Sri G. Ramakrishna

VI Addl. District and Sessions Judge, Markapur

VI Addl District Court, Markapur · Prakasham · Andhra Pradesh

Sri G. Ramakrishna, VI Addl. District and Sessions Judge, Markapur, is posted at VI Addl District Court, Markapur, Prakasham, Andhra Pradesh, India. 2,034 court orders on record since 2017. 10 judgments with full text available. Primarily handles CRLMP, EP, MVOP cases.

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SC/219/2018 Convicted

Inspector of Police, Markapur vs Gundla Vengalaiah

01 Jun 2020

CALENDER & JUDGMENT

IN THE COURT OF SESSIONS :: PRAKASAM DIVISION :: MARKAPUR

(Before the VI Addl. Dist & Sessions Judge, Markapur)

Present: Sri.G.Rama Krishna VI Addl. Dist & Sessions Judge, Prakasam at Markapur.

Monday, this the 1st day of June, 2020

SESSIONS CASE No.219/2018

(P.R.C.20/2018 of Addl. J.M.F.C. Court, Markapur in Cr.No.20/2018 of Peddaraveedu Police Station)

@ @ @

Name of the police Station : Peddaraveedu P.S.

Name & Description of the Accused : Gundla Vengalaiah S/o late Yogaiah, aged 30 years, caste by Gouda, coolie,

N/o Pragallapadu village, R/o Badveedu village of Peddaraveedu Mandal.

CHARGES : U/Sec. 302 of IPC

PLEA OF THE ACCUSED : Not guilty

SENTENCE OR ORDER : found guilty for the offence punishable under section 304 Part – I of IPC.

In the result, accused is found guilty for the offence punishable Under section 304 Part – I of IPC. Accordingly he is convicted under section 255 (ii)

Cr.P.C. The accused is found not guilty for the offence punishable Under Section 302 of Indian Penal Code. M.Os.1 to 9 and other unmarked non valuable property if any are ordered to be destroyed after expiry of appeal time.

S.C.219 of 20182

With regard to the quantum of sentence when the accused was questioned through video conferencing, for the offence punishable under section 304 Part – I of Indian Penal Code, he submitted that he is having two daughters who were in hostel, now they are with his old aged mother and prayed the court to take lenient view. Keeping in view of the above submission of accused, the accused is sentencedtoundergoRigorous

Imprisonment for a period of 10 years and shall also pay fine of Rs.500/, in default he shall undergo simple imprisonment for a period of one month. The accused is informed about his right to appeal. The remand period under gone by the accused shall be given set off under section 428 of

Cr.P.C. The remand period of accused is from 12.03.2018 to 25.06.2018 and 13.8.2019 to till today i.e., 01.06.2020.

PROSECUTION COUNSEL : Addl. Public Prosecutor.

ACCUSED/DEFENDED BY : Sri. S.Rama Raju (legal aid counsel)

CASE COMMITTED BY : Addl. J.M.F.C. Markapur

D A T E S OF

OFFENCE : 08032018

COMPLAINT : 09032018

APPREHENSION : 15062018

S.C.219 of 20183

COMMITTAL :15062018

COMMENCEMENT OF TRIAL :27012020

CLOSE OF TRIAL :19022020

JUDGMENT :01062020

EXPLANATION FOR THE DELAY:

Add. Judicial Magistrate of First Class, Markapur in his order Dated 15.06.2018 in P.R.C.No.20/2018 on his file has committed the Accused to take his trial before Sessions Court. The Sessions Case was numbered on 05.09.2018. On 13.09.2018 this Sessions case was made over to this court as per Dist. Court proceedings in Dis.No.6346, dated: 12092018 for disposal according to law after framing charges. On 03012020 charge framed against Accused. Schedule was given for commencement of trial from 27012020. Prosecution side evidence closed on 19.02.2020 after examining P.Ws.1 to 19 and marking Exs.P1 to P31 and M.Os.1 to 9. On behalf of accused, no witness was examined and no documents are marked. Arguments concluded by 26.05.2020 and Judgment pronounced on 01.06.2020. Hence delay.

Sd/- Sri.G.Rama Krishna

VI ADDL DIST & SESSIONS JUDGE,

PRAKASAM AT MARKAPUR.

S.C.219 of 20184

IN THE COURT OF SESSIONS: PRAKASAM DIVISION : MARKAPUR.

Present: Sri.G.Rama Krishna VI Addl. Dist. & Sessions Judge, Prakasam at Markapur.

Monday, this the 1st day of June, 2020

SESSIONS CASE No.219/2018

(P.R.C.20/2018 of Addl. J.M.F.C. Court, Markapur in Cr.No.20/2018 of Peddaraveedu Police Station)

Between:

State: Inspector of Police, Markapur circle. .... Complainant.

A N D

Gundla Vengalaiah S/o late Yogaiah, aged 30 years, caste by Gouda, coolie,

N/o Pragallapadu village, R/o Badveedu village of Peddaraveedu Mandal.

.... Accused.

This Sessions case is coming on 2652020 for final hearing before this court in the presence of learned Addl. Public Prosecutor for State and Sri.S.Rama

Raju (legal aid counsel), advocate for Accused and on hearing their arguments and upon perusing the material papers available on record and having stood over to this day for consideration this Court delivered the following:

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

1. The state represented by Inspector of police, Markapur filed charge sheet against the accused Gandla Vengalaiah by making an accusation that during the intervening night of 8/9.3.2018 between 1100 p.m. to 500 a.m. the accused took up a vegetable cutting knife and cut the throat of the deceased (his wife) while she was sleeping on a cot and caused her death.

2. The prosecution case in brief is that K.Lakshmi Devi and Galaiah, the mother and brother of deceased who are residents of Badveedu village of Pedda Araveedu

Mandal performed the marriage of deceased/Nagamani with accused, who is native of Pragallapadu village, in the month of December, 2013. For some time they lived happily and blessed with two daughters. Thereafter the accused addicted to alcohol

S.C.219 of 20185 and used to harass the deceased physically and mentally by suspecting her fidelity.

The accused and deceased lived in different places by doing various coolie works.

Having vexed with the harassment of accused, the deceased went to her parents village. The elders of village and well wishers of deceased pacified the issue, the deceased was sent back to the accused. After some time the accused again started to harass the deceased physically and abused her.

3. On the advice of family members of deceased, the accused shifted his residence to Badveedu village by taking a rented house of Settybothini Badulla on 8.3.2019. There also the accused harassed the deceased by altercating her and also by keeping in mind that the deceased was responsible for shifting the family to

Badveedu village. On the same day even the deceased went to the house of her mother and informed that the accused harassed her since morning. Then the brother and mother of deceased counseled her and advised her to adjust with the accused for some time. On the same day night in between 1100 p.m. to 500 a.m.

the accused cut the throat of deceased with vegetable cutting knife and murdered the deceased.

4. On 9.3.2018 the brother of deceased went to Pedda Araveedu police station around 900 a.m. and lodged a complaint. Based on which I.Raj Kumar the Head

Constable of Pedda Araveedu police station registered a case in Crime No.20/2018 under sections 498A, 302 of Indian Penal Code, submitted the original FIR along with report to the court and copies of FIR to all the officers concerned.

5. The Inspector of police, Markapur M.Bheema Naik on receiving the copy of

FIR, he sent a requisition to Tahsildar, Pedda Araveedu to conduct inquest over the dead body of deceased since the marriage of deceased and accused was performed within 7 years. As the Tahsildar, Pedda Araveedu Mandal was on casual leave,

B.V.Ramana Rao, the Tahsildar of Dornala Mandal was placed as incharge of Pedda

Araveedu Mandal. The Tahsildar visited the scene of offence, examined the

S.C.219 of 20186 witnesses and recorded their statements and conducted inquest over the dead body of deceased in the presence of inquestdars by name Kota Yedukondalu, Pikkili

Yogaiah, N.Sumalatha and prepared the inquest report, P.Siva Kumar the police constable duly attested by the inquestdars.

6.The Inspector of police/investigating officer observed the scene of offence in the presence of mediators K.Yedukondalu and P.Yogaiah, seized the blood stained cement floor and its control and blood stained knife from scene of offence.

He got prepared scene observation report duly attested by the mediators and also got photographed the scene of offence and dead body of deceased through photographer by name G.Naga Sundara Narahari. He prepared rough sketch of scene of offence. After completion of inquest he sent the dead body of deceased to

Govt. Area Hospital, Markapur. Dr.K.S.Dayanidhi, Civil Asst. Surgeon conducted postmortem examination over the dead body of deceased and issued postmortem examination certificate by opining that the deceased would appear to have died of acute blood loos due to throat injury caused with sharp object.

7.The investigating officer examined the witnesses and recorded their 161

Criminal Procedure Code statements through police constable P.Siva Kumar on his dictation. K.Chandra kala the woman police constable of Markapur town police station received the belongings of deceased i.e., two pairs of small gold ear studs, two pairs of silver anklets, gold nose stud, black beats chain, yellow thread with black beats and four red beats along with lock key and light red colour bangle of right hand and two bangles of left hand along with clothes of deceased at the time of conducting postmortem examination, the same were handed over to the Inspector of police. In turn the inspector of police/investigating officer handed over the same except the blood stained clothes of deceased to the brother of deceased under proper acknowledgment.

S.C.219 of 20187

8.On 10.3.2018 he received the photographs and relevant C.D. from the photographer. On 11.3.2018 around 100 p.m. the investigating officer received credible information about the accused. Then he secured the mediators and left his office along with mediators and his staff and reached near Z.P. High School of

Badveedu cherlopalli village at about 130 p.m. On seeing the police vehicle, a person trying to escape from that place. Then the investigating officer caught hold of the said person with the assistance of his staff and brought him before the mediators and interrogated him in the presence of mediators. Then the said person voluntarily confessed about his guilt and then the investigating officer confirmed that he is accused person in this case and recorded his confessional statement under confessional mahazor through L.W.16 G.Galaiah, the head constable duly attested by the mediators. Later he arrested the accused and produced him before the court for judicial remand.

9.Based on the memo filed by the investigating officer the Prl. Junior Civil

Judge, Markapur Sri.B.Sreenivas L.W.17 recorded 164 Criminal Procedure Code

statements of K.Galaiah, Lakshmi Devi the brother and mother of deceased on 17.3.2018. The investigating officer sent the material objects to Regional Forensic

Science Lab Guntur through letter of advice of Sub Divisional Police Officer,

Markapur on12.3.2018 for analysis. Sri.B.Rama Krishna Rao the Scientific Officer,

Regional Forensic Science Lab, Guntur analyzed the material objects and opined that the human blood is detected on item Nos.1, 3 to 9. After completion of investigation, the investigating officer filed charge sheet against the accused for the offence punishable under section 498A and 302 of Indian Penal Code.

10.The learned Addl. Judicial Magistrate of First Class, Markapur had taken cognizance of the offences under sections 498A, 302 or 304B of Indian Penal Code against the accused, the same was numbered as P.R.C.20/2018 on 21.5.2018. On 15.6.2018 in order to comply section 207 of Criminal Procedure Code the case

S.C.219 of 20188 papers were furnished to him. Since the offence under section 302/304B of IPC are exclusively triable by the court of sessions, committed the case to the court of

sessions, Prakasam Division, Ongole under section 209 of Criminal Procedure Code

bypassing committal order dated 2.6.2018. In turn the sessions court numbered the case as S.C.219/2018 and made over to this court for disposal according to law.

11.By virtue of orders in Crl.M.P.517/2018 dated 22.6.2018 i.e., bail petition under section 439 of Cr.P.C., this court enlarged the accused on bail. After receiving summons in this case the accused appeared on hearing dates, but the then counsel not present to submit the arguments with regard to considering the charges. Thereafter continuously the accused also absent. Then this court issued

N.B.W. against him and he was produced before this court on 13.8.2019 by executing N.B.W. Later also the defence counsel not present to proceed with the trial. Therefore, this court addressed a letter to Mandal Legal Services committee,

Markapur. In turn the Chairman, Mandal Legal Services Committee appointed a legal aid counsel by name Sri.S.Rama Raju to defend the accused in this case. On 3.1.2020 on hearing both side this court framed a charge under section 302 Indian

Penal Code against the accused, read over the same to him in telugu. He pleaded guilty with ambiguity. Therefore, his guilt is not accepted, it was treated by this court as not admitting the guilty. Later to prove the case against the accused the prosecution examined P.Ws.1 to 19, Exs.P1 to P31, M.Os.1 to9 are marked. After closer of prosecution side evidence the accused was examined under section 313 of

Cr.P.C. with regard incriminating evidence. No defence witness examined on behalf of accused.

