C.C. No. 738 of 2019 Page 1 of 14 AJMFC Court, Pithapuram
CALENDER AND JUDGMENT
District of East Godavari
Calendar of cases tried by Kum.V.Divya, Addl. Junior Civil Judge-Cum-Judicial Magistrate
Of First Class, Pithapuram.
Date of Offence : Prior to 20.06.2019
Date of Report or Complaint : 23-10-2019
Date of Apprehension of accused : A1-18-11-2019, Sec.41-A Cr.P.C notice to A2 to A4
Date of Release on bail : A1 is in Sub-jail, Kakinada(UTP)
Date of Commencement of trial : 24-01-2020
Date on which trial closed : 17-03-2020
Date of sentence of Order : 22-06-2020
Explanation of delay and remarks : Prosecution did not produce the witnesses.
Calendar and case No. : C.C.No. 738/2019
Name and address of the complainant : State represented by Sub-Inspector of Police,
Pithapuram Rural Police Station.
Name of the accused : 1. Kundala Durga Prasad, S/o.Krishna (Late),
Age 24 years, C/Yadava, D.No.70-18-33,
Bonthagunta Village, Kakinada Rural Mandal.
2. Kundala Ramanamma, W/o.Krishna (Late),
Age 40 years, C/Yadava, D.No.70-18-33,
Bonthagunta Village, Kakinada Rural Mandal.
3. Kundala Srinivas, S/o. Krishna (Late),
Age 19 years, C/Yadava, D.No.70-18-33,
Bonthagunta Village, Kakinada Rural Mandal.
4. Morukurthi Nagalakshmi, W/o.Sreenu,
Age 29 years, C/Yadava, Bhavavaram Village,
Jaggampeta Mandal.
Section of law:: Under section 498-A, 323, 506 r/w 34 of IPC and
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Sec.3 and 4 of Dowry Prohibition Act r/w 156(3) Cr.P.C
Finding of the Court : Accused found not guilty
Sentence : In the result, accused A1 to A4 are found not guilty for the offence under Section 498-A r/w Sections 3 and 4 of Dowry Prohibition Act, sections 312, 506 of IPC and accordingly, accused are acquitted for the offences under Section 255(1)
Cr.P.C. Accused No.1 shall be released forthwith if he is not required in other cases. Office is directed to communicate the same to Superintendent, Sub-Jail, Kakinada. The bail bonds of the accused shall be in force for further period of six months from the date of judgment as per Section 437-A of Cr.P.C and thereafter, shall stand cancelled. Unmarked unworthy property if any shall be destroyed after expiry of appeal period.
SD/- V.DIVYA
Additional Judicial Magistrate of First Class,
Pithapuram.
Copies submitted to: 1.The Hon’ble Chief Judicial Magistrate, East Godavari, Rajamahendravaram. 2.The Superintendent of Police, Kakinada.
C.C. No. 738 of 2019 Page 3 of 14 AJMFC Court, Pithapuram
IN THE COURT OF ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,
PITHAPURAM.
Present : Kum.V.Divya,
Additional Junior Civil Judge-Cum-Judicial Magistrate Of First Class
Monday, the 22nd day of June, 2020.
CALENDER CASE NO. 738/2019
Between: State represented by Sub-Inspector of Police, Pithapuram Rural Police Station. …Complainant
And:
1. Kundala Durga Prasad, S/o.Krishna (Late), age 24 years, C/Yadava, D.No.70-18-33, Bonthagunta Village, Kakinada Rural Mandal.
2. Kundala Ramanamma, W/o.Krishna (Late), age 40 years, C/Yadava, D.No.70-18-33, Bonthagunta Village, Kakinada Rural Mandal.
3. Kundala Srinivas, S/o. Krishna (Late), age 19 years, C/Yadava, D.No.70-18-33, Bonthagunta Village, Kakinada Rural Mandal.
