Smt. G.V.N. Bharatha Laxmi

1 Spl.Sc.No. 51 of 2018

IN THE COURT OF SPL.JUDGE FOR TRIAL OF CASES UNDER SCs/STs (POA) ACT –

CUM – V ADDITIONAL DISTRICT AND SESSIONS JUDGE, AT ADILABAD

Present: Smt. G.V.N. Bharatha Laxmi, Spl. Judge for trial of cases under SCs/STs [POA] Act Cum V Addl. District and Sessions Judge, Adilabad

Wednesday the 23rd day of October 2019

SPL.SC.NO. 51 OF 2018

Name of the Complainant State represented by Sub Divisional Police Officer, Kaghaznagar

Name of the Accused A1 Basharath Khan, S/o. Shamsheer Khan, Age: 34 years, Occ: Agriculture, Caste: Muslim, R/o. Marthidi village of Bejjur Mandal

A2 Kamera Chalu Bai, W/o. Durgaiah, Age: 37 years, Occ: Coolie, Caste: SC Mala, R/o. Marthidi village of Bejjur Mandal

Offence under section 302 r/w 34 IPC, Sec. 3 (2) (v) (a) of SCs/STs (POA) Amendment Act, 2015 against A1 302 r/w 34 IPC against A2

Plea of the accused Not guilty

Finding Not guilty

Sentence or Order In the result, the accused No.1 is found not guilty for the offence punishable U/sec. 302 r/w 34 IPC and Sec. 3 (2) (v) (a) of SCs/STs (POA) Amendment Act, 2015 and accused No.2 is found not guilty for the offence punishable U/sec. 302 r/w 34 IPC and they are accordingly acquitted under Section 235(1) Cr.P.C. Their bail bonds shall stand cancelled. MO1 to MO7 shall be kept intact till disposal of case against Juvenile and after expiry of appeal time.

Name of the counsel for prosecutionSri M. Ramana Reddy, I/C Addl. Public Prosecutor

Name of the counsel for Defence Sri. Y. Vishnu Bhagawan. Advocate

This case coming before me on 14.10.2019 for final hearing in the presence of Sri. M. Ramana Reddy, I/C Additional Public Prosecutor for the State and of Sri. Y. Vishnu Bhagawan, Advocate for A1 and A2 and on hearing both sides the matter having stood over for consideration till this day, this court delivered the following:

2 Spl.Sc.No. 51 of 2018

J U D G M E N T

1. The Sub Divisional Police Officer, Kaghaznagar filed charge sheet against the accused No.1 for the offence under Sections 302 r/w 34 IPC, Sec. 3 (2) (v) (a) of SCs/STs (POA) Amendment Act, 2015 and u/sec. 302 r/w 34 IPC against the accused No.2 in

Crime No.12 of 2018 of PS Bejjur.

2. The prosecution case in brief is that, on intervening night of 30/31.01.2018 between 12.00 hours and 01.00 hours, while the mother of complainant namely Savantha

Bai was sleeping in the house of his paternal uncle Durgam Lingaiah along with his wife, Durgam Mounu Bai and his mother Ammakka. All of sudden his mother woke up by making hue and cries burning with flames. Immediately his paternal uncle and his family members awaken and extinguished the flames. The complainant Durgam Das (LW1) asked his mother about facts and she told that A1, A2 and A3 (JCL) poured kerosene on her and set fire. Due to burning, his mother sustained severe burning injuries. Immediately he along with his maternal aunt, Durgam Shankara Bai and uncle

Durgam Devaji took his mother in 108 ambulance and shifted to Government Hospital,

Sirpur-T for treatment. The complainant further stated that about 4 years back his mother lent a sum of Rs.47,000/- to A2 for her daughter’s marriage but till now she did not repay. Whenever his mother asked to repay, A1, A2 and A3 (JCL) used to quarrel with his mother. Keeping in mind, about 5 days back i.e., on 25.01.2018 A1, A2 and A3 (JCL) poured kerosene on their house and set fire. On complaint, the case was registered and after completion of investigation charge sheet is filed against the accused No.1 for the offences punishable u/sec. 302 r/w 34 IPC, Sec. 3 (2) (v) (a) of SCs/STs (POA)

Amendment Act, 2015 and for the offence punishable u/sec. 302 r/w 34 IPC against the accused No.2.

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3. The case was taken on file by the Spl.Judge for trial of cases under SCs/STs (POA) Act–Cum–V Additional District and Sessions Judge, Adilabad, dated 14.08.2018 as Spl.SC No.51/2018.

4. After appearance of the accused and on hearing them, charges u/sec. 302 r/w 34

IPC, Sec. 3 (2) (v) (a) of SCs/STs (POA) Amendment Act, 2015 against A1 and u/sec. 302 r/w 34 IPC against A2 were framed, read over and explained the same to them in

Telugu, for which they pleaded not guilty and claimed to be tried.

5. During the course of the trial PW1 to PW25 were examined and Exs.P1 to Ex.P30 and MO1 to MO7 were marked. The examination of LWs 6, 9, 15, 21, 22, 25, 27, and 28, named Durgam Srinivas, Durgam Rajeshwari, Durgam Siddharth, Tandra Sugunamma,

Busa Shankar, Jummidi Maruthi, G. Dharneetha/Assistant Director, FSL Hyderabad, and K. Sudhakar/Scientific Assistant, RFSL, Karimnagar were given up by the learned

Additional Public Prosecutor.

6. On completion of the prosecution evidence, the accused were examined under

Section 313 Cr.P.C. They denied the incriminating evidence appearing against them in the evidence of prosecution witnesses and reported no defence evidence.

7. Heard arguments on both sides.

8. Now the point that arises for determination is:

“Whether the prosecution could bring home the guilt of A1 for the charges framed against him u/sec. 302 r/w 34 IPC, Sec. 3 (2) (v) (a) of SCs/STs (POA) Amendment Act, 2015 and u/sec. 302 r/w 34 IPC against A2,beyond all reasonable doubt?” 4 Spl.Sc.No. 51 of 2018

P O I N T:

9. This has been the charge framed against A1 and A2 (along with A3 JCL Kamera

Sai Kumar), that A1 not being the member of either Scheduled caste or Scheduled tribe and A2, A3 with common intention on intervening night of 30/31.01.2018 between 12.00 hours to 01.00 hours at Marthidi village of Bejjur Mandal, poured kerosene on deceased/Durgam Savantha Bai member of Scheduled Caste and set fire; thereby committed the murder of deceased/Durgam Savantha Bai.Thereby A1 and A2 have committed an offence punishable U/sec.302 r/w 34 IPC and A1 committed offence punishable u/sec. 3 (2) (v) (a) of SCs/STs (POA) Amendment Act, 2015.

10. In order to substantiate the charges leveled against the accused, prosecution has got examined as many as witnesses PWs 1 to 25 and also got marked Ex.P1 to P30 and

MOs 1 to 7. On the other side the plea of the accused is of total denial and reported no defence evidence.

11. Of the prosecution witnesses PWs 1 to 25, at a glance it is seen that PW1 and PW5 are sons of deceased, PW2 to PW8, PW10 to PW15 are relatives of deceased among them

PW2 to PW4, PW8, PW11 to PW15 have turned hostile and did not support the case of prosecution, PW9 and PW16 are photographers, PW17 is mediator for inquest, PW18 is mediator for crime scene panchanama, PW19 is doctor who certifies fit state of mind of deceased and also conducted PME of deceased, PW20 is Head Constable, PW21 is

Tahsildar who recorded the dying declaration of deceased as well as certifies the caste particulars of deceased and A1, PW22 is learned Judicial Magistrate of First Class,

Sirpur-T, who recorded dying declaration of deceased, PW23 is S.I of police, Bejjur,

PW24 and PW25 are investigating officers of this case.

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12. This is the allegation of the prosecution as revealed from the testimony of PW1 that the deceased/Durgam Savantha Bai is his mother and they belongs to SC-Mala caste. A1 belong to Muslim caste, A2 and A3 belongs to SC-Mala caste. On intervening night of 30/31.01.2018 at midnight 12.30 am to 01.00 am as their house was got burned by A1 to A3, his mother/deceased was sleeping in the cattle shed of his paternal uncle/PW15 along with his paternal aunt/PW2 and his grandmother/PW3 and at that time he was sleeping in their house as construction was going on. On hearing shoutings of his mother/deceased, he woke up and rushed to the cattle shed and found the deceased/Durgam Savantha Bai was totally burned and was in flames and uttering the names of A1 to A3 as they poured kerosene on her and lit fire. On seeing the deceased/Durgam Savantha Bai in flames immediately they called to 108 ambulance and shifted the deceased/Durgam Savantha Bai to Government Hospital, Sirpur-T.

While the deceased/Durgam Savantha Bai being shifted from Government Hospital,

Sirpur-T to Government Hospital, Warangal on the way she died. Further four years earlier to this incident, the deceased/Durgam Savantha Bai has lent amount of

Rs.47,000/- to A2 on the occasion of her daughter’s marriage. A2 agreed to pay money within one year but she did not repay. Once the deceased/Durgam Savantha Bai asked for repayment of amount, on that a quarrel was taken place by A1 to A3 at bus stop of their village. Further there was a land dispute in between deceased/Durgam Savantha

Bai and A1 since 30 years prior to the offence. Further four days prior to the offence their house was got burned by A1 to A3, then they went to police station and lodged complaint but the police did not take any action. While the deceased/Durgam Savantha

Bai was in treatment in Government Hospital, Sirpur-T, he has given the complaint under Ex.P1 to the S.I of police. Hence A1 to A3 are responsible for the death of deceased/Durgam Savantha Bai. Further they have intimated the death of the deceased to the police and shifted the dead body of the deceased/Durgam Savantha Bai to mortuary to Sirpur Government Hospital. The police recorded his statement.

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13. On the other side, this is the defense taken by the learned counsel for the accused that there are political disputes in between A1 and one Ravi Murali, Ravi Srinivas who are brothers and A1 is the person of present MLA of Sirpur-T, Ravi Srinivas contested as

MLA against sitting MLA for Sirpur-T, hence at the instance of Ravi Murali and Ravi

Srinivas, PW1 has foisted this false case against A1 to A3 and they are no way responsible for the death of the deceased/Durgam Savantha Bai. In order to support of defense the learned counsel for the accused has done cross examination.

14. Now I take the allegations of the PW1 one by one as to the alleged offence charged against A1 and A2. Regarding motive against the accused to purport this alleged offence, this is the contention of PW1 that since 30 years there are land disputes in between A1 and deceased/Durgam Savantha Bai. Further A2 obtained hand loan of

Rs.47,000/- from the deceased/Durgam Savantha Bai on the occasion of her daughter’s marriage and failed to repay the same and when the deceased/Durgam Savantha Bai asked for repayment of amount, a quarrel was taken place by A1 to A3. Further four days prior to the offence, their house was got burned by A1 to A3 and they went to police station and lodged complaint. Further here the contention of PW1 is that the police did not taken any action, thereby PW1 has alleged that A1 to A3 have motive to purport this crime against the deceased/Durgam Savantha Bai. Further another son of deceased/Durgam Savantha Bai who was examined as PW5 also deposed in the same lines with that of PW1 in respect of the alleged motive. Whereas in cross examination by the learned counsel for the accused, PW1 categorically admitted that there are no cases filed in between them and A1 in respect of land disputes. Further it is also admitted by

PW1 that after their house got burned Tahsildar has come and made enquiry at the spot and gave report that their house was burned accidentally. Regarding the hand loan it is categorically admitted by PW1 that in respect of loan borrowed by A2 from deceased/Durgam Savantha Bai, a document was executed but the same was also burnt 7 Spl.Sc.No. 51 of 2018 at the time of house burn. Further it is stated by PW1 that the loan agreement was executed on white paper and A1 is one of the witnesses. Whereas PW5 also while cross examination has categorically admitted that they did not filed any case against either

Samsher Khan or A1 regarding land dispute. Further it is clearly admitted by PW5 that the land dispute lying in between Lasmaiah and Ganapathi only and A1 is no way concerned with that land. Further he admitted that they are no way concern with the land which is in dispute between Lasmaiah and Ganapathi. Further PW5 admitted that on the report of Ganapathi a case was registered against 12 members including him and deceased/Durgam Savantha Bai. Further regarding alleged loan transaction, it is admitted by PW5 that they did not get issued any legal notice to A2 in respect of loan. It is also admitted by PW5 that the deceased/Durgam Savantha Bai did not lend money to

A1. Apart from the admission of PW1 and PW5, PW25/investigating officer also categorically stated while cross examination that he did not collect any of the document regarding the alleged loan transaction in between deceased/Durgam Savantha Bai and

A2. Further it is categorically stated by PW25 that as per his investigation the house of deceased/Durgam Savantha Bai was burnt due to accidental short circuit of electricity.

Therefore, from the admissions of PW1, PW5 and PW25/investigating officer, it is clear that though the prosecution has alleged that there were land disputes in between deceased/Durgam Savantha Bai and A1 but there is no piece of evidence in proof of the said contention. Further though PW1 has alleged that four days prior to this alleged offence their house was got burnt by A1 to A3 but even according to their admissions,

Tahsildar has visited the spot and made enquiry and filed report that the house of PW1 was burnt accidentally and the said fact is also admitted by PW25/investigating officer.

Therefore, the allegation of PW1 against A1 and A2 in respect of motive to purport this crime has not been established by the prosecution with any cogent evidence. Therefore, it can be said that the prosecution has miserably failed to prove the motive against A1 and A2 to purport this alleged offence against deceased/Durgam Savantha Bai.

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15. Now it has to be seen whether the prosecution is able to prove that whether the death of the deceased/Durgam Savantha Bai is unnatural. On this aspect, the prosecution has relied on the evidence of WP19/Dr. M. Harish Kumar, the then Civil

Assistant Surgeon in Community Health Center, Sirpur. According to his evidence, on 31.01.2018 early hours deceased/Durgam Savantha Bai was admitted in Community

Health Center, Sirpur with burn injuries all over the body. Then after he referred the deceased/Durgam Savantha Bai to higher center for treatment. However on the same day at about 3.45 pm he received requisition from the police, Bejjur to conduct PME over the dead body of deceased/Durgam Savantha Bai. Accordingly on the same day he conducted autopsy over the dead body of deceased/Durgam Savantha Bai from 3.50 pm to 5.30 pm during autopsy he found anti mortem injuries all over the body to the extent 95% and charring of hair over scalp present. Further on internal examination he found soot particles present in nasal cavity and oral cavity and trachea, lungs inflamed and congested, burn injuries noted over genital organs. Accordingly he issued Ex.P18 PME report. Then after he preserved stomach contents, intestine contents, liver, kidney and blood and sent for chemical analysis. After receipt of Ex.P19 FSL report stating that no poisonous and no alcohol, accordingly he issued Ex.P20 final opinion as to the cause of death of the deceased/Durgam Savantha Bai is due to burn injuries. Further the approximate death of the deceased is 5 to 7 hours prior to her death. On the other side, the fact of the death of deceased/Durgam Savantha Bai with burn injuries is not disputed by the learned counsel for the defense. Thereby the prosecution has categorically established that the deceased/Durgam Savantha Bai was died due to 95% burn injuries which is unnatural death.

16. Now it has to be seen that whether the prosecution could able to connect A1 and

A2 for the death of the deceased/Durgam Savantha Bai caused with burn injuries. On this aspect, the evidence of PW1 has shown that on the intervening night of 9 Spl.Sc.No. 51 of 2018 30/31.01.2018 the deceased/Durgam Savantha Bai was sleeping in the cattle shed of his paternal uncle/PW15 along with his paternal aunt/PW2 and his grandmother/PW3, at that time he was sleeping in their house as construction was going on. At about 12.30 am to 1.00 am he heard shoutings of deceased/Durgam Savantha Bai, then woke up and rushed to the cattle shed and found the deceased/Durgam Savantha Bai was totally burned and was in flames and uttering the names of A1 to A3, as they poured kerosene on her and lit fire. Immediately they called 108 ambulance and shifted the deceased/Durgam Savantha Bai to Government Hospital, Sirpur. On this aspect, if we see the evidence of PW5 another son of deceased/Durgam Savantha Bai, he is not eyewitness to the alleged offence and he was informed the alleged offence through PW1.

Whereas while cross examination of PW1 it is categorically admitted that at the time of alleged offence, the deceased/Durgam Savantha Bai slept on Nawar cot and PW2 and

PW3 slept beside to her on separate cots. Further in between the cots of deceased/Durgam Savantha Bai, PW2 and PW3 tehre is a camp fire. Further it is denied by PW1 that there is burning charcoal under the cot of deceased/Durgam Savantha Bai.

But whereas the evidence of PW2 allegedly sleeping beside to the deceased/Durgam

Savantha Bai has shown that at midnight 1.00 am the deceased/Durgam Savantha Bai woke her up and by that time she was in full of flames, then she called PW4 and by pouring water they extinguished the flames. Further this is the evidence of PW2 that the deceased/Durgam Savantha Bai did not speak anything nor speaking anything about how she got fire. At this stage she declared hostile but no fact in favour of the prosecution was elicited by the learned Addl.PP. Apart from that while cross examination this is the fact elicited that the deceased/Durgam Savantha Bai kept burning charcoal under her cot and she is toddler of alcohol. Further PW2 stated that as the son of deceased/Durgam Savantha Bai beat her as she consumed more alcohol and slept in their house. Further it is also categorically admitted by PW2 that due to burning charcoal the Nawar cot of deceased/Durgam Savantha Bai was got fire and it burned 10 Spl.Sc.No. 51 of 2018 and the deceased/Durgam Savantha Bai fell down from the cot through burning nawar and she got fire and burned her total body from top to bottom. Further it is also admitted by PW2 that there is no smell of kerosene in crime scene. Further there is no reason has been elicited to speak falsehood against the case of the prosecution. Here section 161 Cr.PC statement PW2 also did not reveal anything as she seen the accused in the crime scene at the time of offence. Further even according to her admission while sleeping the deceased/Durgam Savantha Bai kept burning charcoal under her cot.

Further PW2 being eyewitness has stated that due to burning charcoal the nawar cot of deceased/Durgam Savantha Bai got fire and due to that the deceased/Durgam

Savantha Bai got fire and burned. Further from her evidence it is made clear that there is no smell of kerosene in crime scene. If really as alleged by PW1, kerosene is poured on the deceased/Durgam Savantha Bai, the said place and body of deceased/Deugam

Savantha Bai would have been covered with kerosene, thereby smell of kerosene must have been spread in the crime scene but according to the evidence of PW2 there is no smell of kerosene.

17. Further PW3 who is none other than mother-in-law of deceased/Durgam

Savantha Bai, PW4 who is none other than brother-in-law of deceased/Durgam

Savantha Bai whose house is situated by the side of crime scene, PW8 is relative of deceased/Durgam Savantha Bai, PW15 in whose cattle shed the deceased/Durgam

Savantha Bai was slept, PW11 is co-sister of deceased/Durgam Savantha Bai, PW12 who is daughter of PW11, PW13 who is nephew by relation of deceased/Durgam Savantha

Bai, PW14 who is niece by relation of deceased/Durgam Savantha Bai have turned hostile and did not support the case of prosecution.

18. Further the evidence of PW18 said to be mediator for the scene of offence also categorically deposed in cross examination that he did not get smell of kerosene in crime 11 Spl.Sc.No. 51 of 2018 scene and also smell of petrol. Further he did not find any tin of kerosene or petrol.

Apart from that there is no any kerosene or petrol or any match box or match stick seizure made by the police from the crime scene. Apart from that the evidence of PW19- doctor who conducted PME also made clear while cross examination that he did not find any kerosene smell over the body of deceased/Durgam Savantha Bai. Further it is also admitted by PW19 that if a person burned with kerosene, they received pungent smell of kerosene from that person and he did not find any kerosene smell on the body of deceased/Durgam Savantha Bai. Apart from that this is also the evidence of

PW24/investigating officer that here was charcoal bowl lying under the cot of deceased/Durgam Savantha Bai and there was a camp fire in between three cots. The said fact also admitted by PW25/investigating officer. Further it is elicited from the cross examination of PW25/investigating officer that he did not observe any kind of kerosene or petroleum smell in crime scene and also not seized any product of any kerosene or petroleum in crime scene. Further the said fact is also being corroborated by

Ex.P29/FSL report issued by FSL, Hyderabad, accordingly no inflammable Hydro carbons are found in MO1 Half burned blanket, MO2 Burnt saree, MO3 Ash of mixture of all burnt pieces, MO4 Ash lying under cot, MO5 Ash with pieces of burnt Nawar of cot, MO6 Burnt earth and MO7 Control earth which are seized from the crime scene in the presence of mediator PW18 and item No.8 which is pieces of cotton swabs with black colour stains.

19. On this aspect, the learned counsel for accused relied on a decision made in case of III Additional District and Sessions Judge vs. Keesari Madhav Reddy, 2003 (2) ALT (Crl.) 401. Wherein their lordships held as under:

“If kerosene was poured over the body of the deceased atleast one could find a container. Even in post-mortem report there is no mention of even smell of kerosene. No doctor has even stated that kerosene was found on the body. Therefore, it appears that this theory of pouring kerosene over the body of the deceased was invented much after”.

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20. So, the above said admissions and facts have categorically established that the deceased/Durgam Savantha Bai has slept on Nawar cot and beside to her, her co- sister/PW2 and her mother-in-law/PW3 also slept on separate cots. Further while sleeping they kept camp fire in between their three cots and also the deceased/Durgam

Savantha Bai kept burning charcoal bowl underneath of her cot. Further there is no iota of evidence to show that at the time of alleged offence either kerosene or petrol was used. Therefore, it appears that this theory of pouring kerosene over the body of deceased/Durgam Savantha Bai was invented much after. Further even PW2 and PW3 who slept along with deceased/Durgam Savantha Bai and other relatives of deceased/Durgam Savantha Bai who have no reason to speak against the prosecution, have deposed nothing in one tone against the accused. Thereby the contention of the prosecution that the accused poured kerosene over the deceased/Durgam Savantha Bai and to lit her fire has been remained unproved.