12.Heard both side.

13. Now the point for determination is :

S.C.219 of 20189

Whether the prosecution able to establish the guilt of accused for the offence punishable under section 302 of Indian Penal Code , beyond all reasonable doubt” ?

14.POINT :

In order to establish the guilt against the accused for the offence punishable under section 302 of Indian Penal Code, the prosecution must prove the following facts :With regard to section 302 of IPC is concerned the prosecution has to prove that (1) death of human being as actually taken place; (2) such death has been caused by , or in consequence of, the act of the accused; (3) such act was done with the intention of causing death, or it was done with the intention of causing such bodily injury as (a) the accused knew to be likely to cause death or; (b) sufficient in the ordinary course of nature to cause death or the accused caused death by doing an act known to him to be so imminently dangerous that it must in all probability to cause (a) death or(b) such bodily injury as is likely to cause death the accused hav ing no excuse for incurring the risk of causing such death or injury.

15. In this case death of the deceased by name Nagamani who was wife of accused

Vengalaiah is not in dispute. There are no eye witnesses tosay that they saw the ac cused killing/murder the deceased. The entire case of prosecution is depending on circumstantial evidence.

16. P.W.1 K.Galaiah is no other than the brother, P.W.2 K.Lakshmi Devi is no other than the mother of deceased. Their evidence is that the marriage of accused and deceased was solemnized about 8 or 9 years back from the date of their evidence before the court on 27.1.2020. For one year the accused and deceased lived happily in Pragallapadu village of accused. Thereafter they shifted their residence to various places like Markapur, Ummadivaram, Yerragondapalem etc.

They blessed with two daughters who are aged about5 years and 4 years. One year after the marriage, the accused habituated to consume liquor and used to beat and

S.C.219 of 201810 harass the deceased. P.Ws.1 and 2 placed the matter before the elders, panchayats held by the elders. The accused used to give an assurance that he will not drink and beat the deceased. 4 or 5 days keep quite. Again he used to repeat the harassment. As the deceased told to P.Ws.1 and 2 she is unable to bear the harassment made by the accused towards her, P.Ws.1 and 2 brought the accused and deceased to their village Badveedu along with their children to their house.

There also the accused used to choose consume alcohol and beat the deceased and harassed her.

17. P.W.3 K.Chennaiah came to know through the deceased about the harassment made by the accused towards her, twice admonished the accused.

P.W.4 K.Yogamma is no other than the wife of P.w.3. her evidence is also that there were petty disputes among the accused and deceased. She also advised them not to dispute and live amicably. Thereafter also they continued the disputes. 20 days prior to the death of deceased, the accused and deceased started living in the house of parents of deceased in Badveedu village, there also the accused continued the harassment towards the deceased in drunken state.

18. It is clear from the evidence of P.Ws.1 to 4 that on 8.3.2018 the accused took a separate house to live with the deceased and his two daughters. On that day also the accused beat the deceased which was informed by the deceased to P.Ws.1 and 2.

During the intervening night of 8/9.3.2018 the accused killed the deceased by cutting the throat of deceased and left the house. On the next day morning the neighbour by name S.Nagamani who went to the house of accused and the deceased, called the deceased, as there was no response, she in turn informed the same to P.Ws.1 and 2. Then P.Ws.1 and 2 went there and saw the dead body of deceased with a cut injury on the throat of deceased, so also a knife by the side of her dead body. P.W.1 identified the said knife the prosecution got it marked as

M.O.1. Later he presented a written report (Ex.P1). P.W.18 I.Raj Kumar the then

S.C.219 of 201811

Head constable of Pedda Araveedu police station who was on duty on 9.3.2018 received Ex.P1 report from P.W.1 Galaiah. Based on which he registered a case in

Crime No.20/2018 under section 498A, 302 of Indian Penal Code. Ex.P28 is the original FIR which he submitted to the court and copies to the officers concerned.

In his crossexamination he stated that he registered the FIR at about 900 a.m. on 9.3.2018. After receiving the copy of FIR from Pedda Araveedu police, the then

Inspector of police, Markapur circle M.Bheema Naik (P.W.19), he sent a requisition to the Tahsildar, Pedda Araveedu to conduct inquest over the dead body of deceased.

He had reached the scene of offence and observed the same in the presence of mediators K.Yedukondalu, VRO/P.W.12 and Yogaiah, VRA/P.W.13 and prepared

Ex.P24 scene observation report and seized M.O.1 knife and blood stained earth (Cement floor peaces) M.O.2, and its control (M.O.3) in the presence of mediators referred above. He prepared Ex.P29 rough sketch of scene of offence.

19. Sri.B.V.Ramana Rao P.W.17, the then Tahsildar of Dornala Mandal who was in charge Tahsildar of Pedda Araveedu Mandal from 7.3.2018 to 9.3.2018. On 9.3.2018 he received requisition (Ex.P27) from the Inspector of police, Markapur.

Then he went to the scene of offence around 9.30 a.m. Thereafter he called the VRO

Yedukondalu P.W.12 and VRA Yogaiah P.W.13 and Sumaltha, Anganvadi teacher (P.W.14). In their presence and in the presence of blood relatives of deceased he conducted inquest over the dead body of deceased in between1200 p.m. to 300 p.m. He examined blood relatives of the deceased by name K.Galaiah (P.W.1),

K.Lakshmi Devi (P.W.2), K.Chennaiah (P.W.3), K.Chinna Yogaiah (P.W.4), K.Pedda

Ankaiah (P.W.5), and got recorded their statements through VRO Yedukondalu. In view of the statements of blood relatives of deceased and on observation of dead body, the inquestdars opined that the accused who is husband of deceased cut the throat of deceased thereby murdered the deceased. The inquest report is marked as

Ex.P23. P.Ws.12 to 15 i.e., Yedukondalu VRO, Yogaiah VRA and Sumalatha the

Anganvadi teacher signed on the inquest report. On the requisition submitted by

S.C.219 of 201812 the investigating officer, the learned Prl. Junior Civil Judge, Markapur recorded section 164 Criminal Procedure Code statements of P.Ws.1 and 2 which statements are consistent with their evidence before this court as P.Ws.1 and 2. Since very object of conducting inquest is to know the apparent cause of death of deceased and the inquest proceedings under Ex.P23 coupled with the evidence of P.Ws.1 to 5,

P.Ws.12 to 15 and P.W.17 the Tahsildar, it is clear that the apparent cause of death of deceased is the accused cut the throat of deceased with knife which is marked as

M.O.1. All the above referred witnesses except P.W.17 identified the knife M.O.1 as the weapon. The reason for causing the death of deceased by the accused is that the deceased used to quarrel with the accused whenever the accused consumed liquor and dispute with the deceased, and insisted the accused to stay in the village

Badveedu which the parents place of deceased and also the accused having some suspicion on the deceased, he got anger against the deceased (as could be seenfromEx.P23 inquest report and the statements of witnesses recorded by the

Tahsildar P.W.17).

20. The above referred evidence is not enough to say that the prosecution established the guilt against the accused that he was responsible for the cause of death of deceased and it is homicidal death. After completion of inquest the dead body was sent to medical officer for postmortem examination to know the real cause of death. Dr.K.S.Dayanidhi (P.W.16), the Civil Asst. Surgeon, Area Hospital,

Markapur on receiving the requisition from police on 9.3.2018, conducted post mortem examination on the deceased and found the following external injuries:

At neck region a large lacerated injury over the left side 12X 4 X 2 cm and involving trachea, great vessels and muscles, all of which are cut and dried, blood is seen all over the neck and chest areas.

No injuries on chest and abdomen. All the limbs are intact without any injuries and fractures.

Internal Injuries:

S.C.219 of 201813

A large lacerated injury on left side of neck with fine borders measuring 12 X 4

X 2 cm trachea is cut along with carotid artery, jugular vein and muscles of neck.

He completed the postmortem examination between 400 p.m. to 530 p.m.

He is of the opinion that the deceased would appear to have died of acute blood loss due to cut throat injury caused by a sharp object. Accordingly he issued Ex.P26 is the postmortem certificate. He categorically stated that the cut injury on neck is possible with M.O.1 knife. In his crossexamination he stated that it is possible to cause a cut injury on the neck if a person fallen on any sharp edged weapon. He adds that edges are irregular. From the above medical officer’s evidence, it is clear that by using M.O.1 knife the external and internal injuries noted by the medical officer in Ex.P26 postmortem certificate are possible and the deceased would appear to have died due to acute blood loss and due to throat cut injury.

21. Now it is to be seen who is responsible for causing the cut injury on the throat/neck of deceased.

K.Chandrakala P.W.15 a woman constable was deputed on 9.3.2018 as post mortem constable. After completion of postmortem examination the wearing apparels of deceased i.e., blue (krishna blue) colour saree (M.O.4), same colour blouse (M.O.5), pink colour petty coat (M.O.6), white colour blanket (M.O.7) and red colour pillow (M.O.8) were received by her and in turn she handed over the same to the Inspector of police. She handed over the dead body of deceased to her brother (P.W.1). In turn the investigating officer i.e., Inspector of police P.W.19 sent the material objects on 15.3.2018 to Regional Forensic Science Lab for analysis. On 10.5.2018 he received the report from Regional Forensic Science Lab (Ex.P31) which discloses that a human blood is detected on M.O.1 knife, M.O.2 blood stained cement floor pieces and M.Os.4 to 8, control and blood cement floor pieces which is marked as M.O.2 does not contain any blood stains. The blood is of human origin blood. Though blood group could not determined by the scientific officer

Sri.M.Rama Krishna Rao, but without any hesitation it can be said that it is the

S.C.219 of 201814 blood of deceased, because M.Os.4 to 6 are wearing apparels (clothes) of deceased.

M.Os.7, 8 and 9 are the blanket and pillow which are on the cot on which the deceased was laying. M.O.1 knife which is available by the side of the dead body of deceased which P.Ws.1 to 5 as well as P.Ws.12 to 15 and the investigating officer noticed and seized the same by the investigating officer in the presence of mediators

P.Ws.12 to 15. M.O.9 is the blanket marked through P.W.19.

22.Even then it is not enough to say that the accused is responsible for the death of deceased. The evidence of P.W.1 K.Galaiah brother of deceased and P.W.1

K.Lakshmi Devi the mother of deceased, P.W.4 K.Yogamma, P.W.5 K.Pedda Ankaiah is that on 8.3.2018 the accused and deceased shifted their residence to the house of

Badulla (P.W.6). Till 7.3.2018 they lived along with their children in the house of

P.Ws.1 and 2. On 8.3.2018 also the accused disputed with the deceased. She was beaten by the accused. The deceased went to the house of P.Ws.1 and 2 and informed the same. Later the accused took the deceased to the rented house. On the next day morning on noticing that the deceased not came out from the house to fetch water, they went to the house of accused and deceased and saw the dead body and also noticed a cut injury on the throat of deceased and M.O.1 knife by the side of dead body. P.W.5 in his crossexamination categorically stated that he saw the accused in the house, after his dinner. P.W.6 Satteboyina Badulla evidence is that

P.W.2 took his house on rent for residence of accused and deceased. The rent is

Rs.1000/ per month. The accused and deceased joined in the house on that day.

