Sri H Chandra Sekhar

IN THE COURT OF THE II ADDITIONAL SESSIONS JUDGE :: PARVATIPURAM

Present:- Sri H.Chandrasekhar, II Addl. Sessions Judge Parvatipuram.

Tuesday , this the 3rd day of April, 2018

CRIMINAL APPEAL NO. 102/2017

From what court the appeal Court of the Assistant Sessions Judge, is preferred Bobbili.

No.of the case in that court S.C.NO.47/2014

Name and description of the1.Godla Gangaraju S/o Simhachalam, aged Appellantsabout 25 years, SC mala, resident of Gollapeta village, Ramabhadrapuram mandal,Vizianagaram District.

2.Godla Simhachalam, S/o late Gavarayya, aged about 50 years, resident of Gollapeta village, Ramabhadrapuram mandal, Vizianagaram District.

3.Godla Gouri S/o Simhachalam, aged about 21 years, resident of Gollapeta village, Ramabhadrapuram mandal, Vizianagaram District.

Name and description of the State represented by the Public respondentsProsecutor, Parvatipuram.

Sentence and Law under which A1 to A3 are found guilty of the charge the Appellant is convicted. u/sec.324 IPC and convicted u/sec. 235(2) Cr.P.C of the said charge and sentenced to under go Rigorous imprisonment for two years each and to pay fine of Rs.5,000/- each, in default of payment of fine to undergo simple imprisonment for one month each. Their remand period shall be set off. Out of the fine amount half of the amount shall be paid to the parents of the deceased towards compensation..

Whether confirmed, modified or REVERSED reversed and if modified, the IN THE RESULT, the appeal is ALLOWED, modification. by setting aside the Judgment of conviction and sentence recorded by the lower court. The fine amount if any paid by the appellants shall be refunded to them. Date of: Presentation15.11.2017 Filing15.11.2017

Notice issued by court to appear19.12.2017

Bail bond if respondents have On bail been Let out on bail.

2 Crl.Appeal No.102/2017

Appellant ordered to appear 20.11.2017 Hearing 21.03.2018 Judgment03.04.2018

This appeal coming on 21.03.2018 for final hearing before me, upon perusing the petition of appeal and the record of the evidence and proceedings and upon duly considering the same and after hearing Sri Ch.Rambabu and Sri G.G.K.Sharma, Advocates for the appellants and the Addl. Public Prosecutor for the respondent-State, I do adjudge and pass the following: -

J U D G M E N T

This Appeal is directed challenging the Judgment of conviction and sentence passed by the learned Assistant Sessions Judge, Bobbili in

SC.47/2014 dated 09.11.2017.

2. The appellants herein stood charged before the lower court for the charges u/sec 306, 324 IPC.

The Sub Inspector of Police Ramabhadrapuram Police Station, filed charge sheet against the appellants in Cr.No. 66/2011 u/sec. 306, 324 r/w 34

IPC of Ramabhadrapuram Police Station, alleging that the deceased viz., Godla

Ashok is the second son of PWs.1 and 2, that the appellants herein and

Godla siva were suspecting that the deceased got illegal intimacy (as mentioned in the charge sheet) with the wife of 1st appellant viz., Gudla Mallika , that on 18.06.2011 at about 8.00 p.m. when the deceased went in the street, the appellants herein and one Godla Siva beat him and attacked the house of

PWs.1 and 2, that they threatened the deceased to kill him, that the deceased felt humiliation and consumed pesticide poison which was available in their house, that immediately he was shifted to Community Health Center, Bobbili by 108 ambulance where he died on the same day at about 11.00 p.m. that basing on the report given by PW1 i.e. Ex.P1, PW11 registered FIR in Cr.No.66/2011 under Ex.P8 u/sec. 306, 324 r/w 34 IPC, that immediately he visited the scene of offence, examined the witnesses, observed the scene of offence in the presence of mediators, that he got the deadbody photographed ( where and when not stated), that he had arrested the accused on 22.06.2011 ( time and 3 Crl.Appeal No.102/2017 place not mentioned) in the presence of PW8 and another and seized crime weapon ( as stated in the charge sheet), that he obtained orders from the

SDPO, Parvatipuram to delete the name of A4, that after obtaining post mortem certificate and RFSL report , he filed Charge sheet against the appellants for the offence as stated above.

