Sri M.A.Somasekhar

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IN THE COURT OF SESSION :: PRAKASAM DIVISION :: ONGOLE

(Before the II-Additional Sessions Judge, Prakasam District at Ongole)

Present : Sri M.A. SOMASEKHAR, II-Additional District & Sessions Judge, Prakasam District at Ongole.

Tuesday, this the 31st day of January, 2023.

CRIMINAL APPEAL No. 81 / 2019

From which Court the : Judicial Magistrate of First Class, appeal is preferred Kanigiri.

No. of the case in that Court: C.C.No.04/2015

No. of the Appeal: Criminal Appeal No.81/2019

Name & Description of the Appellant/Accused :

Gatla Siva Kumari, W/o. Vijaya Bhaskar Reddy, aged 47 years, R/o. Pamur Village and Mandal, Prakasam District.… Appellant/Accused

Name & Description of the Respondent/complainant:

1. Sura Narasimha Reddy, S/o. Malakonda Reddy, aged 50 years, R/o. Gopalapuram Village, Pamur Mandal, Prakasam District.

2. Additional Public Prosecutor, Ongole. …. Respondents Sentence and alaw under: U/Sec.138 of N.I.Act

Lower Court: In the result, the accused is found guilty for the offence under section 138 of Negotiable Instrument Act, accordingly she is convicted under section 255(2) of Criminal Procedure Code. In the result, the accused is convicted U/Sec. 255(2) of Cr.P.C. Accordingly, the accused is sentenced to suffer with simple imprisonment of term of six months with fine to twice the amount of the cheque, towards compensation to the complainant under section.357(3) of Cr.P.C. for the offence under section 138 of Negotiable

Instrument Act. No remand period is available to set off under section.428 of

Cr.P.C. The accused is informed about right to appeal and free legal aid before

Appellate court.

Whether confirmed, modified : Confirmed. or reversed.

If modified, : the modification In the result, the Criminal Appeal is dismissed 2 by confirming the judgment of learned Judicial Magistrate of First Class,

Kanigiri passed in C.C.No.04/2015 dated 19.03.2019 by directing the accused to surrender before the Lower Court within 10 days from the date of this

Judgment voluntarily to under go the sentence passed by the Lower Court, in case if the Appellant/ accused failed to do so, the Trial Court is directed to take steps against the accused to under go the sentence by the accused as per its

Judgment. The remand period of the accused shall also be given set off against said sentence as per Section.428 of Cr.P.C.

Date of presentation: 18.04.2019

Date of filing: 18.04.2019

Notice issued by Court to : 22.04.2019 appear:

Bail bonds if they have been: On bail let out on bail

Appellant ordered to appear: 20.06.2019

Hearing: 31.01.2023

Order/Judgment: 31.01.2023

This appeal is coming before me on 31.01.2023 for final hearing in the presence of Sri I. Venkateswarlu, Advocate for appellant / Accused and of Sri

K.V.Rameshwara Reddy, Advocate for Respondent No.1/ Complainant, and

Addl. Public Prosecutor for 2nd respondent and after perusing the record this

Court delivered the following:

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

01.The accused in C.C.No.4/2015 filed this appeal against the Conviction and sentence passed by the Judicial Magistrate of First Class, Kanigiri dated 19.03.2019 by convicting the accused U/Sec.255(2) of Cr.P.C and he is sentenced to undergo Simple imprisonment for a period of six months with fine to twice the amount of the cheque, towards compensation to the complainant

Under Section.357 (3) of Cr.P.C for the offence under Section.138 of Negotiable

Instrument Act. No remand period is available to set off under section.428 of 3

Cr.P.C. The accused is informed about right to appeal and free legal aid before

Appellate court.

02.The case was registered on the private complaint filed by the

Respondent/ Complainant Under Section.200 Cr.P.C for the offence Under

Section.138 of Negotiable Instruments Act.

03.The contents of the complaint in brief as follows:

The appellant / Accused (herein after referred as Appellant) is that she borrowed an amount of Rs.1,00,000/- from her business necessities on 15.07.2012 promising to repay the same with interest at the rate of 24% p.a.

either to the complainant or his order on demand. Immediately after receipt of the said amount the accused executed the promissory note on the same day in favour of the complainant duly attested by the witnesses. After repeated demands and several requests made by the complainant, the accused issued a cheque bearing No. 989318 of State Bank of India, Pamur, on 10.09.2014 in favour of the complainant for an amount of Rs.1,00,000/- and further agreed to pay the remaining interest after encashment of cheque amount and accused requested the complainant to deposit the said cheque in any nationalized bank for encashment. The complainant deposited the said cheque in Andhra Bank,

Pamur branch for encashment, but the said bank dishonoured the cheque with a reason that the account of accused is not having sufficient funds. The complainant further submits that the bank of accused returned the said cheque along with memo to the complainant on 22.11.2014. Immediately, after receipt of the said documents, the complainant got issued a lawyer notice on 26.11.2014 and the same was returned to him on 01.12.2014, but she did not choose to make payment. The dishonoured cheque, the memorandum of Bank,

Pamur dated 22.11.2014, the office copy of the lawyer notice, postal receipt and returned cover are herewith filed as document Nos. 2 to 6. The 4 complainant is having legally enforceable debt and accused is making efforts to avoid her liability and also to cheat the complainant, for which the accused is liable for criminal prosecution. The accused and the complainant’s husband are friends and the complainant believed the accused and lend the amount, but the accused cheated the complainant. Hence the complainant is constrained to file this complaint.

The trial court took cognizance of the offence against Appellant/Accused and on appearance of the accused before the Court, copies of documents were furnished to her as required under section.207 of Cr.P.C. The accused was examined under Section.251 of Cr.P.C., for accusation for the offence under

Section.138 of Negotiable Instrument Act, has been framed, read over and explained to the accused in Telugu, for which, she pleaded not guilty and claimed to be tried. During the course of trial, the complainant got examined as PW.1 to PW.6 and got marked Ex.P.1 to P.6.

After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C for the incriminating material appeared against her for which the accused denied the case of the prosecution and reported for defence evidence. The accused herself is examined as DW.1 and no documents are marked on her behalf.

After considering the above noted oral and documentary evidence of prosecution, learned trial judge convicted the accused, the accused is found guilty for the offence punishable U/Sec. 138 of Negotiable Instruments Act and she is convicted U/Sec.255(2) Cr.P.C for the said offence.

The accused is questioned with regard to the quantum of sentence, the accused stated that she did not commit any offence and prayed to take lenient view. Considering the facts and circumstances of the case, it is not a fit case to release the accused under probation of offenders Act or the provisions under 5 section 360 of Criminal Procedure Code. The record discloses that the accused caused huge loss to the complainant and when once offence is proved the guilty should be punished properly or else it leads to miscarriage of justice. In the result, the accused is convicted Under Section. 255(2) of Cr.P.C.

Accordingly, the accused is sentenced to suffer with simple imprisonment of term of six months with fine to twice the amount of the cheque, towards compensation to the complainant under section 357(3) of Cr.P.C, for the offence under section 138 of Negotiable Instrument Act. No remand period is available to set off under section 428 of Cr.P.C. The accused is informed about right to appeal and free legal aid before Appellate court.

Aggrieved by the Judgment of the Hon’ble lower court the appellant preferred this appeal. The grounds of appeal are that the judgment of lower court is contrary to law, weight of evidence and probabilities of the case. The court below ought to have appreciated that the appellant denied about the execution of Ex.P.1 and issuance of Ex.P.2 to the 1st respondent, hereby burden of proof lies on the 1st respondent. The court below ought to have appreciated that selection of witness who are examined by the 1st respondent as PW.2 to PW.4, who are his close relatives such as brother in law clearly shows that they are interested witness to speak in favour of PW.1. The court below ought to have appreciated that earlier settlement of issue in between the 1st respondent and the husband of the appellant clearly shows that there is probability to the 1st for having nexus with the family of the appellant and it is probable to the 1st respondent to commit theft of Ex.P.2 from the Panchayath office as suggested by the appellant. The court below ought to have appreciated that the if the evidence of PW.2 to PW.4, who are interested witness and residents of different locations is not believed there is no other evidence to establish that there is existing legally enforceable debt. The court below ought 6 to have appreciated that Ex.P.2 is not her individual cheque it is an official cheque of the Grama panchayath and the 1st respondent cannot proceed against the appellant in her individual capacity. The court below ought to have appreciated that the evidence of PW.5 is explicit that Ex.P.2 pertains to

Gramapanchayat. The court below ought to have appreciated the evidence of the PW.1 to PW.6 that their evidence is contra to the contents in the complaint.

The conclusions arrived at by court below is not in accordance with the evidence let in by the parties. The sentence of imposing fine and compensation is not in accordance with the Section.357 of Cr.P.C. The court below without appreciating/ analyzing evidence erroneously convicted the appellant. Viewing from any angle the judgment of the trial court is illegal and invalid and the same is liable to be set aside.

3.No oral or documentary evidence is adduced on either side in the appeal.

4.Heard the arguments on both.