21. Further this has been the allegation of the prosecution that the deceased/Durgam

Savantha Bai has made dying declaration before Tahsildar/PW21 as well as before

PW22/Judicial Magistrate of First Class, Sirpur Town that while she was sleeping at the cattle shed of PW2, A1 came her and poured kerosene on her and lit fire due to which she received burn injuries. On this aspect, this is the evidence of PW1 on the intervening night of 30/31.01.2018 at the time of alleged offence he was sleeping in their newly constructed house in a distance of 70 meters and at that time the deceased/Durgam

Savantha Bai was sleeping in the cattle shed of PW2 along with PW2 and PW3 and at that time he heard shoutings of deceased/Durgam Savantha Bai, then he woke up and rushed to the cattle shed and found the deceased/Durgam Savantha Bai was totally burned and was in flames by uttering the names of A1 to A3, as they poured kerosene on her and lit fire. Whereas in cross examination PW1 stated that the deceased/Durgam

Savantha Bai was burnt nearly 70-80% and her one eye was partially burned and her 13 Spl.Sc.No. 51 of 2018 hair was totally burned. Then he immediately he telephoned to 100 and 108, then S.I of police and Tahsildar reached to the crime scene within half an hour. Tahsildar has recorded the statement of deceased/Durgam Savantha Bai and SI of police also recorded the statement. Further it is stated by PW1 that the deceased/Durgam Savantha

Bai was shifted to Government Hospital, Sirpur in 108 ambulance and S.I of police also came to hospital, and there he gave complaint to him. Though his evidence clearly shows that he is not eyewitness to the alleged offence, however on shoutings of the deceased/Durgam Savantha Bai he reached to the crime scene and found her with flames. Though it is stated by PW1 that the deceased/Durgam Savantha Bai uttering the names of A1 to A3, as they poured kerosene on her and lit fire but the said fact has not been supported by PW2 and PW3 who slept along with deceased/Durgam Savantha Bai and the said fact has not been supported by the evidence of PW15 in whose cattle shed the deceased/Durgam Savantha Bai slept on the alleged day of offence. Further other witnesses PW2 to PW4, PW8, PW11 to PW15 who reached to the crime scene immediately after the alleged offence and who are also none other than relatives of deceased/Durgam Savantha Bai have not deposed anything about any statement made by the deceased/Durgam Savantha Bai regarding the cause of alleged offence as well as the names of accused.

22. Further according to the evidence of PW1 within half an hour of the alleged offence, SI of police along with Tahsildar reached to the crime scene and Tahsildar recorded the dying declaration of deceased/Durgam Savantha Bai and SI of police also recorded the statement. If that is the fact that the alleged dying declaration recorded by

Tahsildar or statement recorded by the police which is made earlier of alleged offence, would become first information report to police but as per the evidence on record, the alleged offence though occurred in between 12.00 hours to 1.00 am and SI of police and

Tahsildar have reached within half an hour i.e., it might be in between 1.00 to 1.30 am 14 Spl.Sc.No. 51 of 2018 the police have to register FIR atleast even by 2.00 am but even as per the evidence of

PW1 as well as, as per the evidence of PW24/SI of police, Bejjur, PW1 came to police station on 31.01.2018 and lodged complaint under Ex.P1 at about 7.00 am. Basing on it

PW24, the then SI of police, Bejjur registered a case in Cr.No.12/2018. Further this is the evidence of PW24 that by 1.30 am after information from a call received 100 dial about the alleged offence then immediately he rushed to the crime scene along with

PW21/Tahsildar. In such a case PW24 need not to wait till 2.00 am for lodging complaint at about 7.00 am by waiting (5) hours. Further PW24/SI of police ought to have proceeded and registered crime basing on the alleging of dying declaration or statement of the deceased/Durgam Savantha Bai at the crime scene which is made within half an hour of the alleged offence, so in action of SI of police for not registering the case immediately though he visited the crime scene also waiting till PW1 has lodged complaint under Ex.P1 at about 7.00 am and in action of PW1 not to file complaint at the earliest point of time of alleged offence and waited till 7.00 am to file lodging complaint under Ex.P1 creates a reasonable doubt in respect of genuinenity of Ex.P1 as it might have been filed after a thought and deliberation.

23. Further the prosecution mostly relied on the evidence of PW21/Tahsildar and

PW22/learned Judicial Magistrate of First Class, Sirpur Town to whom the deceased/Durgam Savantha Bai has made alleged dying declaration. Whereas the evidence of PW21/Tahsildar has revealed the fact that on 31.01.2018 at about 1.30 am he received requisition from Addl. SI, Bejjur/PW24 to record the dying declaration of deceased/Durgam Savantha Bai of Marthidi village, then he went to crime scene of

Marthidi village and found the deceased/Durgam Savantha Bai with burn injuries lying on cot in a cattle shed. Then he asked her whether she is able to speak. Then the deceased/Durgam Savantha Bai said she is able. Then he asked the deceased/Durgam

Savantha Bai where she is, then the deceased/Durgam Savantha Bai said she is in cattle 15 Spl.Sc.No. 51 of 2018 shed of Durgam Mounu Bai/PW2. Then PW21/Tahsildar asked who brought her here.

Then the deceased/Durgam Savantha Bai did not tell anything. Then again

PW21/Tahsildar asked the deceased/Durgam Savantha Bai how the incident was happened. Then the deceased/Durgam Savantha Bai said that Chalu Bai/A2, Sai gadu/JCL, Basarath/A1 and they all came to her and by pouring kerosene over her lit fire. Then he asked the deceased/Durgam Savantha Bai how she identified A1, A2 and

A3 (JCL). The deceased/Durgam Savantha Bai said to him that she identified them in the lighting of street light. Then he asked the deceased/Durgam Savantha Bai what happened. Then deceased/Durgam Savantha Bai said that she gave Rs.40,000/- to the marriage of daughter of A2 and as she asked A2 for repayment of money, they have got burned her. Accordingly he has prepared the dying declaration of deceased/Durgam

Savantha Bai what she deposed to him but did not obtain signature or thumb impression as burned. Accordingly PW21/Tahsildar has prepared dying declaration of deceased/Durgam Savantha Bai under Ex.P22. However, PW1/Tahsildar did not obtain signature or thumb impression as she burned. While cross examination it is admitted by

PW1/Tahsildar that the feet, hands and face of deceased/Durgam Savantha Bai was burned and soot is present all over the body of deceased/Durgam Savantha Bai. Further it is admitted by PW21/Tahsildar that he did not call any doctor to verify whether the deceased/Durgam Savantha Bai was in fit condition to speak before recording of alleged dying declaration. Further it is elicited that the mother tongue of deceased/Durgam Savantha Bai is Marathi and he spoke to deceased/Durgam

Savantha Bai in Telugu and she also gave answers in Telugu language but the dying declaration is not prepared Telugu language and it is prepared in English language.

Further it is elicited that PW21/Tahsildar handed over dying declaration immediately to

SI of police. Further it is admitted by PW21/Tahsildar as fingers and toes of the deceased/Durgam Savantha Bai was burned, he could not take her thumb or toe impression on dying declaration. Thereby after gone through the cross examination the 16 Spl.Sc.No. 51 of 2018 evidence of PW21/Tahsildar has revealed the fact that he did not obtain any doctor certification regarding fit state of mind of deceased/Durgam Savantha Bai before going to record the dying declaration. Further though the deceased/Durgam Savantha Bai spoke in Telugu language he prepared the same in English language and also he could not obtain her thumb or toe impression on dying declaration as the fingers and toes of the deceased/Durgam Savantha Bai was burned. Further it is not established by the prosecution that at the time of dying declaration except deceased/Durgam Savantha Bai nobody was present by the side of her. Further as per the evidence of other witnesses public was gathered at the crime scene. Hence it shows there are no precautions taken by PW21/Tahsildar to remove all others from the side of the deceased/Durgam

Savantha Bai while recording the dying declaration. So, it is clear that PW21/Tahsildar has recorded the dying declaration of deceased/Durgam Savantha Bai while she was having family members beside of her. Thereby we cannot rule out the possibility of tutoring to the deceased/Durgam Savantha Bai by the family members present with her. Therefore, we cannot rely on the evidence of PW21/Tahsildar as it was not recorded with all proper precautions.

24. Now coming to the evidence of PW22/learned Judicial Magistrate of First Class,

Sirpur Town, it is revealed that on 31.012018 at about 7.45 a.m., he received requisition from SI of police under Ex.P23 to record dying declaration of deceased/Durgam

Savantha Bai who admitted in Community Health Center, Sirpur Town. Then immediately he proceeded to Community Health Center Sirpur Town and reached there by 8.00 am and identified the declarant/deceased with the help of duty doctor/PW19 and deceased/Durgam Savantha Bai was found with burn injuries. before going to record dying declaration of deceased/Durgam Savantha Bai he requested PW19/doctor to certify the fit state of mind of deceased/Durgam Savantha Bai to give dying declaration. Accordingly PW19/doctor made endorsement under Ex.P16 stating that the 17 Spl.Sc.No. 51 of 2018 deceased/Durgam Savantha Bai is conscious, coherent and fit state of mind to record dying declaration. Then PW22//learned JFCM disclosed his identity to the deceased/Durgam Savantha Bai and put some simple questions to know the fit state of mind of the deceased/Durgam Savantha Bai. Further he satisfied about the fit state of mind about the deceased/Durgam Savantha Bai with the answers given by her. Then he put a question to the declarant/deceased about the cause of her burn injures, then she stated that “yesterday night herself, her mother-in-law by name Durgam Rambai and

Mouna Bai slept in their house and at about 1.00 am, Kamre Chalubai/A2, Kamre

Sai/JCL and Basrath Khan/A1 came to her and poured kerosene or petrol on her and set ablaze”, the he enquired with declarant/deceased about the reason of the incident, then deceased/Durgam Savantha Bai stated that “about 5 years ago, she lent an amount of Rs.40,000/- to Chalubai/A2 on the occasion of her daughter’s marriage, in that regard a galata took place and further there were land disputes in between her and Basrath

Khan/A1, due to which they came and set ablaze to her, while she was ablazing the said

A1, A2 and JCL fled away from crime scene, then she witnessed them”. Further to the question of PW22/learned JFCM the declarant/deceased stated that the father name of

A1 is Samsher Khan and they belong to her village. Accordingly PW22/learned JFCM has recorded the dying declaration of declarant/deceased in writing in Telugu language and as right hand fingers and left thumb are completely burned, hence he obtained the left index finger impression of the declarant/deceased on her dying declaration and read over the contents of dying declaration to the declarant/deceased, on which she admitted as true and correct as per her statement. Then again PW22/learned JFCM obtained left hand index finger impression of the declarant/deceased regarding her endorsement about the contents of dying declaration as true and correct. Then

PW22/learned JFCM satisfied the declarant/deceased was conscious, coherent and fit state of mind throughout recording the dying declaration. Further PW22/learned JFCM also obtained endorsement of PW19/doctor under Ex.P17 in respect of fit state of mind 18 Spl.Sc.No. 51 of 2018 of declarant/deceased. Ex.P24 is dying declaration of declarant/deceased. Then he also put his signature on it. Further, as per the evidence of PW22/learned JFCM throughout recording of dying declaration himself, his attender and duty doctor were only present during recording. Thereby he commenced to record the dying declaration at 8.00 am and completed it by 8.25 am. While cross examination it is made clear by PW22/learned

JFCM that by the time of receiving requisition, he did not receive FIR and he has not verified the case sheet and medical record of the declarant/deceased. Further it is stated by PW22/learned JFCM that by the time of identification of declarant/deceased with the help of doctor and none of the relative of declarant/deceased was present by the side of her and he did not enquire about the presence of any of the relative of declarant/deceased in the hospital. Apart from that it is made clear by PW22/learned

JFCM that he did not get any smell or either petrol or kerosene from declarant/deceased.

25. Whereas the evidence of PW19/Doctor the then Civil Assistant Surgeon in

Community Health Center Sirpur Town has revealed that on 31.01.2018 at about 8.00 am the Hon’ble JFCM Sirpur-T/PW22 has come to deceased/Durgam Savantha Bai to record dying declaration. He has shown the deceased/Durgam Savantha Bai to

PW22/JFCM. At the request of PW22/JFCM about the fit state of mind of deceased/Durgam Savantha Bai, he certified at the beginning of recording dying declaration as deceased/Durgam Savantha Bai is conscious, coherent, cooperative and responding well to oral commands. Accordingly he made Ex.P16 endorsement of certification on dying declaration of deceased/Durgam Savantha Bai. Further after completion of recording dying declaration also he made Ex.P17 endorsement of certification as the deceased/Durgam Savantha Bai is conscious, coherent, cooperative and responding well to oral commands. Whereas in cross examination it is elicited by the learned counsel for the accused that PW19/doctor has given pain killers with IV 19 Spl.Sc.No. 51 of 2018 fluids to deceased/Durgam Savantha Bai during treatment. Further it is elicited that he has also given intra muscular injection which is pain killer to the deceased/Durgam

Savantha Bai. Further it is elicited that PW19/doctor has written statement details in emergency OP register. Further PW19/doctor admitted that in cases of burning there would be much pain and sufferants. Therefore, from the evidence of PW19/doctor it is elicited that while treating the deceased/Durgam Savantha Bai he has given pain killers with IV fluids to her during treatment and also given intra muscular injection which is pain killer to her.

26. Further this is the evidence of PW23, the then SI of police, Sirpur Town on 31.01.2018 at about 6.00 am he received telephonic information from PW19/Dr. Harish of Government Hospital, Sirpur-T that a lady/Savantha Bai with burn injuries was admitted in hospital and going to be give dying declaration. Then immediately he went to PW22/learned JFCM Sirpur-T and submitted requisition before him under Ex.P24 for recording dying declaration of the deceased/Durgam Savantha Bai.

27. Therefore, after gone through the evidence of PW19/doctor, PW21/Tahsildar and

PW22/learned JFCM, this is the fact brought on record that while giving alleged dying declaration to PW21/Tahsildar the deceased/Durgam Savantha Bai has stated that she identified A1, A2 and A3/JCL in the light of street light at the time of alleged offence.

Whereas as per the evidence of PW22/learned JFCM the deceased/Durgam Savantha

Bai stated to him that she witnessed A1, A2 andA3/JCL while they were fleeing away from the crime scene. So the deceased/Durgam Savantha Bai has given different versions when she has witnessed or identified A1 to A3. Further according to the prosecution case, while PW1 was sleeping the alleged offence was taken place. In such a case when a person was asleep there is no chance at all to observe the culprits until she woke up. Even according to her evidence after, the accused poured kerosene on her and 20 Spl.Sc.No. 51 of 2018 while she was ablazing she witnessed A1, A2 and A3/JCL fleeing away from crime scene. So it is only from back side of persons. Whereas the dying declaration of deceased/Durgam Savantha Bai given to PW21/Tahsildar shows that she identified A1 to A3 in the light of street light. So in view of the contradicting statement in respect of identification of accused is doubting credibility of the deceased/Durgam Savantha Bai.

Further, if we see as per Ex.P15 scene of offence panchanama including rough sketch it does not reveal any existing street light at nearby crime scene. Thereby the evidence of deceased/Durgam Savantha Bai that she identified A1 to A3 in the light of street light has been falsified. Apart from that even as per the evidence of PW1 and PW5 there is one instant that as their house was got burned accidentally due to short circuit the deceased/Durgam Savantha Bai falsely alleged that A1 to A3 burned their house but after enquiry her allegation was proved as false. So the said instance shows the mind set and imaginations of the deceased that she is used to make allegations against A1 to A3 if she effected with any damage. So the said instance also raising possibility against the testimony of deceased/Durgam Savantha Bai that she might have imagined when she was ablaze that A1 to A3 have come and poured kerosene against her and lit fire.

28. On this aspect, the learned counsel for the accused relied on a decision made in case of Rahana Begum and others v. State of A.P represented by its Public Prosecutor, 2016 Law Suit (Hyderabad) 588 = 2017 91) ALD (Crl.) 749. Wherein their lordships held as under:

“In Ex.P11 the deceased has made an omnibus allegation that all the three accused came, poured kerosene and lit the fire. This, in our opinion, is contrary to natural human conduct because there is no need for all the three persons either to pour kerosene or to light the fire. Thus, specific overt acts have not been attributed by the deceased to each of the accused and failure in this regard does not inspire confidence on the credibility of the version of the deceased spoken to in the dying declaration. Further, the prosecution has not produced any material objects in support of its case”.

21 Spl.Sc.No. 51 of 2018

Further it is held as under:

“As noted hereinbefore, the prosecution failed to establish the motive and in the face of various inconsistencies and suspicious circumstances in which the dying declaration is shrouded, we are of the opinion that it is wholly unsafe to base the conviction of the appellants solely on the purported dying declaration of the deceased. The Court below, in our opinion, has committed illegality in mainly relying upon Ex.P11 for basing conviction in the absence of any corroborative evidence”.

He further relied on a decision made in case of Mohan Sadhu Kawale vs. State of

Maharastra, 2005 (2) Crimes (HC) 20. Wherein their lordships held as under:

“Apart from this, the medial case diary indicates that when the deceased was brought to the hospital, amongst various injections that were given to her, one was an injection of Fortwin. P.W.10 Dr. Kawachale stated that Fortwin was a sedative drug and the same was given to the patient to give relief from pain. The effect of the Fortwin injection took place within 5 minutes if it was given intravenous. He was unable to state to whether in the present case the said injection was given intravenous or intramuscular. He further admitted that it was usually given intravenous. He further admitted that the effect of Fortwin injection remained for 2 hours. We find from the case papers that there is some endorsement made at the space below the direction to give this injection to the effect that the injection was given after ding declaration. Prima facie, it appears to be in a different handwriting. The prosecution could have made some better efforts to bring on record as to when exactly this injection was given to the deceased. We also find on perusing the dying declaration that the same is not only relating to the incident but also relates to the motive. We find it dangerous to accept that such a detailed and long account could have been given by the person who had suffered 100% burns”.

Further, the learned counsel for the accused relied on a decision made in case of

Public Prosecutor, High Court of Andhra Pradesh, Hyderabad vs. Jangili Nirmala,

1996 (2) ALT (Crl) 543. Wherein their lordships held as under:

“Where the dying declarations are not consistent, the Supreme Court held that even if the declarations are consistent in respect of particular accused, the accused is entitled to be acquitted”.

He also relied on a decision made in case of Sampat Babso Kale and another vs.

The State of Maharastra, Criminal Appeal No.694-695 of 2011. Wherein their lordships held as under:

“In the present case, as we have already held above, there was some doubt as to whether the victim was in a fit state of mind to make the statement. No doubt, the doctor had stated 22 Spl.Sc.No. 51 of 2018 that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion. Furthermore, in our view, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion, and (2006) 13 SCC 165 therefore, there is a need to look for corroborative evidence in the present case”.

In view of the above decisions if we perusal of the evidence on hand, admittedly the deceased/Durgam Savantha Bai has sustained 95% burn injuries and she was given intra muscular injection as deposed by PW19/doctor. Further as stated above, there is a contradiction in her statement regarding the identification of accused. Further admittedly there are no eyewitnesses to the alleged offence. Therefore, in view of the said circumstances, it is made clear that the deceased/Durgam Savantha Bai was under impact of the pain killers at the time of recording her dying declaration by

PW22/learned JFCM. In the absence of any motive on the part of the accused against the deceased/DurgamSavantha Bai and in the absence of any kerosene or petrol smell either from body of deceased/Durgam Savantha Bai or crime scene and in view of contradictions made by the deceased/Durgam Savantha Bai regarding the situations when she was able to identified A1 to A3 while she was in flames, the dying declaration made by the deceased/Durgam Savantha Bai has been found not truth and genuine except all the outcome of her imagination.

29. Further the prosecution also relied on the evidence of other witnesses in proof of revealing the fact by the deceased/Durgam Savantha Bai as to the cause of her death.

Once we see the evidence of PW6 and PW7 who are none other than own sisters of deceased/Durgam Savantha Bai that while the deceased/Durgam Savantha Bai was shifting the hospital they boarded 108 ambulance on the way at their village. As per the evidence of PW6 while she was traveling with deceased/Durgam Savantha Bai she did not speak anything to her. Whereas as per the evidence of PW7 no evidence as she was told by the deceased/Durgam Savantha Bai as to the cause of her death. Whereas the 23 Spl.Sc.No. 51 of 2018 evidence of PW10 has revealed that while he was shifting the deceased/Durgam

Savantha Bai in ambulance the deceased/Durgam Savantha Bai told him that A1 to A3 burned her but as per the evidence of PW6 and PW7 the deceased/Durgam Savantha

Bai did not speak anything regarding cause of her burned so when they are all traveling in one ambulance if the deceased/Durgam Savantha Bai speaks about the cause of her burn injuries the other also must have heard. So since the evidence of PW6 and PW7 are contradicting with the evidence of PW10 as the deceased/Durgam Savantha Bai told him that A1 to A3 got burned her is liable to disbelieved.

30. Apart from that this is the evidence of PW1 that immediately after the alleged offence; he telephoned to 108 ambulance to shift the deceased/Durgam Savantha Bai; whereas the evidence of PW13 shows that after he telephoned 108 ambulance. Whereas the evidence of PW20, the then Head Constable PS Bejjur has disclosed that on 31.01.2018 after 1.00 am while he was discharging duties as watch in-charge he received a call from 100 dial and received cell number on Anand name/PW13, then he gave a call to PW13 and received information that the aunt of the said Anand/PW13 was got burned. Then immediately he informed the same to Addl. SI/PW24. Whereas in cross examination it is categorically admitted by PW20, he stated before the police that

Anand/PW13 informed that the deceased/Durgam Savantha Bai was got burnt by some unknown persons. Further he also admitted that after all from Anand/PW13 he received another Police Control room call from 7901248195 and he gave a return call to that number on which PW1 lifted his call and informed him through PCR call that his mother got burned by some unknown persons. So, the admissions made clear that immediate after the alleged offence he received call through 100 dial from PW13 and

PW1 that the deceased/Durgam Savantha Bai got burned by some unknown persons.

