rights or not.

The proviso appended thereto indicates that if the visitation may result in any harmful effect on the child, the magistrate is bound to decline the rights of visitation. The

Parliament while enacting the law was well aware of the fact that it is the best interest of the child which is supreme and for the proper growth of a child, emotionally contribution of both parents is necessary. Therefore, the parliament though has given discretionary power but at the same time has also provided a parameter under which the said discretionary power for grant of visitation is to be exercised. The Endeavour of the court should be to ensure that child gets love and affection of both the parents.

If father is denied access to child, it will not only be detrimental to father’s right, but obviously it will have an effect on smooth and over all development of child.

27. From the above said provision it is clear that it is the duty of the

Magistrate to look into the best interest of the child and act accordingly to exercise

discretionary power for temporary custody and visitation rights.

28. Here in this case that MasterG.Sathwik Reddy and G. Karthik Reddy are twins. The twins share a primary attachment with irreplaceable and forms a lifelong attachment and bond as well as an indelible identity. Sharing their in utero life is the beginning of their non-verbal communication and their need for closeness. The twins may be very close, very similar in manner, habits and health. Therefore, in the

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circumstances of the case, if the twins are shared by father and mother separately it will badly affects their physiological and psychological growth. It is not a property to share equally by the husband and wife so as to keep one child with the father and another child with the mother.

29. As could be seen from the counter, it is stated that the respondent No.1 herein/ aggrieved person has no love and affection on the child. But, there is no material to substantiate the version of the father of the child. Assuming for a moment that his version is true, then how can he has given the custody of the elder son to the mother. The revision petitioner/ father has not attributed any malafides on the part of the mother of the child and there is no specific pleading in the counter of the father that if the minor child is given custody to the mother any harm or damage will be caused to him.

30. The twins were born in 2016. It means as on date they are eight years bold. In the circumstances of the case, if both the twins are in the custody of the mother. She will take care of the children as she is a practicing Doctor elder son is already in her custody. Therefore, she would be having sufficient means to bring them up in future life by providing food, education and other extra curriculum activities.

Apart from that as discussed above, the twins shall be grown together, then only their physical and mental growth can be in a proper manner. Therefore, the separation of the twins appear to be not a sound one and they should live together.

31. The father of also did not plead that the mother is not taking care of the elder son namely G.Sathwik Reddy. In this regard there is no complaint whatsoever against the mother. Therefore, this court is of the considered opinion that the aggrieved person/ petitioner is entitled for custody of her younger son also in view of

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her pleadings, arguments and legal position. At the same time, the father is entitled for visitation rights as observed by the trial court in its impugned order.

32. Further, Section 29 of Domestic Violence Act, 2005 prescribes preferring of appeal which reads as under:

“Section 29: There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.”

33. Therefore, in view of the above said provision the present revision petition filed u/s 399 Cr.P.C is not maintainable.

34. I have carefully scrutinized the impugned order passed by the trial court and found that no irregularities and illegalities to interfere by this court. Accordingly, the point is answered.

35. Point No.2: To what relief?

As a result, the criminal revision petition is dismissed confirming the impugned order dt:29.01.2024 in Crl.Mp.No.159/2023 in DVC.NO.29/2022passed by the learned Principal Judicial Magistrate of First Class, at Kodad. No costs.

Dictated to Stenographer, transcribed and typed by him, corrected and

pronounced by me in the open Court on this the day of 22ndday of April, 2024.

Sd/-

PRINCIPAL SESSIONS JUDGE

SURYAPET

APPENDIX OF EVIDENCE

--NIL--

Sd/-

PRINCIPAL SESSIONS JUDGE

SURYAPET

Page 1 of 10 Criminal Appeal No.50 OF 2020

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IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE: SURYAPET

PRESENT: - SRI G.RAJA GOPAL,

PRINCIPAL SESSIONS JUDGE

Dated this the 8th day of April, 2024

CRL. APPEAL NO. 50 of 2020

Between

Korrapati Vera Nagaraju @ Vijay @ Vamshi S/o Late Venkateshwar Rao, Age: 36 years, Occ: Car Driver R/o Kundala Market, Chitti Nagar, Vijayawada City.