The learned counsel for the appellant submitted arguments that the lower court failed to consider that the burden of proof is on the respondent

No.1 and further PW.2 to PW.4 are the relatives of 1st Respondent / defacto complainant and they are interested witnesses to support the case of the

Respondent No.1. He further submitted that in view of having nexus with the family of the appellant by the Respondent No.1, there is every probability of committing theft of Ex.P.2. The appellant counsel further submitted that

Ex.P.2 is not an individual cheque and it is an official cheque of Grama

Panchayath and as such the Respondent No.1 cannot proceed against appellant in his individual capacity. He further submitted that the evidence of

PW.1 to PW.6 is contrary to the contents in the complaint and the Lower Court erroneously convicted the accused without appreciating the evidence. Hence, prayed for allowing the appeal by setting aside the judgment of the Lower 7

Court.

The counsel for the Respondent No.1 failed to advance his arguments inspite of imposing conditional order and as such arguments of Respondent

No.1 is treated as nil. Respondent No.2 is learned Additional Public Prosecutor, who is added as proforma party, since this appeal is filed against the conviction of the appellant/ accused. Hence prayed for dismissal of the appeal.

5.In view of the above contentions, the following points will arise

before this Court for determination:

1. Whether the findings of trial court requires any interference?

2. To what relief?

6.Point Nos.1 & 2 :

Perused the evidence of PW.1 to PW.6, Ex.P.1 to Ex.P.6 and also DW.1.

Assessed the arguments of appellant.

As rightly said by the lower court in para No.17 that it is initial burden upon the Respondent No.1/ complainant to prove that legally enforceable debt between him and the appellant and a cheque is issued for discharge of the said legally enforceable debt and the same was dishonoured. Thereafter the burden shifts to the appellant / accused to rebut the presumption Under Section.139 of N.I Act by showing that the cheque in question was not issued towards legally enforceable debt or other liability. The presumption Under Section.118 and 139 of Negotiable Instrument Act are rebuttable presumptions by shifting the onus on the appellant / accused. As a matter of principles to facilitate negotiability as well as trade.

Section.118 of N.I Act provides presumptions to be raised unless the contrary is proved, (I) as to consideration, (ii) as to date of instrument (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of endorsements

(vi) as to appropriate stamp and (vii) as to holder being a holder in due course.

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Section.139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section.138 N.I Act for the discharge, in whole or in part, of any debt or other liability.

7.The appellant can proved non existence of consideration by raising probable defence by discharging his initial onus of proving that the existence of consideration was improbable or deceitful or the same was illegal and mere probabilities in his favour. It is not necessary for the accused / appellant to disprove the existence of consideration by way of direct evidence and it may be either direct or by circumstantial or on presumption of law or fact and the same is clearly discussed by the trial court in Para No.21.

8.The trial court clearly discussed in Para No.22 about burden of proof and settled laws. It is pertinent to note, that once the execution of a cheque in question was proved or admitted, the presumption Under Section.139 of N.I

Act would arise that it is supported by consideration and such a presumption is rebuttable. The accused can prove the non-existence of consideration by raising a probable defence. The accused can discharge his initial onus of proving that the existence of consideration was improbable or doubtful or the same was illegal on a mere probability in his favour. It is not necessary for the accused to disprove the existence of consideration by way of direct evidence.

The burden upon him for proving the non-existence of the consideration can be either direct or by circumstantial or on presumption of law or fact.

9.It is settled law, that the burden of proof on the pleadings never shifts, it always remains constant. The initial burden of proving a prima-facie case is in his favour is caste on the complainant, when she given such evidence as will support a prima-facie case, the onus shifts on to the accused to adduce rebutting evidence to meet the case made out by the complainant, as the case 9 continues to develop, the onus may shifts back again to the complainant. The said principle laid down in:

1. AIR 1949 Privy Council page 278 in Kumbham Lakshmanna Vs.,

Tangirala Venkateswarlu ( Four member board)

2. AIR 1996 Supreme Court, Page 3356 in K.P.O. Maideen Kutty Hajee

Vs., Pappu Manjooran.

3. AIR 1999 Supreme Court, Page 1008 in Bharat Barrel and Drum manufacturing company Vs., Aminchand Pyarelal.

4. AIR 2008 SC 2898 in Rallavarapu Kasivisweshwara Rao Vs.,

Thadikonda Ramulu Firms Para 12.

5. AIR 1987, AP 139 (FB) in G. Vasu Vs., Syed Yaseem Sifuddin Quadri.

10.To prove the case of the complainant, the complainant himself examined as PW.1 and on his behalf PW.2 to PW.6 and Ex.P.1 to P.6 documents are marked. PW.1 filed his chief examination affidavit by reiterating to the complaint averments in his chief examination. In view of contending by the appellant / accused that PW.1 to PW.6 are interested witnesses and further the lower court failed to appreciate the evidence of PW.1 to PW.6, this court was forced to go through the evidences of PW.1 to PW.6. During the cross- examination of PW.1, he admitted that he filed case against the husband of appellant / accused and the same was withdrawn. PW.1 further admitted during the cross-examination that the scribe of Ex.P.1 is resident of

Kummarivaripalli Village of Badvel mandal and the second attestor is resident of Jangamvaripalli Village, C.S.Puram Mandal and he called the attestors and scribe at the time of Ex.P.1 which is suit promissory note. He admitted during the cross-examination that cheque is containing as Sarpanch, Padamata

Kattakindapalli Panchayath. Except the above said points, the remaining all cross-examination is suggestions, for which PW.1 denied as false.

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11.It is the contention of appellant that the cheque is issued in the name of

Sarpanch of Padamata Kattakindapalli Panchayath, but not in individual capacity. Admittedly the appellant / accused was Sarpanch by the time of issuing Ex.P.2 and as such she issued Ex.P.2 in the capacity of Sarpanch. The

Appellant is not a company or firm to add as proforma party. When the accused issued cheque of Panchayath office, no Panchayath members or

District Panchayath officer raised any objection questioning Ex.P.2 cheque.

Further the appellant is not supposed to issue cheque in the capacity of

Sarpanch when she is contending that in her personal capacity she borrowed the amount and executed Ex.P.1. Though Scribe and attestors of Ex.P.1 are resident of Kummarivaripalli Village of Badvel Mandal and Jangamvaripalli

Village, C.S.Puram Mandal, who are non local candidates, there is no restriction or bar for scribing Ex.P.1 and attesting Ex.P.1. Though, the appellant is contending that they are relatives and interested witnesses and colluded with PW.2 to PW.4 no such suggestion is made by the defence counsel during the cross-examination of PW.1.

12.The trial court clearly and categorically discussed about the evidence of

PW.1 in Para No.21 of its judgment, PW.2 to PW.4 are attestors and scribe of

Ex.P.1 and they supported the case of the Respondent No.1/ complainant.

13.On perusal of cross-examination of PW.2 he deposed that PW.1 is his brother-in-law. So, PW.2 is related to PW.1 as contended by the appellant counsel. PW.2 further admitted during the cross-examination that the scribe is related to him and also distant relative to PW.1. PW.2 further deposed in cross- examination that the first attestor is neighbour to PW.1. Except eliciting that himself and scribe are related to PW.1, no material points are elicited during the cross-examination. On perusal of evidence of PW.3, who is attestor clearly deposed that he is brother-in-law to PW.1 and he further deposed that the 11 scribe is resident of Kummarivaripalli Village of Badvel Mandal, Kadapa

District, but the remaining are all suggestions for which PW.3 denied. PW.4 is scribe of Ex.P.1 promissory note. He also deposed during the cross- examination that PW.1 is his brother-in-law and he further deposed in cross- examination that when he went to the Village of PW.1 he purchased the tractor, and he scribed Ex.P.1 and PW.2 and PW.3 are attestors for Ex.P.1.

PW.4 further deposed that he is resident of Kummarivaripalli Village of Badvel

Mandal. He denied the other suggestions as false.

14.As rightly contended by the appellant, all PW.2 to PW.4 are related to

PW.1. Except eliciting the same, no other material points are elicited. The contention of appellant is that there are earlier settlement between the 1st respondent and the husband of the appellant. But the appellant failed to elicit during the evidence of PW.1 to PW.4 about the earlier settlements or disputes between the respondent No.1 and husband of appellant. Mere putting suggestions to PW.1 to PW.4 that itself is not sufficient. It is the contention of the appellant that the 1st Respondent committed theft of Ex.P.2 which is cheque from the panchayath office. But there is no such suggestion to PW.2 to

PW.4 and the appellant / accused put suggestions to PW.1 to PW.4 that the signatures of promissory note and cheques are not belongs to the accused and the cheque and promissory notes are fabricated one. When the appellant is contending that a cheque was stolen as per the suggestion put by him during the cross-examination of PW.1 that the complainant collected the cheque from

Panchayath office, the source of collection and the manner of collection are silent. When the appellant is contending in the appeal ground that Ex.P.2 cheque was stolen from the Panchayath office, no complaint is lodged by the appellant against the complainant. Except eliciting that PW.2 to PW.4 are closely related to PW.1 and they are interested witnesses and residents of 12 different locations, no material evidence is elicited during the cross- examination of PW.1 to PW.4.

15.PW.5 is the Branch Manager, State Bank of India deposed about presentation of Ex.P.2 for collection and a return memo was issued with a reason that funds are insufficient. During the cross-examination PW.5 admitted that the account is in the capacity of Sarpanch, Padamata Katta

Kinda Palem Panchayath, but not personal account. The appellant is contending that the cheque is in the capacity of Sarpanch, but not their individual capacity.