So this said fact made crystal clear that at the time of 1.00 am on receiving phone call by

PW20 from PW1 and PW13 are not aware of the culprits who got burned the 24 Spl.Sc.No. 51 of 2018 deceased/Durgam Savantha Bai. So the said evidence of PW20 is contradicting the evidence of PW1 on material aspects that he heard while the deceased/Durgam

Savantha Bai shouting that A1 to A3 poured kerosene on her and lit fire. If really he was aware the names of accused by that time he would have informed the same through phone call to 100 dial. Therefore, even by soon after the alleged offence PW1 was not aware of the culprits which is made clear that the deceased/Durgam Savantha Bai did not utter the names of any accused by that time PW1 reached to her.

31. The remaining evidence on record is mediator for the scene of offence panchanama as well as inquest. PW18 is mediator for the scene of offence panchanama and rough sketch under Ex.P15, the police seized MO1 half burned blanket, MO2 burnt saree, MO3 ash of mixture of all burnt pieces, MO4 ash lying under cot, MO5 ash with pieces of burnt Nawar of cot, MO6 burnt earth, MO7 control earth in his presence under the same panchanama. Whereas as per the evidence of PW17 is mediator for inquest over the dead body of deceased/Durgam Savantha Bai under Ex.P14 inquest panchanama. Further he expressed his opinion as to the cause of death as the deceased/Durgam Savantha Bai died due to burn injuries due to catching of fire. But surprisingly while cross examination it is admitted by PW17 that he does not know what was written in Ex.P14. Thereby his admission raises a doubt regarding the testimony of PW17.

32. Further as per the evidence of PW9 and PW16, they are photographs by profession. According to the evidence of PW9 at the request of police, he went to scene of offence at Marthidi village and took photographs of crime scene under Ex.P7 photographs of CD and handed over to police. Whereas the evidence of PW16 at the request of police he went to Government Hospital, Sirpur and took photographs of the dead body of deceased/Durgam Savantha Bai under Ex.P13 photos with CD and 25 Spl.Sc.No. 51 of 2018 handed over the same to police. However, the evidence of PW9 and PW16 have remained unchallenged.

33. Now coming to the evidence of PW21/Tahsildar, it is clear that at the request of

PW25/IO, he verified and issued caste particulars of PW1, deceased/Durgam Savantha

Bai and A1, A2 and A3/JCL. Accordingly he issued Ex.P30 caste verification report stating that PW1 and deceased/Durgam Savantha Bai belongs to SC-Mala caste, A1 belong to OC Muslim, A2 and JCL belongs to SC Mala caste. However, the said fact is no way helpful to the prosecution unless it proves allegations against accused.

34. Further the remaining witnesses on record are PW24 and PW5 who are investigating officers of this case. As per the evidence of PW24, the then SI of police,

Bejjur on 30.01.2018 at about 1.30 am while he was in police station, PW20 informed him that a call received from 100 dial as one lady Mary Mata School of Marthidi village burned. Then along with writer immediately he went to PW21/Tahsildar and submitted requisition to record dying declaration and he took PW21/Tahsildar to Marthidi village.

There PW1/Tahsildhar has recorded dying declaration of deceased/Durgam Savantha

Bai. Then immediately as 108 ambulance came shifted the deceased/Durgam Savantha

Bai to Government Hospital, Sirpur. At about 7.00 am on the same day PW1 has come to police station and lodged a complaint, basing on it he registered a case in Cr.No.12/2018 u/sec. 307 IPC r/w 34 IPC and Sec. 3 (2) (va) of SCs/STs (POA) Act, 1989 and issued

FIR/Ex.P25. Then after he handed over the CD file to PW5/SDPO Kaghaznagar for further investigation. While cross examination, it is categorically admitted by PW24 that

PW1 did not mention in Ex.P1 complaint that PW21/Tahsildar has recorded the dying declaration of deceased/Durgam Savantha Bai on that day. Further PW24 has stated that nobody has given complaint to him when he was present in scene of offence. If really the alleged offence as alleged by the prosecution was done by the accused, the 26 Spl.Sc.No. 51 of 2018 family members of the deceased/Durgam Savantha Bai must have given complaint there itself when he was present in scene of offence soon after the alleged offence. So, this fact also doubting the genesis of the prosecution case.

35. As per the evidence of PW25, the then Dy. Superintendent of Police, Kaghaznagar that as per the orders of Superintendent of Police, KB Asifabad under Ex.P26 dated 31.01.2018, he took up investigation of this case from PW24, the then SI of police, on 31.01.2018 at about 12.30 pm on receiving death intimation of deceased/Durgam

Savantha Bai under Ex.P27 from PW1, PW24 has filed section alteration memo under

Ex.P28 from section 307 IPC to 302 IPC. On the same day he visited Mortuary of

Government Hospital, Sirpur and recorded the statements of PW5 to PW8, PW16, LW16 and LW9. Then after he conducted inquest over the dead body of deceased/Durgam

Savantha Bai in the presence of PW17, LW21 and LW22 under Ex.P14 inquest panchanama. Then after handed over the dead body of deceased/Durgam Savantha Bai for conducting autopsy with a request to preserve viscera and blood for FSL examination, accordingly viscera and blood was preserved. Then after he visited the scene of offence at Marthidi village and recoded the statements of PW2 to PW4, PW10 to

PW15, PW20 and LW15. Then after in the presence of PW18 and LW25, he conducted scene of offence panchanama and also took the photographs with the help of PW9 and also drawn rough of scene of offence panchanama under Ex.P16 and seized MO1 to

MO7. Further by giving requisition to Tahsildar/PW21, he obtained caste certificates of deceased/Durgam Savantha Bai, PW1 and A1 to A3. On 14.02.2018 he apprehended A1,

A2 and A3/JCL and sent them to judicial custody. Then after under letter of advice he sent preserved viscera and blood of deceased/Durgam Savantha Bai to RFSL,

Karimnagar and sent all the material objects seized in crime scene to FSL, Hyderabad.

Then he received FSL reports. Ex.P19 FSL report from RFSL, Karimnagar, Ex.P29 FSL report from FSL Hyderabad, accordingly no inflammable Hydro carbons are found in 27 Spl.Sc.No. 51 of 2018

MO1 to MO8. After collecting all the documents and completion of investigation he filed charge sheet against A1 for the offence u/sec. 302 r/w 34 IPC and sec. 3 (2) (v) (a) of

SC/ST )POA) Amendment Act, 2015 and u/sec. 302 r/w 34 IPC against A2 and A3/JCL and a separate final report is filed against A3/JCL before learned Juvenile Spl. Court,

Adilabad. Though he was cross examined no fact in contra to his chief examination was elicited in respect of procedure adopted by him in investigation of the case. Hence the evidence of PW25/IO has been found unchallenged in respect of the investigation done by him.

36.Further the learned counsel for the accused relied on a decision made in case of State of Uttar Pradesh vs. Nandu Vishwakarma, 2009 (2) ALD (Crl) 581.

Wherein their lordships held as under:

“It is a settled principle of law that when on the basis of the evidence on record two view could be taken – one in favour of the accused and the other against the accused – the one favouring the accused should always be accepted”.

37. Therefore, in the light of above evidence adduced by the prosecution as well as in view of the facts and circumstances discussed above, it can be said that the prosecution has miserably failed to prove even the motive against the accused to purport the crime.

Further failed to prove any use of kerosene or petrol while committing the alleged offence against the deceased/Durgam Savantha Bai. Further in view of the above circumstances as well as in view of the material discrepancy in her two dying declarations in the manner of identifying the accused by the deceased/Durgam

Savantha Bai, the dying declarations of deceased/Durgam Savantha Bai which are not corroborated by any material evidence is found not trustworthy, thereby it is unsafe to rely in order to come to a conclusion of guilt against the accused. Apart from that from the evidence adduced by the prosecution, the defense taken by counsel for the accused seems to be possible that the deceased caught fire accidentally due to burning charcoal 28 Spl.Sc.No. 51 of 2018 kept under her cot thereby sustained burn injuries which resulted to her death.

Therefore, it can be said that the prosecution has miserably failed to connect the accused with the death of deceased/Durgam Savantha Bai caused due to burn injuries; beyond reasonable doubt, hence the accused shall be given a benefit of doubt and thereby they are entitled for acquittal. The point is answered accordingly.

38. In the result, the accused No.1 is found not guilty for the offence punishable

U/sec. 302 r/w 34 IPC and Sec. 3 (2) (v) (a) of SCs/STs (POA) Amendment Act, 2015 and accused No.2 is found not guilty for the offence punishable U/sec. 302 r/w 34 IPC and they are accordingly acquitted under Section 235(1) Cr.P.C. Their bail bonds shall stand cancelled. MO1 to MO7 shall be kept intact till disposal of case against Juvenile and after expiry of appeal time.

Dictated to Stenographer, transcribed by him and after correction pronounced by me in

open court this the 23rd day of October 2019.

Spl.Judge for Trial of Cases Under SCs/STs (POA) Act, Cum-V Addl. District and Sessions Judge, Adilabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

PW1: Durgam Das PW2: Durgam Mounu Bai PW3: Durgam Ammakka - N O N E - PW4: Durgam Lasmaiah PW5: Durgam Shankar PW6: Durgam Shankara Bai PW7: Kamera Amrutha PW8: Gandam Shankar PW9: Naitham Vasanth PW10: Durgam Devaji PW11: Durgam Rukumbai PW12: Telse Shyamala PW13: Gurlapalli Anand Rao PW14: Gurlapalli Lalitha PW15: Durgam Lingaiah 29 Spl.Sc.No. 51 of 2018

PW16: Gomasa Rajender PW17: Jaji Mugga Ravi PW18: Kummari Seetharam PW19: Dr. Harish Kumar/Medical Officer PW20: A.Narsaiah, HC PW21: K. Raghunath Rao/Tahsildar PW22: B. Rama Rao/JFCM PW23: M. Praveen Kumar/SI PW24: M. Shiva Prasad,Addl.SI/1st IO PW25: P. Sambaiah, SDPO/IO

WITNESSES MARKED

For Prosecution: For Defence:

Ex.P1: Complaint given by PW1 Ex.P2 161 Cr.PC statement of PW2 Ex.P3: 161 Cr.PC statement of PW3 Ex.P4: 161 Cr.PC statement of PW4 Ex.P5: 161 Cr.PC statement of PW6 Ex.P6: 161 Cr.PC statement of PW8 Ex.P7: Photographs of CD by PW9 Ex.P8: 161 Cr.PC statement of PW11 Ex.P9: Marked portion of 161 Cr.PC statement of PW12 Ex.P10: 161 Cr.PC statement of PW13 Ex.P11: 161 Cr.PC statement of PW14 Ex.P12: 161 Cr.PC statement of PW15 Ex.P13: Photos with CD by PW16 Ex.P14: Inquest panchanama by PW17 Ex.P15: Scene of offence panchanama including rough sketch by PW18 Ex.P16: Endorsement of certification on dying declaration of deceased Ex.P17: Endorsement of certificate as the deceased is conscious, coherent, cooperative and responding well to oral commands Ex.P18: PME report by 19 Ex.P19: FSL report by PW19 Ex.P20: Final opinion by PW19 Ex.P21: CD with photos by PW20 Ex.P22: Dying declaration of deceased by PW21 Ex.P23: Requisition by PW22 Ex.P24: Dying declaration of declarant/deceased by PW22 Ex.P25: First Information Report by PW24 Ex.P26: Orders of Superintendent of Police, K.B. Asifabad dated 31.01.2018 by PW25 30 Spl.Sc.No. 51 of 2018

Ex.P27: Death intimation by PW25 Ex.P28: Section alteration memo by PW25 Ex.P29: FSL report from FSL, Hyderabad Ex.P30: Caste verification report by PW21 :

MOs MARKED

MO.1: Half burned blanket

MO.2: Burnt saree

MO.3: Ash of mixture of all burnt pieces

MO.4: Ash lying under cot

MO.5: Ash with pieces of burnt Nawar of cot

MO.6: Burnt earth

MO.7: Control earth

Spl.Judge for Trial of Cases Under SCs/STs (POA) Act, Cum-V Addl. District and Sessions Judge, Adilabad

1 Spl.SC No.11 of 2018

IN THE COURT OF SPL.JUDGE FOR TRIAL OF CASES UNDER SCs/STs (POA) ACT –

CUM – V ADDITIONAL DISTRICT AND SESSIONS JUDGE, AT ADILABAD

Present: Smt. G.V.N. Bharatha Laxmi, Spl. Judge for trial of cases under SCs/STs [POA] Act Cum V Addl. District and Sessions Judge, Adilabad

Friday the 18th day of October 2019

SPL.SC.NO.11 OF 2018

Name of the Complainant State represented by Assistant Commissioner of Police, Bellampalli

Name of the Accused A1 Pothurajula Ashok, S/o. Nanaiah, Age: 23 years, Occ: Agriculture, Caste: Munnuru Kapu (BC), R/o. H.No.1-35, Nennel village and mandal, District Mancherial

A2 Kummarikunta Laxmi, W/o. Rajaiah, Age: 50 years, Occ: Agriculture, Caste: Munnuru Kapu (BC), R/o. H.No.1-77, Ghanpur village, Nennel Mandal of Mancherial District

A3 Pothurajula Nanaiah, S/o. Durgaiah, Age: 65 years, Occ: Agriculture, Caste: Munnuru kapu (BC), R/o.H.No.1-35, Nennel village and mandal, District Mancherial

Offence under section 376, 417, 420 IPC, Sec.3(1)(r)(s)(w) of SCs/STs (POA) Amendment Act, 2015 against A1

Sec. 3 (1) (r) (s) of SC/ST (POA) Amendment Act, 2015 against A2 and A3

Plea of the accused Not guilty

Finding Guilty

Sentence or Order In the result, the accused No.1 is found not guilty for the offence punishable U/secs.417 IPC and he is accordingly acquitted under Section 235(1) Cr.P.C.

Further, the accused No.1 is found guilty for the offences punishable under Sections 2 Spl.SC No.11 of 2018 376, 420 of IPC and Sec. 3 (1) (r) (s) (w) of SCs/STs (POA) Amendment Act, 2015 and the accused No2 and 3 are found guilty for the offence punishable under Section 3 (1)

(r) (s) of SCs/STs (POA) Amendment Act, 2015 and accordingly they are convicted under Section 235(2) Cr.P.C.

Accordingly, accused No.1 is sentenced to undergo rigorous imprisonment for a period of SEVEN YEARS and to pay fine of Rs.50,000/- (Rupees Fifty thousand only) for the offence under section 376 of IPC, in default of payment of fine, he shall undergo simple imprisonment for a period of six months; further accused No.1 is sentenced to undergo rigorous imprisonment for a period of FIVE YEARS and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) for the offence U/sec.420 IPC in default of payment of fine, he shall undergo simple imprisonment for a period of three months. Further accused No.1 is sentenced to undergo rigorous imprisonment for a period of THREE YEARS and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) for the offence u/sec. 3 (1) (r) of SCs/STs (POA) Amendment Act, 2015, in default of payment of fine, he shall undergo simple imprisonment for a period of three months; further accused No.1 is sentenced to undergo rigorous imprisonment for a period of THREE YEARS and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) for the offence u/sec. 3 (1) (s) of SCs/STs (POA) Amendment Act, 2015, in default of payment of fine, he shall undergo simple imprisonment for a period of three months; further accused No.1 is sentenced to undergo rigorous imprisonment for a period of THREE YEARS and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) for the offence u/sec. 3 (1) (w) of SCs/STs (POA) Amendment Act, 2015, in default of payment of fine, he shall undergo simple imprisonment for a period of three months.

Further accused No.2 and 3 are sentenced to undergo rigorous imprisonment for a period of THREE YEARS each and to pay 3 Spl.SC No.11 of 2018 a fine of Rs.5,000/- each (Rupees Five Thousand only) for the offence u/sec. 3 (1)

(r) of SCs/STs (POA) Amendment Act, 2015, in default of payment of fine, they shall undergo simple imprisonment for a period of three months each. Further accused No.2 and 3 are sentenced to undergo rigorous imprisonment for a period of THREE YEARS each and to pay a fine of Rs.5,000/- each (Rupees Five Thousand only) for the offence u/sec. 3 (1)

(s) of SCs/STs (POA) Amendment Act, 2015, in default of payment of fine, they shall undergo simple imprisonment for a period of three months each. All the sentences shall run concurrently. The remand period if any shall be set off under section 428 Cr.P.C. Further, as per Section 357 (1)(b) of Cr.P.C., out of the total fine amount, an amount of Rs.50,000/- (Rupees Fifty Thousand only) shall be paid to PW1/victim towards compensation for the injury caused to her body and mind with effect of offence.

Accused No.1 to 3 are informed that they have got right of appeal to the Hon'ble High Court and they are also furnished with free copy of this Judgment.

Name of the counsel for prosecution Sri M.Ramana Reddy, I/C Addl. Public Prosecutor

Name of the counsel for Defence Sri A. Amarender Reddy, Advocate

This case coming before me on 03.10.2019 for final hearing in the presence of Sri.M.Ramana Reddy, I/C Additional Public Prosecutor for the State and of Sri A. Amarender Reddy, Advocate for accused and on hearing both sides the matter having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Assistant Commissioner of Police, Bellampalli filed charge sheet against the accused No.1 for the offence under Sections 376, 417, 420 IPC, Sec.3 (1) (r) (s) (w) of

SCs/STs (POA) Amendment Act, 2015 and for the offence under Section 3 (1) (r) (s) of

SCs/STs (POA) Amendment Act, 2015 in Crime No.139/2016 of PS Nennel.

4 Spl.SC No.11 of 2018

2. The prosecution case in brief is that LW1/complainant (Bursa Swarupa Rani) belongs to ST Mannerwar community and residing at Nennel village and mandal whereas accused No.1 belong to Munnuru Kapu BC community and residing at Nennel village. The accused No.1 got acquainted with her in the month of October, 2015 in the cotton field. Since then A1 used to contact her on phone frequently even she refused him, afterward A1 got believed her to marry and fulfill his sexual desire, when she shifted to Mancherial for her livelihood, A1 also came there and fulfill his sexual desire.

Later A1 refused her and settled marriage with another lady. On knowing the same, she came to his home on 31.10.2016 and asked him, but they abused her in filthy language stating as “Manne Kulam Daanavu Ninnu Pendli Chesukonu” and necked her out from the house. Later on came to know that, A1 jumped in a pond situated nearby village and she also jumped in the well with an intention to commit suicide. The accused No.2 and 3 and Puppala Raghu were abused her by referring her caste name. On receiving the complaint from LW1/complainant, a case was registered and after completion of investigation charge sheet is filed against the accused No.1 for the offence under

Sections 376, 417, 420 IPC, Sec.3 (1) (r) (s) (w) of SCs/STs (POA) Amendment Act, 2015 and for the offence under Section 3 (1) (r) (s) of SCs/STs (POA) Amendment Act, 2015.

3. The case was taken on file by the Spl.Judge for trial of cases under SCs/STs (POA) Act–Cum–V Additional District and Sessions Judge, Adilabad, dated 08.03.2018 as Spl.SC No.11/2018.

4. After appearance of the accused and on hearing them, charges under Sections 376, 417, 420 IPC, Sec.3 (1) (r) (s) (w) of SCs/STs (POA) Amendment Act, 2015 against

A1 and u/sec. 3 (1) (r) (s) of SCs/STs (POA) Amendment Act, 2015 against A2 and A3 5 Spl.SC No.11 of 2018 were framed, read over and explained the same to them in Telugu, for which they pleaded not guilty and claimed to be tried.

5. During the course of the trial PW1 to PW19 were examined and Exs.P1 to Ex.P21 were marked. The examination of LWs 8 to 10, 12 to 14, 16, 17, 19, 22 and 26 named

Jambi Lachanna, Jambi Ellaiah, Jambi Bapu, Pothurajula Sai Murthi, Gundeti Narsaiah,

Gundeti Suguna Bai, Palthya Srinivas, Raparthi Praveen Kumar, Thuthurla Lachaiah,

Sinde Karunakar, K. Suresh/Hon‟ble JFCM were given up by the learned Additional

Public Prosecutor.

6. On completion of the prosecution evidence, the accused was examined under

Section 313 Cr.P.C. He denied the incriminating evidence appearing against him in the evidence of prosecution witnesses and reported no defence evidence and Ex.D1 and

Ex.D2 were marked on behalf of defense.

7. Heard arguments on both sides.

8. Now the point that arises for determination is:

“Whether the prosecution could bring home the guilt of the accused No.1 for the charges framed under Sections 376, 417, 420 IPC, Sec.3 (1) (r) (s) (w) of SCs/STs (POA) Amendment Act, 2015 and under Section 3 (1) (r) (s) of SCs/STs (POA) Amendment Act, 2015 against A2 and A3, beyond all reasonable doubt?”

P O I N T:

9. This has been the charge framed against the accused No.1 not being the member of either Scheduled caste or Scheduled tribe knowingly that PW1/prosecutrix is a member of Scheduled Tribe, cheated her by deceitful words to marry her and also had cohabitation with her on 26.07.2016 thereby committed rape against her and thereafter 6 Spl.SC No.11 of 2018 refused to marry her and intentionally insulted and intimidated her with an intention to humiliated her within the public view. Further A1 to A3 abused PW1/prosecutrix by referring her caste name. Thereby the accused No.1 has committed an offence punishable under Sections 376, 417, 420 IPC, Sec.3 (1) (r) (s) (w) of SCs/STs (POA)

Amendment Act, 2015 and accused No.2 and 3 have committed an offence punishable under Section 3 (1) (r) (s) of SCs/STs (POA) Amendment Act, 2015.

