Smt.K.Sudhamani

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IN THE COURT OF THE I ADDITIONAL DISTRICT & SESSIONS JUDGE,

VIZIANAGARAM

Present:- Smt. K.Sudhamani, I Additional District & Sessions Judge, Vizianagaram

Wednesday, this the 24th day of February, 2021.

SESSIONS CASE No. 66/2017

Name of the State represented by Sub-divisional Police Officer,

ComplainantVizianagaram Sub Division.

Name of the accused:1.Pentapati Chandrakumar, s/o late Venkataramana @ China Venkanna, 38 years, Caste by Vysya, H.No.2847, YSR Nagar, Vizianagaram. 2.Pentapati Indravathi W/o late Venkataramana @ China Venkanna, 38 years, Caste by Vysya, H.No.2847, YSR Nagar, Vizianagaram.

Date of offence: 22.12.2016

Date of report/Complaint:22.12.2016

Date of appearance of the:22.01.2018 accused in this court.

Date of made over to this : 14.12.2017 Court by Sessions Division (Vide P.R.C.No. 18/2017 on the file of Additional

Judicial Magistrate of I Class, Vizianagaram)

Date of commencement :03.12.2019 of trial

Date of closure of trial:07.01.2020

Date of sentence or order : 24.02.2021

Explanation for the delay:

This case is filed by Sub-divisional Police Officer, Vizianagaram Sub

Division, against the accused 1 and 2. The Principal District & Sessions Court,

Vizianagaram took cognizance of the case against the accused for the offence under Sections 498-A, 304-B of IPC and Sec.3 & 4 of Dowry Prohibition Act and made over the same to I Additional District & Sessions court, Vizianagaram, for disposal..

On 22.01.2018, copies were furnished to the accused. On 22.03.2018 charges under sections 498-A, 304-B and 306 of IPC and Sec.3 & 4 of Dowry

Prohibition Act were framed and contents of charges were read over and 2 explained to A.1 and A.2 in Telugu, for which, they denied and pleaded not guilty and claimed to be tried and the schedule is fixed for trial. Forte

During the trial, on 03.12.2019, P.W.1 examined and Ex.P.1 marked, on 04.12.2019, P.W.2 examined and Ex.P.2 marked, on 06.12.2019

PW3 examined, On 10.12.2019, PW4 to PW7 were examined and Ex.P.3 to P.12 and Mo.1 to 3 are marked, on 11.12.2019 Pw8 examined, on 12.12.2019 Pw9 examined, on 13.12.2019, Pw10 examined and Ex.P.13 is marked, on 16.12.2020,

Pw11 examined and Ex.P.14 & P.15 are marked, on 17.12.2019, Pw.12 examined and Ex.P.16 marked, on 20.12.2019, PW.13 to Pw15 were examined and Ex.P.17 to Ex.P.23 are marked, on 02.01.2020, P.w.16 & PW.17 examined and Ex.P.24 to

Ex.P.29 are marked and Prosecution evidence is closed.

The police filed a report on 3.12.2019 and stated that Bammidi

Rama (Lw2) whereabouts not known and her evidence is closed.

The Addl.P.P., given up the evidence of Patnana Manga(Lw5), Bammidi

Ramaswamy (LW6), Udatha Pydiraju (LW9), Thota Ramesh (LW14), Srikakulapu

Venkata Ramana (LW15), Manda Nagamani (LW17), Dr.R.Sasidhar (LW19), and their evidence is closed on different dates, respectively.

After closure of the prosecution evidence, on 07.01.2020 accused were examined under section 313 Cr.P.C., , for which they denied the allegations thereon and stated no defence evidence is reported by the counsel for accused, on which date defence side evidence is closed and the case is posted to 21.1.2020 for arguments and it was adjourned from time to time and heard f reply arguments by Addl., P.P., on 24.2.2021 and posted for Judgment. On 24.2.2021

Judgment pronounced (vso)

Finding : IN THE RESULT, I find that the accused 1 and 2 are guilty of the offence punishable under sections 498-A IPC, 304-B I.P.C., and 306 of IPC.

Accordingly, they are convicted under Section 235 (2) of Cr.P.C., for the said offences.

In the result, I find that the accused Nos.1 and 2 are not guilty of the offence under sections 3 and 4 of Dowry Prohibition Act and they are acquitted under section 235(1) of Cr.P.C.

P.O. Act is not applicable to the facts of the case.

Considering the circumstances of case and gravity of offence lenient view cannot be taken in this case since death of deceased took place within a year of her marriage and when A.1 was questioned about quantum of sentence he pleaded that he is only son to his mother and pleaded mercy and when A.2 was 3 questioned about quantum of sentence, she pleaded that she is 70 years old and pleaded mercy. A.1 is sentenced to undergo Three (3) Years Rigorous

Imprisonment and to pay a fine of Rs.10,000/- in default of fine amount A-1 shall undergo Simple imprisonment for a period of six (6) months for the offence under section 498-A IPC and A.1 is further sentenced to under go Seven (7)

Years Rigorous Imprisonment of the offence under section 304-B IPC and

A.1 is further sentenced to under go Seven (7) Years Rigorous Imprisonment and to pay a fine of Rs.50,000/- in default of fine amount A-1 shall undergo

Simple imprisonment for a period of six (6) months for the offence under section 306 IPC and A.2 is sentenced to undergo Three (3) Years simple Imprisonment and to pay a fine of Rs.10,000/- in default of fine amount A-2 shall undergo

Simple imprisonment for a period of six (6) months for the offence under section 498-A IPC, A.2 is further sentenced to under go Seven (7) Years Simple

Imprisonment for the offence under section 304-B IPC, and A.2 is further sentenced to under go Seven (7) Years Simple Imprisonment and to pay a fine of Rs.50,000/- in default of fine amount A-2 shall undergo Simple imprisonment for a period of six (6) months for the offence under section 306 IPC.

All the sentences shall run concurrently.

M.Os.1 to M.O.3 are destroyed after expiry of appeal time is over.

Both the accused are informed about the right of filing of appeal by them.

The remand period of A.1 and A.2 is set off as per Section 428 of Cr.P.C., i.e., from 25.12.2016 to 16.2.2017.

Sd/-K.Sudhamani

I Additional District & Sessions Judge, Vizianagaram.

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IN THE COURT OF THE I ADDITIONAL DISTRICT & SESSIONS JUDGE,

VIZIANAGARAM

Present:- Smt. K.Sudhamani, I Additional District & Sessions Judge, Vizianagaram

Wednesday, this the 24th day of February, 2021.

SESSIONS CASE No. 66/2017

Name of the State represented by the Sub Divisional Police Officer, Vizianagaram Sub Division. Complainant Name of the accused:1. Pentapati Chandra Kumar son of late Venkataramana @

China Venkanna, 38 years, Vysya, H.No.2847, YSR nagar,

Vizianagaram.

2. Pentapati Indravathi wife of late Venkataramana @

China Venkanna, aged 38 years, Vysya, H.No. 2847, YSR,

Vizianagaram. Charges Charges under sections 498-A, 306, 304-B of IPC and sections 3 and 4 of Dowry prohibition Act. : Plea of the accused: Pleaded not guilty

Finding of the Judge: Accused Nos.1 and 2 find guilty

Sentence or orderIN THE RESULT, I find that the accused 1 and 2 are guilty of the offence punishable under sections 498-A IPC, 304-B

I.P.C., and 306 of IPC. Accordingly, they are convicted under Section 235 (2) of Cr.P.C., for the said offences.

In the result, I find that the accused Nos.1 and 2 are not guilty of the offence under sections 3 and 4 of

Dowry Prohibition Act and they are acquitted under section 235(1) of Cr.P.C.

P.O. Act is not applicable to the facts of the case.

Considering the circumstances of case and gravity of offence lenient view cannot be taken in this case since death of deceased took place within a year of her marriage and when A.1 was questioned about quantum of sentence he pleaded that he is only son to his mother and pleaded mercy and when A.2 was questioned about quantum of sentence, she pleaded that she is 70 years old 5 and pleaded mercy. A.1 is sentenced to undergo Three (3)

Years Rigorous Imprisonment and to pay a fine of

Rs.10,000/- in default of fine amount A-1 shall undergo

Simple imprisonment for a period of six (6) months for the offence under section 498-A IPC and A.1 is further sentenced to under go Seven (7) Years Rigorous

Imprisonment of the offence under section 304-B IPC and A.1 is further sentenced to under go Seven (7)

Years Rigorous Imprisonment and to pay a fine of

Rs.50,000/- in default of fine amount A-1 shall undergo

Simple imprisonment for a period of six (6) months for the offence under section 306 IPC, and A.2 is sentenced to undergo Three (3) Years simple Imprisonment and to pay a fine of Rs.10,000/- in default of fine amount A-2 shall undergo Simple imprisonment for a period of six (6) months for the offence under section 498-A IPC. A.2 is further sentenced to under go Seven (7) Years Simple

Imprisonment for the offence under section 304-B IPC., and A.2 is further sentenced to under go Seven (7)

Years Simple Imprisonment and to pay a fine of

Rs.50,000/- in default of fine amount A-2 shall undergo

Simple imprisonment for a period of six (6) months for the offence under section 306 IPC.

All the sentences shall run concurrently. M.Os.1 to

M.O.3 are destroyed after expiry of appeal time is over.

Both the accused are informed about the right of filing of appeal by them. The remand period of A.1 and A.2 is set off as per Section 428 of Cr.P.C., i.e., from 25.12.2016 to 16.2.2017. Prosecution conducted by :Additional Public Prosecutor, Vizianagaram.

Defence conducted by: Sri Ch.Rambabu, Advocate.

This case is coming on 15.2.2021 for final hearing before me in the presence of the learned Addl.P.P for the complainant/state and of Sri Ch.Rambabu, Advocate for accused, after having stood over for consideration, this court delivered the following:- 6

J U D G M E N T

The Sub Divisional Police Officer, Vizianagaram Sub Division, laid a charge sheet against the accused under Secs. 498-A and 304-B IPC and under sections 3 and 4 of Dowry Prohibition Act, in Crime No. 199/2016 II Town Police

Station, Vizianagaram.

2The brief facts of the case of the prosecution, are as follows:-

A.2 is mother of A.1 and they are residing in one roof at H.No.2847,

YSR Nagar, Vizianagaram. A.1 is living by working in garments shop and A.2 is attending household duties.

2(a)On 22.12.2016 at about 9.30 a.m., on receipt of medical intimation in charge of outpost Government Head Quarters Hospital, Vizianagaram, i.e., the

A.S.I. 478, L.Kota P.S., recorded the statement of injured which runs as follows :

2(b)“Pentapati Ramanamma @ Ravali (hereinafter called as deceased) wife of Chandra Kumar(A1), aged 35 years, Vysya by caste, H.No.2847, YSR

Nagar, Vizianagaram is native of Poodimeraka village of Atchutapuram Mandal, near Anakapalli of Visakhapatnam. In the month of February, 2016 the marriage of deceased was performed with Pentapati Chandrasekhar (A1) as per Hindu caste custom at her paternal house Poodimeraka village. Her father died in her childhood and she had two sisters and one brother. At the time of marriage, the mother of deceased gave an amount of Rs.2,05,000/- towards dowry including marriage expenses. After marriage, her husband(A1) and her mother-in-law (A-2) look after the deceased properly for one month only and started harassment both mentally and physically by demanding her to bring additional dowry of Rs.5,000/- or Rs.10,000/- from her parents house.

On 10.10.2016 while the deceased was wearing new sari, her mother in law abused her by suspecting her fidelity. About one month back her husband dropped her forcibly at her parents house stating that to bring additional dowry.

While so, on 21.12.2016 her mother, two maternal uncles and her elder sister brought her to back to her in-laws house and stopped there. During 7 night time, her husband and her mother-in-law used to abuse her for her coming to their house without additional dowry.

On 22.12.2016 at about 5 a.m., the deceased sweeping the house, her mother-in-law caught her neck and pushed away her and her husband beat her with hands, kicked her with legs and forced her to go to her parents house, due to which, she got vexed and set fire to her nighty, as a result, she sustained burns. Her husband tried to shut off the flames. Some of the neighbours informed the same to 108 ambulance and shifted her to Maharaj’s Hospital,

Vizianagaram, for treatment, where she gave statement to the police.

2(b) Based on the statement of injured(deceased)-Pentapati

Ramanamma @ Ravali, Sub Inspector of Police, II Town P.S.,

Vizianagaram(LW24) registered a case under Sections 498-A and 304-B IPC and sections 3 and 4 of Dowry Prohibition Act, in Crime No. 199/2016 II Town Police

Station, Vizianagaram and submitted the original FIR along with original statements of injured to the AJFCM, Vizianagaram and copies to all concerned and took up investigation.

2(c)The Judicial Magistrate of I Class, Special Mobile Court, Vizianagram (LW20) recorded the Dying declaration of Pentapati Ramanamma (deceased) on 22.12.2016, 2(d)The Sub Inspector of Police, II Town Police Station, Vizianagaram, visited the Head Quarters Hospital, Vizianagaram and secured the presence of injured(deceased), examined and recorded her detailed statement. He visited YSR

Nagar and secured the presence of neighbours of accused and examined and recorded their detailed statements. He also secured the mediators viz., Kota

Babu and Anthakapalli Samudram (LWs12 and 13) at the scene of offence, observed the scene in their presence, seized the partial burnt cloth pieces, used match box and burnt match sticks under the cover of scene observation report and prepared rough sketch and got photographed the scene of offence by Amara 8

Ramannamurthy, Jhani Photo and Videos and Kirana Shop, YSR Nagar,

Vizianagaram(LW11).

2(e)On 22.12.2016 at about 18.00 hours the mother of injured/Thammana Kanakaratnam(LW1) came to the police station and lodged a report alleging that she has 3 daughters and 2 sons. The marriage of elder daughter Nagasani was performed with Kulukundi Ramarao resident of Gajuwaka.

Her 3rd daughter Jagadama was given in marriage with Gollapudi Narayanaswamy resident of Yerammapeta village of Narsipatnam.

2(f)Her report is that on 17.2.2016 her 2nd daughter Ravali/deceased was given in marriage with A-1 as per their caste custom. At the time of marriage of deceased, she gave Rs.2,05,000/- to A.1 and A.2 towards dowry and the deceased joined the conjugal society of A.1. A.1 is working in a garment shop at

Balaji market. A.1 and A.2 looked after the deceased properly for one month.

Later they started harassing the deceased both physically and mentally by demanding to bring cash of Rs.10,000/- or Rs.5,000/- towards additional dowry and also suspecting the fidelity of deceased. About one month back, A.1 left away the deceased at her house stating that to bring Rs.5,000/- or Rs.10,000/- from them.

2(g) Her report is that on 21.12.2016 the defacto complainant , her brothers Udatha Pydiraju son of late Satyanarayana, Mummadivarapu

Kameswararao son of late Satyanarayana, her elder daughter Nagamani wife of

Ramarao, took her daughter/deceased to her in-laws house by admitting that they will provide cash as additional dowry after Sankranthi festival.

2(h)Her report is that on 22.12.2016 at about 6.30 a.m., the defacto complainant i.e., mother of deceased received a phone call from one Uma who is neighbour of her deceased daughter at YSR Nagar, Vizianagaram that her daughter received burns and shifted to District Head Quarter’s Hospital, 9

Vizianagaram by 108 ambulance. Immediately, she along with her son

Satyanarayana went to Head Quarters Hospital, Vizianagaram and found her daughter/deceased/Ravali is getting treatment at Burns ward and her daughter informed that A.1 and A.2 subjected her to cruelty for additional dowry and due to their unbearable harassment, she got vexed with her life, set fire to her night wear and sustained injuries and her daughter/deceased died at 4.00 p.m., in the hospital while undergoing treatment.

2(i)Based on that report, the Sub Inspector of Police, II Town P.S.,

Vizianagaram(LW.24) altered the section of Law to 304-B IPC from section 498-A of IPC and sections 3 and 4 of Dowry Prohibition Act and issued altered Express

FIR at 18.00 hours on 22.12.2016 and submitted original to the AJFCM court,

Vizianagaram and supplied one copy of FIR to the defacto complainant.

2(j)The Sub Divisional Police Officer, Vizianagaram(LW25) took up investigation and sent a letter to Tahsildar, Vizianagaram to conduct inquest over the dead body of deceased. Accordingly, K.Srinivasa Rao, Mandal Tahsildar,

Vizianagaram(LW22) conducted inquest in the presence of Anthakapalli

Samudram, Thota Ramesh, Srikakulapu Venkata Ramana, Potnuru Ramesh, Manda

Nagamani (LWs13 to 17) and blood relatives of deceased and panchayatdars who, opined about the cause of death of deceased and drafted inquest report and sent the dead body through W.P.C., 2030 to Medical Officer, District Head Quarters

Hospital, Vizianagaram for postmortem examination and report.

2(k)The Sub Divisional Police Officer, Vizianagaram (LW25) examined the witnesses L.W.1 and L.Ws.6 to 11 i.e., Thammana Kanakaratnam, Bammidi

Ramaswamy, Kulukuri Nagamani, Thammana Satyanarayana, Udatha Pydiraju,

Mummudivarapu Kameswararao, and Amara Ramanamurthy, and recorded their detailed statements.

10 2(l) On 24.12.2016 the Sub Divisional Police Officer, Vizianagaram, arrested A.1 and A.2 at YSR Nagar Junction, Vizianagaram and produced the accused before the AJFCM , Vizianagaram and sent them for judicial remand. He got recorded the 164 Cr.P.C., statements of LWs.2,3,4, and 6 viz., Bammidi

Rama, Bammidi Lalitha, Sabbavarapu Nagakumar, and Bammidi Ramaswamy, through the then Judicial Magistrate of I Class, Gajapatinagaram(LW21).

2(m)Dr.G. Bhagyalaxmi, and Dr.R.Sasidhar, Civil Assistant

Surgeons, District Head Quarters Hospital, Vizianagaram (LWs 18 and 19), conducted postmortem examination over the dead body of deceased and issued certificate wherein they opined that the cause of death is due to hypovolemix shock due to antimortem burns. The then Judicial Magistrate of I Class, Special

Mobile Court, Vizianagaram (LW20) recorded the dying declaration of deceased on 22.12.2016.

2(n)After completion of the investigation, the Sub Divisional Police

Officer, Vizianagaram, filed a charge sheet against the accused since the investigation goes to show that the accused have committed the offence under sections 498-A, 304-B IPC and sections 3 and 4 of D.P. Act.

3The case was taken on file of the offences punishable under sections 498-A and 304-B IPC of the Indian Penal Code and under sections 3 and 4 of

Dowry Prohibition Act against accused by the Additional Judicial Magistrate of First

Class, Vizianagaram, and numbered it as P.R.CNo.18/2017. Copies of documents were supplied to the accused under section 207 of Cr.P.C.

4.The said P.R.C.No.18/2017 was committed to the Court of Sessions,

Sessions Division, Vizianagaram since the offence is punishable under section 304-

B of IPC exclusively triable by the Court of Sessions under section 209 Cr.P.C.,

5.The case was made over to this Court for trial by the Principal

District Court, Vizianagaram and the same was received on 14.12.2017.

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6.After appearance of both accused, Charges under sections 498-A, 304-B of IPC and under sections 3 and 4 of Dowry Prohibition Act against accused were framed. The Charges were read over to the accused and explained to them in Telugu and they pleaded not guilty and they claimed to be tried.

7.During the course of trial, out of 25 witnesses listed in the charge sheet,, the prosecution examined P.Ws 1 to 15 and P.W.17. As per orders in

Crl.M.P.No. 728/2019, dated 2.1.2020 additional witness viz.,G.Sowjanya Devi,

CAS, Garbham, P.H.C., Vizianagaram District was examined as P.W.16 and Exs.P.1 to P.29 and M.Os.1 to M.O.3 are marked.

8. The evidence of Bammidi Rama, Patnana Manga, Bammidi

Ramaswamy, Kulukuri Nagamani, Udatha Pydiraju, Thota Ramesh, Srikakulapu

Venkata Ramana, Manda Nagamani and Dr. R. Sasidhar, (LW2, L.W.5, L.W.6,

L.W.7, L.W.9, L.W.14, L.W.15, L.W.17, L.W.19) were given up by the learned

Additional Public Prosecutor and their evidence is closed on different dates i.e., on

3.12.2019, 5.12.2019, 10.12.2019 11,12,2019, 12.12.2019, 17.12.2019 respectively.

9After closure of prosecution side evidence, accused were examined under section 313 Cr.P.C, explaining incriminating material appearing against them in the evidence of prosecution witnesses. The case of accused is one of total denial and that they stated to have no defence.

10 Heard arguments advanced by Additional Public Prosecutor and learned counsel for the accused filed written arguments.

11. Now the point for determination is,

"Whether the prosecution could bring home the guilt of A.1 and

A.2 for the offence under sections 498-A, 306, 304-B IPC and

Sections 3 and 4 of Dowry Prohibition Act, beyond all

reasonable doubt?

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Learned Additional Public Prosecutor argued that the case of prosecution is that A.1 married the daughter of P.W.1(deceased Pentapati

Ramanamma @ Ravali) on 17.2.2016 as per Hindu rites and customs in the presence of elders. At the time of marriage PW1 presented gold worth of

Rs.1,00,000/- and net cash of Rs.1,05,000/- to A.1 and his mother(A2) towards dowry. After the marriage, A.1 and his wife (deceased) lived happily for a period of one month at the house of accused which is situated at YSR colony in

Vizianagaram. Subsequently both the accused started to demand the daughter of

PW1 (deceased) to bring additional dowry of Rs.10,000/- and one motor bike and it was informed to P.W.1 by her daughter. Then P.W.1 expressed her inability to provide the same immediately to the accused.

11(a)The case of prosecution is that during the month of November, 2016, A.1 left his wife at the house of P.W1, at that time he told that unless she brings additional dowry of Rs.10,000/- and bike, the daughter of PW1 will not be allowed into the house. After one month, P.W.1 requested A.1 to take his daughter to his house by phone but he did not respond for the same. On 10.12.2016 PW1 along with her eldest daughter, deceased and third daughter and her husband by name Narayanaswamy went to the house of A.1 at Vizianagaram, by that time, both the accused were not present in the house and they locked the house in view of their visit to their house, which was informed to them in advance by P.W.1. Then, they stayed in front of the house of accused i.e., opposite house which belongs to one Uma, but A.1 and A.2 were not turned up till 10 p.m., on that day. Then, P.W.1 along with her daughters, son-in-law left Vizianagaram and went to her house in Poodimadaka village.

11(b)The case of prosecution is that on 21.12.2016 again P.W.1 along with her brother Pydiraju, M.Kameswararao(PW5) and deceased went to A.1’s house and at that time both accused demanded for dowry and bike which was not 13 fulfilled by them but they refused to accept P.W.1’s daughter to their home and on that P.W.1 and others who came along with P.W.1 convinced A.1 and A.2 and told them that their demands will be fulfilled during the festival of Sankranti and they left the deceased in the house of A.1.

11(c)The case of prosecution is that, A.1 and A.2 harassed the daughter of

P.W.1(deceased) for not fulfilling the demands by P.W.1 and they harassed

P.W.1’s daughter throughout the night of 21.12.2016 and she was also beaten by them and this was informed to PW1 by her daughter (deceased) through phone on the next day morning early hours.

11(d)The case of prosecution is that they received a telephonic message from one Uma who is residing opposite to the house of A.1 and A.2 and informed that the daughter of PW1 (deceased) was burnt, then immediately she along with her son came to Government Hospital and saw that her daughter was totally burnt and she was able to talk and she was informed the harassment faced by her in the hands of accused and herself burnt as she was unable to bear the harassment of accused towards her and she disgusted and A.1 and A.2 are responsible for taking such extreme step to end her life. Even at that time also A.2 questioned the acts of P.W.1’s daughter(deceased) for taking to end her life in her house by her daughter. P.W.1’s daughter died on that day at 4 p.m. Then P.W1 gave a report to the police under Ex.P.1̣ 11(e)The learned Addl.P.P., argued that to prove the case of prosecution it examined P.Ws.1 to 17 and Exs.P.1 to P.29 and M.Os.1 to 3 are marked. He further argued that the mother of deceased i.e., P.W.1 supported the version of prosecution so also P.W.2 to P.W.17 corroborated with each other. The dying declaration of PW.1’s daughter (deceased) clearly shows that the harassment faced by her at the house of accused and her condition was observed by 14 neighbours soon before her death and their evidence supported the case of prosecution.

11(f)To support the contentions raised by the prosecution, the learned

Addl.P.P., relied on the following case laws :-

(1) In Chirra Shivaj Vs. State of Andhra Pradesh reported in 2011(1)

ALD (Crl.) 428 (SC)wherein it is held that:

“If dying declaration is trustworthy and if it can be shown that the person making the statement was not influenced by any exterior factor and made the statement which was duly recorded, it can be made basis for conviction. In the instant case, immediately after the incident, the deceased was taken to the Government Hospital,

Nizamabad and upon getting information with regard to the offence, the ASI had rushed to the Government Hospital, Nizamabad and the deceased had made her statement before him and thereafter she had made her dying declaration before a judicial officer around 8 p.m. The said statement was scrupulously recorded by the Judicial

Officer who had found the deceased to be conscious and fit to make statement. Very recently, this Court had examined whether a dying declaration can be the sole basis for conviction. After examining several judgments on the subject, this Court had observed in Puran

Chand Vs. State of Haryana, 2010 (6) SCC 566, as under:

"15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross- examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.........

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18. The law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubt can be the sole basis for convicting the accused. ......... ................"

(2) In Pawan Kumar & Others Vs. State of Haryana reported in

1998(1) ALD (Crl.) 386 (SC) wherein it it is held that, “ For more than a century, inspite of tall words of respect for women, there has been an onslaught on their liberties through `bride burning' and `dowry deaths'. This has caused anxiety to the legislators, judiciary and law enforcing agencies, who have attempted to resurrect them from this social choke. There have been series of legislations in this regard, without much effect. This led to the passing of Dowry Prohibition Act in 1961. Inspite of this, large number of `brides burning' and dowry deaths continued. To meet this, stringent measures were brought in the Indian Penal Code and the Evidence Act through amendments. It seems, sections of society are still boldly pursuing this chronic action to fulfil their greedy desire. Inspite of stringent legislations, such persons are still indulging in these unlawful activities, not because of any shortcomings in law but under the protective principle of criminal jurisprudence of benefit of doubt. Often, innocent persons are also trapped or brought in with ulterior motives. This places an arduous duty on the Court to separate such individuals from the offenders.

Hence the Courts have to deal such cases with circumvention, sift through the evidence with caution, scrutinise the circumstances with utmost care”.

It is further observed that,

In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence.

That could be either direct of indirect. It is significant that Section 4 of the 1961 Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word `agreement' referred to in Section 2 has to be inferred on the facts and circumstances of each case.

The Interpretation that the appellant seeks, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4 - Penalty for demanding dowry, under 16 the 1961 Act and the Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. This leads to the inference, when persistent demands for TV and scooter are made from the bride after marriage or from her parents, it would constitute to be in connection with the marriage and it would be a case of demand of dowry within the meaning of Section 304-B IPC. It is not always necessary that there be any agreement for dowry.

In our considered opinion, cruelty nor harassment need not be physical. Even mental torture in a given case would be a case of cruelty and harassment within the meaning of Section 304-B and 498-A IPC.

Explanation (a) to Section 498-A itself refers to both mental and physical cruelty. In view of Explanation (a) the argument is, before it constitutes to be a cruelty there has to be wilful conduct. Again wilful conduct means, conduct wilfully done may be inferred by direct or indirect evidence which could be construed to be such. We find, in the present case, on account of not satisfying the demand of the aforesaid goods, right from the next day, she was repeatedly taunted, maltreated and mentally tortured by calling her ugly etc. A girl dreams of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for any bride. There was a quarrel a day before her death. This by itself, in our considered opinion, would constitute to be a wilful act to be a cruelty both within the meaning of Section 498-A and Section 304-B IPC .

It is further observed that,

A faint submission was also made that it would not be a case of abetment of suicide under Section 306 IPC. Reference to Section 107 IPC was also made where abetment should fall under any of the three heads.

Reliance is placed on the first head. We find that the first head provides "instigates any person to do that thing". There is no doubt in the present case there is repeated demand from the husband's side from the girl and her parents for the various articles as aforesaid and on failure, the girl was tortured, harassed by words and deeds, amounting to cruelty. As we have held above and one day before the fateful day, the husband saturated the mental agony and cruelty by quarrelling with the wife (deceased) even at her sister's place, leaving no option which led the deceased to commit 17 suicide. This mental state is further clear by the following words which she spoke to her sister, "it would be difficult now to see her face in the future".

In our opinion all this would constitute to be an act which would be an abetment for the commission of the suicide by the girl.

11(g)The learned Additional Public prosecutor further argued that the marriage of daughter of PW1 (deceased) took place with A.1 on 17.2.2016 and within a year A.1’s wife died due to unbearable harassment by A.1 and A.2 and it was stated by the daughter of PW1 in her statement before P.W.14 at first instance and later before P.W.11 who recorded the Dying Declaration of daughter of

PW1(deceased). Hence, the ingredients of charge under section 304-B IPC is proved against the accused by the prosecution.

11(h)The learned Additional Public prosecutor further argued that the contentions raised by accused cannot be looked into since it is a dowry death case and P.W.1’s daughter i.e., deceased was found with burn injuries and she was admitted by A.1 in an ambulance to the Government Hospital. P.W.1, her son (PW3) and PW5 who is an independent witness visited the house of A.1 and A.2 along with

PW1 and PW1’s daughter (deceased) on the previous date of incident and at that time he also convinced the accused Nos.1 and 2 to fulfil the demand made by both accused by PW1 during the Sankranti festival. All the witnesses corroborated with each other in all aspects and the prosecution has established the charges levelled against A.1 and A.2 for the offence under sections 498-A, 306, 304-B IPC and

Sections 3 and 4 of Dowry Prohibition Act, thereby A.1 and A.2 are liable for punishment for the charges levelled against them. Learned Addl.P.P., requests the Court to punish the accused.

12The contentions raised by counsel for accused are as follows :

18

The learned counsel for A.1 and A.2 filed written arguments and argued that there is no evidence placed by the prosecution with regard to the presentation of gold articles worth of Rs.1,00,000/- and cash of Rs.1,05,000./- to the accused at the time of marriage of deceased with A.1. The said articles were presented by

P.W.1 but not on demand. P.W.1 has no capacity to fulfill such demands in view of her financial capacity. She has no financial capacity to fulfill the presentations as stated by her in view of her income status which was elicited through her cross examination.

12(a)The contention of counsel for accused 1 and 2 is that there is no corroboration between the prosecution witnesses with regard to period of stay by the daughter of PW1 (deceased) at the house of accused after marriage. The prosecution failed to cite the third daughter of PW1 and her son-in-law as witnesses, so also one Uma in whose house PW1 and others stayed till 10 p.m., on the date of 10.12.2016 when they visited the house of accused.

12(b)The contention of counsel for accused 1 and 2 is that one Pydiraju also visited along with PW1 who is her brother but he was not examined by the prosecution. The omissions which are recorded in the evidence of P.Ws.1 to 5 clearly shows that the demand of additional dowry and bike are created for the purpose of case against the accused.

12(c)The contention of counsel for accused 1 and 2 is that P.W.2 and

P.W.4 who are independent witnesses did not inform to the police or to PW1 about weeping of wife of A1 (deceased) on the fateful day. Further, P.W.3 did not make any efforts to make the complaint against A.1 to the police but he left his sister (deceased) in their house when the demands made by A.1. No panchayats were held by the elders and long stay of PW1’s daughter in her house clearly shows that there is a doubt thrown on the version of prosecution.

19 12(d)The contention of Accused 1 and 2 is that P.W.14 who recorded the statement of deceased not mentioned the time in Ex.P.19 but by the time he recorded the statement, treatment was already given to the victim. P.W.14 not placed any record with regard to the entrustment of duty at outpost on that day.

12(e)The contention of accused 1 and 2 is that the oral evidence of

P.Ws.14 and P.W.15 run contra with regard to the origin of Ex.P.18 coupled with

Ex.P.19. There is abnormal delay in sending the First Information Report to the

Court on that day which clearly shows that the statement is prepared with due and deliberate consultations of the relatives of the victim and admittedly P.W.1 and 3 visited the hospital around 11 a.m., on that day. Thus, the possibility of brought into existence of Ex.P.19 cannot be ruled out.

12(f)The contention of accused is that if Ex.P.19 recorded by P.W.14 and Ex.P.15 recorded by P.W.11 are compared, it goes that without saying that

Ex.P.19 is brought into existence after due and deliberate consultations and it contains even the minute details from the point of marriage, dowry, harassment, which is almost all resembling the version of P.W.1 and P.W.3 i.e., mother and brother of deceased.

12(g)The contention of Accused 1 and 2 is that the doctor who was examined by the prosecution clearly deposed that the case sheet was not placed in her evidence.

12(h) The counsel for accused further argued that while recording the dying declaration under section 33 of Criminal Rules of Practice, it is mandatory, that while recording dying declaration to keep in view the purpose of recording statement to know the cause of death or circumstances of transaction which resulted in death of the deceased and thus eliciting cause of death is mandatory. As per evidence of P.w.11, she admitted that in Ex.P.15 it is not specifically mentioned about the cause of receipt of burn injuries. Thus, Ex.P.15 is not helpful to the case of 20 prosecution and the said principle is upheld by the Lordships in 2011(1) ALD Criminal 7722.

12(i) The learned counsel for accused 1 and 2 further argued that the certification of the doctor with regard to the conscious and coherence of the declarant is not only doubtful by virtue of the above mentioned circumstances, but also it is doubtful whether the declarant is in a position to speak out by virtue of the burn injuries caused to her. On this aspect the evidence of P.W.15-Sub Inspector of

Police who admitted during the course of cross examination that he went to the hospital at 9.45 a.m., on that day and except the head portion the remaining part of deceased was burnt and in those circumstances how can be thumb impression is obtained on Ex.P.19.

12(j)The counsel for accused 1 and 2 further argued that as per recitals of Ex.P.13 i.e., postmortem certificate the declarant sustained 87% burn injuries and to assess the percentage of burns the principle i.e., Rule 9 will be applied and for ready reference Rule 9 is extracted hereunder:

The estimation of surface area of the body involved is usually worked out by Rule Nine “9% for the head and each upper limb, 9% for the front of each lower limb, 9% for the front of chest, 9% for the back of chest, 9& for the front of the abdomen and 9% for the back of abdomen, i.e., 99% of the body, the remaining 1% is for the external genitalia.

12(k)The counsel for accused 1 and 2 further argued that when the postmortem doctor (PW10) cross examined on this aspect she admitted that

Rule of 9 and further deposed that they will mention the above things in the case sheet of deceased and as part of upper limb and part of lower limb were not burnt and on that percentage of them were not calculated which clearly establishes that 9% given to the head is completely burnt and as such the lip movement will be restricted and further as when the injury No.4 under Ex.P.16-inquest report when the lower lip is completely burnt the possibility of speaking can be ruled out and in 21 the other words there is no possibility to speak out. Thus making statement by the declarant is very much doubtful.

12(l)The learned counsel for accused argued that Ex.P.19 is an elaborative statement whereas Ex.P.15 Dying declaration recorded by Magistrate is cyprtic. If those documents compared it goes without saying that Ex.P.19 is brought into existence after due deliberations and consultations since it resemblances the version of P.Ws.1 and 3.

12(m)The learned counsel for accused further argued that prosecution failed to establish the charge under section 304-B IPC and in those circumstances when no evidence suggest demand for dowry at any stage by the accused the charge under section 3 and 4 of Dowry Prohibition Act, is unsustainable.

12(n)The learned counsel for accused further argued that as per the evidence of P.W.12, he conducted inquest proceedings, he examined the blood relatives and also the panchayatdars and recorded their statements but the said statements were not seen in the light of the Court and they were intentionally suppressed by prosecution since the statements before P.W.12 will not support the case of prosecution.

12(o) To support the contentions raised by the accused, the counsel

for the accused relied on the following case laws are:.

(1) Mummidi Udaya Bhaskar Vs State of A.P., in Criminal Appeal

No.125 of 2001 dt.6.11.2003, (2) Sampat Babso Kale @ Another Vs. State of Maharashtra

reported in SAR (Criminal) 626 Supreme Court,

(3) Vadde Pallepu Sekhar Vs. State of Andhra Pradesh reported in 2011(2) ALD (Crl.) 396 (A.P.), (4) Devinder @ Kala Ram and others Vs. State of Harayana (Supreme Court) reported in 2013(1) ALD (Crl.) 452 (SC) 22 (5) P.T.M. Marappa and another Vs. State of Andhra Pradesh (A.P.

High Court) reported in 2011 (1) ALD (Crl) 772 (A.P.)

(6) Bejjainki Kishan Vs. State of A.P., reported in 2005(2) ALD

(Crl.) 185 (A.P.) (7) Nandikanuma Lakshmamma and another Vs. State of Andhra

Pradesh reported in 2008(1) ALD (Crl.) 532 (A.P.),

(8) In Bajjinath and others Vs. State of Madhya Pradesh reported

in 2017 SAR (Criminal) 440.

12(p) The leaned counsel for accused 1 and 2 further argued that the prosecution has failed to prove the charges levelled against the accused. Hence, they are entitled for acquittal for the charges under sections 498-A, 306, 304-B IPC and Sections 3 and 4 of Dowry

Prohibition Act.

13Before going to discuss the evidence available on record the court reads the following Sections :

Section 498-A of IPC: Husband or relative of husband of a woman subjecting her to cruelty — Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

306. Abetment of suicide. —If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 3 of Dowry Prohibition Act: Penalty for giving or taking dowry. If any person gives or takes or abets the giving or taking of dowry …..

Section 4 of Dowry Prohibition Act: If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, …..

23 13(a)The Court further reads the principles laid down in the above citations which are relied by the counsel for accused are as follows :

(1) In Mummidi Udaya Bhaskar Vs State of A.P., in Criminal Appeal

No.125 of 2001 dt.6.11.2003, wherein it is held that,

As per the definition of ‘dowry death’ in Section 304B, IPC and the wording in the presumptive Section 113-B in the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand of dowry”. Presumption under Section11B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the

Court to raise a presumption that the accused caused the dowry death.

The presumption shall be raised only on proof of the following essentials:

(1) The question before, the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B, IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives.

(3) Such cruelty or harassment was for, or in connection with, any demand for dowry.(4) Such cruelty or harassment was soon before her death.

5. A conjoint reading of Section 113B of the Evidence Act and Section 304-B, IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances.’ The expression ‘soon before’ is very relevant where Section 113-B of the Evidence Act and Section 304B, IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. ‘Soon before‘ is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what constitute a period of soon before the occurrence. It would be 24 hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence

Act. The expression ‘soon before her death’ used in the substantive

Section 304B, IPC and Section 1130B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression ‘soon before’ is not defined. A reference to expression ‘soon

before’ used in Section 113, Illustration (a) of the Evidence Act is

relevant. It lays down that a Court may presume that a man who is in the possession of goods ‘soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession.’ The determination of the period which can come within the term ‘soon before’ is left to be determined by the Court, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. If the death occurred independent on demand of dowry it cannot be termed as dowry death.

(2) In Sampat Babso Kale @ Another Vs. State of Maharashtra reported in SAR (Criminal) 626 Supreme Court, wherein it is observed the case of Sham Shankar Kankaria v. State of

Maharashtra, wherein it is held as follows:

“. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross examination. Such a power is essential for eliciting the truth as an obligation of oath could be.

This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and 25 voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence………….”.

(3) In Vadde Pallepu Sekhar Vs. State of Andhra Pradesh reported in 2011(2) ALD (Crl.) 396 (A.P.), wherein it is observed the case law, In Khushal Rao Vs. State of

Bombay, AIR 1958 SC 22 wherein at para 16, it is held that, “On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be

judged in the light of surrounding circumstances and with

reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent

magistrate in the proper manner, that is to say, in the form of

questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts 26 stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

(4) In Devinder @ Kala Ram and others Vs. State of Harayana

(Supreme Court) reported in 2013(1) ALD (Crl.) 452 (SC) wherein it is observed that, 304B. Dowry death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.

Explanation.-For the purpose of this sub-section, 'dowry' shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extent to imprisonment for life.' '113B. Presumption as to dowry death.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation.-For the purposes of this section, 'dowry death' shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).'

9. On a plain reading of Section 304B of the IPC, it is clear that where the death of a woman is caused by any burns or bodily injury within 27 seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such husband shall be deemed to have caused dowry death.

Thus, where death of a woman has been caused by burns as in the present case, the prosecution has to show: (i) that such death has taken place within seven years of her marriage and (ii) that soon

before her death she has been subjected to cruelty or harassment by

her husband or any relative of her husband for, or in connection with, any demand for dowry. Once these two facts are established by the prosecution, the husband or the relative shall be 'deemed' to have caused the dowry death of the woman. The word 'deemed' in Section 304B, IPC, however, does not create a legal fiction but creates a presumption that the husband or relative of the husband has caused dowry death.

10. Section 113B of the Indian Evidence Act, 1872 also provides that once it is shown that soon before her death a woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court 'shall presume' that such person had caused the dowry death. The expression 'shall presume' has been defined in Section 4 of the Indian Evidence Act, 1872, relevant part of which is extracted hereinbelow:

'’Shall presume’.-Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.'

Thus, Section 113B read with Section 4 of the Indian Evidence Act, 1872 would mean that unless and until it is proved otherwise, the Court shall hold that a person has caused dowry death of a woman if it is established before the Court that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry.

11. Section 3 of the Indian Evidence Act, 1872 states that unless a contrary intention appears from the context, the word 'disproved' would mean a fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, 28 under the circumstances of the particular case, to act upon the supposition that it does not exit. Thus, if after considering the matters

before it, the Court believes that the husband or the relative of the

husband has not caused dowry death, the Court cannot convict such person or husband for dowry death under Section 304B of the IPC.

Section 304B, IPC, and Section 113B of the Indian Evidence Act, 1872, in other words, only provide what the Court shall presume if the ingredients of the provisions are satisfied, but if the evidence in any case is such that the presumptions stand rebutted, the Court cannot hold that the accused was guilty and was punishable for dowry death.

(5) In P.T.M. Marappa and another Vs. State of Andhra Pradesh (A.P. High Court) reported in 2011 (1) ALD (Crl) 772 (A.P.) wherein it is observed that, “It is mandatory that while recording a D.D, the Magistrate shall keep in view the purpose of recording of the statementee to know cause of the death or the circumstances of the transaction which resulted in death”

(6) In Bejjainki Kishan Vs. State of A.P., reported in 2005(2) ALD

(Crl.) 185 (A.P.) wherein it is held that,

The ingredients of Section 304-B of I.P.C. are-- (1) the death should be unnatural.