16.As already discussed above the appellant issued cheque for discharge of loan amount availed under Ex.P.1. PW.6 is Branch Manager of Andhra Bank,

Pamur at where the complainant got account and they sent Ex.P.2 for collection and the same was returned. Similar cross is made for PW.6 also. The evidence of PW.5 and PW.6 are supporting the contents of Ex.P.3, which is returned memo with an endorsement that funds insufficient.

17.The contention of the appellant is that since PW.2 to PW.4 are relatives of PW.1 and they are interested witnesses and their evidence cannot be consider. This court has to consider whether the evidence of PW.2 to PW.4 suffers from infirmity because of the relationship with the Respondent No.1 and their entire evidence can be thrown aside. It is settled law that when the evidence of interested witnesses or relatives cannot be brushed aside. Merely because they are interested/ relatives to the complainant/ respondent No.1. to the extent of reliability and trustworthy, it can be consider.

18.As seen from the evidence of PW.2 to PW.4 their evidence was not at all shaken during the cross-examination and they all in one voice supported the evidence of PW.1. Admittedly the respondent No.1 got issued Ex.P.4 legal notice, but the same was refused by the appellant on 01.12.2014. As per 13

Section.27 of General Clauses Act and also as per Section.30 of Post Office Act refusal of notice is deemed to be service of notice on the addressee.

19.As rightly held by the trial court in Para No.13(i) the appellant has taken two stands that Ex.P.1 promissory note is fabricated and Ex.P.2 cheque is collected from the office of appellant. To prove that Ex.P.1 is fabricated, the appellant sent the suit promissory note to F.S.L for comparison and the same was returned by the F.S.L., Hyderabad to sent the admitted signatures and writing of appellant in normal course of business of accused, but the appellant failed to take any steps to comply the said objection what the lower court held in Para No.31 is correct.

20.The other contention of appellant / accused is that Ex.P.2 cheque was stolen from Panchayath office. Accused did not adduce any evidence to show that the respondent No.1 collected Ex.P.2 from the panchayath office. The trial court further held in Para No.32 that the accused voluntarily issued Ex.P.2 in favour of Respondent No.1 for legally enforceable debt in the personal capacity, bot not in the capacity of Sarpanch and the same is discussed in Para No.32 by the trial court. This court also discussed above, about the issuance of

Ex.P.2.

21.The trial court further discussed about the evidence of appellant, who is examined as DW.1. During the cross-examination DW.1 / appellant clearly admitted that her husband indebted to the complainant and issued promissory note and cheque to him and the said case was compromise and the amount was paid by her. DW.1 further deposed in cross-examination that at the time of compromise this case is not pending. DW.1 further deposed in cross- examination that she did not remember how many cases are pending against her and her husband in this court. So, there are many transactions between the appellant and the respondent No.1 and also the husband of the appellant 14 and the Respondent No.1. Further there are several other cases pending against her and her husband, which shows that the appellant borrowed amount from the Respondent No.1 and issued cheque and the trial court also discussed to some extent about this in Para No.33 of its Judgment. The respondent No.1 by examining himself as PW.1, on his behalf PW.2 to PW.4 as witnesses to prove Ex.P.1 and successfully proved that Ex.P.1 was executed by the appellant. In order to prove Ex.P.2, the respondent No.1 also examined

PW.5 and PW.6. Admittedly the legal notice was issued as mandated in

Negotiable Instrument Act cases by the respondent No.1 / complaint to appellant / accused, which is marked as Ex.P.4 dated 26.11.2014 and further inspite of receiving summons from this court being a honest drawer, the appellant is supposed to pay the amount due under the cheque, but the appellant failed to do the same. But whereas the Respondent No.1 proved his case by examining PW.1 to PW.6 and also by marking Ex.P.1 to P.6 documents proved his case. The appellant failed to rebut the presumptions available

Under Sections. 118 and 139 of Negotiable Instrument Act. The lower court clearly cited the ratio laid down in several decisions regarding the presumption

Under Section.139 of Negotiable Instrument Act is rebuttable presumption and it is rebutted by proving and no by explanation. The following are the said decisions which are discussed in Para No.38.

1.AIR 2004 SC Page 1242 in T. Shankar Prasad Vs., State of A.P.

2.AIR 2004 SC page 960 State of A.P Vs., Vasudeva Rao Paragraph No.26.

3.AIR 2004 SC page 2042 State of A.P Vs., Uma Maheswara Rao, Para

No.24A

4.AIR 2001 SC 3897 in Hiten P. Dalal Vs., Batindranath Benerjee.

5. AIR 1964 SC page 575 in Dehanvatral Bachvantral Desai.

6. AIR 1968 SC page 1292 para 98 in Sai Rendramuth Vs., State of Bihar 15

7.2009 (2) APLJ, Page 198 SC in Sayyed Shabiralli Hafizali Vs., State of

Maharastra.

8.AIR 2009 SC 1518 in Kumar Exports Vs., Sarma.

For the above discussed forgoing reasons, this court is of the considerable opinion that the Judgment of lower court / trial court does not suffers from any infirmity and does not required any interfere by this court and as such the Judgment of trial court is confirmed. Accordingly, point No.1 is answered.

22. Point No.2 :

In the result, the Criminal Appeal is dismissed by confirming the judgment of learned Judicial Magistrate of First Class, Kanigiri passed in

C.C.No.04/2015 dated 19.03.2019 by directing the accused to surrender

before the Lower Court within 10 days from the date of this Judgment

voluntarily to under go the sentence passed by the Lower Court, in case if the

Appellant/ accused failed to do so, the Trial Court is directed to take steps against the accused to under go the sentence by the accused as per its

Judgment. The remand period of the accused shall also be given set off against said sentence as per Section.428 of Cr.P.C.

Dictated to the Stenographer, transcribed by her corrected and

pronounced by me in open Court on this the 31st day of January, 2023.

Sd/- M.A. Somasekhar,

II-ADDL. DISTRICT & SESSIONS JUDGE,

PRAKASAM DISTRICT AT ONGOLE.

Copy to: 1.The Judl. Magistrate of First Class, Kanigiri. 2.The Accused.

// True Copy \\

II-Additional District & Sessions Judge, Prakasam District at Ongole.

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IN THE COURT OF THE II-ADDITIONAL DISTRICT AND SESSIONS JUDGE

-CUM- SPECIAL COURT FOR TRIAL OF OFFENCES AGAINST WOMEN,

PRAKASAM DISTRICT AT ONGOLE

Present: Sri M.A.Soma Sekhar,

Special Judge, POCSO Court, Ongole.

FAC II-Addl. Dist. & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam at Ongole.

Monday, this the 15th day of April, 2024.

SESSIONS CASE No. 177 of 2023

(P.R.C.No.15/2020 of Additional Judicial Magistrate of First Class, Kandukur in Crime No. 102/ 2019 of Kandukur Town Police Station)

State:

The Inspector of Police, Kandukur Circle. …. Complainant

Versus

Choppara Rajesh, S/o. Raghavaiah, aged about 30 years, Mala by Caste,

Mulaguntapadu Village, Singarayakonda Mandal. ….. Accused

The Sessions Case coming on 15.04.2024 before me for final hearing in the presence of Sri Y. Konda Reddy, Learned Additional Public Prosecutor for

State/Complainant and of Sri P.L.Govindaiah, Learned Advocate for Accused; and upon hearing arguments and on perusal of material on record, and 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, Kandukur Circle filed charge sheet against the accused for the offences punishable Under Sections. 420, 376 of Indian Penal

Code in Crime No. 102/2019 of Kandukur Town Police Station.

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2. The brief averments of the charge sheet are as follows :

The accused studied B.Ed in Viveka College of Education, Kandukur during the academic year, 2014-2015. During the same period LW.1/Victim, who is married about 11 years back and residing separately from her husband due to misunderstandings also studied in the same college. During the period of study at that college the accused induced LW.1/Victim that he will marry her though LW.1 informed him that she was married already. But thea ccused succeeded in gaining over her, used to visit her house at

Badevaripalem and had intercourse with her several times and he assured the mother of the Victim also that he would marry the Victim. The accused in the guise of marriage took some cash, gold ornaments from the Victim. After satisfying his lust with the Victim, the accused started searching for marriage alliances for him and on coming to know of the same, Victim informed the matter to the LW.7/Principal of the college and then the Principal called the accused and asked him to marry the Victim, but the accused bluntly refused.

As the accused threw the Victim in sorry and agony on 28.04.2019 at about 10.00 p.m., the Victim swallowed sleeping pills in the house of her mother and unable to get up even on the next day on 29.04.2019 at about 11.00 a.m., then the mother of the Victim woke up the Victim, came to know about the swallowing of the sleeping pills, shifted the Victim to Area Hospital,

Kandukur. The duty Medical Officer/LW.11 treated the Victim and sent intimation to Kandukur Town P.S. Then, H.C. 1710 M. Srinivasulu/LW.15 visited the hospital, recorded statement from the Victim and produced it 3

before the S.I of Police/LW.16, who registered the same as a case in Crime

NO.102/2019 U/Sec.417, 420, 497 I.P.C of Kandukur Town P.S, issued F.I.r and took up investigation. During the course of investigation the LW.16 visited the scene of offence, prepared a rough sketch of the same, drafted an observation report attested by mediators/LW.8 and LW.9, photographed it, examined the Victim, her mother and another as LW.1 to LW.3 and recorded their statements.