10. In order to substantiate the charges leveled against the accused, the prosecution has got examined as many as witnesses PW1 to PW19 and also got marked Exs.P1 to

Ex.P21. On the other side the plea of the accused is of total denial and also reported no defence evidence and also got marked Ex.D1 and Ex.D2 from 161 Cr.PC statement of

PW1/prosecutrix.

11. Of the prosecution witnesses, at a glance it is seen that PW1 is the complainant as well as victim, PW2 and PW3 are the mother and sister of PW1/prosecutrix, PW4 to

PW6 are said to be witnesses of panchayat, PW7 is said to be elder of panchayat, PW8 and PW10 are witnesses who turned hostile, PW9, PW11, PW12 are the mediators for first, second and third scene of offence panchanamas, PW13 is Tahsildar certifies the caste of PW1 and the accused No.1 to 3, PW14 is doctor who examined

PW1/prosecutrix, PW15 is doctor who examined A1, PW16 to PW19 are investigating officers.

12. This is the main allegation of the PW1/prosecutrix has been evident that from her testimony that PW2 is her mother and PW3 is her elder sister. She belongs to ST-

Mannewar (Kolavari) caste. She completed her degree in the year 2015. One day she went to the cotton fields of cousin brother of A1, there she got acquaintance with him.

7 Spl.SC No.11 of 2018

A1 said to PW1/prosecutrix as he loved her. Then she said to A1 not to follow her as they belong to different caste. In spite of it, A1 told to her that he will marry her. Then

PW1/prosecutrix accepted the love of A1. Then after PW1/prosecutrix shifted her residence to Mancherial and working in a cloth shop. Herself and PW8 who is her neighbour in her village Nennel staying in a rented room at Mancherial in the house of

LW13/Gundeti Narsaiah. By that time A1 pursuing ITI in Mancherial and he used to visit the room of PW1/prosecutrix. At the time of his examinations, A1 stayed in the room of PW1/prosecutrix for 15 days. While A1 staying in the room of

PW1/prosecutrix, he sent out her friend/PW8 from room and he committed rape against her though PW1/prosecutrix refused. Thereafter 2 or 3 times also A1 committed rape on her forcibly. Thereafter A1 informed to her mother/PW2 and sister/PW3 that he will marry her then she accepted him. PW8 and brother of A1 as well as the house owners of LW13/Gundeti Narsaiah and LW14/Gundeti Suguna Bai of PW1/prosecutrix having knowledge about the visiting of A1 to her room. In the year 2016, at the time of

Moharum festival disputes arose between PW1/prosecutrix and A1 as he refused to marry her. Then PW1/prosecutrix went to the house of A1 to ask her marriage with A1 as he has a marriage proposal but at that time A1 was not present at home. Then after by taking their caste elders went to the house of Sarpanch of their village and informed

PW7 that injustice was done to her as A1 was going to marry another girl. At the house of Sarpanch/PW7, A1 declared that he will not marry her. Then caste elders of

PW1/prosecutrix questioned A1, why does not he marry her; then why did he do like this. Then A1 left the house of sarpanch/PW7. Then A3 and his wife i.e., parents of A1 said to them that they will think of their marriage later. Then PW1/prosecutrix declared that she will not wait and she will come to their house right now. By saying that she went to the house of A1 by following him. A3 and A2 i.e., maternal aunt of A1 abused

PW1/prosecutrix in the name of her caste as “Lanjamunda, dongamunda, kulam 8 Spl.SC No.11 of 2018 takkuvadana (person belong to lower caste), Mannepu dana, gond dana” and necked

PW1/prosecutrix out from their house. The said incident was witnessed by PW4 and

PW6 who are neighbours of PW1/prosecutrix. Though A3 and A2 beat the

PW1/prosecutrix she sat in their house but her caste elders left the house.

PW1/prosecutrix stayed in the house of A1 for two days. One day night the friend of A1 by name Raghu came to the house of A1 and took away A1 and told him that

PW1/prosecutrix belong to Uppara community and not to marry her. Then A1 returned to home on the next day and left home with bike and fell down at pond by pretending as if consumed poison. Then A2 abused her as her husband died why she is still living. The sister of A1 also abused PW1/prosecutrix that due to herself only A1 consumed poison and left the place. Due to abuse of A2, PW1/prosecutrix got shocked and jumped into the well of A1. The villagers took her away and shifted her and A1 to hospital. A1 stayed in Karimnagar for one month. The son of her maternal aunt accompanied her in hospital and police station, Mancherial and in spite of her complaint they did not react.

Then after PW1/prosecutrix approached police station, Nennel, the police did not take any action. Though A1 discharged from hospital and staying in their relatives‟ house, the police used to say that A1 not discharged. Then PW2 mother of PW1/prosecutrix called their caste people as well as caste elders and along with them, they went to police station and lodged complaint under Ex.P1 on 26.11.2016. Then after police recorded her statement. One month after she filed complaint, the police referred her to hospital.

Further her statement also recorded by Magistrate/LW26 (K. Suresh). The family members of PW1/prosecutrix do not know about the relation of her with A1 up to one year. After A1 has marriage proposal, her family members came to know through her brother who has seen A1 when came to hospital to see her while she was suffering with fever. After knowing their relation PW2 beat the PW1/prosecutrix.

9 Spl.SC No.11 of 2018

13. On the other side, this is the defense taken by the learned counsel for the accused that PW1/prosecutrix herself making propaganda as A1 loving her in the village and making him defame along with her caste people and due to unbearable of that defame,

A1 tried to commit suicide and PW1/prosecutrix filed a false case against all the accused to get her marriage to be performed with A1 forcibly.

14. Now I will take up the allegations of PW1 against A1 to A3 one by one. The first and foremost contention of the PW1/prosecutrix is that she belong to ST-Mannewari (Kolavari) caste and after completion of her Degree in the year 2015, one day she went to the fields of cousin brother of A1, there A1 got acquainted with PW1/prosecutrix.

Further A1 said to PW1/prosecutrix that he loved her, though PW1/prosecutrix said to

A1 not to follow her as they belong to different caste. In spite of it, A1 told that he will marry her, and then PW1/prosecutrix accepted the love of A1. Further this is the contention of PW1/prosecutrix that her family members do not know about the relation in between A1 PW1/prosecutrix up to one year. Thereby from the contention of

PW1/prosecutrix, it is made clear that A1 followed PW1/prosecutrix on the name of love, though she advised A1 not to follow her as they belong to different community, in spite of it A1 told that he will marry her. So, the said contention of PW1/prosecutrix made clear that even before love between PW1/prosecutrix and A1, A1 has knowledge about the caste of PW1/prosecutrix as she belong to ST-Mannewari (Kolavari) caste.

Further A1 has knowledge that they both belong to different caste, in spite of it A1 followed PW1/prosecutrix on the name of love and also told that he will marry her.

Here, the learned counsel for the defense has elicited that PW1/prosecutrix did not state to police as well as in statement to Hon‟ble Magistrate that A1 followed her and stated that he loved her, for that she did not agree as their caste is different , then A1 said to

PW1/prosecutrix that he will marry her, then she accepted. Though 161 Cr.PC statement 10 Spl.SC No.11 of 2018 of PW1/prosecutrix exactly did not reveal the same sentences as elicited but her 161

Cr.PC statement has crystal clearly revealed that A1 in spite of having knowledge that she belong to ST-Mannewari (Kolavari) caste he loved her and also told her to marry her. Therefore, in view of her above statement before the police by PW1/prosecutrix, the said omissions elicited by PW1/prosecutrix do not have any significance against trustworthy evidence of PW1/prosecutrix in any way.

15. Further the evidence of PW2 mother of PW1/prosecutrix made clear that when

PW1/prosecutrix came to home at the time of Moharum she observed PW1/prosecutrix and A1 quarrelling with each other through phone regarding their love affair. Thereby her evidence also reveals that she came to know the love affair of PW1/prosecutrix with

A1. Whereas the evidence of PW3 none other than sister of PW1/prosecutrix also revealed that she was informed by PW1/prosecutrix about her love affair with A1. On the other side, the learned counsel for the accused could not elicit any fact to disbelieve the contention of PW1/prosecutrix about love affair between her and A1. Apart from that, the evidence of PW13, the then Tahsildar of Nennel has made clear that at the request of Assistant Commissioner of Police, Bellampalli, he verified the caste particulars of PW1/prosecutrix and A1 to A3 and submitted caste particulars report under Ex.P8, according to which PW1/prosecutrix belong to ST-Mannewar caste and A1 to A3 belongs to BC-Munnur kapu caste. Thereby the contention of PW1/prosecutrix has been proved crystal clearly that PW1 belong to ST-Mannewari (Kolavari) caste and

A1 belong to BC Munnuru Kapu caste, thereby he is not member of either Scheduled

Caste or Scheduled Tribe. Further in spite of his knowledge about the caste of

PW1/prosecutrix that she belong to ST-Mannewari (Kolavari) caste, he followed

PW1/prosecutrix and loved her and also gave word to marry her and made

PW1/prosecutrix to accept his love.

11 Spl.SC No.11 of 2018

16. Further this is the contention of PW1/prosecutrix that after she shifted residence to Mancherial to work in a cloth shop, she used to stay with PW8 who is her neighbour in her village Nennel in a rented room of LW13/Gundeti Narsaiah. By that time A1 to attend his examination of ITI in Mancherial, A1 stayed in the room of PW1/prosecutrix for 15 days and during his stay by sending PW8 out from the room. A1 forcibly committed rape on PW1/prosecutrix. Though she refused and also A1 informed to PW2 and PW3 that he will marry PW1/prosecutrix. Then after when she came to her home on the occasion of Moharum she came to know that A1 has marriage proposal and he refused to marry her, on that she along with her caste people and elders she went to the house of PW7 who is the Sarpanch of their village and hold panchayat. In the said panchayat, PW1/prosecutrix revealed the love affair of A1 with her and now refused to marry her. In the said panchayat also A1 refused to marry PW1/prosecutrix. On that by following A1, PW1/prosecutrix went to his house, there A3 and A2 who are respectively father and maternal aunt of A1 abused her on the name of her caste as “Lanjamunda, dongamunda, kulam takkuvadana (person belong to lower caste), Mannepu dana, gond dana” and necked her out from their house. Further A3 and A2 also beat her. On the next day when A1 fell down at pond by pretending as if consumed poison, on that A2 abused her as her husband died why she is still living. The sister of A1 abused her that due to herself only A1 consumed poison and left the place. Due to abuse of A2, she got shocked, then PW1/prosecutrix jumped into the well of A1, then PW1/prosecutrix and

A1 were shifted to hospitals. On this aspect the learned counsel for the defense as elicited from the cross examination of PW1 that there are no written lease agreements as well as rent payment receipts in between owners of PW1/prosecutrix and herself.

However, non filing of lease agreement or rent receipts shall not dilute cogent evidence of PW1/prosecutrix to disbelieve the fact that she had lived along with PW8 in a rented room of LW13/Gundeti Narsaiah at Mancherial. Apart from that while cross 12 Spl.SC No.11 of 2018 examination the learned counsel for the accused got marked Ex.D1 some portion of 161

Cr.PC statement of PW1 before the police that A1 while pursuing ITI in Mancherial used to do up and down and for every two days he came to the shop of PW1/prosecutrix to talk and left and then after by taking address he came to the room of PW1/prosecutrix and then PW1 introduced him as son of her senior maternal aunt by relation brother and his name is Srinu. Though PW1 denied her statement before the police which is marked as Ex.D1 the said contradictions one way or other supporting the contention of

PW1/prosecutrix that A1 used to meet her in Mancherial while she was working in shop and also visiting her rented room. In view of the cogent evidence of

PW1/prosecutrix, her contradictions that she introduced A1 to her house owner as her brother by relation and his name is Srinu shall not cast any doubt on her evidence because generally if a male comes to the rented room of unmarried girl, to escape from the situations and to protect their respect they introduced them with a relation which shall not create any doubt. Therefore, PW1/prosecutrix is also might have acted in that way, so even if it is contradiction by the PW1/prosecutrix under Ex.D1 we cannot draw any presumption against her truthful evidence. Thereby the learned counsel for the defense could not elicit any fact to discredit the incriminating evidence of

PW1/prosecutrix that A1 enjoyed her sexually by force and also promise to marry her and informed the same to PW2 and PW3 and also later refused to marry her even before panchayath.

17. Further the evidence of PW2 and PW3 who are none other than mother and sister of PW1/prosecutrix also made clear that along with caste elders PW1/prosecutrix went to the house of PW7 and called A1 to A3 there. In the said panchayat A1 refused to marry her and A2 and A3 abused PW1/prosecutrix on the name of caste as “Manne

Lanja, kulam takkuvadana”. Whereas while cross examination of PW2 she made clear 13 Spl.SC No.11 of 2018 that she did not go to the house of sarpanch and she did not know what happened at the house of sarpanch. Further she admitted that PW1/prosecutrix never informed her that

A1 loved her and will marry her and later refused to marry her. So, from the said admission it is clear that PW2 did not attend the panchayat at the house of sarpanch.

However, we cannot rule out the fact that after PW1/prosecutrix returned from panchayat she must have been informed everything about what happened before panchayat. Thereby though she is not a witness to the said panchayat she must have knowledge about what happened at the house of sarpanch. Further even as per the evidence of PW2 she observed the love affair in between PW1/prosecutrix and A1.

Further she never deposed that she is witness for their love affair. Therefore, the evidence of PW2 was found corroborating with the evidence of PW1/prosecutrix on material aspects. Further while cross examination PW3 also admitted that she never stated before the police that A1 committed rape against PW1/prosecutrix in her rented room at Mancherial. Further PW3 admitted that A1 never forcibly had physical relation with PW1/prosecutrix. So from the above admissions though it is elicited that A1 never forcibly had physical relation with PW1/prosecutrix but her evidence did not deny the fact that A1 had physical relation with PW1/prosecutrix. Further PW3 is not the right person to say that whether A1 had physical relation PW1/prosecutrix forcibly or not.

Further her evidence revealed about panchayat hold by PW1/prosecutrix against A1 to

A3 at the house of PW7 and after that PW1/prosecutrix went to the house of A1 by following him. Further her evidence has clearly revealed that on the next day they came to know that A1 consumed poison and after one hour PW1/prosecutrix jumped into well of A1, and then they were shifted to Government Hospital, Nennel and from there to Mancherial. Then after at the advise of caste elders, PW1/prosecutrix lodged complaint before police. On this aspect the learned counsel for the accused failed to elicit any fact to disbelieve her evidence. Therefore, even after gone through the cross 14 Spl.SC No.11 of 2018 examination of PW3 has been found un-rebutted; thereby the evidence of PW2 and PW3 corroborating with the evidence of PW1/prosecutrix on material aspects.

18. Now coming to the evidence of other witnesses PW4 to PW6 who are caste people of PW1/prosecutrix who attend the panchayat at the request of PW1/prosecutrix at the house of PW7. The evidence of PW4 to PW6 have revealed in the same lines that at the request of PW1/prosecutrix, they attend the panchayat at the house of sarpanch where all the accused along with mother of A1 was present. Before panchayat

PW1/prosecutrix informed that A1 loved her and now refused to marry her. On that A3 raised objection for marriage as PW1/prosecutrix belong to lower caste. In the said panchayat A1 refused to marry PW1/prosecutrix and left the panchayat. By following

A1, PW1/prosecutrix also left the panchayat to the house of A1. Then PW4 along with

PW3 and PW6 followed PW1/prosecutrix to the house of A1, there A2 and A3 abused

PW1/prosecutrix on the name of caste as “Manne Lanja, Kulam takuvadana”. Further

A3 abused PW1/prosecutrix as “how much you want they will pay”. Whereas while cross examination the learned counsel for the defense this is the fact elicited that PW4 to

PW6 are relation to PW1/prosecutrix. However, the learned counsel for the defense could not elicit strong reason except the reason of the same caste and relation to disbelieve the evidence of PW4 to PW6. Therefore on the fact that PW4 to PW6 are related to PW1/prosecutrix we cannot brush aside their trustworthy evidence. Thereby the evidence of PW4 to PW6 has been found trustworthy regarding the fact of panchayat by PW1/prosecutrix against A1 to A3 and refusal of A1 to marry PW1/prosecutrix and abused against her by A2 and A3 on the name of her caste.

19. Apart from that the evidence of PW7 in whose presence panchayat was held also categorically stated that PW1/prosecutrix came to him and informed that A1 loved and 15 Spl.SC No.11 of 2018 cheated her and asked to conduct panchayat. Then he called A1 and A3 as well as

PW1/prosecutrix. Along with PW1/prosecutrix her caste elders have attended panchayat. Then he enquired A1 whether he loved PW1/prosecutrix and cheated her.

Then A1 informed him that he did not love PW1/prosecutrix and not cheated her. Then he advised PW1/prosecutrix to get the issue solved with their caste elders or lodge complaint before police. At this stage, he was declared hostile and cross examined by the learned Addl. Public Prosecutor while cross examination PW7 denied to have state

before the police as recorded in Ex.P2. However, it is admitted by PW7 in cross

examination by the learned Addl. PP that A1 said in panchayat that he is ready to die but he will not marry her and left panchayat. So this admission made by PW7 elicited by the learned Addl.PP made clear about refusal of A1 to marry PW1/prosecutrix before panchayat. Whereas while cross examination by the learned counsel for the defense

PW7 admitted that he has not stated to police that PW1 came to him and informed that

A1 cheated her. Though PW7 has exactly not stated like that but his 161 Cr.PC statement made clear about approach of PW1/prosecutrix and holding panchayat at her request. Therefore, the said admission will not come to the rescue of the learned counsel for the defense in any way. Thereby the evidence of PW7 also found corroborated with the contention of PW1/prosecutrix in respect of panchayat.

20. Whereas the medical evidence of PW14 Civil Assistant Surgeon, in Government

Hospital, Mancherial also established the fact that on 12.12.2016 he received a requisition from Assistant Commissioner of Police, Bellampalli, he examined PW1/prosecutrix physically and clinically and found hymen is not intact and vagina admitted two fingers easily that indicates she might be habituated to sexual intercourse. Further she preserves vaginal swabs and cervical swabs and sent for RFSL. Accordingly she issued Ex.P9 medical record and Ex.P10 RFSL report and also issued Ex.P11 final opinion as hymen is 16 Spl.SC No.11 of 2018 not intact and there is no evidence suggestive of recent sexual intercourse. Whereas in cross examination it is admitted by PW14 that she did not specifically mentioned in

Ex.P9 that PW1/prosecutrix might be habituated to sexual intercourse and rupture of hymen shall be caused due to other reasons also. However, though PW14 specifically not mentioned under Ex.P9 report that PW1 might be habituated to sexual intercourse but her opinion basing on her finding while examination of PW1/prosecutrix that hymen is not intact and vagina admitted two fingers easily which indicates she might be habituated to sexual intercourse is enough to come to a conclusion that

PW1/prosecutrix might be habituated to sexual intercourse. Further even as per the evidence of PW1 one month after she filed complaint she was referred to the hospital for medical examination by the police. Therefore naturally there will not be any medical evidence to suggestive of recent sexual intercourse. Hence the fact of no evidence of suggestive recent sexual intercourse shall not effect the case of the prosecution in any way.

21. Further it is elicited from the evidence of PW15 the then Civil Assistant Surgeon in Community Hospital, Bellampalli that on the requisition of Assistant Commissioner of Police, Bellampalli on 03.12.2016 he conducted potency test to A1 and found there is nothing to suggest that the A1 is not capable of performing sexual act. Accordingly, he issued Ex.P12 potency certificate. Further the said fact is also not denied by the learned counsel for the defense.

22. Therefore, the sole testimony of PW1/prosecutrix has crystal clearly proved fact that A1 enjoyed her sexually on the name of love and marriage and later refused to marry her before the panchayat in the presence of elders and A2 and A3 have abused her on the name of her caste as “Manne Lanja, Kulam takkuvadana” and also at the 17 Spl.SC No.11 of 2018 abuse of A3 and A2, PW1/prosecutrix jumped into well. Further her evidence has been categorically corroborated with the evidence of PW2 and PW3 who are none other than mother and sister of PW1/prosecutrix and the evidence of PW4 to PW6 who are none other than caste elders of PW1/prosecutrix as well as eyewitnesses to the panchayat as well as refusal of A1 to marry PW1/prosecutrix and abuse of A3 and A3 against her.

Apart from that the contention of PW1/prosecutrix is also supported by the medical evidence of PW14/doctor and Ex.P9 medical report.

23. Whereas coming to other evidence, PW9 is mediator for first scene of offence panchanama, according to him the police conducted scene of offence panchanama at the house of A1 and also drawn rough sketch under Ex.P4 first scene of offence panchanama including rough sketch. Whereas the evidence of PW11/VRO of Nennel village mediator for second scene of offence panchanama shows that in his presence the police conducted scene of offence panchanama at the rented room of PW1/prosecutrix and also drawn rough sketch under Ex.P6 second scene of offence panchanama including rough sketch. Further the evidence of PW12/VRA of Nennel village mediator for third scene of offence panchanama disclosed the fact that the police observed crime scene situated in the fields of PW1/prosecutrix at Nennel village and also drawn rough sketch under Ex.P7 third scene of offence panchanama including rough sketch. While cross examination of PW11 and PW12 the learned counsel for the defense elicited that they do not belongs to Mancherial. But the said fact shall not dilute the cogent evidence of PW11 and PW12 as the mediators for scene of offence panchanamas since they are revenue officials of Nennel village which is native village of PW1/prosecutrix and they do not have any reason to speak against the accused. Being revenue officials of village of

PW1/prosecutrix they must have been taken as mediators for all the panchanamas including panchanamas conducted at the fields of PW1/prosecutrix as well as at the 18 Spl.SC No.11 of 2018 house of A1 situated at Nennel village. Further the learned counsel for the defense could not elicit any reason to disbelieve the evidence of PW11 and PW12; thereby the evidence of PW9, PW11 and PW12 has been remained unchallenged in respect of three scene of offence panchanamas.