…Appellant/ Accused

And

The State of Telangana through the S.I of police, Kodad Town P.S, Rep.by Public Prosecutor …Respondent

ON APPEAL AGAINST THE CONVICTION JUDGMENT PASSED BY THE

PRINCIPAL JUDICIAL MAGISTRATE OF FIRST CLASS, KODAD, DATED

07.10.2020

In

CC.NO.1840 of 2020

Between:

The State of Telangana through the S.I of police, Kodad Town P.S, Rep.by Public Prosecutor …Complainant AND

Korrapati Vera Nagaraju @ Vijay @ Vamshi S/o Late Venkateshwar Rao, Age: 36 years, Occ: Car Driver R/o Kundala Market, Chitti Nagar, Vijayawada City.

…Accused

This appeal is coming before me for hearing in the presence of Sri Md.Raheemuddin, Counsel for the Appellant/ Accused and of Sri Kompelly Lingaiah, Public Prosecutor respondent and having stood over for consideration till this day this court delivered the following:

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J U D G M E N T

1. This is an appeal filed by the Appellant/ Accused u/s 374 (3) of Cr.P.C feeling aggrieved by the impugned judgment of conviction and sentence

dt:07.10.2020 in CC.NO.1840 of 2020 passed by the learned Principal Judicial

Magistrate of First Class, Kodad.

2. The parties hereinafter referred to as shown in the charge sheet for the sake of convenience.

3. The State represented by the S.I of police, Kodad Town P.S has filed charge sheet in Cr.No.103/2020 of P.S. Kodad Town against the Accused for the offence u/s 457, 380, 75 or 411 IPC.

5. The learned Principal Judicial Magistrate of First Class, at Kodad had taken cognizance for the offences u/s 457, 380, 75 or 411 IPC against

Accused.

6. On appearance of the Accused copies of the case documents were furnished to him as contemplated u/s 207 of Cr.P.C. Thereafter, the Accused was examined u/s 239 of Cr.P.C by explaining the accusation leveled against him and charges for the offence u/s 457, 380, 75 or 411 IPC were framed, the same were read over to Accused in vernacular language for which he denied the same, pleaded not guilty and claimed to be tried.

7. During the course of trial PWs 1 to 4 were examined and Ex.P1 to

P6 and MOs.1 to 3 were marked on behalf of the prosecution.

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8. After closure of prosecution evidence Accused was examined u/s 313 of Cr.P.C by explaining incriminating circumstances appearing against

Accused in the evidence adduced on behalf of the prosecution. The Accused denied the same and did not choose to adduce any evidence on his behalf.

9. After hearing arguments from both sides and assessing the material available on record, the trial court found the accused guilty for the offence u/s 411 IPC and accordingly he was convicted u/s 248(2) of Cr.P.C and sentenced to undergo R.I for the period of one year and to pay fine of Rs.200/- with default clause.

10. Feeling aggrieved by the impugned judgment of conviction and sentence passed by the trial Court, accused constrained to file the present appeal on the following grounds.

1) That the order of sentence and conviction passed by the trial court is contrary to settled principles of law and liable to be set aside.

2) That the trial court failed to observe that the complainant failed to identify the appellant and through there are material discrepancies, contradictions and omissions in the evidence of prosecution witnesses, the trial court erred in believing the said evidence convicted the appellant.

3) The prosecution is completely based on the evidence of confession statement of appellant which is not admissible in evidence and the mediators only the stock witness of the prosecution.

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4) The trial court did not appreciate the evidence in proper and correct legal perspective manner and wrongly came to a conclusion that the appellant committed the alleged offences.

5) It is submitted that the appellant was kept in judicial custody for a long period even after passing the judgment by trial court, as such the said remand period may be treated as his punishment and prayed to acquit him from the charges by allowing the present appeal.

Hence, the appellant therefore, prayed to set aside the conviction and sentence passed by learned Principal Judicial Magistrate of First Class, Kodad in

CC.NO.1840 of 2020 in the interest of justice.