As per the judgment and guidelines of the Hon’ble Apex Court that

Sexual Intercourse with Woman on false promise of marriage and thereafter refused to marry her attract an offence U/Sec.376 of I.P.C, then the LW.16 altered the section of law to 420 and 376 of I.P.C filed altered memo in the

Hon’ble Court.

Later on 01.05.2019 the Lw.17 took up further investigation in this case, verified the investigation done by LW.16 and found it is on correct lines.

Later the LW.17 examined the witnesses LW.4 to LW.7 and recorded their statements, seized the clothes of the Victim Woman that were worn by her at the time of her last sexual intercourse with the accused under cover of mediators report handed over by LW.2 duly attested by the mediators/LW.8 and LW.9. Thereafter issued a memo to the Medical Officer to examine the

Victim Woman from rape of point of view and issue the preliminary wound certificate.

During the course of further investigation on 02.05.2019 on information the LW.17 along with mediators / LW.8 and LW.9 and staff 4 rushed at the house of accused at Mulaguntapadu Village, Singarayakonda

Mandal at 15.30 hours, apprehended the accused and on examination in the presence of mediators the accused admitted he induced the Victim and had sexual intercourse with her several times in the house of the mother of the

Victim and later refused to marry her. On demand the accused produced the clothes that were worn by him at the time of his last sexual intercourse with the Victim. Then, LW.17 arrested the accused at 16.30 hours and seized the clothes under the cover of mediators report duly attested by the mediators/LW.8 and LW.9, informed him the grounds for the same and later sent him for judicial remand.

Later, LW.17 forwarded the material objects to RFSL, Guntur for analysis and report and also subjected the accused for potency test through the Hon’ble Court. Thereafter produced the Victim Woman before the LW.10/

Hon’ble P.J.C.J., Kandukur for recording 164 Cr.P.C statement accordingly

the LW.10 recorded her statement.

Later on 15.07.2019, LW.18 took up further investigation in this case after assuming charge of Kandukur Circle. On 26.08.2019 the LW.18 received the potency test report from GGH, Guntur the medical professor/LW.12 opined that the medical board it can be concluded that there is nothing to suggest that the accused is not capable of performing sexual intercourse of act of coitus.

Later on 19.10.2019 the LW.18 also received the RFSL report from

RFSL, Guntur the scientific expert opined that the items are examined, blood 5 is detected on items, semen and spermatozoa are not detected, no foreign material is detected and no foreign hair is detected, the blood is human origin.

Later also received the wound certificate/final opinion from Area Hospital,

Kandukur the Medical officer/LW.14 opined that there is evidence of previous sexual intercourse. Later as the investigation is completed the LW.18 filed charge sheet against the Accused for the offences punishable Under Sections.

420, 376 of I.P.C.

03. The Additional Judicial Magistrate of First Class, Kandukur has taken this case on file Under Sections. 420, 376 of Indian Penal Code against

Accused. On appearance of the accused, copies of documents are furnished to him as required Under Section.207 Cr.P.C.

04.As the offence Under Section.376 of Indian Penal Code is exclusively triable by the Court of Session, the Additional Judicial Magistrate of First

Class, Kandukur committed this case to the Hon’ble Principal District &

Sessions Judge, Ongole U/Sec.209 of Cr.P.C. In turn the Hon'ble Principal

District & Sessions Judge, Ongole made over this case to this court for disposal according to law.

05.On appearance of the accused, he is examined U/Sec.228 (1) (b) of

Cr.P.C, and on hearing prosecution and defence, charges Under Secs. 420, 376 of Indian Penal Code against the accused was framed, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

6

06.On behalf of the prosecution, PWs.1 to PW.7 were examined and Exs.P.1 to Ex.P.24 were marked.

07.After closure of evidence of prosecution witnesses, the accused was examined Under Section.313 Cr.P.C and the incriminating material in the evidence of PW.7 was read over and explained to the accused in Telugu, for which he denied the offence and reported no defence evidence on his behalf.

08. Heard arguments on both sides.

The learned Public Prosecutor submitted arguments that on behalf of the prosecution, PWs.1 to PW.7 are examined and Exs.P.1 to Ex.P.24 are marked.

Though PWs.1 to PW.6 turned hostile, PW.7 supported the case of the prosecution. Taking into consideration of the evidence of PW.7, Exs.P.1 to

P.24 prayed for conviction of the accused.

The learned defence counsel submitted arguments that PW.1, who is

Victim Woman, PW.2, who is mother of PW.1/ Victim Woman, PW.3 and PW.4, who are close relatives and neighbours to PW.1 and PW.2, PW.5, who is independent witness, PW.6, who is mediator present at the time of scene observation panchanama, seizure panchanama and recording of confessional cum arrest panchanama and they all turned hostile. PW.7 is case investigating officer, who took up investigation in this case, examined the witnesses, recorded their statements, visited the scene of offence and drawn rough sketch of the scene supported the prosecution case. Mere basing upon 7 the evidence of PW.7 alone, the accused cannot beconvicted. Hence prayed for acquittal of the accused.

09. Now the points for determination are :

1. Whether the prosecution has proved this case against the

accused for the offences punishable Under Sections. 420, 376 of

I.P.C b eyond all reasonable doubt?

2. To what result, the accused is entitled?

10. POINT NO.1 :

To bring home the guilty of the accused, the prosecution has examined

PWs.1 to PW.7 and Exs.P.1 to P.24 are marked. PW.1, who is Victim deposed in her chief examination that the accused is her husband to whom, she got married subsequent to lodging complaint. She begotten a daughter through the accused. She gave statement before Police at Area Hospital, Kandukur.

The accused never committed any offence against her. She do not know anything about this case facts. She gave statement before LW.15 as tutored by elders, but not volunteer one. Ex.P.1 is said signed statement. She stated

before LW.10, who was the then Hon’ble P.J.C.J., Kandukur voluntarily.

Ex.P.2 is said 164 Cr.P.C statement recorded by Hon’ble P.J.C.J., Kandukur.

LW.16, who was the then S.I of Police, Kandukur Town never examined her in connection with this case. She being the Victim Woman turned hostile without supporting prosecution case. Her 161 Cr.P.C statement is marked as

Ex.P.3.

PW.2, who is mother of PW.1/Victim woman, she also deposed on the same lines of PW.1 during her chief examination stating that the accused is 8 husband of PW.1 to whom she got married subsequent to lodging complaint.

PW.1 begotten a daughter through the accused. PW.1 gave statement before police at Area Hospital, Kandukur. The accused never committed any offence against PW.1. She do not know anything about this case facts. PW.1 gave statement before LW.15 as tutored by elders, but not volunteer one. Ex.P.1 is said signed statement of PW.1. PW.1 stated before LW.10, who was the then

Hon’ble P.J.C.J., Kandukur voluntarily. Ex.P.2 is said 164 Cr.P.C statement of

PW.1 recorded Hob’ble P.J.C.J., Kandukur. LW.16, who was the then S.I of

Police, Kandukur Town never examined her in connection with this case. She being the mother of PW.1/Victim Girl turned hostile without supporting prosecution case. Her 161 Cr.P.C statement is marked as Ex.P.4.

PW.3 and PW.4, who are close relatives and neighbours of PW.1/Victim woman, they also deposed on the same lines of PW.1 and PW.2 during their chief examination stating that the accused is husband of PW.1 to whom she got married subsequent to lodging complaint. PW.1 begotten a daughter through the accused. PW.1 gave statement before police at Area Hospital,

Kandukur. The accused never committed any offence against PW.1. They do not know anything about this case facts. PW.1 gave statement before LW.15 as tutored by elders, but not volunteer one. Ex.P.1 is said signed statement of

PW.1. PW.1 stated before LW.10, who was the then Hon’ble P.J.C.J.,

Kandukur voluntarily. Ex.P.2 is said 164 Cr.P.C statement of PW.1 recorded

Hob’ble P.J.C.J., Kandukur. LW.16, who was the then S.I of Police, Kandukur

Town never examined them in connection with this case. They being the close 9 relatives and neighbours to PW.1/Victim Woman turned hostile without supporting prosecution case. Their 161 Cr.P.C statements are marked as

Ex.P.5 and Ex.P.6 respectively.

PW.5, who is independent witness, he deposed in his chief examination that he do not know the accused. He do not know anything about this case facts. LW.16, who was the then Sub-Inspector of Police, Kandukur Town never examined him in connection with this case. He being the independent witness turned hostile without supporting prosecution case. His 161 Cr.P.C statement is marked as Ex.P.7.

PW.6 is Senior Assistant, Tahsildar Office, who deposed in his chief examination that at no point of time LW.16, who was the then Sub-Inspector of Police, Kandukur Town P.S observed the scene of offence in his presence and in the presence of LW.8 on 29.04.2019 at about 04.00 p.m., and they never attested the said scene observation panchanama. Ex.P.8 is his signature on the alleged scene observation panchanama, dt: 29.04.2019 at about 04.00 p.m. At no point of time PW.7, who was the then Inspector of

Police, Kandukur Circle seized any clothes of PW.1/ Victim in his presence and in the presence of Lw.8 on 01.05.2019 at about 10.00 a.m. He put his signature in Kandukur P.S at the request of Police. At no point of time, PW.7 who was the then Inspector of Police, Kandukur on 02.05.2019 at about 03.30 p.m., arrested the accused by recording his confessional statement in his presence and in the presence of LW.8 and they never attested the said panchanama, dt: 02.05.2019 at about 03.30 p.m. Ex.P.10 is his signature on 10 the alleged confessional cum arrest mahazar dt: 02.05.2019 at about 03.30 p.m., prepared by PW.7. He being the mediator present at the time of scene observation panchanama, seizure panchanama and recording of confessional cum arrest mahazar turned hostile without supporting prosecution case.