4. Morukurthi Nagalakshmi, W/o.Sreenu, Age 29 years,
C/Yadava, Bhavavaram Village, Jaggampeta Mandal. ... Accused
This case has come finally for hearing on 15.06.2020before me in the presence of Learned Assistant Public Prosecutor for complainant-State and Sri N.V.R. Sameer Kumar, Advocate for accused, as the matter stood over for consideration till this day, this court delivered the following : -
J U D G M E N T
1.Accused stood charged for the trial of offences punishable under sections 498-
A, 323, 506 r/w 34 of Indian Penal Code (in short IPC) and Sections 3 and 4 of Dowry
Prohibition Act r/w 156(3) Cr.P.C in Crime No.152/2019 of Pithapuram Rural Police station.
2.Brief facts of the prosecution case are that marriage of L.W.1-Kundala Veera
Nagalakshmi @ Veeralakshmi was performed with A1 on 22-04-2015. At the time of marriage, L.W.1’s family gave Rs.2,00,000/- towards dowry, Rs.20,000/- towards adapaduchu lanchanam, Rs.50,000/- towards paraphernalia and 10 Kasus of gold. After their marriage,
L.W.1 joined A1 and they lived happily for two years. After that, A1 got addicted to bad vices such as drinking, gambling and womanizing and on the instigation of A2 to A4, he used
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to demand for additional dowry. While so, when L.W.1 was pregnant, A1 kicked on her stomach and in the result she underwent abortion. All the accused used to harass her without giving food, clothes and medical aid and used to ask her to leave to her parents house as she has no children and A1 also tried to marry another women for more dowry. Hence, L.W.1’s family members gave an additional dowry of Rs.1,00,000/- but accused did not stop the harassment. While so, in October, 2018, A1 poured kerosene on L.W.1 and tried to kill her and necked her out and in that regard she gave report in Kakinada Police station but no action was taken as police were influenced by the accused with the help of local political leaders.
Having no other go, L.W.1 went to her parents house and living with them. While so, on 20- 06-2019 at 10.00 A.M, A1 came to her parents house with blank stamp papers and asked her to sign on them for divorce and as she refused, he beat her and when she raised alarm and neighbours came there, he fled away from there and then she gave report to SHO, Pithapuram
Police Station but no action was taken even on that report and so she approached this Court by filing private complaint.
3.Basing on the private complaint filed by L.W.1, a case in Crime No.152/2019 was registered and investigated into. During the course of investigation, L.W.-10
Investigating officer arrested A1 and remanded him to judicial custody and served notice under Section 41-A Cr.P.C to A2 to A4 and after completion of investigation filed charge sheet for the offence under Sections 498-A, 323, 506(2) r/w 34 of Indian Penal Code (in short IPC) and Section 3 and 4 of Dowry Prohibition Act r/w 156(3) Cr.P.C.
4.This case was taken on file for the offences under Section 498-A of Indian
Penal Code and Sections 3 and 4 of Dowry Prohibition Act and Sections 312 and 506 of IPC.
5.On appearance of the accused, copies of the documents were furnished to the accused as required under section 207 Cr. P. C.
6.Accused 1 to 4 were examined under section 239 of Cr. P. C. Charge framed against accused for the offence under Section 498-A r/w 34 IPC and Section 3 and 4 of
Dowry Prohibition Act, Section 312, 506 IPC and is read over and explained to the accused
A2 to A4 in Telugu. Having understood the same, they denied the charge and pleaded not
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guilty and claimed to be tried.
7.On behalf of prosecution, P.Ws.1 to 9 were examined and Exs. P.1 to P.7 were marked. On the other hand, accused did not examine any witnesses and did not got marked any documents on their behalf.
8.After closure of prosecution evidence, accused were examined under Section 313 Cr.P.C. Incriminating evidence available on record was read over and explained in
Telugu. Having understood the same, plea of accused are total denial. When the accused were called to enter upon defence evidence they did not choose to examine any defence witnesses. Hence defence evidence is closed.
9.Now the point for consideration is:
Whether the prosecution is able to establish the guilt of accused for the offences under Sections 498-A of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act and Sections 312 and 506 of IPC beyond all reasonable doubts?
10.Learned APP through the written arguments submitted that accused were not satisfied with the quantity of dowry given at the time of marriage and they used to torture and beat the victim and A2 to A4 used to instigate A1 to beat the victim and the same was proved
before the Court by its evidence which gives credibility to the testimony of victim. It was
further submitted that evidence of defacto complainant was corroborated with Ex.P1 and said version was corroborated with the evidence of her family members.