(2) it should be within 7 years of the marriage, and (3) there should be harassment or cruelty by husband or his relatives for or in connection with any demand of dowry.

If all these three ingredients are proved by the prosecution, then the onus would be on the accused to show that he was not guilty. But if any of the ingredients of Section 304-B, I.P.C. was not satisfied, then the conviction under Section 304-B, I.P.C. cannot be sustained” (7) In Nandikanuma Lakshmamma and another Vs. State of

AndhraPradesh reported in 2008(1) ALD (Crl.) 532 (A.P.), wherein it is observed the case that, 29 “ In STATE OF GOA v. SANJAY THAKRAN (2007(2) ALD (CRL.) 949 (SC)), the Supreme Court enunciated the principles that govern the theory of ‘last seen together’ and the circumstances under which, it can constitute the basis for convicting the accused. Several decided cases were preferred to and ultimately, it was observed that if there is a considerable gap between the point at which the deceased and the accused were last seen together and the occurrence of incident, the

Courts must be careful in applying the theory.

It is further held that,

Motive is another circumstance, which assumes significance in the matters of this nature. The mere fact that two persons were last seen together and one of them was found dead, cannot by itself lead to an inference that the other person must have committed the murder of his companion. The prosecution must suggest some motive. Though motive cannot be proved with mathematical precision, in a given case, to connect the accused with the offence, motive, as such, must be pleaded to the satisfaction of the Court. Where no direct evidence exists and the case proceeds on the circumstantial evidence, the necessity becomes more acute.

(8) In Bajjinath and others Vs. State of Madhya Pradesh reported

in 2017 SAR (Criminal) 440, wherein it is observed that, “This Court while often dwelling on the scope and purport of Section 304Bof the Code and Section 113Bof the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304Bas in Shindo Alias Sawinder Kaur and another Vs. State of Punjab – (2011) 11 SCC 517 and echoed in Rajeev Kumar Vs. State of Haryana – (2013) 16 SCC 640. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304Bof the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113Bof the Act. It referred to with approval, the earlier 30 decision of this Court in K. Prema S. Rao Vs. Yadla Srinivasa Rao – (2003) 1 SCC 217 to the effect that to attract the provision of Section 304Bof the Code, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand for dowry”.

14The evidence available on record is discussed as

follows :

P.W.14-L.Manmadharao ASI, Vizianagaram I Town PS deposed that he worked as ASI, L.Kota PS during the relevant period i.e., from June, 2014 to June, 2019.

His version is that at that time he worked and attached to Maharaja hospital, Vizianagaram OP police station from 15.12.2016 to 30.12.2016 and on 22.12.2016 while he was on duty at emergency in Maharaja hospital, Vizianagaram

Op police station he recorded the statement of Pentapati Ramanamma (deceased) since he received intimation i.e.,Ex.P18 from the hospital. He identified the contents of intimation letter, dt.22.12.2016 so also he the contents of statement of daughter of Pw1 (deceased) i.e.,Ex.P19 when they were confronted to him by

Addl. P.P., during his evidence. P.W.14 further deposed that the doctor also endorsed about the state of mind of deceased while he recording the statement of her. The daughter of Pw1 also affixed her thumb impression on Ex.P.19. He identified his signature on Ex.P.19.

The contents of Exs.P.18 and Ex.P.19 are self explanatory in nature.

The contents of Ex.P.19 further discloses that, “the daughter of PW1 married A.1 and after the marriage she lived with him for one month happily. Later A.1 dropped his wife at his in-laws house and demanded her to bring additional dowry, when she wants to come to live 31 with him. It further discloses that the admissions made by P.W.1 to drop the wife of A.1 at the house of accused on two occasions and lastly dropped her daughter at the house of accused and the ill treatment and harassment faced by deceased at the house of accused and later she took the extreme step of taking away her life to an end by litting fire to her nighty and after some time her husband(A1) tried to put off the fire and when her neighbours made a phone call to 108 Ambulance came and she was admitted in

Maharaja Hospital for treatment”.

14(a) In cross examination of P.W.14, he stated that there is availability of office record about his duty posting at outpost of Maharaja hospital,

Vizianagaram. Said record also available by way of GD entry of L.Kota PS so also at outpost of Maharaja hospital, Vizianagaram. There is no specific mention of time under Ex.P.19 about the recording the statement of daughter of Pw1. Ex.P.18 does not contain when it was received by outpost of Maharaja hospital, Vizianagaram.

He has gone through the contents of Ex.P.18. It is also recorded in outpost record.

As per Ex.P.18 A1 brought his wife to the hospital in 108 ambulance. He recorded the statement of Pw1’s daughter (deceased) while she was in casualty of Maharaja hospital , Vizianagaram.

14(b)It is also elicited in his cross examination that there are three wards in that hospital i.e., casualty, emergency and Burns ward. As per column

No.6 of Ex.P.18 the injured was admitted in burns ward. After recording the statement of deceased he immediately intimated to II Town PS and they came on 9.30 am to the hospital.

14(c)P.W.14 denied the suggestions in his cross examination that he was not posted on that day at out post at Maharaja hospital,

Vizianagaram and that he has not received any intimation from the hospital and that he never recorded the statement of P.Ramanamma as stated by him and he is deposing false at the instance of police.

32 15P.W.15-S.Ravi, Sub Inspector of police, Budarayavalasa

Police Station deposed that previously he worked as SI of police, II Town PS,

Vizianagaram during the relevant period i.e., from March, 2016 to April, 2017.

15(a)His version is that on 22.12.2016 at 9.30 am PW14 came to police station and handed over medical intimation under Ex.P.18 along with statement of injured by name P.Ramanamma (deceased) under Ex.P.19, based on that, he registered a case in Cr.No.199/2016 U/sec.498-A of IPC and sections 3 & 4 of Dowry Prohibition Act and issued FIR i.e., Ex.P.20 and sent copies of it to all concerned.

The contents of Ex.P.20 are self explanatory in nature.

15(b)His version is that immediately he went to the Maharaja hospital , Vizianagaram and recorded the statement of P.Ramanamma(deceased) under section 161 Cr.P.C., and addressed a letter to the then MRO to provide mediators for purpose of scene observation, and he proceeded to scene of offence i.e., House bearing No.28/47 in YSR Nagar Colony, Vizianagaram, there he secured four witnesses by name Bammiddi Rama @ Uma, Bammidi Lalitha (Pw2),

Sabbavaram Nagakumar (Pw4) and Patnana Manga and recorded their statements.

16On that aspect, P.W.2- Bammidi Lalitha deposed that her husband is B.Ramaswamy and she is resided at Kamma veedhi, Vizianagaram since two months. She knows P.W.1, accused in this case and wife of A1.

Previously she resided at YSR Nagar, Vizianagaram from 2014 to 2016 and her house is situated adjacent to the house of accused in YSR Nagar at that time.

After five or six months they lived at YSR Nagar the marriage of A1 took place with the daughter of PW1. She does not know the occupation of A.1. She does not know how many days A1 lived with his wife happily. She added that A.1’s wife is innocent and whenever she saw her she was weeping. She never heard whether any disputes arose between A1 and his wife.

33 16(a)Her further version is that on the date of death of A1’s wife at morning hours when she went to upstairs of her house for drying cloths she saw the wife of -A.1 (deceased) and she talked with her and noticed that she was weeping and she told her don’t weep and tried to go to inside of the house, after ten minutes she heard the sounds of burning of A.1’s wife and she and all neighbours gathered there and they all tried to wrap the cloths to put off the fire on the wife of A.1. They called 108 ambulance and it came to the house of accused.

16(b)Her version is that the wife of A1 (deceased) used to express that she was harassed by her mother-in-law (A2) for dowry and disputes were arose between them. She does not know whether Pw1 or her family members dropped A.1’s wife at the house of accused or A1 took his wife and left her at

PW.1’s house. She turned hostile to the prosecution case.

16(c)P.W.2 denied the contents of Ex.P.2 stated before police i.e., two portions of 161 Cr.P.C., statement recorded by police, she cannot say that A.2 is terror of YSR Nagar street when PW2 lived there. A.2 dragged her hand when she came to the court on the date of her evidence and A.2 requested

P.W.2 to think about her and her son’s future before giving evidence in this case.

PW2 denied the suggestion that in view of behaviour of A.2 with her on the date of her evidence she is deposing false.

The contents of Ex.P.2 are self explanatory in nature.

16(d)In cross examination, P.W.2 deposed that her husband is working as a sales man in an Electric shop. Her marriage took place in the year 2002. By the time they took a rented house in YSR Nagar accused were there.

She cannot say after how many months after they stayed in YSR Nagar A.1’s wife died. She never advised the daughter of Pw1(deceased) to inform the harassment faced by her either to elders or to Pw1. She did not enquire with A2 about the 34 harassment faced by A.2’s daughter in law. A1’s wife used to reveal her that she has no future and she used to weep and she never told her about dowry disputes etc. She came to the court after 10am. She added that she did not observe the timings when she came to the court. She denied the suggestions that since she was in police custody she is deposing false against the accused.

17PW.4-S.Nagakumardeposed that he is a resident of YSR Nagar, vizianagaram and he is working as a clerk in Market yard at Vizianagaram.

17(a)His version is that he knows Pw1 to 3 and accused. His house is situated opposite to the house of accused in YSR Nagar, Vizianagaram. He is residing at YSR Nagar since 10 years. The accused lived earlier opposite to his house for a period of one or two years. During that period A1 married the daughter of Pw1 and now they vacated the house after the incident. He knows that A1 married the daughter of Pw1 during the month of February, 2016. To his knowledge, A1 and his wife lived happily for a period of one month after their marriage. A.1’s wife not bring the amount as demanded by accused, on that she was left at the parents house by accused. On one occasion A.1’s wife was brought by Pw1, her son and another to the house of accused . At that time the accused were not there and they waited for accused till the next day morning but the accused did not turn up to their house. Pw1 and her son and deceased and another person were stayed in the house of Ramani who is neighbour to the house of accused. On the next day morning Pw1 along with her daughter and son and another person left the house. On that day at after noon hours accused returned to their house.

17(b)His version is that after seven days again on 21.12.2016 Pw1 along with her daughter and son came to the house of accused and they left Pw1’s daughter (deceased) in the house of accused and at that time they demanded for fulfillment of bike and money and on that Pw1 convinced that they will provide 35 the same during the festival of Sankranthi and they left the daughter of Pw1 into the house of accused. Pw1 and her son went to their house.

17(c)His version is that on that day while he returned to his house, he saw that Pw1’s daughter (deceased) was weeping and he asked his wife whether deceased was beaten by accused and on the next day morning he came to know through his wife and other ladies of their street that the accused harassed wife of A.1 throughout the night for not bringing the bike and amount and on that the deceased herself ablazed. Then he also went there and he called 108 ambulance and shifted A.1’s wife in ambulance to the hospital. The reason for death for deceased is that she did not bring additional dowry and also failed to provide bike to A.1. His statement was recorded by police.

17(d)In re-examination P.W.4 stated that his statement was recorded by the Magistrate on 21.03.2017. He identified the contents and his signature on said statement recorded by Magistrate when it was confronted to him by the Addl.PP., during his evidence.

17(e)It is elicited in the cross examination of P.W.4 that he is working at vegetable market yard, Vizianagaram. He added that the vegetables will come to market yard at early morning hours i.e, before 4.00 am. His presence is not required when the vegetables came to the market yard. He added that

Kalasis will be there to attend said work.

17(f)His cross examination reveals that the accused lived in YSR colony house for a period of one year after the marriage of A.1 with daughter of

P.w.1. He did not inform either to police or Pw1 about weeping of A.1’s wife. On the date of incident at 1.00 pm one constable came to him and enquired with him about his details only and he furnished the same to him. Earlier he stated the same what he deposed before the court on the date of his evidence before the

Magistrate, but he has not stated the same before the court. He admitted that he

36 stated before the Magistrate that A.1 and his wife lived happily for a period of five to six months after the marriage.

17(g)It is elicited in his cross examination that he did not state

before the Magistrate that the accused demanded for bike and money and P.w1

and others convinced the accused that they will be fulfilled during the festival of

Sankranthi. He did not state before the Magistrate that on that day while he returned to his house, he saw that Pw1’s daughter (deceased) was weeping and he asked his wife whether deceased was beaten by accused and she was weeping and on the next day morning he came to know through his wife and other ladies of their street that the accused harassed wife of A.1 throughout night for not bringing the bike and amount and on that she herself ablazed.

17(h) He denied the suggestion that he gave statement before

Magistrate at the instance of police but he is deposing false.

17(i)It appears that P.W.2 and P.W.4 supported the version of

P.W.15 with regard to their examination and recording of their statements by

P.W.15.

18The version of P.w.15-S.Ravi,the then SI of Police, II Town

PS, Vizianagaram, is that mediators viz., A.Samudram(PW8), Kota Baburao (PW7) came there and in their presence he observed the scene of offence and prepared scene observation report under Ex.P.12 and he seized burnt pieces of clothes-M.O.1, Burnt match sticks-M.O.2, red pieces of clay bangles-M.O.3, under cover of Ex.P.12. He and the said mediators subscribed their signatures on

Ex.P.12. He also drew rough sketch at the place of offence under Ex.P21. He also taken photographs with the help of photographer under Ex.P.3 to P11 at the place of offence.

The contents of Ex.P.12 and Ex.P.21 are self explanatory in nature.

37 18(a)On that aspect, PW7-K.Baburao, VRO, Vizianagaram MC

Bit-II deposed that on 22.12.2016 he was called by II Town police, Vizianagaram and on that he went to the house of accused bearing D.No.28-41, YSR colony,

Vizianagaram. At that time another VRO by name Samudram(PW8) was also present. They along with other police personal entered into the house accused, they found three room and kitchen. They observed the scene of offence i.e, bed room in that house burnt cloth pieces, match box with burnt sticks, bangle pieces in red colour (M.Os.1 to 3) and police seized the same under cover of scene observation report in their presence by the police. He identified the contents of scene observation report i.e., Ex.P2, his signature and signature of Samudram (VRO) on that report, dt.22.12.2016 when it was confronted to him by the learned

Additional Public prosecutor, during his evidence .

18(b)It is elicited in the cross examination of P.W.7 that he did not receive any written requisition from the police to act as a mediator for Ex.P.12 proceedings. There is no office record available that he acted as mediator and one constable scribed Ex.P.12 and he has not signed as a scribe on it.

18(c)P.W.7 denied the suggestions that MO.2 appears to be used and that either he or Samudram(PW8) not visited the house of accused on 22.12.2016 at any point of time and nothing was observed by them at the place of offence and nothing was seized under Ex.P.12 in their presence on that day and he is deposing false.

19P.W.6-A.Ramanamurthy, deposed that he is a resident of

Vizianagaram. He is a photographer. He knows the accused in this case. His house is situated away from the house of accused in YSR nagar, Vizianagaram.

19(a)His version is that on the directions of SI of police, II Town he took photographs at the house of accused. Immediately he went there. He identified the digital photographs under Ex.P.3 to P.11, which were taken by him 38 at the house of accused when they were confronted to him by the learned

Addl.P.P, during his evidence.

The contents of Exs.P.3 to 11 are self explanatory in nature.

19(b)In cross examination, PW6 deposed that he is also running a

Kirana shop and he has RC for the said shop. Ex.P.3 to P.11 does not contain on which day they were photographed. There is no office seal of their shop to show that he photographed them. He denied the suggestions that he did not take any photographs at the house of accused as stated by him and he is deposing false.

20It appears, that P.Ws.7 and 6 supported the version of P.W.15 with regard to seizure of M.Os.1 to 3 under the cover of Ex.P.12-scene observation report at the house of accused and taken photographs at the scene of offence.

21The version of P.W.15-S.Ravi, SI of Police, is that on receipt of written report under Ex.P.1 by Pw1-mother of deceased at 18.00 hours, based on that he altered the section of Law and he added section 304 (B) IPC apart from 498-A and Sections 3 and 4 of Dowry Prohibition Act and he filed alteration memo under Ex.P.22, dated 22.12.2016 before the concerned court. Later, he hand over case filed to DSP for further investigation. On the instructions received from DSP, through telephone, he sent a requisition to MRO to conduct inquest over the dead body of deceased. Ex.P.23 is altered FIR.

The contents of Exs.P.22 and Ex.P.23 are self explanatory in nature.

21(a)It is elicited in the cross examination of P.W.15 that one can reach within 15 minutes from II Town Police station to AJFCM, Vizianagaram if no traffic is there or otherwise it will take 45 minutes to reach the court from II Town

PS. There is no seal or stamp of II Town PS, Vizianagaram on Ex.P.18 to show that it is received from Pw14. The time of dispatch of Ex.P.18 is kept blank. He went to the hospital 9.45 am on that day. Except head portion the remaining part of 39 deceased was burnt. A1 brought his wife (deceased) to the hospital first. It appears that A1 was also shown as accused as per Ex.P.19. Till the receipt of report from mother of deceased i.e, Ex.P.1 he did not know the injured was died.

He hand over the statements recorded by him in this case to DSP immediately so also scene observation report and rough sketch. There is no specific mention under Ex.P.12 that he scribed it. He added that since he prepared it and he did not mention the same on Ex.P.12.

21(b)P.W.15 denied the suggestions that he did not go to scene of offence and nothing was observed and not seized anything there and not drawn rough sketch and not examined any person and all the documents were prepared in their Police Station to suit their case.

22P.W.17-A.V.Ramana, Deputy Superintendent of Police, GRP,

Visakhapatnamdeposed that he worked as SDPO, Vizianagaram during the relevant period i.e., from 14.12.2015 to 05.06.2018.

22(a)His version is that on 22.12.2016 at about 6.00 p.m., the Sub

Inspector of police, II Town PS informed him about registration of FIR in this case and alteration of FIR in this case. He further informed him that earlier he registered a case u/sec.498-A and Sections 3 and 4 of Dowry prohibition Act and after the death of wife of A1 he altered the case and added Section 304-B of IPC and issued altered FIR also. He received the said copies of FIRs at 6.30 pm to their office. Then he visited the place of offence along with SI of Police which is situated at YSR Nagar, Vizianagaram, I.e, house of accused. By that time he completed major portion of investigation in that case. He also verified the scene of offence and photographs of scene of offence and again he examined the witnesses who were examined by SI of police i.e., neighbours of the house of accused.

23On that aspect, PW.1-Thammana Kanakaratnam, is mother of deceased and she deposed that she is a resident of Poodimadaka village. She has 40 three daughters and one son. Her eldest daughter’s name is K.Nagamani. Her son’s name is T.Satyanarayana. Her second daughter’s name is Ramanamma (deceased) and her third daughter’s name is Jagadamba. Her husband died in the year 1990.

23(a)Her version is that she performed the marriage of her second daughter(deceased) with A1 on 17.02.2016. A2 is mother of you-A1. She presented gold worth of Rs.1,00,000/- and net cash of Rs.1,05,000/- to A1 and A2 through the elders at the time of marriage of her daughter with A1. After marriage

A1 took her daughter (deceased) to their house situated at YSR colony in vizianagaram town and lived happily for a period of one month. Subsequently accused started to demand her daughter to bring additional dowry of Rs.10,000/- and one motor bike and it was informed to her by her daughter. Then she expressed her inability to provide the same immediately to the accused.

23(b)Her version is that during the month of November, 2016, while

A.1 dropping her daughter in her house stated that unless her daughter brings the , additional dowry of Rs.10,000/- and bike, she will not be allowed to enter into their house. After one month she requested A1 to take her daughter to their house by phone but they did not respond for her request.

23(c)Her version is that on 10.12.2016 she along with her eldest daughter, second daughter (deceased) and third daughter and along with husband of her third daughter by name Narayanaswamy went to the house of A1 at

Vizianagaram and by that time A1 and A2 locked their house in view of their visit to their house which was informed in advance by them but they stayed in front of the house of you-accused I.e, opposite house belongs to one Uma, even though

A1 and A2 not turned up till 10 pm on that day and on that they left Vizianagaram and reached their house in Poodimadaka village.

41 23(d)Her version is that on 21.12.2016 again she along with her brother Paidiraju, N.Kameswararao, deceased went to A.1’s house and at that time -accused demanded for additional dowry and bike which were not fulfilled by them and refused to accept her daughter to their home and on that she and others who came along with her convinced A1 and A2 and told them that their demands will be fulfilled during the festival of Sankranthi and they left her daughter in the house of A.1.

23(e)Her further version is that her daughter (deceased) was harassed by A1 and A2 for not fulfilling their demands by her and the accused harassed her daughter(deceased) throughout the night of 21.12.2016 and also beaten by accused and this was informed to her by her daughter through phone on the next day morning early hours. Later, they received a telephonic message from one Uma who is residing opposite to the house of A1 and A2 informed that her daughter( deceased) was burnt. Then immediately she and her son came to the government hospital and found that her druthers (deceased) was totally burnt but able to talk and her daughter (deceased) was informed about the harassment faced by her in the hands of accused and herself burnt since she was unable to bear the harassment of accused and she was disgusted and A1 and A2 are responsible for her taking such extreme step to end her life. Even at that time also

A2 questioned acts of her daughter taking to end her life in her house by her daughter. Her daughter died on that day at 4 pm. In her presence police conducted inquest conducted over the dead body of her deceased daughter. She gave report to police and he identified the contents of report i.e.,Ex.P1 dated 22.12.2016 when it was confronted to her by the Additional Public Prosecutor, during her evidence.

The contents of Ex.P.1 are self explanatory in nature.

42 23(f)In cross examination, P.W.1 deposed that she performed the marriage of her eldest daughter in the year 1998. Her eldest son in law used to work in Finance company. In the year 2003 her third daughter's marriage was performed with Narayanaswamy and he is running a Tea stall. Her husband used to run a Tiffin center in Poodimadaka. They all depended on the income of said tiffin center. They used to run said tiffin center till 2011. her son did ITI and

Degree and got job in the year, 2011 at Duturu village and used to get salary of

Rs.10,000/- per month. They have own house at Poodimadaka. After thirteen years after the marriage of her third daughter she performed the marriage of her second daughter. The reason for the delay of her second daughter is she was not active along with her other daughters but she used to do all works on her own.

One Srinivasarao from Gajuwaka and Usirikala Gupta are marriage elders for her second daughter with A1.

23(g)It is elicited in her cross examination that A.1’s father is no more by the date of marriage of her daughter with A1. A.1 is doing work in a cloths shop at Vizianagaram and getting Rs.2000 to Rs.3000 per month towards salary.

23(h)It is elicited in her cross examination that during the month of

Ashadamasam her daughter was with them in their house. Her son in law came to her house and took her daughter to his house after Ashadamasam. They left their daughter into the house of A1 after Kartheekapournami. She did not inform to the elders of the marriage about the call given by her daughter about the harassment faced by her in the hands of accused.

23(i)It is elicited in her cross examination that for the first time she revealed to the police about the harassment of accused towards her daughter after her death and she did not place the matter before the elders after the incident 43 took place in the month of December ie., 10.12.2016 and they came to the hospital on that day at about 11 am.

23(j)Her cross examination further reveals that the omissions which are extracted from the evidence of PW1 recorded in detail in her cross examination.

23(k)P.W.1 denied the suggestions in cross examination that she has no capacity to present gold worth of Rs.1,00,000/- and cash of Rs.1,05,000/- towards dowry to A1 since they have no source of income and that in view of health condition of her daughter (deceased) she was unable to give sexual relationship with A1 after the marriage and it was intimated to her immediately and on that she took her to her house for the reason to provide treatment, and she is deposing false.

24P.W.3-T.Satyanarayana is son of P.W.1 and he is a resident of

Poodimaka village of Atchuthapuram Mandal and working as machine operator at

Pilikingen company. His evidence is similar to the evidence of P.W.1 on all aspects.

24(a)It is elicited in his cross examination that he was working when her deceased sister’s marriage took place with A1. He stopped his tiffin center after he got job. They did not prefer any complaint to the police against

A1 when he left her deceased sister in their house about demands made by him.

They did not give any report to the police when they took her deceased sister to the house of accused and they were not there in the house and it was closed. He stated before the police for the first time about the harassment of accused towards his deceased sister.

24(b) In cross examination, this witness deposed that he did not state before the police that he got information through phone from the deceased.

He did not state before the police that they convinced the accused about the 44 demands and they promised that they will arrange the same to them and he is deposing false.

24(c)P.W.3 denied the suggestions that theyhave no sources to present dowry of Rs.2,05,000/- to accused as stated by him and they did not pay any amount towards dowry to the accused and he did not state before the police that whenever his sister get ready the accused used to suspect and what he deposed in his chief examination not stated before the police relating to the incidents occurred on 10.12.2016 and that A1 never dropped her deceased sister in their home one and half months ago prior to the death of deceased and that his sister never revealed about the incidents happened to her throughout night in the house of accused to them and that accused never harassed her deceased sister and the incident occurred due to mental condition of his sister only and that the accused are no way responsible for her death and that he is deposing false.

25P.W.17 deposed that he instructed the Sub Inspector of police to issue a requisition to Tahasildar since said case is registered U/sec.304-B after death of deceased and it became late night and the further investigation took up on the next day of the morning i.e, on 23.12.2016.

25(a)P.W.17 further deposed that on the next day morning at 9.00 am the Tahasildar conducted inquest over the dead body of the deceased in the presence of blood relatives i.e, mother of deceased by name

Kanakaratnam(PW1), elder sister of deceased by name Nagamani, younger brother

Satyanarayana of deceased and maternal uncle of deceased by name Udatha

Paidiraju and neighbour of house of deceased by name Bammidi Ramaswami (PW5) and at that time he also examined them and recorded their statements. He also took photographs of dead body at that time. At the time of inquest the inquest panchayadars opined that due to ill treatment of accused and in view of not meeting their demands by the defacto complainant within span of one year 45 marriage the wife of A1 died and the same was mentioned in inquest report. He also examined the photographer(PW6) who took photographs under Ex.P26 to P29 in this case and recorded his statement.

26On that aspect, P.W.12-K.Srinivasarao, Assistant Vigilance

Officer, DWAMA deposed that he worked as Tahasildar, Vizianagaram during the relevant i.e., from 23.06.2014 to 21.03.2017.

26(a) His version is that on 23.12.2016 he received a requisition from Station House Officer, II town police station, Vizianagaram to conduct inquest over the dead body of deceased P.Ramanamma. Accordingly he went to the hospital at Vizianagaram i.e, mortuary and found the dead body of the deceased viz., Pentapati Ramanamma, there he conducted the inquest over the dead body of deceased in the presence of relatives of deceased as well as panchayatdars. He examined the witnesses and recorded their statements. He identified the contents of inquest report under Ex.P.16, dt.23.12.2016 when it was confronted to him by the learned Addl.P.P., during his evidence.

The contents of Ex.P.16 are self explanatory in nature.

26(b)In cross cross examination P.W.12 stated that he found the burn injuries on deceased. As per column No.7 of Ex.P.16 the neck portion of the deceased was burnt so also left cheek and left ear and lower lip.

26(c) P.W.12 denied the suggestions that he did not record the statement of deceased as stated in his chief and he never conducted any inquest at the said place and that the opinion which was mentioned in column No.15 of

Ex.P.16 is false 27PW8-A.Samudram, VRO, S.Kota during the relevant period of the incident occurred in this case. His version is that on 23.12.2016, he accompanied by Tahsildar(PW12) and another panchayatdar to Mortuary of Government

Hospital, Vizianagaram, there, they found the dead body of deceased by name 46

P.Ramanamma @ Ravali (Daughter of Pw.1) and the inquest was conducted over the dead body of deceased by the Tahsildar in their presence and inquest report was prepared to that effect, wherein he subscribed his signature and other panchayatdars also signed. He identified and admitted his signature as well as signatures of other panchayatdars on inquest report when it was confronted to him by the learned Addl.P.P., during his evidence. The panchayatdars opined that the deceased was harassed for not fulfilling the demands made by accused.

27(a)The cross examination of P.W.8 reveals that he does not remember whether his visit on that day was mentioned in office records or not.

He denied the suggestions that he was not present at the time of inquest which was held over the dead body of deceased on that day by the Tahsildar and simply he signed in the police station and that he is deposing falsely.

28PW.9-P.Ramesh deposed that he is a resident of Lankapatnam,

Vizianagaram. He is a driver. He knows PW8-A.Samudram. On 23.12.2016, he went to General hospital, Vizianagaram on his work. On the request of police he was present at the time of inquest over the dead body of deceased by name

T.Ramanamma. He signed on the inquest report and identified his signature on inquest report, dt.23.12.2016 when it was confronted to him by the learned

Additional Public Prosecutor during his evidence. The panchayatdars including him

opined that the deceased died due to harassment of dowry by the accused.

28(a)His cross examination reveals that he did not receive any written requisition from the police to act as inquest panchayatdars and four persons including him and SI of police and some other persons were present, among them Nagamani, Ramesh, Venkata Rao were there at that time.

28(b)P.w.9 denied the suggestions in his cross examination that he did not go to the hospital on that day and he did not sign on inquest report on 47 that day for the said place and he signed the same in Police station and he is deposing false at the instance of police.

28(c)It appears that PWs.8 and 9 supported the version of P.W.12 with reference to the correctness of Ex.P.16-Inquest Report conducted by him.

29P.W.10-Dr.G.Bhagyalakshmi, Civil Assistant Surgeon, Gosha hospital, Vizianagaram, deposed that she knows her Junior Dr.R.Sasidhar (CAS) of District hospital, Vizianagaram and they both conducted postmortem over the dead body of deceased by name Ramanamma on the requisition of II

Town PS, Vizianagaram, through MRO on 23.12.2016, and she issued Postmortem report under Ex.P13 dated 23.12.2016. She found Antemortem burnt injuries on the dead body of deceased and she mentioned all the injuries which were found on the dead body in Postmortem report issued by her pertaining to daughter of

Pw1(deceased Ramanamma) 29(a) PW10 deposed that as per contents of Ex.P.13, she mentioned injuries found on the dead body of deceased, antemortem burnt injuries : i.e.,

Burnt injury Head neck, back front and back of the chest, both front and back of the abdomen, right and left upper limbs, both right and left lower limbs, burnt injury perinicess present (around 87% burnt injuries). All the wound margins of burnt injuries hypersonic.

29(b)Her evidence shows that she also noted the other injuries found on the dead body of the deceased on internal examination are as follows:

“Scalp bones intact. Brain Normal. Neck structures normal,

Hyoid bone intact. Bony thoracic cage intact. Lungs congested, petechial hemorrhage present over the pericosdicon. Heat filled with clotted blood. Stomach and intestines normal. Liver, spleen, gall bladder and kidneys normal. C/s congisted. Urinarry bladder normal. Uterus normal, Gorital organs normal. Spinal column intact” 48

The approximate time of death of deceased is less than 24 hours prior to her examination.

29(c)Her version is that she is of the opinion that the cause of death of the deceased to the best of her knowledge is due to Hypovolenic shock due to antemortem burns.

The contents of Ex.P.13 are self explanatory in nature.

29(d)In cross examination P.W.10 denied the suggestions that the percentage of burns will be fixed by Rule of 9. He added that they mentioned the above thing in case sheet of deceased and mentioned the same in Ex.P.10. Part of the upper limb and part of the lower limb were not burnt and on that percentage of them were not calculated. They did not bring case sheet of the deceased now and in case of burn injuries initially nerogenic shock will be there due to pain and she did not mention specifically in Ex.P.13 the burn injuries were found on the lips of deceased.

30The version of P.W.17 is that on 24.12.2016 he arrested both the accused and sent them for judicial custody. Meanwhile, he instructed Sub inspector of police (PW15) to file the requisition before JFCM, Gajapathinagaram to record 161 Cr.P.C., statements of witnesses by name Bammidi Uma, Bammidi

Lalitha (Pw.2), Bammidi Ramaswami, Sabbavarapu Nagakumar (Pw4). Accordingly their statements were recorded by the Magistrate(PW13) and the dying declaration of A.1’s wife was also recorded by the Magistrate(PW11). He identified the requisition under Ex.P.17 filed before Magistrate.

31On that aspect, Pw.13-A.Krishna Prasad, Principal Junior Civil

Judge, Chodavaram, Visakhapatnam District deposed that he worked as a

Judicial Magistrate of I Class, Gajapathinagaram during the relevant period i.e.,

March, 2017.

49 31(a)His version is that on 31.1.2017 he received a requisition under Ex.P.17 from SDPO, Vizianagaram, to record the statements of witnesses by name Bammidi Uma, w/o Santosh, Bammidi Lalitha, w/o Ramaswamy (Pw2),

Bammidi Ramaswami, s/o late Chinnayya, U/sec.164 CrPC. Accordingly, he recorded the statements of Bammidi Uma and Bammidi Gumpaswami, s/o late

Chinnayya on 02.03.2017 and on 21.03.2017 he recorded the statement of

Sabbavarapu Nagakumar (Pw4), S/o Achari and they subscribed their signatures after recording their statements on the said dates.

31(b)His version is that the police filed a requisition before the then incharge officer stating that said Bammidi Lalitha is not available and requested to close her statement and said requisition is closed by the then presiding officer of the court on 18.05.2017. After recording the statements of said witnesses he subscribed his signatures on those statements. He added that there is a type mistake instead of mentioning Ramaswami his name is mentioned as Gumpaswami in 164 CrPc statement recorded by him.

31(c)In re-examination his version is that he received requisition on 31.01.2017 from SDPO, Vizianagaram to record the statements of witnesses viz., Bammidi Uma w/o Santosh, Bammidi Lalitha, w/o Ramaswami, Sabbavarapu

Nagakumar, S/o Appalachari and Bammidi Ramaswami s/o late Chinnayya.

The contents of Ex.P.17 are self explanatory in nature.

31(d) It is elicited in cross examination of P.W.13 that the said requisition is to record confession statements of witnesses. He stated that he followed the provision of 275 CrPC while recording the statement of witnesses as per Sec.164 CrPC. All the witnesses stated before him in Telugu language. He added that he translated said statements of witnesses into English and recorded the same.

50 31(e)P.W.13 denied the suggestions that the confession statements will be recorded only for purpose of accused. The said mistake with regard to the name of Gumpaswami was not initialed by him, he added that since it is not the statement of witness and further he denied that he has not followed the mandatory provisions of Cr.P.C., while recording the statements of said witnesses.

31(f)It appears that P.W.13 corroborated the evidence of P.W.17 with regard to recording of 164 Cr.P.C., statements of P.W.2 and P.W.4 respectively.

32 P.W.11-N.Sreelakshmi, II Addl.Judicial Magistrate of first

Class, Kovvuru, West Godavari District deposed that previously she worked as a Judicial Magistrate of I Class, Special mobile court, Vizianagaram during the relevant period i.e., from 01.04.2014 to 04.05.2017.

32(a)Her version is that on 22.12.2016 at about 9.20 am she received a requisition under Ex.P14 from Government Head quarters hospital,

Vizianagaram to record the Dying Declaration of smt.Pentapati Ramanamma, w/o

Chandra Kumar (deceased) and immediately she rushed and reached the hospital by 9.35 am and identified the declarant with the help of Duty doctor.

32(b)Her version is that she has posed some simple questions to the declarant to know her state of mind whether she is capable of understanding the questions and giving rational answers or not and she revealed her identity to her. After satisfying the answers given by declarant, she asked the duty doctor to certify the state of mind of declarant and the duty doctor certified the same in her presence. She asked the declarant about the cause of burn injuries and she stated the same and she recorded her statement.

Her statement reveals that:

“The declarant married in the second month of this year I.e, 2016, after marriage, they demanded her to bring money and harassed her that she is 51 looking ugly and illiterate, her mother in law and her husband beating her daily and she is unable to bear their harassment. She further stated that, on the date of incident in the morning hours again they disputed with her and her husband pressed her neck with his legs and she wore nighty at that time and she set fire to her nighty and burns were exposed all over her body and her mother in law shifted her to hospital and she further stated that due to unbearable harassment of her mother in law and her husband , she set fire to her body” 32(c)P.W.11’s version is that when she asked the declarant whether there is any other information to state and she said nothing. After she recorded the statement of declarant in verbatim, read over the contents to her and she admitted the same as true and correct, then she obtained her left thumb impression on that statement. Again she asked the duty doctor to certify the state of mind of the declarant at the time of recording the statement and the duty doctor certified that the declarant is conscious, coherent and fit state of mind throughout the recording of her statement.

32(d)Her version is that at the time of recording of the statement no one was present except her, the declarant, duty doctor, hospital staff and her attender. Proceedings were concluded on that day at 10.00 am. She identified the contents of requisition-Ex.P.14 received by her and dying declaration of declarant when they were confronted to her received from Causality Medical

Hospital, Government District Hospital, Vizianagaram and Ex.P.15 is Dying declaration of declarant viz., Smt. P.Ramanamma wife of Chandra Kumar (4 pages).

The contents of Ex.P.15 are self explanatory in nature.

32(e)It is elicited in her cross examination that it is mentioned in

Ex.P.14 that the declarant was brought by her husband through 108 ambulance.

The last column in Ex.P.14 regarding time of dispatch of requisition was kept blank. The details of cause of injuries was not mentioned in Serial No.5 of Ex.P.14.

52

She verified the case sheet of declarant before recording her statement. She cannot say at what time the deceased was brought to the hospital. She mentioned in Ex.P.15 that what happened but not specifically mentioned about the cause of receipt of burn injuries. She obtained thumb impression of declarant on second sheet only on one side. She did not specifically mention the name of declarant against the thumb impression but she mentioned it as “ LTI of Declarant”. She added that she mentioned the name of declarant at first sheet. She does not remember now whether the lower lip of declarant was totally burnt or not and whatever the declarant stated she recorded the same in her verbatim. P.W.11 denied the suggestion that she has not followed the procedure while recording the statement of declarant.

33The further version of P.W.17 is that on 30.12.2016 the mother of deceased handed over the marriage photographs of deceased along with Wedding cards and he collected them from her and recorded her statement. He identified wedding card under Ex.P.24 and Ex.P.25 and Exs.P.26 to Ex.P.29 are positive wedding photographs of A.1 with his wife (deceased) when they were confronted to P.W.17 by the Addl., P.P., during his evidence.

The contents of Exs.P.24 to Ex.P.29 are self explanatory in nature.

34The version of P.W.17 is that P.W.1 was accompanied by P.W.5 who acted as one of the mediators for the marriage of A.1 with the daughter of P.W.1 and on that P.W.17 examined him and recorded his statement.

35On that aspect, P.W.5-M.Kameswara Rao, is a resident of

Poodimadaka village. He deposed that he is running a Tiffin center. He knows

Pw1 and her children. He does not know Pw4 and Pw2 and they are local of this area. He knows accused in this case.

53 35(a)His version is that the marriage of A1 took place with daughter of pw1 on 17.02.2016. After the marriage, A.1 and his wife lived happily for a period of one month. Subsequently, A.1 left his wife at the house of PW1 for want of bike and additional dowry of Rs. 10,000/- from P.W.1. On 10.12.2016, they telephoned accused that they will bring P.w1’s daughter to their house. Then, he along with -A1’s wife(deceased), Pw1 and brother in law of deceased by name

Pydiraju went to the house of accused at Vizianagaram, but, the house of accused was locked and they tried to call them by phone and it was switched off. They stayed in the house of one neighbour which is situated opposite to the house of accused during that night and on the next day morning they returned to

Poodimadaka.

35(b)His version is that PW5 again on 21.12.2016 they brought

Pw1’s daughter in order to leave her matrimonial home at Vizianagaram, the accused not allowed them to enter into their house and demanded for bike and

additional dowry and they tried to convince the accused that will be fulfilled their

demands during the festival of Sankranthi and on that they allowed Pw1’s daughter( deceased) into the house and they were there till evening in the house of accused and later they returned to Poodimadaka village.

35(c)His version is that on the next day morning at about 5.30 am the brother of deceased received a call that deceased was set ablaze and on that it was communicated him also. Then, he along with PW1 and her children and others came to Vizianagaram and went to the hospital and found the wife of

A1 with burnt injuries. The deceased told that throughout the night she was harassed by the accused for not bringing bike and additional dowry amount by her and on that she took the decisions and set ablaze herself. On the same day at evening hours she (deceased) succumbed with burn injuries.

54 35(d)It is elicited in the cross examination of P.W.5 that his house is situated on the main road at Poodimadaka. The house of Pw1 is situated on main road of Poodimadaka village. Ḥe did not give any report to the police after he came to know that about the demands made by accused towards the daughter of Pw1 so also not advised Pw1 to inform the same to the police. He was examined by police on 22.12.2016 after the death of deceased.

35(e)He denied the suggestions that he did not state before the police that on 10.12.2016 they telephoned to accused earlier and they went to the house of accused and that the telephone of accused was also switched off and that on 21.12.2016 they were not allowed to enter into the house of accused by them when they came along with Pw1, A.1’s wife and he and others and that he enquired with A.1’s wife and she told that she was harassed by accused throughout the night for money and bike and that what ever he deposed in his chief examination with regard to 10.12.2016 and 21.12.2016 not happened and he was not examined by police on 22.12.2016 after the death of deceased and that since he related to Pw1 he is deposing false against the accused.

36It appears that the evidence of Tahsildar-PW12-K.Srinivasarao,

P.W.8-A.Samudram, P.W.9-P.Ramesh, and P.Ws.1 to 5 viz., T.Kanakaratnam, B.

Lalitha, T.Satyanarayana, S.Nagakumar and M.Kameswararao, supported the version of P.W.17 regard to their examination and recording of their statements by P.W.17.

37The version of P.W.17 is that after completion of the investigation he filed a charge sheet against the accused under Sections 498-A, 304-B IPC and sections 3 and 4 of Dowry Prohibition Act. P.W.2 stated before him as in Ex.P.2.

37(a)In cross examination of P.W.17, he stated that he verified the investigation done by SI of police who did prior to investigation done and at the beginning of re-examination statement of Pw1 the date was kept blank. He added 55 that at the end of said statement he put the date as 30.12.2016 after his signature. There is no specific mention in the statement of Pw5 that he accompanied by Pw1 to their office or he went to Poodimadaka and Pw1 handed over the photographs and wedding cards to them.

37(b)It is elicited in his cross examination that the omissions recorded in the evidence of P.W.3 and P.W.5 are admitted by him.

37(c)P.W.17 denied the suggestions that he did not do proper investigation and that he did not go to the place of offence along with SI of police on the said dates what he deposed in his chief examination in this case with false allegation against the accused.

38The learned Additional Public Prosecutor examined additional witness as P.W.16-Dr.G.Sowjanya Devi CAS, PHC, Garbham village, Merakamudidam

Mandal, Vizianagaram District. She deposed that she worked as CAS District Head

Quarters hospital during the relevant period from September, 2012 to 22.01.2019.