The one and only evidence available on record for the prosecution case is the evidence of PW.7, who is the investigation officer deposed in his chief examination that on 28.04.2019, LW.15 received Hospital intimation from

LW.11, who treated PW.1/ Victim and in turn LW.15 visited Area Hospital,

Kandukur recorded the statement of PW.1 and forwarded the same before

LW.16, who was the then S.I of Police, Kandukur Town P.S, who in turn registered the same as a case in Crime No.102/2019 U/Secs. 417, 420, 497 of I.P.C and submitted original F.I.R to Hon’ble J.F.C.M., Kandukur and copies to all concerned. Ex.P.11 is original F.I.R submitted to the Court. Ex.P.1 is statement of PW.1 recorded by LW.15. Then, LW.16 rushed to scene of offence along with LW.8 and PW.6, observed the same in their presence and got prepared scene observation report duly attested by LW.8 and PW.6 and also prepared rough sketch of the same apart from photographing the scene.

Ex.P.12 is said scene observation report. Ex.P.13 is rough sketch. Ex.P.14 is 8 photos with C.D. Then, LW.16 examined PW.1 to PW.3 and recorded their 161

Cr.P.C statements. Thereafter, LW.16 filed section adding memo by adding 376 of I.P.C offence and filed memo before the Court by adding 420 of I.P.C and

Sec.376 of I.P.C. Ex.P.15 is said section adding memo. On 01.05.2019, he took up further investigation, since this is grave offence, perused the 11 investigation done by LW.16 and found to be on correct lines. Then, he secured the presence of PW.4, LW.5, LW.6 and PW.5 examined them and recorded their 161 Cr.P.C statements and also seized the clothes of PW.1 at her house which were said to be wore by her at the time of commission of offence by also preparing seizure mediatornama in the presence of LW.8 and

PW.6. Ex.P.16 is said seizure mediatornama. On 02.05.2019, he received information about the movements of the accused and then, he secured the presence of LW.8 and PW.6 and rushed to Mulaguntapadu Village, arrested the accused at his house by seizing clothes of accused, which were wore by him at the time of committing the offence by preparing confessional, seizure cum arrest panchanama duly attested by LW.8 and PW.6. Ex.P.17 is said confessional, seizure cum arrest panchanama dt: 02.05.2019 at about 04.30 p.m. He brought the accused to P.S and sent him to remand after due formalities. He forwarded the material objects preserved by LW.11 to RFSL,

Guntur/LW.13 for chemical analysis along with his requisition and letter of advise. He made requisition before LW.10, who was the then Hon’ble P.J.C.J.,

Kandukur to record 164 Cr.P.C statement of Pw.1, who accordingly recorded.

Ex.P.18 is said requisition. Ex.P.2 is 164 Cr.P.C statement of PW.1, which was already marked. On 15.07.2019 LW.18, who is his successor took up further investigation and send requisition to conduct potency test of accused and accordingly court permitted. LW.12 examined the accused and gave opinion stating that there is nothing to suggest that the accused is not capable of performing sexual act or act of coitus. Ex.P.19 is potency test certificate 12 issued by LW.12. On 19.10.2019, LW.18 received RFSL report. LW.14 gave final opinion basing upon her clinical examination that there is evidence of previous sexual intercourse. Ex.P.20 is said preliminary wound certificate.

Ex.P.21 is RFSL report. Ex.P.22 is said final opinion. After completion of entire investigation by enclosing all the documents, LW.18 filed charge sheet,

PW.1 to PW.3 stated before LW.16 as in Ex.P.3 to P.5 respectively. PW.4 and

PW.5 stated before him as in Ex.P.6 and Ex.P.7 respectively. LW.5 and LW.6 stated before him as in Ex.P.23 and Ex.P.24 respectively. During the cross examination, he denied all the suggestions made by the defence counsel as false.

11.As already discussed above, PW.1, who is Victim Woman, PW.2, who is mother of PW.1/ Victim Woman, PW.3 and PW.4, who are close relatives and neighbours to PW.1 and PW.2, PW.5, who is independent witness, PW.6, who is mediator present at the time of scene observation panchanama, seizure panchanama and recording of confessional cum arrest panchanama and they all turned hostile. PW.7 is case investigating officer, who took up investigation in this case, examined the witnesses, recorded their statements, visited the scene of offence and drawn rough sketch of the scene supported the prosecution case. Mere basing upon the sole evidence of PW.7, who is investigating officer, the accused cannot be convicted, as the evidence of PW.7 lacks corroboration of independent eye witnesses.

For the above said fore going discussions, this Court is of considerable 13 opinion that the prosecution failed to prove the guilt of the accused beyond all reasonable doubts and the accused are entitled for the benefit of doubt.

Accordingly, point No.1 is answered.

12.Point No.2: To what result the Accused is entitled?

In the result, the accused is found not guilty for the offences punishable

Under Secs. 420, 376 of Indian Penal Code and he is acquitted Under Section 235(1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as contemplated Under Section 437-A of Cr.P.C. Unmarked case property vide C.P.R.No.03/2024 (C.P.R.No.252/2020 of A.J.F.C.M. Court,

Kandukur) of this court shall be destroyed after completion of appeal time.

Typed to my dictation to the Stenographer, corrected and pronounced by me in Open Court, this the 15th day of April, 2024.

Sd/- M.A.Somasekhar,

Special Judge, POCSO Court, Ongole.

FAC: II Addl. District & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam District, Ongole.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Prosecution For the Accused

PW.1: Victim Woman -None- PW.2: P. Buchamma PW.3: L. Anitha PW.4: L. Ankamma PW.5: P. Papa Rao 14

PW.6: M.V. Srinivasa Rao PW.7: Sk. Kajavali, C.I of Police.

DOCUMENTS MARKED

On behalf of the Prosecution :

Ex.P.1: Signed Statement of PW.1

Ex.P.2: U/Sec.164 Cr.P.C statement of PW.1

Ex.P.3: U/Sec.161 (3) Cr.P.C statement of PW.1

Ex.P.4: U/Sec.161 (3) Cr.P.C statement of PW.2

Ex.P.5: U/Sec.161 (3) Cr.P.C statement of PW.3

Ex.P.6: U/Sec.161 (3) Cr.P.C statement of PW.4

Ex.P.7: U/Sec.161 (3) Cr.P.C statement of PW.5

Ex.P.8: Signature of PW.6 on scene observation panchanama

Ex.P.9: Signature of PW.6 on seizure panchanama

Ex.P.10: Signature of PW.6 on confessional cum arrest mahazar

Ex.P.11: Original F.I.R

Ex.P.12: Scene Observation report

Ex.P.13: Rough Sketch.

Ex.P.14: 8 photos with C.D

Ex.P.15: Section adding memo

Ex.P.16: Seizure mediatornama

Ex.P.17: Confessional cum arrest panchanama

Ex.P.18: Requisition for recording 164 Cr.P.C statement of PW.1.

Ex.P.19: Potency certificate of Accused

Ex.P.20: Preliminary Wound certificate.

Ex.P.21: RFSL Report

Ex.P.22: Final Opinion.

Ex.P.23: U/Sec.161 (3) Cr.P.C statement of LW.5

Ex.P.24: U/Sec.161 (3) Cr.P.C statement of LW.6

On behalf of the Accused : NIL 15

Material Objects

NIL

Sd/- M.A.Somasekhar,

Special Judge, POCSO Court, Ongole.

FAC: II -Addl. District & Sessions Judge-cum-Spl.

Judge for Trial of Offences against Women,

Prakasam District, Ongole.

// True Copy //

II Addl. Dist. & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam at Ongole.

16

CALENDAR AND JUDGMENT

IN THE COURT OF THE II-ADDITIONAL DISTRICT AND SESSIONS JUDGE

-CUM- SPECIAL COURT FOR TRIAL OF OFFENCES AGAINST WOMEN,

PRAKASAM DISTRICT AT ONGOLE

Present: Sri M.A.Soma Sekhar,

Special Judge, POCSO Court, Ongole.

FAC II-Addl. Dist. & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam at Ongole.

Monday, this the 15th day of April, 2024.

SESSIONS CASE No. 177 of 2023

(P.R.C.No.15/2020 of Additional Judicial Magistrate of First Class, Kandukur in Crime No. 102/ 2019 of Kandukur Town Police Station) State: The Inspector of Police, Kandukur Circle. …. Complainant

Versus

Choppara Rajesh, S/o. Raghavaiah, aged about 30 years, Mala by Caste,

Mulaguntapadu Village, Singarayakonda Mandal. ….. Accused

Charges under section(s) : Sections. 420, 376 of the Indian Penal Code, 1860 against Accused.

Plea of the Accused: Pleaded not guilty.

Finding of the Court: Found not guilty.

Result of the Case: In the result, the accused is found not guilty for the offences punishable Under Secs. 420, 376 of Indian Penal Code and he is acquitted Under Section 235(1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as contemplated Under

Section 437-A of Cr.P.C. Unmarked case property vide C.P.R.No.03/2024 (C.P.R.No.252/2020 of A.J.F.C.M. Court, Kandukur) of this court shall be destroyed after completion of appeal time.