Next day morning he came to know about the death of deceased. The accused and deceased are having disputes, for that reason Lakshmi Devi P.W.2 the mother of deceased took the house on rent. He also noticed the cut injury on the throat of deceased and M.O.1 knife by the side of deceased. P.W.7 K.Bala Chandrudu is one of the elders, admonished the accused 2 days prior to the murder of deceased as the accused beat and harassed the deceased. Then the accused promised that he will not consume liquor and not raise any disputes. On 8.3.2018 the accused and

S.C.219 of 201815 deceased joined in the house of Badulla/P.W.6. Next day morning he received information that the deceased died. P.W.8 K.Kasaiah evidence is that many times he admonished the accused, but there is no change in the accused. The accused and deceased stayed in the house of P.Ws.1 and 2, the accused used to harass the deceased. Therefore, a separate house was taken for them. On the next day morning he received the information that the accused killed the deceased. He saw on the previous day that is on the date of offence the accused taking the deceased and his daughter from the house of P.W.2 to his rented house. The evidence of

P.W.5 is that he saw the accused in the house, after completion of his dinner. The evidence of P.W.8 that he saw the accused taking the deceased and his daughter from the house of P.Ws.1 and 2 to his rented house is enough to say that during the intervening night of 8/932018 the accused was in the rented house along with deceased. But on the morning of 9.3.2018 he was not in the house. The evidence of

P.Ws.1 and 2 is that the accused is responsible for the death of deceased. He murdered the deceased by cutting the throat of deceased by using M.O.1 knife which is a vegetable cutting knife. P.W.6 also stated that there is a rumor in the village that the accused killed the deceased. P.W.8 stated that he is also having suspicion that the accused killed the deceased. P.W.9 K.Bala Raju came to know through neighbour that the accused killed the deceased, then he went to the rented house i.e., house of Badulla. P.W.10 Subbaiah also came to know through villagers that the accused killed the deceased in the rented house. He also went there and saw the dead body of deceased.

23. At this context it is argued by the learned defence counsel that mere having suspicion and an assumption that the accused is responsible for the cause of death of deceased or rumor that the accused killed the deceased is not enough to come to a conclusion that the accused really murdered the deceased without any direct eye witness. Therefore, the accused is entitled for acquittal at least by giving a benefit of doubt. For that it is argued by the learned Addl. Public Prosecutor that the evidence

S.C.219 of 201816 spoken by the witnesses that there were disputes between the accused and deceased, that the accused used to consume liquor, beat and harassed the deceased. He was admonished by so many people by so many times. On that ground alone a house of Badulla was taken on rent for stay of deceased and accused along with their daughters in Badvedu village which is the village of P.Ws.1 and 2 i.e., brother and mother of deceased. During intervening night of 8/9.3.2018 the deceased and accused and one of their daughter were in the house. On the early hours of 9.3.2018 around 600 a.m. when the deceased was not come out of the house to fetch water, P.Ws.1 and 2 and others went to the rented house of accused and deceased and saw the dead body of deceased with a cut injury on her throat and knife by the side of her dead body and disappearance of accused.

Therefore, it is only the accused, but not any other person having any reason to kill the deceased. Hence the court can safely come to a conclusion that the accused is real culprit who murdered his wife. Therefore, he is liable for conviction. This court find some force in the contention of the learned Addl. Public Prosecutor. This court feels it is right context to refer the answer given by the accused when he was examined under section 228 of Criminal Procedure Code with regard to charge/accusation against him under section 302 of Indian Penal Code. He answered that as follows in telugu : “neram cheyaledu”, again answered that “nene champanu” which means not committed the offence. Again he answered that he killed his wife. Since the above answer given by the accused with regard to charge under section 302 of IPC is not a complete pleading of guilty, this court proceeded with the trial because the answer given by the accused cannot be treated as admitting the guilt. In view of the ambiguity that first the denial and again admitting the guilty. With regard to his 313 Criminal Procedure Code examination he stated that it is true that, “a house of Badulla was taken on rent, but during that night he was not in the house. Again for question he answered that he went to

Markapur for his brotherinlaw” and also answered that, “on suspicion only a case

S.C.219 of 201817 was registered against him”. If the said answers given by the accused during his 313

Criminal Procedure Code examination is true and correct, there must be at least one suggestion to any one of the prosecution witnesses that during the intervening night of 8/9.3.2018 he was not in the house. He was in Markapur. When he took that defence of alibi, it is for the accused to prove it. But absolutely there is no attempt from the side of accused to prove that he was not at scene of offence when the offence took place and he was some where else i.e., at Markapur. Apart from that as referred earlier the evidence of P.Ws.5 and 8 is very clear that they saw the accused while taking the deceased to his rented house (as per the evidence of P.Ws.5) , and he was not in the rented house. He was seen by P.W.8 after completion of the dinner of P.W.8. So the answers given by the accused in the 313 Criminal Procedure Code examination that he was not in the rented house and he was in Markapur is incorrect. As per the evidence of P.W.11 G.Nagasundara Nara Hari the photographer on 9.3.2018 he took the photographs at scene of offecne i.e., house in

Badveedu village, he took 20 photographs which are marked as Exs.P2 to P21.

Ex.P21 is the relevant C.D. he handed over the same to the Inspector of police. The said photographs are giving a clear picture about the scene of offence as well as the situation of the body of deceased with cut injury on her throat and also the knife

M.O.1. The gold and silver articles on the body of deceased were removed and handed over to P.W.1 after completion of inquest. The scene of offence is a bed room covered by 4 walls with a front opening. Certainly it is not a suicide because if it is the deceased committed suicide by cutting her throat by using the knfie, certainly the door must be closed by putting a bolt to the doors from inside. As per the evidence of P.Ws.1 to 8 so also 9 and 10, they entered into the house and saw the dead body of deceased, noticed cut injury and also knife M.O.1 by the side of dead boy. Ex.P1 report is is stated by P.w.1 that the accused murdered the deceased in between 1100 p.m. to 500 a.m. during the intervening night of 8/9.3.2018.

Though specifically it is not recorded by this court, but still it is in the memory of

S.C.219 of 201818 this court when he was examined under section 228 of Criminal Procedure Code with regard to the charge under section 302 of Indian Penal Code, he stated that to threaten the deceased he put the knife on her neck, unfortunately neck was cut. He was not having any intention to do away the life of deceased who is his wife. Of course the exact words referred above were not recorded by this court. Therefore, this court is of the opinion that the evidence on record is only to be taken into consideration, that above referred statement given by the accused shall not be taken into consideration. However when it is established by the prosecution by examining the witnesses P.Ws.1 and 2, 5 and 8 that the accused took the deceased to his rented house and he was in the house during night. As per section 105 of Indian

Evidence Act when the accused had taken a implied plea of alibi that he was not in the house and as he was in Markapur as he failed to prove the alibi that he was not at scene of offence and he was somewhere else, and also in view of section 106 of

Indian Evidence Act, that when any fact especially within the knowledge of any person(accused), the burden of proof of the fact is upon him. When the prosecution established that the accused was in the rented house along with his wife during the intervening night of 8/9.3.2018 early morning the accused was not found in the house and the wife i.e., the deceased was found dead with a cut injury and the weapon M.O.1 was by the side of her dead body, it is for the accused to answer how his wife i.e., the deceased died and who is responsible for her death. But this burden is not discharged by the accused. Therefore, without any hesitation, it can be said that the prosecution established that it is the accused who is responsible for the death of deceased i.e., his wife who used to dispute with him and having anger that she forged him to stay in Badveedu village which is the village of the parents of deceased and also some suspicion on her. Hence for the above reasons it can be held that the accused caused the death of deceased by cutting the neck of deceased by using M.O.1 knife. In this case there is confessional statement Ex.P30 said to have been given by the accused in the presence of P.Ws.12 and 13. Of course

S.C.219 of 201819

P.Ws.12 and 13 are concerned it stated by P.W.12 K.Yedukondalu that the accused confessed that he murdered the deceased by using knife. His confessional statement was recorded. P.W.13 stated that he is not aware whether the accused confessed the commission of offence and the same was recorded. He was declared as hostile by the learned Addl. Public Prosecutor. His signature on Ex.P30 confessional statement of accused was marked as Ex.P25. However the alleged confessional statement Ex.P30 cannot be taken into consideration as it is hit by section 25 of Indian Evidence Act, because it is the evidence of P.W.19 the investigating officer that he was also present when the accused said to have been given his confessional statement under Ex.P30.

24. Though the admission made by the accused when he was examined under section 228 of Cr.P.C. with regard to the accusation i.e., charge under section 302 of

Indian Penal Code is concerned is not taken into consideration and trail is ordered.

But when once the prosecution able to establish that the accused is responsible for the murder of deceased with regard to determination of the offence what actually the accused committed is concerned, this court is of the opinion that it is not an offence punishable under section 302 of Indian Penal Code, but it is an offence under section 304 of Indian Penal Code. Because it comes under section 300 exception 4 which reads as follows: culpable homicide is not murder if it is committed without pre meditation in a sudden fight in the heat of passion upon sudden quarrel and without the offenders having taken undue advantage or act in a cruel and unusual manner. The explanation is that it is immaterial in such cases which party offers the provocation or commits the first assault. Here the entire case of prosecution is very clear there was quarrel between the accused and deceased, the accused was anger against the deceased in forcing him to stay in the place of parents of deceased against his will and also there was some suspicion against the deceased. Of course with regard to suspicion is concerned there is no specific evidence except the stray sentence in the inquest report Ex.P23. As per the version of accused he put the

S.C.219 of 201820 knife on the neck of deceased only to put her under fear/threat, but unfortunately the throat was cut and due to acute blood loss as she was not timely taken for any treatment, she died. The accused clearly stated that he had no intention to murder her, but it was happened suddenly. Therefore, it is an offence of section 300 culpable homicide not amounting to murder, for which he is liable for punishment under section 304 Part – I of Indian Penal Code. This court was guided by judgment of Hon’ble Supreme Court in Galaka Velu Govindulu Vs. State of Andhra Pradesh reported in AIR 2008 S.C. 842 and also another judgment of Hon’ble Supreme Court in Fliyatadu Vs. State of Bihar reported in 2007 S.C. 3215 wherein the above referred judgment the Hon’ble Supreme Court held that when there was exchange of words and quarrel between wife and husband the accused had suddenly hacked the deceased on her back with sickle. Then the deceased fell down, accused once again hacked on neck and left ear of the deceased, causing severe bleeding injuries. The accused held liable for conviction under section 304 Part – I of Indian Penal Code.

In the 2nd referred case the size of the weapon used to place where the assault of back ground leading to the part of object way, the blow and some of the factors are to be concerned. The reported case admittedly one blow was given with a small stick and the place where assault took place was termly lite. Invisible conclusion is that the case under section 304 Part – I Indian Penal Code not section 302 of Indian

Penal Code. In view of the above legal propositions laid down by the Hon’ble

Supreme Court, this court came to the conclusion it is only a single injury caused by the accused in a heat of mood having anger against his wife and due to acute blood loss only she died, because not timely given any treatment to the injury the offence committed by the accused is only section 304 Part – I of Indian Penal Code, but not section 302 of Indian Penal Code as alleged by the prosecution. Point answered accordingly.

25.In the result, accused is found guilty for the offence punishable Under section 304 Part – I of IPC. Accordingly he is convicted under section 255 (ii)

S.C.219 of 201821

Dictated to the Personal Asst., transcribed by her corrected and pronounced

by me through video conference, this the 1st day of June, 2020.

VI ADDL. DIST. & SESSIONS JUDGE,

PRAKASAM AT MARKAPUR.

01062020:

26.With regard to the quantum of sentence when the accused was questioned through video conferencing, for the offence punishable under section 304

Part – I of Indian Penal Code, he submitted that he is having two daughters who were in hostel, now they are with his old aged mother and prayed the court to take lenient view. Keeping in view of the above submission of accused, the accused is sentenced to undergo Rigorous Imprisonment for a period of 10 years and shall also pay fine of Rs.500/, in default he shall undergo simple imprisonment for a period of one month. The accused is informed about his right to appeal. The remand period under gone by the accused shall be given set off under section 428 of Cr.P.C. The remand period of accused is from 12.03.2018 to 25.06.2018 and 13.8.2019 to till today i.e., 01.06.2020.

Dictated to the Personal Asst., transcribed by her corrected and pronounced

by me through video conference, this the 1st day of June, 2020.