3.The cognizance of the offences u/sec.306, 324 r/w 34 IPC was taken by the learned AJFCM, Bobbili vide PRC.No.46/2011. On appearance of the appellants before the lower court, the learned AJFCM, Bobbili served copies of case document as require required u/sec. 207 Cr.P.C, and had committed the case to the court of sessions by observing all the formalities as laid down u/sec. 209 Cr.P.C, where the case is numbered as SC 47/2014 and it is made over to the Asst.Sessions Judge, Bobbili for disposal according to law.

4.After securing the presence of the appellants, after hearing both sides, the lower court framed the charges against the appellants u/sec.

306,324 IPC, the appellants pleaded not guilty and claimed to be tried. To prove the charges, the prosecution examined PWs.1 to 11 got marked Exs.P1 to P.9 and

MOs1 to 9. After hearing the arguments of both sides and considering the record available, the lower court found the appellants not guilty of the charge u/sec. 306 IPC and acquitted them u/sec. 235(1) Cr.P.C. of the said charge. But the lower court found the appellants guilty of the charge u/sec. 324 IPC and convicted them u/sec. 235(2) Cr.P.C. of the said charge. On hearing the appellants with regard to sentence, the lower court sentenced the appellants to under go rigorous imprisonment for two years each and to pay fine of Rs.5,000/- each in default to undergo simple imprisonment for one month each, that out of compensation amount half of it was ordered to be given to PWs.1 and 2 towards compensation. This Judgment of conviction and sentence passed by the lower court is challenged in appeal before this court on the following grounds:

(i)The judgment of conviction and sentence passed by the lower court is contrary to law, weight of evidence and probabilities of the case.

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(ii)The lower court ought to have seen that PWs.3 to 6 are the close relatives of PWs.1 and 2 and the lower court ought to have disbelieved their evidence for want of independent evidence.

(iii)The lower court ought to have seen that there are only abrasions and contusions on the deadbody as mentioned in Ex.P5, which is post mortem certificate, that if really the appellants beat the deceased with MOs7 to 9, he would not have sustained such simple injuries.

(iv)The lower court ought to have seen that the prosecution did not elicit the weapon which could have caused such injuries, that in the absence of such evidence, the lower court ought to have disbelieved the evidence of prosecution witnesses.

(v)The lower court ought to have seen that the prosecution failed to prove the recovery of MOs1 to 9 as required under law.

Hence, the appellants prayed this court to allow the appeal by setting aside the

Judgment of conviction and sentence recorded by the lower court and acquit them of the charge u/sec. 324 IPC.

5.The learned counsel for the appellants submitted that as per the evidence of prosecution witnesses, PWs.1 and 2 are the parents of the deceased, who had not witnessed the accused beating the accused whereas, the evidence of PWs.3 to 6 does not exactly show where and how the deceased was beaten by the appellants, that the evidence of PW8 with regard to alleged arrest of the appellants and recovery of MOs 7 to 9 from the possession of 1st appellant is not sufficient and it is not properly corroborated with the evidence of

Investigating Officer, that PW10 who is the doctor who conducted post mortem examination did not depose anything with regard to the cause of death basing on the final report which is not marked through him, that the alleged seizure report under Ex.P4, signatures of the appellants are not found, that if really the

Investigating Officer had seized MOs7 to 9 under Ex.P4 in the presence of 5 Crl.Appeal No.102/2017 alleged mediators, signatures or thumb impression of the appellants ought to have been taken, that the absence of such signatures or thumb impression of accused renders the seizure not reliable. In this aspect he relied on Judgment of

Hon'ble Supreme Court in the case of JACKARAN SINGH V. STATE OF PUNJAB 1 .

He further submitted that the lower court disbelieved the evidence of witnesses with regard to the charge u/sec 306 IPC , but without any evidence on record, the lower court convicted them of the chare u/sec324 iPC and in the absence of proper medical evidence and thus, the prosecution failed to prove the charges against the appellants beyond all reasonable doubt. But however, the lower court had erred in convicting the appellants of the charge u/sec. 324 IPC.