DATES OF

Date of occurrence:Prior to 29.04.2019 17

Date of report:29.04.2019 Date of appearance:28.12.2023 Date of commencement of trial:06.02.2024 Date of closure of trial:12.04.2024 Date of hearing :15.04.2024 Date of Judgment:15.04.2024

Explanation for Delay :

The Additional Judicial Magistrate of First Class, Kandukur committed this case as P.R.C.No. 102/2019 to Hon'ble Sessions Division, Prakasam District, Ongole on 23.11.2023 the same was numbered and made over the same by Honourable’ Prl. District and Sessions Judge, Prakasam District at Ongole to this Court for disposal according to law. On 28.12.2023 accused was appeared. On 23.01.2024 Accused was examined U/Sec.228 (1)

(b) of Cr.P.C for the offence U/Secs. 376, 420 of Indian Penal Code against the accused have been framed and charges were read over and explained to him in Telugu, for which, he pleaded not guilty and claimed to be tried. In this case, trial was commenced from 06.02.2024 and concluded on 12.04.2024, during trial PWs.1 to PW.7 are examined and got marked Exs.P.1 to P.24 and on the same day i.e. on 12.04.2024 at 5.00 p.m, the accused was examined U/Sec.313 Cr.P.C. for which he pleaded denial and further reported that he have no defence evidence, posted the matter for arguments. On 15.04.2024 arguments were heard judgment pronounced acquitting the accused. ( Vide Separate Judgment). Hence, the delay.

Sd/- M.A.Somasekhar,

Special Judge, POCSO Court, Ongole.

FAC: II Addl. District & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam District, Ongole. Copy submitted to : :Copy submitted to

The Hon’ble Registrar (Judl.,) Hon’ble High Court of Andhra Pradesh. The Hon’ble Registrar (Judl.,) Hon’ble High Court of Andhra Pradesh. Nelapadu, Guntur District.Nelapadu, Guntur District. Copies to :

1. The Additional Public Prosecutor, Ongole.

2. The Superintendent of Police, Ongole.2. The Superintendent of Police, Ongole.

// True Copy //

Special Judge, POCSO Court, Ongole.

II Addl. Dist. & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam at Ongole.

1

IN THE COURT OF THE II-ADDITIONAL DISTRICT JUDGE, ONGOLE.

PRESENT : SRI M.A.SOMA SEKHAR,

II-ADDITIONAL DISTRICT JUDGE, ONGOLE.

Tuesday, this the 31st day of January, 2023.

Original Suit No. 154 / 2017

Between :

Sadineni Venkata Ratnam, W/o. Sadineni Sujana Kumar, Hindu, aged 46 years, Agriculturist/ Landlord, R/o. Simhadri Nagar, Near Brahmamgari Mattam, Kandukur Town, Prakasam District. …. Plaintiff

Vs.,

Upputuri Nageswara Rao, S/o. Chenchaiah, Hindu, aged 60 years, Business, R/o. Ward No.24, Gurramvari Palem, Kandukur Town, Prakasam District. …. Defendant

This suit is coming on 31.01.2023 before me for final hearing in the presence of Sri I. Mallikarjuna Reddy, Learned Advocate for plaintiff and of Sri

Cherala Murali, Learned Advocate for defendant ; and upon perusing the oral and documentary evidence on record and hearing the arguments on both sides, and having stood over for consideration till this day, this Court delivered the following :-

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

1.The suit is filed by the plaintiff for recovery of an amount of

Rs.36,48,283/- being the principal and interest due on a pronote dated 17.09.2011 executed by the defendant in favour of the plaintiff for a sum of

Rs.15,00,000/- agreeing to repay the same with interest at 10 paise per day per

Rs.100/- with subsequent interest and for costs of the suit.

2.Brief averments of the plaint are as follows:

The defendant borrowed an amount of Rs.15,00,000/- from the plaintiff on 17.09.2011 in Kandukur at plaintiff’s house on interest @ 10 paise per day per Rs.100/- for his business necessities by executing a promissory note in favour of the plaintiff, promising to repay the same with interest either to the plaintiff or to her order on demand. Later the plaintiff demanded the defendant 2 on several occasions to repay the promissory note amount with interest. The defendant admitted the borrowal from the plaintiff, execution of promissory note in her favour and postponing the payment on one pretext or the other.

On repeated demands made by the plaintiff, the defendant made a part payment of Rs.1,000/- on 12.09.2014 to the plaintiff and endorsed the same on the reverse of promissory note and there by acknowledged the debt, later failed to pay the balance, even after repeated demands by plaintiff personally and through elders. On 30.08.2017, the plaintiff got issued a lawyer notice to the defendant, demanding to pay the promissory note debt amount. The defendant received the same on 01.09.2017 and failed to pay the amount or give reply. Hence, as there is no other go, the plaintiff is constrained to file suit for recovery of promissory note debt amount. The defendant is business man doing money lending business. Hence, Debt Relief Act will not applicable to the defendant. Any how the plaintiff is scaling down the interest to 24% p.a., though the defendant promised to pay 36% p.a.

03. On the other hand, the defendant has filed written statement denying the contents of the plaint further stating that in fact one Podapati

Nageswara Rao got executed a pronote in favour of the plaintiff for

Rs.15,00,000/-. Podapati Nageswara Rao is the scribe of the pronote.

Defendant’s wife is Padamathi. At the request of the plaintiff, the defendant’s wife executed a registered sale deed on 13.03.2014 in favour of Sadineni

Prasanthi Kumar, who is the brother of plaintiff’s husband. The real value of the property executed by the wife of the defendant to the plaintiff’s brother is

Rs.35,00,000/-. Thus the suit debt is discharged.

The property conveyed to Prasanthi Kumar is fertile land and which is more than Rs.15,00,000/- i.e. Rs.35,00,000/-. Not only full satisfaction of the suit debt to the plaintiff in this suit, but also discharged the debt in 3

O.S.No.148/2017 on the file of family cum- Additional District Judge Court,

Ongole filed by the husband of the plaintiff by name Sajana Kumar towards full satisfaction of the suit debt, the defendant’s wife executed a registered sale deed in favour of the plaintiff. Thus, the defendant discharged the suit debt.

The plaintiff promised to return the pronote, but did not return the pronote.

Having the pronote, the plaintiff filed the suit even though the plaintiff received consideration under the pronote.

The defendant is an agriculturist and the interest is liable to be scale down. The defendant never made any payment under the pronote dated 25.08.2014. In order to get the pronote time barred the plaintiff brought into existence the alleged payment on the reverse of the pronote. The defendant has no necessity for payment under the pronote as he discharged the suit debt by way of execution of sale deed by his wife to brother of the plaintiff. This defendant reserves his right to file additional written statement if necessary.

For those and such other grounds that would be urged at the time of hearing.

Hence, prays to dismiss the suit with costs.

04. Basing on the above pleadings, as there is no element of settlement this Court framed the following issues for the purpose of trial :-

1.Whether the defendant discharged the suit debt or not?

2.Whether the suit is barred by limitation or not?

3.Whether the plaintiff is entitled for the decree against the defendant for the suit amount as prayed by her or not?

4. To what relief ?

05. To substantiate the case, plaintiff is examined as PW.1 and got marked Ex.A.1 to A.5 and further got examined PW.2 on her behalf. On the other hand defendant himself examined as DW.1 and got marked Ex.B.1 and

B.2 and further got examined DW.2 on his behalf.

06. Heard arguments.

4

07.Issue No.1 & 2 :

The main contention of the plaintiff is that the defendant has taken plea of discharge and as such there is no need of even proving suit promissory note and also part payment endorsement. When once the defendant admitted his signature on Ex.A.1, the presumption is that the defendant received consideration amount under Ex.A.1.

Though, such is the case the plaintiff, himself examined as PW.1 and got marked Ex.A.1 to A.5. During the cross-examination, the plaintiff deposed that he got 30 acres of land which shows that she is financially sound to lend the amount. The contention of the defendant is that the plaintiff is not able to say the total suit claim in this suit. But, whereas PW.1 adds that she filed suit for recovery of Rs.15,00,000/- which is principal amount. The other contention of defendant is that the plaintiff do not know the defendant and she deposed the same in cross-examination. But PW.1 deposed that her husband knows him and her husband is looking after all the financial deals. Coming to further cross-examination of PW.1 clearly stated that the defendant is an agriculturist and she instructed her counsel at the time of preparing plaint that the defendant brought attestor and scribe, which clearly goes to show that the plaintiff knows the defendant. Further she clearly deposed in cross- examination that she lend the amount to the defendant at her house at

Kandukur claiming rate of interest at 12% p.a. Though, PW.1 deposed in cross- examination that the scribe of Ex.A.1 is the defendant in this case, during further cross-examination she clearly deposed that the defendant self scribed

Ex.A.2 and the signature of defendant is available underneath of Ex.A.2.

Though, PW.1 admitted during the cross-examination that her husband used to look after all the financial dealings and he is also looking after the litigation she clearly and categorically deposed that Ex.A.1 was executed at Kandukur 5 and she further deposed that her husband also filed money suit against the defendant.