Sd/ Sri.G.Rama Krishna

VI ADDL. DIST. & SESSIONS JUDGE,

PRAKASAM AT MARKAPUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

P.W.1/27012020 : Sri.Kancharla Galaiah None

P.W.2/27012020 : Sri.Kancharla Lakshmi Devi

P.W.3/27012020 : Sri.Kancharla Chennaiah

P.W.4/28012020 : Sri.Kancharla Yogamma

P.W.5/28012020 : Sri.Kancharla Pedda Anakaiah

S.C.219 of 201822

P.W.6/28012020 : Sri.Settibathina Badulla

P.W.7/29012020 : Sri.Kancharla Balachandrudu

P.W.8/29012020 : Sri.Kancharla Kasaiah

P.W.9/29012020 : Sri.Puli Bala Raju

P.W.10/29012020 : Sri.Puli Subbaiah

P.W.11/30012020 : Sri.Gopaluni Nagasundara Narahari

P.W.12/31012020 : Sri.Kotapati Yedukondalu

P.W.13/31012020 : Sri.Pikkili Yogaiah

P.W.14/31012020 : Smt.Badugu Sumalatha

P.W.15/03022020 : Kondra Chandrakala

P.W.16/03022020 : Dr.K.S.Dayanidhi

P.W.17/04022020 : Sri.B.V.Ramana Rao

P.W.18/04022020 : Sri.I.Raj Kumar

P.W.19/19022020 : Sri.M.Bheema Naik

DOCUMENTS MARKED FOR THE PROSECUTION

Ex.P1 is report

Exs.P2 to P21 are photographs

Ex.P22 is C.D.

Ex.P23 is inquest report

Ex.P24 is scene observation report

Ex.P25 is signature of P.W.13 on inquest report

Ex.P26 is postmortem certificate

Ex.P27 is requisition

Ex.P28 is original FIR

Ex.P29 is rough sketch of scene of offence

Ex.P30 is confession statement of accused

Ex.P31 is Regional Forensic Science Lab report

S.C.219 of 201823

DOCUMENTS MARKED FOR THE DEFENCE

Nil

M.Os. MARKED FOR PROSECUTION.

M.O.1 is knife

M.O.2 is blood stained earth

M.O.3 is controlled earth

M.O.4 is blue colour saree

M.O.5 is blue colour blouse

M.O.6 is pink colour petticoat

M.O.7 is white colour blanket

M.O.8 is red colour pillow

M.O.9 is blanket

M.Os. MARKED FOR DEFENCE. Nil

Sd/ Sri.G.Rama Krishna

VI A.D & S.J.,

MARKAPUR.

Copies Submitted To:

1. The Hon’ble Registrar (Judl.), High Court of Andhra Pradesh, Nelapadu,

Amaravathi.

2. The Dist. Court, Prakasam Dist, Ongole,

Copies To:

3. The Dist. Collector & Magistrate, Prakasam Dist., Ongole

4. The Dist. Superintendent of Police, Prakasam Dist., Ongole

5. The Addl. P.P., VI A.D.J. Court, Markapur

6. The Addl. Judicial First Class Magistrate, Markapur

7. Office Copy.

OS/29/2016

Busiraju Anjali vs Chimaladinee Pitchaiah

30 Sep 2019

O.S.29 of 20161

IN THE COURT OF VI ADDL. DISTRICT JUDGE :: MARKAPUR.

Present: Sri.G.Rama Krishna, VI Addl. Dist & Sessions Judge, Prakasam at Markapur.

Monday, the 30th ay of September, 2019

.S.No.29/2016 O

Between:

1.Busiraju Anjali W/o late Govindu, D/o

Pitchaiah, aged 45 years, Hindu, coolie, residing near Jakraiah hospital, Ongole,

Mandalam, Ongole City.

2.Chimaladinne Sreenu S/o Ramaiah, aged about 45 years, Hindu, coolie, residing at

Nujallapallivillage,Janakavaram

Panguluru Mandal, Prakasam District.

3.Chimaladinne Audilakshmi W/o Anjaiah, aged 40 years, Hindu, coolie, residing at

Nujallapalli village, Janakavaram

Panguluru Mandal.

4.Chimaladinne Nagapavani D/o Anjaiah, aged 21 years, Hindu, coolie, residing at

Nujallapallivillage,Janakavaram

Panguluru Mandal.

5.Chimaladinne Guruswamy S/o Anjaiah, aged 19 years, Hindu, student, permanent resident of Nujallapalli village,

Janakavaram Panguluru Mandal.

6.Karicheti Rajeswari W/o Venkateswarlu, aged about 46 years, Hindu, coolie, East

Gangavaram village, Talluru Mandal.

7.Tanguturi Vani W/o Venkateswarlu, aged about 41 years, Hindu, coolie, resident of 11

O.S.29 of 20162

Chinnaganjam village and Mandal, now residing at Santhapet, Ongole.

8.Busiraju Sayamma W/o Thirupathi Rao, aged about 38 years, Hindu, coolie, resident of Gonasapudi village, now temporarily residing at Agri gold office,

Nellore Bus stand, Ongole city, Ongole.

9.ChimaladinneSundarammaW/o

Ramaiah, aged 70 years, Hindu, coolie, residentofNujallapallivillage,

Janakavaram Panguluru Mandal.

.. PLAINTIFFS.

A N D

1) Chimaladinne Pitchaiah S/o Guravaiah, aged about 68 years, Hindu, cultivation, resident of

E.Gangavaram village, Talluru Mandal, Prakasam

District.

2) Chimaladinne Gurubrahmam S/o Chinnaiah, aged about 55 years, Hindu, resident of E.Gangavaram village, Talluru Mandal, Prakasam District.

3) Chimaladinne Gurumurthy S/o Chenchaiah, aged about 53 years, Hindu, cultivation, resident of

E.Gangavaram village, Talluru Mandal, Prakasam

District.

4) Chimaladinne Sreenu S/o Chennaiah, aged about 50 years, Hindu, Govt. Teacher, resident of

E.Gangavaram village, Talluru Mandal, Prakasam

District.

5) Chimaladinne Konda Guravaiah S/o Chinnaiah, aged about 48 years, Hindu, business, resident of 22

O.S.29 of 20163

E.Gangavaram village, Talluru Mandal, Prakasam

District.

6) Chimaladinne Sarojini @ Boddupalli Sarojini W/o

Appa Rao, D/o Chinnaiah, aged about 52 years,

Hindu, house wife, resident at Syamalapuram village, Vinukonda Mandal, Guntur District.

7) Chimaladinne Rajeswari @ Busiraju Rajeswari W/o

Sreenivasa Rao, aged about 44 years, Hindu, house wife, residing at East Gangavaram village, Tallur

Mandal.

8) Chimaladinne Punnamma W/o Chinnaiah, aged 75 years, East Gangavaram village, Tallur Mandal.

9) Chimaladinne Kondaguravaiah S/o Ramaiah, aged about 48 years, Hindu, cultivation, Nujallapalli village, Janakavaram Panguluru Taluk Mandal

Prakasam Distrtict, Now temporarily residing at

Santhapeta, Ongole.

…DEFENDANTS.

This Original Suit is coming on 06092019 for final hearing before this court in the presence of Sri.Y.Venkateswara Reddy and Sri.P.Lakshmaiah,

Advocates for the Plaintiffs, Defendants remained exparte and having stood over for consideration to this day, this court delivered the following:

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

1.This is a suit filed for partition of suit schedule property into 147 equal shares and to allow 24 ½ shares to the 1st plaintiff, 8 shares to the 2nd plaintiff, 8 shares jointly to the plaintiffs 3, 4 and 5, 8 shares each to the plaintiffs 6 to 8, one equal share to the 9th plaintiff, 24 ½ shares to the 1st defendants, 8 shares each to the defendants 2 to 7 and 8 shares to 9th defendant and one 33

O.S.29 of 20164

such share to the 8th defendant with good and bad qualities equally among the plaintiffs and defendants.

2.The case of plaintiffs is that one Chimaladinne Guravaiah was absolute owner of plaint schedule property. He die long back intestate leaving behind his four sons. The first son is Venkateswarlu @ Peddanna who died intestate without marriage, leaving his three brothers as his successors. After death of

Guravaiah, his 2nd son Chinnaiah managed the entire family properties till his death about 5 years back. The 3rd son of Guravaiah byname Ramaiah is the strict follower of his brother Chinnaiah. The 4th son of Guravaiah by name

Pitchaiah is an employee (defendant No.1). All the three brothers lived in the joint family. Even till today they are in joint and constructive possession and enjoyment of joint family property. Guravaiah blessed with two daughters.

They were married prior to 1956. Hence they are not entitled for any share.

3.The defendants 2 to 7 are children of Chinnaiah (2nd son of

Guravaiah). 8th defendant Punnamma is wife of Chinnaiah. 9th defendant is elder son of Ramaiah (third son of Guravaiah) who is living along with other defendants.

4.The 1st plaintiff Anjali, is the daughter of 1st defendant Pitchaiah, the 2nd plaintiff is son of Ramaiah, the third plaintiff is wife of Anjaiah, the 4th and 5th plaintiffs are children of Anjaiah who is son of Ramaiah. Anjaiah died about 7 years back leaving behind his wife and children i.e., plaintiffs 3 to 5.

The plaintiffs 6 to 8 are also children of Ramaiah. 9th plaintiff is wife of

Ramaiah. Chinnaiah and Ramaiah died about 5 years back.

5.After death of Venkateswarlu @ Peddanna intestate without marriage, his share of property was fell on his brothers Chinnaiah, Ramaiah and Pitchaiah with equal rights. After death of Chinnaiah his joint family property fell to the plaintiffs 2 to 8. After death of Ramanaiah his share fell on plaintiffs 2 to 9 and 9th defendant also. The share of Pitchaiah is fell on his 44

O.S.29 of 20165

daughter. Since the suit schedule properties are joint family properties, all the plaintiffs and defendants are entitled with respect to their lawful shares. The 1st defendant deserted his wife and daughter (1st plaintiff) when the 1st plaintiff is about three years. The 1st defendant never looked after the welfare of them.

Recently it came to the knowledge of plaintiffs that the defendants 1 to 9 were colluded among themselves and getting number of sham registered documents with a view to avoid the lawful share of plaintiffs.

6.After death of Chinnaiah, plaintiffs have been demanding the defendants for partition and separate possession of their lawful shares. But the defendants have been postponing the same on some pretext or the other.

They are creating sham partition deeds and gift deeds, the same sale deeds and agreements among themselves.

7.The properties stood in the name of defendants are joint family properties. Chinnaiah was karta of family till his death. The 3rd defendant filed a suit with forged documents against the plaintiffs 1 to 3 and 9 in

O.S.122/2013 on the file of Junior Civil Judge Court, Darsi. The same is

pending.

8.Due to differences among ladies, Ramaiah shifted to Nuzellapalli village and also East Gangavaram village. According to the agricultural seasons. The marriage of 2nd plaintiff was performed in East Gangavaram village. The plaintiffs got issued a legal notices to the defendants for partition and separate possession of their lawful shares. Except 7th defendant rest of the defendants received notices and failed to give any reply.

9.Items 1 to 5 of suit schedule properties are in joint constructive possession and enjoyment of plaintiffs and defendants. The entire suit schedule mentioned properties are entitled by (1) Chinnaiah (2) Ramaiah (3)

Pitchaiah. Chinaniah died about 5 years back leaving behind the defendant 2 to 48 as his legal representatives. Therefore, they are entitled to the share of 55

O.S.29 of 20166

property of Chinnaiah. Ramaiah died about 5 years back as intestate leaving behind him the plaintiffs 2 to 9 and 9th defendant. The 1st plaintiff is entitled for equal shares along with her father Pitchaiah the 1st defendant. The daughter of

Chinnaiah, Ramaiah and Pitchaiah were married, 1986.