Hence, he prayed to allow the appeal as stated above.

6.The learned Addl. P.P had submitted that the evidence of

Pws. 3 to 6 who are the eye witnesses to the incident clearly shows that the appellants had beaten the deceased, that since the deceased felt humiliation and in fear that the appellants would file a report in the police station or raise the mater before the village elders, he committed suicide by consuming pesticide and thus the appellants had abetted to commit suicide, but however, the lower court disbelieved the evidence to prove the charge u/sec. 306 IPC, but the lower court had rightly convicted the appellants of the charge u/sec.

324 iPC. Hence, he prayed to dismiss the appeal and to confirm the Judgment of conviction and sentence passed by the lower court.

7.In view of the submissions made on both sides, the point that falls for consideration in this appeal are:-

Whether the prosecution proved the charge u/sec. 324 IPC against the appellants beyond all reasonable doubt?

8.POINT :- As per the averments seen in Ex.P1 report,

Pws.1 and 2 who are the wife and husband got two sons , that the deceased is their second son, that on 18.06.2011 at 8.00 p.m. when the deceased went in 1 AIR 1995 SUPREME COURT 2345 6 Crl.Appeal No.102/2017 the street, all the appellants herein and one Godla Siva beat the deceased and threatened him to kill suspecting that the deceased was harassing the wife of 1st appellant, that apprehending that he would be killed by the appellants and as he felt humiliation and insulting he consumed pesticide, which was available in their house, that when he was shifted to CHC, Bobbili by 108 ambulance, he died at 11 p.m. on the same day. The evidence of PW1 who is the father of the deceased and defacto complainant shows that on 18.06.2011 at about 8.00 p.m.

when the deceased went out in the village, all the appellants and one Siva quarreled with him alleging that he got illegal contacts with the wife of the 1st appellant and beat him with sticks handle of sword and bricks ( as recorded by the lower court), that the deceased escaped from the appellants and Siva, came to his house, but he was chased by all of them, that he closed the house door by keeping the deceased in the house, that on questioning by him the deceased informed him that he was attacked by them alleging that he got illegal contacts with the wife of 1st appellant, that he gave water to him, that all the appellants entered in their house from the backside, that the appellants threatened the deceased to kill him at any cost, that due to fear and insult the deceased consumed pesticide, that in the meanwhile one Thavitayya( who is cited as LW9 in the charge sheet, but not examined) took away the appellants from his house, that immediately he called his neighbours, that somebody had called 108 ambulance and they shifted him to CHC, Bobbili where he died at 11 p.m., that on the next day he lodged report in Ramabhadrapuram P.S under

Ex.P1. It is the defence of the appellants that all the appellants were constructing their house at the time of the incident and it was at the stage of laying slab, that they erected wooden poles that there was a toilet on the backside of the house of the appellants, that when the deceased tried to outrage the modesty of the wife of 1st appellant while she was taking bath in the toilet and on hearing the cries, the deceased became afraid and to escape from them he ran away and while running away he had hit against the wooden poles, 7 Crl.Appeal No.102/2017 sunshades and sustained injuries, that due to fear the appellants may lodge report with the police he consumed pesticide and the appellants never attacked the deceased, but PW1 admitted that by the date of the incident, the appellants were constructing their house which was at the stage of laying slab and they had placed wooden poles, but he denied that the suggestion there was a toilet on the backside of the house of the appellants. When it was suggested that when the deceased tried to outrage the modesty of the wife of the 1st appellant, while she was taking bath, on hearing her cries the deceased ran away to escape and he had hit against the wooden poles and sunshades and sustained injuries, that he consumed pesticide due to fear of lodging report with the police by the appellants, he denied the same. The evidence of PW2 who is the mother of the deceased shows that she corroborated the evidence of PW1 in all aspects, but she admitted that there is toilet on the backside of the house of the appellants. In her cross-examination also the above suggestion which was given to PW1 was also put to this witness and she also denied the same. The evidence of Pws.1 and 2 is not clear to stay where exactly the deceased was beaten by the appellants, but they simply deposed that all the appellants and one Siva beat the deceased with sticks, handle of knife and bricks.