To support her case, PW.2 who is attestor of Ex.A.2 is examined and

Ex.A.2 is part payment endorsement for Rs.1000/-. PW.2 clearly deposed that the plaintiff filed the suit against the defendant for an amount of

Rs.15,00,000/-. PW.2 further deposed in cross-examination that on 12.09.2014 part payment endorsement was made at the house of PW.1 at about 4.00 or 5.00 p.m., and he was called by the defendant. PW.2 further deposed in cross-examination that at the time of execution of Ex.A.2 which was self scribed by the defendant at the house of the plaintiff and at the time of the said part payment endorsement himself the defendant, the plaintiff and her husband were present. PW.1 also clearly deposed in cross-examination that

Ex.A.2 is dated 12.09.2014 at which point of time the defendant along with

Podapati Suresh Babu come to her. Said Podapati Suresh Babu is none other than the PW.2. So, regarding execution of Ex.A.2 the evidence of PW.1 is corroborating with the evidence of PW.2 regarding the presence of plaintiff,

PW.2, the defendant and the husband of the plaintiff. Further PW.1 and PW.2 clearly deposed that Ex.A.2 was executed at the house of the plaintiff.

The contention of the defendant is that PW.2 is relative of plaintiff. But

PW.2 clearly deposed that the plaintiff, himself and scribe of Ex.A.1 belongs to the same case and the defendant also belongs to the same caste, but not his relative. The contention of the defendant is that he discharged the loan amount availed under Ex.A.1 by executing Ex.B.1 in favour of one Sadineni Prasanth

Kumar, who is relative of the plaintiff by his wife. In order to prove no attestor or scribe of Ex.B.1 is examined.

The contention of the defendant is that his wife executed Ex.B.1 in favour of one Sadhineni Prasanth Kumar, who is relative of plaintiff towards full satisfaction of the suit debt along with this suit debt in O.S.No.148/2017 on 6 the file of III-Addl. District Court, Ongole, but, the defendant failed to examine any attestors of said Ex.B.1 and B.2. The plaintiff proved Ex.A.1 and A.2 by examining himself as PW.1 and also by examining as PW.2, who is attestor for

Ex.A.2. The burden on the plaintiff is discharged and now the burden shifts on the defendant.

The wife of defendant is examined as DW.2, who executed Ex.B.1. In order to prove that the said Sadhineni Prasanth Kumar is relative of the plaintiff, no witness is examined and also no document is filed, as rightly contended by the plaintiff.

The defendant, who is examined as DW.1 deposed in his cross- examination that he has given reply notice to the notice issued by the plaintiff about 8 years back, but no such reply notice is filed. DW.1 further deposed in cross-examination that he has not filed any document to show that Sadhineni

Prasanth Kumar is relative of the plaintiff, which clearly goes to show that the plaintiff miserably failed to prove that the plaintiff is relative of said Sadhineni

Prasanth Kumar. DW.1 further admitted in cross-examination that in Ex.B.1 it is recited that his wife namely Padma sold out the schedule property to

Sadhineni Prasanth Kumar by taking cash of Rs.6,09,000/- from him on the date of execution of Ex.B.1. So, if really the defendant discharged the amount due under Ex.A.1 he might have recited in the Ex.B.1 that said Ex.B.1 was executed for the loan amount availed by him under Ex.A.1 in this case and also in suit promissory note in O.S.No.148/2017, when there is no such recital and when the defendant himself admitted during the cross-examination that his wife has taken amount of Rs.6,09,000/- from the Sadhineni Prasanth Kumar as recited in Ex.A.1, the contention raised by the defendant is incorrect.

DW.1 further deposed in cross-examination that he has not given any legal notice to the plaintiff demanding her to return Ex.A.1 in view of execution of Ex.B.1. So, the plea set out by the defendant regarding discharge is false one.

7

Further it is the duty of defendant to prove that Ex.B.1 is executed as a full settlement of Ex.A.1 suit promissory note in this case and the suit promissory note in O.S.No.148/2017. In the absence of such proving, the plea set out by the defendant is not believable.

Further the defendant failed to take at least receipt or agreement stating that the suit promissory note was cleared off. No action is taken by the defendant, so far, to take return the suit promissory note or filed any suit to return back the suit promissory note and the same is deposed by DW.1 during the cross-examination. The defendant failed to file any document to show that the real value of property covered under Ex.B.1 is worth about more than

Rs.30,00,000/-.

It is pertinent to note that during the cross-examination of DW.1 he clearly admitted that he has no financial stability which shows that he depends upon money lenders. Further DW.1 deposed in cross-examination that one

Podapati Nageswara Rao, who is purchaser under Ex.B.2 is his relative. But he failed to examine atleast Podapati Nageswara Rao, who is purchaser under

Ex.B.2 on 07.03.2015. The learned counsel for the plaintiff raised his objection at the time of marking of the Ex.B.1 and B.2 on the grounds that the plaintiff is not party to the suit. Admittedly the plaintiff is not party to Ex.B.1 and B.2 and the defendant is also not party to Ex.B.1 and B.2 documents. DW.2 clearly deposed during the cross-examination that DW.2 is wife of DW.1 and she clearly deposed in chief supporting the case of the defendant and she also contended that the defendant discharged the suit amount along with the amount due in O.S.No.148/2017 by executing Ex.B.1 in favour of Sadhineni

Prasanth Kumar. During the cross- examination, DW.2 clearly deposed that she has not issued any legal notice to the plaintiff either in connection with this suit transaction or prior to it.

8

It is pertinent to note that DW.2 deposed in cross-examination that she do not know the contents of her chief examination affidavit. She further admitted that there is a recital in Ex.B.1 regarding receiving of cash of

Rs.6,09,000/- for her necessities from Sadhineni Prasanth Kumar. DW.2 further deposed in cross-examination that she has not filed any suit against

Sadhineni Prasanth Kumar or filed any criminal cases against the plaintiff stating that plaintiff cheated them. It is the burden lies upon the defendant to prove the plea of discharge, but the defendant failed to discharge his burden, but whereas the plaintiff proved Ex.A.1 and A.2. Further the defendant failed to issue reply notice to Ex.A.3 which is legal notice, though he received Ex.A.3 under Ex.A.5. Further since from 2013 to 2017, no notices or criminal cases filed by the defendant to return back Ex.A.1 which clearly goes to show that the plea set out by the defendant is false one.

It is the contention of defendant that Ex.A.2 part payment endorsement is created one. But regarding execution of Ex.A.2 both PW.1 and PW.2 deposed in one voice that Ex.A.2 was scribed by the defendant himself in the presence of PW.1, PW.2 and the husband of PW.1. The further contention of the defendant is that there is no pleading in the plaint about the atterstors and as such no evidence can be adduced and the same is incorrect, since the evidences need not be pleaded in the plaint.

The other contention of the defendant is that PW.1 does not knows the defendant, but her husband knows the defendant. As already discussed above, though the plaintiff contented that she do not know the defendant, but her husband knows the defendant, but during the cross-examination she clearly stated that the defendant availed loan from her and also the defendant executed Ex.A.1 at her house at Kandukur. The other contention of the defendant is that the suit is barred by limitation. On perusal of Ex.A.1 which is suit promissory note dated 17.09.2011, Ex.A.2 part payment endorsement 9

dated 12.09.2014 which is within three years. Further the suit is filed on

08.09.2017. So, the suit is also filed within the three years from the date of part payment endorsement. So, there is no force in the argument of defendant.

The other contention of the defendant is that Ex.A.2 does not contain the signatures of defendant, but the defendant failed to take steps like sending his admitted signatures with the disputed signatures on Ex.A.2 to expert in order to disprove Ex.A.2. The other contention of the defendant is that on the instructions of defendant, his wife namely Padma @ Padmavathi executed

Ex.B.1 as full and final settlement for this suit promissory note amount and also this suit promissory note amount in O.S.No.148/2017. As rightly contended by the plaintiff counsel, the defendant is kept silent, since from 13.03.2013 which is date of execution of Ex.B.1 till today without lodging complaint, issuing reply notice to legal notice to returned Ex.A.1. More over in order to prove that Ex.B.1 is executed as full and final settlement of Ex.B.1 no attestors of scribe of Ex.B.1 are examined. The defendant atleast failed to examine said Sadhineni Prasanth Kumar in whose favour Ex.B.1 stands.

For forgoing discussions, this court is of the considerable opinion that the Ex.A.2 part payment endorsement is true, valid and binding on the defendant and supported by consideration and also the plaintiff is entitled for recovery of suit amount from the defendant. Accordingly, Issue No.1 to 3 are answered in favour of the plaintiff and against the defendant.

15. Issue No.4:

In view of answering Issue No.1 to 3 in favour of the plaintiff and against the defendant, the suit claim is proved. The plaintiff is entitled for recovery of suit amount of Rs.36,48,283/- with interest @ 12% p.a., from the date of the suit till the date of decree on the principal sum of Rs.15,00,000/- and thereafter @ 6% p.a., from the date of decree till the date of realization upon the same principal amount.

10

16.Issue No.4:

In the result, the suit is decreed with costs in favour of the plaintiff and against the defendant for an amount of Rs.36,48,283/- with interest @ 12% p.a., from the date of the suit till the date of decree on the principal sum of Rs.15,00,000/- and thereafter @ 6% p.a., from the date of decree till the date of realization upon the same principal amount.

Dictated to the Personal Assistant, transcribed by her corrected and

pronounced by me in open court, this the 31st day of January, 2023.