24. The remaining witnesses on record are investigating officers who were examined as PW16 to PW19. As per the evidence of PW16/N. Ramesh, the then SI of police,

Nennel, according to him, on 26.11.2016 he received written complaint from

PW1/prosecutrix. Basing on it he registered a case in Cr.No.139/2016 u/sec. 376, 417, 420 IPC and Sec. 3 (1) (r) (s) (w) of SCs/STs (POA) Act, 1989 and issued FIR Ex.P13.

Later for further investigation he handed over the CD file to PW18, Assistant

Commissioner of Police, Bellampallu.

25. Whereas the evidence of PW18/A. Ramana Reddy, the then Assistant

Commissioner of Police, Bellampalli, Ramagundam Commissionarate has revealed the facts that as per the orders of Commissioner of Police, Ramagundam dated 27.11.2016 under Ex.P15, he took up investigation from PW16/S.I of police, Nennel. Later he visited Nennel village and recorded the statement of PW1, then after in the presence of mediators of PW5 and LW19 he conducted scene of offence panchanama and also drawn rough sketch under Ex.P4. Then after he recorded the statements of PW2 to PW4, PW6.

Later he obtained caste particulars of PW1/prosecutrix and A1 to A3 and also alleged accused Puppala Raghu by giving requisition to PW13/Tahsildar, Nennel. Thereafter he recorded the statements of PW5, PW7, PW8, LW8 to LW10 and LW12. Then after on 29.11.2016 he visited the rented room of PW1/prosecutrix at Mancherial and recorded the statements of PW10, PW13 and PW14. Later he conducted second scene of offence panchanama at the rented room of PW1 in the presence of PW11 and LW19 and also 19 Spl.SC No.11 of 2018 drawn rough sketch under Ex.P6. On the next day he recorded the statement of PW16.

Thereafter he visited Nennel village and conducted third scene of offence panchanama at the cotton fields belongs to relative of A1 in the presence of PW12 and LW22 under

Ex.P7. Further basing on the statement of PW1 he filed Ex.P16 memo of adding of section of law u/sec. 376 of IPC to the existing charges. Thereafter he recorded the statement of LW17. On 03.12.2016 as per his instructions, PW16/SI of police apprehended the accused at their house at Nennel, produced before him, accordingly he effected the arrest of accused and sent A1 to potency test to Community Health Center,

Bellampalli and later he sent all the accused to judicial custody after completion of legal formalities. Later he received potency certificate of A1 from PW15/Duty Medical

Officer. Further on 12.12.2016 he referred PW1/prosecutrix to Lady Medical Officer,

Government Area Hospital, Bellampally for examination and report, accordingly he received medical report of PW1/prosecutrix, then after on the consequent transfer and posting he handed over the CD file to PW17/ACP, Bellampally for further investigation.

26. This is the evidence of PW17/C. Satish, the then Assistant Commissioner of

Police, Bellampally that as per the orders of Commissioner of Police, Ramagundam

dated 27.11.2016 under Ex.P14 he took up investigation of this case from PW18/ACP,

Bellampally. Thereafter he forwarded the material objects preserved by Lady Medical

Officer to RFSL, Karimnagar for analysis. Later on his requisition Hon‟ble Addl. Judicial

Magistrate of First Class, Asifabad recorded the statement of PW1/prosecutrix u/sec.

164 Cr.PC. Later he received RFSL report from Karimngar. On the consequent transfer he handed over the CD file to PW19/ACP, Bellampally.

27. Here the evidence of PW19/V. Balu Jadhav, the then Assistant Commissioner of

Police, Bellampally is that as per the orders of Commissioner of Police, Ramagundam 20 Spl.SC No.11 of 2018

dated 26.09.2017 under Ex.P17 he took up investigation from PW17/ACP, Bellampally.

Thereafter he addressed a letter to Cellular company through Commissioner of Police,

Ramagundam, and obtained call data in between A1 and PW1/prosecutrix along with customer applications. Ex.P18 is customer application of mother of A1. Ex.P19 is customer application of friend of A1. As per his investigation PW1/prosecutrix is using cell number allotted to mother of A1 which is given to her by A1 and A1 is using cell number allotted to his friend under Ex.P19. Ex.P20 is covering letter issued by Nodal

Officer Bharathi Airtel stating that call records of mobile Nos. 9573394998 and 7660066531 for the period from 01.11.2015 to 31.10.2016 are not available with them as they have not been stored. Ex.P21 is section 65-B certificate issued by Bharathi Airtel.

After completion of investigation and collection of all documents he filed charge sheet against A1 u/sec. 376, 417, 420 of IPC and Sec. 3 (1) (r) (s) (w) of SC/ST (POA)

Amendment Act, 2015 and against A2 and A3 for the offence u/sec. 3 (1) (r) (s) of

SC/ST (POA) Amendment Act, 2015.

28. While cross examinations of PW16 and PW17/investigating officers the learned counsel for the accused could not elicit any fact. In contra to mine chief examination.

Further while cross examination of PW18/investigating officer it is elicited by the learned counsel for the accused that no seizure was made in three scene of offence panchanamas. Further it is elicited that first scene of offence is situated in the verandah of A1 house. Further it is elicited that he did not collect any evidence to show that PW8 worked along with PW1/prosecutrix in cloth shop. Further it is elicited that he did not seize any cell phone of mother of PW1/prosecutrix and A1 in respect of their call data.

But the said facts elicited by the learned counsel for the accused are not material to considered. Thereby the said facts are no way effects the evidence of PW18. Further while cross examination of PW19 it is elicited by the learned counsel for the accused that 21 Spl.SC No.11 of 2018 the cell number 7660066531 is not belongs to either PW1/prosecutrix of her family members as well as the cell number 9573394998 is not belongs to either A1 or his family members. But the said fact does not have in impact on the evidence of PW19 because his evidence also made clear that PW1/prosecutrix used the cell number allotted to mother of A1 and A1 used the cell number allotted to his friend. Further as per the evidence of

PW19 there is no call records available with Nodal Officer, Bharathi Airtel recording mobile numbers 9573394998 and 7660066531 as they have not been stored. However the case of prosecution do not depend on the call records or telephonic conversations of

PW1/prosecutrix and A1. In view of the cogent and trustworthy evidence of

PW1/prosecutrix corroborated by other material witnesses, non submissions of the call records of PW1/prosecutrix and A1 does not have any significant impact on the case of the prosecution in any negative way. Further the learned counsel for the accused failed to elicit any material irregularities done by the investigation officers during their investigation. Therefore in respect of their investigation the evidence of PW16 to PW19 has been remained unchallenged.

29. Further while submitting arguments, the learned counsel for the defense relied upon a decision made in case of Akella Sushmita Vardhani v. Mohammed Mirza

Hassan, 2011 (2) ALD (Crl.) 14 (AP). Wherein their lordships held as under:

“If a person makes a promise and subsequently fails to keep the promise, he/she cannot be attributed with the offence of cheating. The offence of cheating defined in Section 415 of IPC necessarily involves an element of deception or fraud at the time of making promise. The mens rea required being deception or fraud at the time of making representation or promise, it‟s non-existence at the very inception does not constitute the offence of cheating”.

He further relied upon a decision made in case of Sammangi Nagabhushanam v.

State of Andhra Pradesh, 2009 (1) ALD (Crl.) 155 (AP). Wherein their lordships held as under:

22 Spl.SC No.11 of 2018 “Here is a case where the appellant according to PW1 promised that he would marry her and because of the said promise only, PW1 allowed him to have sexual intercourse with her. But what is to be seen is as to whether the appellant at the time of making such a promise was having the fraudulent intention or not”.

He further relied upon a decision made in case of Suram Kirarn Kumar Reddy and others v. State of A.P and another, 2002 (2) ALD (Crl.) 835 (AP). Wherein their lordships held as under:

“In view of the law laid down in the above decisions even if all the allegations in the complaint are taken to be true, since the sexual intercourse by the 1st petitioner was with the consent of the 2nd respondent offence under Section 376 IPC cannot be said to have made out against the 1st petitioner”.

He further relied upon a decision made in case of Tilak Raj v. State of Himachal

Pradesh, 2016 (1) ALD (Crl.) 356 (SC). Wherein their lordships held as under:

“We have carefully heard both the parties at length and have also given our conscious thought to the material on record and relevant provisions of The Indian Penal Code (in short “the IPC”). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the time of incident. It is admitted by the prosecutrix in her testimony before the trial Court that she was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After a perusal of copy of FIR and evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable”.

He further relied upon a decision made in case of Pramod Suryabhan Pawar v.

The State of Maharastra and another, in Criminal Appeal No.1165 of 2019 (@SLP (Crl)

No.2712 of 2019 dated 21.08.2019. Wherein their lordships held as under:

“The allegation in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellants promise of marriage. Therefore, even if the facts set out in the complainants statements are accepted in totality, no offence under Section 375 of the IPC has occurred”.

23 Spl.SC No.11 of 2018

He further relied upon a decision made in case of Rajesh Patel v. State of

Jharkhand, 2013 (1) ALD (Crl.) 985 (SC). Wherein their lordships held as under:

“The contention urged on behalf the appellant that it was consensual sex with the prosecutrix is to be believed for the reason that she herself has gone to the house of the appellant though her version is that she went there at the request of the appellant to take back her book which she had given to him. This is a strong circumstance to arrive at the conclusion that the defence case of the appellant is a consensual sex”.

With due respect I am of the opinion that the above citations submitted by the learned counsel for the defense have no application to the facts of the present case in view of clinching and cogent evidence adduced by the prosecution in proving the guilt of the accused.

30. Further the evidence of PW1/prosecutrix corroborated by the evidence of other material witnesses has categorically established the fact that PW1/prosecutrix has approached the caste elders and village elders to resolve her issue amicably and she also hospitalized as she jumped into well and later she approached PS Mancherial and PS

Nennel, but no action taken by police and later as she consulted the village elders it took time to lodge complaint under Ex.P1, thereby the delay in lodging complaint categorically established from the cogent evidence.

31. Therefore, in the light of evidence adduced by prosecution and after careful scrutinization of the facts and circumstances brought on record, this is the fact crystal clearly established by the prosecution that from the beginning in spite of having knowledge that PW1/prosecutrix belong to ST-Mannewari (Kolavari) caste, A1 got acquaintance with her on the name of love and marriage and enjoyed her sexually and thereafter refused to marry her on the name of caste as she belong to lower caste. So, the said fact made clear the intention of A1 that in spite of having knowledge about the 24 Spl.SC No.11 of 2018 caste of PW1/prosecutrix that she belong to lower caste he intentionally with deceitful words on the name of love and marriage, approached PW1/prosecutrix and enjoyed her sexually, thereby the intention of A1 to cheat PW1/prosecutrix has been established from the date of beginning. Further by cheating PW1/prosecutrix with deceitful words on the name of love and marriage he made PW1/prosecutrix to surrender herself to him, thereby A1 enjoyed her sexually. In a country like India a women feels her body and chastity as property covered by „property‟ used in section 415 IPC. So, A1 by playing deception made her to deliver herself and after enjoying her sexually he refused to marry her by cheating her. Further, the evidence of PW1/prosecutrix made crystal clear that without her consent A1 cohabited with her on the pretext of love and marriage. Thereby the evidence of PW1/prosecutrix has clinchingly proved about the fact of sexual intercourse had been committed by A1 against her. Further

PW1/prosecutrix made clear before the court that she did not consent for the said sexual intercourse. Hence as observed by their Lordships in Criminal Appeal No.629/2019,

dated 09.04.2019 on the file of Hon‟ble Apex court that - whether sexual intercourse by

the accused is proved the presumption has been raised under section 114-A of Indian

Evidence Act as to the absence of consent as she did not consent. On the other side the learned counsel for the accused has failed to elicit any fact in order to rebut the said presumption. Further it is also proved that the accused had sexual intercourse with the prosecutrix by giving false assurance that he would marry her and later he refused to do so on the ground of her caste. Thereby intentionally insulted and humiliated her on the ground of her caste. From this it is evident that being known about the caste identity of prosecutrix from the beginning, the accused never intended to marry her and made assurance only for the reason of sexual relations with her. Which act of the accused falls squarely in the definition of rape as he had sexual intercourse with her in an misconception of fact as defined under Section 90 of IPC. Further it is also clinchingly 25 Spl.SC No.11 of 2018 established by the prosecution beyond reasonable doubt that A1 to A3 abused

PW1/prosecutrix by taking her caste name in a public place within the public view, thereby intentionally insulted and humiliated her on the ground of her caste. Therefore, the accused No.1 is liable to be convicted for the offence U/sec.376, 420 IPC and Sec. 3 (1) (r) (s) (w) of SCs/STs (POA) Amendment Act, 2015. Further A2 and A3 are liable to be convicted for the offence u/sec. 3 (1) (r) (s) of SCs/STs (POA) Amendment Act, 2015.

Point is answered accordingly.

32. In the result, the accused No.1 is found not guilty for the offence punishable

U/secs.417 IPC and he is accordingly acquitted under Section 235(1) Cr.P.C.

Further, the accused No.1 is found guilty for the offences punishable under

Sections 376, 420 of IPC and Sec. 3 (1) (r) (s) (w) of SCs/STs (POA) Amendment Act, 2015 and the accused No2 and 3 are found guilty for the offence punishable under

Section 3 (1) (r) (s) of SCs/STs (POA) Amendment Act, 2015 and accordingly they are convicted under Section 235(2) Cr.P.C.

Dictated to Stenographer, transcribed by him and after correction pronounced by me in

open court this the 18th day of October, 2019.

Spl.Judge for Trial of Cases Under SCs/STs (POA) Act, Cum-V Addl. District and Sessions Judge, Adilabad

33. When A1 to A3 are questioned about the quantum of the punishment, A1 represented that heis having old aged parents, A2 represented that she is having husband, A3 represented that he is having wife and A1 to A3 represented to take lenient view. Taking into consideration of the above facts of the case, no lenient view shall be taken and they are also not entitled any benefit of either Section 360 Cr.P.C or P.O.Act.

Accordingly, accused No.1 is sentenced to undergo rigorous imprisonment for a period of SEVEN YEARS and to pay fine of Rs.50,000/- (Rupees Fifty thousand only) for the 26 Spl.SC No.11 of 2018 offence under section 376 of IPC, in default of payment of fine, he shall undergo simple imprisonment for a period of six months; further accused No.1 is sentenced to undergo rigorous imprisonment for a period of FIVE YEARS and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) for the offence U/sec.420 IPC in default of payment of fine, he shall undergo simple imprisonment for a period of three months. Further accused No.1 is sentenced to undergo rigorous imprisonment for a period of THREE

YEARS and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) for the offence u/sec. 3 (1) (r) of SCs/STs (POA) Amendment Act, 2015, in default of payment of fine, he shall undergo simple imprisonment for a period of three months; further accused

No.1 is sentenced to undergo rigorous imprisonment for a period of THREE YEARS and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) for the offence u/sec. 3 (1)

(s) of SCs/STs (POA) Amendment Act, 2015, in default of payment of fine, he shall undergo simple imprisonment for a period of three months; further accused No.1 is sentenced to undergo rigorous imprisonment for a period of THREE YEARS and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) for the offence u/sec. 3 (1) (w) of

SCs/STs (POA) Amendment Act, 2015, in default of payment of fine, he shall undergo simple imprisonment for a period of three months.

Further accused No.2 and 3 are sentenced to undergo rigorous imprisonment for a period of THREE YEARS each and to pay a fine of Rs.5,000/- each (Rupees Five

Thousand only) for the offence u/sec. 3 (1) (r) of SCs/STs (POA) Amendment Act, 2015, in default of payment of fine, they shall undergo simple imprisonment for a period of three months each. Further accused No.2 and 3 are sentenced to undergo rigorous imprisonment for a period of THREE YEARS each and to pay a fine of Rs.5,000/- each (Rupees Five Thousand only) for the offence u/sec. 3 (1) (s) of SCs/STs (POA)

Amendment Act, 2015, in default of payment of fine, they shall undergo simple 27 Spl.SC No.11 of 2018 imprisonment for a period of three months each. All the sentences shall run concurrently. The remand period if any shall be set off under section 428 Cr.P.C.

Further, as per Section 357 (1)(b) of Cr.P.C., out of the total fine amount, an amount of Rs.50,000/- (Rupees Fifty Thousand only) shall be paid to PW1/victim towards compensation for the injury caused to her body and mind with effect of offence.

Accused No.1 to 3 are informed that they have got right of appeal to the Hon'ble

High Court and they are also furnished with free copy of this Judgment.

Dictated to Stenographer, transcribed by him and after correction pronounced by me in

open court this the 18th day of October, 2019.

Spl.Judge for Trial of Cases Under SCs/STs (POA) Act, Cum-V Addl. District and Sessions Judge, Adilabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1: Bursa Swarupa Rani -None- PW2: Bursa Laxmi PW3: Bursa Swapna PW4: Eegam Laxmi @ Bujjakka PW5: Jambi Dharmaiah PW6: Rebbena Banakka PW7: Md. Ibrahim PW8: Abbarla Sanjana PW9: Ellela Posham PW10: Mula Mahesh Goud PW11: Kondagorla Rajanna PW12: Durgam Bapu PW13: D. Rajeshwar, Tahsildar PW14: Dr. C. Rachika, Medical Officer PW15: Dr. Balaji, Medical Officer PW16: N. Ramesh/SI and 1st IO PW17: C. Satish/2nd IO PW18: A. Ramana Reddy/IO PW19: V. Balu Jadhav/IO and filed charge sheet

EXHIBITS MARKED

Ex.P1: Complaint of PW1 Ex.P2: Marked portion of 161 Cr.PC statement 28 Spl.SC No.11 of 2018 of PW7 Ex.P3: 161 Cr.PC statement of PW8 Ex.P4: 1st scene of offence panchanama including rough sketch Ex.P5: 161 Cr.PC statement of PW10 Ex.P6: 2nd scene of offence panchanama including rough sketch Ex.P7: 3rd scene of offence panchanama including rough sketch Ex.P8: Caste verification report Ex.P9: Medical report Ex.P10: RFSL report Ex.P11: Final opinion Ex.P12: Potency certificate Ex.P13: First Information Report Ex.P14: Orders of Commissioner of Police dated 27.11.2016 Ex.P15: Orders of Commissioner of Police dated 27.11.2016 Ex.P16: Memo of adding of section of law Ex.P17: Orders of Commissioner of Police dated 26.09.2017 Ex.P18: Customer application of mother of A1 Ex.P19: Customer application of friend of A1 Ex.P20: Covering letter issued by Nodal Officer Bharathi Airtel Ex.P21: Sec. 65-B certificate issued by Bharathi Airtel

For Defence:

Ex.D1 Marked portion of 161 Cr.PC statement of Pw1

Ex.D2 Marked portion of 161 Cr.PC statement of Pw1

MATERIAL OBJECTS MARKED

- NIL -

Spl.Judge for Trial of Cases Under SCs/STs (POA) Act, Cum-V Addl. District and Sessions Judge, Adilabad

Spl.SC.No.63/2018 1

IN THE COURT OF SPL.JUDGE FOR TRIAL OF CASES UNDER SCs/STs (POA)

ACT – CUM – V ADDITIONAL DISTRICT AND SESSIONS JUDGE, AT

ADILABAD

Present: Smt. G.V.N. Bharatha Laxmi, Spl. Judge for trial of cases under SCs/STs [POA] Act Cum V Addl. District and Sessions Judge, Adilabad

Monday the 21st day of October 2019

SPL.SC.NO. 63 OF 2018

Name of the Complainant State represented by Sub Divisional Police Officer, Bhainsa

Name of the Accused Hadapa Maruthi, S/o. Sainath, Age: 27 years, Occ: Coolie, Caste: Munnurukapu, R/o. Vinayaknagar, Bhainsa

Offence under section 417, 420, 506 IPC, Sec.3(1)(w)(i) and 3 (2)(va) of SCs/STs (POA Act, 1989 (Amended in 2015) Plea of the accusedNot guilty

Finding Not guilty Sentence or OrderIn the result, the accused is found not guilty for the offence punishable U/Secs.417, 420, 506 IPC and Secs.3 (1) (w)

(i) and Sec.3 (2) (va) of SCs/STs (POA) Amendment Act, 2015 and he is acquitted of the said offences under Section 235(1) Cr.P.C. His bail bonds shall stand cancelled.

Name of the counsel for prosecution Sri M.Ramana Reddy, I/C Addl. Public Prosecutor

Name of the counsel for DefenceSri. N. Pratap Reddy, Advocate

This case coming before me on 10.10.2019 for final hearing in the presence of Sri.M.Ramana Reddy, I/C Additional Public Prosecutor for the State and of Sri.N. Pratap Reddy, Advocate for Accused and on hearing both sides the matter having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Sub Divisional Police Officer, Bhainsa filed charge sheet against the accused for the offences under Sections 417, 420, 506 IPC, Sec.3(1)(w)(i) and 3

Spl.SC.No.63/2018 2 (2)(va) of SCs/STs (POA) Act, 1989 (Amended in 2015) in Cr.No.87 of 2018 of PS

Bhainsa Town.