9.The evidence of PW3 shows that about six years back at 8.00 p.m. when he was present in her house after hearing the incident she came out of her house she saw the appellants beating the deceased, that when the deceased escaped and went towards his house, he was chased by the appellants with sticks, sword and brick. In the cross-examination she admitted that at the time of the incident, 1st appellant questioned the deceased that why he entered in his house, it shows that the deceased had gone in the house of the appellants.

The evidence of PW4 simply shows that on 18.06.2011 at about 8.00 p.m when the deceased came in the street, all the appellants and one Siva attacked him and beat him and chased him upto the house of the deceased, but she did not depose anything with regard to weapon used by the appellants to beat the deceased.

8 Crl.Appeal No.102/2017

The evidence of PW5 shows that about six years back at about 8.00 p.m. all the appellants attacked the deceased suspecting that latter got illicit intimacy with the wife of A1, but she did not depose anything with regard to beating the deceased by the appellants as contended by the prosecution. The evidence of

PW6 shows that about six years back when the deceased was on the road, all the appellants beat him alleging that he got illicit intimacy with the wife of 1st appellant. She also did not depose the weapons used by the appellants to beat the deceased. Thus, the evidence of PWs.3 to 6 does not properly show how the deceased was beaten by the appellants as contended by the prosecution.

10.The evidence of PW7 shows that he is one of the mediators when the Investigating Officer had observed the scene of offence and seized

MOs1 to 6. His evidence in the chief-examination shows that about six years back at about 10.00 a.m. he along with one Venkatappadu were taken to the house of PW1 by the police, that the police seized a pesticide tin, clothes of the deceased, that the Sub Inspector of Police prepared scene observation report under Ex.P2 and he was also present at the time of conducting inquest over the deadbody. He identified the material objects which were allegedly seized at the scene of offence as Mos1 to 6, but he did not exactly say where MOS2 to 6 were seized by the Investigating Officer. In the cross-examination he admitted that they found one injury on the head, backside of ear ( left or right not stated), in the middle of the head. The evidence of PW8 shows that on 22.06.2011 at about 4.00 p.m. he was called to MPP school in the SC colony of Gollapeta, that another mediator Ramakrishna also came there, that the appellants were also present there , that the appellants gave confession statement which is quite contrary. Apart it, the evidence in his chief examination does not inspire confidence to believe his testimony as it is cryptic in language. The evidence of PW9 who is said to be the photographer shows that in the year 2011 he had photographed the deadbody and he had handed over photographs to the police, but no such photographs were produced by the prosecution.

9 Crl.Appeal No.102/2017

11.The evidence of PW10 shows that on 19.06.2011 he conducted post mortem examination over the deadbody and found (1) Abrasion of2 x 1 cm present on the right elbow region (2)an abrasion of 4cm x 1 cm present on left fore arm away from elbow joint (3) A contusion of 4cmx 1 cm on the left mastoid region (4) laceration of 2 x 1 cm on the fronto parietal region, that he had preserved viscera, that after receipt of RFSL report under Ex.P6 he gave final opinion stating that the death is due to endosulphan insecticide poison. As discussed above it is the contention of the appellants that when the deceased tried to outrage the modesty of the wife of 1st appellant who was taking bath in the toilet, on raising cries by the wife of the 1st appellant, the deceased tried to escape and while running he had hit against the wooden poles and sunshades and sustained injuries. PW10 admitted that injuries 1, 2, and 4 are possible if a person is hit against wooden poles and injury No.3 is possible if a person is hit against sunshades.

12.The evidence of PW1 i.e. Investigating officer shows that on receipt of Ex.P1 on 19.06.2011 from PW1 at 9.00 a.m. he registered FIR under

Ex.P8, it further shows his visiting the scene of offence,preparation of rough sketch under Ex.P9, examination of witnesses but as stated above, he further deposed that on 22.06.2011 at about 5.00 p.m. the appellants were produced

before him in the police station by PW8 and one Ramakrishna and the appellants

confessed the offence, but the evidence of PW8 is otherwise as discussed above.