11.He further submitted that evidence of P.Ws.1, 2 and 4 to 8 corroborated with each other in material aspects and putforth the harassment to the victim demanding for
additional dowry. He further submitted that P.W.1 herself stated that accused threatened her
that he will stab her father and used to suspect her fidelity and set ablaze to the house while
P.W.1 is inside and that evidence of the witness is straight forward and hence there is no exaggeration and there is nothing to discredit the evidence as this evidence was elicited by the defence counsel during the cross examination. Therefore, prosecution could successfully establish all the incriminating circumstances by cogent evidence which unerringly proved the guilt of accused and hence prayed to convict the accused.
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12.In order to support his contention, learned APP relied upon following decisions:
(I)Bholaram Kushwaha Vs. State of Madhya Pradesh AIR 2001 SC 299 wherein it was held that mere turning of independent witnesses into hostile would not be a ground for acquittal of accused.
(II)V.K.Mishra Vs. State of Maharastra, Surinder Singh Vs. State of Haryana,
Sunitha Kumari Kashyap Vs. State of Biharwherein it was held that when there are no independent witnesses to the occurrence, prosecution need not necessarily examine neighbours or tenants to prove its case.
(III)Bhanuben Vs. State of Gujarath, SC dated 14-09-2015wherein it was held that in matrimonial disputes, it would be in appropriate to expect the outsiders to come and depose and sometimes friends, relatives are natural witnesses.
(IV)Pawan Kumar & Ors. Vs. State of Haryana AIR 1998 SC 958 wherein it was held that there were no ingredients for the offence under Section 498-A IPC and all the contents as per the complaint and deposition of P.W.1 and others are to be considered and that cruelty or harassment need not be physical and it may be even mental torture.
(V)Thota Sambasiva Rao & Others v. State of A.P. rep. by Public Prosecutor,
A.P. High Court, A.P., & Another 2009 (1) ALD Crl. AP 948 wherein it was held that territorial jurisdiction of the police to investigate the offence of cruelty is even in the place in which she resides along with parents.
(VI)Paramjeet Singh Vs. State of Uttarakhand 2010 (10) SCC 439 wherein all the eye witnesses turned hostile in matrimonial cases, it was held that harassment need not be in the presence of others.
13.On the other hand, learned counsel for defence submitted his arguments through video linkage and raised the following issues:
[1]P.W.1 is alleging that she was necked out by the accused and was subjected to cruelty in the year 2017 but complaint was filed in the year 2018 which discloses that no
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complaint was lodged for one year and even then she filed a private complaint but failed to explain as to why she did not approach the Police to file a report prior to filing a private complaint and instead alleging that she complained it earlier before II Town Police Station,
Kakinada without furnishing any evidence to support the same.
[2]P.W.1 in her evidence admitted that contents of her statement were not readover to her which discloses that she has no knowledge about the contents of it.
[3] P.W.1 made self serving statements without any corroborating evidence and there are several inconsistencies in her evidence and 161 Cr.P.C statement except that her husband is addicted to alcohol, therefore she failed to support her own version stated in Ex.P1.
[4] In Ex.P1, P.W.1 alleged that her husband i.e., A1 has illegal contact with another and contrarily in her evidence she deposed that, A1 used to suspect her fidelity even when her father and brother visited her. Therefore, reason for cruelty and the date or period during when said offence was committed was not clear.
[5] The allegation of P.W.1 is that her husband used to do coolie work and used to come at irregular timings and harass her. As it is admitted that he used to do coolie works, it is obvious that he is late to the house and that act cannot be taken as cruelty. In order to attract the offence under Section 498-A IPC, physical, mental or psychological cruelty is to be proved but it was not proved by the prosecution.
[6] Evidence of prosecution discloses that A2 who is the mother of A1 admonished
A1 not to quarrel and that A4 is residing in her in laws house and therefore there is no evidence that they harassed P.W.1.
[7] P.W.2 in his evidence deposed that when P.W.1 was brought to his house for
Sankranthi Festival, A1 demanded for additional dowry of Rs.10,000/- but contrary to it,
Ex.P1 discloses that they have given additional dowry of Rs.1,00,000/- and therefore there is no consistency in his evidence and therefore no evidence was furnished to prove the demand for additional dowry.