2. The prosecution case in brief is that LW1/victim (Bansode Swapna) is resident of Pulenagar, Bhainsa Town and belong to Mala of SC caste. Since about four years she maintains the relationship with accused and belongs to

Munnurukapu of BC-D caste and resident of Vinayaknagar, Bhainsa. They loved with each other. The accused promised to marry her and used her, earlier she asked the accused for marriage, but he postponed to now and then. Later the accused told her that they will elope and get marked. As per the request of accused on 22.06.2018 she came from her house, waiting for the accused, she called him through phone and after he arrival; they both went to Rathan tailor shop, there they stayed for some time and later the accused left from the Rathan tailor shop and went away. She called the accused through mobile but call did not connect and later after some time the call was connected, where she asked for marriage, the accused refused to marry her and said that she belong to lower caste, he could not marry her, if she would do anything, the accused would not marry her. As such, she lodged complaint. On complaint, the case was registered and after completion of investigation charge sheet is filed against the accused for the offence punishable under Sections 417, 420, 506 IPC and Sec.3(1)(w)(i) and 3 (2)(va) of SCs/STs (POA) Act, 1989 (Amended in 2015).

3. The case was taken on file by the Spl.Judge for trial of cases under SCs/STs (POA) Act–Cum–V Additional District and Sessions Judge, Adilabad, dated 04.09.2019 as Spl.SC No.63/2018.

Spl.SC.No.63/2018 3

4. After appearance of the accused and on hearing him charges under

Sections 417, 420, 506 IPC and Sec.3(1)(w)(i) and 3 (2)(va) of SCs/STs (POA)

Amendment Act, 2015 were framed, read over and explained the same to him in

Telugu, for which he pleaded not guilty and claimed to be tried.

5. During the course of the trial PW1 to PW11 were examined and Exs.P1 to

Ex.P9 were marked.

6. On completion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. He denied the incriminating evidence appearing against him in the evidence of prosecution witnesses and reported no defence evidence.

Heard arguments on both sides. 7.

Now the point that arises for determination is: 8.

“Whether the prosecution could bring home the guilt of the accused for the charges framed against him under Sections 417, 420, 506 IPC and Secs.3(1)(w)(i) and 3 (2)(va) of SCs/STs (POA) Amendment Act, 2015 beyond all reasonable doubt?”

P O I N T:

9. The accused neither being member of Scheduled Caste nor Scheduled Tribe intentionally cheated PW1/prosecutrix member of Scheduled Caste by deceitful words to marry her and had cohabitation with her and thereafter refused to marry her and also intimidated PW1/prosecutrix with injury to her with an intention to cause alarm to her, thereby accused committed an offence punishable U/secs.417,

Spl.SC.No.63/2018 4 420, 506 IPC and Secs.3(1)(w)(i) and 3 (2)(va) of SCs/STs (POA) Amendment Act, 2015.

10. In order to substantiate the charges leveled against the accused, the prosecution has got examined witnesses all in all PWs 1 to PW11 and also got marked Exs.P1 to Ex.P9. On the other side the plea of the accused is of total denial and also reported no defence evidence.

11. Of the prosecution witnesses, at a glance it is seen that PW1 is the complainant as well as victim, PW2 is sister of PW1 who is circumstantial witness,

PW3 and PW4 are independent witnesses who turned hostile and did not support the case of prosecution, PW5 is photographer, PW6 and PW8 are mediators for

CDF panchanama who turned hostile and did not support the case of prosecution,

PW7 is Tahsildar certifies the caste of PW1/prosecutrix and the accused, PW9 is

Women constable recorded the 161 Cr.PC statement of PW1/prosecutrix, PW10 and PW11 are investigating officers.

12. Now coming to the testimony of PW1/prosecutrix, this is her main allegation that she belongs to SC-Mala caste and accused belong to BC-

Munnurukapu. The family of accused used to be tenant in the house of her Junior

Paternal Uncle in Bhainsa for two years. Then herself and accused got acquaintance with each other. They used to talk in phone. The accused said to

PW1/prosecutrix that he would marry her, for that she also accepted. The mother of the accused also used to call PW1/prosecutrix as daughter-in-law. The accused made her to believe as he would marry her. On the name of marriage the accused enjoyed her physically. Once the accused took her to Nizamabad for shopping

Spl.SC.No.63/2018 5 and once to Ali sagar and Nirmal. For that the accused used to follow

PW1/prosecutrix when she went to Echoda to leave son of her sister in hostel.

Though PW1/prosecutrix got marriage proposals, the accused threatened her to commit suicide if she goes for marriage proposal. Once the family members of

PW1/prosecutrix took her to Nandipet for a marriage proposal, then the accused made a phone call to her and threatened if she agree for marriage proposal, he will kill her and proposed groom. The family members of PW1/prosecutrix scolded her for not accepting any marriage proposal, then she disclosed about threats of accused. Further she declared them to marry accused. She also informed the accused about the scolding of her family members. On 22.06.2018 while she was in duty as Nurse at the proposal of accused to elope with him she went to

Ratan tailors to meet him. The accused made a proposal her to go to Hyderabad for one month and later he would come but she refused the said proposal and he insisted to go anywhere only after marriage with him. Then the accused left the place by saying that he will be back shortly in 5 minutes but he did not return and when she made a call, got the cell phone of the accused was switched off. After some time again PW1/prosecutrix made a phone call then the accused lifted her call, when PW1/prosecutrix asked the accused for further move the accused told to her that he will not marry her as she belong to lower caste and his family members will not accept her and asked her to do whatever she wish.

PW1/prosecutrix informed the same to her family members. Then she and her family members waited for some days for the response of accused and later on 27.06.2018 she went to police station and lodged complaint under Ex.P1. On the other side, this is the defense taken by the learned counsel for the accused that

PW1/prosecutrix only insisted accused to marry him as he is handsome and

Spl.SC.No.63/2018 6 when he refused her proposal, she filed this false complaint and also insisted accused to pay money.

13. In order to elicit the facts in support of his defense the learned counsel for the accused has cross examined PW1/prosecutrix. While cross examination PW1 stated that her house and the house of her Junior Paternal uncle are situated in different lines side by side. Further learned counsel for the accused has elicited that PW1/prosecutrix did not state to police that the accused used her physically.

Further it is elicited that PW1/prosecutrix did not mention Ex.P1 that accused took her to Nizamabad, Alisagar, Nirmal and Echoda. Further it is elicited while cross examination that PW1/prosecutrix know one Anil Constable belongs to her caste, working in PS Bhainsa. Further it is elicited that at the time of alleged offence the accused was working in Mahesh Agencies which is nearby Ratan tailors. Further it is stated that her brother is residing in Hyderabad and she never informed about accused to her brother and she has disputes with her brother.

Further it is stated by PW1/prosecutrix that the accused used her physically for twice in park. Further PW1/prosecutrix has denied that herself and accused were only known to each other and accused never said that he was loving her and would marry her. Further it is elicited that no panchayath was held in between her family and accused family from 22.06.2018 to 27.06.2018.

14. Thereby after cross examination, this is the fact has been established that the accused used to be tenant of Junior Paternal Uncle of PW1/prosecutrix in

Bhainsa, at that time PW1/prosecutrix and accused got acquaintance with each other. Further it is the contention of PW1/prosecutrix that the accused said to her that he would marry her then she accepted but nowhere PW1/prosecutrix has

Spl.SC.No.63/2018 7 said that the accused approached her on the name of love and he was loving her.

Futher though it is stated by PW1/prosecutrix that the accused made her to believe as he would marry her but she did not reveal any fact what he did to make her believe as he would marry her. Further it is not the contention of

PW1/prosecutrix that the accused loved her or promised her as he would marry her. So, as per the contention of PW1/prosecutrix that there was no love and promise from the side of the accused with PW1/prosecutrix. Further as per the contention of PW1/prosecutrix that on the name of marriage, the accused enjoyed her physically and accused used her physically for twice in park. But as elicited by the learned counsel for the defense, her 161 Cr.PC statement did not reveal the said contention that the accused enjoyed her physically for twice in park. Since the PW1/prosecutrix omitted to mention in sec. 161 Cr.PC statement and stated

before this court it shall be considered as material omissions. Further accused

enjoyed her physically for twice park which is public place is seems to be unreal, since unusual. Thereby the omissions of her statement before the police that the accused enjoyed her physically for twice in park regarding the same before this court is liable to be disbelieved in view of the above reasons. Further though it is contended by PW1/prosecutrix that the accused took her to Nizamabad, Alisagar,

Nirmal and Echoda but as elicited by the learned counsel for the defense that

PW1/prosecutrix did not mention in Ex.P1 that the accused took her to said places. Apart from that there is no witness produced by the prosecution in proof atleast moving of PW1/prosecutrix and accused together anywhere. In addition to that the evidence of PW2 also made clear that she has no knowledge even about the love proposal of accused with PW1/prosecutrix till she was informed by PW1/prosecutrix when she refused marriage proposal. Further the evidence of

PW2 also did not reveal any fact regarding any love affair between

Spl.SC.No.63/2018 8

PW1/prosecutrix and accused. If really PW1/prosecutrix has moved with accused in several places to the knowledge of public the prosecution could able to get witnesses in proof of the same. Further even the family members do not have knowledge about moving of PW1/prosecutrix and accused, thereby the said fact cast doubt on the evidence of PW1/prosecutrix that whether they really moved together in several places. Further if PW1/prosecutrix moved with accused to several places, the family members would have knowledge about the same even through outsiders of the family. Further as per the contention of PW1/prosecutrix that when she got marriage proposal the accused used to threatened her to commit suicide if she go for marriage proposal. Further the accused also threatened PW1/prosecutrix if she agree for marriage proposal, he will her and proposed groom. But PW1/prosecutrix did not mention anywhere in her complaint about alleged threats of the accused against her to kill her and proposed groom. If really the accused threatened her to kill she ought to have mention the same in her complaint. So in the absence of her contention in the complaint her evidence for the first time before this court shall not be treated as gospel truth.

15. Further as per the contention of PW1/prosecutrix that on 22.06.2018 while she was in duty as Nurse at the proposal of accused to elope him she went to

Ratan tailors to meet him. Whereas the evidence of PW2 discloses that she has no knowledge about leaving of PW1/prosecutrix on that day. Apart from that this is the contention of PW1/prosecutrix that at the Ratan tailors shop the accused made proposal her to go Hyderabad for one month and later he would come but she refused the said proposal and insisted accused to go anywhere only after marriage with him. Thereby the evidence of PW1/prosecutrix did not reveal any

Spl.SC.No.63/2018 9 refusal by the accused to marry her. Further her evidence shows that she refused the proposal of accused to go to Hyderabad. Further according to her evidence that the accused said to her that he would come after she left to Hyderabad.

Further as per the evidence of PW1/prosecutrix that she insisted accused to go anywhere only after her marriage with him, on that the accused left the place by saying that he will be back shortly in 5 minutes. Thereby the said contention clearly shows that at the proposal of accused to Hyderabad for one month and he would come is returned by PW1/prosecutrix and she insisted accused to go anywhere only after her marriage, on that the accused left the place. Thereby at this juncture her evidence revealed that there was no refusal by accused to marry her and even the accused made proposal to go to Hyderabad. Further as per the contention of PW1 that after accused left the place of PW1 he did not return though made a phone call she got the cell phone of the accused switched off and after some time her call was lifted by the accused and accused told her that he will not marry her as she belong to lower caste and his family members are not accepted her, she will do what ever her wish. As stated above, just few minutes

before this alleged refusal by the accused, he himself proposed PW1 to go along

with PW1/prosecutrix to Hyderabad. If really the accused has intention not to marry PW1/prosecutrix on the name of caste as she belong to lower caste and his family members will not accept her he would not have made a proposal to accused to come to Rathan Tailor shop and to go to Hyderabad. So the said proposal by the accused with PW1/prosecutrix to go to Hyderabad and asked her to come Rathan tailor shop shows he has no intention of not to marry

PW1/prosecutrix. Therefore, even as per the evidence of PW1/prosecutrix, the accused proposed PW1/prosecutrix to move to Hyderabad and few minutes later refused to marry her on the name of caste is contradicting her evidence since

Spl.SC.No.63/2018 10 according to her one side the accused himself made proposal to go to Hyderabad and on the other side the accused refused to marry her on the name of caste, hence contradicting evidence of PW1/prosecutrix is not seems to be truth or real and her evidence shows that she is twisting the facts somewhere to her convenient. Thereby unless her evidence is supported by any other evidence of the material witnesses, her evidence solely shall not be based to come to a conclusion regarding the guilt of the accused.

16. Whereas coming to the evidence of other witnesses, as per the prosecution,

PW3 and PW4 are eyewitnesses to the alleged incident in between

PW1/prosecutrix and accused on 22.06.2018 because PW3 is the owner of Rathan tailor shop where allegedly PW1/prosecutrix and accused met on that day and

PW4 is the son of PW3. As per the evidence of PW3 that on 22.06.2018 at about 4.30 pm he found the accused was standing with a cover in his hand in a corner of the road situated in front of his shop. PW1/prosecutrix obstructing the accused and not allowing him to go as he know PW1/prosecutrix and accused, he came out of his shop and enquired with them about the reason for their dispute. The accused informed him that while he was going to hand over a cover,

PW1/prosecutrix was not allowing him to go. The accused asked

PW1/prosecutrix to let him go and will be back soon. Then PW3 too advise

PW1/prosecutrix to let him go and he will be back. PW1/prosecutrix said that if the accused goes he will not come back. After some time PW1/prosecutrix let accused to leave the said place. Before accused back to the said place

PW1/prosecutrix left. The accused enquired him about PW1/prosecutrix where she gone. The accused waited for PW1/prosecutrix for two hours in the same place up to 7.00 pm and left the place. At this juncture, the learned Addl.PP

Spl.SC.No.63/2018 11 declared him as hostile and with the permission of this court as turned cross examination. However, while cross examination PW3 has denied to have given the statement before the police under Ex.P2 161 Cr.PC statement. Further while cross examination for accused it is stated by PW3 that along with Pw1, her sister was also present. Since PW3 squarely denied his statement given before the police in Toto, his evidence whatever he deposed in cross examination is liable to be discarded. Further as stated earlier PW4 who is the son of PW3 also turned hostile and did not support the case of prosecution. So, except the evidence of PW3 and

PW4 there are no other material witnesses to speak in support of the prosecution regarding the alleged incident.

17. Further the remaining witnesses are official witnesses, thereby it is stated that the evidence of PW1/prosecutrix was not supported by any other material evidence of independent witnesses, hence the sole testimony of PW1/prosecutrix failed to inspire confidence of this court in respect of the guilt of accused.

18. As per the evidence of remaining witnesses, PW5 photographer who took the photographs of the scene of offence situated at Ratan tailors under Ex.P4 photographs with CD at the request of police, Bhainsa. Further as stated earlier, the mediators for the scene of offence panchanamas are examined as PW6 and

PW8 have turned hostile and did not support the case of prosecution.

19. Further from the evidence of PW7, the then Tahsildar, Bhainsa, it is established that as per the requisition from Sub Divisional Police Officer, Bhainsa, he verified the caste particulars of PW1/prosecutrix and accused and issued Ex.P6 caste verification report stating that PW1/prosecutrix belong to SC-Mala caste

Spl.SC.No.63/2018 12 and accused belongs to BC-Munnurukapu caste. However, the evidence of PW7 is not useful to the prosecution unless the prosecution is able to prove the guilt of the accused.

20. Whereas the evidence of PW9, Women constable of PS Bhainsa discloses the fact that at the directions of Sub Divisional Police Officer, Bhainsa she recorded the statement of PW1/prosecutrix and handed over the said statement to Sub Divisional Police Officer, Bhainsa. While cross examination PW9 has categorically admitted that PW1/prosecutrix did not state before her that she has physical relation with accused.

21. The remaining witnesses on record are investigating officers who were examined as PW10 and PW11. As per the evidence of PW10/SI of police, Bhainsa town received written complaint from PW1/prosecutrix, based on it, he registered a case in Cr.No.87/2018 u/sec. 417, 420 IPC and Sec. 3 91) (w) (i) of

SC/ST (POA) Amendment Act, 2015 and issued FIR Ex.P8 and later he handed over the CD file to PW11/SDPO, Bhhainsa for further investigation. Whereas coming to the cross examination, it is categorically admitted by PW10 that Pw1 did not specify reason to delay in lodging the complaint. Here witness adds that in enquiry with PW1/prosecutrix he came to know that she consulted her parents and elders the delay was occurred, hence he has mentioned the same in column

No.8 of FIR. Further PW10 admitted that PW1/prosecutrix did not mention that the accused used her physically. Therefore, from the evidence of PW10 it is clear that PW1/prosecutrix has lodged the complaint before PS Bhainsa on 27.06.2018 at about 1.00 pm. Whereas even as per the evidence of PW1/prosecutrix the alleged offence was taken on 22.06.2018. Thereby it can be said that

PW1/prosecutrix has lodged the complaint with a delay of (5) days. Further as

Spl.SC.No.63/2018 13 admitted by PW10, PW1/prosecutrix not specified any reason to delay in lodging complaint. Further according to her statement before the police she and her family members waited for some days for response of accused and later filed complaint on 27.06.2018. So, this is the fact has been contradicting with the observations made by PW10 in column No.8 of FIR that PW1/prosecutrix consulted her parents and elders, hence the delay was caused. If really the accused has done the alleged offence against PW1/prosecutrix she would not have waited for (5) days to lodge complaint against the accused. If really the accused has done the offence against her she ought to have given complaint as early as possible in reasonable time but according to her evidence, she waited five days for the response of the accused but the said fact is not at all revealed from the evidence of her own sister

PW2. Therefore, it can be stated that there is an inordinate delay of (5) days in reporting the matter and the prosecution has failed to adduce any cogent evidence to explain the delay satisfactorily; hence the delay of (5) days in reporting the matter to police is fatal to the case of prosecution.

22. Further as per the evidence of PW11, the then Sub Divisional Police Officer,

Bhainsa, he took up investigation from PW10/SI of police, Bhainsa as per the orders of Superintendent of police, Nirmal dated 27.06.2018. Then after he deputed PW9 to record the statement of PW1/prosecutrix and got statement recorded under video. Then after he visited the scene of offence, recorded the statements of PW2 to PW4 and also got their statements video recorded. Then after in the presence of mediators PW6 and PW8, he conducted CDF panchanama and also drawn rough sketch under Ex.P9 and also taken photographs. Then after he recorded the statement of PW5. Later he obtained caste certificate of

PW1/prosecutrix and accused from PW7/Tahsildar by giving requisition. Later on 13.07.2018 he apprehended the accused and sent him to judicial custody. After

Spl.SC.No.63/2018 14 completion of investigation he filed charge sheet against the accused for the offence u/sec. 420, 417, 506 IPC and Sec. 3 (1) (w) (i) and 3 (2) (va) of SCs/STs (POA) Amendment Act, 2015. Whereas in cross examination Pw11 also admitted that there is delay of (5) days in lodging FIR. Further he has admitted that there is sub control room nearby crime scene. In such situation without late

PW1/prosecutrix ought to have approached the sub control room of police but she did not do it. Further as per the admission of PW11, he did not collect call data of PW1/prosecutrix and accused. Further PW11 stated that PW1/prosecutrix did not produce any photographs of her with accused. Further as it is stated by

PW11 that nobody was given statement before him to show that PW1/prosecutrix and accused moved together. Further it is squarely admitted by PW11 that his investigation did not reveal the fact that the accused used PW1/prosecutrix physically. Thereby the admission made by PW11/investigating officer also goes against to the prosecution that there is no witness to show that PW1/prosecutrix and accused moved together and his investigation did not reveal the fact that the accused used PW1/prosecutrix physically. Further the learned counsel for the accused did not elicit any fact in order to elicit any material aspects done by PW11 while investigation; thereby the investigation done by PW11 has been found unchallenged.

23. Therefore, in the light of the evidence of prosecution witnesses as well as in view of the facts and circumstances discussed above, the evidence of

PW1/prosecutrix has been suffered with material contradictions and omissions and also not supported by the evidence of any other material evidence, thereby her evidence did not inspire the confidence of this court to come to conclusion regarding the guilt of accused beyond all reasonable doubt. Accordingly, the accused is entitled for acquittal. Point is answered accordingly.

Spl.SC.No.63/2018 15

24. In the result, the accused is found not guilty for the offence punishable

U/Secs.417, 420, 506 IPC and Secs.3 (1) (w) (i) and Sec.3 (2) (va) of SCs/STs (POA)

Amendment Act, 2015 and he is acquitted of the said offences under Section 235(1) Cr.P.C. His bail bonds shall stand cancelled.

Dictated to Stenographer, transcribed by him and after correction pronounced by

me in open court this the 21 st day of October, 2019.

Spl.Judge for Trial of Cases Under SCs/STs (POA) Act, Cum-V Addl. District and Sessions Judge, Adilabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1: Bansode Swapna - None - PW2: Bansode Ranjitha PW3: Jamalkar Ramdas PW4: Jamalkar Prakash PW5: Dhagde Rastrapal PW6: JPranesh Muthypuwar PW7: A. Subhashchander/Tahsildar PW8: Muthypuwar Suryakanth PW9: S. Sangeetha/WPC PW10: P. Punnam Chandar/SI PW11: Ande Ramulu/IO

EXHIBITS MARKED

Ex.P1: Complaint of PW1 -Nil- Ex.P2: 161 Cr.P.C. statement of PW3 Ex.P3: 161 Cr.P.C. statement of PW4 Ex.P4: Photographs with CD by PW5 Ex.P5: Signature of PW6 on CDF panchanama Ex.P6: Caste verification report by PW7 Ex.P7: Signature of PW8 on CDF panchanama Ex.P8: First Information Report by PW10 Ex.P9: CDF panchanama by PW11

Spl.Judge for Trial of Cases Under SCs/STs (POA) Act, Cum-V Addl. District and Sessions Judge, Adilabad

1 Spl.SC No.25 of 2018

IN THE COURT OF SPL.JUDGE FOR TRIAL OF CASES UNDER SCs/STs (POA) ACT –

CUM – V ADDITIONAL DISTRICT AND SESSIONS JUDGE, AT ADILABAD

Present: Smt. G.V.N. Bharatha Laxmi, Spl. Judge for trial of cases under SCs/STs [POA] Act Cum V Addl. District and Sessions Judge, Adilabad

Tuesday, this the 15th day of October, 2019

SPL.SC.NO.25 OF 2018

Name of the Complainant State represented by Asst. Commissioner of police, Mancherial.