The prosecution failed to prove the source for recovery of MOs7 to 9 at the instance of the appellants as required under law. Neither the evidence of PW8 nor PW11 exactly shows among the appellants who had produced MO7 i.e.

bamboo stick, MO8 i.e. knife and MO9 pieces of brick, the evidence of PWs8 & 11 shows they simply produced the MOs7to 9 and they were seized under Ex.P4.

This is not a proper mode of seizure of material objects required under law. As discussed above the evidence of PWs.1 and 2 and PWs.3 to 6 does not exactly show the specific overt acts against the appellants. They simply deposed that all 10 Crl.Appeal No.102/2017 the appellants attacked the deceased and some witnesses deposed simply that the appellants beat the deceased , but they did not depose with which weapon the deceased was beaten. The evidence on record shows that the house of the deceased is at a distance of10 feet only from the house of the appellants.

Therefore, it may not be presumed that there was no possibility of witnessing the weapons with which the appellants had allegedly attacked the deceased. Though

PWs.1 to 6 categorically deposed that due to fear of killing him by the appellants and due to fear of lodging report with the police or raising mediation before elders and due to humiliation the deceased consumed pesticide, the lower court disbelieved their evidence and acquitted the appellants of the charge u/sec. 306

IPC. Since the appeal is in respect of the conviction of the charge u/sec. 324, IPC,

I am not inclined to discuss on that aspect. Thus, though there is no evidence on record to prove the charge against the appellants u/sec. 324 IPC, the lower court convicted them, though the prosecution failed to prove the said charge beyond all reasonable doubt. Accordingly, the point is answered.

13. IN THE RESULT, the appeal is allowed by setting aside the order of conviction and sentence recorded by the lower court. The fine amount if any, paid by the appellants shall be refunded to them.

Dictated to the Stenographer, transcribed by him corrected and pronounced by me in open court on

this the 3rd day of April, 2018.

Sd/- H.CHANDRASEKHAR,

II ADDITIONAL SESSIONS JUDGE,

PARVATIPURAM.

Copy to the Registrar (Judicial), Hon’ble High Court of Judicature for the State of Telangana and State of Andhra Pradesh (through C.D).

Copy to the Asst.Sessions Judge, Bobbili.

/True copy/

II Addl.Sessions Judge, Parvatipuram.

11 Crl.Appeal No.102/2017

MOP 43//2017 Dt.28.03.2018

IN THE RESULT, the petition is partly allowed by awarding just compensation of Rs. 2,71,600/- payable by the respondents No. 1 and 2 only, to the petitioners , with proportionate costs and interest thereon @ 9 percent per annum from the date of filing of the petition till the date of deposit. Though the 3rd respondent is exonerated from its liability however, it is directed first to pay the compensation to the petitioner by depositing the same WITHIN TWO MONTHS from today and then recover the same from the respondents 1 and 2 in execution without initiating any separate suit. On such deposit, the compensation amount is apportioned as follows 1st petitioner Rs.2,11,600 2nd petitioner Rs. 30,000 3rd petitioner Rs.30,000 The1st petitioner is permitted to withdraw half of her share along with proportionate costs and interest and balance compensation amount shall be kept in fixed deposit in her name in any Nationalilzed Bank for a period of two years. The 2nd and 3rd petitioners are permitted to withdraw their share with proportionate costs and interest the petitioners are entitled to proportionate costs and interest as per their share in the compensation amount. Advocate\'s fee is fixed at Rs.3,000 only.

Sd/-II ADJ,PVP.

O.S.30/17 ; Dt.29.03.2018

IN THE RESULT, the suit is hereby decreed with costs directing the defendant to get the suit land surveyed to arrive at exact extent of the suit land, to obtain pattadar pass book and title deed in respect of the suit land within three months and inform the same to the plaintiff and thereafter the defendant shall execute regular sale deed in favour of the plaintiff after receiving balance sale consideration within 15 days failing which the plaintiff is at liberty for redressal as per law.

Sd/-II ADJ,PVP.