11. Heard arguments of the respondent/ State. Inspite of granting several opportunities and adjournments and sufficient time, appellant failed to submit his arguments and infact, there was no representation on his behalf in spite of conditional orders. Hence, arguments of the appellant/ accused is treated as heard and the matter is posted for judgment on merits.

12. Now the points that arises for consideration in this appeal are:

1) Whether the prosecution is able to bring home the guilt of the accused for the offences 411 of IPC beyond all reasonable doubt?

2) To what relief?

13. POINT No.1: Whether the prosecution is able to bring home the guilt of the accused for the offences 379 of IPC beyond all reasonable doubt?

To substantiate the case of the prosecution as many as four witnesses were examined before the trial court. PW1 is the defacto complainant

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and victim. PW2 is panch witnesses for the scene of offence. PW3 is the witness for confession cum seizure panchanama. PW4 is the investigating officer.

14. The story of the prosecution as unfolded by the testimony of prosecution witnesses in brief is as under:

15. PW1 is resident of Bhavani Nagar of Kodad town and defacto complainant. According to his evidence on 20.03.2020 he went to his father’s house after keeping his house under lock and key as his wife went to her parent’s house. On the next day i.e. 21.3.2020 at 8.30 am he found main door of his house was broke open. Then, he went inside of his house and found missing of gold necklace (MO.1), gold ear studs (MO.2) and gold Mateelu (MO.3) from the suitcase in the bed room as some unknown offenders committed theft of above gold items value of Rs.60,000/- Then, immediately he gave a complaint to police under Ex.P1 and on the same day he handed over the CC TV footage of his house to the police when they visited his house for observation of scene.

16. Basing on Ex.P1, PW4, the then Sub-Inspector of Police, Kodad

Town P.S has registered a case in Cr.No.103/2020 u/s 457, 380, 75 IPC on 21.3.2020 and issued FIR vide Ex.P6. He has examined PW1, LW2 to 4 at the police station. On the same day, he rushed to the scene of offence by securing

PW2 and LW5 at 2.45 pm where they found back doors of the house of PW1 were broke open and some unknown offenders committed theft of gold articles and also found articles in pell-mell condition in the said room. After observing the scene he prepared scene of offence panchanama and also drawn rough sketch

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vide Ex.P2 and P3 in the presence of the above said mediators on 13.09.2020 during night time, when he was performing patrolling duty along with other staff at mid night at about 12.30 pm a male person came and on seeing them, he tried to escape near gold shop bazaar in Kodad. Then they chased him, apprehended and taken into custody. On interrogation he confessed about the theft in the present case and other cases. Immediately, he secured the presence of PWs5 &

LW6 and recorded confessional panchanama at 1.00 am on 14.09.2020 and seized one gold chain from the possession of accused. Thereafter, the accused took them to Vijayawada to show the stolen property. Then PW4 along with staff and mediators proceeded to Vijayawada along with the accused wherein the accused took them to his house and got the stolen property. Then, PW4 seized the stolen property pertaining to this case i.e. Mos. 1 to 3 and other cases under cover of seizure panchanama vide Ex.P5. Later, he produced him before the court for judicial remand and after completion of investigation, he filed the charge sheet.

17. PW2 is one of the mediators to the scene of offence panchanama and rough sketch of scene of offence under Ex.P2 & P3.

18. PW3 is crucial and important witness who is mediator to the confession and seizure panchanama. According to his evidence on 14.09.2020 at 1.00 am the police Kodad town called him and Lw6 to gold shop market lane,

Kodad, where the police caught hold the accused herein and police asked them to act as panch witness for the confession panchanama. Then, both the mediators enquired with the accused about theft committed in the present case

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and the accused confessed about commission of theft in the present case and other cases at various places. Accordingly, PW4 got typed the confession panchanama through laptop and obtained their signatures on it. PW3 identified the accused in the court hall as that of the said person who confessed before them. The police also seized case property pertaining to this case and other cases from the possession of the accused under cover of confession cum seizure panchanama in their person at 6.30 am. Ex.P4 is confession panchanama and Ex.P5 is seizure panchanama and police Kodad also seized gold chain form the possession of accused at the time of conducting confession panchanama under Ex.P4. PW3 identified MO.1 to 3 which were seized from the possession of accused pertaining to this case.