[8]According to P.W.2, A1 beat P.W.1 in the market at Pithapuram and later he
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took her to RMP doctor for necessary treatment but no evidence was adduced to prove the same and the RMP doctor who becomes crucial witness was not examined by prosecution.
[9]Prosecution evidence was not clear as to who acted as elders for the settlement as different names were deposed by each witness as the elders who came to try and settle the matter.
[10]P.Ws.4 to 6 admitted that they have disputes with regard to joint family properties and that they do not know the reason for dispute and hence their evidence cannot be considered.
[11] Investigating Officer himself admitted that he did not investigate the period during when the harassment took place and whether the act of accused amounts to causing great injury and also failed to know how long P.W.1 stayed in Bonthagunta i.e., at the place of accused and therefore investigation in this case is incomplete and hence benefit of doubt may be granted to accused as the prosecution failed to prove the guilt of accused before Court and prays to acquit the accused.
14.Considering the evidence adduced and the arguments put forth, I would like to discuss the points raised for consideration in a chronological manner for better understanding:
[A]Prosecution by adducing the evidence has successfully established that marriage of P.W.1 was performed with A1 on 22-04-2015 and at the time of marriage, dowry as well as adapadachu lanchanam and paraphernalia were given to accused’s family.
[B]Now the point is -
Whether said giving and taking of dowry by the families of P.W.1 and accused respectively attracts the offence under Sections 3 and 4 of Dowry Prohibition Act?
[I]Section 10 of AP Dowry Prohibition rules has specifically stated that case for the offence under Sections 3 and 4 of Dowry Prohibition Act, shall be filed before expiry of one year. As it is mandatory in nature, any complaint in that regard after said period is not valid under the eye of law. Therefore, as the complaint was filed after the time limit
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prescribed, said offence is barred by limitation and so proving the guilt of accused for the said offence does not arise at all.
[C] Consequentially, another question that raises for consideration is:
Whether accused can be held liable for demanding and taking additional dowry?
[a] Allegation of P.W.1 is that apart from the dowry given at the time of marriage, they have given additional dowry of Rs.1,00,000/- when the accused harassed her demanding for additional dowry.
[b]As per the evidence adduced, prosecution case is that they have given
additional dowry of Rs.1,00,000/- as per Ex.P1. P.W.1 was silent with regard to giving
additional dowry as demanded but P.W.2 deposed that after two years from the marriage, A1
brought P.W.1 to his house on the eve of Sankranthi Festival and at that time he kicked P.W.1 on her stomach at Pithapuram market and left her in the house and went away out of fear that his acts will be questioned and even at that time A.1 demanded for additional dowry of
Rs.10,000/- but no such incident was disclosed by P.W.1 in her evidence.
[c]At this stage it is pertinent to note that how much amount was demanded as
additional dowry is no where disclosed and the only fact established by the prosecution is that
accused demanded for Rs. 10,000/- towards additional dowry and that they have given Rs.
1,00,000/- which clearly raises suspicion as to why they have given such a huge amount as
additional dowry even though A.1 demanded for Rs.10,000/-.
[d]Also, there is no evidence adduced to prove that P.W.1’s family has given
additional dowry of Rs.1,00,000/- as demanded by the accused’s family except the self
serving statement of P.W.2 and therefore, it can be safely concluded that even though it was alleged that the accused demanded for additional dowry, prosecution failed to establish the same before Court as there are several set backs in the prosecution evidence to that effect.
[e]In light of above discussion, accused Nos.1 to 4 even though charged for the offence under Sections 3 and 4 of Dowry Prohibition Act, are entitled to benefit of doubt for the said offences.
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[D]Now the point is -
Whether prosecution established the guilt of accused for the offence under Sections 498-A of Indian Penal Code?
[i]It is the settled legal position that in cases of matrimonial offences, Court cannot expect the evidence of independent witnesses to prove the occurrence of offence and so priority to be given to the evidence of victim in such offences.
[ii]Best evidence available on record is Ex.P1 which sets this case in motion. Ex.
P1 clearly states that, after two years from the marriage, A1 started demanding for additional dowry as he was addicted to vices such as drinking, gambling and womanizing and the same was corroborated by PW.1 in her evidence and she further deposed that A2 to A4 are instigating A1 in that regard.