10.For an amicable distribution of the suit schedule properties and for partition the properties have to be divided into 147 shares. The branch of

Chinnaiah is entitle d49 shares which has to be divided among D2 to D8, D2 to

D7 are entitled 8 shares each i.e., 6 X 8 = 48 shares and D8 is entitled one share, total 49 shares. The share of property of Ramaiah has to be divided among the plaintiffs 2 to 9 and defendant No.9. The 2nd plaintiff is entitle d8 shares, plaintiffs 3 to 5 are jointly entitled only 8 shares. They are wife and children of Anjaiah. The plaintiffs 6 and 7 are entitled each 8 shares. The 9th plaintiff is entitled one share and 9th defendant is entitled for 8 shares i.e., total 49 shares, they are entitled.

11.The 1st defendant Pitchaiah and his daughter the 1st plaintiff are equally entitled 24 ½ shares each. The plaintiffs personally and through mediators requested the defendants for partition and separate possession of lawful shares in the suit schedule property. Having no other alternative the plaintiffs filed the suit for partition and separate possession of their respective lawful share according law.

12.The defendants remained exparte. The defendants filed

I.A.104/2017, the same was dismissed on 7.11.2017. Later they filed

I.A.526/2017, the same was dismissed. No revision filed by the petitioners, the defendants remained exparte.

13.The plaintiff No.1 B.Anjali got filed her evidence affidavit as P.W.1, got marked Exs.A1 to A22. In the evidence affidavit P.W.1 reiterated the plaint averments. Ex.A19 is the certified copy of genealogy filed in O.S.122/2013 showing that Guravaiah have four sons and two daughters as follows

Venakteswarlu @ Peddanna, Chinnaiah, Ramaiah, Pitchaiah, Guravamma and 66

O.S.29 of 20167

Subbamma. Guru Murthy one of the sons of Chinnaiah filed O.S.122/2013 on the file of Junior Civil Judge Court, Darsi for the relief of permanent injunction in respect of plaint schedule property in the said suit. The plaintiffs herein are the defendants in the above suit. They filed their written statement and contested the said suit. Ex.A20 is the certified copy of issues framed in the above suit. Ex.A21 is the certified copy of judgment in the above suit disclosing that the suit was dismissed for default. Ex.A22 is the certified copy of decree and plaint schedule in O.S.122/2013.

14.Ex.A7 is the certified copy of 1B register obtained through Meeseva stands in the name of Chimaldinne Chinnaiah. Ex.A8 and A9 are certified copies of adangals for the fasli 1428. Ex.A10 is the certified copy of registered mortgage deed dated 16.9.1998 executed by Chinnaiah in favour of agricultural cooperative society. Ex.A11 is the certified copy of registered sale deed dated 30.6.1999 executed by Gangula Mangamma and two others in favour of

Chinnaiah. Ex.A12 is another certified copy of registered sale deed dated 30.1.2002 executed by Thaminala Ramulamma and another in favour of

Chinnaiah.Ex.A13 is the copy of certified copy of registered partition deed

dated 3052012. Ex.A14 is the certified copy of registered partition deed dated

25.12.2012 executed by Pitchaiah in favour of Guru Murthy, Ex.A15 is certified copy of registered sale deed dated 19.10.2013 executed in between

Chimaladinne Punnamma and two others in favour of Pragathi Educational

Social services society. Exs.A16 and 17 are attestested copies of adangal for the fasli 1400 and 1401 showing that the plaint schedule properties are ancestral properties of plaintiffs and defendants. The plaintiff No.1 got issued Ex.A1 legal notice dated 16.8.2014 to the defendants demanding for partition. Ex.A2 is the postal receipts showing the dispatch of legal notice. Ex.A3 is the postal acknowledgment of D3 and D6. Ex.A4 is the returned postal cover of D7. They are showing the demand of plaintiff for partition of schedule properties by showing that plaint schedule properties are ancestral properties for which there is no reply. Ex.A5 and A6 are served copy of plaint in O.S.122/2013 and 77

O.S.29 of 20168

copy of written statement in the said suit. In the written statement the defendants stated that the schedule property in the above suit are the ancestral property. As it is clear that the 1st son of Guravaiah by name

Venkateswarlu @ Peddanna died intestate without any marriage. The other sons of Guravaiah i.e., Chinnaiah, Ramaiah and Pitchaiah got the plaint schedule properties with equal rights. After death of Chinnaiah, his share in the joint family fell to the defendants 2 to 8. After death Ramaiah his share fell on plaintiffs 2 to 9 and 9th defendant. The plaintiffs 3 to 5 are legal heirs of deceased Anjaiah who is son of Ramaiah. Share of Pitchaiah (D1) is concerned he and the plaintiff No.1 will got equal shares. Therefore, the above evidence of

P.W.1 remained unchallenged and unshaked. Therefore, the plaint schedule properties shall be divided into 147 shares. The branch of Ch.Chinnaiah is entitled 49 shares which is to be divided among defendants 2 to 8, the defendants 2 to 7 are entitled 8 shares each i.e., 6 X 8 = 48 shares and defendant No.8 is entitled for one share, total 49 shares. The share of Ramaiah shall be divided among the plaintiffs 2 to 9 and 9th defendant. The 2nd plaintiff is entitled for 8 shares, the plaintiffs 3 to 5 are jointly entitled only 8 shares as wife and children of Chimaladinne Anjaiah who is no more. The plaintiffs 6 to 8 are entitled each 8 shares, 9th plaintiff is entitled one share and the 9th defendant is entitled 8 shares i.e., 49 shares. In respect of share of Pitchaiah the 1st defendant, he and his daughter the plaintiff No.1 are entitled equally 24 ½ shares each by metes and bounds and for separate possession. The preliminary decree is passed accordingly. The parties are at liberty to file a separate application for passing of final decree and mesne profits.

Dictated to the Personal Asst., transcribed by her corrected and

pronounced by me in Open Court, this the 30th day of September, 2019.

VI ADDL. DIST. & SESSIONS JUDGE,

PRAKASAM AT MARKAPUR.

O.S.29 of 20169

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS FOR DEFENDANTS

P.W.1 : Busiraju AnjaliNone

DOCUMENTS MARKED FOR THE PLAINTIFF

Ex.A1 legal notice dated 16.8.2014 to the defendants demanding for partition.

Ex.A2 is the postal receipts showing the dispatch of legal notice.

Ex.A3 is the postal acknowledgment of D3 and D6.

Ex.A4 is the returned postal cover of D7

Ex.A5 and A6 are served copy of plaint in O.S.122/2013 and copy of written statement in the said suit,

Ex.A7 is the certified copy of 1B register obtained through Meeseva stands in the name of Chimaldinne Chinnaiah.

Ex.A8 and A9 are certified copies of adangals for the fasli 1428.

Ex.A10 is the certified copy of registered mortgage deed dated 16.9.1998 executed by Chinnaiah in favour of agricultural cooperative society.

Ex.A11 is the certified copy of registered sale deed dated 30.6.1999 executed by Gangula Mangamma and two others in favour of Chinnaiah.

Ex.A12 is another certified copy of registered sale deed dated 30.1.2002 executed by Thaminala Ramulamma and another in favour of Chinnaiah.

Ex.A13 is the copy of certified copy of registered partition deed dated 30.5.2012.

Ex.A14 is the certified copy of registered partition deed dated 25.12.2012 executed by Pitchaiah in favour of Guru Murthy,

Ex.A15 is certified copy of registered sale deed dated 19.10.2013 executed in between Chimaladinne Punnamma and two others in favour of Pragathi Educational Social services society.

Exs.A16 and 17 are attested copies of adangal for the fasli 1400 and 1401 showing that the plaint schedule properties are ancestral properties of plaintiffs and defendants.

Ex.A18 is certified copy of plaint schedule inO.S.122/2013 on the file of Junior

Civil Judge Court, Darsi.

Ex.A19 is the certified copy of genealogy filed in O.S.122/2013

Ex.A20 is the certified copy of issues framed in the above suit.

Ex.A21 is the certified copy of judgment in the above suit disclosing that the suit was dismissed for default.

Ex.A22 is the certified copy of decree and plaint schedule in O.S.122/2013.

O.S.29 of 20161

DOCUMENTS MARKED FOR THE DEFENDANTS

Nil

VI A.D.& S.J, MARKAPUR.

101

O.S.29 of 20161

IN THE COURT OF VI ADDL. DISTRICT JUDGE :: MARKAPUR.

Present: Sri.G.Rama Krishna, VI Addl. Dist & Sessions Judge, Prakasam at Markapur.

Monday, the 30th ay of September, 2019

.S.No.29/2016 O

Between:

1.Busiraju Anjali W/o late Govindu, D/o

Pitchaiah, aged 45 years, Hindu, coolie, residing near Jakraiah hospital, Ongole,

Mandalam, Ongole City.

2.Chimaladinne Sreenu S/o Ramaiah, aged about 45 years, Hindu, coolie, residing at

Nujallapallivillage,Janakavaram

Panguluru Mandal, Prakasam District.

3.Chimaladinne Audilakshmi W/o Anjaiah, aged 40 years, Hindu, coolie, residing at

Nujallapallivillage,Janakavaram

Panguluru Mandal.

4.Chimaladinne Nagapavani D/o Anjaiah, aged 21 years, Hindu, coolie, residing at

Nujallapallivillage,Janakavaram

Panguluru Mandal.

5.Chimaladinne Guruswamy S/o Anjaiah, aged 19 years, Hindu, student, permanent resident of Nujallapalli village,

Janakavaram Panguluru Mandal.

6.Karicheti Rajeswari W/o Venkateswarlu, aged about 46 years, Hindu, coolie, East

Gangavaram village, Talluru Mandal.

7.Tanguturi Vani W/o Venkateswarlu, aged about 41 years, Hindu, coolie, resident of 111

O.S.29 of 20161

Chinnaganjam village and Mandal, now residing at Santhapet, Ongole.

8.Busiraju Sayamma W/o Thirupathi Rao, aged about 38 years, Hindu, coolie, resident of Gonasapudi village, now temporarily residing at Agri gold office,

Nellore Bus stand, Ongole city, Ongole.

9.ChimaladinneSundarammaW/o

Ramaiah, aged 70 years, Hindu, coolie, residentofNujallapallivillage,

Janakavaram Panguluru Mandal.

.. PLAINTIFFS.

A N D

1) Chimaladinne Pitchaiah S/o Guravaiah, aged about 68 years, Hindu, cultivation, resident of

E.Gangavaram village, Talluru Mandal, Prakasam

District.

2) Chimaladinne Gurubrahmam S/o Chinnaiah, aged about 55 years, Hindu, resident of E.Gangavaram village, Talluru Mandal, Prakasam District.

3) Chimaladinne Gurumurthy S/o Chenchaiah, aged about 53 years, Hindu, cultivation, resident of

E.Gangavaram village, Talluru Mandal, Prakasam

District.

4) Chimaladinne Sreenu S/o Chennaiah, aged about 50 years, Hindu, Govt. Teacher, resident of

E.Gangavaram village, Talluru Mandal, Prakasam

District.

5) Chimaladinne Konda Guravaiah S/o Chinnaiah, aged about 48 years, Hindu, business, resident of 121

O.S.29 of 20161

E.Gangavaram village, Talluru Mandal, Prakasam

District.

6) Chimaladinne Sarojini @ Boddupalli Sarojini W/o

Appa Rao, D/o Chinnaiah, aged about 52 years,

Hindu, house wife, resident at Syamalapuram village, Vinukonda Mandal, Guntur District.

7) Chimaladinne Rajeswari @ Busiraju Rajeswari W/o

Sreenivasa Rao, aged about 44 years, Hindu, house wife, residing at East Gangavaram village, Tallur

Mandal.

8) Chimaladinne Punnamma W/o Chinnaiah, aged 75 years, East Gangavaram village, Tallur Mandal.

9) Chimaladinne Kondaguravaiah S/o Ramaiah, aged about 48 years, Hindu, cultivation, Nujallapalli village, Janakavaram Panguluru Taluk Mandal

Prakasam Distrtict, Now temporarily residing at

Santhapeta, Ongole.

…DEFENDANTS.