38(a)Her version is that on 22.12.2016 while ASI Manmadharao (Pw14) recording the statement of P.Ramanamma (deceased) in District hospital ,

Vizianagaram, she was present and at that time said Ramanamma was coherent and conscious . She also endorsed the said statement recorded by P.W.14 and she identified the endorsement on Ex.P.19 when it was confronted to her by the

Addl., P.P., during her evidence.

38(b)Her further version is that on 22.12.2016 at 10-00 am while

Pw11 recording the dying declaration of P.Ramanamma (deceased in district Head

Quarters hospital, Vizianagaram) she was present and at that time said

Ramanamma was conscious and coherent. She also endorsed on the dying declaration of deceased at the request of P.w.11. She identified the endorsements made on Ex.P.15 i.e, at the beginning and ending of said dying declaration of 56

P.Ramanamma, when it were confronted to her by Addl., P.P., during her evidence.

38(c)It is elicited in the cross examination of P.W.16 that doctors who were treated the wife of accused were mentioned in the case of said patient. She put her initial on Ex.P.19 after the endorsement made by her.

38(d)She denied the suggestions that the deceased not made any statement before the Magistrate i.e., PW.11 and P.W.14 on that day in her presence and she is deposing false.

39On a careful scrutiny of the evidence of P.Ws.1 to 17 coupled with contents of Exs.P.1 to P.29 and M.os.1 to 3, it is manifest that the marriage of

P.Ws.1’s daughter (deceased) took place with A.1 on 17.2.2016, and the wedding cards and wedding photos which were marked as Exs.P.24 to Ex.P.29 clearly shows that the marriage of daughter of PW1 (deceased)was performed with A.1 in a grand manner.

39(a)It is obvious that A.1 and A.2 harassed the daughter of P.W.1 when she was left by PW1 at the house of A.1 and A.2.

39(b)It is obvious that the condition of daughter of PW1(deceased) was noticed by P.W.2-Bammidi Lalitha and P.W.4-Sabbavarapu Nagakumar when the deceased was in the house of accused. P.Ws.2 and 4 are independent witnesses and they are neighbours to the house of accused.

39(c)It is further manifest that P.W1 received information about the admission of her daughter(deceased) in the hospital within 8 to 12 hours after

PW1 left her daughter at the house of accused. This was supported by P.W.5 in his evidence. P.W.5 accompanied by P.W.1 and her daughter (deceased) to the house of accused soon before death of deceased. P.W.5 is an independent witness.

57 39(d) It is further manifest that by the time of report given by PW1 to P.W.15, the statement of deceased was recorded by P.W.14 at first instance and later by PW11 at 10.00 a.m. The contents of statement of deceased i.e., Ex.P.19 and the contents of Ex.P.15 i.e., Dying Declaration of daughter of

PW1 (deceased) clearly shows that she was subjected to harassment by A.1 and

A.2 in their house and she was beaten by her husband i.e., A.1 and A.2 also supported the acts of A.1.

39(e)The Medical officer i.e., P.W.16 who was present at the time of recording the statement of deceased by PW14 as well as P.W.11, stated about mental status of deceased at the time of recording the statement of deceased, in her evidence. It is further manifest that the daughter of PW1 (deceased) was conscious and coherent when her statement was recorded by PW14 as well as

PW11. Further, P.W.16 supported the version of PW14 and P.W.11 on all aspects.

39(f)The testimony of PW.1 to P.W.4 and the contents of Ex.P.15 and Ex.P.19 clearly shows that soon before the death of deceased, she was subjected to cruelty or harassment in connection with the demand of money, about her complexion and her education and A.1 and A.2 used to hurt her and again quarreled with her on the fateful day and A.1 beat her, and his acts were supported by his mother(A2). The cruelty and harassment in connection with demand for additional dowry continued till her death.

39(g)For the reasons best known to A.1 and A.2, they did not state anything when they were examined under section 313 of Cr.P.C.

39(h)The prosecution proved that the marriage of P.W.1’s daughter (deceased) with the accused No.1 was solemnized on 17.2.2016 and she died within 7 years of marriage and she was subjected to harassment by A.1 and A.2.

No one has right to take away the life of a person . P.W.s’1 daughter is resided in the home of accused for a short period after her marriage with A.1. A.1 dropped 58 her at her parents house with demands . A.1 did not take steps to receive his wife, when PW1 tried to leave her at matrimonial house, A.1 and A.2 were not there in the house. On second occasion, P.W.1 left his daughter at matrimonial house of his daughter (deceased) and she was tortured by A.1 and A.2 with their words and acts. Then P.W.1’s daughter (deceased) took extreme step of taking a way her life due to unbearable harassment by her husband and mother-in- law(A.1 and A.2) 39(i)The facts on hand are not applicable to the facts mentioned in the above citations relied on by the counsel for the accused as well as learned

Additional Public Prosecutor. Applying the principles laid down in the above

citations to the facts of the case and considering the circumstances of case, I am of the opinion that the contentions raised by the accused cannot be taken into consideration and I do not find any force in the contentions raised by the counsel

for the accused.

39(j)Viewed from any angle, the material which is placed by the prosecution through witnesses i.e., the testimony of P.Ws.11, P.W.14,

P.W.16 and P.W.17 and P.Ws.1 to 5 and the contents of Ex.P.19 and Ex.P.15 it is manifest that all prosecution witnesses are supported with each other on all aspects and I believed their evidence. Hence, prosecution proved the case in respect of the charges levelled against the accused Nos. 1 and 2 for the offence under sections 498-A IPC, 304-B I.P.C., and 306 of IPC and A.1 and A.2 are liable for punishment for the said offences and the prosecution has not placed any material to prove the charges levelled against the accused 1 and 2 for the offence under sections 3 and 4 of Dowry Prohibition Act

The point is answered accordingly.

40IN THE RESULT, I find that the accused 1 and 2 are guilty of the offence punishable under sections 498-A IPC, 304-B I.P.C., and 306 of IPC.

59

Accordingly, they are convicted under Section 235 (2) of Cr.P.C., for the said offences.

In the result, I find that the accused Nos.1 and 2 are not guilty of the offence under sections 3 and 4 of Dowry Prohibition Act and they are acquitted under section 235(1) of Cr.P.C.

Dictated to the Stenographer Grade I transcribed by her corrected

and pronounced by me in open court on this the 24th day of February,2021.

Sd/-K.Sudhamani

I ADDITIONAL DISTRICT & SESSIONS JUDGE,

VIZIANAGARAM.

P.O. Act is not applicable to the facts of the case.

Considering the circumstances of case and gravity of offence lenient view cannot be taken in this case since death of deceased took place within a year of her marriage and when A.1 was questioned about quantum of sentence he pleaded that he is only son to his mother and pleaded mercy and when A.2 was questioned about quantum of sentence, she pleaded that she is 70 years old and pleaded mercy. A.1 is sentenced to undergo Three (3) Years Rigorous

Imprisonment and to pay a fine of Rs.10,000/- in default of fine amount A-1 shall undergo Simple imprisonment for a period of six (6) months for the offence under section 498-A IPC and A.1 is further sentenced to under go Seven (7)

Years Rigorous Imprisonment of the offence under section 304-B IPC and

A.1 is further sentenced to under go Seven (7) Years Rigorous Imprisonment and to pay a fine of Rs.50,000/- in default of fine amount A-1 shall undergo

Simple imprisonment for a period of six (6) months for the offence under section 306 IPC and A.2 is sentenced to undergo Three (3) Years simple Imprisonment and to pay a fine of Rs.10,000/- in default of fine amount A-2 shall undergo

Simple imprisonment for a period of six (6) months for the offence under section 498-A IPC. A.2 is further sentenced to under go Seven (7) Years Simple 60

Imprisonment for the offence under section 304-B IPC and A.2 is further sentenced to under go Seven (7) Years Simple Imprisonment and to pay a fine of Rs.50,000/- in default of fine amount A-2 shall undergo Simple imprisonment for a period of six (6) months for the offence under section 306 IPC.

All the sentences shall run concurrently.

M.Os.1 to M.O.3 are destroyed after expiry of appeal time is over.

Both the accused are informed about the right of filing of appeal by them.

The remand period of A.1 and A.2 is set off as per Section 428 of Cr.P.C., i.e., from 25.12.2016 to 16.2.2017.

Pronounced by me in open court on this the 24th day of February, 2021.

Sd/-K.Sudhamani

I ADDITIONAL DISTRICT AND SESSIONS JUDGE,

VIZIANAGARAM

Appendix of Evidence Witnesses examined For Prosecution: For Defence: NIL. P.W.1T.Kanakaratnam, (Mother of deceased) P.W.2B. Lalitha (Neighbour of accused) P.W.3T.Satyanarayana (son of PW1) P.W.4S. Naga Kumar (Neighbour of accused ) P.W.5 M. Kameswararao (Elder) P.W.6A. Ramanamurty(Photographer) P.W.7K.Baburao(VRO-Panch witness for scene) P.W.8A.Samudram(VRO-Panch witness for inquest) P.W.9P. Ramesh (Panchayatdar-panch witness for inquest) P.W.10Dr.G.Bhagyalakshmi(Medical officer) P.W.11;N.Sreelakshmi( JFCM, Special Mobile Court,Vizianagaram) P.W.12:K.Srinivasarao, (Tahsildar) P.W.13:A.Krishna Prasad(JFCM, GaJapathinagaram) P.w.14L.Manmadharao,(A.S.I.) P.W.15S.Ravi(Investigating officer) P.W.16:Dr.G.Sowjanya Devi (Medical officer) P.W.17:A.V.Ramanarao,(Investigating Officer)

Documents Marked

For Prosecution: Ex.P.1 Report of PW1 dt.22.12.2016 Ex.P.2Two portions of 161(3) Cr.P.C., statement of P.W.2 dt.22.12.2016 Ex.P.3 to P.11 Digital Photographs 61

Ex.P.12Scene observation report dt.22.12.2016 Ex.P.13Postmortem report of deceased dt.23.12.2016 Ex.P.14Requisition dt.22.12.2016 to Magistrate Ex.P.15Dying Declaration of declarant viz., P.Ramanamma (deceased) dt.22.12.2016 at 10.00 a.m. Ex.P.16Inquest report dt. 23.12.2016 at 10.00 a.m. Ex.P.17Requisition of SDPO, Vizianagaram. Ex.P.18:Medical Intimation dt.22.12.2016 Ex.P.19: Statement of deceased dt.22.12.2016 at 9.30 hours recorded by ASI at hospital. Ex.P.20FIR in Crime No.199/2016 of II Town PS, Vizianagaram Ex.P.21: Rough sketch of the scene of offence Ex.P.22Alteration memo dt.22.12.2016 Ex.P.23:Altered FIR (3 pages) Ex.P.24 and Wedding Cards of A.1 and his Wife (Deceased) Ex.P.25: .Exs.P.26 to Positive Wedding photographs of A.1 and his wife (deceased) Ex.P.29 For Defence: NIL.

Material Objects marked

M.O.1:Burnt cloth pieces

M.o.2Burnt match sticks

M.o.3red pieces of clay bangles

Sd/-K.Sudhamani

I ADDITONAL DISTRICT & SESSIONS JUDGE,

VIZIANAGARAM

1

IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE,

VIZIANAGARAM.

Present: Smt. K.Sudhamani, I Addl.District Judge, Vizianagaram.

Friday, this the 26th day of March, 2021.

APPEAL SUIT No. 10 of 2017

Between: Smt. Isarapu Lakshmi … Appellant (Plaintiff).

And :

1. Sigili Dalayya (died)

2. Sigili Laxmana

3. Sigili Bangaru Dora

4. Sigili Adinarayana

5. Gobbu Thata

6. Gobbu Sanyasi

7. Gobbu Ramu

8. Sigili Narayanamma (died)

9. Nandila Yashodamma

10. Kondrela Nookalamma

11. Thota Bharati

12. Pandranki Santhosh Kumar

(Memo filed by appellant counsel against R.12 stating not pressing the

claim against R.12, hence, the appeal against R.12 is dismissed as not

pressed on 6.3.2017)

...Respondents/Defendants

Appeal filed against the Decree and Judgment made in O.S. 73/2006,

dated 21.12.2016 on the file of Junior Civil Judge, Gajapatinagaram.

Between:

Smt. Isarapu Lakshmi ... Plaintiff.

And:

1. Sigili Dalayya (died)

2. Sigili Laxmana

3. Sigili Bangaru Dora

4. Sigili Adinarayana

5. Gobbu Thata

6. Gobbu Sanyasi

7. Gobbu Ramu

8. Sigili Narayanamma (died)

9. Nandila yashodamma

10. Kondrela Nookalamma

11. Thota Bharati

12. Pandranki Santhosh Kumar 2 (Defendants 8 to 10 are added as Lrs of D.1 as per orders in

IA.No.542/2009 dt.6.11.2009 )

(Defendants 11 and 12 are added as parties as per orders in I.A.no.371/2014 dated 16.11.2015_ … Defendants.

This Appeal is coming on 26.3.2021 for final hearing before me in the presence of Sri P.Kondalarao, Advocate for the Appellant/Plaintiff and of Sri B. Suryarao and Sri P.Haragopal, Advocates for Respondents/defendants 2 to 7 and 9 to 11 and the Appeal against R.12/D.12 not pressed on 6.3.2017 and the R.1 and R.8/D.1 and D.8 died and upon having heard on both sides and having stood over till this day for consideration, this Court made the following:

J U D G M E N T

The appellant, who is Plaintiff, aggrieved by the decree and

Judgment passed in O.S.No. 73/2006, dated 21.12.2016 on the file of Junior

Civil Judge, Gajapatinagaram in the said suit, preferred the present Appeal.

The parties as arrayed in the said suit are referred to as such in the Judgment for the sake of convenience.

1.The brief averments of plaint are as follows:

1(a)It is averred that the agricultural zerority land in an extent of 143 cents covered by old survey number 144 corresponding to new survey number 54/4 S. Burjivalasa village, Dattirajeru Mandal,

Vizianagaram district, which is described in the schedule attached to this plaint .

1(b)It is averred that the plaint schedule land originally belongs to Sigili Appanna Dora and his two sons i.e., defendants 1 and 2 and his grand sons i.e., 3 and 4 here in. The said land was sold to the plaintiff under an agreement of sale dated 29-6-1981 for a sale consideration of Rs.7800/- (Seven thousand eight hundred only). The said agreement Sigili Appanna Dora and 1 and 2 defendants executed to the plaintiff at the time of sale agreements a part payment of Rs.800/- was 3 paid at the time of the said sale. As the said sale was under mortgage

Potnuru Appalaswamy a sum of Rs.4500/- it was agreed that the said mortgage as to be discharged by the vendor i.e., plaintiff after paying Rs.4500/- to the mortgage. The plaintiff discharged the said mortgage and got physical possession of the suit schedule land.

1(c)It is averred that the Plaintiff has been in actual effective and peaceful and continuous possession and enjoyment of the suit schedule land to the knowledge of everybody in the locality as a purchaser about 10 years after wards the plaintiff on dated 13-12-1993 leased out the suit schedule land to the lessee by name Kikkara Satyam, S/o. Ramayya of the same village who is in permissive possession of the said land as a lessee. The lessee has been paying yearly rents regularly to the plaintiff.

The plaintiff has been paying land revenue for the suit schedule lands. The sale agreement stipulated the an amount of Rs.800/- being the balance of the sale consideration due to the paid under the sale agreement is to be paid to the vendee by the vendor/plaintiff at the time of registration of the sale deed and registration thereon.

1(d)It is averred that there is a covenant and clause embodied in the sale agreement to the effect that the vendor under the sale agreement have to execute a regular sale deed and requests stamp papers and get it registered in the name of the vendee plaintiff when even the vendee calls upon to the vendors to do so. And the expenses for the stamp papers and registration are to be born by the vendee.

1(e)It is averred that the father of 1 and 2 defendants and grand father of the defendants 3 and 4 and the LRS of the 1st defendant 7 to 10 having died and as the defendants have become legal heirs of the 4 deceased ancestor during pendency of the suit the 7th defendant died THE

LRS OF 7th defendants the 3rd and 9,10 defendants who were already brought on record so the defendants are bound to execute a regular sale deed and get it registered in the name of the plaintiff.

1(f)It is averred that the plaintiff got issued a registered a lawyer notice dated 24.1.2006 through her advocates addressed to 1 to 4 defendants here in and others calling upon, the defendants 1 and 4 to attend the Sub-Registrar’s Office at Therlam to execute a regular sale deed for registry on receipt of balance of sale consideration Rs.2500/- defendants 1 to 4 received the said notice and gave a reply refusing to registry any sale deed for the suit schedule lands.

1(g)It is averred that the defendants 1 to 4 being the legal heirs of late Sigili Appanna Dora and 7 to 10 being the legal heirs of late

Sigili Dalayya are liable to execute a sale deed in favour of plaintiff in pursuance of the sale agreement executed by Sigili Appanna Dora and defendants 1 and 2 herein.

1(h)It is averred that the plaintiff got right called upon the defendants to execute the sale deed and register it under section 54 of

Indian limitation act no fixed time is arrived in the agreement of sale the limitation starts from the date of issuing of the notice demands specific performance of agreement of sale within 3 years from the date of denial by the executants or a legal position under limitation act since the limitation is not arrived.“The plaintiff is always ready and willing to perform her part of the contract at all material dates from the date of the agreement till the decree”.

5 1(i)It is averred that the plaintiff subsequently the alleged invalid document dated 14-11-2005 executed by the defendants 1 to 4 in favour of the defendant 5 to 7 is null and void void abinitio.

1(j)It is averred that previously the the court dismissed the suit for default and set-aside the dismissal for default order dated 11-3- 2013 and in I.A.358/2013 and restored this suit on payment of costs the said costs are paid by the plaintiff as per the orders dated 15-10-2014 passed by this court.

1(k)It is averred that during the period of dismissal for the default for the said suit the 11 and 12 defendants colluded with other defendants and trying to purchase the very same suit schedule property, the plaintiff got issued a registered legal notice to the defendants and the defendants especially to stop the registration to the sub registrar, Therlam as per article 10 K table feeunder the registration act are protect petition to stop the registration of any document relating the suit schedule property.

1(l)It is averred that she got issued a legal notice through the registered post on 30-10-2013 to the concern authorities, but the defendants 11 and 12 manipulated things with a wrongful loss to the plaintiff and the defendants 11 and 12 played mischief and fraud and misleading and mischievous information to the sub registrar and obtained sale deed on dated 8-11-2013 in favour of the proposed 11th defendant miss usually under the suit was dismissal for default even though it was not dismissed for default they entered into transaction.

1(m)It is averred that the plaintiff respectably submits the said documents are collusive and sham will not create any right to the 11th 6 defendant and the said documents are null void and void abinitio and did not operate to create any right title or interest in favour of the 11th defendant that will not it disturb the rights of plaintiff. The said subsequent purchasing is not valid within the meaning of the section 19 of Specific

Relief Act the sale agreement still subsisting is in force. The 2 to 4 of the defendants have no right to execute any document of proposed 11th defendant in respect of very same land already covered by the earlier sale agreement, and the said suits are now pending 1(n)It is averred by the plaintiff that the defendants 11 and 12 and their followers formed into unlawful assembly with a dishonest intention trying to trespass and demanded high highhandedly and threatened that they would cause danger to life of the plaintiff’s Tenant.

The defendants are never being is in possession and title all along of the said property. The plaintiff’s tenant is in physical possession and enjoyment and peaceful lawful possession and occupation to the knowledge of the every body in the village. The defendants are lawless persons and will not hesitate to any heinous act and achieve their illegal object and the defendants have got political strength and numerical superiority in the locality. The defendants to take law into their hands threatening to trespass of the property. The defendants have no manner of right of the property.

The defendants have no right to alienate or enter in to any fraudulent and nominal transactions and invalid documents bringing into existence set up a body unauthorized highhandedly trying to trespass and attempt to grab the property belonging to the plaintiff to cause wrongful injury. The police report given by the 11th defendant with false allegations against the plaintiff’s tenant on the basis of the invalid alleged document 8-11-2013 in 7 the said criminal case. After full trial the equitable judgment dated passed by the Honourable Additional judicial 1stclass magistrate at

Gajapathinagaram.

1(o)Hence, the plaintiff filed the suit praying the court to pass a decree for specific performance against the defendants directing them to execute a regular sale deed in favour of the plaintiff and get a registered sale deed after receiving the balance of the sale consideration of

Rs.2500/- from the plaintiff at the time of registration of the sale deed. In case, the defendants refused or neglect to execute the sale deed, the

Honourable court may be pleased to execute a sale deed in favour of

plaintiff and the necessary stamp and registration expenses are to be meet by the plaintiff and for costs of the suit.

2.Defendant No.3 filed written statement and Defendant Nos.1, 2 and 4 to 10 adopted it. D12 was set exparte.

The averments of written statement by the defendant

No.3 are as follows:

2(a).D1 to D4 denied allegations mentioned in the plaint there on.

It is averred that in fact, there is no contract in between the plaintiff and defendants 1 and 2 with their deceased father Sigili Appanna Dora.

Indeed, the plaintiff never visited Burjavalasa Village. It is her deceased husband-Isarapu Ramanarayana who worked as a Police Constable at

Burjavalasa Station during the years 1980 to 1985 or so. The said

Ramanarayana used to stay in the Police Station and used to visit his family at Vizianagaram once or twice in a week during his tenure at Burjavalasa

Police Station. The said Ramanarayana, the husband of the plaintiff used to advance loans for interest to different ryots at Burjavalasa who had 8 proper acquaintance with him and at the time of advancing the loans, the said Ramanarayana used to obtain the thumb marks or signatures of the borrowers on some blank papers also as collateral security.

2(b)It is averred that Ramanarayana, the husband of the plaintiff obtained the thumb marks of the defendants 1 and 2 and their father Sigili Appanna Dora on different blank papers by the time Appanna

Dora took a loan of Rs.800/- from Ramanarayana. Subsequently he left

Burjavalasa on transfer, later Ramanarayana never visited Burjavalasa and during his lifetime, Ramanarayana or his wife/ the plaintiff never put for the any claim against Appanna Dora or his sons the 1st and 2nd defendants or their other heirs on any ground. Appannadora died about 10 years ago.

2(c)It is averred that after the death of Appannadora, the 1st and 2nd defendants with the other sharers gave up the cultivation over the plaint schedule dry land and started using it is thrashing floor.

They redempted the mortgage debt of Potnuru Appalaswamy. During the lifetime of Appanna Dora, the Revenue Authorities also issued the pattadar pass book and title deed in the year 1995 in favour of Appanna Dora for the plaint schedule land as the said land was recorded in his name being the eldest member in his family.

2(d)It is averred that subsequently, the defendants 5 to 7 requested the defendants 1 and 2 to lease out a portion of about Ac.1- 00 cents in plaint schedule dry land to keep their sheep and cattle by offering an amount of Rs.10,000/- to enjoy the thrashing floor in lieu of interest for 3 years and agreed to vacate the same after 3 years by receiving the amount of Rs.10,000/- paid by them, and with the permission of defendants 1 to 4 and their other sharers the defendants 5 to 7 have 9 been in possession and enjoyment of about Ac.1-00 cents in plaint schedule land from the last about 10 years.

2(e)It is averred that subsequently the defendants 1 to 4 and their other sharers let out the remaining portion in the plaint schedule land in S.No.54/4 to one Kikkara Satyam of Burjavalasa village at his request by receiving Rs.6,000/- from him. Accordingly, Kikkara Satyam started enjoying the remaining portion of about Ac.0-50 cents in plaint schedule land by keeping his sheep and cattle along with his relative. So the allegation that the plaintiff has been in Khas possession and enjoying the plaint schedule land from the date of alleged Agreement to sell in the year 1981 is utterly false and baseless.

2(f)It is averred that as the plaintiff is a stranger and had no acquaintance with the physical features of the plaint schedule land as on the date of issuing speculative notice at the instance of Kikkara

Satyam and Potnuru Ramana of Burjavalasa village, the notice dated 24-1- 2006 filed by her did not covered the factual aspects.

2(g)It is averred that recently the prices of the lands by the side of N.H.43 are escalated. One Kikkara Satyam to whom the defendants 1 to 4 with other sharers let out a portion in plaint schedule land with the then Sarpanch Potnuru Ramana of Burjavalasa village started

Commission Business in Real Estates.

2(h)It is averred that Kikkara Satyam and Potnuru

Ramana approached the defendants 1 to 4 and requested them to sell away the plaint schedule land @ Rs.50,000/- per acre with the view to get heavy commission. But the defendants 1 to 4 and their relatives refused to sell the land at the price since they knew the increasing prices.

10 2(i)It is averred that later the defendants 5 to 7 offered good price to the defendants 1 to 4 and their relatives for the land in their possession and as it was agreed the land in their possession measured to an extent of Ac.0-97 cents was sold away to defendants 5 to 7 by way of registered sale deed on 14-11-2005, to the open knowledge of one and all in the village. Immediately after the sale, defendants 5 to 7 laid foundations in their portion and constructed slabbed house also. The said fact was also known by Kikkara Satyam.

2(j) It is averred that after the said sale in favour of defendants 5 to 7, Kikkara Satyam approached the defendants 1 to 4 and offered Rs.1,00,000/- per acre and requested them to sell away the remaining extent of Ac.0-46 cents in his possession with his relative in the plaint schedule land. But the defendants 1 to 4 did not accept his request since there was much difference in between the offered price and the demand rate per acre.

2(k)It is averred that Kikkara Satyam bore grudge against the defendants 1 to 4 and with the active support of Potnuru

Ramana might have approached the plaintiff and her son who is a police officer, knowing the fact that late Ramanarayana, the husband of the plaintiff, obtained the thumb marks of several persons at Burjavalsa including the defendants 1 and 2 and their father by the time of borrowing money from Ramanarayana might have fabricated the document styled as

Agreement to sell and got issued the speculative notice dated 24-1-2006 knowing fully well that the defendants 1 to 4 and their relatives conveyed a portion in plaint schedule land in favour of defendants 5 to 7 already by 14-11-2005 about 2 ½ month ago as on the date of notice.

11 2(l)It is averred that the defendants 5 to 7 are bonafide purchasers without notice and the sale deed dated 14-11-2005 obtained by them is valid and binding. Really the plaintiff was in possession of the plaint schedule land as on the date of notice at least, certainly she would have resisted the construction of houses by defendants 5 to 7 in the portion of plaint schedule land purchased by them.

2(m)It is averred that there is no whisper as against the construction by defendants 5 to 7 in the plaint schedule land in the legal notice dated 24-01-2006 got sent by her and there is no whisper in her notice about the remaining land in permissive possession and enjoyment of Kikkara Satyam and his relative. For the 1st time in the plaint, the plaintiff made a vain attempt to show that Kikkara Satyam was in possession of the remaining land under the permission of the plaintiff. It was made when a legal notice was sent to Kikkara Satyam to vacate the site of defendants 1 to 4 as he is the root cause for the unwanted disputes.

The said Kikkara Satyam approached the plaintiff with the notice, who took him to her advocate and got issued a reply with untenable allegations. The distorted and traversed averments in the plaint itself prove that the plaintiff was never in possession of the plaint schedule land and her claim is fictitious.

2(n)It is averred that a person who is not in possession of the land covered by Agreement to sell, even for Arguments sake, cannot lay a suit for specific performance of contract after a lapse of 25 years of the alleged agreement to sell without paying the sale consideration and not entitled to the protection under section 53-A of

Transfer of Property Act. If any delivery of possession is there, part 12 performance of contract can be presumed. Though not admitted, assuming for a moment, the alleged Agreement to sell dated 29-06-1981 on a white paper filed by the plaintiff discloses the fact that possession of the land will be delivered after execution of regular sale deed. And the said document cannot be locked into as per its recitals. Hence the plaintiff, even in fact had such an Agreement, it should be enforced within limitation and the alleged Agreement to sell dated 29-06-81 is barred by Limitation and the suit founded by such document is liable to be dismissed.

2(o)It is averred that the other allegations in the plaint that the plaintiff paid land revenue to the plaint schedule land is devoid of truth. If really the plaintiff was in possession of the plaint schedule land and if her possession was recognized by the Government, she could have been allotted the pattadar pass book at least, if possession was with the plaintiff. The allegation that the defendants 5 to 7 are subsequent purchasers is not true. They are the actual purchasers under valid instrument. So their right cannot be questioned by the plaintiff who has nothing to do with the plaint schedule property. So the provisions under section 19 of Specific Relief Act cannot be invoked as the plaintiff is not at all a purchaser in the eye of Law. So the plaintiff cannot lay any claim even against ‘A’ or ‘B’ schedule property covered by the plaint schedule. The defendants reserve the right to file additional written statement .

Therefore, the 3rd defendant prays the Honourable Court be pleased to dismiss the suit with costs.

3.Defendant No.11 filed written statement through her counsel.

The averments of written statement by the defendant No.11

are as follows:

13 3(a)It is averred that the material allegations of the plaint are not true and tenable at Law and the plaintiff had no right or title over the plaint schedule property and added him this defendant mischievously.

3(b)It is averred that the plaint averments are ambiguous and the contention of plaintiff as if she is absolute owner of plaint schedule property while agitating for specific performance of contract from the defendants 2 to 10 and her henchmen who claims himself as tenant under her, as such, he is in possession and enjoyment of the plaint schedule dry land, though there are houses of defendants 5 to 7 by the date of suit towards eastern side of plaint schedule land as they purchased the part of land from defendants 1 to 4 and their family members. The mischief in the suit is evident from that aspect.

3(c)It is averred that knowing fully well that the suit based on a scrap of white paper ends in dismissal. The plaintiff in this suit filed this suit while getting filed another suit in O.S.157/2006 through her henchmen in speculative nature without possession and without showing the payment of full consideration as agreed in the alleged agreement to sell relating to the year 1981, i.e., 25 years after the expiry of the limitation period.

3(d)It is averred that when the plaintiff was not given possession of the property under the alleged agreement to sell, the question of inducing another man by the plaintiff into the plaint schedule land does not arise and only fictitious.

3(e)It is averred that after due verification of revenue records and encumbrances from the Sub Registrar’s office, she purchased 14 a site to an extent of Ac.0.40 cents in the remaining land belongs to defendants 1 to 4, as they are having absolute rights over the property having exclusive possession and enjoyment. After the sale transaction the petition along with other petitions were filed by the plaintiff to add this defendant.

3(f)It is averred that the sale deed obtained by this defendant is valid under Law and it is for valid consideration and also from the lawful owners. On the date of sale no legal proceedings were pending and in force. The plaintiff has no substantial right over the plaint schedule property at any point of time.

3(g)It is averred that the suit itself is not maintainable under Law. Hence, she requests the court to dismiss the suit with costs.

4.Based on the above pleadings the learned trial Judge framed the issues are as follows:-

1.Whether the agreement to sell dt.29.6.1981 is true, valid and binding on the defendants if so the same is barred by limitation ?

2.Whether the plaintiff is entitled for specific performance of contract to get registration of regular sale deed for the plaint schedule land ?

3.Whether the defendants are liable to deliver the possession of the plaint-B schedule property to plaintiff ?

4.To what relief ?

During the course of trial, though the evidence of P.Ws.1 and 2 i.e., I.Ramakrishna and I.Lakshmi adduced the same were eschewed.

Thereafter, the plaintiff i.e., I.Lakshmi herself is again examined as P.W.3 15 and she examined P.W.4 to P.W.10 and got marked Exs.A.1 to A.11 documents on her behalf.

On behalf of defendants, D.Ws.1 to 3 were examined but no documents were marked on their behalf. .

. Upon considering the evidence of plaintiff and defendants and contentions submitted by both sides, the learned trial Judge, passed

Judgment in OS.73/2006 on the file of Junior Civil Judge,

Gajapatinagaram and dismissed the suit with costs on 21.12.2016.

Aggrieved by the said Judgment and decree , the Plaintiff preferred the present Appeal.

5.Grounds of appeal:

The decree and judgment passed by the trial court dt.21.12.2016 in O.S.No.73 of 2006 is contrary to Law, erroneous, weight of evidence and probabilities of the case.

 The appellant/plaintiff filed this suit against the respondents herein for grant of specific performance on the basis of sale agreement dt.

29.6.1981 in respect of the suit schedule property i.e.,, agricultural zeroyati land to an extent of Ac.143 cents covered by old survey

No. 144 correspondent to new S.No. 54/4 popularly known as “Manyapu Gudde” besides high way road situated at S.Burjavalasa village, Dattirajeru Mandal, Vizianagaram.

 The Court below ought to have seen that the appellant/plaintiff purchased the plaint schedule property by way of agreement of sale to the knowledge of everybody including the defendants and the said agreement is subsisting still in force and during the pendency of suit the defendants 4 to 7 purchased very same part of suit schedule 16 property on 14.11.2005 (Ex.A.6) and subsequently D.11 purchased by way of sale deed dated 8.11.2013 and the suit documents are not valid as per section 19 of Specific Relief Act. The said documents are null, void and abinitio and did not create any right, title or interest against D.2, D.5 to D.7 and D.11 respectively.

 The trial court ought to have seen that there is no necessity to file a petition for cancellation of alleged sale deeds and the appellant/plaintiff entitled for specific performance of contract as per sale agreement.

 The trial court ought to have seen that defendants 1 and 2 and their father put thumb marks in Exs.A.1 to A.3 and the 2nd defendant is alive, but, the 2nd defendant did not file any objection in lower court for sending finger prints for opinion because Exs.A.1 to A.3 are genuine documents.

 The trial court ought to have seen that the appellant/plaintiff examined P.W.3 and marked Exs.A.1 to A.11 in the suit and she was cross examined by Advocate-Commissioner. The defendants managed and influenced third attestor of Ex.A.1 by name

K.Narasimha Sastry and he did not attend before court for cross examination and his evidence is eschewed.

 T he trial court ought to have allow recall the petition filed by appellant/plaintiff for the purpose further cross examination of

D.Ws.1 to 3 but it was not considered and rejected.

17  The trial court ought to have seen that the suit schedule property purchased by the plaintiff and the said land originally belongs to Sigili

Appanna Dora and his two sons i.e., defendants 1 and 2 and his grand sons i.e., defendants 3 and 4 and the said land was sold to the plaintiff under an agreement of sale dated 29.6.1081 for a sale consideration of Rs.7800/-. The said Sigili Appanna Dora and defendants 1 and 2 executed the agreement in favour of plaintiff and the said Sigili Appanna Dora and his two sons put on the thumb marks on the sale agreement before the attestors. There is a covenant and the clause embodied in the sale agreement to the effect that the vendor under the sale agreement to that effect that the vendor of the sale agreement has to execute sale agreement on requisite stamp papers and get it registered in the favour of plaintiff when ever the vendee calls upon to the vendors or their Lrs to do so and the expenses for the stamps paper, registration charges are to be bound by vendee (plaintiff) and it is clearly mentioned in the third para 17th line of sale agreement.

The trial court ought to have seen that in the sale agreement that there is mention that the sale consideration is Rs.7800/- and the appellant/Plaintiff paid Rs.800/- at the time of execution of sale agreement and the property was mortgaged to Potnuru

Appalaswamy and anothr by the Sigili people for a sum of Rs.4500/- and it was agreed to discharge the said mortgage amount by the appellant/plaintiff and the mortgage and pronote dt. 14.3.1978 marked as Ex.A.2 along with endorsement before the witnesses 18 and the plaintiff discharged the said mortgage and get Ex.A.3 and the appellant/plaintiff got physical possession of suit schedule land as per letter of assurance dt.21.12.1981 which was given by Sigili people to the Appellant/Plaintiff.

 The trial court ought to have seen that there is an endorsement on Ex.A.2 i.e., dared 21.12.1981 and it discloses that the land was handed over to the appellant/plaintiff and she discharged the mortgage amount to the concerned. The respondents/defendants misrepresented the same.

 The trial court ought to have seen that the said suit was filed in time as per the terms and conditions mentioned in the sale agreement and the appellant/plaintiff got issued a registered legal notice dated 24.1.2006(Ex.A.4) and call upon the plaintiff to execute a sale deed and register it. The reply notice dated 10.2.2006 (Ex.A.5) categorically denied and stated that the agreement to sell cannot be enforced under Law after lapse of 25 years sent by the counsel for defendants. As per section 54 of

Indian Limitation Act, no fixed time is arrived in the agreement of sale . The limitation starts from the date of issuing of the notice and demanded for specific performance of agreement of sale within 3 years from the date of denial or refusal of performance by the executants of the agreement of sale from the date of denial or refusal of performance by the executants of the agreement of sale which is a legal position under Limitation Act.

As per second Limb of Article 54 of Limitation Act, 1963 the 19 plaintiff is entitled to file suit within 3 years from the date of refusal of performance by the executants of the agreement which is a legal position and the appellant/plaintiff is entitled to file the suit.

 The Division Bench in a decision in 2003(6) Alt page 151, wherein it is held : The Limitation Act, 1963 Article 54 “ Suit for specific performance cannot be held in the judgment mentioned “second limb of Article 54 is attracted and plaintiffs are entitled to file the suit within 3 years from the date of the refusal of performance” as such the suit is not barred by limitation and the suit is filed within time. The court below did not follow the said decision.

 The trial court ought to have seen that the appellant/plaintiff has been in actual, effective position and continuous possession and lawful possession and enjoyment of the suit schedule land to the knowledge of everybody as per Exs.A.2 and A.3 and as a purchaser she was permissive possession given to P.W.5 to

P.W.7 afterwards, the plaintiff leased out on dt.13.12.1993 and he was inducted and permissive possession given by the plaintiff for the suit schedule land as lessee by one Kikkara Satyam. The said Kikkara Satyam is a tenant holding owner since the execution of lease agreement till today in respect of the suit schedule property. The Lessee has been paying rents regularly to the plaintiff and highhandedly trying to trespass into the plaint schedule property by the defendants, one Kikkara Satyam filed a 20 suit in O.S.No.157/2006 for permanent injunction on the file of this court against the same defendants and the said suit was dismissed for default on 15.11.2016. A petition was filed along with chief examination affidavit to set aside the dismissal order for default since Kikkara Satyam has been paying land revenue for the suit schedule property.

 The trial court ought to have seen that the defendants 1 to 4 being Legal representatives of Sigili Appanadora and D.5 to D.7 are subsequent purchasers and D.8 to D.10 being the Lrs of Sigli

Dalayya and D.11 is subsequent purchaser and all of them are liable to execute a sale deed in favour of appellant/Plaintiff. The appellant/Plaintiff always willing and ready to perform her part of contract and all material dates from the date of agreement till the decree. The said agreement is subsisting still in force. The defendants 1 to 4 colluded with D.5 to D.7 and others manipulated the things with a view to cause wrongful loss to the plaintiff and played mischief and fraud by the respondents to the Sub Registrar and obtained sale deed on 14.11.2005 in favour of defendants 5 to 7 for the part of the suit schedule property.

 The trial court ought to have seen the said document is collusive and sham and it will not create any right to the defendants 5 to 7 since the document is null and void and void abinitio and did not create any right title or interest in their favour and it will not disturb the rights of plaintiff since the sale 21 agreement was in favour of appellant/plaintiff and defendants 1 to 4 have no right to purchase the property.

The trial court ought to have seen during the period of dismissal of suit in I.A.No. 358/2013 was filed to set aside the dismissal for default order. The defendants 1 to 4 are trying to sell the schedule property to others and the appellant/plaintiff got issued a registered legal notice on 30.10.2013(Ex.A.7) to defendants 2 to 4 and D.12 and others categorically mentioned in the said notice acts regarding no reply was given by them.

The document dt.8.11.2013 in favour of the said Thota Bharati for the part of schedule property by playing fraud and got the same.

 The trial court ought to have seen that the documents are collusive and sham and they will not create any right to the properties to the defendants 5 to 7 and 11 and the said documents are null and void and void abinitio and they are not created any right, title or interest in favour of Thota Bharati and it will not disturb the rights of appellant/plaintiff.

 The trial court ought to have seen the document dt.8.11.2013 executed by D.11 is null and void and on the basis of it the deed is void and void abinitio on the basis of invalid sale deed and threatened highhandedly to attempt to grab the property.

 The trial court ought to have seen the contents of legal notice dt.3.12.2013 (Ex.A.10) issued to the defendants 11 and 12 22 and present surpanch of Burjavalasa village and inspite of receipt of it none of chosen any reply.

The trial court ought to have seen the calendar and judgment passed in C.C.No.34 of 2014 while considering the case.

 The trial court ought to have seen the said suit is filed for granting specific performance and the cause of action for the suit arose on 29.6.1981 (Ex.A.1) and the same was executed by Sigili

Appanna Dora and defendants 1 and 2, after the death of Appanna

Dora, the defendants 1 to 4, L.Rs of D.1 i.e., D.7 to D.10 are liable to execute a sale deed in favour of appellant/plaintiff and as per

Ex.A.4 and Ex.A.7 when a notice was issued by the appellant/plaintiff which was addressed to defendants 1 to 4, D.5 to

D.8 and D.11 and the defendants dragging to execute a sale deed for registration in favour of plaintiff in respect of the suit schedule property at S.Burjavalasa village.

The observations made by the trial judge at para Nos. 7, 17 and 22 are not correct. The trial court went wrong in dismissing the suit and the appellant/plaintiff requests the court to set aside the judgment and decree passed on 21.12.2016 in O.S.No.73/2006 on the file of Junior Civil Judge, Gajapatinagaram.

6.Heard. Written arguments filed by both counsels on behalf of

Appellant as well as Respondents herein.

23

7. 1) Whether the Decree and Judgment dated 21.12.2016

passed by the Junior Civil Judge, Gajapatinagaram in

O.S.No.73/2006 is liable to be set aside as prayed for?

2) Whether this court needs interference?

Point No.1:

The contention of appellant/plaintiff is that she filed the suit against the defendants for specific performance of sale agreement dated 29.6.1981 in respect of suit schedule property. Originally it belongs to Sigili

Appanna Dora and his two sons i.e., defendants 1 and 2 and his grand sons defendants 3 and 4. The said land was sold to her under Ex.A.1, for sale consideration of Rs.7800/- and Ex.A.1 was executed by Sigili

Appannadora, the defendants 1 and 2 in her favour.

7(a) The contention of appellant/plaintiff is that at the time of the said sale agreement a part payment of Rs.800/- was paid to them.

The said property was under mortgage to one P.Appalaswamy for

Rs.4500/- and it was further agreed that the said mortgage has to be discharged by appellant/plaintiff. Accordingly, the appellant/plaintiff discharged the mortgage and got physical possession of suit schedule land and she has been in actively and physical and continuous possession and enjoyment of the same to the knowledge of one and all in the locality as a purchaser for a period of ten years. After wards the appellant/plaintiff leased out the suit schedule land to the lessee by name K.Satyam son of

Ramu of the same village on 13.12.1993 . He was given permissive possession of the said land as a lessee and he has been paying rents regularly to the appellant/plaintiff.