[iii]In addition to those allegations, she introduced a new fact for the first time
before this Court by deposing that A1 is suspecting her fidelity which was no where disclosed
in Ex.P1 or her 161 Cr.P.C statement.
[iv]At this stage, it is pertinent to note that as per Ex.P1, after the marriage of
P.W.1, she lived happily with accused upto two years and after that they started harassing her demanding for additional dowry. However, in her evidence she deposed that after four months from the marriage, accused No.1 started suspecting her fidelity and used to harass her which clearly raises suspicion as to the period when accused started demanding for additional dowry.
[v]One other important factor to be considered is that reasons for cruelty towards
P.W.1 as per Ex.P1 is that accused got addicted to bad vices but as per her evidence, reasons for cruelty is that accused No.1 is suspecting her fidelity which raises suspicion as to the root cause i.e., motive for the offence which hits the prosecution case.
[vi]In that regard, when father of P.W.1 was examined as P.W.2, he deposed that
A1 is harassing P.W.1 by coming to the house late in the night in drunken state and beating
P.W.1 demanding for additional dowry and when the said fact was informed to A2, she did
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not bother.
[vii]Version of PW.2 is corroborated even by P.Ws.4 to 6. To determine the credibility of those witnesses, it is important that P.Ws.4 to 6 who are related to the accused had deposed in their cross examination that they have disputes with accused’s family with regard to joint family properties which clearly raises suspicion that there is a chance for deposing false evidence in order to implicate the accused in view of their enemity. Also, it is pertinent to note that P.Ws.4 to 6 are hearsay witnesses and none of them are direct witnesses to the offence.
[viii]It is also admitted that according to them A1 used to harass P.W.1 and P.W.1 used to inform the same to them later and that they do not know the reason for which accused and P.W.1 has disputes but they came to know that the disputes is with regard to suspecting fidelity of P.W.1 and as A1 is addicted to alcohol. Therefore it is clear that they did not witness the offence being committed and they are the mere hearsay witnesses and hence their evidence will not hold much credibility.
[ix]P.Ws.7 and 8 also corroborated the version of P.Ws.4 to 6 but their evidence also cannot be considered as they themselves admitted that they came to know about the offence through P.W.2 and they did not witness the offence.
[x]P.W.3 completely turned hostile and did not support the prosecution case except the fact about the marriage and that P.W.1 returned to her parents house after two years from the marriage.
[xi]PW.1 herself admitted that she do not know about the illegal relationship of A1 and when she was cross examined in particular, she deposed that A1 must have informed her that he was addicted to alcohol and that he has illegal relationship.
[xii]Therefore, according to P.W.1, she came to know about the alcohol addiction of A1 and his illegal relationship only when A1 himself informed her but her allegation in Ex.
P1 is that A1 used to harass her in drunken state demanding for additional dowry and that he has illegal relationship.
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[xiii]This clearly discloses that there is quite contradiction to her own evidence with
Ex.P1 which raises suspicion as to the allegation that the accused No.1 is addicted to drinking, gambling and womanizing and thereby harassing P.W.1 in drunken state demanding for additional dowry.
[xiv]Therefore, suspicion raises as to the allegation that accused is harrasing P.W.1 in drunken state as P.W.1 herself stated that she came to know through accused that he is addicted to alcohol which hits the root of the prosecution.
[xv]Therefore, it can be safely concluded that prosecution failed to establish its case under section 498-A IPC beyond all reasonable doubts.
[E]Whether Offence under sec 312 of IPC is proved?
[1]Allegation against the accused is that A1 kicked on the stomach of P.W.1 resulting in abortion as per Ex.P1. However, P.W.1 failed to adduce any evidence in that regard but P.W.2 in his evidence deposed that A1 kicked P.W.1 in stomach in Pithapuram market and left her in his house and after that he took her to RMP doctor for treatment.
Therefore as the allegation is that such act of accused resulted in abortion, RMP doctor who treated P.W.1 is the material witness who must be examined to establish the offence under
Section 312 of IPC. However, prosecution failed to adduce any evidence in support of said fact. Therefore, it can be safely concluded that the prosecution failed to prove the offence under Section 312 IPC.