Name of the Accused No.1 Vennampalli Ramesh, S/o. Shankaraiah, Age: 48 years, Occ: Auto driver, Caste: Gandla, R/o. Jhansinagar, Srirampur colony, Srirampur

Offence under section 290, 323 IPC, Sec.3(1)(s) of SCs/STs (POA) Act, 1989.

Plea of the accused Not guilty

Finding Not guilty

Sentence or Order In the result, the accused is found not guilty for the offence punishable under Sections 290, 323 IPC and Sec. 3 (1) (s) of SCs/STs (POA) Act, 1989 and he is acquitted of the said offences under Section 235 (1) Cr.PC. The bail bonds of accused shall stand cancelled.

Name of the counsel for prosecution Sri M.Ramana Reddy, I/C Addl. Public Prosecutor

Name of the counsel for Defence Sri P. Mohan Singh, Advocate

This case coming before me on 26.09.2019 for final hearing in the presence of Sri.M.Ramana Reddy, I/C Additional Public Prosecutor for the State and of Sri. P. Mohan Singh, Advocate for accused and on hearing both sides the matter having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Assistant Commissioner of police, Mancherial filed charge sheet against the accused for the offence under Sections 290, 323 IPC, Sec.3(1)(s) of SCs/STs (POA) Act, 1989 in Crime No.431/2017 of PS Mancherial.

2 Spl.SC No.25 of 2018

2. The prosecution case in brief is that on 05.08.2017 LW1/complainant (Racharla

Venkatesh) gave Rs.10,000/- to accused as an advance to purchase an auto bearing

No.AP01Y-8398, Model 2013, Chassis No.BD2A26AZ4DWC2758, Engine

No.BAZWOC24824. On 19.08.2017 at about 3.00 p.m., the accused took him to DLF

Finance office at Hi-Tech city, Mancherial to arrange loan for him to purchase auto. The finance company people after perusing the documents of the auto, disclosed that they can give Rs.40,000/- only for the auto of 2013 make, but not Rs.70,000/-. Then, he along with his followers Boya Vijay, Thota Kumar, Ellasani Vijay while getting down the stairs of the building, the accused abused him referring his caste name alleging as to why he came here to purchase auto without having sufficient money. Further the accused caught hold his shirt collar, tore it and slapped him by threatening with dire consequences to kill and caused much mental agony. Basing on the complaint of LW1, the case was registered and after completion of investigation charge sheet is filed against the accused for the offence punishable under Section 290, 323 IPC, Sec.3(1)(s) of SCs/STs (POA) Act, 1989.

3. The case was taken on file by the Spl.Judge for trial of cases under SCs/STs (POA) Act–Cum–V Additional District and Sessions Judge, Adilabad, dated 03.05.2018 as Spl.SC No.25/2018.

4. After appearance of the accused and on hearing him, charges under Sections 290, 323 IPC, Sec.3(1)(s) of SCs/STs (POA) Act, 1989 were framed, read over and explained the same to him in Telugu, for which he pleaded not guilty and claimed to be tried.

5. During the course of the trial PW1 to PW13 were examined and Exs.P1 to Ex.P7 were marked and Ex.D1 marked on behalf of accused. The evidence of LW9 named

Mudassir Ahmed is given up by the learned Addl.Public Prosecutor.

3 Spl.SC No.25 of 2018

6. On completion of the prosecution evidence, accused was examined under Section 313 Cr.P.C. He denied the incriminating evidence appearing against him in the evidence of prosecution witnesses and reported no defence evidence.

7. Heard arguments on both sides.

8. Now the point that arises for determination is:

“Whether the prosecution could bring home the guilt of accused for the charges framed against him under Sections 290, 323 IPC, Sec.3(1)(s) of SCs/STs (POA) Act, 1989 beyond all reasonable doubt?”

P O I N T:

9. This has been the charge framed against the accused that on 19.08.2017 at about 3.00 p.m., at DLF Finance located at Hi-tech city, Mancherial, the accused not being the member of Scheduled caste or Scheduled Tribe, abused PW1/Racharla Venkatesh belong to Scheduled Caste in filthy language on the name of his caste and voluntarily caused hurt by beating him with hands, thereby the accused committed an offence punishable U/sec.290, 323 IPC and Sec.3(1)(s) of SCs/STs (POA) Act, 1989.

10. In order to substantiate the charges leveled against the accused, the prosecution has got examined as many as witnesses PW1 to PW13 and also got marked Exs.P1 to

Ex.P7. On the other side the plea of the accused is of total denial and reported no defence evidence, however got marked Ex.D1.

11. Of the prosecution witnesses at a glance, it is seen that, PW1 is complainant as well as victim, PW2, PW3 and PW9 are said to be eyewitnesses for the alleged offence,

PW5 is Manager of DLF finance, PW6 is uncle of PW1, PW7 is mediator for alleged scene of offence panchanama, PW8 and PW11 are Tahsildars certifies the caste of PW1 and accused, PW10, PW12 and PW13 are investigating officers.

4 Spl.SC No.25 of 2018

12. When we are coming to testimony of PW1, it is evident that he belongs to SC-

Madiga caste and he intended to purchase second hand auto. The accused used to sell second hand autos. So, on 05.08.2017 PW1 along with his friends PW2, PW3 and PW9 went to the house of accused situated at Srirampur village and entered into an agreement with accused to purchase an auto, 2013 model bearing No.AP01-8393 for an amount of Rs.85,000/-. Then PW1 has paid Rs.10,000/- in advance to accused and obtained receipt with an agreement to pay the total sale consideration within 10 days.

Then PW1 searched for finance. On 19.08.2017 PW1 along with PW2, PW9 and accused went to DLF finance, then the finance people said that for the second hand auto 2013 model they only give finance up to Rs.45,000/-, but not Rs.70,000/-. Then all came out of the finance office and PW1 requested the accused as he do not have sufficient money to purchase auto to return his advance amount. Then the accused said that he does not return advance amount and abused him as you have shown your character, “Madiga

Lanjakodaka” and slapped on his cheek. Then on the same day PW1 went to police station and lodged complaint under Ex.P1.

13. On the other side, this is the defence taken by the learned counsel for accused that no offence was taken place and the accused has filed civil suit against Chitla Ramesh and Mallareddy, Advocate Mancherial for recovery of lands thereby at the instance of

Chitla Ramesh, Advocate PW1 foisted a false case against the accused. In support of his defense, the accused also got marked Ex.D1 agreement of sale of auto.

14. Now we take up the contentions of PW1 one by one. The first contention of the

PW1 is that the accused intend to sell second hand auto on 05.08.2017 he along with his friends PW2 and PW9 approached the accused and PW1 entered into an agreement with accused to purchase the auto of 2013 model bearing No.AP01-8393 for an amount of

Rs.85,000/- and also paid Rs.10,000/- towards advance to accused and also obtained 5 Spl.SC No.25 of 2018 receipt with an agreement to pay the total consideration within (10) days. Whereas while cross examination PW1 has categorically admitted that he entered into an agreement in respect of purchase of second hand auto under Ex.D1 agreement of sale of auto. Further as elicited the accused is scribe of agreement and PW2 and PW9 are the witnesses for the said agreement. Further it is categorically admitted that by PW1/victim that as per agreement he paid Rs.10,000/- towards advance and the balance amount has to be paid on or before 14.08.2017 and in case of failure to pay balance amount within specified date the advance amount will be forfeited.

15. Whereas the evidence of PW2 and PW9 who are said to be friends of PW1 who accompanied PW1 to accused also have deposed in the same lines with that of PW1 about agreement of PW1 with accused to purchase second hand auto under Ex.D1 agreement of sale and payment of Rs.10,000/- by PW1 to accused towards advance.

Further the evidence of PW2 and PW9 has also revealed the fact that PW1 agreed to repay the balance amount within one week. Further PW2 and PW9 have categorically admitted in their cross examinations that if PW1 fail to purchase the auto in time the advance amount paid by him will be forfeited. Therefore, the evidence of PW1 has been corroborated in material aspect by the evidence of PW2 and PW9 in respect of the fact that PW1/victim approached the accused on 05.08.2017 to purchase second hand auto, 2013 model bearing No.AP01-8393 for total consideration of Rs.85,000/- under Ex.D1 agreement of sale of auto and also paid Rs.10,000/- advance to accused. Further PW1 agreed to pay total sale consideration amount within (10) days i.e., on or before 14.08.2017 and if he fails to pay the balance sale consideration within stipulated time the advance amount of Rs.10,000/- paid by him will be forfeited.

16. Now coming to another contention of PW1/victim that he searched for finance and on 19.08.2017 he along with PW2, PW9 and accused went to DLF finance, whereas 6 Spl.SC No.25 of 2018 the finance authority inclined to give finance only up to Rs.45,000/- but not Rs.70,000/- as required by PW1. Then they came out of the finance office while stepping down to ground floor and PW1 requested the accused to return advance amount as he does not have sufficient money to purchase the auto, then the accused abused him on the name of his caste as “Madiga Lanjakodaka” as shown your character and slapped on his cheek.

Then on the same day he went to police station and lodged complaint under Ex.P1.

Whereas while in cross examination PW1/victim has categorically admitted that they approached DLF finance on the last date of payment i.e., on 14.08.2017. Apart from that it is also elicited by the learned counsel for the accused that PW1 did not mention either in report or statement to the police that he requested the accused for return of advance amount as he could not get finance to pay balance sale amount. It is also admitted by

PW1/victim that he said to accused to receive Rs.40,000/- amount to be given by finance and will pay the remaining balance amount later but the accused did not agree. Apart from that it is elicited from the cross examination of PW1/investigating officer that the date of offence is 14.08.2017. Further PW12 also categorically admitted that PW1 did not mention either in complaint or 161 Cr.PC statement that he requested accused to return advance amount. Further PW12/investigating officer admitted that PW1 did not mention either in complaint or 161 Cr.PC statement that accused slapped on his cheeks.

Therefore, it is seen, as per the testimony of PW1 as well as complaint under Ex.P1, the alleged offence was taken place on 19.08.2017 but PW1 again admitted in cross examination that they approached DLF finance on the date of alleged offence i.e., on 14.08.2017. Whereas the evidence of PW12/investigating officer also made clear that the alleged offence was taken place on 14.08.2017. Apart from that even as per the testimony of PW2 and PW9 said to be eyewitnesses to the alleged offence that the alleged offence was taken place on 14.08.2017. Therefore, the contention of the PW1 regarding the date of alleged offence has been contradicted by his own admission as well as the testimony 7 Spl.SC No.25 of 2018 of PW2 and PW9 and PW12/investigating officer; thereby the prosecution has failed to prove that whether the alleged offence was taken place on 19.08.2017 or 14.08.2017. So the said material contradictions regarding the date of alleged offence shall cast reasonable doubt on its case.

17. Further in proof of the fact that PW1 approached DLF finance, the prosecution has got examined PW5 who is said to be Manager of DLF Finance in DLF Branch,

Mancherial. His evidence has made clear that PW1 and accused approached their office on 14.08.2017 and after verifying their request, he estimated the proposal of loan at amount of Rs.30,000/- to Rs.40,000/- but PW1 requires loan amount more than that.

Then they declared about non possibility of giving loan more than Rs.40,000/-, then

PW1 and accused left their office. On this aspect the learned counsel for the accused did not do any cross examination thereby accepting the evidence of PW5 as it is. Apart from the evidence of PW2 and PW9 also made clear that on 14.08.2017 they along with PW1 and accused went to DLF finance where PW5 was refused to give sufficient loan amount as required by him. Therefore, this is the fact categorically established by the prosecution that on 14.08.2017 PW1 along with accused, PW2 and PW9 approached DLF office for finance to purchase second hand auto from accused.

18. Whereas another contention of PW1/victim that after they came out of the DLF office while they were stepping down to ground floor as PW1 requested accused to return advance amount, on that the accused abused him on the name of his caste and slapped on his cheeks. But whereas while cross examination of PW1 as well as cross examination of PW12/investigating officer, this is fact has been categorically elicited by the learned counsel for the accused that PW1 did not mention either in complaint or 161

Cr.PC statement that he requested accused to return advance amount. Thereby it is made clear that PW1 never requested accused to return advance amount. Apart from 8 Spl.SC No.25 of 2018 that as it is admitted by PW1/victim while cross examination that he asked the accused to receive Rs.40,000/- amount to be given by finance and he will pay the remaining balance amount later but the accused did not agree for it. So, according to said fact

PW1/victim asked the accused to receive Rs.40,000/- amount which is to be given by

DLF finance and asked him to wait for balance amount, for that accused did not agree.

Thereby the contention of PW1 that when he requested the accused to return his advance amount as he does not have sufficient amount to purchase the auto which is motive for this alleged offence has been not proved by the prosecution, thereby the alleged motive deposed by PW1 has been falsified even with his admission.

19. Apart from that according to the evidence of PW1/victim that while they were stepping down to ground floor this alleged offence was taken place. Whereas the evidence of PW2 said to be eyewitness revealed that in respect of the return of advance amount a discussion was gone in between PW1 and accused, on that the accused beat

PW1 due to which the shirt of PW1 was torn. Further the accused abused PW1 as “Madiga Lanjakodaka”, you can complaint to anybody if you can. But whereas while cross examination as elicited by the learned counsel for the accused from PW2 as well as

PW12/investigating officer that PW2 did not state before the police that accused beat

PW1 in the result of which the shirt of PW1 was torn. Apart from that the said fact also even did not spoke by PW1/victim in his evidence. Therefore, the evidence of PW2 seems his anxiety in the case of PW1/victim. In view of his omission and not support with the evidence of PW1, the evidence of PW2 that the accused beat PW1 in the result of which the shirt of PW1 was torn is liable to be discarded. Apart from that according to the evidence of PW1, the accused abused PW1 as “Madiga Lanjakodaka” you can complaint to anybody if you can to said fact has not been at all deposed by PW1 in his evidence, thereby the evidence of PW2 has been contradicting with the evidence of PW1 on this aspect. Hence, the evidence of PW2 has been disbelieved. Whereas the evidence 9 Spl.SC No.25 of 2018 of PW9 as shown that the accused by caught hold of the collar of PW1 slapped twice on his cheeks by saying that “your Madiga people are like this”. But the said fact has not at all deposed by PW1 that the accused slapped twice on his cheeks in his evidence, thereby this aspect of the evidence of PW9 has been contradicting with the evidence of

PW1/victim. Therefore, in view of the said contradictions the evidence of PW3 also has been liable to be disbelieved. Apart from that even as per the admission of PW1 there is clause under Ex.D1 agreement of sale of auto that if he fails to pay the balance amount within stipulated time his advance amount of Rs.10,000/- will be forfeited. In such a case PW1 has no right to ask the accused to pay return of advance amount in view of forfeiture clause under Ex.D1, hence PW1 asked the accused to return advance amount, on that the alleged offence has been taken place is liable to be disbelieved.

20. Apart from that the prosecution also examined PW3 said to be eyewitness to the alleged offence. Accordingly while he was proceeding on bike at DLF finance office, he observed the accused beating PW1 and abused as “Madiga lanjakodaka, Pichakuntla

Lanjakodaka”. Then he stopped there and pacified the matter. While in cross examination as elicited by the learned counsel for the accused that he do not know PW1 prior to the alleged offence. Thereby it is clear that PW1 is stranger to PW3 and accused as on the date of alleged offence. Thereby it is very difficult to get him being stranger as a witness to the alleged offence after he left the place. Therefore, getting PW3 as alleged witness by the police does not arise since on the road so many by passers will move and one of by passer as eyewitness by the police is difficult. Therefore, introducing PW3 as eyewitness who is one of by passer on road and also who do not know PW1 and accused prior to the alleged offence is liable to be doubting. Apart from that as per the testimony of PW1, the alleged offence was taken place while they were stepping down from the stair case, thereby the evidence of PW3 as if the alleged offence was taken on 10 Spl.SC No.25 of 2018 the ground is contradicting. So in view of the facts and circumstances the evidence of

PW3 is liable to be discarded.

21. Whereas coming to the evidence of PW4 who runs shop for Ice Cream Distributor in the same complex of DLF finance office as deposed that while he was in his shop observed a discussion was going on in between accused and another person in front of his shop, then he advised them to leave that place. Therefore, the evidence of PW4 said to be eyewitness of the alleged offence did not reveal any incriminating evidence.

22. Apart from that as per the admission of PW1, the alleged offence was taken place on 14.08.2017 and he lodged complaint under Ex.P1 on 20.08.2017. The said fact is also registered by PW12/investigating officer. Therefore, there is a delay of (6) days in lodging complaint. Even as per the admission of PW10/investigating officer no reason is mentioned for the delay in column No.8 of FIR, thereby admitted the complaint under

Ex.P1 did not reveal any reason for lodging complaint with delay of (6) days. Apart from that the prosecution also failed to produce authentic evidence to explain the delay of (6) days in lodging complaint. Therefore, unexplained delay of (6) days in lodging complaint would cast serious doubt on the genuinity of the prosecution case, thereby on the said sole ground also the case of the prosecution is liable to be dismissed.

23. Coming to the evidence of PW8 and PW11 who are the then Tahsildars respectively, it is revealed that basing on the requisition of police, they have verified about the caste particulars of PW1 and accused and submitted their reports. Ex.P3 caste verification report issued by PW8 stating that PW1 belong to SC-Madiga caste. Ex.P5 caste verification report issued by PW11 stating that accused belong to BC-B Gandla caste. Mere proving of caste of PW1 and accused do not helpful to the prosecution case unless the alleged offence is established.

11 Spl.SC No.25 of 2018

24. The remaining witness is PW7 who is mediator for scene of offence panchanama deposed that accordingly the police conducted scene of offence in his presence on 22.08.2017 and also drawn rough sketch and after drafting the said panchanama PW7 and LW9 have signed on Ex.P2 scene of offence panchanama including rough sketch.

25. Lastly we are coming to the evidence of investigating officers who were examined as PW10, PW12 and PW13. PW10 the then S.I of police, Mancherial, according to him, he received complaint on 20.08.2017 at about 17.00 hours from PW1 and registered a case in Cr.No.431/2017 u/sec. 323, 506 IPC and Sec. 3 (1) (s) of SCs/STs (POA) Act, 1989 and issued FIR/Ex.P4. Then after PW12 the then Assistant

Commissioner of Police, Mancherial has taken up investigation of this case as per the orders of Commissioner of Police, Ramagundam under Ex.P6. Later he visited scene of offence, recorded the statements of PW1 to PW5 and LW9, conducted scene of offence panchanama under Ex.P2 and also obtained caste particulars of PW1 and accused respectively from PW8 and PW11. Then after he issued notice under 41-A Cr.PC to accused and on his transfer he handed over the CD file to PW13/Assistant

Commissioner of Police, Mancherial. As per the orders of Commissioner of police,

Ramagundam under Ex.P7, PW13 was reappointed as investigating officer and took up investigation of this case from PW12/investigating officer and re-examined PW1 and recorded his statement and also recorded the statement of PW6. After completion of investigation he filed charge sheet against the accused for the offence punishable u/sec.

290, 323 IPC and Sec. 3 (1) (s) of SCs/STs (POA) Act, 1989. Except that, no material irregularity in the investigation of PW10, PW12 and PW13 during cross examination was elicited thereby their evidence has been found unchallenged in respect of the procedure adopted by them.

12 Spl.SC No.25 of 2018

26. Therefore in the light of the above discussion as well as in view of the facts and circumstances as discussed above, the evidence of PW1 has been suffered with material contradictions and omissions and also contradicting with the evidence of alleged eyewitnesses PW2 and PW9 on material aspects, thereby the evidence of PW1 has been found untrustworthy. Further unexplained the delay of (6) days in lodging complaint under Ex.P1 is also fatal to the case of prosecution, thereby the evidence adduced by the prosecution did not inspire confidence of this court beyond reasonable doubt to come to a conclusion regarding the guilt of the accused. Hence the accused is entitled for acquittal. The point is answered accordingly.

27. In the result, the accused is found not guilty for the offence punishable under

Sections 290, 323 IPC and Sec. 3 (1) (s) of SCs/STs (POA) Act, 1989 and he is acquitted of the said offences under Section 235 (1) Cr.PC. The bail bonds of accused shall stand cancelled.

Dictated to Stenographer, transcribed by him and after correction pronounced by me in

open court this the 15th day of October, 2019.

Spl.Judge for Trial of Cases Under SCs/STs (POA) Act, Cum-V Addl. District and Sessions Judge, Adilabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1: Racharla Venkatesh -None- PW2: Ellasani Vijay PW3: Thota Kumar PW4: Polampalli Mahesh PW5: Urugonda Krishna PW6: Ellasani Srinivas PW7: Rasamatla Sagar PW8: Md. Imthiyaz, Tahsildar PW9: Boya Vijay Kumar PW10: G. Srinivas, SI/IO 13 Spl.SC No.25 of 2018

PW11: G. Kumara Swamy, Tahsildar PW12: Ch. Chennaiah, ACP/IO PW13: Mohd. Gouse Baba, ACP/IO

EXHIBITS MARKED

For prosecution:

Ex.P1: Complaint of PW1 Ex.P2: Scene of offence panchanama including rough sketch by PW7 Ex.P3: Caste verification report by PW8 Ex.P4: First Information Report by PW10 Ex.P5: Caste verification report by PW11 Ex.P6: Orders of Commissioner of police, Ramagundam dt:21.08.2017 Ex.P7: Orders of Commissioner of police, Ramagundam dt:06.11.2017

For Defence:

Ex.D1 Agreement of sale of auto

Spl.Judge for Trial of Cases Under SCs/STs (POA) Act, Cum-V Addl. District and Sessions Judge, Adilabad

MVOP No 570 of 2010 1

IN THE COURT OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS

TRIBUNAL-CUM– JUDGE, FAMILY COURT- CUM–IV ADDITIONAL

DISTRICT AND SESSIONS JUDGE, AT ADILABAD

Present: Smt. G.V.N. Bharatha Laxmi, Addl. M.A.C.T.-Cum- Spl.Judge for trial of cases under SCs/STs (POA) Act cum-V Addl. District & Sessions Judge, Adilabad FAC:Judge, Family Court-Cum-IV Addl. District and Sessions Judge, Adilabad.