This is a suit filed for partition of suit schedule property into 147 equal shares and to allow 24 ½ shares to the 1st petitioner, 8 shares to the 2nd plaintiff, 8 shares jointly to the plaintiffs 3, 4 and 5, 8 shares each to the plaintiffs 6 to 8, one equal share to the 9th plaintiff, 24 ½ shares to the 1st defendants, 8 shares each to the defendants 2 to 7 and 8 shares to 9th defendant and one such share to the 8th defendant with good and bad qualities equally among the plaintiffs and defendants.

Date of Presentation : 08.03.2016

Date of filing : 26.07.2016

Cause of Action : Cause of action for the suit arose when Chimaladinne

Guravaiah and his ancestors were having Item No.1 to 5 of suit schedule 131

O.S.29 of 20161

mentioned properties the said Chimaladinne Guravaiah blessed 4 sons, leaving behind his sons as his legal representatives, after his death, the 2nd son of

Guraaiah managed the family affairs as Kartha of the joint family, the 1st son of

Chimaladnne Guravaiah died intestate without any marriage and issues, after the death of 3rd son of Chimaladinne Guravaiah i.e., Chinnaiah, the plaintiffs started demanding the defendants for partition and separate possession of their lawful share, but the defendants have been postponing the same, the plaintiffs caused a legal notice to the defendants, the defendants received the noticed and failed to gave any reply, the suit schedule mentioned properties are located at East Gangavaram village which is within the jurisdiction of the court

and

Valuation : For the purpose of court fee and jurisdiction the suit is valued at

Rs.23,58,569/ on which fixed Court Fee of Rs.200/ is paid U/Sec. 34 (ii) of

APCF and S.V.Act, 1956.

This Original Suit is coming on 06092019 for final hearing before this court in the presence of Sri.Y.Venkateswara Reddy and Sri.P.Lakshmaiah,

Advocates for the Plaintiffs, Defendants remained exparte and having stood over for consideration to this day, this court doth order and decree:

i)that the original suit be and the same is hereby preliminarily decreed;

and

ii)that the plaintiffs 6 to 8 are entitled each 8 shares, 9th plaintiff is enti tled one share and the 9th defendant is entitled 8 shares i.e., 49 shares; and iii)that in respect of share of Pitchaiah the 1st defendant, he and his daughter the plaintiff No.1 are entitled equally 24 ½ shares each by metes and bounds and for separate possession; and iv)that the parties are at liberty to file a separate application for passing of final decree and mesne profits; and 141

O.S.29 of 20161

v)that there is no order as to costs of the suit.

Given under my hand and the seal of the court, this the 30th day of September, 2019.

VI ADDL. DIST. & SESSIONS JUDGE,

PRAKASAM AT MARKAPUR.

TABLE OF COSTS

FOR PLAINTIFFS FOR DEFENDANTS

C.M.& F.C. not filed

VI A.D. & S.J,

MARKAPUR.

Note: Both parties/parties concerned in this case are hereby informed that the exhibited and nonexhibited documents should retrieve within the stipulated time on a condition that “the same should produce as and when required by this court”.

SCHEUDLE

Item No.1 :

Prakasam District, Markapur District Registration, Darsi Sub

Registration, survey No.74/4 of Nagambotlavari palem, East Gangavaram village, Talluru Mandal, an extent of Ac.216 cents of Gramakantam bounded by :

East : Madigapalle

South : Kothapalli Kotaiah

West : High school

North : the residential houses belongs to Muslims (Registrar’s value is Rs.52,27,200/, plaintiffs share is Rs.23,29,127/ 3/4th value is Rs.17,46,845/)

Item No.2 :

Prakasam District, Markapur District Registration, Darsi Sub

Registration, Survey No.61/11, of Nagambotlavari palem, East Gangavaram village, Talluru Mandal, an extent of Ac.216 cents of dry land bounded by :

East : Guda Subbamma W/o Venkat Reddy

South : Lands of others 151

O.S.29 of 20161

West : Lands of others

North : Yathapu Pullareddy and Peri Reddy (Registrar’s value is Rs.5,40,000/, plaintiffs share is Rs.2,40,612/ 3/4th value is Rs.1,80,459/)

Item No.3:

Prakasam District, Markapur District Registration, Darsi Sub

Registration, survey No.61/12 of Nagambotlavaripalem, East Gangavaram village, Talluru Mandal, an extent of Ac.089 cents of dry land bounded by :

East : Lands of others

South : lands of others

West : Lands of others

North : Yathapu Peri Reddy (Registrar’s value is Rs.2,22,500/, plaintiffs share is Rs.99,141/ 3/4th value is Rs.74,356/)

Item No.4: Prakasam District, Markapur District Registration, Darsi Sub

Registration, Survey No.61/13 of Nagambotlavari palem, East Gangavaram village, Talluru Mandal, an extent of Ac.040 cents of dry land bounded by :

East : land of others

South : lands of others

West : Kandula Venakteswara Reddy & Yathapu Peda Rami Reddy

North : Ch.Chinnaiah (Registrar’s value is Rs.1,00,000/,plaintiffs share is Rs.44,558/ 3/4th value is

Rs.33,419/)

Item No.5 : Prakasam District, Markapur District Registration, Darsi Sub

Registration, survey No.62/21 of Nagambotlavaripalem, East Gangavaram village, Talluru Mandal, an extent of Ac.040 cents of dry land bounded by :

East : K.Venkata Subba Reddy & Musalareddy

South : G.Venkata Rami Reddy

West : Yattapu Koti Reddy, Guda Raghava Reddy, Srinivasa reddy and 161

O.S.29 of 20161

Narayana Reddy

North : Lands of others (Registrar’s value is Rs.9.68,000/, plaintiffs share is Rs.4,31,320/ 3/4th value is Rs.3,23,490/)

Total value of the suit schedule property is Rs.70,57,700/, plaintiffs share is Rs.31,44,758/. 3/4th of market value is Rs.23,58,569/.

VI A.D. & S.J,

MARKAPUR.

171

AS/23/2017

Avula Rangaiah vs Arepalli Venkateswarlu

17 Jun 2020

A.S.No.23/20171

IN THE COURT OF VI ADDL. DISTRICT JUDGE : MARKAPUR.

Present: Sri.G.Rama Krishna VI Addl. Dist. & Sessions Judge, Markapur.

Wednesday, the 17th day of June, 2020

A.S.No.23/2017

Between:

Avula Rangaiah, aged 77 years, S/o Kotaiah, Hindu, cultivation, resident of

Bodapadu village, Markapur Mandal.

.. APPELLANT

A N D

Arepalli Venkateswarlu, aged 47 years, S/o Chinna Yerraiah, Hindu, business, resident of Bodapadu village, Markapur Mandal.

.. RESPONDENT

On appeal filed against the judgment and Decree Dt.12072016 passed in

O.S.27/2015 on the file of Prl. Junior Civil Judge Court, Markapur.

Between:

Avula Rangaiah..plaintiff

A N D

Arepalli Venkateswarlu... Respondent

This Appeal Suit is coming on 06032020 for final hearing before this court in the presence of Sri.R.V.Nageswara Sastry, Advocate for Appellant,

Sri.V.Sreenivasa Rao, advocate for Respondent and having stood over for consideration to this day, this court delivered the following:

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

1.This is an appeal filed against the judgment and decree in O.S.27/2015

dated 12.07.2016 on the file of Prl. Junior Civil Judge Court, Markapur. The

appellant herein is the plaintiff, the respondent herein is the defendant in

A.S.No.23/20172

O.S.27/2015. Since this court being first appellate court is also a fact finding court.

Invariably this court must decide this appeal based on the pleadings and evidence of both parties. Therefore, to avoid confusion this court is going to refer the parties as they arrayed in O.S.27/2015 before the trail court.

2. The case of plaintiff is that on 18.1.2012 the defendant borrowed a sum of

Rs.34,400/ from him for the purpose of defendant’s necessity, agreed to repay the same with yearly compound interest at 24% p.a., on demand either to the plaintiff or to his order and executed the suit promissory note in favour of plaintiff at Bodapadu village on the same day.

3. Thereafter despite demands from the plaintiff, the defendant not paid the debt due under the suit promissory note. Hence the plaintiff filed the suit for recovery of amount of Rs.65,587/.

4.The defendant in his written statement denied the plaint averments besides contending that there is no cause of action to file the suit. The suit promissory note was materially altered by the plaintiff for limitation purpose. On 18.1.2012 the defendant renewed the pronote to the earlier debt. Subsequently the defendant discharged the entire pronote debt. Subsequently the defendant discharged the entire pronote debt. But the plaintiff not returned the suit promissory note and told that it was misplaced. After passing of some time the plaintiff added ‘1’ before ‘8’ at date coloumn and in the year portion ‘11’ was altered as ‘12’. So after lapse of three years time he made the deductions and saved the limitation. Hence the suit promissory note was materially altered. It is a rank forgery. There was no prior legal notice from the plaintiff regarding the debt. Prayed the court to dismiss the suit with exemplary costs.

A.S.No.23/20173

5. Based on the above pleadings, the trial court framed the following issues :

1) Whether the defendant borrowed an amount of Rs.34,400/ on 18.1.2012 from the plaintiff and executed the suit promissory note in favour of plaintiff?

2) Whether the suit promissory note is a renewal one ?

3) Whether the defendant discharged the entire promissory note debt ?

4) Whether the suit promissory note is true, valid and binding on the defendant ?

5) Whether the plaintiff is entitled for suit claim as prayed for ?

6) To what relief ?

6. To prove his case the plaintiff Avula Rangaiah got examined himself as

P.W.1, got marked the suit promissory note dated 18.1.2012 as Ex.A1. On behalf of defendant Arepalli Venkateswarlu he got examined himself as D.W.1. On considering the above referred evidence, the learned Prl. Junior Civil Judge,

Markapur dismissed the suit without costs. Aggrieved by the same the present appeal is filed.

7.The points for consideration are :

1)Whether the defendant borrowed an amount of Rs.34,400/ from the plaintiff on18.1.2012 for his necessities and executed the suit promissory note agreeing to repay the same with yearly compound 24% p.a., either to the plaintiff or to his order on demand ?

2)Whether the suit promissory note is renewal promissory note with regard to previous debt due by the defendant to the plaintiff ?

3)Whether the suit promissory note is altered, so far the date and the year are concerned converting i.e., the date as 18.1.2012 from 8.1.2011 as contended by the defendant ?

4)Whether the defendant discharged the amount due under the suit promissory note ?

A.S.No.23/20174

5)Whether the plaintiff is entitled for the recovery of suit amount as prayed ?

6)To what relief ?

8. POINTS No.1 to 3:

1) Whether the defendant borrowed an amount of Rs.34,400/ from the plaintiff on18.1.2012 for his necessities and executed the suit promissory note agreeing to repay the same with yearly compound 24% p.a., either to the plaintiff or to his order on demand ?

2) Whether the suit promissory note is renewal promissory note with regard to previous debt due by the defendant to the plaintiff ?

3) Whether the suit promissory note is altered, so far the date and the year are concerned converting i.e., the date as 18.1.2012 from 8.1.2011 as contended by the defendant ?

Since these three points are interconnected with each other, this court intended to answer them together.

The plaintiff Avula Rangaiah who was examined as P.W.1 reiterated the plaint averments in his evidence in chief by stating that on 18.1.2012 the defendant borrowed Rs.34,400/ from him for the purpose of his necessities agreeing to repay the same with yearly compound interest at 24% p.a., either to him or to his order on demand and executed Ex.A1 suit promissory note in his favour at Bodapadu village on the same day.

9. On the other hand the defendant Arepalli Venkateswarlu was examined as

D.W.1 in his evidence affidavit reiterated the contentions of him in the written statement by stating that he had not borrowed an amount of Rs.34,400/ from the plaintiff and not executed the suit promissory note on 18.1.2012. As a matter of fact on 8.1.2011 “he renewed the promissory note for the earlier debt”. The

A.S.No.23/20175

plaintiff by adding ‘1’ before ‘8’ of the date portion and in the year portion ‘11’ was altered as ‘12’ to save the limitation. The suit promissory note was materially altered and it is a rank forgery.