24 7(b) The contention of appellant/plaintiff is that she has been paying land revenue in respect of the suit schedule lands. The recitals of the sale agreement discloses that the amount of Rs.800/- being the balance of sale consideration due to be payable by the appellant/plaintiff at the time of registration of the sale deed to her vendors. There is a covenant clause embodied in the sale agreement to the effect that the vendor (appellant/Plaintiff) has to get regular sale deed on requisite stamp papers and got it registered in the name of the vendee when ever the vendee calls upon to the vendor to do so.

7(c) The contention of appellant/plaintiff is that the defendants

No.2 and grand sons of of said Appanna Dora i.e., defendants 3 and 4 and

Lrs of D.1 i.e., D.7 to D.10 are bound to execute a regular sale deed in the name of appellant/Plaintiff. She got issued a registered lawyer’s notice

dated 24.1.2006 through her counsel added to D.1 to D.4, and others

and called upon them to attend Sub Registrar’s office at Therlam to execute a regular sale deed on receipt of balance of sale consideration

Rs.2500/-. On receipt of the said notice, the defendants 1 to 4 gave a reply refusing to register any sale deed for the suit schedule lands. Hence, the appellant/plaintiff filed the suit against D.1 to D.4, D.7 to D.10.

7(d) The contention of appellant/plaintiff is that she is always ready and willing to perform her part of contract from the date of agreement and the said agreement is still in force. The defendants colluded with D.5 to D.7 and others manipulated things with a wrongful loss to theappellant/plaintiff and they played mischief and obtained a sale deed on 14.11.2005 in favour of D.5 to D.7 for the part of schedule 25 property and during the period of dismissal for default of the suit, another sale deed dated 8.11.2013 was executed in favour of Thota Bharathi (D-11) for the part of the suit schedule property. The said documents are collusive and sham and they will not create any right to the purchasers since the documents are null, void and abinitio, since the sale agreement was in favour of appellant/plaintiff and it is subsisting.

7(e) The contention of appellant/plaintiff is that the defendants colluded with one Pandranki Santhosh Kumar and others and trying to trespass into the suit schedule property. The appellant/plaintiff got issued a registered legal notice dt.30.10.2013 to the said persons and the defendants and to the Tahsildar, Dattirajeru and requested the Tahsildar not to execute any registered documents in favour of above defendants relating to any part of suit schedule property as per Article 10(K) Table fee under Registration Act and to stop registration of any schedule and the same was served on him but the proposed defendants obtained a sale deed on 8.11.2013 and the same was null and void. Hence, the appellant/plaintiff filed the suit against the defendants 1 to 4 to pass a decree for specific performance of sale agreement which was executed by them in favour of appellant/plaintiff and directing the defendants 1 to 4 to execute a regular sale deed on receipt of balance sale consideration of

Rs.2500/- from her and direct them for possession of “B” schedule property to the plaintiff.

7(f) The contention of appellant/plaintiff is that she filed the documents i.e., Exs.A.1 to A.11 and they were marked and her evidence is supported by P.Ws.4 to 10.

7(g)The contention of appellant/Plaintiff is that she is in possession of suit schedule land from the date of Ex.A.1 and she also discharged the mortgaged amount and she filed Exs.A.2 and A.3 to that effect and later she leased out the property to K.Satyam and she has been 26 receiving the rents regularly from Kikkara Satyam and she has been paying land revenue to the suit schedule property.

7(h)The contention of appellant/plaintiff is that the sale deeds which were executed by defendants 2 to 4 and late Sigili Dalayya in favour of defendants 5 to 7 and defendant No.11 are nominal and they are null and void

The said documents are not binding on the appellant/plaintiff.

7(i)The contention of appellant/plaintiff is that she has been in possession and enjoyment of plaint schedule property since the date of Ex.A.1 and she is entitled for specific performance of sale agreement i.e., Ex.A.1 in respect of suit schedule property and she further requests the court that she is entitled for the reliefs claimed by her against the defendants as prayed for.

7(j)The contention of appellant/plaintiff is that the judgment and decree passed by the learned trial judge is not on correct lines and the suit filed by her against the defendants is in time i.e., after refusal of notice by the defendants herein and the suit filed by her is not barred by Limitation.

7(k)In support of the contentions of learned counsel for appellant/plaintiff, he relied upon the following case Laws:-

1. In D. Sarala vs P. Pratap Reddy on 7 September, 2006 of

A.P. High Court wherein it is held that ; :………..by virtue of Section 21 of the Limitation Act, 1963, the subsequent purchaser can be deemed to be a party to the suit only from the date when he was impleaded or when the application for impleadment was filed, but not from any earlier date. If so, the suit for specific performance against the subsequent purchaser, whether any relief was sought for against him or not, was undoubtedly barred by limitation.

2. In S. Abdul Khader vs Abdul Wajid (D) By Lrs. & Ors on 11

September, 2008 of Honourable Supreme Court, wherein it is held that,

27 ….It is well established that granting relief of specific performance is purely discretionary and is dependendent on the provisions of Section 20 of the aforesaid Act and the Court under Section 21 thereof has the power to award compensation for breach of contract instead of decreeing the suit for specific performance, as has been done in the present case and, in our view, quite rightly.

3. In Guruswamy Nadar vs P.Lakshmi Ammal(D) Through Lrs.

& ... on 1 May, 2008 of Supreme Court, wherein it is observed that, …….In R.K.Mohammed Ubaidullah & Ors. v. Hajee C.Abdul Wahab ) by L.Rs. & Ors. [AIR 2000 SC 1658].(D In this case it was observed that a person who purchased the property should made necessary effort to find out with regard to that property, whether the title or interest of the person from whom he is making purchase was in actual possession of such property. In this case, the plaintiff filed the suit for specific performance of contract and during the pendency of the suit, rest of the defendants brought subsequent transaction of sale by the defendant in their favour claiming the title to the suit property on the ground that they were the bona fide purchasers for value without notice of prior agreements in favour of plaintiff and they were also aware that the plaintiff was in possession of the suit property as a tenant for last several years and that they did not make any inquiry if plaintiff had any further or other interest in the suit property on the date of execution of sale deed in their favour apart from that he was in possession of the property as a tenant. In that context their Lordships observed that subsequent purchaser cannot be said to be bona fide purchaser of the suit property for value without notice of suit agreement and plaintiff would be entitled to relief of specific performance. Their Lordships after considering the effect of Section 19 of the Specific Relief Act as well as Section 52 of the Transfer of

Property Act held that subsequent purchaser has to be aware before he purchases the suit property. So far as the present case is concerned, it is apparent that the appellant who is a subsequent purchaser of the same property, he has purchased in good faith but the principle of lis pendens will certainly be applicable to the present case notwithstanding the fact that under section 19(b) of the Specific Relief Act his rights could be protected.

28

4.Doctrine of Lis Pendens :

The meaning of lis pendens is - ‘a pending legal action’, wherein Lis means the ‘suit’ and Pendens means ‘continuing or pending’. The doctrine has been derived from a latin maxim “Ut pendent nihil innovetur” which means that during litigation nothing should be changed.

The principle embodying the said doctrine is that the subject matter of a suit should not be transferred to a third party during the pendency of the suit. In case of transfer of such immovable property, the transferee becomes bound by the result of the suit.

The doctrine of Lis Pendens essentially aims at (i) avoiding endless litigation, (ii) protecting either party to the litigation against the act of the other,

(iii) avoiding abuse of legal process.

Lis Pendens is captured under Section 52 of the Transfer of Property Act, 1882 (the “Act”). The Section essentially prohibits alienation of immovable property when a dispute relating to the same is pending in a competent court of law. It is based on the principle that the person purchasing an immovable property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree.

APPLICATION OF SECTION 52 OF TRANSFER OF PROPERTY ACT –

CONDITIONS TO BE SATISFIED

The Supreme Court in a three Judge Bench in Dev Raj Dogra and others v. Gyan Chand Jain and others construed the meaning of Section 52 of the

Transfer of Property Act and laid down following conditions:

1. A suit or a proceeding in which any right to immovable property is directly and specifically in question must be pending;

2. The suit or proceeding should be pending in a Court of competent jurisdiction;

3. The suit or the proceeding should not be a collusive one;

4. Litigation must be one in which right to immovable property is directly and specifically in question;

5. Any transfer of such immovable property or any dealing with such property during the pendency of the suit is prohibited except under the authority of Court, if such transfer or otherwise dealing with the property by any party to the suit or proceeding affects the right of any other party 29 to the suit or proceeding under any order or decree which may be passed in the said suit or proceeding.

5. In G.Manoharan vs R.Edwin Solomon on 25 February, 2020 of Madras High Court, wherein it is observed that,

In K.S. Vidyananadam (1997) 3 SCC 1) K.S. Vidyanadam [(1997) 3

SCC 1] wherein it is held that :

(i) The courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored.

(ii) The courts will apply greater scrutiny and strictness when considering whether A.S.No.634 of 2019 purchaser was “ready and willing” to perform his part of the contract.

(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the agreement. The courts will also “frown” upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three-year period is intended to assist the purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part- performance, where equity shifts in favour of the purchaser.

6 . In M.K.Chabbra vs Damanjit Kaur on 7 January, 2019 of Delhi High

Court, wherein it is observed that,

In the case of N. P. Thirungnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115, wherein it is held that;

The observations made in paragraph 5 of the said judgment are reproduced hereinunder:

"....Section 16(c) of the Act envisages that Plaintiff must plead and prove that he had performed or has always been ready and willing to 30 perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the Defendant. The continuous readiness and willingness on the part of the Plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the Plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the Plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the Plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the Defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the Plaintiff was ready and was always ready and willing to perform his part of the contract." 7 (l) The contention of appellant/plaintiff is that is that the appellant requests the Court to allow the appeal filed by her and to set aside the

Judgment and decree passed by learned trial Judge in O.S.No.73.2006,

dated 21.12.2016 passed by Junior Civil Judge, Gajapatinagaram and

further requests the Court to Decree the suit in her favour and against the defendants as prayed for.

8.Whereas the contention of respondents Nos. 2 to 7, 9 and 10 /Defendant Nos. 2 to 7, 9 and 10 is that there is a contract in between the appellant/plaintiff and late Sigili Dalayya, Sigili Laxmana and after of Sigili

Appannadora.

8(a) The Respondents 2 to 7, 9 and 10 /Defendant Nos. 2 to 7, 9 and 10 is that the appellant/plaintiff never visited Burjavalasa and her husband 31 worked as a Police Constable during the year 1980 to 1985. Their contention is that the husband of appellant/plaintiff used to advance loans for interest and in the same process the plaintiff obtained thumb marks of Sigili Dalayya, Sigili

Laxmana and their father Appannadora on different blank papers by the time

Appanna Dora took a loan of Rs.800/- from husband of plaintiff. The said loan was discharged by late Appannadora with interest to the husband of appellant/plaintiff who did not return the papers and later he got transfer from

Burjavalasa and never visited the same.

8(b) The contention of respondents 2 to 7, 9 and 10 /Defendant

Nos. 2 to 7, 9 and 10 is that during the life time of husband of appellant or appellant she never put for any claim against Appannadora or his sons Sigili

Dalayya (1st defendant) and his brother Sigili Laxmana (2nd defendant) or other heirs on any ground. The said Appannadora died about 10 years ago.

8(c)The contention of respondents 2 to 7, 9 and 10 /Defendant

Nos. 2 to 7, 9 and 10 is that later Sigili Dalayya and Sigili Laxmana given up cultivation over the plaint schedule property and started to use it as thrashing floor. They also redempted the mortgage debt of Potnuru Appalaswamy.

8(d)The contention of respondents 2 to 7, 9 and 10

No.3/Defendant Nos.2 to 7, 9 and 10 is that during the life time of Appannadora, the revenue authorities also issued the pattadar pass book and title deed in the year 1995 in his favour in respect of the plaint schedule land since he being the eldest member in the family.

8(e)The contention of respondents 2 to 7, 9 and 10 No.3/Defendant

Nos.2 to 7, 9 and 10 is that the defendants 5 to 7 requested the Sigili Dalayya and Sigili Laxmana (defendants 1 and 2 ) to lease out a portion of Ac.1.00 cents in the plaint schedule dry land to keep their sheep and cattle by offering an 32 amount of Rs.10,000/- to enjoy the thrashing floor in lieu of interest for 3 years and agreed to vacate the same after 3 years by receiving the amount of

Rs.10,000/- paid by them .

8(f)The contention of respondents 2 to 7, 9 and 10

No.3/Defendant Nos.2 to 7, 9 and 10 is that the defendants 1 to 4 and their other sharers permitted defendants 5 to 7 in possession and enjoyment of the property i.e., to an extent of Ac.1.00 from the last ten years and the possession of the said land in Survey No.54/4 was given to one Kikkara Satyam of

Burjavalasa village at his request by receiving Rs.6,000/- from him. The said

Kikkara Satyam started enjoying the remaining portion of about Ac.0.50 cents in the plaint schedule land by keeping his sheep and cattle along with his relatives.

Hence, the allegations which are pleaded by the appellant are baseless and she is a stranger and she had no acquaintance with the physical features of the plaint schedule property as on the date of issuing speculative notice dt.

24.1.2006 at the instance of Kikkara Satyam and Potnuru Ramana of

Burjavalasa village.

8(g)The contention of respondents 2 to 7, 9 and 10

No.3/Defendant Nos.2 to 7, 9 and 10 is that due to hike of prices of land the said Kikkara Satyam along with the then Surpanch of Potnuru Ramana of

Burjavalasa village who is doing commission business in Real estate and they approached defendants 1 to 4 and requested them to sell away the plaint schedule land at Rs.50,000/- per acre but the same was refused by them to sell the land . The defendants 5 to 7 offered good price to defendants 1 to 4 and their relatives for the land in their possession and they sold 0.97 cents of land to defendants 5 to 7 by way of registered sale deed dated 14.11.2005 and they also laid foundation after purchase in that land and constructed slabbed house also.

33 8(h)The contention of respondents 2 to 7, 9 and 10

No.3/Defendant Nos.2 to 7, 9 and 10 is that the said Kikkara Satyam approached the defendants 1 to 4 and offered Rs.1,00,000/- per acre and sell away the remaining 0.46 cents which is in his possession along with his relatives in the plaint schedule land but the same was refused by the defendants 1 to 4. On that the said Kikkara Satyam bore grudge against defendants 1 to 4 with the active support of Surpanch Potnuru Ramanana and they might have approached the plaintiff and her son who is a police officer and obtained the thumb marks of several persons of Burjavalasa including the defendants 1 and 2 and their father by the time of borrowing money from the husband of appellant and might have fabricated the documents styled as agreement to sell and got issued notice dt.24.1.2006 with false allegations.

8(i) The contention of respondents 2 to 7, 9 and 10 No.3/Defendant

Nos.2 to 7, 9 and 10 is that the defendants 5 to 7 are bonafide purchasers and the sale deed dated 14.11.2005 obtained by them is valid and binding . The appellant/plaintiff was silent about the construction by defendants 5 to 7 in the plaint schedule land in the legal notice issued by her and about the remaining land which is in permissive possession and enjoyment of Kikkara Satyam and his relative.

8(j)The contention of respondents 2 to 7, 9 and 10

No.3/Defendant Nos.2 to 7, 9 and 10 is that a person who is not in possession of land covered by agreement to sell, even for arguments sake one cannot file a suit for specific performance of contract after lapse of 25 years of the alleged agreement to sell without paying the sale consideration and not entitled to the protection under section 53 of

Transfer of Property Act.

34 8(k)The contention of respondents 2 to 7, 9 and 10/

Defendant Nos. 2 to 7, 9 and 10 is that the alleged agreement to sell i.e.,

Ex.A.1 is barred by limitation and the suit is filed based on that document is liable to be dismissed. The appellant/plaintiff is not entitled for any reliefs claimed by her against them and there are no merits to consider the request of the appellant/plaintiff and the respondents Nos. 2 to 7, 9 and 10 request the court to dismiss the appeal with costs.

9The contention of Respondent No.11/defendant No.11 is that she is absolute owner of the plaint schedule property. She purchased part of suit schedule property from Sigili Dalayya and others (Defendants 1 to 4) and their family members. After lapse of 25 years, the appellant/plaintiff filed this suit based on Ex.A.1 and the question of inducing another man by the plaintiff into the plaint schedule land does not arise.

9(a)The contention of R.11/D.11 is that after due verification of revenue records the R-11 purchased 0.40 cents of land which belongs to Siligi

Dalayya and others i.e., defendants 2 to 4 since they got absolute right over the property and since the date of said transaction, she is in possession of the same.

Hence, the suit filed by the appellant/plaintiff against her is not maintainable one.

10In support of contentions of respondents, the learned

counsel for respondents relied on the following case laws which are as

follows :

(1) In Urvashi Aggarwal (Since Dead) vs Kushagr Ansal (Sucessor

In ... on 6 March, 2019 of Supreme Court wherein it is held that, 35

It is settled law that the vendee cannot claim that the cause of action for filing the suit has not arisen on the date fixed in 12 | P a g e the contract on the ground that certain conditions in the contract have not been complied with. (See: Fateh Nagpal & Co. v. L.M.

Nagpal1, Vishwa Nath Sharma v. Shyam Shanker Goela2 and K. Raheja

Constructions Ltd. v. Alliance Ministries) reported in 1995 Supp (3)

Sec.17).

It is further observed that

I n K.S.Vidyanadam v. Vairavan4 wherein it was held as follows: “Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property.”

2.In Y. Mariya Selvam Vs. E.Yesuraj dt.7th June, 2017 of Madras High

Court, wherein it is observed that,

In the case of S.Maruthai and another v. Gokuldoss Dharam

Doss and four others reported in 1999 (III) CTC 724 wherein it has been held as follows:

Being in possession of the property, assuming he is in possession, may enure to his benefit to contend in a suit for possession filed by the owners that he is in possession in part performance of the contract; that he has done some act in furtherance of the contract and that he is ready and willing to perform the contract and thereby try to protect his possession. This plea of being in possession will not be available to him to save his suit for specific performance from the law of limitation.

Under Article 54 of the Limitation Act three years is prescribed as the time limit and it starts to run from the date fixed for the performance of the contract or if no such date is fixed when the plaintiff has notice that performance is refused.

It is further observed that

In J. Vasantha v. M. Senguttuvan, 1997 (2) L.W 820., had held that even if for a single day the plaintiff/agreement holder is not ready to take the sale deed the equitable remedy should not be granted 36 and the readiness and willingness must be there continuously from the date of the agreement upto the date of hearing .

Under Order VII, Rule 1 CPC, the plaint should also contain the facts constituting the cause of action and when it arose. Order VII,

Rule 1 (e) would show that the facts constituting the cause of action and the facts to prove that the suit is filed in time should be stated. Whenever a suit is instituted beyond the period of three years, in a suit for specific performance, the plaint should contain the facts as to show how the suit fall within the period of limitation

Section 63 of the Indian Contract Act, 1872 provides that every promisee may extend time for the performance of the contract. Such an agreement to extend time need not necessarily be reduced to writing, but may be proved by oral evidence or in some cases, even by evidence of conduct including forbearance on the part of the other party .

It is further observed that

In the case of Panchanan Dhara and others v. Monmatha Nath

Maity (Dead) through LRs and another reported in 2007-1-L.W. (Crl.) 652 wherein it has been held as follows: ?21.A bare perusal of Article 54 of the Limitation Act would show that the period of limitation begins to run from the date on which the contract was to be specifically performed. In terms of Article 54 of the Limitation Act, the period prescribed therein shall begin from the date fixed for the performance of the contract. The contract is to be performed by both the parties to the agreement.

3.In M.Sankar Nadar Vs. Deva Krishnan dt.20.1.2017 of

Madras High Court, wherein it is held that , “Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff ”

It is further held that, 37

When a suit is filed on the strength of an agreement for sale, what has got to be looked into is whether the plaintiff was ready and willing to perform his part of the contract consistent with the terms found in the agreement.

.It is well settled proposition of law that readiness and willingness must be from the very commencement of the agreement till the completion of the contract. While the readiness must actually indicate the financial position of the purchaser to make payment of consideration, the willingness must speak of his frame of mind.

It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short #the Act#). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance.

This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract." 38

In M.Johnson Vs. E.Pushpavalli reported in 2016-3 LW 527, wherein this Court held as follows:

In a suit for specific performance of an agreement of sale, the following are the necessary factors to be pleaded and proved by the plaintiff: (a) that there is a valid agreement entered into between the parties in respect of the suit property; (b) that the plaintiff is always ready and willing to perform his part of the contract, whereas the defendant is not doing so within the time prescribed for completion of the transaction;

(c) that the suit is filed within the period of limitation; and (d) that there is no inordinate or unexplained delay in filing the suit from the date of expiry of the time prescribed under the agreement for the purpose of completion of contract, even though, the suit is filed within the period of limitation.

The inordinate or 6 unexplained delay referred to above, though may not be relevant for the purpose of deciding the question of limitation in filing the suit, however, the same would be very much relevant for the purpose of deciding the issue as to whether the plaintiff is always ready and willing to perform his part of the contract from the date of the agreement till the date of filing the suit.

It is further observed that,

It is well settled that in a suit for specific performance, the bounden duty of the plaintiff is to prove that he is ready and willing to perform his part of the contract all throughout the proceedings commencing from the date of agreement till the date of the decree and such readiness and willingness must be specifically pleaded and established by adducing evidence and not by making mere pleading alone.

In Veerayee Ammal Vs. Seeni Ammal reported in (2002)1

SCC 134, wherein the Honourable Apex Court held as follows:

. When, concededly, the time was not the essence of the contract, the appellant-plaintiff was required to approach the court of law within a reasonable time. A Constitution Bench of this Hon'ble Court in Chand Rani (Smt.) (Dead) By Lrs. v. Kamal Rani (Smt.)(Dead) By Lrs. [1993 (1) SCC 519 held that in case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of contract, the court may infer that it is to be performed 39 in a reasonable time if the conditions are (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of making the contract. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case.

The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to ideosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means as soon as circumstances permit. In Law Lexicon it is defined to mean "A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstance will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space thant 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea

In Rathnavathi and Another v. Kavita Ganashamdas wherein it is held that a mere reading of Article 54 would show that if the date is fixed for the performance of an agreement, then non-compliance with the agreement on the date would give a cause of action to file a suit for specific performance within three years from the date so fixed. But when no such date is fixed, the limitation of three years would begin when the plaintiff has notice that the defendant has refused the performance of the agreement. It was further held, on the facts of the case that it did not fall in the first category of Article 54 since no date was fixed in the agreement for its performance.

It is further held that,

It is settled position that a suit for specific performance in the absence of any period prescribed in the agreement, should be filed 40 within a reasonable time. At no stretch of imagination, the period of 14 years, can be stated as a reasonable period. Therefore, on the ground of latches also, the suit is liable to be dismissed.

It is further held that,

In a suit for specific performance, the discretionary relief could be granted only if the plaintiff makes out a case, that too a strong case for exercising the discretion by the Courts. It is a settled position that the Court should meticulously consider all facts and circumstances of the case and the Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.

10(a)The learned counsel for respondents pray the court to dismiss the suit with costs.

11On perusal of the evidence adduced by both parties, the cross examination of appellant/plaintiff (PW3) clearly shows that the admissions made by her in her evidence, it is manifest that she does not know the names of persons from whom she purchased the plaint schedule property but they are

Tribes, so also in which year she purchased the plaint schedule land and sale consideration, advance amount, balance of sale consideration. She deposed that her husband looked after the matters of their family. She did not go to

Burjavalasa village to verify the physical possession of schedule property either

before filing of the suit or after filing of the suit schedule property. She does not

know who drafted Ex.A.1 and she attested it and she does not know the contents and conditions in Ex.A.1 and subsequent to execution of Ex.A.1 she does not know to whom the mortgage amount was redeemed as per the contents of

Ex.A.1 and she does not know who discharged the mortgage debt. She has not 41 filed any suit for cancellation of sale deeds in favour of defendants 5 to 7 and

D.11.

12.P.W.4-Kikkara Appalanaidu @ Appanna son of Satyam and he deposed in similar lines of appellant/Plaintiff in his chief examination. His cross examination reveals that, he does not know the appellant/plaintiff since he was aged 10 years old and she belongs to Vizianagaram and her husband worked as a constable of Burjavalasa Police Station and his name is Rama Narayana. One

Kanigiri Narasayya and Suryanarayana used to cultivate the plaint schedule property by erecting the cattle shed in the plaint schedule land and they used to raise jute and ground nut crops in the plaint schedule property. Since 1991 they used to cultivate the plaint schedule property for a period of 4 or 3 years and thereafter they leased out the plaint schedule property to them. The fact of leasing out the plaint schedule property mentioned in Ex.A.4 i.e., notice dated 24.1.2006 issued by appellant. He admitted that defendants 5 to 7 constructed three houses in their property and he does not know whether the schedule was amended or not subsequent to the construction of houses. Ex.A.1 was drafted by one Kothapalli Narasimha Sastry. One Gedila Appalanaidu acted as an attestor.

He knows the contents of Ex.A.1. As per his knowledge Ex.A.1 was drafted for receipt of sale consideration of Rs.800/- and agreed to appropriate mortgage amount of Rs.4500/- in favour of Potnuru Appalaswamy and agreed to pay remaining amount of Rs.2,500/- at the time of registration of sale deed. P.W.4 does not know Potnuru Appalaswamy and Kusumanchi Chandrudu are having mortgage over the plaint schedule property through father of defendants 1 and 3.

12(a) P.W.4- stated in his cross examination that after four months of

Ex.A.1 the mortgage was redeemed by appellant and her husband and he was present at the time of redemption of mortgage and endorsement with regard 42 to redemption of mortgage was executed on the back side of Ex.A.2 and it was scribed by Kothapalli Narasimha Sastry . At the time of endorsement on Ex.A.2 ,

P.W.2 was aged about 10 years and he does not know who paid the amount under endorsement of Ex.A.2. Ex.A.3 was executed in the year 1991 and he does not know that the father of defendants 1 and 2 mortgaged the plaint schedule property to Kusumanchi Chandru and Potnuru Appalaswamy and he does not remember when plaintiff came to their village and he added that the plaint schedule property was converted into thrashing floor about 13 years ago. One

Potnuru Ramana son of Potnuru Appalaswamy is president of their village.

13. P.W.5-Samadhula Suryanarayana @ Demudu son of Ramudu and his chief affidavit is similar to the lines of chief affdiavits of P.Ws.3 and

P.W.4 on all aspects.

13(a) His cross examination reveals that the extent of plaint schedule land is Ac.1.43 cents and he does not know the boundaries of the suit schedule property so also the pattadar of the said property. He does know from whom the appellant/plaintiff purchased the plaint schedule property. The appellant informed him that she purchased the plaint schedule property in the year 1988. Husband of plaintiff delivered the plaint schedule property to PW5 in the year 1986 for cultivation. He has not gone through the records of plaint schedule property. He cultivated the same from 1986 to 1990. The husband of appellant died in the year 2005.

14.P.W.6-Kanigiri Narasayya is a resident of Gushini village and his chief examination affidavit is similar to the lines of appellant/PW4 and P.W.5 respectively.

14(a)P.W.6 stated in his cross examination that he cultivated the land from 1982 to 1985. Husband of appellant/plaintiff handed over the plaint schedule property to him. He does not know how the husband of 43 plaintiff acquired the plaint schedule property. He did not see any sale deed of husband of plaintiff. He is servant to the plaintiff to looking after the welfare of her cattle. He does not know who is pattadar of plaint schedule property.

He used to cultivate the plaint schedule property by moving from his native place from day to day.

15.P.W.7-Isarapu Ramakrishna who is son of appellant/plaintiff (PW3) is a resident of Yada street near Bahmamgarimatam,

Kothapeta, Vizianagaram and his chief examination is similar to that of the chief examination of PWs.3 to 6 respectively.

15(a) P.W.7 stated in his cross examination that his father worked as a constable in Burjavalasa Police Station in the year 1980-1981 for 2nd time.

By that time he was 11 years old. They used to reside at Vizianagaram along with his mother. His father informed that he purchased the plaint schedule property from S.T., people, Burjavalasa. Himself and his father visited plaint schedule property in the year 1990, by that time the plaint schedule property is cultivable land consists of groundnut crop. He does not know the names of executants of Ex.A.1 since his father alone used to look after the plaint schedule property. His father asked the executants of Ex.A.1 for executing registered sale deed in the year 2000 but no notice was issued by that time. In the year 1991, his father entrusted him and one Kikkara Satyam to cultivate the plaint schedule property with his assistance. Kikkara Satyam cultivated the plaint schedule property from 1990 to 1992 His father died in the year 2005. His father handed over Exs.A.1 and A.2 to him. His mother informed him about the details of the case. He does not know the scribe of Exs.A.1 and A.2 and who were present at that time. As per Ex.A.2, there is a balance amount of

Rs.2,500/- covered under Ex.A.1. At present, the plaint schedule property stands in the name of defendants. He admitted that by the time of Ex.A.4 notice dated 44 24.1.2006, the defendants 5 to 7 constructed houses in part of plaint schedule property and they received information from Kikkara Satyam after construction of houses.

16.P.W.8-Kothapalli Narisimha Sastri and his chief affidavit was filed but was eschewed.

17.P.W.9-Gadela Sanyasi who is a resident of Burjavalasa village and he filed chief examination affidavit and it discloses that it is similar to the contents of chief examination affidavit of P.Ws.3 to 7 respectively.

17(a)P.W.9 stated in his cross examination that Ex.A.1 was executed about 10 years ago and it took place at the house of P.Appalaswamy and one G. Appalanaidu scribed the same. The defendants 1 to 3 executed

Ex.A.1 in favour of appellant/plaintiff . By the time of Ex.A.1, the plaintiff had been resided at Vizianagaram. He did not act as an attestor of Ex.A.1. At the time of Ex.A.1, the defendants received Rs.4500/- and agreed to receive a registered sale deed after receipt of balance consideration of Rs.2500/- . He does not know what happened thereafter. Defendants 5 to 7 constructed five hours in plaint schedule property about 11 years ago and the defendants 5 to 7 used to keep their sheep on plaint schedule property with the permission of D.1 to D.3.

18P.W.10-Nandala Appanna Dora is a resident of S.Burjavalasa

Village and his chief examination affidavit is also similar to the chief examination affidavit of P.Ws.4 to 7 and 9 respectively.

18(a)He stated in his cross examination that he does not know the real owners of the plaint schedule property and from whom plaintiff purchased the plaint schedule property. Subsequently the counsel for defendants filed a memo stating that P.W.10 appears to be taken alcohol and hence, subsequently, his cross examination was not recorded.

45

19.On perusal of the contents of Ex.A.1, it reveals that “it is an unregistered sale agreement dated 29.6.1981 executed by Sigili

Appanna son of Appanna Dora, Sigili Dalayya son of Appanna and Laxmana in favour of Isarapu Lakshmi wife of Rama Narayana, resident of near Kothapeta,

Gollapeta, Vizianagaram (Appellant/Plaintiff) in respect of land in Survey No.

54/4 to an extent of Ac.1.43 cents:

19(a)It further discloses, “ that the said land is ancestral property of executants and they are in possession of the same and the consideration was fixed at Rs.7800/- and the executants received Rs.800/- as cash from the appellants/plaintiff..” 19(b) It further discloses that, “the executants obtained loan of Rs.5000/- from Pathivada

Appalaswamy who is a resident of Burjavalasa earlier and they also executed a pronote and the possession of suit schedule property was given to him and the said mortgage amount of Rs.4000/- has to be discharged by appellant/plaintiff and hence, the said mortgage document was cancelled by them and the appellant/plaintiff has to be receive the said mortgage deed and it is a responsibility on her”.

19(c)It further discloses that “ they received Rs.4500/- through

Pathivada Appalaswamy to whom they mortgaged as on the date of Ex.A.1 and they received Rs.800/- in toto i.e., Rs.5300/- and the remaining amount has to pay by the appellant/plaintiff at the time of registration as a balance amount.

The thumb impressions of Sigili Appanna Dora, Sigili Dalayya and Sigili

Laxmana were affixed on Ex.A.1, after the said recitals and it was attested by

Goddu Sanyasi, Gedela Ramunaidu and K.Narasimhamurthy and it was scribed by

Gedela Appalanaidu.

46 20The contents of Ex.A.2 discloses that.

“ it is an unregistered mortgage deed dated 14.3.1978 executed by

Sigili Appanna son of late Bangari Dora, Sigili Dalayya and Sigili Laxmana in favour of Kusumanchi Chandrudu son of Kusumanchi Late Jagannadham and

Pathivada Appalaswamy son of Potnuri Late Sanyasi Naidu, residents of Bobbili

Taluq, Srikakulam District, Gajapatinagaram Sub Division, Burjavalasa village”.

20(a) It further discloses that. “ the executants got the plaint schedule property as ancestral property and they received Rs.4500/- from

Kusumanchi Chandru and another and they mortgaged the suit schedule property in their favour and thumb impressions were affixed by Sigili Appanna Dora,

Sigili Dalayya and Sigili Laxmana and it was attested by Gedela Ramunaidu and

Genji Adivi Naidu and G.Satyam and scribed by Kottapalli Narasimha Sastry.

20(b)It further discloses that, “ the entire mortgage amount was to be discharged by the appellant/Plaintiff for Rs.7800/- since the sale was confirmed in her favour and mortgaged property shall be hand over to the appellant/plaintiff with a condition of executing clear sale deed and it also contains thumb impressions of Sigili Appanna dora, Sigili Dalayya and Sigili

Laxmana and it was attested by Gedela Appalaswamy and K.Narasima Sastry and it is scribed by Gedela Satyanararayana.

21The contents of Ex.A.3 discloses that, “Sigili Appanna Dora son of Sigili late Bangari Dora , Dallayya son of

Appanna Dora, and Lakshmana executed a pronote dt.14.3.1978 in favour of

Kusumanchi Chandru son of K.Jagannadham and Potunuri Appalanaidu son of

P. Sanyasinaidu.

21(a)It further discloses that to discharge the loans to other the said Bangari Dora and two others received Rs.4500/- from K.Chandrudu and 47 another and agreed to pay the same with interest at 0.50 paisa to them and the said Appanna Dora and two others affixed their thumb impressions on all four revenue stamps and it is attested by Gedela Ramunaidu Ramu, Genji Adivinaidu and G.Satyam and it is scribed by Kottapalli Narasimhasastry.

21(b)It further discloses that, the said promissory note amount was paid on 21.12.1981 and the pronote was cancelled and contains thumb impressions of Sigili Appannadora, sigili Dalayya and Sigili Lakshmana and it was attested by Gedela Appalanaidu and K.Narasimha Sastry and it was scribed by Gedela Satyanarayana.

22The above documents clearly shows that the case of appellant/plaintiff about the loan amount of Rs.4500/- obtained by Sigili Dalayya and D.2 and their father Appnnadora and the same was discharged by appellant/ plaintiff and the mortgage was redeemed by her.

22(a)But for the reasons best known to the appellant/plaintiff, she did not place any evidence to show that she was ready and willing to perform her part of contract as per the contents of Ex.A.1, but, she issued Ex.A.4 to Sigili

Dalayya, D.2 to D.4 on 24.1.2006. By the date of Ex.A.4, part of suit schedule land was sold to D.5 to D.7 under a registered sale deed dt.14.11.2005 i.e.,

Ex. A.6 executed by Sigili Dalayya son of Appanna, Siligi Laxmana who is son of

Siligi Dalayya, Bangari Dora son of Laxmana and E.Adinarayana, Siligi Bangari

Dora son of late Ramana , Sigili Kannayya Dora, Siligi Ramu son of Siligi

Bangaridora and Siligi Suri son of Akkanna Dora in favour of Gobbili Tata son of

Appalaswamy, G.Sanyasi and G. Ramu in respect of 0.97 cents of land.

22(b)It is further manifest that the Ex.A.6 clearly shows that Sigili

Dalayya and Defendants 2 to 4 along with some others executed the said sale deed in favour of defendants 5 to 7.

48

23. The contention of appellant/plaintiff is that her case was dismissed for default . 11th defendant got the sale deed dated 8.11.2013 in respect of part of suit schedule property, but no document was filed by her or D.11 when she was examined as D.W.3.

24.The testimony of D.W.1 i.e., Sigili Adinarayana(D-4) clearly shows that himself and others sold 0.97 cents of land to defendants 5 to 7 on 14.11.2005. He stated in his cross examination that he was not born in the year 1991 and he came to know the details of the said property through his father.

They allowed defendants 5 to 7 to enjoy the property and they executed the document to that effect. He does not know when they allowed Kikkara Satyam to enjoy the plaint schedule property.

24(a) His cross examination reveals that they received Ex.A.4 from appellant/plaintiff after execution of registered sale deed in favour of defendants 5 to 7. He has gone through the contents of Exs.A.1 and A.2 and he does not know the attestor of Exs.A.1 and A.2 but he came to know that one Narasimha

Pantulu drafted Ex.A.1 and he does not know whether defendants 5 to 7 constructed house with approved plan. They filed criminal case against Kikkara

Satyam and others vide C.C.No.34/2014 and the same was ended an acquittal.

He was complainant in that case.

25D.W.2-Gobbi Tata who is 5th defendant in this case deposed that himself and his brother purchased 0.97 cents of suit schedule land from Sigili people on 14.11.2005 and they constructed houses in that land by the date of

Ex.A.4 reply notice.

26The version of D.11 i.e., D.W.3 is that she purchased 0.40 cents of land i.e., western portion of the suit schedule property under sale dated dt.8.11.2013 for valid consideration and she is in possession and enjoyment of the same. The said land stood in the name of Sigili Appanadora who is an 49 ancestor of defendants 1 to 4 since the date of purchase she is in possession and enjoyment of the land and it is abutting NH road.

26(a) She stated in her cross examination that she gave reply to the appellant/plaintiff. She does not remember when the appellant/plaintiff issued notice to her as well as when she gave a reply and she deposed in one criminal case.. She purchased part of plaint schedule property from Sigili people but she has not filed documents before the court for the reasons best known to her.

27On a careful scrutiny of testimony of P.Ws.3 to 10 and D.Ws.1 to 3 coupled with the contents of Exs.A.1 to A.11, it is manifest that the appellant/ plaintiff entered into a sale agreement with Siligi Dalayya and 2nd defendant and their father Sigili Appannadora in respect of Ac.1.43 cents of land she paid

Rs.5,300/- to them by way of Exs.A.1 to A.3. After that, the land was given for cultivation to the tenants by appellant/plaintiff. The appellant/plaintiff not examined any of the attestors, scribe of Exs.A.1 to A.3, to prove the contents of

Exs.A.1 to A.3. In the absence of such, the appellant/plaintiff not proved the contents of Exs.A.1 to A.3. Further, her admissions in her evidence clearly shows that she does not know about the contents of Ex.A.1 to Ex.A3 and she never visited suit schedule land prior to filing of the suit or after filing of the suit. All these circumstances goes to show that the appellant/plaintiff failed to prove that she paid Rs.5300/- towards payment of sale consideration to Sigili Dalayya, 2nd defendant and Appannadora. The Defendants 3 and 4 are not parties to Exs.A.1 to A.3 documents filed by her.

27(a)Viewed from any angle it is the duty of the appellant/plaintiff to prove that she is ready and willing to complete the terms and conditions of sale agreement i.e., Ex.A.1.

28The facts on hand are not applicable to the facts mentioned in the above citations as relied by both sides. Applying the 50 principles laid down in the above citations to the facts of this case and considering the circumstances of the case, I do not find any force in the contentions raised by appellant/plaintiff herein.

Point No.2:

29On considering the documentary evidence placed by both parties, learned trial Judge came to the conclusion that appellant /plaintiff is not entitled for the relief claimed by her and the Judgment passed by learned trial Judge is well founded. Hence, interference of this Court does not require at this stage.

30.In the result, the appeal is dismissed with costs by confirming the

Judgment and Decree, O.S. 73/2006, dated 21.12.2016 on the file of Junior

Civil Judge, Gajapatinagaram.

Dictated to the Stenographer, transcribed by her, corrected

and pronounced by me in Open Court, on this, the 26th day of March, 2021.

Sd/-Sudhamani

I Additional District Court, Vizianagaram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Appellant: For Respondents:

(No evidence either oral or documentary adduced on either side)

Sd/-Sudhamani

I Additional District Court, Vizianagaram.

1

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF THE CASES UNDER THE

POCSO ACT cum-I ADDITIONAL SESSIONS JUDGE, VIZIANAGARAM

Present:- Smt. K.Sudhamani,

Special Judge for trial of cases under POCSO Act-cum-

I Additional Sessions Judge, Vizianagaram

Wednesday, this the 2nd day of December, 2020.

P.O.C.S.O. SESSIONS CASE No. 32/2017

Name of the State represented by the Inspector of Police,

ComplainantKothavalasa Police Station.

Name of the accused:Kakara Ramaswamy, s/o late Demudu, 28 years, Caste by Setty Balija, Auto Driver,

Latchumpeta village, L.Kota Mandal,

Vizianagaram District

Date of offence: 27.12.2016 at Aleckya Lay out, outskirts of Musiram Village, Kothavalasa Mandal.

Date of report/Complaint:28.12.2016

Date of appearance of the:4.9.2017 accused in this court.

Date of commitment:-----

Date of commencement :10.12.2019 of trial

Date of closure of trial:17.2.2020

Date of sentence or order :02.12.2020

Explanation for the delay:

In the present case the evidence of the victim could not be recorded within a period of one month from the date of cognizance as contemplated under Sec. 35 (1) of POCSO Act, for the reason that, this court taken cognizance of the case on 9.8.2017 and posted the matter to 4.9.2017. This is a court which has been entrusted with special jurisdiction under various statutes. This court has been dealing with cases under Protection of Children From Sexual Offences Act, Narcotic Drugs and

Psychotropic Substances Act and Electricity Act. Apart from the above, this court has been dealing with the cases under Motor Vehicles Act, Civil Appeals, Criminal Appeals and other Sessions cases besides all types of civil suits and various categories of cases. Pendency of the cases on the file of this court under special jurisdiction is also very high. It become impracticable to post the matter within one month from the 2 date of taking cognizance and to comply with all necessary formalities before fixing the trial schedule. In such circumstances the present case is disposed as contemplated under Sec. 35 (2) of POCSO Act.

This case is filed by Inspector of Police, Kothavalasa P.S. against the accused. This court took cognizance of the case against the accused for the offence under Sections 376 r/w 511, 363, 307, 324, 341, 506, 354-A and B of IPC and sections 9 r/w 10 and section 11 r/w 12 and 18 of POCSO Act, 2012

On 4.9.2017 copies were furnished to the accused. On 16.11.2017 charges under sections 363, 307, 323, 341, 354(A)and (B), 506, 376 r/w 511 of IPC and sections 9 r/w 10 and 11 r/w 12 and 18 of POCSO Act, 2012. The contents of the charges were read over and explained to him in Telugu, for which, he denied and pleaded not guilty and claimed to be tried and the schedule is fixed for trial.