Friday, the 11th day of October, 2019

MVOP.NO.570/2010

Between: Tatewad Linganna, S/o. Tatewad Moglaji, Age: 55 years, Occ: Health Supervisor (Retd) in District Malaria Office, Yavatmal, R/o. Divisi village, Tq. Bhokar, District Nanded

.. Petitioner

//And//

1.Andhra Pradesh State Road Transport Corporation, represented by its Managing Director, Musheerabad, Hyderabad

2.Mr. Shoyab Ahmed, S/io. Shaik Ahmed, Age: Major, Occ: Owner of Lorry bearing No.AP36W-0953, R/o. H.No.1- 15/A, Echoda, R/M. Echoda, District Adilabad

3.Reliance General Insurance Company Limited, 2nd floor, D.No.19-6-27, Dr. Mahal road, Tirupathi, A.P represented by its Branch Manager (Policy cover note No.109001237668 valid from 26.09.2009 to 25.09.2010)

.. Respondents

This case is coming on 04.10.2019 before me for final hearing in the presence of Sri. G.Chandra Mohan, Advocate for petitioner and of Sri. P.Mohan Singh, Advocate for respondent No.1; Sri. K. Ajay Kumar, Advocate for respondent No.3 and the respondent No.2 remained exparte and having been stood over for consideration, till this day, this court delivered the following:

O R D E R

1. The petitioner filed the present petition U/s. 166 [1] [a] of the Motor

Vehicles Act 1988 r/w Rule 455 of APMV Rules, 1989 against the respondents 1 to 3 claiming compensation of Rs.10,00,000/- (Rupees Ten Lakhs only) for the injuries received in a motor vehicle accident.

MVOP No 570 of 2010 2

2. The brief facts of the petition are that on 18.12.2009 at about 19.00 hours the petitioner was proceeding in a RTC Bus bearing No.AP28Z-524 of

Nizamabad-2 Depot as a passenger in order to go to Echoda from Neradigonda, when the RTC Bus reached near Kupti bridge, the driver of the RTC Bus drove his vehicle in a rash and negligent manner with high speed and dashed a lorry bearing No.AP36W-0953 coming from opposite direction due to which the petitioner sustained multiple grievous injuries and some persons died, later immediately he was shifted to RIMS Hospital, Adilabad, after first aid and on condition of gravity of injuries, the petitioner was shifted to Yashoda Super

Specialty Hospital, Hyderabad on 20.12.2009 where he was treated as inpatient for a period of 5 days and during that period he had undergone surgery and discharged on 24.12.2009 with an advice to take follow up treatment. Thereafter he took treatment at Prachet Orthopedic Hospital, Nanded, later he had treatment by various private doctors of Nanded and incurred an expenditure of

Rs.2,50,000/- towards medical expenses and the petitioner still undergoing treatment and incurring medical expenses. On complaint, police, Neradigonda registered a case in Cr.No.159/2009 under Sections 304-A, 338 and 337 IPC and later filed charge sheet against the driver of RTC Bus bearing No.AP28Z-524.

The petitioner was hale and healthy at the time of accident and was aged about 55 years and used to earn Rs.28,253/- per month as Health Supervisor in

District Malaria Office, Nanded. Due to above accident the petitioner is unable to attend duties and doctors advised him not to attend any hard work as he has sustained injuries to vital parts i.e., Lumbar, spine and Pelvis. The accident occurred due to rash and negligent driving of the drivers of the respondents

No.1 and 2. As such, the respondent No.1 being the owner of the said RTC Bus, the respondent No.2 being the owner of said Lorry and respondent No.3 being the insurer of Lorry are jointly and severally liable for compensation claimed by

MVOP No 570 of 2010 3 the petitioner. Therefore, the petitioner claimed for compensation of

Rs.10,00,000/-.

3. This MVOP was dismissed on 08.06.2015 by this Tribunal. Later the order of Hon’ble High Court of Telangana, Hyderabad vide M.A.C.M.A.No.2066 of 2015 dated 16.08.2019 was received by this Tribunal for remand back the said

MVOP for disposal afresh, taking into consideration the final report in

Cr.No.159/2009 of Neradigonda Police Station.

4. The respondent No.1 filed counter, denying most of the material averments in the petition and sought the petitioner to prove his age, avocation and income and also the manner of the accident. It is further contended that the driver of lorry bearing No.AP36-W-0953 is only responsible for the accident who drove it in a rash and negligent manner and gave dashed the RTC Bus, hence the respondent No.1 is not liable to pay any compensation to the petitioner. The compensation claimed is highly excessive, exorbitant, as such, the petition is liable to be dismissed.

5. The respondent No 2 was remained exparte.

6. The respondent No.3-insurance company filed counter, denying most of the material averments in the petition and sought the petitioner to prove his age, avocation and income and also the manner of the accident. It is further contended that the petitioner himself admitted in the claim petition that the accident has occurred due to the rash and negligent driving of RTC Bus bearing

No.AP28Z-524 by its driver and police, Neradigonda also registered a case against the driver of RTC Bus bearing No.AP28Z-524, hence there was no negligence on the part of the driver of respondent No.2, as such, the respondent

MVOP No 570 of 2010 4

No.3 company is not liable to pay any compensation. The compensation claimed is highly excessive, exorbitant, as such, the petition is liable to be dismissed.

7. On the basis of the above pleadings, the following issues were framed for trial:

1.Whether the pleaded accident occurred resulting in injuries to the claimant?

2.Whether the accident occurred due to the rash or negligent act on the part of the driver of R1 vehicle?

3.Whether the vehicle of R2 stood insured with R3 insurance company on the date of accident and if so, whether that policy covers the risk of the petitioner?

4.Whether the claimant is entitled to compensation and if so, to what amount and what is the liability of R1 to R3?

5.To what relief?

8. After examination of PW1 on behalf of petitioner, the petitioner filed a memo before Hon’ble Prl. District and Sessions Judge, Adilabad to transfer the case and in turn the case was transferred to IV Addl. District and Sessions court,

Adilabad on 14.10.2014.

9. The petitioner has examined himself as PW1 and got marked Exs.A1 to

A18 documents and also examined PWs 2 and 3 on commission. The respondent

Nos. 1 and 3 reported no evidence and did not adduce any evidence. The respondent No.2 remained exparte.

ISSUES NO.1 TO 5:

10. PW1/petitioner has reiterated the averments of the petition as follows that on 18.12.2009 at about 19.00 hours the petitioner was proceeding in a RTC Bus bearing No.AP28Z-524 of Nizamabad-2 Depot as a passenger in order to go to

Echoda from Neradigonda, when the RTC Bus reached near Kupti bridge, the driver of the RTC Bus drove his vehicle in a rash and negligent manner with high speed and dashed a lorry bearing No.AP36W-0953 coming from opposite

MVOP No 570 of 2010 5 direction due to which the petitioner sustained multiple grievous injuries and some persons died, later immediately he was shifted to RIMS Hospital,

Adilabad, after first aid and on condition of gravity of injuries, the petitioner was shifted to Yashoda Super Specialty Hospital, Hyderabad on 20.12.2009 where he was treated as inpatient for a period of 5 days and during that period he had undergone surgery and discharged on 24.12.2009 with an advice to take follow up treatment. Thereafter he took treatment at Prachet Orthopedic Hospital,

Nanded, later he had treatment by various private doctors of Nanded and incurred an expenditure of Rs.2,50,000/- towards medical expenses and the petitioner still undergoing treatment and incurring medical expenses. On complaint, police, Neradigonda registered a case in Cr.No.159/2009 under

Sections 304-A, 338 and 337 IPC and later filed charge sheet against the driver of

RTC Bus bearing No.AP28Z-524. He further deposed that the petitioner was hale and healthy at the time of accident and was aged about 55 years and used to earn

Rs.28,253/- per month as Health Supervisor in District Malaria Office, Nanded.

Due to above accident the petitioner is unable to attend duties and doctors advised him not to attend any hard work as he has sustained injuries to vital parts i.e., Lumbar, spine and Pelvis. He further deposed that the accident occurred due to rash and negligent driving of the drivers of the respondents

No.1 and 2. As such, the respondent No.1 being the owner of the said RTC Bus, the respondent No.2 being the owner of said Lorry and respondent No.3 being the insurer of Lorry are jointly and severally liable for compensation claimed by the petitioner. Therefore, the petitioner is claiming compensation an amount of

Rs.10,00,000/- against all the respondents along with interest and costs.

11. In proof of the claim, the petitioner has got marked Exs.A1 to A18.

MVOP No 570 of 2010 6

12. On the other side, the respondent No.2 was set exparte. The respondent

No. 1 and 3 have not adduced any evidence.

13. Whereas coming to the contents of Ex.A1, the attested copy of FIR which has revealed the following facts that the Police Station Neradigonda has registered the accident in Crime No.159/2009 dated 18.12.2009 under Sections 304-A. 338, 337 IPC basing on the complaint of Ramavath Ranjeeth Naik against the driver of RTC Bus bearing No.AP28Z-524. Then after the police has made investigation into the case and found the driver of RTC Bus bearing No.AP28Z- 524 as accused and rendered him to be liable having driven the said vehicle in rash and negligent manner with high speed and caused the accident, accordingly the police filed Ex.A18 –Attested copy of charge sheet under Sections 304-A, 338, 337 IPC against the driver of RTC Bus bearing No.AP28Z-524. Therefore through the oral testimony of PW1 coupled with documentary evidence of Ex.A1 –

Attested copy of FIR and Ex.A18 –Attested copy of charge sheet, the fact is categorically established by the petitioner that the accident was occurred due to rash and negligent driving of driver of RTC Bus bearing No.AP28Z-524, in the result of which the petitioner has sustained injuries.

14. In respect of the injuries sustained by the petitioner, he has got marked

Ex.A2 – Attested Xerox copy of injury certificate issued by RIMS Hospital,

Adilabad. Accordingly the petitioner approached the said hospital on 18.12.2009 and he was discharged from the hospital on 19.12.2009. Further it is diagnosed that the petitioner has sustained blunt chest injuries and blunt injuries on

Lumbar, spine and pelvis which is grievous in nature.

15. Further, in respect of treatment as well as expenses incurred by him towards treatment, he has got examined PWs 2 and 3 and also got marked

MVOP No 570 of 2010 7

Exs.A3 to A16. As per the testimony of PW2/Dr. Manoj Chakravarthi,

Orthopedic surgeon at Yashoda Hospital, Hyderabad that on 20.12.2009 the petitioner came to their hospital with history of injuries of 1) fracture of 5th, 6th, 7th, 8th ribs, 2) fracture lower end of Ulnor right, 3) fracture neck of scapula right,

4) fracture bilaterial superior and interior pubic rami. The nature of injuries is grievous in nature and possible in road traffic accident. Further the petitioner was operated on 21.12.2009 with manipulation + POP cast application right wrist and he was discharged on 24.12.2009 with an advise to take bed rest for a period of seven months. Ex.A3-discharge summary issued by Yashoda Hospital,

Hyderabad, Ex.A4-Hosital bill for Rs.42,177/- issued by Yashoda Hospital,

Hyderabad, Ex.A5 and Ex.A6-radiology reports taken on the advise of PW2,

Ex.A7-medical certificate issued by Yashoda Hospital, Hyderabad bears the signature of PW2, Ex.A8-bunch of medical bills (8) purchased by petitioner on the prescription of PW2, Ex.A16-X-ray films taken by the petitioner on the advise of PW2. Further it is opined that due to the injuries the petitioner was unable to sit and stand and unable to move without help of stick. Though PW2 was cross examined, no fact in contra to his chief examination was elicited. Thereby the evidence of PW2 has been remained unchallenged.

16. Ex.A3-attested Xerox copy of discharge summary issued by Yashoda

Hospital, Hyderabad accordingly the petitioner got admitted in the said hospital on 20.12.2009 and was discharged from the said hospital on 24.12.2009. Further it has revealed the treatment procedure had been given to the petitioner and the medication prescribed to the petitioner. Ex.A4-hospital bill issued by Yashoda

Hospital, Hyderabad in total Rs.42,177/- which is paid by the petitioner towards hospital charges. Ex.A5 and Ex.A6-reports of radiologist department issued by

Yashoda Hospital, Hyderabad clearly shows the medical tests undergone by the

MVOP No 570 of 2010 8 petitioner. Ex.A7-medical certificate issued by Yashoda Hospital, Hyderabad regarding his admission of petitioner for the purpose of treatment in the said hospital. Ex.A8-bunch of medical bills including transport bills, under which the petitioner has paid including advance receipts. The amounts under advance receipts have already covered under final bill, hence those amounts shall not be considered. Apart from that advance receipts the petitioner also got marked number of medical bills issued by Yashoda Hospital as well as other pharmacies in proof of purchasing of medicines for amount of Rs.36,540/-. Ex.A16-X-ray films and CT Scan reports corroborating the nature of injuries sustained to the petitioner.

17. In addition to the above medical record, the petitioner also got marked

Ex.A9-hospital final bill issued by Ashwini Critical and Heart Care Center

Private Limited, Nanded for an amount of Rs.2,450/- towards the treatment of petitioner and in the said hospital the petitioner admitted as inpatient from 27.11.2010 to 30.11.2010 with registered No.2239. Ex.A10-receipt issued by

Suvidha Pathology Laboratory, Nanded in proof of medical tests undergone by the petitioner for an amount of Rs.1,230/-. Ex.A11-buch of (5) medical bills issued by M/s. Ashwini Medicals, Nanded in proof of purchasing medicines by the petitioner for an amount of Rs.3,586/-. Ex.A12-bill issued by Ashwini Critical and Heart Care Center Private Limited, Nanded for an amount of Rs.7,611/- including final bill for Rs.4,950/- towards the treatment of petitioner and in the said hospital the petitioner admitted as inpatient from 31.08.2012 to 02.09.2012 with registered No.1623. Ex.A13-bunch of (2) receipts issued by Suvidha

Pathology Laboratory, Nanded, in proof of medical tests undergone by the petitioner for an amount of Rs.2,520/-. Ex.A14-discharge card issued by Ashwini

Hospital and Ramakant Heard Care Center, Nanded, accordingly the petitioner

MVOP No 570 of 2010 9 as inpatient on 31.08.2012 and was discharged on 04.09.2012. Further it has revealed the medication prescribed to the petitioner in detail. Ex.A15-file contains the prescription of pathological reports issued by Ashwini Hospital and

Ramakant Heard Care Center, Nanded. Therefore, this has been the fact categorically established by the petitioner that in the result of accident he sustained four grievous injuries and immediately after the accident he approached RIMS Hospital, Adilabad and from there he was admitted in

Yashoda Hospital, Hyderabad as well as other private hospitals and was treated as inpatient and spent amounts towards medical expenses.

18. Further the contention of the petitioner is that at the time of accident he was earning Rs.28,253/- salary per month as Health Supervisor in District

Malyaria Office, Yavathmal. Due to the accident he sustained permanent disability thereby he lost his earnings. In proof of the contention, he got examined PW3 and also got marked Ex.A17. The evidence of PW3/Dr. Suresh

Tarodekar working as District Malaria Officer of Yavatmalm District (MS) has revealed the following facts that as per the records and as per the service book records of the employee by name Tatewad Linganna/petitioner, date of appointment is 13.04.1973 and he was retired from service as Health Supervisor of District Malaria Office, Yavatmal. As per their records the pay particulars are basic pay of Rrs.15,390/- grade pay of Rsr.4,200/- and gross pay is Rs.29,016/-, due to the accident he was absent from 18.12.2009 to 29.05.2010 and total days is 163 days. The employee was having 163 days earned leaves, due to the accident he was absent due to which he encashed the earned leaves as a result he was lost income of Rs.1,43,692.- as he availed earned leaves if the petitioner did not encahsed earned leaves till his retirement he will get an amount of Rs.1,43,695/- surrendering to Government. Ex.A17 pay and deduction certificate belongs to

MVOP No 570 of 2010 10 the petitioner. The employee/petitioner as not received any medical reimbursement. Though PW3 was cross examined, no fact in contra to his chief examination was elicited. Thereby the evidence of PW3 has been remained unchallenged. Whereas Ex.A17 pay and deduction certificate also reveals the same fact that the petitioner as on the date of accident, he was working as Health

Supervisor with monthly gross salary of Rs.28,253/- and after deductions the net amount salary of Rs.19,293/-. Therefore, the evidence of PW3 coupled with

Ex.A17 this is the fact categorically established that as on the date of accident, the petitioner was working as Health Supervisor in District Malaria Office, Yavatmal and was drawing gross salary of Rs.28,253/- per month and net salary of

Rs.19,293/- per month. Further due to the result of accident, the petitioner availed 163 days earned leaves which cause the loss of income of Rs.143,695/-.

Since the petitioner has availed 163 days earned leaves only due to the result of accident the petitioner is entitled for an amount of Rs.1,43,695/- which is encash amount of earned leaves if the petitioner surrendered to Government.

19. Further, the contention of the petitioner is that at the time of accident sustained permanent functional disability thereby he was unable to attend his avocation but in proof of his sustaining disability, he has not adduced any cogent evidence. Therefore, in the absence of any evidence, the contention of petitioner regarding any of the above shall not be considered. However, as he sustained grievous injuries, he might have been kept away from all kinds of works towards bed rest for one year.

AWARD OF COMPENSATION:

20. Therefore taking into consideration of the above facts the petitioner is awarded compensation an amount of Rs.40,000/- for fracture of 5th, 6th, 7th, 8th ribs, Rs.25,000/- for fracture lower end of Ulnor right, Rs.30,000/- for fracture

MVOP No 570 of 2010 11 neck of scapula right and Rs.35,000/- for fracture bilateral superior and interior pubic rami, a sum of Rs.96,114/- towards medical expenses, a sum of Rs.5,000/- for attendant, transportation and extra nourishment, a sum of Rs.1,43,695/- for loss of expectations of life and amenities, loss of pleasure, loss of earnings if any.

In total the petitioner is awarded compensation an amount of Rs.3,74,809/- (Rupees three lakhs seventy four thousand eight hundred and nine only).

21. Further, as discussed above, the petitioner categorically established that the accident occurred due to the rash and negligent driving of RTC Bus bearing

No.AP28Z-524 by its driver. On the other side, though the respondent No.1 who is the owner of RTC Bus bearing No.AP28Z-524 has contested case but he did not adduce any evidence to disprove his liability. Therefore, being the employer of accused/driver of RTC Bus bearing No.AP28Z-524 who is admittedly employee of respondent No.1 at the material time of accident, hence being employer as well as owner of RTC Bus bearing No.AP28Z-524, the respondent No.1 is liable to pay compensation to the petitioner. As there is no evidence to fix the liability against the respondents No.2 and 3, hence the claim against the respondents

No.2 and 3 is liable to be dismissed.

22. IN THE RESULT, the petition is allowed in part awarding the compensation of Rs.3,74,809/- (Rupees three lakhs seventy four thousand eight hundred and nine only) with simple interest @ 7.5% per annum from the date of filing of the original petition till the date of deposit or realization and proportionate costs thereon, directing the respondent No.1 to deposit the compensation amount with accrued interest and proportionate costs within (30) days from the date of this order and after depositing the same, the petitioner is permitted to withdraw the entire amount of compensation along with costs and

MVOP No 570 of 2010 12 accrued interest. The petition against respondents No.2 and 3 is dismissed.

Advocate fee is fixed at Rs.1,500/- (Rupees One Thousand Five Hundred only).

Dictated to stenographer and transcribed and typed by him and after correction

pronounced by me in open court on this the 11th day of October, 2019.

FAC: Additional MACT-cum-Judge, Family Court-Cum-IV Addl. District and Sessions

Judge, Adilabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner: For Respondents:

PW1: Tatewad Linganna -None - PW2: Dr.Manoj Chakravarthi (on commission) PW3: Dr. Suresh Tarodekar (on commission)

EXHIBITS MARKED

For Petitioner:

Ex.A1: Attested Xerox copy of FIR in Cr.No.159/2009 of Neradigonda PS Ex.A2: Attested Xerox copy of injury certificate Ex.A3: Attested Xerox copy of discharge summary of Yashoda Hospital Ex.A4: Details of the building of Yashoda Hospital Ex.A5: Report of radiologist of Yashoda Hospital Ex.A6: Report of radiologist Department of Yashoda Hospital Ex.A7: Medical certificate of Yashoda Hospital Ex.A8: Bunch of medical bills Ex.A9: Bill of Ashwini Critical Heart Care Hospital Ex.A10: Receipt of Suvidha Pathological Report Ex.A11: Bunch of (5) medical bills Ex.A12: Bill of Ashwini Critical Heart Care Hospital Ex.A13: Bunch of (2) receipts of Suvidha Pathological Hospital Ex.A14: Discharge card of Ashwini Hospital Ex.A15: File contains the prescription of Pathological Reports of Ashwini Hospital Ex.A16: Bunch of X-ray films and CT Scan reports Ex.A17: Pay and deduction certificate of T. Linganna Ex.A18: Attested copy of charge sheet

For Respondents:

- Nil - FAC: Additional MACT-cum-Judge, Family Court-Cum-IV Addl. District and Sessions

Judge, Adilabad