19. In this case PW1 is defacto complainant and victim. According to him in the absence of himself and his wife on the intervening night of 20/21.3.2020 some unknown offenders have committed theft of MOs1 to 3 from his house kept in a suitcase. On 21.3.2020 at 8.30 am he found missing of MOs 1 to 3 by some unknown offenders by broke opening the door of his house. On the same day he reported the matter before the police by lodging Ex.P1 and on the same day FIR was registered by PW4 and took up investigation. During the course of investigation, he visited the scene of offence in the presence of PW2 and another mediator and observed scene of offence and also drawn rough sketch of scene of offence vide Ex.P2 & P3. Though, PW1 & 2 were subjected cross examination by the accused, but nothing worthwhile could be elicited from their mouth contrary to the case of the prosecution, except putting a suggestion to PW1 that no theft was occurred at his house and he denied the said

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suggestion. Likewise, PW2 denies that he is not native of Bhavaninagar of

Kodad Town.

20. While so, on 13.09.2020 at 12.30 hours while PW4 was on patrolling duty, he found the accused and on seeing the police the said person tried to escape. However, PW4 along with his staff caught hold the accused and on interrogation he confessed and PW4 recorded the confessional statement of accused in the presence of PW3 and another panch witness and also seized a gold chain from the possession of accused, then and there. Later, the accused lead police party and panch witnesses to his house at Vijayawada from where, he produced Mos 1 to 3 and other case properties and the same were seized by

PW4 in the presence of same panchas vide Ex.P5. Pws 3 & 4 also subjected to cross examination by the accused, but nothing could be elicited from their mouth contrary to the case set up by the prosecution except putting a bald suggestion and the same were denied by the witnesses.

21. It is not the case of the accused that Mos 1 to 3 belongs to him.

The accused did not account for possessing MOs 1 to 3 and other valuable properties seized from his house at Vijayawada. Ex.P5 seizure panchanama was conducted at the house of accused in Vijayawada. Since the accused failed to account for possessing Mos.1 to 3 and other gold articles a presumption can be raised u/s 114 of Indian Evidence Act that the man who is in possession of stolen goods either a thief or has received stolen goods knowing them to be stolen unless he can account for possessing the said gold articles.

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22. Here it is important to mention that there is no animosity to PW3 to depose falsehood against the accused herein. Therefore, the evidence of PW3 is believable and his evidence is corroborated by the evidence of PW4. The evidence of PW1 would reveal about commission of theft in the house of PW1.

Thus, considering the facts and circumstances of the case, this court is of the considered opinion that the prosecution could able to establish the ingredients of

Section 411 of IPC against accused beyond reasonable doubt. As such, the accused is found guilty for the offence u/s 411 of IPC.

23. I have carefully scrutinized the impugned judgment passed by the trial court and rightly found not guilty for the offences u/s 457, 380 IPC and also rightly found guilty for the offence u/s 411 IPC and accordingly, he was convicted. Therefore, considering the material available on record, this court is of the considered opinion that there are no reasons or grounds warranting interference of this court with the well reasoned judgment passed by the trial court. Accordingly, the point is answered.

24. POINT NO.2: To what relief?

As a result, the appeal is dismissed confirming the conviction and sentence dt:07.10.2020 in CC.NO.1840 of 2020 passed by the learned Principal

Judicial Magistrate of First Class, Kodad.

The MOs1 to 3 gold and silver articles shall be returned to PW1 after expiry revision time.

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The accused is absent today, as such he is directed to surrender before the trial court within four weeks from the date of this judgment to undergo the imprisonment passed by the trial court, failing which the trial court shall take necessary steps to implement the conviction and sentence passed against the accused.

Dictated to the steno, transcribed and typed by him, corrected and

pronounced by me in the open court on this the 8th day of April, 2024.

Sd/-

PRINCIPAL SESSIONS JUDGE

SURYAPET

APPENDIX OF EVIDENCE

--NIL--

Sd/-

PRINCIPAL SESSIONS JUDGE

SURYAPET