During the trial, on 10.12.2019, P.W.1 and P.W.4 were examined and Ex.P.1 and M.Os.1 and 2 were marked through P.W.1. On 11.12.2019, P.W.2,

P.W.3 were examined. On 12.12.2019, P.W.5 examined. On 13.12.2019, P.W.6 examined. On 16.12.2019, P.W.7 and P.W.8 were examined. On 17.12.2019,

P.W.9 examined and Ex.P.2 and M.Os.3 to 6 were also marked. On 20.12.2019,

P.W.10 to 12 were examined and Exs.P.3 and Ex.P.4 were marked through P.W.10,

Ex.P.6 marked through P.W.11, Ex.P.7 and Ex.P.8 and M.os.7 and 8 are marked through P.W.12. On 23.12.2019, P.W.13 examined and Ex.P.9 marked. On 3.1.2020 P.W.14 examined and Ex.P.10 and 11 are marked. On 27.1.2020, P.W.15 (Additional witness examined as per orders in Crl.M.P.No. 18/2020 dt. 27.1.2020) examined and Exs.P.12 to 15 were marked.. On 29.1.2020, P.W.16 examined and

Ex.P.16 to 25 are marked and the Prosecution evidence is closed.

The Spl.P.P., given up the evidence of Tothari Manga(LW3), Kamma

Gowrinaidu(LW6), Dammu Jaggunaidu(LW7), Kakara Kanakamma(LW9),

Chintala Pydinaidu(LW14), Chitikala Kannayya(LW16) , K.Geetha Madhuri (Scientific assistant, RFSL, Visakhapatnam-LW18) and the then Honourable

Judicial Magistrate of I Class, Kothavalasa (Smt.Annie Rose Marry Christian-

LW20) and their evidence is closed on different dates, respectively.

After closure of the prosecution evidence, the case is posted from time to time for 313 Cr.P.C., examination and on 17.2.2020 accused was examined under section 313 Cr.P.C., , for which he denied the allegations thereon and posted to 19.2.2020 on which date no defence evidence is reported by the counsel for accused on which date defence side evidence is closed and the case is posted for arguments.

On 26.2.2020 heard arguments of Spl.P.P., and Defence side arguments - heard on different dates i.e., 2.3.2020, 4.3.2020, 10.3.2020 and for reply arguments by 3

Spl..P.P., the case is posted 13.3.2020. At this stage, due to Pandamic Covid 19 the case is posted from time to time and finally on 19.11.2020 heard reply arguments of

Spl.P.P., and the case is posted for Judgment. On 2.12.2020 Judgment

pronounced (vide separate Judgment).

Finding of the Court:

In the result, I find accused is guilty of the offence punishable under sections 363, 307, 323, 341, 354-A, 354-B, 506 of IPC and 376 r/w 511 IPC and section 9 (m) r/w 10 and section 11 r/w 12 and 18 of POCSO Act, 2012.

He is convicted under section 235 (2) Cr.P.C.., for the said offences.

P.O. Act is not applicable to the facts of the case.

When the accused was informed about quantum of sentence, he pleaded that he has mother and daughter and she is studying 8th class and pleaded mercy.

Considering the circumstances of the case and gravity of offence accused is not entitled for lenient view and he is sentenced to under go 7(Seven) years Rigorous Imprisonment and to pay fine of Rs.10,000/- (Rupees Ten thousand only) for offence under section 363 of IPC, in default of fine, he shall undergo simple imprisonment for a period of 6(six) months, he is sentenced to undergo Rigorous Imprisonment for a period of 7(Seven) years and to pay fine of Rs.10,000/- (Rupees Ten thousand only ) for the offence under section 307 IPC in default of fine amount he shall undergo 6 months simple imprisonment, he is sentenced to pay fine of Rs.1,000/- (Rupees One thousand only) for the offence under section 323 of IPC in default of which he shall undergo 3 months simple imprisonment, he is sentenced to pay fine of

Rs.500/- for the offence under section 341 of IPC in default of which he shall undergo one month simple imprisonment , he is sentenced to undergo 3 (Three) years Rigorous Imprisonment for the offence under section 354-A of

IPC, he is sentenced to undergo 3 (Three) years Rigorous Imprisonment and to pay fine of Rs.5,000/-for the offence under 354-B of IPC in default of fine amount he shall undergo 3 months simple imprisonment, he is sentenced to pay fine of Rs.5,000/- for the offence under section 506 of IPC in default of which he shall undergo 3 months simple imprisonment, he is sentenced to undergo 3 (Three) years Rigorous Imprisonment and to pay fine of

Rs.5,000/- for the offence under section 376 r/w 511 of IPC in default of fine 4 amount he shall undergo 3 months simple imprisonment and he is further sentenced to under go 5 (five) years Rigorous Imprisonment and to pay fine of Rs.5,000/- for the offence under section 9 (m) r/w 10 of POCSO Act, 2012 in default of which he shall undergo 3 months Simple imprisonment, he is further sentenced to under go 3 (Three) years Rigorous Imprisonment and to pay fine of Rs.5,000/- for the offence under section 11 r/w 12 of POCSO Act, in default of fine amount he shall undergo 3 months simple imprisonment and he is further sentenced to under go 3 (three) years Rigorous Imprisonment and to pay fine of Rs.5,000/- for the offence under section 18 of POCSO Act, 2012, in default of fine amount he shall undergo simple imprisonment for a period of 3 months.

All the sentences shall run concurrently.

The remand period i..e, from 31.12.2016 to 8.4.2017 is set of off as per provisions of 428 of Cr.P.C.

M.Os.1 to M.O.8 shall be destroyed after expiry of appeal time.

The right of Appeal was informed to accused

Sd/-K.Sudhamani

SPECIAL JUDGE FOR TRIAL OF CASES UNDER POCSO ACT-

CUM-I ADDL. DISTRICT & SESSIONS JUDGE

VIZIANAGARAM

5

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF THE CASES UNDER THE

POCSO ACT cum-I ADDITIONAL SESSIONS JUDGE, VIZIANAGARAM

Present:- Smt. K.Sudhamani,

Special Judge for trial of cases under POCSO Act-cum-

I Additional Sessions Judge, Vizianagaram

Wednesday, this the 2nd day of December, 2020.

P.O.C.S.O. SESSIONS CASE No. 32/2017

Name of the State represented by the Inspector of Police,

ComplainantKothavalasa Police Station. Name of the accused: Kakara Ramaswamy, s/o late Demudu, 28 years, Caste by Setty Balija, Auto Driver, Latchumpeta village, L.Kota

Mandal, Vizianagaram District Charges Charges under sections 363, 307, 323, 341, 354-A and :354-B, 506, 376 r/w 511 of IPC and section 9 r/w 10 and section 11 and 12 r/w 18 of Protection of Children

From Sexual Offences Act, 2012. Plea of the accused: Pleaded not guilty

Finding of the Judge: In the result, I find accused is guilty of the offence punishable under sections 363, 307, 323, 341, 354-A, 354-

B, 506 of IPC and 376 r/w 511 IPC and section 9 (m) r/w 10 and section 11 r/w 12 and 18 of POCSO Act, 2012. He is convicted under section 235 (2) Cr.P.C.., for the said offences.

Sentence or order Accused is sentenced to under go 7(Seven) years Rigorous

Imprisonment and to pay fine of Rs.10,000/- (Rupees Ten thousand only) for offence under section 363 of IPC, in default of fine he shall undergo simple imprisonment for a period of 6(six) months, he is sentenced to undergo

Rigorous Imprisonment for a period of 7(Seven) years and to pay fine of Rs.10,000/- (Rupees Ten thousand only)for the offence under section 307 IPC in default of fine amount he shall undergo 6 months simple imprisonment, he is sentenced to pay fine of Rs.1,000/- (Rupees One thousand only) for the offence under section 323 of IPC in default of which he shall undergo 3 months simple imprisonment, he is sentenced to pay fine of Rs.500/- for the offence under 6 section 341 of IPC in default of which he shall undergo one month simple imprisonment , he is sentenced to undergo 3 (Three) years Rigorous Imprisonment for the offence under section 354-A of IPC, he is sentenced to undergo 3 (Three) years Rigorous Imprisonment and to pay fine of Rs.5,000/- for the offence under 354-B of IPC in default of fine amount he shall undergo 3 months simple imprisonment, he is sentenced to pay fine of Rs.5,000/- for the offence under section 506 of IPC in default of which he shall undergo 3 months simple imprisonment, he is sentenced to undergo 3 (Three) years Rigorous Imprisonment and to pay fine of

Rs.5,000/- for the offence under section 376 r/w 511 of IPC in default of fine amount he shall undergo 3 months simple imprisonment and he is further sentenced to under go 5 (five) years Rigorous Imprisonment and to pay fine of

Rs.5,000/- for the offence under section 9 (m) r/w 10 of

POCSO Act, 2012 in default of which he shall undergo 3 months Simple imprisonment, he is further sentenced to under go 3 (Three) years Rigorous Imprisonment and to pay fine of Rs.5,000/- for the offence under section 11 r/w 12 of

POCSO Act, in default of fine amount he shall undergo 3 months simple imprisonment and he is further sentenced to under go 3 (three) years Rigorous Imprisonment and to pay fine of Rs.5,000/- for the offence under section 18 of POCSO

Act, 2012, in default of fine amount he shall undergo simple imprisonment for a period of 3 months. All the sentences shall run concurrently. The remand period i..e, from 31.12.2016 to 8.4.2017 is set of off as per provisions of 428 of Cr.P.C. M.Os.1 to M.O.8 shall be destroyed after expiry of appeal time. The right of Appeal was informed to accused Prosecution conducted: Special Public Prosecutor, Vizianagaram. by

Defence conducted by : Sri A,Srinivasarao, Legal Aid Counsel, Vizianagaram.

7

This case is coming on19.11.2020 for final hearing before me in the presence of the learned Spl.P.P for the complainant/state and of Sri

A.Srinivasarao, Legal Aid counsel for the accused, after having stood over for consideration, this court delivered the following:-

J U D G M E N T

The State represented by the Inspector of Police,

Kothavalasa Police Station, laid a charge sheet against the Accused in

Cr.No.245/2016 under Sections 307, 324, 341, 506, 354-A, 363 of IPC and under sections 10 and 12 of Prevention of Children from Sexual Offences

Act, 2012 (for short POCSO ACT)

2. The case of the prosecution is that,

The victim girl is aged about 11 years old and studying 5th class in Jindal School, Kothavalasa. On 27.12.2016 at evening at about 17.30 hours after completion of school and extra classes for Navodaya, the victim girl boarded an auto at Jindal School and got down at

Thummikapalli Bridge. While the victim girl was waiting at Thummikapalli bridge, her school mate i.e., Kolla Purvija(LW5) met her and both of them were waited at the said place and at about 18.00 hours the accused was an auto driver came there along with passengers in the auto including Sahu

Santosh and Kakara Kanakamma (LW8 and LW9) .

2(a)The victim girl and her school mate boarded the said auto. The passengers i.e., Sahu Santosh (LW8) got down at Devada, Kakara

Kanakamma (LW9) got down at Viyyampeta village respectively and Kolla

Purvija (LW5) got down from the auto at Ramalingapuram junction and the victim girl was alone in the auto. Then the victim girl asked the accused/auto driver to stop the auto at Musiram village, the accused enquired about the 8 village of victim girl and when she revealed her details that she is a native of

Kallepalli village, for which, the accused made her believe that he is a resident of Rega village and he will drop the victim girl at her village Kallepalli.

2(b)Before reaching Kallepalli village near a thrashing floor, the accused stopped the auto and acted as talking in phone and told as some twigs has to be gathered in the nearby site. The victim girl requested the accused to drop her in Musiram village, on that, the accused told that he will gather twigs in two to three minutes and saying so the accused took the victim girl to a vacant site/ layout nearby Musiram village at about 19.00 hours and switched off the auto lights. On that, the victim girl questioned the accused why he brought her to that place, the accused warned the victim girl not to raise cries otherwise he will cut her throat. Then, the victim girl raised cries and accused kissed her and the victim girl made loud cries on that the accused slapped her.

2(c)The victim girl asked the accused for nature calls with a view to escape from the clutches of accused, but, he dragged her from the auto by pulling her sweater and laid her on ground and touched her total body and told abusive words in ugly manner. The victim girl told him that it is wrong and requested the accused to leave her, but, he did not heed the words of victim and tied his hand kerchief across the mouth of her caught hold her left hand laid her on ground. On that, the victim raised voice, then the accused hit her head to the ground on several times with a view to kill her, since the victim girl is not cooperating to fulfil his lust. Even though the victim had refused, the accused used to touch and frisked the victim girl chest deeply and when every time the victim raised cries, the accused hit her head to ground forcibly. Many a times the accused knocked the victim head to the ground forcibly and she 9 raised cries loudly, then the accused slapped her face and punched on mouth heavily. Accused opened the victim underwear , then she raised cries loudly, in turn the accused slapped her again heavily. Meanwhile, one auto came into the layout and came towards them and on noticing the focus of the light of the said auto, the accused though that someone coming and escaped from that place by throwing the bag of the victim and left her.

2(d)The victim girl followed the auto and reached to road. In the meanwhile Kadiyala Demullu (LW4) noticed the victim girl and took her to

Kallepalli village and informed the matter to her father-Tothari Jagannadham (LW2). Then the victim was brought to Boddu Atchimnaidu (LW11) for first aid by her father and further shifted to P.H.C., Viyyampeta. Thamatapu

Satya Pushpa, Staff Nurse(LW10) at Viyyammapeta Primary Health Centre,

Kothavalasa Mandal (LW10) provided pain killer injection to victim and on the doctor’s advise the victim girl was shifted to KGH, Visakhapatnam for better treatment. The statement of victim girl was recorded and she requested to take necessary action against the accused.

2(e)Based on the statement of victim girl, Sri G.Sanjeevarao, the

Inspector of Police, Kothavalasa Police Station (LW22) registered a case in

Crime No. 245/2016 under sections 10 and 12 of POCSO Act and section 376 r/ w 511, 307, 324, 341, 506, 354-A, 354-B, 363 of IPC of Kothavalasa P.S., and investigated into the case.

2(f)During the course of investigation the Inspector of Police,

Kothavalasa Police Station (LW22) examined the victim girl in the presence of her Parents-Tothari Jagannadham and Tothari Manga, (LWs2 and 3) at KGH,

Visakhapatnam and recorded her statement. After examination of victim girl, he addressed a letter to Dr.G.Aruna, Asst., Prof., Obstetric & Gynaecology, 10

AMC/KGH, Visakhapatnam(LW17) with a request to conduct medical examination over the victim girl and furnish medical examination certificate.

2(g) The Inspector of Police, Kothavalasa Police Station (LW22) visited the scene of offence, examined the same minutely in the presence of mediators Gorle Padma and Chintala Pydinaidu (LWs 13 and 14) and drew the rough sketch, seized the material objects from the scene of offence under the mediators report and examined eight witnesses i.e., victim girl, Tothari

Jagannadham, Tothari Manga, Kadiyala Demullu, Kolla Purvija, Kamma

Gowrinaidu, Dammu Jaggunaidu, and Sahu Santosh, i.e., L.Ws.1 to 8 respectively.

2(h)On 31.12.2016, the Inspector of Police, Kothavalasa Police Station (LW22) arrested the accused at Thummikapalli bridge in the presence of

Bonthada Sandhya Sree and Chitikala Kannayya (LW15 and L.W.16) and seized his garments which he wore on the date of commission of offence under the cover of confession/mediators’ report and sent him to judicial remand on the same day. He also produced the accused before Dr.M.Hari, Medical Officer,

CHC, S.kota (LW19) by proper escort with a request to conduct potency test on him. He forwarded the victim before Smt.Annie Rose Marry Christian,

Judicial Magistrate of I Class, Kothavalasa, (LW20) and accordingly her

statement was recorded the 164 Cr.P.C., statement by the said Magistrate.

2(i) Dr.G.Aruna, Asst. Prof., Obsteric & Gynecology, AMC/KGH,

Visakhapatnam (Lw17) conducted medical examination over the victim girl and preserved the material objects and advised to send the material objects to

RFSL, Visakhapatnam, for chemical analysis. She also opined after examination of the victim girl that the injuries, contusions, lacerations were present on the face of her and all injuries were probably caused due to hit on hard surface.

11

Dr.M.Hari, Medical Officer, CHC, S.kota (LW19) conducted the potency test over the accused and opined that there is nothing to do suggest that the accused is not capable of performing sex.

2(j)K.GeethaMadhuri,ScientificAssistant,RFSL,

Visakhapatnam(LW18), conducted chemical analysis over the material objects of victim, accused and blood stained controlled earth of the scene offence and furnished report to that effect.

2(k) B.Lalitha, Inspector of Police, Kothavalasa P.S., (LW23) took up further investigation and examined the witnesses I..e, Kakara

Kanakamma, Thamatapu Sathya Pushpa, Boddu Atchimnaidu and Pampana

Kishore(LW9 to 12), and recorded their detailed statements and forwarded

Kadiyala Demullu (LW4) before P.Pradeepa, Judicial Magistae of I Class,

Kothavalasa (LW21) for recording the statement of Kadiyala Demullu (LW 4) and accordingly, the Learned Magistrate recorded the 164 Cr.P.C., statement of Kadiyala Demullu (LW 4).

2(l)After completion of the investigation B.Lalitha, Inspector of

Police, Kothavalasa Police Station (LW 23) filed a charge sheet against the accused stating that the accused committed heinous and terrible offences against a minor girl and he is liable for punishment under Sections 376 r/w 511, 307, 324, 341, 506, 354-A, 354-B and 363 of IPC and under sections 10 and 12 of Prevention of Children from Sexual Offences Act, 2012. Hence, the charge sheet.

3The charge sheet, was taken on file for offences under Sections 376 r/w 511 of IPC, 363, 307, 324, 341, 506, 354-A and 354-B of IPC and sections 9 r/w 10, and section 11 and 12 r/w 18 of of POCSO Act against the accused and it was registered as POCSO S.C.No. 32/2017.

12 4 After appearance of accused copies of case documents were furnished to him and upon hearing both sides, charge under sections 363, 307, 323, 341, 354-A, 354-B, 506, and 376 r/w 511 of IPC and section 9 r/w 10 and section 11 and 12 r/w 18 of Protection of Children From Sexual

Offences Act, 2012 , were framed against accused read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

5Out of 23 listed witnesses and additional witness in the charge sheet, the prosecution examined P.Ws 1 to 16 and marked Exs.P.1 to P25.

The Spl.P.P., given up the evidence of Tothari Manga(LW3), Kamma

Gowrinaidu(LW6), Dammu Jaggunaidu(LW7), Kakara Kanakamma(LW9),

Chintala Pydinaidu(LW14), Chitikala Kannayya(LW16) , K.Geetha Madhuri (Scientific assistant, RFSL, Visakhapatnam-LW18) and the then Honourable

Judicial Magistrate of I Class, Kothavalasa (Smt.Annie Rose Marry Christian-

LW20) and their evidence is closed on different dates, respectively.

6 After closure of the prosecution evidence, the accused was examined under section 313 of Cr.P.C. explaining incriminating material appearing against him in the evidence of prosecution witnesses. The case of accused is one of total denial. However, he reported no defence evidence.

7.Heard arguments advanced by learned Special Public Prosecutor and learned defence counsel for the accused.

8. Now, the points that arise for determination in this case are:

(1) Whether the prosecution is able to prove the charges

against the accused for the offence under sections 363,

307, 323, 341, 354-A, 354-B, 506, 376 r/w 511 of IPC ?

13

(2) Whether the prosecution is able to prove the charge

against the accused for the charge under section 9 r/w

10, and section 11 and 12 r/w 18 of Protection of Children

from sexual offences Act, 2012 ?

8(a) For convenience sake the points 1 and 2 are taken up together for discussion.

9 The learned Spl.P.P. argued that the prosecution has proved its case against the accused and he argued that the victim girl boarded the auto of accused after completion of her extra classes in the school and later some of the passengers including the school mate of victim girl were get down when they reached their destination and the victim girl was alone in the auto of accused to go to Musiram village, at that time, the accused/auto driver took the victim girl into a vacant site/layout where he committed sexual assault on her forcibly, and at that time he tried to commit rape on her and on noticing the light focus of another vehicle the accused left the victim girl at that place by throwing her bag. All the above facts were proved by the prosecution witnesses in their evidence. The learned Spl.P.P., requests the court to punish the accused as per the charges levelled against the accused.

10 The counsel for accused argued that the words mentioned in the

FIR clearly shows that those words were not spoken by victim girl since she was studying 5th class at that time and she was not known about those words.

The alleged auto was not seized by police. Except the version of P.W.1/victim girl there is no other evidence which is available on record is not helpful to the case of prosecution. The medical evidence which is available on record clearly shows that if a person fall on a rough surface the injuries found on P.W.1 can be caused. Further, the prosecution has not placed any evidence to show that 14 blood was there on the shirt of P.W. 1 and the same was not seized, so also the underwear of the victim girl was also not seized.

10(a)The counsel for accused further argued that the prosecution has failed to prove the charges levelled against the accused, as such benefit of doubt will be given in favour of accused thereby accused is entitled for acquittal.

11The evidence available on record is discussed as follows :

P.W.15-S.K.S. Ghani deposed that he worked as a SI of police,

Kothavalasa during the relevant period i.e., from 01.12.2016 to 18.01.2017.

11(a)His version is that on 28.12.2016 at 1.00 am the Inspector of

Police/PW16 through phone call directed him to go to KGH along with Woman

PC 1758 by name P.Lavanya and they reached the KGH in mufti at 2.00 am and recorded the statement of victim girl in the presence of woman PC and at that time the parents of victim girl were also present.

11(b)His version is that he identified the statement of victim girl i.e,

Ex.P.1 dated 28.12.2016 when it confronted to him by Spl.PP, during his evidence. He deposed that he scribed the same.

11(c)His version is that he started the recording of statement of victim girl at 2.00 am and completed it at 4.28 am and at that time the parents of the victim girl, woman PC 1758 and the lady doctor were present. All of them subscribed their signatures on that statement including victim girl. He returned to the P.S., along with said statement - Ex.P.1 and hand over the same to Inspector of Police/PW16, who, in turn registered the same as a case in Cr.No.245/2016 U/secs.10 & 12 of POCSO Act and Sec.376 r/w. 511

IPC , 307 IPC, 324 IPC, 341 IPC, 506 IPC, 354-A IPC, 354-B IPC and 363 IPC and issued FIR(Ex.P.16)`.

15 11(d)He added that at the time of recording the statement of victim girl the photos were taken with his cell phone and they were recorded by way of CD and positives were also taken. He was confronted to said C.D., and positives by SplPP during his evidence and he admitted the same. Ex.P.12 is CD and Ex.P.13 to Ex.P.15 are positives of Ex.P.12.

The contents of Ex.P1, and Ex.P.12 to P.15 are self explanatory in nature.

11(e)It is elicited in the cross examination of P.W.15 that since it was midnight he could not take the steps of videographer while he recording the statement of victim girl in KGH in the presence of woman PC and no Woman

Police officer is available in the police station when he got a call from

Inspector of police and he did not take the assistance of any Translator and

Educated person at the time of recording the statement of victim girl.

11(f)P.W.15 added that victim girl is an educated girl and on that he did not take the assistance of Translator. He endorsed on Ex.P.1 that he recorded the statement of victim girl in the presence of doctor. He has not mentioned on the commencement of timings of statement of victim girl and closing timings on Ex.P.1 so also not mentioned specifically under Ex.P.1 that he recorded the statement of victim girl at KGH, Visakhapatnam, so also the details of ward etc.,.

11(g) P.W.15 denied the suggestions that the contents of Ex.P.1 are not stated by victim girl and the contents were prepared with his intelligence and the language also mentioned by him but not by victim girl since, some of the words which were mentioned in Ex.P.1, were not familiar to use the same by the children and the contents of Ex.P.1 were prepared at PS and later he 16 obtained the signatures of victim girl and lady doctor subsequently and the same was attached to FIR which was filed into the court and the lady doctor who endorsed on Ex.P.1 was not present at the time of Ex.P.1 statement recorded by him and on that he has not mentioned her presence under

Ex.P.1 and he did not mention the verbatam of language of victim girl under

Ex.P.1 and the contents of statement of victim girl were prepared to suit the ingredients of sections which were mentioned on Ex.P.1 at the time of registration of FIR and that Ex.P.1 was prepared a later point of time but not on 28.12.2016 and Ex.P.13 to P.15 do not contain the date on which he has taken photographs.

12On that aspect, the prosecution examined P.W.1-(the victim girl) and her version is that she is a native of Kallepalli village, L.Kota mandal and her father’s name is T.Jagannadham(PW2) and her mother’s name is

T.Manga. She knows Kadiyala Demullu(PW3) who is native of their village.

Kolla Poorvaja (PW4) is her classmate.

12(a)Her version is that on 27.12.2016 while she was studying 5th class she attended Navodaya extra class coaching in their school i.e., OP

Jindal Bharatheeya Vidya Mandir School, Kothavalasa and it was completed at 5.30 pm and she boarded one auto at school gate and got down at

Tummikapalli bridge 12(b)Her version is that when she was waiting for another auto to go to her village, at that time her friend Purvija(PW4) came to that place and at about 6.00 pm one auto came with three gents and one lady and on that she and her friend boarded the auto and one of the gents in the auto, got down at Tummikapalli village, another gent got down at Devada village, and another gent got down Viyyampeta village and said lady also got down at 17

Viyyampeta girls hostel and her friend Purvija(PW4) got down at

Ramalingapuram village.

12(c)Her version is that she only left over in the auto, and she identified the accused is the auto driver, and P.W.1 identified him during her evidence who committed the acts against her.

12(d) Her version is that she told to the accused that she will get down at Musaram village and when the auto reached at Musaram village, the accused asked about her village, and on that she felt that, the accused seems to be a good person, she stated that she belongs to Kallepalli village and the accused told that he belongs to Rega village and he will drop her at

Kallepalli village.

12(e)Her version is that before reaching Kallepalli village there are thrashing floors (kallalu) and the accused stopped the auto stating that he got a cell phone call and also stated he wants to collect dry sticks from the said layouts of the road and asked her to wait for two to three minutes and took auto along with her into the layout and stopped the auto though she expressed that she wants to go to her village and the accused got down from the auto and sat next to her, pressed her chest and kissed her, stating that if she raised voice loudly, he will cut off her neck and continuously kissed her.

12(f)Her version is that when she tried to get down from the auto for urine purpose, the accused caught hold her sweater and got her down from the auto, then she raised cries as “ help, help” and on that, accused closed her mouth with a hand kerchief, inspite of that, she continued to raise her voice, then the accused caught her left hand and her two plaits, pushed her on the floor and laid her down but she did not co-operate for the acts of 18 accused, and that the accused pressed her head to the ground and also beat on her both cheeks and mouth.

12(g)Her version is that the accused also tried to remove her under garments, meanwhile, she noticed that one auto light flashed on her face which came into that place, the accused started the auto by throwing her bag from the auto towards her and left that place in his auto by leaving her at that place.

12(h)Her version is that by following the auto light she came to road from the layout site and noticed that Kadiyala Demullu(PW3), who is a shepherd of their village was coming on bike, and he identified her and she boarded his bike to go to her village.

12(i)Her version that she sustained injuries on head, cheeks, nose and her forehead was in swelling condition and it is like sponge and blood was oozed from her nostrils and mouth and she was taken to milk centre by said Kadiyala Demullu, where her father was present at that time in the village.

12(j)Her version is that she informed about the acts of accused towards her to her father who took her to RMP doctor at Rega village, where first aid was given, but, she did not get any relief, her father took her to

Viyyampeta Government hospital for further treatment, where, some treatment was given and on the advice of the doctors, she was taken to

Kothavalasa Venkateswara Hospital by her father.

12(k)Her version is that on the advise of doctors she was admitted in

KGH, Visakhapatnam, on 27.12.2016 where, she was treated for four days and on 28.12.2016, the police came to the KGH, between 5.00 and 6.00 a.m., 19 and her statement was recorded by Inspector of police in the presence of lady constable and her parents.

12(l) Her version is that she identified her signature on the statement, i.e., Ex.P.1 dt.28.12.2016 when it was confronted to her by Spl.PP., during her evidence. She further deposed that after the contents of Ex.P.1 were read over to her, she subscribed her signature on it and her parents also signed on

Ex.P.1. Subsequently police came to her home and collected her clothes which she wore on the date of incident and she identified her cloths i.e.,

Mo.1-half hands shirt and Mo.2-Biscuit colour shirt when they were confronted to her by Spl.PP., during her evidence.

12(m)Her further version is that her statement under 164 Cr.P.C., was recorded by Magistrate, Kothavalasa on 11.1.2017, wherein, she stated what ever happened to her and what she deposed before the court on the date of her evidence and she stated the same before the Magistrate. She identified her signature on 164 Cr.P.C., statement, dt.11.1.2017 in which her mother also subscribed her signature when it was confronted to her by the Spl.P.P., during her evidence.

12(n)Her version is that she was studying 5th class when the incident occurred and she identified the accused present before the court who committed acts against her on that day and photos were taken when she was admitted in the hospital.

13It is elicited in the cross examination of P.W.1 that she is studying in English Medium since 1st class and she can read and write Telugu easily. She was not tutored by police prior to entering into the witness box to give evidence. She is not in the habit of reading lessons in any subject by heart. She used to write on her own.

20 13(a) It is elicited in the cross examination of P.W.1 that she reached the Thummikapalli bridge around 6.00 pm and she cannot say the exact distance between said Thummikapalli to her village and one can reach within half an hour from the said bridge to her village. After Thumikapalli bridge, the following places are there to reach her village I.,e Thummikapalli village,

Veerabhadrapuram, Viyyampeta, Devada, Ramalingapuram, Musram and one has to take right from Musram to go to Kallepalli village.

13(b)It is elicited in the cross examination of P.W.1 that she told to accused that she wants to get drop at Musram. When the accused asked her about where she has to go, then she told him that she wants to go to

Kallepalli village. There is no frequency of autos available to her village directly and on that she used to tell to drop her at Musram to the auto persons whenever she boarded the autos 13(c) It is elicited in the cross examination of P.W.1 that the layout is

Alekhya leyout and it is adjacent to Musram village. She went to KGH hospital on that day in between 8.00 pm to 9.00 pm. When the police came for first time to her they were in uniform and when her statement was recorded by the police they were in uniform. She admitted that she informed to the

Inspector of police about the incident happened to her and he heard the same and he dictated the same to the constable and it was written on paper. She does not know whether she stated to police that she was taking treatment in

KGH when they recorded her statement in KGH. The Kallepalli kallalu (Trashing floor) are by the side of the road. On that day at around 7.00 pm she was taken to said trashing floor by the accused and it is not a busy road.

13(d)It is elicited in the cross examination of P.W.1 that she admitted that she did not state to the police that she was taken to Venkateswara 21 hospital prior to KGH, Visakhapatnam and two auto drivers met her on that day. She added that she was in worry condition and she did not state the same to the police. She did not reveal the name of shepherd to the Magistrate whom she met after the incident. She did not state to the police that she was taken to her father where he was at milk centre at that time.

13(e)Her cross examination reveals that, P.W.1 denied the suggestions that the incident was occurred while she was in 5th class and she does not have any maturity at that time and the words mentioned in her statement appears to be with the help of legal brain and that no such acts done by accused towards her on that day as stated by her in her chief examination and that the accused wants to go to attend nature calls at that time she entered into driving seat and tried to start the auto and on that her head was touched the auto portion and on that she sustained injuries and on that the accused dragged her from the auto and he felt that she might have sustained any injuries and due to precaution he thrown her bag also from the auto to avoid further injuries to her and he left the place by taking his auto and that accused never threatened her with dire consequences and that accused had intention to drop her at her village and on that he allowed her to enter into his auto and he has no intention to do any acts towards her and she has not handed over her under garment which she wore on that day to the police and she is deposing false at the instance false.

14 On that aspect, P.W.2-T.Jagannadham who is father of

P.W.1/victim girl deposed that he is a resident of Kallepalli village and doing cultivation and he also working in Milk center at Kallepalli village.

14(a)His version is that Pw1 is his daughter and his wife’s name is

Manga and he knows Kadiyala Demullu (PW3), resident of their village. He 22 knows Poorvaja/PW4 who is classmate of P.W.1/victim girl. He has two children, among them one is son and another is victim girl/PW1 who is studying in O.P.Jindal Bharathi Vidya Mandir.

14(b)His version is that on 27.12.2016 the incident occurred to

Pw1/victim girl at that time Pw1 was studying 5th class and used to return home on every day in between 7.00 pm to 7.30pm and they arranged

Navodaya classes to PW1 in the school.

14(c)His version is that on that day while he was at Milk centre in their village at 7.30 pm one Kadiyala Demullu (PW3) brought P.W.1/victim girl to him and he found that his daughter/victim girl sustained with injuries on her head and blood was oozing and on seeing her condition, he was shocked and immediately he took the victim girl for first aid to RMP doctor in Rega village who gave TT injunction to P.W.1/victim girl.

14(d) His version is that from there, he took P.W.1/victim girl to CHC,

Viyyampeta, where, the persons expressed their inability to provide treatment and on seeing her daughter’s condition, he took her in an auto to Kothavalasa

Venkateswara hospital, where, the doctor advised him to take his daughter to KGH, Visakhapatnam for treatment.

14(e)His version is that after his daughter/victim girl was admitted in

KGH hospital, he asked P.W.1 what happened to her; then she narrated entire incident which was happened to her, in her words. PW1 was treated for a period four days in the hospital. Police came to hospital on the next day morning at 5.00 am and recorded the statement of Pw1, so also his statement and his wife’s statement.

14(f)It is elicited in the cross examination of P.W.2 that they might have reached KGH in between 8.00 pm to 9.00 pm on that day and since they 23 were in shock and they do not know whether police came there immediately after they admitted PW1 in KGH, Visakhapatnam.

14(g)P.W.2 admitted that Kallepalli Kallalu and Alekhya layout are different. He added that both of said places are very near to each other. He and his wife were present as guardians at the time of recording of the statement of his daughter by the police in the hospital. He admitted that he and one Satish contested in the elections as a MPTC and Surpanch post at

Lakshmipeta village and he won as MPTC candidate.

14(h)It is elicited in the cross examination of P.W.2 that the accused belongs to “Yatha” community and he belongs to “Velama” community. He knows that accused is a resident of Lakshmipeta village. He has a nephew by name Joginaidu in Lakshmipeta village.

14(i) His cross examination reveals that P.W.2 denied the suggestions that he was briefed by the police prior to give evidence and that no incident took place on that day to his daughter in the hands of the accused and that this case is foisted against the accused since accused not obliged the request of said Satish at the time of election and since they are rich and influential persons and that accused belong to poor community and that they foisted this case against the accused and that he is deposing false.

15It is version of P.W.16-G. Sanjeevarao, that he is working as an

Inspector of Police, Range VR, DIG Office, Visakhapatnam since August, 2019 and previously he worked as Inspector of Kothavalasa during the relevant period from 18.04.2014 to 20.04.2017.

15(a)His version is that on 27.12.2016 at night while he was at

Kothavalasa, police station, he received medical intimation from KGH,

Visakhapatnam and that he deputed PW15 along with Woman PC 1758 by 24 name Lavanya with a direction to record the statement of victim girl who was admitted in KGH, Visakhapatnam and accordingly Pw15 and said woman PC went to the KGH, Visakhapatnam and recorded the statement of victim girl and they returned to PS on 28.12.2016 at 6.00 am. Based on that statement he registered a case in Cr.No.245/2016 U/sec.10 and 12 of POCSO Act and sec.

376 r/w. 511, 307, 324, 341, 506, 354-A, 354-B, 363 of IPC against accused and issued FIR-Ex.P.16 and he sent copies of FIR to the concerned court and others.

The contents of Ex.P.16 are self explanatory in nature.

15(b)His version is that on the same day he visited the scene of offence which is situated at Alekya Lay out near Musaram village, Kothavalasa Mandal along with mediators P.w9-G.Padma, and Chintala Paidinaidu and observed the scene of offence in their presence, there, he found one school bag (MO.3) and blood stained earth (Mo.6) and one pant button(Mo.4) and he seized them along with control earth (MO.5) under cover of scene observation report i.e,

Ex.P.2 and it was attested by him and said mediators. He also drew a rough sketch at the place of offence. He identified the contents of rough sketch when it was confronted to him by Spl.PP during his evidence and it is marked as Ex.P.17. He also took photographs at the place of offence. He identified the CD-Ex.P.18 and positive photographs of Ex.P.18 i.e., Exs.P.19 to

Ex.P.24 when they were confronted to him by Spl. PP.

The contents of Ex.P.2, Ex.P.17, Ex.P.18 to Ex.P.24 are self explanatory in nature.

16On that aspect, P.W.9-G.Padma, deposed that she is working as

VRO, Kothavalasa since October, 2015.

25 16(a)Her version is that on 28.12.2016 at 7.00 am the Inspector of

Police, Kothavalasa PS(Pw16) called her, for observation of scene of offence, immediately she informed it to the then Tahasildar, Kothavalasa and on his directions she and Ch.Paidinaidu of Musram village, visited the scene of offence along with Inspector of police, Kothavalasa and all of them reached

Alekhya layout where the offence occurred.

16(b)Her version is that they noticed one black and red colour school bag and one pant button and blood stained earth, and the same were collected along with control earth and seized them under cover of Ex.P.2- scene observation report prepared by Inspector of police, in which, she subscribed her signature said Paidinaidu also signed on it. She identified her signatures and signature of Paidinaidu and contents of scene observation report, when they were confronted to her by Spl.P.P.. during her evidence.

16(c)Her version is that she identified M.O.3-bag black and red colour school bag, M.O.4-phant button, M.O.5-controlled earth and M.O.5 blood stained earth were confronted to her by Spl.PP., and she identified them during her evidence.

16(d)It is elicited in the cross examination of P.W.9 that the identification slips were not affixed on Mo.3 to 6 at the time of seizure of them under Ex.P.2.

16(e)Her cross examination reveals that P.W.9 denied the suggestions that the layout is plain ground and that she did not go to the place of offence and nothing was seized at the said place in her presence and she is deposing false.

17P.W.16-G.Sanjeevarao further deposed that after completion of

Ex.P.2 proceedings, he went to KGH, Visakhapatnam and examined the victim 26 girl, father of victim girl(PW2), Tothari Manga(mother of victim girl), Pw3-

Kadiyala Demullu, Pw4-K.Purvija, Pw5-S.Santosh, Kamma Gowrinaidu and

Jaggunaidu, and recorded their statements.

17(a)It appears that, P.Ws.1 and 2 supported the version of P.W.15 and P.W.16 with regard to statement of victim girl recorded by P.W.15 and examination of P.W.1 and P.W.2 by P.W.16.

18 P.W.3-Kadiyala Demullu deposed that he is a resident of Kallepalli village and he is a Shepherd. He knows Pw1 and 2 in this case.

18(a)His version is that on 27.12.2016/Tuesday, there was Shandy in

Kothavalasa and he attended said Sandy and while he was returning to his village, he went to the fields of their village president and he left his sheep herd and provided two persons by name M.Jagidemudu and Kadiyala

Appalanaidu as guards to the said sheep herd and while he was returning to his village by TVS 50 on the road around 6.30 pm to 7.00 pm, he reached

Musram layout, there, he found one auto and on listening his vehicle sound the auto left that place, then he went to main road and proceeding towards

Musram, he saw PW1 was coming in swinging condition and he observed her with the help of light of his vehicle and stopped his vehicle to talk with her and he caught her hand and she pushed her hand, then he revealed his identity to her and took her to his village on his vehicle and hand over Pw1 to her father (PW2) where, her father was there i.e., Milk centre in the village and went to his house.

18(b)His version is that, while he was taking the victim girl on his vehicle he enquired her repeatedly what happened then she narrated the incident happened to her in the hands of accused. His 164 cr.P.C., statement was recorded by JFCM, Kothavalasa. He identified the contents and his 27 signature on 164 CrPC statement, dt.18.07.2017 when it was confronted by

Spl.PP., during his evidence.

18(c) It is elicited in the cross examination of P.W.3 that the distance from Musram to Kallepalli is 3 km and there are Thrashing floors in Kallepalli village and there is a layout near to Musram but he does not know its name.

18(d) It is elicited in the cross examination of P.W.3, that he saw the victim girl on the road which is near to Musram Layout. He carried the victim girl on his left shoulder and the blood was stained on his shirt lightly. The police did not seize his clothes which was stained with blood.

18(e)P.W.3 admitted that he did not state before police that when he wanted to talk to PW1, he caught her hand and she pushed his hand, then, he revealed his identity to her and that Pw1’s eyes were in swelling condition when he saw her.

18(f)His cross examination reveals that, P.W.3 denied the suggestions that he did not go to the said place on that day and not find Pw1 on the road on that day and not taken her to her father as stated by him in his chief examination and he is deposing false.

19 P.W.4-K.Purvija, deposed that she knows P.W.1 and she is her classmate. According to her on 27.12.2016 she and Pw1 attended Navodaya classes and they were in the school till 5.30 pm and both of them came to

Thummikapalli bridge on their own and they met there and boarded one auto in which three gents and one lady were there, after the said persons got down from the auto she got down at Ramalingapuram village. Except the victim girl and accused/auto driver no other persons were present after she left the auto at Ramalingapuram village. She identified the accused during her evidence 28 and deposed that accused was the driver of auto on that day in which she and

P.W.1/victim girl were travelled in the auto of accused.

20P.W.5-S.Santosh deposed that he is a resident of Devada village and earlier he worked in Vasavi Filling Station, Kothavalasa for a period of five years.

20(a)His version is that on 27.12.2016 after completion of his work in between 5.30 pm to 6.00 pm he along with K.Kanakamma boarded the auto of accused at Kothavalasa complex to go to Devada village and by the time , two other male persons were boarded the said auto of accused.

20(b)His version is that when the auto of accused reached

Thummikapalli bridge, two girls aged about 9 to 10 years, were boarded, when he enquired the girls about their boarding the auto of accused at that time, they stated that they attended Navodaya coaching classes.

20(c)His version is that two male persons were got down at

Tummikapalli village and K. Kanakamma got down at Viyyampeta village and he got down at Devada village and said two girls were there in the auto of accused.

20(d)His version is that he has acquaintance with the accused who is auto driver as the accused used to fill the petrol to his auto in his Vasavi

Filling Center.