10.From the above evidence of defendant it is clear that he is the executant of the suit promissory note, though he deferred the date of execution. Therefore, his one of pleas that the suit promissory note is rank forgery is incorrect. According to him the suit promissory note is a renewed one. He executed the same for his previous debt. The date of execution according to the defendant is 8.1.2011. The plaintiff himself in his crossexamination categorically admitted that Ex.A1 promissory note is a renewal one. He gave an amount of Rs.34,000/ to the defendant. The amount of Rs.400/ is added towards interest on previous debt.

The execution of suit promissory note according to the plaintiff is on 18.1.2012, but not on 8.1.2011. In fact there is no suggestion to P.W.1 that renewal of promissory note execution took place on 8.1.2011. However many times the P.W.1/plaintiff reiterated in his evidence that the defendant executed the suit promissory note on 18.1.2012. It is further admitted by P.W.1/plaintiff in his crossexamination that no cash consideration under Ex.A1 on18.1.2012, but Ex.A1 is a renewal one. The defendant in his crossexamination admitted that the signature onEx.A1 promissory note belongs to him. But when he was suggested that he executed the suit promissory note on 18.1.2012, he denied the same.

11. Since one of the pleas taken by the defendant in this case is that the suit promissory note is materially altered by putting ‘1’ before ‘8’ and by converting the year from ‘11’ to ‘12’. Of course the plaintiff denied the same when he was posed a question in the crossexamination that he altered the date and year as mentioned above to overcome the limitation.

A.S.No.23/20176

12. Now it is to be seen : “Whether the suit promissory note is materially altered.

If so what is the effect of material alteration ?

First of all as observed by the trail court onus of proof is on the defendant, it is for him to prove that Ex.A1 suit promissory note is materially altered and it is a void instrument. But there is no acceptable evidence to show that Ex.A1 suit promissory note is materially altered. In his evidence in chief the defendant stated that the plaintiff after lapse of three years time, altered the date and year portions to save the limitation. As could be seen from Ex.A1 the original promissory note , it is clear that the defendant himself is the scribe of suit promissory note. There was an attestor by name Avula Rangaiah (not the plaintiff. This Avula Rangaiah is different person). The said attestor was not examined in this case which is absolutely not at all fatal, because it is settled law that the promissory note is not a compulsorily attestable document. When the defendant being scribe of promissory note contending that the date of promissory note is changed from 8.1.2011 to 18.1.2012, he must plead specifically in the written statement that the date 18.1.2012 more particularly ‘1’ before ‘8’ and ‘2’ after ‘1’ at year portion is not that of him. He did not state so. As could be seen from Ex.A1 it is further clear that there is no difference of ink and also not appearing that it was written subsequent to the execution of promissory note by the defendant.

13. According to section 87 of Negotiable Instruments any material alteration of Negotiable Instruments renders they are void as any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of original parties. Anyhow the provisions of this section are subjected to those of sections 20, 49, 86 and 125 of

Negotiable Instruments Act. Every alteration in a Negotiable Instruments will not be material alteration. Any alteration which will have the effect of extent or diminishing

A.S.No.23/20177

the liability thereof or extending its period of limitation or of the like will make it material alteration. Such instruments are void instruments. Based on such an instrument, a claim cannot be made, enforced in a court of law. As held by the

Hon’ble High Court of Madras in a judgment reported in 2012 (2) Madras L.W. 521.

Here in this case though the defendant had taken a plea that the plaintiff added ‘1’

before ‘8’ of date portion, and in the year portion ‘11’ portion was altered as ‘12’ to

save the limitation. Except his verbal version there is no any other evidence before this court. If really the defendant is very confident that the suit promissory note is materially altered, nothing is prevented him to refer the document to an expert. But the defendant failed to do so. Perhaps he knew that there is no alteration and even not made any attempt to summon the attestor Avula Rangaiah to say that he executed the promissory note only on 8.1.2011, but not on 18.1.2012. Therefore, in view of the above results this court can say that there is a failure on the part of defendant to prove that the suit promissory note is materially altered. In other words there is no legally acceptable evidence to say that the suit promissory note is altered.

14. Since it is categorically admitted by the plaintiff in his crossexamination that

Ex.A1 promissory note is a renewal one with regard to previous debt due by the defendant. What is the effect of it. In para No.11 and 12 of the judgment the trail court made an observation that : “ the plaintiff himself failed to prove his case regarding the execution of Ex.A1 by the defendant in his favour, as the plaintiff admitted in his crossexamination that the signature inEx.A1 is belongs to him and no cash consideration was passed under Ex.A1 on 18.1.2012 and more over he deposed for the first time in his crossexamination that Ex.A1 is a renewal one for previous debt in between him and the defendant. Though it is not the case of plaintiff, the crossexamination of P.W.1 entirely supports the case of defendant that

A.S.No.23/20178

it is renewal one for previous debts. The plaintiff completely failed to prove his case that Ex.A1 is true, valid and binding upon the defendant. The plaintiff completely failed to support his case regarding the execution of Ex.A1 by the defendant in his favour on 18.1.2012. Except Ex.A1 no evidence as adduced in support of his case.

No evidence was adduced by the plaintiff to show that the suit promissory note

dated 18.1.2012 was executed by the defendant by borrowing an amount of

Rs.34,400/ for his necessities. Therefore, the suit promissory note is not true and not binding on the defendant”. The above observations of the trial court are erroneous. In this case the execution of promissory note is not denied by the defendant. There is a clear admission in the pleadings and also in his evidence that he executed the promissory note on 8.1.2011, but not on 18.1.2012. It is renewal promissory note for previous debt. As held by this court the defendant failed to prove that the suit promissory note is altered from 8.1.2011 to 18.1.2012.

Therefore, ultimately it can be said that he executed the suit promissory note only on 18.1.2012. The defendant in his crossexamination clearly admitted that the signature on Ex.A1 is that of him and he is the executor of the suit promissory note.

Therefore, the question of plaintiff failing to prove the execution of promissory note by the defendant does not arise. Section 58 of Indian Evidence Act clear that admitted fact need not be proved. In addition to that it appears that the trail court ignored section 44 of Negotiable Instruments Act.

15. Section 44 of of Negotiable Instruments Act says with regard to the partial absence or failure of money – consideration – when the consideration for which a person signed on a promissory note, bill of exchange or cheque consistent of money, and was originally absent in part or was subsequently failed in part, the same which a holder standing in immediate relation with such signer is entitled to receive from him is proportionally reduced.

A.S.No.23/20179

16.It is not the case of defendant that he executed the suit promissory note for high/more amount then the amount actually due by him. He in his pleading as well as in his evidence stated that the suit promissory note is renewal one for previous debt. It means that the amount mentioned on the suit promissory note is due by him. The plaintiff in his crossexamination stated that he added Rs.400/ which is towards interest of previous debt due by the defendant. Seems by the date of Ex.A1 promissory note the defendant was due an amount of Rs.34,000/ as principal amount to the plaintiff. Of course the plaintiff not came forward with a clear facts by saying that Ex.A1 suit promissory note was executed by the defendant as a renewal one for the previous debt. But his plea in the suit is that on 18.1.2012 the defendant borrowed Rs.34,400/ from him and executed the suit promissory note.

But ultimately it is proved that Ex.A1 suit promissory note is renewal one. The reference of section 44 of Negotiable Instruments act by this court at this context is even have the plaintiff obtained a promissory note for higher amount, then actually due by the defendant, the suit can be decreed for the admitted due amount in view of section 44 of Negotiable Instruments Act.

17.Admittedly no prior notice from the plaintiff to the defendant before filing of the suit i.e., not bar to decide the suit claim. When it is established by virtue of

Ex.A1 the original promissory note and the admissions made by the defendant in his pleadings and evidence that he is the executor of the suit promissory note for his previous debt and failed to prove that the suit promissory note is materially altered.

This court concludes that Ex.A1 suit promissory note dated 18.1.2012 is renewal promissory note executed by the defendant for his previous debt payable to the plaintiff. It is not materially altered. These points are answered accordingly.

A.S.No.23/201710

18. POINTS NO.4 and 5:

4) Whether the defendant discharged the amount due under the suit promissory note ?

5) Whether the plaintiff is entitled for the recovery of suit amount as prayed ?

There is a specific plea taken by the defendant in his written statement at para No.3 that he discharged the entire promissory note debt. But the plaintiff did not return the suit promissory note and delivered that it was misplaced. In his evidence in chief also he stated so. In his crossexamination that he discharged the amount of Rs.59,000/ under Ex.A1 to the plaintiff. He failed to mentioned that what is the date of discharge of the amount of Rs.59,000/ under Ex.A1 to the plaintiff. Further more absolutely there is no material to show that the defendant discharged the amount due under the suit promissory note to the plaintiff. At this context, this court must refer section 82 of Negotiable Instruments Act which says about the discharge from the liability. According to section 82 the discharge can be made on three ways; (I) by cancellation of the instrument, (ii) by realize of the debt ;

(iii) by payment. The plaintiff cancels the suit promissory note. It is one type of discharge. If the plaintiff realize the liability of defendant by making an endorsement on the promissory note that is second type of discharge, the third one is by making payment. In this case there is no cancellation or realize from the side of plaintiff. Though the defendant stated that he discharged the liability of payment due under Ex.A1 suit promissory note by making the payment of Rs.59,000/ for which absolutely there is no evidence. Hence it can be said that the defendant not discharged the debt due under the suit promissory note.

A.S.No.23/201711

19.The interest claimed by the plaintiff in this suit is 24% per annum with annual compounding. It is clear from the facts of the case that the defendant borrowal of the amount is not for any business purpose, that too the promissory note is renewed one, with regard to the previous debt amount which includes the interest. Therefore, the claim of interest at 24% p.a., with annual compound is abnormal. Therefore, the interest can be scaled down to simple interest at 12% p.a.

The plaintiff is entitled to receive Rs.34,400/ with interest at 12% p.a., from the date of execution of Ex.A1 promissory note till the date of decree and thereafter at 6% p.a. Points are answered accordingly in favour of plaintiff.

20.POINT No.6 :‘To what relief’?

In the result, the judgment and decree in O.S.27/2015 dated 12.7.2016 on the file of Prl. Junior Civil Judge Court, Markapur is hereby set aside. The suit is decreed with proportionate costs for an amount of Rs.46,784/ with subsequent interest at 12% p.a., from the date of filing of the suit till the date of decree, thereafter at 6% p.a., till the date of realization on principal amount of Rs.34,400/.

The appeal is allowed accordingly with costs.

Dictated to the Personal Asst., transcribed by her corrected and pronounced

by me in Open Court, this the 17th day of June, 2020.

VI ADDL. DIST. & SESSIONS JUDGE,

PRAKASAM AT MARKAPUR.

APPENDIX OF EVIDENCE

Nil

VI A.D. & S.J.,Markapur.

AS/31/2016

Arikatla Seetha Mahalaksmi vs Gangapuram Padmavathi

30 Sep 2019

A.S.No.31/20161

IN THE COURT OF VI ADDL. DISTRICT JUDGE : MARKAPUR.

Present: Sri.G.Rama Krishna VI Addl. Dist. & Sessions Judge, Markapur.

Monday, the 30th day of September, 2019

A.S.No.31/2016

Between:

1.Arikatla Seetha Mahalakshmi W/o Veerabhadrachari, aged abut 46 years, House maker, Inamukkula village, Dornala Mandal at present resident at Pandurangapuram village, Nandyal Mandal, Prakasam

District.

2.Punnoju Seethamma W/o Prasadachari, aged about 43 years, House maker, Inamukkula village, Dornala Mandal, at present resident at

Raghavendra colony, Beerampuda, C/o Chandra reddy,

Pattancheruvu Mandal, Medak District.

.. APPELLANTS

A N D

1. Gangapuram Padmavathi W/o late Seetha Ramaiah, aged about 48 years, House maker, Inamukkula village, Dornala Mandal.

2. Gangapuram Malleswari D/o late Seetha Ramaiah, aged about 31 years,

3. Gangapuram Bhagyalakshmi D/o late Seetha Ramaiah, aged 21 years,

4. Gangapuram Nagajyothi D/o late Seetha Ramaiah, aged about 21 years,

5. Bhavanasi Pitchaiah S/o Rosaiah, aged about 64 years, cultivation,

6. Khambalapalli Yella reddy S/o Venkata Subba reddy, aged 58 years,

7. Khambhalapalli Venkateswara Reddy S/o Venkata Subba reddy, aged about 54 years, cultivation,

8. Pondugula Lakshmaiah S/o Polaiah, aged about 60 years, cultivation,

All the respondents are residents of Inamukkula village, Dornala Mandal.