[F]Whether Offence under sec 506 of IPC is proved?
[I]Allegation of P.W.1 is that accused threatened her that he will kill her father and also demanded her to sign on blank stamped papers for divorce. However, no such evidence was deposed by P.W.1 in her evidence. Therefore, it can be safely concluded that the offence under Section 506 IPC was not proved against the accused.
[II]Another allegation of PW.1 is that in the month of October, 2018 accused No.1 poured kerosene and tried to kill her and necked her out and in that regard, she reported to
Kakinada Police Station but no action was taken but in her evidence she deposed that in the
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year 2015, A1 poured sambar on her suspecting her fidelity and one year ago, accused No.1 set a blaze to the thatched house when she was inside the house. If at all such incident occurred, there is every chance for the investigating officer to investigate in that regard and recover some incriminating materials to establish such act of accused. However, no such act was established.
[III]Also, it is pertinent to note that the complaint was filed after one year from the date when the complainant left the conjugal life of A1 and no explanation was given by her for the delay. Therefore, the reason for delay in filing the report was also not properly explained by the defacto complainant.
[IV]Further, there is no evidence adduced to show that PW.1 lodged complaint previously when the accused tried to kill her. Her allegation is that accused influenced the police due to which no action was taken against her report. Had it been so, P.W.1 could have produced the copy of report which was filed before Kakinada Police Station and when she was questioned in that regard, she deposed that she filed it before Court but no such report was filed before this Court.
[V]Also, it is pertinent to note that prosecution witnesses admitted that A4 was not residing along with other accused but still she was implicated and the reasons stated by the prosecution witness is that she used to visit the house of accused no.1 during festivals and used to insist A1 over phone.
[VI]Had it been so, as the offence against A1 itself was not proved by the prosecution, the question of instigation for committing the offence does not arise.
[VII]In light of above discussion, it can be safely concluded that prosecution failed to prove the guilt of accused beyond all reasonable doubts for the offences under Section 498-A r/w Sections 3 and 4 of Dowry Prohibition Act, sections 312, 506 of IPC and hence this is a fit case to grant benefit of doubt to the accused.
15.In the result, accused A1 to A4 are found not guilty for the offences under
Section 498-A r/w Sections 3 and 4 of Dowry Prohibition Act, sections 312, 506 of IPC and
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accordingly, accused are acquitted for the offence under Section 255(1) Cr.P.C. Accused
No.1 shall be released forthwith if he is not required in other cases. Office is directed to communicate the same to Superintendent, Sub-Jail, Kakinada. The bail bonds of the accused shall be in force for further period of six months from the date of judgment as per Section 437-A of Cr.P.C and thereafter, shall stand cancelled. Unmarked unworthy property if any shall be destroyed after expiry of appeal period.
Dictated to the Personal Assistant, transcribed by her corrected and pronounced by
me in open court, this the 22 nd day of June, 2020.
SD/- V.DIVYA
Additional Judicial Magistrate of First Class,
Pithapuram.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION
P.W.1: 24-01-2020: Kundala Veera Nagalakshmi P.W.2: 07-02-2020: Eepi Sathibabu P.W.3: 14-02-2020: Devarapu China Manikyam P.W.4: 14-02-2020: Kundala Rambabu P.W.5: 14-02-2020: Ganta Mahalakshmamma P.W.6: 14-02-2020: Kundala Raghava P.W.7: 06-03-2020: Rajamala Srinu P.W.8: 06.03.2020: Pedapudi Srinivasa Rao P.W.9: 13.03.2020: A.Chaitanya Kumar
WITNESSES EXAMINED ON BEHALF OF THE DEFENCE
--- NIL ---
EXHIBITS MARKED ON BEHALF OF THE PROSECUTION
Ex.P.1: Complaint given by P.W.1. Ex.P.2: Two photographs. Ex.P.3: Wedding card. Ex.P.4: Marked portion of section 161 Cr.P.C of PW3. Ex.P.5: Original FIR. Ex.P.6: Rough sketch. Ex.P7: Rough sketch.
EXHIBITS MARKED ON BEHALF OF THE DEFENCE
- Nil -
MATERIAL OBJECTS
Nil
SD/- V.DIVYA
Additional Judicial First Class Magistrate,
Pithapuram.