20(e)His cross examination reveals that he was examined by police on 29.12.2016 and he has not hand over the record to the police to show that he worked at Vasavi Filling station when his statement was recorded by police. In general one cannot know the names of persons who were co-passengers in an auto when they were travelled with them.

29 20(f)His cross examination reveals that P.W.5 denied the suggestions that he never travelled in the auto driven by accused at any point of time and he is a stock witness to the police and that he was examined by police on 30.12.2016 but not on 29.12.2016 and he is deposing false.

20(g)It appears that P.Ws.3 to 5 supported the version of P.W.16 with regard to their examination and recording of their statements by P.W.16.

21The further version of P.W.16- G. Sanjeevarao that he addressed a letter to the doctor at KGH, Visakhapatnam for medical examination of victim girl.

22On that aspect, P.W.10-G.Aruna, deposed that she worked as an

Assistant Professor, Andhra Medical college, Visakhapatnam during the relevant period i.e., from the year, 2005 to February, 2019.

22(a)Her version is that on receipt of requisition, dt. 28.12.2016 from

Inspector of Police, Kothavalasa, she examined victim girl at 7.30 am and found the following injuries on her.

(1) Contusion near the forehead measuring 8x4 cm, red in colour, haematoma on right temporal region measuring 5x3 cm (2) Contusion with nail marks over right cheek measuring 5x4 cm (3)Contusionoverleftcheekmeasuring4x3cm (4) Laceration present on the lower lip 1 x 0.5 cm red in colour, bleeding.

(5) Upper lip swollen, oedematous.

(6) Sub conjunctival haemorrhages in both eyes present., (7) contusion of 6 x 6 cm on left forearm red in colour.

22(b) Her version is that the above injuries are fresh which probably caused due to hit on hard surface and the breast of victim girl/PW1 appears to be normal and abdomen is soft. She collected specimens of victim girl to 30 send the same RFSL for analysis and she issued Ex.P.3 preliminary examination report to victim girl on 04.01.2017 and received Ex.P.4 RFSL report and based on her clinical examination, she issued Ex.P.5-Final opinion dt.29.4.2017 issued to the victim girl by her with regard to the injuries mentioned in Ex.P.3preliminary examination report.

The contents of Ex.P.3 to Ex.P.5 are self explanatory in nature.

22(c) It is elicited in the cross examination of P.W.10 that she treated the victim girl and she measured the injuries found on Pw1 and they are fresh injuries probably and might have occurred within 24 hours prior to her examination and she did not find any mud or grass on the surface of injuries found on Pw1 and the injuries found on Pw1 can be caused if a person came into contact with rough surface.

23 It appears that, the evidence of P.W.10 supported the version of

P.W.16 with regard to the examination of victim girl by her and treatment given by her.

24 The version of P.W.16-G. Sanjeevarao is that on 31.12.2016 on receipt of credible information he along with mediators i.e, Pw12-Sandyasri and Chitikela Kannayya rushed to Thummakapalli railway bridge at 7.00 am, and conducted vehicle checking and by that time they noticed the accused coming in auto bearing No. AP 31 TA 8332 and on seeing them the accused tried to escape they stopped the auto of accused and on enquiry, the accused revealed his identity and confessed about the commission of offence and the same was reduced into writing in the presence of mediators and it was attested by him, mediators as well as accused.

31 24(a) His version is that the accused stated that, he will show the blood stained clothes which wore by him at the time of offence. On that, he along with mediators proceeded to the house of accused at Yathapeta in

Latchampeta village, where accused produced blood stained clothes i.e, one

Green T-shirt (MO.8) and one Green Pant (MO.7) and he seized them in the presence of mediators under Ex.P.8-mediators report, in which he, accused, and mediators subscribed signatures.

The contents of Ex.P.8 are self explanatory in nature.

25On that aspect, P.W.12-P.Sandhyasri, deposed that she is working as a Panchayat Secretary, Kothavalasa since 2014.

25(a)Her version is that on 30.12.2016 at evening hours the Inspector of Police, Kothavalasa requested her to attend the police station on the next day at early morning hours and she informed the same to his superiors and as per their instructions, on 31.12.2016 at 7.00 am she went to Inspector of police, Kothavalasa, there she found one VRO, Uttaravalli village cluster was present.

25(b)Her further version is that she accompanied by CI of police along with VRO, to Thummikapalli bridge, where they waited for ten minutes since the police got some information and at that time they noticed the accused/auto driver and on seeing them the accused tried to leave that place and on suspicion the police caught hold the accused.

25(c)Her version is that on enquiry by police, the accused revealed his identity and confessed about the commission of offence in this case and lead them to his house and said confession of accused was reduced into writing by one constable who accompanied with them and Ex.P.7 is portion of confession statement, dt.31.12.2016, of accused. She identified her 32 signature, signatures of another VRO and Inspector of police and accused when it was confronted to her by Spl.PP., during her evidence.

25(d)Her version is that after completion of Ex.P7-confession the accused lead them to the accused situated at Yathapeta colony in Lakshmipeta village, where he handed over M.O.7-dark green colour Pant and MO.8- blue colour neck T-shirt, at the house of you-accused which he wore at the time of commission of offence and the same were seized in their presence under cover of mediators report dt.31.12.2016, which was signed by him,

Inspector of police, VRO and accused. She identified the contents of mediators report, dt.31.12.2016 i.e., Ex.P.8 and M.O.s7 and 8 cloths when confronted to her by Spl.PP. , during his evidence.

The contents of Ex.P.8 are self explanatory in nature.

25(e) It is elicited in the cross examination of P.W.12 that at the time of confession of accused, she was also in-charge of Devada village and she received communication through one constable while she was in meeting on 30.12.2016 but she did not receive any written communication from Inspector of police.

25(f)It is elicited in her cross examination that she does not know the name of the constable who prepared the contents of confession statement of accused and she did not put the dates after her signature on Ex.P.7 and P.8 and she did not find any traffic and some people are moving on that road and police did not secure any persons who were moving on that road at that time.

25(g) Her cross examination reveals that she denied the suggestions that she did not receive any information through constable on that day and that to her knowledge the said place is not busy area and that they did not 33 find accused on that day at the said place and that Kannayya, VRO was not at all present on that day along with her and that the contents of said confession as well as mediators report were not read over to the accused since he is illiterate person and that the signatures under Ex.P7 and Ex.P8 do not belong to accused and never signed before them as stated by her and that she never go to the house of accused and not seized any clothes from the house of accused house on that day in her presence and that she signed at police station in Exs.P.7 and P8 but not the places which she stated in her chief examination and that she is deposing false at the instance of police.

26P.W.16 deposed that he arrested the accused and brought to the police station and later sent the accused for medical examination to conduct potency test and produced the accused before the court for judicial custody.

27On this aspect, P.W.11-M.Hari deposed that he worked as CAS in

CHC, S.Kota during the relevant period i.e., from 2003 to August, 2019.

27(a)His version is that on receipt of requisition from SHO,

Kothavalasa Police station dt. 31.12.2016, he examined and conducted potency test on accused at 4.00 pm and issued Ex.P.6 potency certificate, dated.16.01.2017 with an opinion that accused is capable of doing sexual acts.

The contents of Ex.P.6 are self explanatory in nature.

28.The version of P.W.16 is that the seized material i.e, Mo.7 and

Mo.8 and M.Os.1 and 2 belongs to victim girl which were collected through

Medical Officer, were sent to RFSL, Visakhapatnam for analysis through letter and received analyst opinion under Ex.P.4.

34 29His version is that on his requisition i.e.,Ex.P.25 dated.03.01.2017 the Judicial Magistrate of I Class, Kothavalasa recorded the 164 Cr.P.C., statements of victim girl and P.W.3-Demullu on 11.1.2017. He identified the contents of Ex.P.25 when it was confronted to him by Spl.PP., during his evidence and P.W.14-B.Lalitha conducted further investigation in this case, since he was transferred.

The contents of Ex.P.25 are self explanatory in nature.

29(a) It is elicited in the cross examination of P.W.16 that since victim girl was undergoing treatment in the hospital, he could not make a request to the Magistrate to record 164 Cr.P.C., statement of victim girl and no woman

SI was posted in their police station as on the date of offence and on that he sent Woman PC along with Pw15 and gave instructions to follow the procedure of POCSO Act at the time of recording the statement of victim girl by

P.W.15.

29(b)It is elicited in the cross examination of P.W.16 that till he received medical intimation, he does not know whether by anybody give any report about victim girl.

29(c)It is elicited in his cross examination that the auto was entered into the Alekya Layout as per his investigation and he has not found any auto tyre so also foot steps of victim girl and accused at the place of offence. He did not search the auto of accused and the moment he found him in the auto and he did not find any shops at the said Railway bridge and Tummikapalli

Railway bridge is not a busy locality.

29(d)It is elicited in his cross examination that he did not secure the presence of locality people near the village of accused at the time of seizure and he has not seized any weapon in this case to prove the ingredients of 35

Sec.324 IPC and not collected any material to prove the ingredients of Section 356 IPC.

29(e) P.W.16’s cross examination reveals that he denied the suggestions that the contents of FIR and 161 Cr.P.C., statement of victim girl are one and the same and that he did not go to KGH, Visakhapatnam and not recorded the statement of victim girl and that he did not take steps for the arrest of accused immediately even though he came to know the village of accused and he went to the said place with the VROs who are having acquaintance with him 29(f)P.W.16 denied the suggestions that the contents of confession statement of accused were not read over to him and the signature of accused was obtained by force on that statement and that he did not seize the undergarment of victim girl and the statement of Pw1 recorded by using their intelligence and created the record against the accused and that he did not go to the place of offence and nothing was seized in the presence of mediators and not examined any witnesses as stated by him and that the entire case against accused is falsely registered based on false statement of victim girl and he is deposing false.

30.It appears that P.W.12 and 11 supported the version of P.W.16 on all aspects.

31P.W.14-B.Lalitha, deposed that she worked as an Inspector of police, Kothavalasa, during the relevant period i.e., from 27.04.2017 to 14.02.2018.

31(a)Her version is that on 28.04.2017 she took up the further investigation from G.Sanjeevarao, Inspector of Police(PW16). She filed a requisition i.e., Ex.P.9 before learned JFCM, Kothavalasa and accordingly the 36 statement of Pw3-Kadiyala Demullu U/sec.164 CrPC was recorded by

Magistrate (PW13) on 18.07.2017.

32On that aspect, P.W.13-P.Pradeepa, deposed that she is working as Judicial Magistrate of First Class, Kothavalasa since May, 2017.

32(a)Her version is that on receipt of requisition i.e., Ex.P.9, dated 25.5.2017 from the Inspector of Police, Kothavalasa, she recorded the statement of P.W.3/K.Demullu on 18.7.2017, which was signed by

P.W.3(.K.Demullu).

The contents of Ex.P.9 are self explanatory in nature.

33It appears that P.W.13 supported the version of P.W.14 with regard to contents of Ex.P.9.

34It is the version of P.W.14-B.Lalitha that on 01.05.2017 she examined Kakara Kanakamma and T.Satyapushpa (PW6) and recorded their statements.

34(a)On that aspect P.W.6-T.Satya Pushpa, deposed that she worked as a Staff Nurse, at PHC. Viyyampeta, Kothavalasa Mandal since 2013.

34(b)Her version is that on 27.12.2016 at about 7.30 pm victim girl(PW1) was brought by her father to PHC , Viyyampeta and she examined and found the victim girl’s forehead and lips were in swelling condition and blood was also oozing.

34(c) Her version is that on her enquiry, the victim girl stated that while she was coming in an auto and due to the acts driver of auto/accused, the victim girl sustained said injuries and got first aid and also went to RMP doctor due to pains and on that she gave diclofenac injunction to the victim girl and gave suggestion to the victim girl to go for further treatment.

37 34(d)It is elicited in the cross examination of P.W.6, that she was examined by police on 01.05.2017 and in general they used to maintain OP register in PHC of Viyyampeta and used to mention the details of treatment given to the persons.

34(e) It is elicited in the cross examination of P.W.6 that there is no police station in Viyyampeta. There is a duty cast upon them to inform medico legal cases to the police immediately, but, she has not informed to the concerned police but she informed to the duty doctor about the treatment given by her to the victim girl.

34(f)It is elicited in her cross examination that after the doctor came to

PHC, since the victim girl expressed that she got pains she gave said injunction to the victim girl and in general they will give diclofenac by way of tablets to the persons and she referred victim girl to KGH, Visakhapatnam since it is near to PHC Viyyampeta.

34(g) P.W.6 cross examination reveals that, she denied the suggestions that the victim girl never came to her on that day and she has not given any treatment to her as stated by her since she did not report the same to the concerned police and that she is deposing false at the instance of police.

35.It is the version of P.W.14 that on 10.05.2017 she examined

Boddu Atchemnaidu (Pw7) and recorded his statement.

35(a) On that aspect, P.W.7-B. Atchemnaidu deposed that he is practising as RMP doctor, at Rega, L.Kota Mandal since ten years and on 27.12.2016 the victim girl was brought to him for first aid at about 7.00 to 7.30 pm, then he gave T.T injection to her/victim girl.

38 35(b)His version is that in view of the injuries sustained by victim girl on face, he suggested to the father of victim girl that to go for further treatment of victim girl.

35(c)It is elicited in the cross examination of P.W.7 that he got licence to practice as RMP and he did not provide any ointment to the injuries of victim girl on her face.

35(d)P.W.7 denied the suggestions that TT injection will be given if a person sustain injuries with iron articles and that he never gave any first aid to the victim girl as stated by him and that he is deposing false at the instance of police.

36It is the version of P.W.14-B.Lalitha, that based on her letter dt.

22.05.2017 the Principal, Jindal School issued Ex.P.10-study certificate and

Ex.P.11-Admission form of victim girl, which shows the date of birth of victim girl is 16.06.2006.

The contents of Ex.P:.10 and 11 are self explanatory in nature.

36(a)On that aspect, P.W.8 P.Kishor e deposed that he is working as a

Maths Teacher, OP Jindal Bharathi Vidya Mandir since 2015.

36(b)His version is that he used to take extra Maths classes for the 5th class students from 4.30 pm to 5.30 pm in their school, for appearing

Navodaya entrance examination and the victim girl (PW1) attended on school 27.12.2016 for the extra class.

36(c)It is elicited in the cross examination of P.W.8 that, he did

MSc.B.Ed.. He did not hand over any record to the police to show that Pw1 attended extra class on that day in their school . There is a record available in their school that pw1 attended the classes on 27.12.2016. In general, the 39 knowledge of 5th class student and the knowledge of 10th class student are different. In general 5th class students will use simple words.

36(d)P.W.8 denied the suggestions that he did not take any extra class to Pw1 on that day in their school and that he is deposing false at the instance of police.

36(e) It appears that P.W.6 to P.W.8 supported the version of P.W.14 on all aspects.

37The version of P.W.14 is that on completion of the investigation she filed a charge sheet against the accused for the offence under sections .10 and 12 of POCSO Act and Sections 376 r/w 511, 307, 323, 341, 506, 354-A and 354-B and 363 of IPC.

37(a) It is elicited in the cross examination of P.W.14, that, there is a duty caste upon government employee who is working in CHC, has to furnish the information to the concerned police station about medico legal case.

37(b)P.W.14 denied the suggestion that without verifying the investigation properly in this case she foisted a false case against accused.

38On a careful scrutiny of the testimony of P.Ws.1 to 16 coupled with contents of Exs.P1 to Ex.P.25 and M.Os 1 to 8, it is obvious that

P.W.2’s daughter i.e., victim girl boarded the auto of accused after completion of her extra classes in Jindal School and at that time her class mate i.e.,

P.W.4-K.Purvija also boarded the auto of accused and some other passengers were also there in that same auto and after some time P.W.4 and other passengers got down at their destinations.

39.It is further manifest that while the victim girl was alone in the auto of accused, he kidnapped the victim girl by diverting his auto from the road to Alekya Lay out which is near to Musiram village, which is a lonely 40 place. Where, the accused used criminal force against the victim girl and when she resisted the accused wrongfully restrained her by tying her mouth with his hand kerchief and removed her garments with sexual intent and committed sexual assault against the victim girl and at that time the accused threatened her and attempted to kill her by hitting her head to the ground on several times and he slapped her severely and thereby the accused committed sexual harassment against the minor girl and she sustained injuries.

Later she was noticed by P.W.3-K.Demullu and he handed over the victim girl-PW1 to her father-P.W.2-T.Jagannadham. On seeing the condition of

P.W.1, her father-PW2 took her to the hospitals and she was given first aid and later she was admitted at K.G.H., for further treatment.

40P.W.15-S.K.S. Ghani, recorded the statement of victim girl on the directions of P.W.16-G.Sanjeevarao and the investigation was completed by

P.W.16 and P.W.14 B.Lalitha in this case.

41It is not in dispute that P.W.1 is minor as on the date of offence and the incident occurred when the victim girl was alone in the auto of accused. P.W.1 identified the accused who tried to commit sexual assault on her and she was attempted to kill and she was threatened by the accused. .

42 It is further evident that the ocular evidence which was placed by the prosecution clearly proved the case against the accused. Further, all the prosecution witnesses are independent witnesses except P.W.2 who is the father of victim girl (PW1) and all of them supported with each other with regard to the case of prosecution i.e., P.W.1-victim girl sustained injuries on that day at evening hours in the hands of accused and she was subjected to sexual assault and accused beat her and hence, I believed the testimony of 41

P.Ws.1 to 16. Considering the circumstances of the case I do not find any force in the contentions raised by the accused herein .

43On the other hand, the prosecution has proved the charges levelled against the accused and I find the accused is guilty of the offence punishable under sections 363, 307, 323, 341, 354-A, 354-B, 506 and 376 r/ w 511 of IPC and section 9 (m) r/w 10 and sections 11 r/w 12 and 18 of

P.O.C.S.O. Act, 2012.

Dictated to the Stenographer Grade I, transcribed by her corrected, signed

and pronounced by me in open court, this the 2 nd day of December, 2020.

Sd/-K.Sudhamani

SPECIAL JUDGE FOR TRIAL OF CASES UNDER POCSO ACT-

CUM-I ADDL. DISTRICT & SESSIONS JUDGE

VIZIANAGARAM

44 In the result, I find accused is guilty of the offence punishable under sections 363, 307, 323, 341, 354-A, 354-B, 506 of IPC and 376 r/w 511

IPC and section 9 (m) r/w 10 and section 11 r/w 12 and 18 of POCSO Act, 2012. He is convicted under section 235 (2) Cr.P.C.., for the said offences.

P.O. Act is not applicable to the facts of the case.

When the accused was informed about quantum of sentence, he pleaded that he has mother and daughter and she is studying 8th class and pleaded mercy.

Considering the circumstances of the case and gravity of offence accused is not entitled for lenient view and he is sentenced to under go 7(Seven) years Rigorous Imprisonment and to pay fine of Rs.10,000/- (Rupees Ten thousand only) for offence under section 363 of IPC, in default of fine, he shall undergo simple imprisonment for a period of 6(six) months, he is sentenced to undergo Rigorous Imprisonment for a period of 7(Seven) years and to pay fine of Rs.10,000/- (Rupees Ten thousand only ) for the offence 42 under section 307 IPC in default of fine amount he shall undergo 6 months simple imprisonment, he is sentenced to pay fine of Rs.1,000/- (Rupees One thousand only) for the offence under section 323 of IPC in default of which he shall undergo 3 months simple imprisonment, he is sentenced to pay fine of

Rs.500/- for the offence under section 341 of IPC in default of which he shall undergo one month simple imprisonment , he is sentenced to undergo 3 (Three) years Rigorous Imprisonment for the offence under section 354-A of

IPC, he is sentenced to undergo 3 (Three) years Rigorous Imprisonment and to pay fine of Rs.5,000/-for the offence under 354-B of IPC in default of fine amount he shall undergo 3 months simple imprisonment, he is sentenced to pay fine of Rs.5,000/- for the offence under section 506 of IPC in default of which he shall undergo 3 months simple imprisonment, he is sentenced to undergo 3 (Three) years Rigorous Imprisonment and to pay fine of

Rs.5,000/- for the offence under section 376 r/w 511 of IPC in default of fine amount he shall undergo 3 months simple imprisonment and he is further sentenced to under go 5 (five) years Rigorous Imprisonment and to pay fine of Rs.5,000/- for the offence under section 9 (m) r/w 10 of POCSO Act, 2012 in default of which he shall undergo 3 months Simple imprisonment, he is further sentenced to under go 3 (Three) years Rigorous Imprisonment and to pay fine of Rs.5,000/- for the offence under section 11 r/w 12 of POCSO Act, in default of fine amount he shall undergo 3 months simple imprisonment and he is further sentenced to under go 3 (three) years Rigorous Imprisonment and to pay fine of Rs.5,000/- for the offence under section 18 of POCSO Act, 2012, in default of fine amount he shall undergo simple imprisonment for a period of 3 months.

All the sentences shall run concurrently.

43

The remand period i..e, from 31.12.2016 to 8.4.2017 is set of off as per provisions of 428 of Cr.P.C.

M.Os.1 to M.O.8 shall be destroyed after expiry of appeal time.

The right of Appeal was informed to accused .

Dictated to the Stenographer Grade I, transcribed by her corrected, signed

and pronounced by me in open court, this the 2 nd day of December, 2020.

Sd/-K.Sudhamani

SPECIAL JUDGE FOR TRIAL OF CASES UNDER POCSO ACT-

CUM-I ADDL. DISTRICT & SESSIONS JUDGE

VIZIANAGARAM

Appendix of Evidence Witnesses examined.

For Prosecution :For Defence : None

PW.1.Victim Girl

Pw2. T.Jagannadham (father of victim girl)

Pw3. Kadiyala Demullu (Shepherd)

Pw4. K.Purvija (Classmate of victim )

Pw5. S.Santosh (Passenger in the auto)

Pw6. T.Satya Puspha (Staff Nurse)

Pw7. B.Atchemnaidu (RMP Doctor)

Pw8. P.Kishore (Maths Teacher)

Pw9. G.Padma (VRO)

Pw10.G.Aruna (Associate Professor of Obstetrics & Gynecology)

Pw11. M.Hari (Civil Assistant Surgeon)

Pw12. P.Sandhyasri (Panchayat Secretary)

Pw13. P.Pradeepa (Junior Civil Judge)

Pw14. B.Lalitha ( Investigating officer)

Pw15. S.K.S.Ghani (Investigating officer) 44

Pw16. G.Sanjeevarao (Investigating officer)

Documents Marked

For Prosecution:

Ex.P.1: Statement of Victim Girl

Ex.P.2: Scene Observation Report, dt.28.12.2016

Ex.P.3: Preliminary Examination Report, dt.04.01.2017 of victim.

Ex.P.4: RFSL Report,20.03.2017

Ex.P.5: Final Opinion, dt.29.04.2017

Ex.P.6: Potency Certificate, dt.16.01.2017

Ex.P.7: Portion of confession statement, dt.31.12.2016 of accused

Ex.P.8: Mediators report, dt.31.12.2016

Ex.P.9: Requisition dt.25.05.2017

Ex.P.10: Study Certificate of Victim Girl

Ex.P.11: Admission Form of victim girl

Ex.P.12: CD

Ex.P.13 to Ex.P.15: Positives of Ex.P.12

Ex.P.16: Original FIR in Cr.No.245/2016 of Kothavalasa P.S.,

Ex.P.17: Rough Sketch of the scene

Ex.P.18: CD

Ex.P.19 to Ex.P.24:Positives of Ex.P.18

Ex.P.25: Requisition dt.03.01.2017 submitted to JFCM, Kothavalasa by P.W.16 to record the statement of victim girl.

For Defence : Nil.

Material Objects Marked :

Mo.1. Half hands shirt

Mo.2. Biscuit Colour Shirt 45

Mo.3. Black and Red Colour school bag

Mo.4. Pant button

Mo.5. Controlled Earth

Mo.6 Blood stained Earth

Mo.7. Dark green colour pant.

Mo.8. Blue colour neck T-shirt

Sd/-K.Sudhamani

SPECIAL JUDGE FOR TRIAL OF CASES UNDER POCSO

ACT- CUM-I ADDL. DISTRICT & SESSIONS JUDGE

VIZIANAGARAM

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF THE CASES

UNDER THE POCSO ACT cum-I ADDITIONAL SESSIONS JUDGE,

VIZIANAGARAM

Present:- Smt. K.Sudhamani,

Special Judge for trial of cases under POCSO Act-cum-

I Additional Sessions Judge,

Vizianagaram

Friday, this the 6th day of March,2020.

P.O.C.S.O. SESSIONS CASE No. 16/2017

Name of the Complainant :The State, represented by the Sub Divisional Police Officer, Vizianagaram Sub Division.

Name of the Accused: Burgapu Kishore Kumar son of Lokanadham, 24 years, Viswabrahmin by caste, Adityanagar, Pendurthy, Visakhapatnam District.

Date of offence:on 10.6.2014 at 11.00 a.m., at Kondalivaru Cheruvu, out skirts of Kallepalli Rega Village of L.Kota Mandal

Date of report/Complaint: 27.7.2014 at 12.30 hours

Date of appearance of the:14.2.2018 accused in this court.

Date of commitment:-----

Date of commencement :1.11.2019 of trial

Date of closure of trial:30.1.2020

Date of sentence or order :06.03.2020

Explanation for the delay:

In the present case the evidence of the victim could not be recorded within a period of one month from the date of cognizance as contemplated under Sec. 35 (1) of POCSO Act, for the reason that, this court has taken cognizance of the case on 11.2.2017 and posted the matter to 7.3.2017. This is a court which has been entrusted with special jurisdiction under various statutes. This court has been dealing with cases under Protection of Children

From Sexual Offences Act, Narcotic Drugs and Psychotropic Substances Act and 2

Electricity Act. Apart from the above, this court has been dealing with the cases under Motor Vehicles Act, Civil Appeals, Criminal Appeals and other

Sessions cases besides all types of civil suits and various categories of cases.

Pendency of the cases on the file of this court under special jurisdiction is also very high. It becomes impracticable to post the matter within one month from the date of taking cognizance and to comply with all necessary formalities

before fixing the trial schedule. In such circumstances the present case is

disposed as contemplated under Sec. 35 (2) of POCSO Act.

This case is filed by Sub Divisional police Officer, vizianagaram Sub

Division, against the accused. This court took cognizance of the case against the accused for the offence under Sections 363, 354-A(i), 376(2) (f)(l) and 506(2) IPC and sections 3 r/w 4 of POCSO Act, 2012 and under section 3(2) (v) of ST & Sts (POA) Amendment Act.

On appearance of accused before this court on 7.3.2017, the copies of documents were furnished to the accused. On 24.4.2017, GVSV Prasadrao filed Memo of Appearance for accused. On 31.5.2017, charges under sections sections 363, 376 (2) (f), 506 (2) IPC and section 3 r/w 4 of POCSO Act, and section 3 (2) (v) of SCs & STs (POA) Amendment Act, were framed against the accused. The contents of the charges were read over and explained to him in

Telugu, for which, he denied and pleaded not guilty and claimed to be tried and the schedule is fixed for trial.

During the trial, on 1.11.2019, P.W.1 examined and Ex.P.1 marked. On 4.11.2019, P.W.2 and P.W.3 were examined and Ex.p.2 marked. .

On 5.11.2019, P.W.4 and P.W.5 were examined and Exs.P.3 and P.4 are marked. On 6.11.2019, P.W.6 was examined. On 7.11.2019, P.W.7 examined. On 8.11.2019, P.w.8 examined and Exs.P.5 to Ex.p.13 were marked. On 11.11.2019, P.W.9 examined and Exs.P.14 marked. On 13.11.2019, P.W.10 examined and Exs.P.15 marked. On 15.11.2019, P.W.11 examined and Exs.P.16 and P.17 were marked. On 19.11.2019, P.W.12 examined and Ex.P.18 marked. On 20.11.2019, P.W.13 examined and Ex.P.19 marked. On 21.11.2019, Additional witness is examined as P.W.14 and

Ex.P.20 marked. On 26.11.2019, P.W.15 examined. On 27.11.2019, P.W.16 examined and Ex.P.21 marked. On 11.12.2019, P.W.17 examined and Ex.P.22 marked. On 30.12.2018, P.W.18 examined and Exs.P.23 to P.25 were marked.

Prosecution evidence is closed.

TThe evidence of Chittabattula Varshini, Nammi Chakravarthi,

Muvvala Supriya, B.Satyam, Behara Praveen, Smt.P.Annie Rose Christian, (the 3 then JFCM, Kothavalasa) were, given up by Spl. P.P., and their evidence is closed on different dates, i.e., on 6.11.2019, 7.11.2019,11.11.2019, 21.11.2019 and 30.12.2019 respectively.

After closure of the prosecution evidence, the case is posted from time to time for 313 Cr.P.C., examination of accused and on 9.1.2020 accused was examined under section 313 Cr.P.C., , for which he denied the allegations thereon and for defence if any case is posted to 27.1.2020, and it adjourned at the request of accused from time to time and then posted to 30.1.2020, on which date D.Ws.1 and 2 were examined, defence side evidence is closed and the case is posted for arguments. On 5.2.2020 heard arguments of Spl.P.P.

Defence side arguments heard on 20.2.2020 and for reply arguments by

Addl.P.P., heard on 27.2.2020 and case is posted 6.3.2020 for Judgment. On 6.3.2020 Judgment pronounced (vide separate Judgment).

Finding of the Court:

IN THE RESULT, I find the Accused is not guilty for the offence under sections 363, 376(2)(f), 506(2) IPC and section 3 r/w 4 of POCSO Act and Section 3 (2)(v) of Scs &

Sts (POA) Act, and the accused is acquitted under Sec.235 (1) Cr.P.C., for the above offences. The bail bonds executed by the accused in compliance of Sec.437-A

Cr.P.C shall remain in force for a period of six months. Unmarked property, if any, shall be destroyed after expiry of appeal time.

Sd/- K.Sudhamani

SPECIAL JUDGE FOR TRIAL OF CASES UNDER POCSO ACT-

CUM-I ADDL. DISTRICT & SESSIONS JUDGE

VIZIANAGARAM

4

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF THE CASES

UNDER THE POCSO ACT cum-I ADDITIONAL SESSIONS JUDGE,

VIZIANAGARAM

Present:- Smt. K.Sudhamani,

Special Judge for trial of cases under POCSO Act-cum-

I Additional Sessions Judge,

Vizianagaram

Friday, this the 6th day of March,2020.

P.O.C.S.O. SESSIONS CASE No. 16/2017

Name of the Complainant: State represented by the Sub Divisional Police

Officer, Vizianagaram.

Name of the accused:Burgapu Kishore Kumar son of Lokanadham, 24 years, Viswabrahmin by caste, Adityanagar, Pendurthy, Visakhapatnam District.

Charges: Charges under section 363, 376(2)(f), 506(2) IPC and section 3 r/w 4 of POCSO Act and Section 3 (2)

(v) of Scs & Sts (POA) Act.

Plea of the accused:Accused pleaded not guilty.

Finding of the Judge: Accused not guilty

Sentence or order IN THE RESULT, I find the Accused is not guilty for the offence under sections 363, 376(2)(f), 506(2) IPC and section 3 r/w 4 of POCSO Act and Section 3 (2)

(v) of Scs & Sts (POA) Act, and the accused is acquitted under Sec.235 (1) Cr.P.C., for the above offences. The bail bonds executed by the accused in compliance of Sec.437-A Cr.P.C shall remain in force for a period of six months. Unmarked property, if any, shall be destroyed after expiry of appeal time.

Prosecution conducted by:Special Public Prosecutor, Vizianagaram.

Defence conducted by:Sri. G.V.S.V.Prasad

This case is coming on this day i.e., 28.2.2020 for final hearing

before me in the presence of the learned Spl.P.P for the complainant/state and

of Sri. G.V.S.V.Prasad, Advocate for the accused, after having stood over for consideration, this court delivered the following:- 5

J U D G M E N T

1.The State represented by the Sub Divisional Police Officer,

Vizianagaram, laid a charge sheet against the Accused in Cr.No. 38/2015 under Sections 376(2)(F)(I), 363, 354(A), 506(2) and Section 3 (2)(V) of SC and ST (POA) Act, 1989 and Section 4 of POCSO Act.

2. The case of the prosecution is that,

The accused is a resident of Adityanagar, Pendurthi of

Visakhapatnam and belongs to Viswabrahmin by caste. The defacto complainant is a resident of Juttada Village Pendurthi Mandal and victim girl is his daughter.

2(a)The Victim girl studied 9th Class in Z.P. High School, Velimeraka

Juttada Village, Pendurthy Mandal, Visakhapatnam District. During the year 2014, one Karate Teacher by name Laxmana Rao had obtained permission from the Head Master, Z.P. High School, Juttada village to conduct Karate classes to the students everyday in the evening. Accordingly Laxmana Rao conducted Karate classes to the students in the evening and the Victim girl joined in it by paying Rs.100/- as fee and attended Karate classes from the month of March, 2014.

2(b) Later the said Laxmana Rao handed over the classes to the accused who took the classes regularly. The accused trapped the victim minor girl by teaching ‘Karate classes’ and sent SMS to the Mobile NO.8099927727 of Anakapalli Deva Kumari from his mobile NO.9966390884 as ‘HAI HELLOW

GOOD NIGHT”. The accused behaved indecently towards Victim girl by touching her hands and legs and she informed the same to Battina Taruni and others.

2(c) The parents of victim girl came to know about the indecent behavior of the accused through Victim girl and reported the same to Laxmana Rao,

Karate teacher, but he did not respond properly. Accused threatened Victim 6 girl to bring Rs.4,000/- cash and she gave the amount without informing to anybody due to fear.

2(d)On 10-6-2014 at morning the accused with a common intention to commit rape on the victim minor girl took her in an auto to the school and he took her to Meghadrigedda saying that there are Karate classes and from there to Kothavalasa side after some time the accused took her to Gongali Swamy

Tank, Kallepalirega village, L.Kota Mandal in an another auto and when she questioned, the accused gagged her mouth with a kerchief and threatened her to kill her if she raise any cries.

2(e)The accused pushed her on the tank bund in the bushes near a palmyrah tree and committed rape on her forcibly at about 11-00 hrs on 10-6- 2014 and she escaped from the clutches of the accused, boarded a bus and returned to the house and she did not inform the same to anybody due to fear of threat by the accused. After three or four days, the mother of victim girl found bleeding from the private part of Victim girl and when she questioned the Victim girl informed the entire story to her parents, and the father of victim girl viz., Anakapalli Deva Raju gave report to Inspector of Police, Pendurty

P.S., Visakhapatnam, on 27.7.2014 at 12.30 hrs.

2(f)Based on the report the Inspector of Police, Pendurti P.S.,

Visakhapatnam registered a case in Cr.No.320/2014 u/sections 376 (2)(f)(i), 363, 354(A), 506(2) IPC, Sec.3 r/w 4 of POCSO ACT and Sec.66 (A) of I.T. Act of Pendurthy Police station and investigated into.

2(g)During course of investigation, he visited the scene of offence, observed the same in the presence of mediators viz., Bobbara Narasimha Rao and Behara Praveen Kumar and prepared rough sketch and got photographed the scene of offence sent the Victim girl for Medical examination.

7 2(h)On 28.7.2014, the Inspector of Police, Pendurthy arrested the accused and sent him to Causality Medical Officer, K.G.H., , Visakhapatnam to conduct potency Test and later sent him to judicial custody.

2(i) The Inspector of Police, Pendurthy gave a requisition to Head

Master, A.P. High School, Juttada village, Pendurthi Mandal and obtained Study

Cum Conduct Certificate of the victim girl and as the certificate the date of birth of the victim girl is 20-09-1999 (15 years.) 2(j)The Inspector of Police, Pendurty, forwarded the material objects of the victim girl and accused to the Asst. Director. RFSL,

Visakhapatnam through ACP North, Visakhapatnam City for chemical analysis and report.

2(k)The Inspector of Police, Pendurthy (L&O) Visakhapatnam transferred the CD file to Inspector of Police, Anakapalli Rural Circle, i/c.

Chodavaram Circle, Visakhapatnam District through the Commissioner of Police,

Visakhapatnam city on point of jurisdiction.

2(l)On receipt of C.D. file, the Inspector of Police, Ankapalli Rural

Circle verified the scene of offence and found that it is within the limits of

Vizianagaram District, hence, again he transferred the same to L.Kota Police

Station through proper channel.

2(m)The Sub Inspector of Police, L.Kota, Police Station received the

CD file and registered the same as a case in Cr.NO.38/15 U/a 376(2)(f)(i), 363, 354(A), 506(2) IPC, Sec.3 r/w 4 of POCSO ACT Sec.3(2)(v) of SC/ST POA Act, 1989 and section 66 (A) of I.T. Act on 01.04.2015 at 19.30 hrs.

2(n) On 2.4.2015, the Deputy Superintendent of Police, SC and ST

Cell-I, Vizianagaram, received proceedings from Superintendent of Police,

Vizianagaram vide C.No.2780/C2/2015, dt.1-4-2015 and took up investigation in this case. During the course of investigation she visited scene of offence, prepared rough sketch of scene of offence and examined the witnesses and 8 recorded their detailed statements and she filed memo before the then JFCM,

Kothavalasa, who recorded the statement of victim girl u/s.164 Cr.P.C.

2(o)The Assistant Professor, Chest & Gynic, Andhra Medical College,

K.G.Hospital, Visakhapatnam. examined the victim girl and issued medical certificate. The Causality Medical Officer, George Hospital, Visakhapatnam examined accused and issued potency certificate. The Tahsildar, Pendurthi issued caste information of victim and her father. The Tahsildar, Kothavalasa

Mandal issued caste information of accused 2(p) On receipt of proceedings from Superintendent Of Police,

Vizianagaram vide C.No.2780/C2/2015, dt.1-6-2015 the Sub Divisional Police

Officer, Vizianagaram took up further investigation. During the course of her investigation, she obtained caste certificates of accused, final medical certificate of victim girl and filed the charge sheet against the accused.

2(q)Since the investigation revealed that the victim girl belongs to SC

Madiga by caste and minor girl, accused belongs to Viswabrahmina by caste.

The victim girl joined in Karate Classes in the school and accused took karate classes. The accused sent massages to the cell phone of Anakapalli Deva

Kumari, W/o. Deva Raju @ Devanandam as “Hai Hellow, Good Night” etc. The accused was warned by Anakapalli Deva Kumari, W/o. Deva Raju @

Devanandam. The accused taken away the victim girl to isolated area and committed rape on her and threatened her with dire consequence as if she informs the same to anyone he will kill her by pouring acid.

2(r)As per the statements of all witnesses, the prima facie case proved against A.1 only and there is no evidence about the involvement of A.2 and no evidence against A.2 in this case, the Sub Divisional Police Officer,

Vizianagaram deleted the name of A.2 from the charge sheet and filed a memo

before the court to that effect with a request to delete the name of A.2 from

this case.

9 2(s)Thus, accused has committed the offence punishable under section 376(2)(f)(i), 354-A, 363, 506(2) of IPC and section 3(2)(va) of SC and ST (POA) Amendment Act and section 4 of POCSO Act, 2012. Hence, the charge sheet against the accused(A1)_.

3The charge sheet, was taken on file for offences under Sections 363, 354-A(i), 376(2)(f)(i), 506(2) IPC and section 3 r/w 4 of POCSO Act, and section 3 (2)(v) of SCs & STs (POA) Amendment Act, against the accused and it was registered as POCSO S.C.No.16/2017.

4 After appearance of accused, copies of case documents were furnished to him and upon hearing both sides, charges under sections 363, 376 (2) (f), 506 (2) IPC and section 3 r/w 4 of POCSO Act, and section 3 (2) (v) of

SCs & STs (POA) Amendment Act, were framed against the accused, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

5Out of 23 listed witnesses in the charge sheet, the prosecution examined 17 witnesses as P.Ws 1 to 13 and P.ws.15 and 18 and Additional witness by name A. Jagannadham, Head Master, Z.P.High School, V.Juttada village examined as P.W.14 as per orders passed by this court vide

Crl.M.P.No.643/2019 dt.14.11.2019, and Exs.P.1 to P25 are marked.

5(a) The evidence of Chittabattula Varshini, Nammi Chakravarthi, Muvvala

Supriya, B.Satyam, Behara Praveen, Smt.P.Annie Rose Christian, (the then

JFCM, Kothavalasa) were, given up by Spl. P.P., and their evidence is closed on different dates, i.e., on 6.11.2019, 7.11.2019,11.11.2019, 21.11.2019 and 30.12.2019 respectively.

6 After closure of the prosecution evidence, the accused was examined under section 313 of Cr.P.C. explaining incriminating material 10 appearing against them in the evidence of prosecution witnesses. The case of accused is one of total denial.

6(a)On 31.1.2020 D.Ws.1 and 2 were examined on behalf of accused and defence evidence is closed on the same date.

7.Heard arguments advanced by learned Special Public Prosecutor and learned defence counsel for the accused.

8.Now, the points that arise for determination in this case are ; (1) Whether the prosecution is able to prove the charges against the accused for the offence under sections 363,376(2)(f), 506(2)IPC ?

(2)Whether the prosecution is able to prove the charge against the accused for the offence under sections 3 r/w 4 of POCSO Act, and section 3 (2)(v) of Scs & Sts (PoA) Amendment Act ?

9 Points 1 & 2 :

The learned Spl.P.P. argued that the victim girl attended Karate classes held in the school by one Laxmanarao who obtained permission from the Head Master, Z.P.high School, Juttada village. The said Laxmanarao conducted some karate classes in that school and the victim and some other students were also joined in the said classes. In the absence of Laxmanarao, the accused herein took classes who is related to the said Laxmanarao, in the school.

9(a) The learned Spl.PP., further argued the accused trapped the victim girl and sent messages to the mobile of the mother of victim girl. This was also brought to the notice of said Laxmanarao by the parents of victim girl, but he did not respond in this regard. On one occasion, the victim girl paid

Rs.4000/- to the accused since he was threatened her . On 10.6.2014, at morning the accused with an intention to commit rape on the victim girl, took her in an auto to the school and later he took her to Meghadrigedda side saying that there are karate classes and from there to Kothavalasa side and after some time he took her to Gongali Swamy Tank, Kallepallirega village,

L.Kota Mandal, in an another auto When she questioned the same he gauged 11 her mouth with kerchief and threatened her if she raises any cries he will kill her and he pushed her on the tank bund near to the bushes near a plamyrah tree and committed rape on her and at about 11-00 hours on that day and she escaped from his clutches and boarded a bus and returned to home.

9(b)The victim girl did not inform the same to anybody due to fear of threat of accused. After 3 or 4 days, the mother of victim girl found bleeding from the private parts of victim girl and when she questioned the same, the victim girl narrated the incidents happened to her in the hands of accused, then the father of victim girl gave a report to Pendurti P.S., Visakhapatnam.