.. RESPONDENTS

On appeal filed against the orders and Decree Dt.20072016 passed in

O.S.133/2008 on the file of Senior Civil Judge Court, Markapur.

A.S.No.31/20162

Between:

1. Arikatla Seetha Mahalakshmi

2. Punnoju Seethamma

..Plaintiffs

A N D

1. Gangapuram Padmavathi

2. Gangapuram Malleswari

3. Gangapuam Bhagyalakshmi

4. Gangapuram Nagajyothi

5. Bhavanasi Pitchaiah

6. Khamabalapalli Yella Reddy

7. Khambalapalli Venkateswara Reddy

8. Pondugula Lakshmaiah.. Defendants.

This Appeal Suit is coming on 12092019 for final hearing before this court in the presence of Sri.P.Subrahmanayam, Advocate for Appellant,

Sri.V.Kasaiah, advocate for Respondents 1 to 4 and Respondents 6 to 8,

Respondent No.5 died, Respondent No.8 remained expate and having stood over for consideration to this day, this court delivered the following:

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

1.The challenge under this appeal is against the judgment and decree passed in O.S.133/2008 dated 20.07.2016 on the file of Senior Civil

Judge Court, Markapur. The appellant herein is the plaintiff and the

respondents herein are the defendants in O.S.133/2008 before the trial court.

Therefore, to avoid confusion this court is going to refer the parties as they arrayed in O.S.133/2008. Since this court being first appellate is also a fact finding court invariably for deciding this appeal, this court must refer the pleadings and evidence of both parties.

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2.The case of plaintiff is that the plaintiffs 1 and 2 are sisters among them, the 1st plaintiff is elder. They had elder brother by name Ganapuram Seetha

Ramaiah the father of plaintiffs by name Gangapuram Bramhaiah died about 17 years back. Their mother Naga Lakshamma predeceased to their father.

3. The plaint schedule properties are ancestral properties of plaintiffs and their brother Seetha Ramaiah. The 1st plaintiff’s marriage was performed on 18.3.1986. The 2nd plaintiff’s marriage was performed on 6.4.1988 during the life time of their father. After death of their father, their brother assumed the management of joint family properties i.e., plaint schedule properties. The plaintiffs used to receive their share of income out of the plaint schedule properties as per their convenience. Thus the plaintiffs got joint possession and enjoyment over the schedule properties along with their brother Seetha

Ramaiah.

4. Seetha Ramaiah the brother of plaintiffs died about 4 years back. He left behind him his wife the 1st defendant and children the defendants 2 to 4. So all of them are having succeeded to the undivided 1/3rd share of the plaintiff’s brother and are in joint possession and enjoyment of their 1/3rd share along with plaintiffs.

5. The plaintiffs and defendants are the ryots of village, cultivating the plaint schedule properties through the defendants 5 to 8.

6. In the month of July, 2008 the plaintiffs went to the village for receiving their share of produce from plaint schedule properties as usual. At that time they demanded the defendants 1 to 4 to give their share for which the defendant No.1 gave evasive replies and told the plaintiffs that the plaintiffs are not concerned with the plaint schedule properties. Thereupon the plaintiffs came to know that the defendant No.1 colluded with defendants 5 to 8 and all of them conspired together to grab the share of plaintiffs in the plaint schedule properties. Then the plaintiffs got issued a legal notice dated 9.7.2008 33

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demanding the defendants 1 to 4 for amicable partition of their 2/3rd share in the plaint schedule properties and also calling upon the plaintiffs 8 to 9 and not safe to keep joint possession and enjoyment plaint schedule property. The 1st defendant received the notice, not gave any reply. The defendants 5, 7 and 8 received the notices, the defendants 4 and 6 avoided to receive the notice. The plaintiffs are having undivided 2/3rd share in the plaint schedule properties by dividing the plaint schedule properties. So they filed the suit for partition and separate possession of their 2/3rd share by dividing the plaint schedule properties into three equal shares and for allotments of one such share to the defendants 1 to 4 and one such share each to the plaintiffs and for permanent injunction restraining the defendants 5 to 8 from interfering with the possession and enjoyment of plaintiffs in plaint schedule properties.

7. The defendant No.1 in her written statement denied the plaint averments besides contending that the item No.3 of plaint schedule is not joint ancestral property of plaintiffs and Seetha Ramaiah. Item No.3 of plaint schedule property is self acquired property of defendant No.1 and obtained possession certificate from Tahsildar, Dornala in S.No.128 in the year 2004 January, 24th , she constructed a house for residential purpose on the site. For the said house, loan was sanctioned by A.P. Loans Corporation. She alone got title and possession over item No.3 of plaint schedule property. The plaintiffs have no right in it. The brother of plaintiffs Seetha Ramaiah might have sold the other properties to others, since the plaint schedule properties were belonged to

Seetha Ramaiah. Finally prayed the court to dismiss the suit with costs.

8. The defendants 2 to 4 adopted the written statement filed by D1 by filing a memo.

9. The defendants 6 and 7 in their written statement contended that item No.2 of plaint schedule property i.e., Ac.150 cents out of Ac.241 cents in

S.No.95/A was purchased by 6th defendant mother Kablapalli Yogamma from 44

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the father of plaintiffs by name Bramhaiah under a registered sale deed dated 13.5.1983 for consideration of Rs.11,300/ and took possession of the same, since then she has been under possession and enjoyment of the said land.

10.The 7th defendant’s sisterinlaw K.Lakshmamam purchased 090 cents out of Ac.240 cents of items No.2 of plaint schedule property from Seetha

Ramaiah the brother of plaintiffs for consideration of Rs.20,300/ under a registered sale deed dated 23.9.1997 and took possession of the said property, has been in possession and enjoyment of the said property. The defendants 6 and 7 are bonafide purchasers of properties. Their names are mutated in revenue records. There is no cause of action for the plaintiffs to file the suit.

Hence the suit is liable to be dismissed with exemplary costs.

11.The defendant No.5 though made her appearance by engaging an advocate, but not chosen to file written statement, remained exparte so also defendant No.8.

12.Based on the above pleadings the trial court framed the following issues:

1. Whether the plaintiffs are entitled for preliminary decree as prayed for ?

2. Whether the plaintiffs are entitled for final decree ?

3. To what relief ?

13.In order to prove their case, the plaintiff No.2 P.Seethamma, the plaintiff

No.1 A.Seetha Mahalakhmi were examined as P.Ws.1 and 2. B.Surya Narayana was examined as P.W.3 (his evidence eschewed). P.W.4 Y.Chandra Sekhar

Reddy. Exs.A1 to A3 are marked. On behalf of defendants, G.Padmavathi the 1st defendant got examined herself as D.W.1. A.Venkata Subba Reddy, D.Rami

Reddy were examined as D.Ws.2 and 3 (evidence of D.Ws.2 and 3 were eschewed). D.W.4 A.Srinivasulu, D.W.5 M.Prasad, D.W.6 Yella Reddy, D.W.7

K.Venkateswara Reddy were examined. Exs.B1 to B8 are marked. On considering the entire evidence and on hearing both side, the learned Senior 55

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Civil Judge, Markapur dismissed the suit. Aggrieved by the same the plaintiffs

preferred this appeal.

14.During pendency of this appeal the counsel for plaintiffs filed application under order 41 Rule 27 of Civil Procedure Code, the same was numbered as I.A.463/2019 wherein it is contended by the plaintiffs that the plaint schedule properties are ancestral properties. Their father Gangapuram

Brahmaiah inherited his properties from his ancestors. Item No.1 of plaint A schedule land measuring Ac.1199 cents in S.No.242 of Yedavalli village. It is ‘Kammari Inam’ as the father of plaintiffs and his forefathers are black smiths and carpenters by profession. As such item No.1 of plaint A schedule property

Ac.1199 cents in S.No.242 is recorded as KammariInam in RSR. But knowing the same the 1st respondent/1st defendant is falsely contending that it is the self acquired property of her husband Seetha Ramaiah. The 1st respondent is not having any properties of her own or inherited from her parents as she is residents of Mullapadu village. She came to Yedavalli village on marriage with the brother of plaintiffs’ long back.

15. Though the total extent of S.No.242 is Ac.1199 cents, but it is shown as

Ac.800 in revenue records. The husband of 1st respondent never had any self acquired property. But the 1st defendant came forward with a manipulated revenue record i.e., pass book showing Ac.800 in S.No.242 as sontham (own), but not filed any document showing that it is self acquired property of her husband. But the trial court dismissed the entire suit without referring 1B register and adangals which are showing the land of Ac.800 is

Anuvamdhikam. To substantiate their contention they filed the documents i.e., certified copy of RSR, 1B and adangals pertaining to S.NO.242 of Yedavalli village. As the documents were not with them during the trial of the stage till they obtained the copies under Right to Information Act and filed the same along with this application.

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16. Notice given to the other side, the counsel for defendants/respondents reported no counter.

17. As could be seen from RSR the total extent of land in S.No.242 is

Ac.11.99 cents. Resettlement register entries showing is kummari (black smith). So such is the case the observation in the judgment of trial court that there is no documentary proof to show that the total Ac.1199 cents existing on ground in S.No.242, the plaintiffs not filed any documents to that effect.

Further observation is that even the defendant also not filed any document to show that the property Ac.800 in S.No.242 of Yedavalli village is self acquired property of her husband is an error. No doubt pattadar pass books filed by the defendant i.e., marked as Ex.B1 shows that Ac.800 in S.No.242 is own property of G.Seetha Ramaiah. But the evidence of D.W.1 that she does not know from whom she purchased the suit schedule property. Further more with regard to item No.3 and B schedule property is concerned, the trial court observed that Ex.B4 copy of possession certificate issued by Mandal Revenue

Officer, Dornala in favour of 1st defendant on 24.1.2004, Ex.B5 is the certificate issued by the Assistant Engineer, Andhra Pradesh State House corporation showing that the house was sanctioned and constructed by the defendant

No.1. The said observations are against the admissions made by the own witnesses of the defendants. D.W.1 herself admitted in her crossexamination that her fatherinlaw acquired item No.1 of B schedule properties, her father inlaw acquired Ac.205 cents in s.No.198/1 i.e., item No.2 of B schedule properties. D.W.4 in his crossexamination stated that item Nos.3 to 5 of plaint B schedule property is not self acquired property of defendant. D.W.5 in his crossexamination admitted that Brahmaiah i.e., fatherinlaw of defendant, father of plaintiffs had own house and it was collapsed. On the site over which midde is existing in the name of D.W.1 using the said site. It is submitted by the learned counsel for plaintiff the said site is nothing but item

No.3 of plaint B schedule. All these aspects not answered by the trial court, 77

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because the documents which are filed along with I.A.463/2019 are not available and now the plaintiff filed the same as additional evidence. Therefore, prayed this court to remand back the suit to the trial court to receive those documents and consider the case of plaintiffs and the defendants. This court was convinced with the above contention of the learned counsel for plaintiffs.

18. In the result, the matter is remanded back to the trial court to receive the additional evidence i.e., copy of adangal, 1B namoona (ROR) and the resettlement register of village of Yedavalli and reconsider the case of parties by giving an opportunity to both side to let in evidence with regard to the additional evidence i.e., the documents referred above. The judgment and decree in O.S.133/2008 dated 20072016 on the file of Senior Civil Judge

Court, Markapur is hereby set aside. Appeal is allowed accordingly.

Dictated to the Personal Asst., transcribed by her corrected and

pronounced by me in Open Court, this the 30th day of September, 2019.

VI ADDL.DIST. & SESSIONS JUDGE,

PRAKASAM AT MARKAPUR.

APPENDIX OF EVIDENCE

Nil

VI A.D. & S.J.,

Markapur.

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