9(c)The learned Spl.P.P., further argued that Pendurti P.S., visited the scene of offence in the presence of mediators and drew a rough sketch and photogoraphed the scene and sent the victim girl for medical examination.

9(d)The learned Spl.P.P., further argued that on point of jurisdiction the Inspector of Police, Penduriti transferred the C.D. file to the Inspector of

Police, Anakapalli Rural Circle who in turn transferred the same to

Vizianagaram District and later the said record was sent to L.Kota P.S., through proper channel.

9(e)The learned Spl.P.P., further argued that the Deputy

Superintendent of Police, SC and S.T. Cell, Vizianagaram, conducted the investigation in this case and she also visited the scene of offence and drawn rough sketch and examined the witnesses and recorded their detailed statements and the statement of victim girl was also recorded by the learned

Judicial Magistrate of I Class,Kothavalasa.

10The learned Spl.P.P., further argued that on completion of the entire investigation the charge sheet was filed against the accused for the offence punishable under sections 354(D), 417, 420 r/w 114 of IPC and

Section 12 of Prevention of Children from Sexual Offences Act, 2012 12 10(a)The learned Spl.P.P., further argued that the victim girl, her parents, the students who learnt karate classes along with Pw1 supported the case of prosecution on all aspects that the accused taught karate classes in

Z.P.High School, Juttada village for some period.

10(b)The remaining witnesses supported the case of prosecution on all aspects and the prosecution has proved its case against the accused for the charges leveled against the accused. The accused examined D.Ws.1 and 2 in this case and their evidence is not helpful to the accused. The Spl.P.P. further argued that accused is entitled for punishment for the charges leveled against the accused.

11The learned counsel for accused argued that th father of the victim girl gave a false report against the accused. The accused has not committed any offence as alleged by the father of the victim girl.

11(a)The case of prosecution is that the accused took the victim girl from the school to Meghadrigedda and from there to Kothavalasa side and after some time he took her to Gongali Swamy Tank, Kallepallirega village,

L.Kota Mandal, there he committed the offence and she returned home alone by boarding a bus and she did not reveal anything to her parents. The above incidents which are happened during the month of June, 2014 and the prosecution not examined any person i.e., in which auto both the accused and victim girl were travelled to the place of offence and it appears tobe far away place from the village. The investigating officer not placed any material to prove the charges leveled against the accused since there is no corroboration of medical evidence about the acts committed by accused against the victim girl.

12The learned counsel for accused further argued that the accused was detained in police station, at that time D.Ws.1 and 2 tried to contact him, the father of victim girl demanded money from the accused.

13 12(a)The counsel for accused further argued that to extract money from the accused the father of the victim girl gave a false report against the accused since the victim girl and her parents belongs to Sc community to get compensation by the government they falsely implicated the accused in the case.

12(b)Further, the counsel for accused requests the court that no case is made by the prosecution again the accused and he requests the court that the accused is entitled to benefit of doubt, thereby accused is liable to be acquitted.

13The evidence available on record is discussed as follows :

P.W.12-K.Lakshmana Murthy, deposed that he worked as an

Inspector of Police, Pendurti P.S., during the relevant period i.e, from April, 2013 to January, 2016.

13(a) His version is that on 27.7.2014 at about 12.30 hours while he was at P.S., P.W.1 along with his wife and his daughter came to P.S., and presented a written report i.e., Ex.P.1, based on that he registered a case in Crime

No.320/2014 under sections 376(2)(f) (I), 354-A, 363, 506(2) IPC and section 3 r/w 4 of POCSO Act, 66-A IT Act 200-2008 and issued FIR i.e., Ex.P.18 to the court and copies to all concerned.

The contents of Ex.P.1 and P18 are self-explanatory in nature.

13(b)His version is that he examined P.Ws.1 and 2 and P.W.7 and recorded their statements and on the same day he secured the presence of

PW8 and H.Praveen Kumar and all of them including P.W.1, and the victim girl lead them to the scene of offence situated at Gongali Swamy cheruvu, which is in between Musiram village and Lankavanipalem village and P.W.2 drew a rough sketch i.e., Ex.P.5, photographed the scene under Ex.P.7 to

Ex.P.13.

The contents of Ex.P.5, Ex.P.7 to Ex.P.13 are self-explanatory in nature.

14 13(c)His version is that the victim girl lead them to her house, which is situated at Juttada village, Pendurthi Mandal, where, the victim girl produced cloths which the victim girl wore at the time of offence and handed the same to them and it was recorded in her statement.

13(d)His version is that he sent the victim girl to KGH, Visakhapatnam for medical examination on 28.7.2014, he arrested the accused and sent for judicial custody and he obtained permission from the court he sent accused for potency test to the concerned medical officer.

13(e)His version that he addressed a letter dt.28.7.2014 to the

School head Master, Juthada for date of birth particulars of victim girl and later he addressed a letter to Commissioner of Police, Visakhapatnam to transfer the case to L.Kota P.S., and on receipt of permission, he transferred this case to

L.Kota P.S., on point of jurisdiction.

13(f)It is elicited in the cross examination of P.W.12, that no

CC cameras are provided in Pendurthi P.S.. The victim girl did not come to P.S immediately after the incident. He added that the incident occurred on 10.06.2014. P.W.1 is a Church Pastor. They went to scene of offence within two hours after the report given by P.w.1 in Pendurthi P.S. He did not file any incriminating material at the place of offence.

13(g) P.W.12 denied the suggestions that they kept the accused in the P.S from 24.07.2014 to 27.07.2014 and harassed him and he registered a false case based on the false report of P.w.1 and he is deposing false.

14On that aspect, P.W.1-A.Devaraju @ Devanandham, deposed that he is a a Pastor and he is residing at Purushottapuram,

Pendurthi mandal, Visakhapatnam since four years and prior to that he lived at Bank colony, V.Juttada, Pendurthy Mandal for a period of three years along with his family.

15 14(a)His version is that he is a Pastor and by the date of report he was residing at V.Juttada, bank colony. He has one son and one daughter. His daughter is victim girl and the incident occurred when his daughter was studying at ZP High School at V.Juttada village and at that time she/victim was 14 years old.

14(b)His version is that his daughter used to attend karate classes run by one Laxmanarao and later the said Laxmanarao continued the classes through his nephew i.e. accused. He identified the accused present in accused dock in the court during his evidence.

14(c)His version is that on 10.06.2014 the accused told to his daughter/victim that there is a special class at Meghadri Gedda and took her in an auto, from there accused took towards Reservoir and again from there he took his daughter/victim in the same auto by keeping a cloth in her mouth to

Musram hill near Kothavalasa and there the accused committed rape on victim.

14(d)His version is that his daughter/victim escaped from that place and came to their house and accused threatened his daughter that if she reveals the same to others the accused will kill her by pouring acid and on that due to fear of accused, his daughter did not reveal the same immediately to them.

14(e)The version of P.W.1 is that after some days he noticed that his daughter got bleeding and found blood on her mouth and that he asked his wife to enquire the same, then his daughter revealed the entire incident happened to her in the hands of accused.

14(f) His version is he gave a report to Pendurthi police and the same was registered by the police . He was confronted to the report i.e., Ex.P.1 by

Special PP and he admitted the contents as well as his signature on it during his evidence.

16 14(g)His version is that he was examined by Pendurthi police and recorded his statement and Police also enquired his wife and his daughter and recorded their statements and he came to know that said case was transferred to L.kota PS on the point of jurisdiction.

14(h)His version is that subsequently L.Kota police also examined him, his daughter and his wife. His daughter’s statement was recorded U/sec. 164

CrPC by Kothavalasa Magistrate.

15It is elicited in the cross examination of P.W.1 that ZP High School is a Government school. There are karate classes also taken place in that school. By the date of incident his daughter was attained puberty already. His daughter completed only three months course in karate by the date of incident.

It is a shared auto.

15(a)His cross examination reveals that they came to know through

Head Master of the school about conducting karate classes by Laxmanarao in the school and on that they joined their daughter in that classes and they came to know that said Laxamanarao continued the karate classes through his nephew i.e., accused herein in the school.

15(b)It is elicited in his cross examination that his daughter revealed that herself and number of students are going to attend the special karate class to them.

15(c) In the cross examination of P.W.1 it is elicited that he and his wife did not observe that whether his daughter’s clothes were torn condition or not, after she returned to home. After noticing the blood of his daughter they took her to the hospital.

15(d)P.W.1 admitted that he belongs to SC-Madiga community. He does not remember whether he handed over any record to the police to show that he belongs to said community. He has license to run the church as a

Pastor.

17 15(e) PW1 denied the suggestions that the accused never took his daughter to Meghadri Gedda by an auto, from there towards reservoir and from there they returned in the same auto to Musiram and there accused committed rape on her daughter in order to extract money from the accused who being an employee, and general any one will not take a single karate classes to any student and the accused not committed any offence towards his daughter at any point of time and he is deposing false.

16 P.W.2-Anakpalli Deva Kumari deposed that she is a resident of

Purushothampuram of Pendurthi Mandal, Visakhpatnam District. Pw.1 is her husband.

16(a)Her version is that her daughter is victim girl and studying second year Engineering Course at Duvvada and the victim girl studied 9th class in Z.P. High School, Juttada village during the year 2014, at that time they lived at Juttada Bank Colony. Her husband is a Pastor in a Church. They belong to S.C. Madiga Community. Accused belongs to Viswabrahmin community 16(b)Her version is that her daughter joined in Karate classes in the month of March, 2014, at evening hours, conducted in Z.P. High school and one Lakshmana Rao was Master who dealt some karate classes in that school for the students. Subsequently, the said Lakshmanarao promoted his nephew/accused in his place to conduct karate classes. She identified the accused present in the accused dock during her evidence.

16(c) Her version is that she gave their phone number to the uncle of accused whenever necessity arose to call her daughter and she received messages from accused to her phone number i.e., “Hello, Goodnight etc” and that immediately she brought the same to the notice of Laxmana Rao since she is getting messages to her number from accused but Laxmana Rao did not respond.

18 16(d)Her version is that due to threat of the accused her daughter took Rs.4,000/- from the house and gave it to accused but the accused not returned the same to them.

16(e)Her version is that the accused took her daughter to Meghadri

Gedda on 10.6.2014 in an auto stating that she has special Karate classes and again accused took her daughter to Musaram hill near Kothavalasa by stating that the class was changed to that place and when her daughter was questioned the accused that there are no persons in that area, accused told that at some distance the classes will be there.

16(f)Her version is that the accused put clothes into the mouth of her daughter and committed rape on her daughter and her daughter returned to home, she was in dull condition up to two or three days from that day onwards.

16(g)The version of P.W.2 is that suddenly, her daughter got bleeding, when she enquired with Pw1 that why she got it within ten days after her previous menstruation, then her daughter/victim girl revealed what happened to her in the hands of accused. The accused threatened the victim girl if she reveals the same to them, he will pore acid on her daughter and on that her daughter was unable to reveal the same to them due to fear. (She wept while giving evidence).

16(h)Her version is that she informed the same to her husband/Pw.1 and a report was given by her husband at Pendurthi. Police examined her, her husband/PW1 and her daughter/PW7 and sent her daughter to K.G.Hospital for examination where tests were conducted by the doctors in the hospital for three or four days.

16(i)Her version is that Pendurthi police informed that the case was transferred to L.Kota P.S., on point of jurisdiction. the L.Kota police examined her and her daughter and recorded their statements.

19 16(j)P.W.2 deposed that the JFCM, Kothavalasa recorded the statement of her daughter and she was present as a guardian at the time of recording her daughter’s statement by the Magistrate. She and her daughter signed in that statement. She identified the contents as well as her signature and signature of her daughter when the said statement was confronted to her by Spl. P.P., during her evidence.

17 It is elicited in the cross examination of P.W.2 that Z.P. High School is a

Government School. She admitted that in Govt. Schools the Karate courses will not be taken. She added that on announcement of Head Master, the Karate Classes were taken up by Laxmana Rao in the school.

17(a) In the cross examination of P.W.2 it is elicited that she has not filed any record to show that Head Master of the school announced that the Karate Classes will be conducted by said Laxmana Rao in the said school. She admitted that the special classes will be taken for the students collectively. She does not know that how many days said Laxmana Rao continued the classes through the accused in the school.

17(b) In cross examination of P.W.2 it is elicited that she was informed by her daughter that the accused took her daughter at first in a shared auto and later in another Auto to Megadrigedda.

17(c) It is elicited in the cross examination of P.W.2 that she noticed that the pant which was wore by her daughter was torn condition when she returned to home and he did not state the same to police when she was examined by the police and on the advice of police, they took her to the hospital from the police station for examination.

17(d) P.W.2 denied the suggestions that nothing was happened to her daughter and accused is working in police station on part time and the accused was not committed any offence against her daughter as stated by her in ers chief examination and the accused never conducted any Karate Classes in Z.P. High School and he was kept in charge by said Laxmana Rao in his place and she is deposing false at the instance of her husband and the accused has nothing to do with the present case.

18 P.W.7 is daughter of P.Ws.1 and 2 and victim girl in this case. The 20

Mother of victim girl was present through out the evidence recorded in the court since P.W.7 is a minor girl.

18(a) P.W.7/victim girl deposed that she completed High School studies in Z.P. High School, Juttada when she lived at Juttada village along with her parents.

18(b)Her version is that there was an announcement in the school about conducting of Karate Classes freely and one Laxmana Rao is Instructor of the said classes and along with him the accused also conducted Karate classes to them.

18(c)Her version is that she belongs to S.C., Madiga community. She know Pws. 3 to 6 viz., Battina Taruni, M. Manju, A.Venkata Gowri lakshmi and

N. Padma,who also joined in Karate Classes along with her in the school and the classes were conducted by Laxmana Rao at first and in his absence, the accused conducted classes.

18(d)The version of P.W.7 is that after some days, accused sent messages i.e., “Hai, Hello, Good morning” to her mother’s mobile and on seeing the same, her mother complained the same to the Laxmana Rao but he did not respond. Some days she attended classes.

18(e)Her version is that the said Laxmanarao announced that special classes will be taken for the students and on 10.6.2014 she went to the school and not found anybody except the accused and she asked the accused why no students were present in the school except the accused.

18(f)It is version of P.W.7 that the accused took her to

Megadri Gedda, where she did not find any other students and again the accused told that the class will be conducted at Kothavalasa and boarded her in an Auto, and from there they went to Mushram village and in that place also no person was present except bushes.

21 18(g)Her version is that she questioned the accused as no one was present there why he brought her, then the accused put a cloth in her mouth and pushed her and removed her clothes and committed rape on her. (She wept while giving evidence) 18(h) Her version is that she moved from that place and by that time she found one unknown person and enquired with him how to go to

Pendurthi, then the said person shown the place where the buses and she boarded the bus and reached home 18(i)Her version is that the accused threatened her if she reveals the incident to her parents, he will pour acid on them and on that she could not reveal the same to her parents after she returned to home.

18(j)Her version is that after five days she was weeping in a room and at that time her parents enquired with her, then, she did not reveal anything to them later, she got periods and got heavy bleeding for more days and she became very weak and the blood was also came from her mouth and on enquiry by her parents she revealed the entire incident happened to her in the hands of accused.

18(k)Her version is that her parents went to Pendurthi police station and gave a report to them. The Pendurthi police sent her to hospital for treatment where she was treated for a period of five days. Pendurthi police recorded her statement and she also shown the place of offence to the police and later her mother received a call from Pendurthi police that their case was transferred to L.Kota Police Station on the point of jurisdiction.

18(l)Her version is that her statement as well as her parents statements were recorded by L.Kota Police. Her statement was also recorded by the Magistrate, Kothavalasa. Her mother also came to Kothavalasa Court when her statement was recorded by Magistrate. She was confronted to 164

Cr.P.C., statement when it was confronted to her and she identified the 22 contents of said statement made by her, herself and her mother signed on that statement.

18(m)Her version is that her Date of birth is 20.9.1999. She identified the accused who took her to Megadri Gedda and from there to

Kothavalasa and to Mushram village hill.

19`It is elicited in the cross examination of P.W.7 that there is a mention in her statement that she studied 9th Class in Mahathi School. She added that after the said incident, she joined in Mahathi School.

19(a)In cross examination of P.W.7, it is elicited that the said Laxmana

Rao obtained permission from the Principal to conduct karate classes to the students in their school. She added that the Master announced the same and on that they joined the Class. She does not remember on which date the permission was given to take the students for special classes 19(b)It is elicited in her cross examination that she cannot say the exact dates on which the messages were sent to her mother’s mobile by accused.

19(c)P.W.7 denied the suggestion that the Karate Classes will not be conducted to the children who are young.

19(d) . It is elicited in the cross examination of P.W.7 that she was taken by the accused on 10.6.2014 and on that day she went to the school first, from there she was taken to Megadri Gedda by auto. She does not know the Auto number and the accused booked the Auto and it is a travel auto. They went to Vepagunta and from there to Megadri Gedda which is situated at a distance of 3 kms in the same auto 19(e) It is elicited in her cross examination that she was informed that as she was already late for the special class and students were already left and she was taken in an Auto by the accused to Megadri Gedda.

23 19(f)P.W.7 denied the suggestion that the accused never informed that she was already late and the students were already left and she was taken by the accused to Megadri Gedda, is false.

19(g) It is elicited in the cross examination of P.W.7 that she does not know the distance between Megadri Gedda and Kothavalasa. The distance from Kothavalasa to Mushram hill is about 15 kms. It is a passenger auto in which she and accused went to Mushram Hill from Kothavalasa.

19(h)In cross examination of P.W.7 it is elicited that the accused tied her with a rope and kept cloth in her mouth and she does not know the type of that cloth and her hands were tied with a rope back side by accused when they entered into Mushram hill way.

19(i)It is elicited in the cross examination of P.W.7 that there is a separate way from the road and to that place she was taken by the accused.

She did not observe the time at that time. She boarded a bus and got down and went to home by Auto and within half an hour she reached Kothavalasa from Musharam.

19(j)In cross examination of P.W.7 it is elicited that she did not state the bus number so also the Auto number, to the police.

19(k)P.W.7 denied the suggestions that number of public will be moving in that Musharam area and that the accused not committed rape on her and that she did not state anything to the police and that the contents which were written on a paper and that the same was deposed by her since she was pressurized to depose the same falsely against the accused.

19(l) It is elicited in her cross examination that she is a converted christian. She did not put her signature on the statement recorded by police.

19(m)P.W.7 denied the suggestions that the case was lodged against the accused at the instance of her parents and the allegations mentioned 24 against the accused are false and to extract money from the accused this case was foisted against him.

20 P.W.8-B.Narasingarao deposed he is a resident of

Krishnarayapuram village of Pendurthi Manda. He used to do business.

20(a)His version is that on 27.7.2014 he was called by Pendurthi police and when he went the police station, there he found one Praveen Kumar and one girl..

20(b)His version is that police took him along with said persons to

Mushram village of Kothavalasa Mandal in a Jeep, from there they went to

Gongili Tank (Cheruvu) and the said girl shown the place to them where incident took place. Police observed the scene of offence and prepared scene observation report i.e., Ex.P.5 dt.27.7.2014, there itself, in which he and the said Praveen Kumar signed on that report. He identified the contents of the report as well as his signature and signature of said Praveen Kumar when it was confronted to him by Spl.P.P., during his evidence. Ans :

20(c)His version is that photos were also taken at the said place. He identified the C.D., i.e., Ex.P.6 and Ex.P.7 to 13 are positives of Ex.P.6, when they were confronted to him by Spl. P.P. during his evidence and later they returned to the police station.

The contents of Ex.P.5, Ex.P.6 and Exs.P.7 to 13 are self explanatory in nature.

21 PW.9-Dr.Ch. Madhuri, deposed that she worked as an Assistant

Professor, KGH, Visakhapatnam during the relevant period i.e., from 2011 to

June, 2017.

21 (a)Her version is that on 28.7.2014, at 1.55 p.m., the woman PC of

Pendurthi P.S., brought the victim girl to her and she examined victim girl. She found no external injuries and also found no injuries on genetalia of victim girl 25 and P/s Hymen intact, small size speculum not able to pass easily. P/S : OS admitting little finger tightly. P/R : Ut RV, NS, M.FF.

21(b)Her version is that she collected specimens of Swabs & Smear from Vulva-A1, A.2; Vagina-B1, B.2, Pubic hair & nail clippings of victim girl and

Urine pregnancy test negative. Ultra sound (USSR/11449/30.07.2014) normal study.

21 (c)Her version is that on analysis of samples and on receipt of

APFSL Report, she issued a final opinion i.e., Ex.P.14, dt.26.6.2015 and the same was addressed to to Judl. I Class Magistrate, Kothavalasa on 26.6.2015.

21 (d) Her version is that in Ex.P.14-final opinion, she opined that victim hymen is intact and there is no evidence of recent sexual intercourse.

The contents of Ex.P.14 are self-explanatory in nature.

22P.W.13-Dr.V. Lakshmi Narasamma deposed that she worked as an

Assistant professor, Andhra Medical College, Visakhapatnam during the relevant period i.e., from 2006 to 3rd April,,2017.

22(a)Her version is that 25.05.2015, she examined the accused when he was produced before her by concerned police and on examination, she issued potency certificate i.e., Ex.P.19 dt.25.5.2015 of accused and she opined that the accused is capable of doing sexual acts.

The contents of Ex.P.19 are self-explanatory in nature.

22(b)In cross examination of P.W.13 it is elicited that there is no mention about functionality of the organs in coloumn no.4 of Ex.P.19. She added that she collected semen sample from the accused.

22(c)It is elicited in the cross examination of P.W.13 that she has not studied the psychological aspects of accused before issuing Ex.P.19 and she has not studied the neurological aspects of the accused. She added that the accused is normal.

26 22(d)P.W.13 denied the suggestion that she did not conduct proper tests on accused and issued Ex.P.19.

23P.W.14-A.Jagannadha Eswararao deposed that previously he worked as a Head Master, Juttada Z.P., High School during the relevant i.e., from 16.07.2009 to 03.11.2015. He was on leave on 30.07.2009.

23(a)His version is that police asked him to furnish certificate of victim girl(P.W.7) and as he was on leave, he directed to B.Satyam, who was in- charge on that day, accordingly he issued study certificate victim girl i.e.,

Ex.P.20 and as per school record, the date of Birth of Victim girl was dt.

20.09.1999 and by the date of issuance of said certificate, P.W.7 was studying in 9th class.

23(b)His version is that after school hours, the karate classes were conducted by the accused/trainer in their Z.P School,V.Juttada village. He identified the contents of Ex.P.20 when it was confronted to him by Spl.P.P., during his evidence.

The contents of Ex.P.20 are self-explanatory in nature.

24P.W.10-K.Anandrao, deposed that he worked as a Tahsildar,

Kothavalasa during the relevant period i.e, from April, 2015 to 2016. He received a requisition from Deputy Superintendent of Police, SCST Cell,

Vizianagaram, to issue caste certificate of accused.

24(a) His version is that he sent a reply i.e., Ex.P.15 dt.12.6.2015 to

Deputy Superintendent of Police, SCST Cell, Vizianagaram, stating that accused belong to Viswabrahmin Community.

The contents of Ex.P.15 are self-explanatory in nature.

24(b)In cross examination of P.w.10 it is elicited that he has not filed the said requisition which was received from Deputy Superintendent of Police, 27

SC & ST Cell, Vizianagaram. He added that the requisition is available in the office of Tahsildar, Kothavalasa.

25P.W.17-CVS Pandurangarreddy deposed that he worked as a

Tahasildar, Pendurthi, Visakhapatnam during the relevant period i.e., from

November, 2014 to May, 2017.

25(a)His version is that on 04.04.2016 he received a requisition from

DSP SC ST Cell, Vizianagaram to issue caste certificates of victim girl. On enquiry and on receipt of report from his staff he issued caste certificate i.e.,

Ex.P.22 of victim girl./PW7 and according to it the victim girl belongs to SC-

Madiga community. He identified the contents of caste certificate issued to victim girl when it was confronted to him by Spl.PP., during his evidence.

The contents of Ex.P.22 are self-explanatory in nature.

25(b)P.W.17 denied the suggestions that P.W.7 not belong to SC-

Madiga community and she is a converted Christian and the certificate issued by him is a false certificate.

26It appears that the parents of victim girl and victim girl i.e.,

P.Ws.1 and 2 and P.W.7 and P.W.8, P.w.10, P.W.13, P.W.14 and P.W.17 supported the version of P.W.12 on all acpects.

27 P.W.15-S. Bhushana Naidu, deposed that he worked as an

Inspector of Police, Anakapalli Rural Circle during the relevant i.e., from 15.03.2014 to 10.11.2014 and he also hold as in-charge of Chodavaram

Circle.

27(a)His version is that on 04.09.2014 he received a case file in

Cr.No.320/2014, u/sec.376(2)(f) (1) 354(a), 363, 506(2) IPC and Section 3, r/w 4 of POCSO Act, and 66-A of I.T. Act, of Pendurthi P.S, Visakhapatnam city through Superintendent of Police, Visakhapatnam district, with instructions to register the case. He forwarded the case file to S.I of Police A.Koduru P.S, 28

Chodavaram Circle., Visakhapatnam district, and in turn S.I of Police , A.Koduru

P.S perused the case file.

27(b)His version is that as the scene of offence is located at Gangala

Swamy cheruvu, near Neem tree of Kallepalli Rega village and it is within the jurisdiction of L.Kota Mandal and L.Kota P.S of Vizianagaram district.

27(c)His version is that the S.I of Police, A.Koduru P.S, secured V.R.O and Surpanch of Lankavanipalem village, K.Kotapadu mandal and they visited the scene of offence and ascertained that the said place will come under the jurisdiction of L.Kota P.S and again S.I of Police, A.Koduru P.S sent back said file to him on the point of jurisdiction.

27(d)His version is that on 07.09.2014 he resubmitted said file to the

Superintendent of Police, Visakhapatnam for onward transfer of the case to

Visakhapatnam city for further process in this case.

28. P.W.11-P.Dinakar, deposed that he worked as an Inspector of

Police, Pendurthi Police Station during the relevant period i.e, from April,2013 to January,2016.

28(a)His version is that he worked as SI of Police, L.Kota PS during the relevant period from 26.1.2014 to 15.11.2015 and on 1.4.2015 at 19.30 hours he received case file in this case from SP, Vizianagaram on the point of jurisdiction and based on that, he registered a case in Crime No.38/2015 under section 376(2)(f)(i) ofIPC and section 354-A, 363, 506(2) IPC and sec. 3 r/w 4 of POCSO Act and sec.3 (2)(v) of SC and ST Act and 66-A of IT Act and issued original FIR i.e., Ex.P.17 FIR of L.Kota Police Station, to the JFCM, Kothavalasa and copies to all concerned.

28(b)His version is that the place of offence comes under the jurisdiction of L.Kota P.S., based on Ex.P.16 dt.14.3.2015 addressed by 29

Commissioner of Police, Visakhapatnam City through S.P., Vizianagaram, he registered the present crime No.38/2015 of L.Kota Police Station.

The contents of Ex.P.16 and Ex.P.17 are self-explanatory in nature.

29P .W.18 - K.Krishna Prasanna, deposed that she worked as a DSP,

SC St Cell-I, Vizianagaram during the relevant period i.e., from March, 2015 to

June, 2016.

29(a)Her version is that after receipt of proceedings I..e, Ex.P.23 from the then Superintendent of police, Vizianagaram vide C.No.2780/C2/2015, dt.01.04.2015, she took up investigation and perused the entire record and found that said FIR was received by transfer from Pendurthi PS, Visakhapatnam to L.Kota PS on the point of jurisdiction.

29(b)Her version is that on 02.04.2015 she secured the presence of the parents of victim girl i.e., P.Ws.1 and 2 and victim girl/PW7 and examined them and recorded their statements.

29(c)Her version is that later she along with the staff of L.Kota PS went to the scene of offence which is situated at Tank bund of Gongaliswami

Cheruvu of Kallepallirega village of L.Kota Mandal and observed the scene of offence and drew a rough sketch i.e., Ex.P.24 and she confirmed the place of offence will come under the jurisdiction of L.Kota.

29(d) Her version is that on her requisition the Judicial Magistrate of I Class, S.Kota recorded the 164 CrPC statement of victim girl. She identified the contents of Ex.P.25 when it was confronted to her by Spl.PP., during his evidence.

29(e)Her version is that on 06.04.2015 she sent requisitions to the

Tahasildar, Pendurthi and Kothavalasa to issue caste certificates of victim girl and accused. She sent a requisition to Superintendent of police, Vizianagaram 30 for want of call record particulars of number pertaining to complainant – 9966390884.

29(f)Her version is that she secured the presence of Battina Tharuni (Pw3), Manyamkoti Manju (Pw4), Akkireddi Venkata Gowri Lakshmi (Pw5),

Chittabattula Varshini , Neeli Padma (pw6), Nammi Chakravarthi and Muvvala

Supriya and examined them and recorded their statements.

29(g)Her version is that on 25.05.2015 she received the potency certificate of accused from the hospital, and she as was deputed to work at

Godavari Puskaralu, the SDPO, Vizianagaram/P.W.16 took up further investigation in this case.

The contents of Ex.P.24 and Ex.P.24 are self-explanatory in nature.

30It is elicited in the cross examination of P.w.18 that per Ex.P.18, it was registered on 27.07.2014 and she did not find any incriminating material at the place of offence when she visited the same. She does not know whether victim girl is a christian by the date of offence.

30(a)P.W.18 denied the suggestions that the father of victim girl created this case against accused at the instance of political power, she is deposing false.

31 P.W.3-Battina Taruni deposed that she is a resident of

Laxmipuram Village of Pendurthi Mandal, Visakhapatnam District. She is a house wife. Her marriage took place on 25.8.2018 and started to live with her husband and she discontinued her studies. She studied upto Intermediate course.

31(a)Her version is that in the year 2014 she studied 9th class in Z.P.

High School in Juttada Village. She knows the daughter of Pw.1 and Pw.2 i.e., victim girl and she is one year Senior to her in the school.

31 31(b)The version of P.W.3 is that Karate classes were taken place in their school and she joined in those Karate Classes, which were run by one

Laxmana Rao and later the said Laxmanarao entrusted to teach Karate classes during summer to accused.

31(c)Her version is that she know P.W.7 who is daughter of P.W.1, since PW7/victim girl also joined in Karate Classes along with them in that school. She turned hostile and denied the contents of the her statement recorded by the police under Section 161(3) Cr.P.C., i.e, Ex.P.2.

31(d)It is elicited in the cross examination of P.W.3 that the

Government not provided Karate Classes in the school.

32 P.W.4 -M.Manju deposed that she is a resident of Pendurthi village and she completed High School studies in Z.P. High School, Juttada and the Karate Classes were conducted in their school by instructor by name

Laxmana Rao.

32(a)Her version is later the accused conducted said classes in their school. She knows victim girl and she is her classmate. She attended the karate class for one week. Victim girl also joined along with her and attended

Karate Classes.

32(b)Her version is that after news items published in papers, their

Principal enquired with her about the news i.e., the accused committed rape

on victim girl. She turned hostile and denied the relevant contents of her statement recorded by the police under Section 161(3) Cr.P.C., i.e, Ex.P.3.

32(c)In cross examination of P.W.4 it is elicited that she does not know whether Government conducted said Karate classes in their school by appointing an Instructor. When she was in 9th class, she attended Karate

Classes in their school. She is a Junior to victim girl.

32(d)It is elicited in the cross examination of P.W.4 that the said

Laxmana Rao was not appointed by Government and the said Laxmana Rao 32 used to take 3 to 4 classes in a week meanwhile the accused used to take the classes for them.

33P.W.5-A.Venkata Gowri Lakshmi deposed that she is a resident of

Akkiredipalem, Pendurthdi Mandal. Her marriage took place in the month of

May 2019.

33(a)Her version is that she completed her High School studies in Z.P. High School, Juttada village and when she studied in that school, one Laxmana Rao and the accused conducted Karate classes in their school and she also joined in Karate Classes.

33(b)Her version that she the victim girl is her classmate and she knows her. Victim girl also attended Karate classes along with her.

33(c)It is the version of P.W.5 that now and then she attended said classes. After publication of news item in papers, their Principal called her along with other students, who attended said Karate classes.

34P.W.6-Neela Padma, deposed that she is a resident of Juttada village. She completed her High School studies in Z.P. High School of Juttada.

The daughter of P.w.1 ie.., victim girl is Junior to her in the school.

34(a)Her version is that when she was in 10th class she joined in

Karate classes conducted in their school and one Laxmana Rao and accused conducted said Karate classes. The victim girl also joined in Karate course.

34(b)The version of P.W.6 that Pw.1 came to their school on one occasion and met Laxmana Rao. She read the news item published that the accused took the daughter of Pw.1 i.e., victim girl to some place and committed rape on victim.

34(c)It is elicited in the cross examination of P.W.6 that there was an announcement to all the students that the Karate Classes will be conducted after school hours. The Karate classes were conducted in the school and whoever joined in the Karate Classes, used to and attend the said classes. She 33 attended 5 or 6 days for the said classes. Pw.1’s daughter also attended said classes.

34(d) In the cross examination of P.W.6 it is elicited that the contents of 161 Cr.P.C statement were written by police and she signed the same. Except that she does not know anything about this case.

34(e)It appears that P.Ws.4 and 5 turned hostile to the case of prosecution and not supported the version of P.W.18.

35P.W.16-Smt.P.Venkata Ratnam deposed that she worked as a Sub

Divisional Police Officer, Vizianagaram during the relevant period i.e., from 21.01.2015 to 18.12.2015.

35(a)Her version is that as per the proceedings of S.P, Vizianagaram, on 04.06.2015 vide C.No.2780/C2/2015, she received case file and she verified the same and P.W.18 conducted entire investigation in this case.

35(b)It is elicited in the cross examination of P.W.16, that P.W.7 is S.C.

Madiga.

35(c)P.W.16 denied the suggestions that P.W.7’s father I.e, P.W.1 is a

Church Pastor and he is a Christian and SC & ST Act will not applicable to him and a false case is foisted against accused at the instance of P.W.1.

36To prove the contentions raised by accused herein, the counsel

for accused examined D.Ws.1 and 2.

36(a)D.W.1-Moyya Gowrisankar, deposed that he is a resident of

Denderu village. Now he is undergoing training in Tech Mahendra Graphic designer since Monday i.e, 27.01.2020.

36(b) His version is that he does not know Pw1 in this case. He trained under

Laxmanarao in karate about 12 years ago and he took classes for the students in ZP High School, Juttada for a period of two weeks i.e, from April,2014 since, he was directed by Laxmanarao Master in his absence.

34 36(c)His version is that on one occasion he got a call from Laxmanarao master and he accompanied by him to the police station but they were not allowed by police to enter into the police station and on the next day they went to the police station but Inspector of police was not available at that time.

At that time they found accused in the police station in a cell i.e, on 27.07.2014.

36(d)His version is that the accused was having injuries on his left cheek. On his enquiry, the accused told that police registered a case against him. He did not find any other personnel in the police station. He advised the accused to take the services of an advocate and he will also help him. Now and then accused also used to take classes along with him. He added that the accused used to take classes at Jami. He does not not know what happened subsequently.

36(e)In cross examination of D.W.1 it is elicited that the accused is senior to him in Karate classes. He and accused learnt Karate classes under

Laxmanarao.

36(f)D.W.1 denied the suggestions that he does not know anything about the case of accused and to help him he is deposing false.

37D.W.2-Koppanadi Suresh that he is resident of Kothavalasa. He is a Carpenter. He and the father of accused are friends.

37(a)His version is that about more than two years ago on one day father of accused came to him while he was at Pendurthi in weeping condition and requested him to come along with him to the police station. On that he and father of accused went to the Pendurthi police station and at that time

Inspector of police was not available and they were not allowed to enter into the police station. Meanwhile one person came there and he is father of victim girl. Then Pw1’s father and father of accused talked with each other and Pw1’s father expressed that the matter will be compromised if accused pays fifteen 35 lakhs, then father-in-law of P.W.1 was called and he came there but he does not know what happened to the accused, subsequently.

37(b)His version is that after three days again he went to Pendurthi police station and he saw the accused at that time and he sustained injuries.

37(c)It is elicited in the cross examination of D.W.2 that he and father of accused are residing in different places in one area. The father of accused never worked with him together. He has no acquaintance with the father of

Pw1 subsequently he came to know the same.

37(d)D.W.2 denied the suggestions that he has not acquaintance either with father of accused and father of Pw1 and at the request of accused he is deposing false. He denied the suggestion that he gained over by the accused and the father of Pw1 never demanded any money from father of accused at any point of time and he is deposing false.

38At this juncture court reads the contents of 164 Cr.P.C., statement of victim girl recorded by Magistrate as follows:

The victim girl’s 164 Cr.P.C., statement was recorded by

Magistrate on 28.7.2014.

“………...Her statement reveals that the accused took the vcitim girl near to the tank of Mushram village by an auto and at that time her eyes were tied with cloth(kallagantalu) and her hands were tied with a rope and got boarded her in another auto along with him and took her to Musiram village to a tank bund, there he removed the eyes bands and hand rope and caught hold her tightly and pressed her chest and he also removed his phant and he pushed her on the floor and he put his penis on her vagina and at that time she raised cries, later she pushed the accused and she left that place and reached one main road and one one came and she boarded the bus and returned to home and she did not reveal the same to her parents. After one week she went to the school and at that time the accused told her not to reveal the incident to anybody, if she told the same, he will pour acid on her and he asked her to bring Rs.4,000/- to him and she brought Rs.4,000/- without informing to her parents and gave it to the accused. Later she went to the school regularly. After two weeks the blood was came from her mouth and 36 she got heavy bleeding during mensuration period heavily, her mother observed the same and asked her what happened and she informed the same to her. Then she used to smile herself and she became very dull. After she told the same to her mother, a report was given to the police” 38(a)The said statement was recorded by the Judicial Magistrate of

First Class, Kothavalasa and at that time the mother of victim girl was also

present. The victim girl and mother of victim girl signed on the 164 Cr.P.C., statement.

39On a careful scrutiny of the evidence of P.Ws.1 to 18, coupled with contents of Exs.P.1 to P.25 and the evidence of D.Ws.1 and 2, it is manifest that the victim girl studied 8th class at Z.P.High School, Juttada Village, at that time she attended karate classes conducted by one Laxmanarao and the said Laxmanarao was not examined by the investigating officers for the reasons best known to them.

39(a)It is further manifest that PWs3 to 6 also attended the karate classes along with the victim girl/Pw7 for same days which were conducted in their school. They also admitted that the accused also took karate classes to the students in their school, in the absence of the said Laxmanarao.

39(b)It is the version of P.W.7 that on 10.6.2014 she attended the school to learnt karate classes, conducted by accused. At that time she was taken to Meghadrigedda by accused by saying that karate classes will be conducted there and from there to Kothavalasa side and from there to Gongali

Swamy tank, Kallepalirega village, L.Kota Mandal and the incident occurred at about 11 a.m., near a tank bund in the bushes near a palmyrah tree i.e., at a lonely place and she returned to home but she did not reveal anything to her parents. When her parents came to know the same , PW1 gave a report immediately on 27.7.2014. It appears that there was a delay of 45 days in reporting the matter to the Police.

37 39(c)For the reasons best known to P.W.7, she did not inform the incidents which are happened to her, to her parents immediately.

39(d)It appears that PW7 did not depose in her evidence that the contents of 164 Cr.P.C., statement recorded by Magistrate.

39(e)It appears that PW7 not deposed in which auto she was taken by accused to Megadrigedda from school and from there to Kothavalasa and from there to Musiram village. The investigating officers also not placed any material to prove the version of PW7. Further, PW7 version not supported by the

Medical officer who examined her i.e., P.W.9 39(f)At the same time after one and half month the police started investigation based on the report of P.W.1 It is further manifest that PW7 was with the accused on 10.6.2014 as per her version and she travelled along with accused to different places in an auto but she did not resist the acts of accused, during her travel in the auto.

39(g)It is further manifest that P.W.9 examined the victim girl on 28.7.2014 and she opined that no evidence of recent sexual intercourse and hymen was in tact of the victim girl.

39(h)It appears that ocular evidence is not supported the case of PW7 with regard to rape committed on her by accused.

39(i)Considering the circumstances of the case I am of the opinion that PW7’s evidence not supported by Doctor, hence the testimony of PW7 is not trust worthy.

39(j)The other evidence which is available on record clearly shows that the victim girl was minor at the time of offence and she is also a member of

Schedule caste, except that there is no other evidence available on record to prove the charges levelled against the accused for the offence under sections 363, 376 (2) (f), 506 (2) IPC and section 3 r/w 4 of POCSO Act, and section 3 (2) (v) of SCs & STs (POA) Amendment Act, against the accused.

38 39(k)The evidence of D.Ws.1 and 2 is no way helpful to the case of accused, and hence, evidence is not considered.

40 Considering the circumstances of the case and on a careful scrutiny of the evidence available on record, I am of the opinion that no case is made out by the prosecution and the prosecution also not placed any material to prove the charges against the accused towards the victim girl. Hence, the

Accused is entitled for benefit of doubt.

The points are answered accordingly.

41IN THE RESULT, I find the Accused is not guilty for the offence under sections 376(2)(f), 506(2) IPC and section 3 r/w 4 of POCSO Act and Section 3 (2)(v) of Scs & Sts (POA) Act, and the accused is acquitted under Sec.235 (1) Cr.P.C., for the above offences. The bail bonds executed by the accused in compliance of Sec.437-A Cr.P.C shall remain in force for a period of six months. Unmarked property, if any, shall be destroyed after expiry of appeal time.

Dictated to the stenographer, Grade-I, transcribed by her, corrected and

pronounced by me in open court on this the 6th day of March, 2020.

Sd/- K.Sudhamani

Special Judge for trial of cases under POCSO

Act cum I ADDITIONALSESSIONS JUDGE,

VIZIANAGARAM

Appendix of Evidence Witnesses examined.

For Prosecution :

PW.1. A.Devaraju @ Devanandam (Father of victim girl)

Pw2.Anakapalli Deva Kumari (Mother of Victim girl)

Pw3.Battina Taruni (student)

Pw4.Manyamkoti Manju (Student)

Pw5.Akkireddy Venkata Gowri Lakshmi (House wife & Student)

Pw6.Neeli Padma (Student)

Pw7.Victim Girl 39

Pw8.Bobbara Narasingarao (Mediator for scene observation report)

Pw9.Dr.Ch.madhuri (Medical Officer)

Pw10. K.Anandarao (Tahsildar)

Pw11. P.Dinakar,SI of Police (I.O)

Pw12. K.Lakshmana Murthy, Inspector of Police (I.O)

Pw13. Dr.V.Lakshmi Narasamma (Medical Officer)

Pw14. A.Jagannadha Eswara Rao (Retd. Head Master)

PW15:S.Bhusana Naidu, Deputy Superintendent of Police (I.O)

Pw16:P.Venkata Ratnam, DSP, CID, R.O Office (I.O)

Pw17.C.V.S.Pandurangareddy (Retd Tahasildar)

Pw18.K.Krishna Prasanna, ASP (I.O)

For Defence :

DW.1:Moyya Gowrisankar (Karate Trainer)

DW.2:Koppanadi Suresh (Carpenter)

Documents Marked

For Prosecution:

Ex.P.1: Report given to police by Pw1, dt.27.07.2014

Ex.P.2: Portion of 161 CrPC statement of Pw3

Ex.P.3: Portion of 161 CrPC statement of Pw4

Ex.P.4: Portion of 161 CrPC statement of Pw5

Ex.P.5: Scene Observation report, dt.27.07.2014

Ex.P.6: CD

Ex.P.7 to Ex.P.13: Positives of Ex.P.6

Ex.P.14:Final Opinion, dt.26.06.2015

Ex.P.15: Reply, dt.12.06.2015 addressed by Tahsildar to Deputy superintendent of Police, SC ST Cell, Vizianagaram

Ex.P.16: Letter, dt.14.03.2015 addressed by Commissioner of Police

Visakhapatnam city through Superintendent of Police, Vizianagaram.

Ex.P.17: FIR in Cr.No.38/2015 of L.Kota PS (3 pages)

Ex.P.18: FIR in Cr.No.320/2014 of Pendurthi PS

Ex.P.19: Potency Certificate, dated.25.05.2015

Ex.P.20: Study Certificate of Victim girl

Ex.P.21: FSL report, dt.06.11.2014

Ex.P.22: Caste certificate of Victim girl (Pw7)

Ex.P.23 Proceedings dt.01.04.2015 issued by SP, Vizianagaram 40

Ex.P.24: Rough Sketch of the scene of offence

Ex.P.25: 164 Cr.P.C., statement of Victim girl.

For Defence: Nil.

Material Objects Marked : NIL

Sd/- K.Sudhamani

SPECIAL JUDGE FOR TRIAL OF CASES UNDER POCSO ACT-

CUM-I ADDL. DISTRICT & SESSIONS JUDGE

VIZIANAGARAM

1

THE COURT OF SPECIAL JUDGE FOR TRIAL OF CASES UNDER NDPS ACT CUM I ADDITIONAL

DISTRICT JUDGE, VIZIANAGARAM.

PRESENT: K.SUDHAMANI,

SPECIAL JUDGE FOR TRIAL OF CASES UNDER NDPS ACT CUM

I ADDITIONAL DISTRICT JUDGE, VIZIANAGARAM.

Wednesday, this the 4th day of May, 2022.

N.D.P.S. S.C.NO. 29 OF 2021

NAME OF THE COMPLAINANT:State represented by the Enforcement Inspector, Special enforcement Bureau Station, S.Kota

NAME OF THE ACCUSED :Millaku Kasulamma, d/o late Arjun, 38 years, Caste:Valmiki (ST), coolie, R/o Door.No.25-1-238,SusanthNagar, Gajuwaka, Visakhapatnam District.

Date of offence. :10-08-2021

Date of report/complaint :10-08-2021

Date of appearance of the accused:15-12-2021

Date of commencement of trial :07-03-2022

Date of closure of trial :10-03-2022

Date of sentence or order : 04.05.2022

Explanation for the delay:

This case is filed by the Enforcement Inspector, Special enforcement

Bureau Station, S.Kota against the accused for the offence under Section 8(c) r/w 20(b)(ii) (C) of NDPS Act, 1985.

On appearance of accused, case copies furnished to accused on 23.12.2021. On 04.01.2022, charge under section 8(c) read with 20(b)(ii) (B) of

NDPS Act, 1985 was framed against the accused, read over and explained to her in

Telugu and she pleaded not guilty to the said charge and claimed to be tried and schedule is fixed for trial.

During trial on 07.03.2022, P.W.1 examined and Exs.P.1 marked. On 08.03.2022 PW.2 examined. On 09.03.2022 Pw3 examined. On 10.03.2022 Pw.4 examined. Ex.P.2 to Ex.P.8 and Mo.1 were marked.

2

The evidence of Devapurapu Atchutarao, VRA, Boddavara village,

Sri S.K. Sathar and D.Siva Kumar Enforcement Constables, Special Enforcement

Bureau station, S.Kota, Smt.A. Muneeswari, Chemical Examiner, Regional

Laboratory, Visakhapatnam, (LW2, L.W.4, L.W.5 and L.W.7) were given up by the learned Special Public Prosecutor and their evidence is closed on 7.3.2022, 8.3.2022, 9.3.2022 and 10.3.2022respectively.

Afterclosureoftheprosecutionevidence,on 24.03.2022, accused was examined under Section 313 of Cr.P.C and denied the allegations thereon and she reported no defence evidence on her behalf, on which date defence evidence was closed. On 20.4.2022 heard arguments for both sides and for Judgment posted to 04.05.2022. On 04.05.2022 Judgment

pronounced (vso)

Finding of the Court:

IN THE RESULT, I find that the accused is guilty of offence under

Section 8 (c) r/w 20 (b) (ii) (B) of N.D.P.S. Act, 1985. Accordingly, she is convicted under Section 235 (2) of Cr.P.C. P.O. Act is not applicable to the facts of the case. When she was informed about quantum of sentence, she pleaded that she has no one and she has one son and pleaded mercy. Considering the circumstances of the case, and gravity of offence, accused is sentenced to undergo 10 years (TEN) RIGOROUS IMPRISONMENT and to pay fine of Rs.50,000/- (Rupees Fifty thousand) in default of which, she shall undergo 6 (six) months simple imprisonment, for the offence under section 8(c) r/w 20(b)(ii) (B) of

N.D.P.S. Act, 1985. M.O.1, shall be destroyed after expiry of appeal time . The remand period of accused is set off as per Section 428 of Cr.P.C., i.e., from 10.8.2021 to till day. The right of Appeal was informed to accused.

Sd/-K.Sudhamani

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

N.D.P.S. ACT- CUM-I ADDITIONAL DISTRICT

AND SESSIONS JUDGE, VIZIANAGARAM

3

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER NDPS

ACT-CUM-I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT VIZIANAGARAM.

Present:- Smt.K.Sudhamani,

Special Judge for trial of cases under NDPS Act-cum-

I Additional District & Sessions Judge, Vizianagaram

Wednesday, this the 4th day of May, 2022.

N.D.P.S. SESSIONS CASE No. 29/2021

Name of the Complainant: State represented by the Enforcement Inspector, Special Enforcement Bureau Station, S.Kota.

Name of the accused : Millaku Kasulamma D/o Late Arjun , 38 years, Valmiki (ST) Occupation coolie, D.No.25-1-238, Susanth Nagar, Gajuwaka, Visakhapatnam District.

Charge/Offence: Under Section 8(c) r/w.20 (b) (ii)( B) of N.D.P.S. Act, 1985.

Plea of the accused: Not guilty

Finding of the Judge: Accused is guilty

Sentence of order : IN THE RESULT, I find that the accused is guilty of offence under Section 8 (c) r/w 20 (b)

(ii) (B) of N.D.P.S. Act, 1985. Accordingly, she is convicted under Section 235 (2) of Cr.P.C.

P.O. Act is not applicable to the facts of the case.

When she was informed about quantum of sentence, she pleaded that she has no one and she has one son and pleaded mercy.

Considering the circumstances of the case, and gravity of offence, accused is sentenced to undergo 10 years (TEN) RIGOROUS

IMPRISONMENT and to pay fine of Rs.50,000/- (Rupees Fifty thousand) in default of which she 4 shall undergo6 (six) months simple imprisonment, for the offence under section 8(c) r/w 20(b)(ii) (B) of N.D.P.S. Act, 1985.

M.O.1, shall be destroyed after expiry of appeal time

The remand period of accused is set off as per Section 428 of Cr.P.C., i.e., from 10.8.2021 to till day.

The right of Appeal was informed to accused.

Prosecution conducted by: Special Public Prosecutor.

Defence conducted by: Sri P.Chandra Mouli, A.P. Aswani Kumar and P.Sridhar, Advocates.

This case is coming on 27.4.2022 for final hearing before me in the presence of the Addl.Public Prosecutor, for the complainant/State and of Sri P.Chandra Mouli, A.P. Aswani Kumar and P.Sridhar, Advocates for the accused, and after having stood over for consideration till this day, this court delivered the following :-

J U D G M E N T

1. The Inspector of police, Vizianagaram Rural Circle laid a charge sheet against the accused in Crime No.13/2017 under Sections 8(c) r/w 20(b)(ii) (c) of

NDPS Act, 1985, of S.Kota Police Station.

The brief facts of the case of the prosecution, are as follows:-

The offence took place at Girijan corporation check post, Boddavara village junction.

2 On 10.8.2021 at about 6.30 a.m., on receipt of reliable information,

Sri S.Dharma Rao, Enforcement Inspector, Special Enforcement Bureau Station,

S.kota, along with his staff i.e., N. Ramyasree, Enforcement SI of Police, S.kota ,

SK.Sathar, D.Siva Kumar, and P.Appalakonda Enforcement constables and mediators i.e., G.Somaraju(VRO), Boddavara village, D.Atchutarao(VRA), 5

Boddavara village, conducted vehicle raid at Girijan corporation check post,

Boddavara village junction, S.Kota, at that time, they noticed the accused holding a bag and on seeing the raid party, when accused tried to escape, on suspicion, accused was caught by them.

Then the Enforcement Inspector, Special Enforcement Bureau

Station, S.kota, questioned, the accused who confessed about the possession of

Ganja and about purchase of Ganja by him from an unknown person at Paduva village of Odisha State, for sale at Visakhapatnam, for profit, then in the presence of mediators the Enforcement Inspector, searched the bag in possession of accused, found dry Ganja of 4.5. Kgs and the same was seized in the presence of mediators after drawing samples as per provisions of N.D.P.S. Act , 1985 under the cover of a mediators report and the accused was arrested by police as he illegally in possession of Ganja.

2(a)After completion of the investigation, the Inspector of police,

Vizianagaram Rural Circle, filed a charge sheet against the accused. Thus, the accused purchased contraband cannabis, possessed contraband cannabis and selling the same at higher rates to earn more money thereby she committed the offence punishable under section 8(c) r/w 20 (b) (ii)(B) of NDPS Act, 1985.

3.The charge sheet was taken on file for the offence punishable under

Sections 8(c) r/w. 20(b)(ii)(B) of NDPS Act and registered as NDPS S.C.No.29/2017.

4.After production of the accused, copies of case documents were furnished to accused. Upon hearing both sides, charge under Section 8(c) r/w 20(b)(ii) (B) of Narcotic Drugs Psychotropic Substances Act,1985 was framed against accused, read over and explained to her, for which she pleaded not guilty and claimed to be tried.

5.Out of eight witnesses, the prosecution examined P.Ws 1 to 4 and

Exs.P.1 to P.8 and M.O 1 are marked. The evidence of Devapurapu Atchutarao,

VRA, Boddavara village, Sri S.K. Sathar and D.Siva Kumar, Enforcement constables,

Special Enforcement Bureau station, S.Kota, Smt.A. Muneeswari, Chemical 6

Examiner, Regional Laboratory, Visakhapatnam, (LW2, L.W.4, L.W.5 and L.W.7) were given up by the learned Special Public Prosecutor and their evidence is closed on 7.3.2022, 8.3.2022, 9.3.2022 and 10.3.2022respectively.

6.After closure of prosecution side evidence, accused was examined under section 313 Cr.P.C, explaining incriminating material appearing against her in the evidence of prosecution witnesses. The case of accused is total denial and she stated to have no defence.

7.Heard arguments advanced by Special Public Prosecutor and learned counsel for the accused.

8.Now the point for determination is, “Whether the prosecution could bring home the guilt of the accused for the charge under Sec. 8© r/w 20(b)(ii) (B)

of N.D.P.S., Act, 1985, beyond reasonable doubt ?”

9.POINT :-

The learned Spl.P.P., argued that the accused is a resident of

Susanth Nagar, Gajuwaka, Visakhapatnam District. He argued that on 10.8.2021 at about 6.30 hours , P.W.4-S.Dharma Rao, Enforcement Inspector, Special

Enforcement Bureau Station, S.Kota, along with his staff and mediators reached

Girijan Corporation check post, Boddavara village junction, S.Kota , they found the accused along with a bag, on seeing them she tried to leave that place along with a bag. On enquiry, she revealed that her identity to them and on verification of her bag in the presence of P.W.1-VRO, Boddavara village, S.Kota Mandal, and another, they found one brown colour packet in that bag. Then a whole was made to that bag and they found leaves, buds and stems. It was weighed at that time and it is around 4.5 Kgs. On further, enquiry by P.W.4, the accused revealed that she purchased it from an unknown person at Paduva village of Koraput District,

Odisha State and to sell the same at Visakhapatnam . She was informed that possession of Ganja and sale of Ganja is an offence as per the provisions of

N.D.P.S., Act, 1985. Later she was taken into custody and at that time a mediators 7 report was prepared for seizure of contraband under the cover of Ex.P.1-mediators report and the accused was sent for judicial custody.

9(a)The learned Spl.P.P., further argued thatr the investigation was carried out by P.W.4, after following the due procedure laid down in N.D.P.S., Act, 1985, and on competition of the investigation a charge sheet was filed against the accused for the offence under section 8(c) r/w.20(b)(ii)(B) of N.D.P.S. Act, 1985.

9(b)The learned Spl.P.P., further argued that to prove the case of prosecution, they examined P.Ws.1 to 4 and marked Exs.P.1 to P.4 and M.O.1 i.e.,unspent portion of sample of Ganja. The prosecution witnesses are P.W.1-

G.Somaraju(VRO) Moolaboddavara village, P.W.2-N.Ramya Sree, Sub Inspector of

Police, Enforcement, S.Kota, P.W.3-R. Appalakonda, a Constable, Special

Enforcement Bureau, S.Kota and P.W.4-S.Dharmarao, Inspector of Police, Special

Enforcement, Excise Bureau, S.kota. All the witnesses corroborated with each other with regard to noticing the accused along with a bag at the place of offence and the contraband was found in her bag. Later samples were drawn in the presence of Magistrate, as per the provisions of N.D.P.S., Act, 1985. The learned

Spl.P.P., further argued that the prosecution witnesses supported the case of prosecution on all aspects and prosecution proved its case against the accused for the charge levelled against her.

9(c)To support the contentions raised by the Spl.P.P., he relied upon the following case Laws are:- (1)In Varinder Kumar vs The State Of Himachal Pradesh reported in 2019 0

Supreme (SC) 143, wherein it is observed that,

Individual rights of the accused are undoubtedly important. But equally important is the societal interest for bringing the offender to book and for the system to send the right message to all in the society —be it the law abiding citizen or the potential offender. ‘Human rights’ are not only of the accused but, extent apart, also of the victim, the symbolic member of the society as the potential victim and the society as a whole.

8

Law has to cater to wide variety of situations as appear in society. Law being dynamic, the certainty of the legislation appears rigid at times whenever a circumstance (set of facts) appears which is not catered for explicitly. Expediency then dictates that the higher judiciary, while interpreting the law, considers such exception(s) as are called for without disturbing the pith and substance and the original intention of the legislature.

This is required primarily for the reason to help strike a balance between competing forces – justice being the end – and also because the process of fresh legislation could take a long time, which would mean failure of justice, and with it erosion of public confidence and trust in the justice delivery system.

The principle of fair trial now informs and energises many areas of the law. It is a constant, ongoing, evolutionary process continually adapting itself to changing circumstances, and endeavouring to meet the exigencies of the situation – peculiar at times – and related to the nature of crime, persons involved, directly or operating from behind, and so many other powerful factors which may come in the way of administration of criminal justice, wherefore the endeavour of the higher courts, while interpreting the law, is to strike the right balance.

Societal interest therefore mandates that the law laid down in Mohan

Lal (supra) cannot be allowed to become a spring board by an accused for being catapulted to acquittal, irrespective of all other considerations pursuant to an investigation and prosecution when the law in that regard was nebulous.

Criminal jurisprudence mandates balancing the rights of the accused and the prosecution.

It is further held that,

Prospective declaration of law is a device innovated by this Court to avoid reopening of settled issues and to prevent multiplicity of proceedings.

It is also a device adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law, prior to the date of the declaration are validated. This is done in larger public interest. Therefore, the subordinate forums which are bound to apply law declared by this Court are also dutybound to apply such dictum to cases which would arise in future. Since it is indisputable that a court can overrule a decision there is no valid reason why it should not be restricted to the future and not to the past. Prospective overruling is not only a part of constitutional policy but also an extended facet of stare decisis and not judicial legislation. These principles are enunciated by 9 this Court in Baburam vs. C.C. Jacob, (1999) 3 SCC 362 and Ashok Kumar Gupta vs. State of U.P., (1997) 5 SCC 201.”

The criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it unidirectional exercise. A proper administration of the criminal justice delivery system, therefore requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal (supra) is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations. We therefore hold that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by the individual facts of the case.

(2)In The State of Punjab Versus Baldev Singh etc., Respondents reported in 1999 0 Supreme (SC) 726, wherein it is held that,

Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a sick society and harmful culture. Anti-drug justice is a criminal dimension of social justice.

It is further observed that;

Power of seizure and arrest in public places. Any officer of any of the departments mentioned in section 42 may

(a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

10

Explanation For the purposes of this section, the expression public place includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.

It is further observed that ;

Section 54 provides :

54. Presumption from possession of illicit articles. In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter IV in respect of

(a) any narcotic drug or psychotropic substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance, or any residue left of the materials from which any narcotic drug or psychotropic substance has been manufactured.

for the possession of which he fails to account satisfactorily. Section 57 reads as follows:-

Report of arrest and seizure.- Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official.

It is further held that;

The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. In Balbir Singhs case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102 103and 165 per se does not vitiate 11 the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view.

It is further observed that; in State of Punjab v. Balbir Singh the questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :

(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS

Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

It is further held that ;

To be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the concerned person having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a

Gazetted Officer or a Magistrate would State Of Punjab vs Baldev Singh on 21

July, 1999 Indian Kanoon - http://indiankanoon.org/doc/1438183/ 16 impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the concerned person of the existence of his right to have his search conducted before a Gazetted

Officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the concerned person orally and as far as possible in the presence of some 12 independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with.

It is further held that ;

This Court cannot over-look the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend creditibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in

Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted.

It is further held that;

There is indeed, a need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, 13 therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. However, the question whether the provisions of Section 50 are mandatory or directory and if mandatory to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the Investigating Officer (empowered officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by Section 50, by intimating to the concerned person about the existence of his right, that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, would cause prejudice to an accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible it cannot be disregarded by the prosecution except at its own peril. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50, and particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial

Unlawful possession of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt.

14

It is further held that ;

It is well-settled proposition of law that a decision is an authority for what it decides and not that everything said therein constitutes a precedent.

The courts are obliged to employ an intelligent technique in the use of precedents bearing it in mind that a decision of the court takes its colour from the questions involved in the case in which it was rendered.

It is further held that ;

In view of the provisions of Chapter IV of NDPS Act, mere unlawful possession of a contraband amounts to an offence and is punishable with rigorous imprisonment for terms which shall not be less than 10 years but can extend to 20 years or 30 years in addition to a fine which shall not be less than one lakh of rupees but which may extend to two lakhs or three lakhs of rupees. On a charge of possession of a dangerous drug or a psychotropic substance, if it is established that the accused had the contraband in his possession without authority, he is liable to be punished. "Unlawful possession" of the contraband is the sine qua non for recording conviction under the NDPS Act and the most important ingredient of an offence under the NDPS Act.

It is further held that ;

That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a

Magistrate, may not vitiate the trial but would render the recovery of the illicit

article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act; (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the 15 investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- sho rt a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act (9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the 16

Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case.

(3) In Mohan son of Shamrao Mohite Vs. State of Maharashtra reported in 2008 0 Supreme (Mah) 75, wherein The Apex Court held :

The word possession no doubt has different shades of meaning and it is quite elastic in its connection. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods.

It is further held that;

So far as compliance of Section 57 of the N.D.P.S. Act is concerned, it appears that PW-P.I. Mr. Gaware gave report about the search and seizure to the Director, Narcotic Drugs Control, Delhi on 7th July 2005. His version lends corroboration to the recitals of the report (Exh.29). A copy thereof was sent to the immediate superior Officer. Hence, it cannot be said that there is total non- compliance of provisions of Section 57 of the N.D.P.S. Act. Moreover, Section 57 of the N.D.P.S. Act is directory in nature and the non-compliance thereof per se is not fatal to the case of prosecution.

(4) In Mukesh Singh Vs. State (Narcotic Branch of Delhi) of Supreme Court (Reportable) in Special Leave Petition (Criminal) Diary No.39528/2018, wherein it is observed that;

That the observations of this Court in the cases of Bhagwan Singh v. State of

Rajasthan (1976) 1 SCC 15; Megha Singh v. State of Haryana (1996) 11 SCC 709; and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam (2010) 15

SCC 369 and the acquittal of the accused by this Court on the ground that as the informant and the investigator was the same, it has vitiated the trial and the accused is entitled to acquittal are to be treated to be confined to their own facts. It cannot be said that in the aforesaid decisions, this Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal; II. In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or 17 the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled.

(5) In Madan Lal and Anot6her Versus State of Himachal Pradesh

reported in 2003 0 Supreme (SC) 771, wherein it is held,

A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises.(See Kalema Tumba v. State of Maharashtra and Anr. (JT 1999 (8) SC 293), The State of Punjab v. Baldev Singh (JT 1999 (4) SC 595), Gurbax

Singh v. State of Haryana (2001(3) SCC 28). The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles.

It is further held that;

Section 20(b)makes possession of contraband articles an offence. Section 20 appears in chapter IV of the Act which relates to offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession. It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.

The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar

Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. As noted in Gunwantlal v. The

State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control.

18

The word 'possession' means the legal right to possession (See Health v.

Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD).

Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.

9(d) The Special P.P., requests the court to punish the accused as per Law, for the charges framed against her.

10The learned counsel for accused raised the following contentions :

*There is no corroboration between the prosecution witnesses with regard to timings of conducting raids and noticing the accused and sending requisition to the mediators.

*The Investigating officer not taken steps for securing the presence of persons to act as mediators near the place of offence.

*The accused is not known Telugu language and she knows Odiya language and the contents were not explained to her in vernacular language at the time of Ex.P.1 proceedings conducted by the Inspector of Police.

*The investigating officer has not followed the procedure laid down for keeping the samples as per the provisions of N.D.P.S., Act, 1985, *The non examination of Women P.C., who was present at the time of seizure proceedings and her name was also not mentioned in the C.D.

*P.W.2 not videographed the entire proceedings at the said place.

10(a)To support the contentions raised by the learned counsel for accused, he relied upon the following case Laws:

19

(1) In Union Of India vs Mohanlal & Another (supreme Court) in Criminal

Appeal No.652 of 2021 dt. 28.1.2016 (Reportable), wherein it is held that;

No sooner the seizure of any Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under

Sub- Section 3 of Section 52A, as discussed by us in the body of this judgment under the heading ‘seizure and sampling’. The sampling shall be done under the supervision of the magistrate as discussed in paras 13 and 14 of this order.

(2) In State of Punjab Vs. Balbir Singh reported in 1994 AIR 1872 (Supreme

Court), wherein it is held that ;

Section 50. Conditions under which search of persons shall be conducted.- (1)

When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest

Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female."

This provision obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities. It lays down that if the person to be searched so requires, the officer who is about to search him under the provisions of Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

 Under Section 100 CrPC the officer conducting search under a warrant should call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and Witness the search. Section 165 CRPC lays down that 20 whenever an officer-in-charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in- charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer after recording in writing the grounds of his belief and specifying in such writing, may proceed to search or to cause search to be made. Section 165(4) lays down that the provisions of this Code as to search warrants and the general provisions as to searches contained in Section 100 shall, so far as may be, apply to a search made under Section 165 also. The scope of these two sections have been examined in a number of cases. In State of Punjab v. Wassan Singh, this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In Sunder

Singh v. State of U.P.2 it is held that irregularity cannot vitiate the trial unless the accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated. In State of

Maharashtra v. P. K. Pathak3 it is held that 1 (1981) 2 SCC 1: 1981 SCC (Cri) 292 2 AIR 1956 SC 411: 1956 Cri L.J 801 3 (1980) 2 SCC 259: 1980 SCC (Cri) 428: AIR 1980 SC 1224 absence of any independent witness from the locality to witness the search does not affect the trial and the conviction of the accused under the Customs Act. In Radha Kishan v. State of Up.4 it is held that irregularity in a search would, however, cast a duty upon the court to scrutinise the evidence regarding the search very carefully. In Matajog Dobey v. H.C. Bhari5 it is held that when the salutory provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstance which made it impossible for it to comply with these provisions.

It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. In Deepak Ghanshyam Naik v.

State of Maharashtra7 a case arising under the NDPS Act, a Division Bench of the Bombay High Court considered the effect of non-compliance of Section 100(4) namely that two or more independent respectable inhabitants of the locality were not called to be present during the search and that on the other 21 hand two Panchas of different locality were called to be present. The Division

Bench considered the explanation that Parnaka was at a distance of half a kilometre from the place of occurrence 4 AIR 1963 SC 822: 1963 Supp (1) SCR 408: (1963) 2 LLJ 667 5 AIR 1956 SC 44: (1955) 2 SCR 925: 1956 Cri LJ 140 6 (1980) 4 SCC 669: 1981 SCC (Cri) 98: AIR 1980 SC 593 7 1989 Cri L.J 11 81: 1989

Mah L J 276 (Bom) and they called the Panch witnesses from that place and that they could not call somebody present on the road where the incident took place and held that there was no material to hold that Panch witnesses from Pamaka were in any way motivated to falsely implicate the accused. In Sunil Kumar v.

State8 again a case arising under the NDPS Act, the Delhi High Court while considering the scope of Section 42 of the NDPS Act and Section 100(4) of CrPC observed that failure to associate independent persons in the search in a given situation would not affect the prosecution case in toto and the same cannot be thrown out or doubted on that ground alone

The object of N.D.P.S., Act, is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory.

Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the CrPC. If there. is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material.

Therefore it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the 22 officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non- compliance or failure to strictly comply by itself will not vitiate the prosecution.

10(b) The learned counsel for the accused further argued that the prosecution has failed to prove the case against the accused, hence, she is entitled for benefit of doubt and he requests the court to acquit the accused for the charge levelled against her.

11THE EVIDENCE AVAILABLE ON RECORD IS DISCUSSED AS

FOLLOWS:-

P.W.4-S.DharmaRao, Inspector of Police, Special Enforcement, Excise

Bureau, S.Kota, deposed that on 10.08.2021 on receipt of information he along with P.w.2, W.P.C-Prameela, P.w.3, S.K.Sattar, D.Sivakumar, Enforcement

Constables, . and mediators(P.w.1 and Devapurapu Atchutharao) conducted route watch at Boddavara corporation check post, at that time, at about 6.30 am , they noticed the accused holding a bag in her right hand with heavy weight coming from Araku and proceedings towards Visakhapatnam and on seeing them the accused tried to leave that place by keeping the bag on the road. When he enquired with accused, why she was leaving that place then she told that said bag contains ganja and police will caught hold her. On enquiry, the accused revealed her identity to them and in the presence of mediators the bag was verified, they found one brown colour packet in that bag and they made a hole to that packet and found dry ganja i.e., stems , flowers and leaves and the said contraband was weighed with spring balance and it is around 4.5 kgs in weight. He enquired the accused, how she got contraband then she stated that she purchased it from one unknown person in Paduva village, Koraput District in order to sell the same at

Gajuwaka, Visakhapatnam District. The hole which was made to the packet was seized, affixed identification slips which contains his signature, mediators signatures, staff signatures and accused. He informed to accused that the possession of ganja and sale of ganja is an offence under provisions of NDPS Act 23 1985. He took her into the custody and a mediators report was prepared from the seizure of contraband at the said place and all of them returned to police station along with accused and property. He put the contraband in the contraband room of police station and he registered a case based on mediators report under

Sec.20(b)(ii) (C) r/w. 8 (C) of NDPS Act, 1985 as in Crime No.106/2021 and issued

FIR. He sent the accused for judicial custody after informing the arrest of accused to her relatives.

12On that aspect, P.W.2-Ramya Sree, Women S.I., Enforcement, S.Kota, deposed that she accompanied by P.W.4 along with P.W.1, Davapurapu Atchutarao and her staff and while they were conducting route watch at Boddavar corporate check post, at that time, she also noticed the accused along with a bag.

12(a)Her version is similar to the version of P.W.4 with regard to noticing the accused with bag and drafting the proceedings of Ex.P.1, at the place of offence and she identified the accused during her evidence before the Court.

12(b)It is elicited in the cross examination of P.W.2 that she had android smart phone at that time and she has not videographed the entire proceedings at the said place.

12(c)Her cross examination reveals that the suggestions that the entire transaction is sham transactions and on that she did not take videographed of it and that he did not participate in that raid which was conducted on that day and nothing was found with accused on that day and no proceedings were conducted on that day and that the accused not known Telugu language and on that she signed in Oriya language and that she did not sign on inventory certificate and that at the instance of police no proceedings were conducted before her on that day she is seeing the accused for the first time on the date of her evidence in the court and she identified the accused at the instance of police and that the proceedings under Ex.P.1 were drafted by police and they came to their office and obtained his signature under Ex.P.2.

24

13.P.W.1-Ganivada Somaraju, V.R.O., Moolaboddavara Village, deposed that he was present at the time of Ex.P.1 proceedings conducted by P.W.2 and P.W.4 at the place of offence. His evidence is corroborated with the testimony of P.Ws.2 and 4 in respect of the contents of Ex.P.1, is conducted at the place of offence.

13(a)His further version is that the seized property was kept in police station contraband room for safe custody. The accused gave answers in Telugu and she speaks Telugu language and he identified the accused during his evidence.

13(b)It is elicited in the cross examination of P.W.1 that he received a phone call from Tahsildar prior to reaching to the police station and he admitted that there are other ways to reach Visakhapatnam from Aruku other than

Boddavara junction. They waited nearly half an hour at said junction and no other vehicles were checked prior to search of accused bag. There are shops at the check post and it is a busy place and he cannot say the names of constables who accompanied to the said place. The constables are male persons.

13(c)P.W.1 admitted that there is no mention in Ex.P.1 that the contents of

Ex.P.1 were read over to the accused that the weighing machine was carried by the police personnel along with them to the said place and the entire proceedings completed within one hour and he did not receive any written communication from the police to act as mediator for Ex.P.1 proceedings conducted at the said police.

14P.W.3-P.Appalakonda, Constable, Special Enforcement Beauro at

S.Kota deposed about his presence at the time of arrest of accused along with bag and contraband was found in that bag.

14(a)His version is that himself, P.W.1, P.W.2 and P.W.4, accused signed on the identification slips which were affixed on contraband.

14(b)It is elicited in the cross examination of P.W.3, that he worked at

Vizianagaram prior to that he reported to the duty at S.Kota. There is transportation facility available from Araku to Visakhapatnam directly i.e., buses 25 etc. Boddavara junction is situated in a busy locality at S.Kota. The station contraband room got this property prior to that there was no property in that room.

14(c)In cross examination of P.W.3 it is elicited that he received message from CI of police at 5.00 am and asked him to report at station and the VRO came to the police station on that day at 5.30 am. The weighing machine is available in the police station. They saw the accused very near to the place of offence. There are some bushes near to the check post. The accused was not physically checked at that time.

14(d)P.W.3 denied the suggestion that accused is not conservative with

Telugu language.

15It appears that P.W.4, P.W.2,P.W.1 and P.W.3 supported with each other about conducting route watch at Girijan Corporation check post, Boddavara village junction, S.Kota , they found the accused along with a bag and on suspicion they stopped and on search, they found one brown colour packet in that bag containing leaves, buds and stems and it was weighed at that time and it is around 4.5 Kgs.

16It is the further version of P.W.4, that he also informed about the registration of case to his superiors and P.w.2 produced ganja before the concerned Magistrate i.e., JFCM, Kothavalasa who was incharge of JFCM, S.Kota for purpose of inventory and the inventory proceedings were conducted by JFCM,

S.Kota and Ex.P.8-inventory proceedings along with CD and digital photos (9 pages) conducted by JFCM, S.Kota and after drawing the samples from the contraband before the Magistrate the said samples were sent to analysis to

Chemical Examiner , Visakhapatnam through Letter of Advice, dt. 10.08.2021 i.e.,

Ex.P.4. .

16(a) His version is that he also served notices on mediators on 10.08.2021 i.e., Ex.P.2 prior to search of the bag of accused. He identified the contents of 26 mediators report, FIR and letter of advice when they were confronted to him by

Spl.PP. Ex.P.3 is FIR and Ex.P.5 is analysis report, 08.11.2021, wherein the Analyst opined that the sample is dry ganja and mentioned in Ex.P.5 He also filed attested copy of contraband relevant entry in contraband register pertaining to this crime and it is marked as Ex.P.6.

16(b)His version is that he intimated about the registering the case by him to Joint Director SEB, Vizianagaram and an acknowledgment was also endorsed by Joint Director, SEB on 12.08.2021. Ex.P.7 is acknowledgment issued by Joint Director, He identified the unspent portion of sample of ganja when it was confronted to him by Spl.PP and it is marked as Mo.1. He identified the accused was the person from whom they seized the contraband, on the date of his evidence.

The contents of Ex.P.1 to Ex.P.8 are self explanatory in nature.

16(c) His further version is that on receipt of analysis report,dt.08.11.2021, and on completion of the investigation he filed a charge sheet against the accused under section 20(b)(ii) (C) r/w. 8 (C) of NDPS Act, 1985.

16(d)It is elicited in his cross examination of P.W.4 that he is complainant and Investigating Officer in this case and he did not add W.P.C.-Prameela as a witness in this case since he felt that more number of witnesses not necessary and he did not make mention of presence of said Prameela in part-I CD proceedings of this crime.

16(e) He admitted that he received the information on that day at 5.00 am and he served a notice to the mediators at the scene of offence and he does not know the residence of both mediators and the distance from check post to their police station is about 8 ½ km and they reached there at 6.00 am and the scene of offence is situated in a busy locality. He added that since it is morning hours, the place is not busy and he did not observe whether any shops were opened near the scene of offence at that time 27 16(f) He deposed that he has to follow the search and seizure of property as per the provisions of CRPC. He did not check any vehicle prior to noting the accused at the place of offence and he made GD entry on that day and he did not mention the same in CD Record. They will maintain prisoners search register in the police station and will mention all the belongings of prisoners in that registers and they did not find any cash with the accused at that time so also mobile 16(g) It is elicited in his cross examination that based on the information furnished by accused they informed to her relatives about her arrest i.e.,

Nagalakshmi and she identified the accused and he verified the Aadhar Card of accused and he is not familiar with Oriya language.

16(h)It is elicited in his cross examination that nearly 1.15 hours taken to complete the proceedings at the place of offence and that the accused did not reveal the particulars of unknown person from whom she purchased the contraband in Paduva village, so also she did not reveal the particulars of persons to whom she used to sell ganja at Gajuwaka. There is no separate room notified as store room for us to keep the contraband. He added and they kept it in a room which is provided in the police station.

16(i)His cross examination reveals that the constable name was not mentioned in Ex.P.4 in column No.7. He added that signature of constable was there under Ex.P.2 and this is his first case reporting at S.Kota about ganja and he did not file the bag in which the contraband was found in this case.

16(j)He denied the suggestions that the said W.P.C. not accompanied with them on that day to the place of offence, and that he did not mention her name in Part-I CD proceedings since the proceedings are fictitious proceedings and not followed Section 100 CrPC., and that the contents of mediator report is dark to some texts and it was written with different inks and nearly 01.15 minutes to complete the proceedings at place of offence, and that accused is not known the 28

Telugu language and they obtained her signature at police station on mediators report 16(k)P.W.4 denied the suggestions that he not find accused at checkpost on that day and nothing was found in her possession on that day and she did not state anything on that day and the proceedings were foisted against her and that he foisted false case against accused since it is first case of mine about reporting ganja and that since the signatures of accused not there on that bag and on that he did not file the bag in this case and that accused not committed any offence and he is deposing false.

17The documents which are marked on behalf of prosecution are as follows:- * The contents of Ex.P.1 discloses that it is a mediators report dt 10.8.2021 with regard to noticing of the accused while she was carrying a bag and after complying the mandatory provisions of NDPs Act, 1985 by police ,they verified the bag and found Dry Ganja in the bag and mediators report was signed by P.Ws.1 to P.W.4 and accused.

* The contents of Ex.P.2 disloses that it a notice dt.10.8.2021 served on mediators that the information received by P.W.4 and he requested P.W.1 and D.Atchutarao and all of them signed on it.

* The contents of Ex.P.3 discloses that it is FIR registered as a case in Crime No.106/2021 under section 20(b)(ii) (C) r/w 8(c) of NDPS Act, 1985, against the accused, based on Ex.P.1.

* The contents of Ex.P.4 discloses that it is a office copy of Letter of Advice dt. 10.8.2021 addressed by Enforcement Inspector to chemical examiner, through which, sample was sent to the RFSL for the purpose of Analysis.

* The contents of Ex.P.5 discloses that it is a Analyst Report dated 8.11.2021 issued by Government chemical examiner and opined that sample was “Ganja”.

* The contents of Ex.P.6 discloses that it is a attested copy of contraband relevant entry in contraband register pertaining to this crime, kept in contraband room * The contents of Ex.P.7 discloses that it is an acknowledgment issued by joint director, SEB for the letter addressed by S.H.O., Special Enforcement Bureau Station, Vizianagaram (Preliminary Report of Ganja case).

* The contents of Ex.P.8 is that it is inventory proceedings along with cD and digital photos (9 pages) conducted by JFCM, S.Kota.

29 *The contents of Ex.P.1 to Ex.P.8 are self explanatory in nature.

18On a careful scrutiny of testimony of P.W.1, P.W.2, P.W.3 and P.W.4 coupled with the contents of Exs.P.1 to P.8. and M.O.1, it is manifest that on 10.8.2021 at morning hours the accused was found with a bag and she was proceeding from Araku towards Boddavara junction and this is proved by prosecution. The testimony of P.W.1 clearly show that he is an independent witness and he supported the version of P.W.2, P.W.3 and P.W.4.

18(a)The contents of Ex.P.1 also supported the version of P.Ws.1 to 4 in this regard. It is further manifest that the place where they noticed the accused is a public place and it is also not a busy locality at morning hours. P.W.4 served a notice under Ex.P.2 to P.W.1 and another to act as mediators since he received information about illegal transportation of Ganja near Boddavara check post. The contraband was found in the bag of accused and it was weighed and later the contraband was placed before Magistrate for the purpose of taking samples and the contents of Ex.P.8 supported the version of P.W.4, P.W.2 and P.W.3. After taking samples, it was sent to chemical expert by the investigating officer and this was deposed by P.W.4 in his evidence.

19The facts on hand are not applicable to the facts mentioned in the above citations relied on by the learned Spl.P.P., and the counsel for the accused, which was discussed supra. Applying the principles laid down in the above citations to the facts of this case and circumstances of the case I do not find any force in the contentions raised by the accused. The minor discrepancies cannot be taken away the entire case of prosecution which is pointed out by the leaned counsel for the accused. Hence, I believed the testimony of P.Ws.1 to P.W.4 coupled with the contents of Exs.P.1 to P.8 and M.O.1.

30 20 Considering the circumstances of the case, I am of the opinion that the prosecution has proved the case against the accused for the for the offence under Section 8 (c) r/w 20 (b) (ii) (B) of NDPS Act,1985.

The point is answered accordingly.

21IN THE RESULT, I find that the accused is guilty of offence under

Section 8 (c) r/w 20 (b) (ii) (B) of N.D.P.S. Act, 1985. Accordingly, she is convicted under Section 235 (2) of Cr.P.C.

Dictated to the Stenographer Grade I transcribed by her corrected and

pronounced by me in open court on this the 4 th day of May, 2022.

Sd/-K.Sudhamani

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

N.D.P.S. ACT- CUM-I ADDITIONAL DISTRICT AND

SESSIONS JUDGE, VIZIANAGARAM.

P.O. Act is not applicable to the facts of the case.

When she was informed about quantum of sentence, she pleaded that she has no one and she has one son and pleaded mercy.

Considering the circumstances of the case, and gravity of offence, accused is sentenced to undergo 10 years (TEN) RIGOROUS IMPRISONMENT and to pay fine of Rs.50,000/- (Rupees Fifty thousand) in default of which, she shall undergo 6 (six) months simple imprisonment, for the offence under section 8(c) r/w 20(b)(ii) (B) of N.D.P.S. Act, 1985.

M.O.1, shall be destroyed after expiry of appeal time

The remand period of accused is set off as per Section 428 of Cr.P.C., i.e., from 10.8.2021 to till day.

The right of Appeal was informed to accused.

Pronounced by me in open court on this the 4th day of May, 2022.

Sd/-K.Sudhamani

SPECIAL JUDGE FOR TRIAL OF CASES UNDER N.D.P.S. ACT-

CUM-I ADDITIONAL DISTRICT AND SESSIONS JUDGE,

VIZIANAGARAM

31

Appendix of Evidence Witnesses examined For Prosecution: P.W.1Ganivada Somaraju (VRO)

P.W.2N.Ramyasree (Investigating officer)

P.W.3P.Appalakonda (Enforcement Constable)

P.W.4S.Dharmarao (Investigating Officer )

For Defence: NIL.

Documents Marked

For Prosecution: Ex.P.1Mediators Report, dt.10.08.2021

Ex.P.2 Notice dt.10.08.2021 sent to mediators

Ex.P.3Original FIR in Cr.No.106/2021 of Special Enforcement Bureau Station, S.Kota (2 pages).

Ex.P.4Copy of letter of Advice, dt.10.08.2021

Ex.P.5Analyst report, dt.08.11.2021

Ex.P.6Attested copy of contraband register showing the relevant entry in contraband register pertaining to the crime

Ex.P.7Acknowledgment dt.12.08.2021 issued by Joint Director, SEB.

Ex.P.8Inventory proceedings along with enclosures, with CD and digital photos (9 pages) conducted by JFCM, S.Kota.

For Defence: NIL.

M.Os marked

M.O.1 : Unspent portion of sample of Ganja

Sd/-K.Sudhamani

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

N.D.P.S. ACT- CUM-I ADDITIONAL DISTRICT AND

SESSIONS JUDGE, VIZIANAGARAM