Sd/- M.A.Somasekhar,

II-ADDITIONAL DISTRICT JUDGE,

ONGOLE.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Plaintiff: For the Defendant:

PW.1 : S. Venkata Ratnam DW.1 : U. Nagesawra Rao

PW.2 : P. Suresh Babu DW.2 : U. Padma @ Padmavathi

DOCUMENTS MARKED FOR

For the Plaintiff:

Ex.A.1 : Original promissory note dated 17.09.2011

Ex.A.2 : Endorsement dt: 12.09.2014 on the reverse side of Ex.A.1

Ex.A.3 : Office copy of lawyer notice dt: 30.08.2017

Ex.A.4 : Postal Receipt dt: 30.08.2017

Ex.A.5 : Postal Acknowledgment dt: 01.09.2017.

For the Defendant:

Ex.B.1 : Registered sale deed dt: 13.03.2013 executed by Upputuri Padma @ Padmavathi in favour of Sadineni Prasanth Kumar obtained from Mee- seva.

Ex.B.2 : Registered Sale deed dt: 07.03.2015 executed by Sadhineni Prasanth Kumar in favour of Podapati Nageswara Rao.

Sd/- M.A.Somasekhar,

II-ADDITIONAL DISTRICT JUDGE,

ONGOLE. // True Copy \\

II-ADDITIONAL DISTRICT JUDGE,

ONGOLE.

11

IN THE COURT OF THE II-ADDITIONAL DISTRICT JUDGE, ONGOLE.

PRESENT : SRI M.A.SOMA SEKHAR,

II-ADDITIONAL DISTRICT JUDGE, ONGOLE.

Tuesday, this the 31st day of January, 2023.

Original Suit No. 154 / 2017

Between :

Sadineni Venkata Ratnam, W/o. Sadineni Sujana Kumar, Hindu, aged 46 years, Agriculturist/ Landlord, R/o. Simhadri Nagar, Near Brahmamgari Mattam, Kandukur Town, Prakasam District. …. Plaintiff

Vs.,

Upputuri Nageswara Rao, S/o. Chenchaiah, Hindu, aged 60 years, Business, R/o. Ward No.24, Gurramvari Palem, Kandukur Town, Prakasam District. …. Defendant

The suit is filed by the plaintiff for recovery of an amount of

Rs.36,48,283/- being the principal and interest due on a pronote dated 17.09.2011 executed by the defendant in favour of the plaintiff for a sum of

Rs.15,00,000/- agreeing to repay the same with interest at 10 paise per day per

Rs.100/- with subsequent interest and for costs of the suit.

Plaint Presented on : 08.09.2017 Plaint Registered on : 11.09.2017

Valuation & Court Fee: The suit is valued at Rs.36,48,283/- being the

principal and interest due on suit promissory note, on which a court fee of

Rs.38,926/- is paid U/sec.20 of A.P.C.F & S.V.Act.

Cause of Action: The cause of action for the suit arose when on 17.09.2011 when the defendant borrowed the amount from the plaintiff executed promissory note in favour of plaintiff in Kandukur, when the plaintiff demanded the defendant to reply the promissory note debt, when the defendant admitted the borrowal, execution of promissory note and postponed the payment, when on repeated demands made by the plaintiff on 12.09.2014 the defendant made a part payment of Rs.1,000/- to the plaintiff and endorsed the same on the reverse of promissory note and thereby acknowledged the debt, that on 30.08.2017 when the plaintiff issued lawyer notice to defendant to demanding the promissory note debt amount with interest, when the defendant received the notice on 01.09.2017 and failed to pay the balance amount or give reply are all in Kandukur and within the jurisdiction of this Hon’ble Court.

12

This suit is coming on 31.01.2023 before me for final hearing in the presence of Sri I. Mallikarjuna Reddy, Learned Advocate for plaintiff and of Sri

Cherala Murali, Learned Advocate for defendant ; and upon perusing the oral and documentary evidence on record and hearing the arguments on both sides, and having stood over for consideration till this day, this Court doth order and decree :

1.that the suit be and the same is hereby decreed in favour of the plaintiff and against the defendant;

2.that the defendant do pay to the Plaintiff a sum of

Rs.36,48,283/- with interest at the rate of 12% p.a., from the date of filing of the suit i.e. 08.09.2017 till the date of decree i.e. 31.01.2023 upon the principal amount of Rs.15,00,000/- and thereafter at the rate of 6% p.a., from the date of decree i.e. 31.01.2023 till the date of realization upon the same principal amount of Rs.15,00,000/-;

3.that the defendant do also pay to the Plaintiff a sum of

Rs.1,87,303/- towards the costs of the suit; ( C.M & F.C not filed by the defendant)

Given under my hand and seal of this Court, this the 31st day of January, 2023.

Sd/- M.A.Somasekhar,

II-ADDITIONAL DISTRICT JUDGE,

ONGOLE.

// Table of Costs \\

For Plaintiff For Defendant Rs. Rs. For Vakalath 2.00 ( C.M & F.C not filed) For Court Fee 38,926.00 For Process 45.00 Senior Advocate Fee 1,10,948.00 ( as claimed ) Junior Advocate Fee 36,982.00 Writing charges 200.00 Type charges 200.00 ----------------- TOTAL 1,87,303.00 -----------------

Sd/- M.A.Somasekhar,

II-ADDITIONAL DISTRICT JUDGE,

ONGOLE.

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

13 // True Copy \\

II-ADDITIONAL DISTRICT JUDGE,

ONGOLE.

1

IN THE COURT OF THE II-ADDITIONAL DISTRICT AND SESSIONS JUDGE

-CUM- SPECIAL COURT FOR TRIAL OF OFFENCES AGAINST WOMEN,

PRAKASAM DISTRICT AT ONGOLE

Present : Sri M.A.Soma Sekhar, II-Addl. Dist. & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam at Ongole.

Monday, this the 30th day of January, 2023.

SESSIONS CASE No. 96 of 2022

(P.R.C.No.24/2020 of III-Additional Judicial Magistrate of First Class, Ongole in Crime No. 11/2020 of Ongole Taluka Police Station)

State:

Inspector of Police, Ongole Taluka Police Station. …. Complainant

Versus

Rajupalem Anand, S/o. Yakobu, aged 37 years, Caste by Madiga, R/o. Beside Nirmala Nagar Park, Ongole, Native of Palaparru Village, Pedanandipadu Mandal, Guntur District, Previously worked as Civil P.C.379

Kothapatnam Police Station. ….. Accused

The Sessions Case coming on 30.01.2023 before me for final hearing in the presence of Sri Y. Konda Reddy, Learned Additional Public Prosecutor for

State/Complainant and of Sri I. Venkateswarlu, Legal Aid Counsel for Accused; and upon hearing arguments and on perusal of material on record, and 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, Ongole Taluka P.S filed charge sheet against the accused for the offences punishable Under Sections. 342, 363, 323, 376 of

Indian Penal Code in Crime No. 11/2020 of Ongole Taluka Police Station.

2. The brief averments of the charge sheet are as follows :

On 08.01.2020 at about 12.00 hours LW.2/Makkena Vinay contacted

LW.1 over phone with a view to express his love and asked her to meet him at

RTC bus stand, Ongole, so that he can show his lands in Pernamitta Village 2 and on that LW.1 requested LW.2 to take her to the house of her younger sister who is residing in Pernamitta Village after seeing his land, LW.2 took the motorcycle of LW.7/Tatiparthy John Victor on 10.01.2020 morning. Then

LW.1 /Victim and LW.2 met at Ongole RTC Bus Stand at about 12.30 hours and LW.2 taken LW.1 on his motor cycle towards Mangamuru junction and from there taken to Mangamuru to Pernamitta donka road and after passing gas godown he took her into a Subabul groves and they had chit for about 15 minutes. By the time at about 13.15 hours on 08.01.2020 the accused went there on his motor cycle bearing No.AP 27 AT 9960 and introduced himself as a constable and exhibited ID card with photograph and slapped LW.2 by questioning as to why LW.1 and LW.2 were there and told them that police jeep is coming after him and suggested LW.2 to stay there by pretending as he was attending nature calls and promised LW.1 that he would save her and leave her on the road and got boarded her on his motor cycle and LW.1 and LW.2 noticed the letters police behind the motor cycle of the accused. Then, the accused taken LW.1 nearly up to 1 ½ Kms on the kaccha road and taken her into a subabul grove and took her chunni and gagged it into her mouth and slapped her and disrobed her leggin, top and underwear and laid on her on the ground and raped her against her will and consent. After the offence is over, on the instructions of the accused, LW.1 herein after called as raped Victim had dressed herself and again the accused got boarded his motor cycle and taken

LW.1 near Yenduluru donka and let off there in the subabul groves and retreated from there. Then, LW.1 the raped victim walked up to near Yenduluru donka and called for LW.2 to 4 and narrated them about the rape committed by the accused on her and she went to home and informed the occurrence to

LW.5/ Chimpiri Malleswari and LW.6/ Chimpiri Srinivasulu @ Srinivasu. LW.2/

Makkena Vinay, LW.3/ Kammela Pavan and LW.4/Sangula Venkateswarlu 3 searched for the accused but in vain. Then, LW.2 returned the motor cycle to

LW.7 and informed him about the occurrence.

Then, LW.1 came to Ongole Taluka Police Station on 10.01.2020 at about 13.15 hours and submitted a report about the occurrence. In turn LW.13/M.

Lakshman, Inspector of Police registered the report of LW.1 as a case in crime

No.11/2020 Under Section.342, 363, 323, 376 of I.P.C of Ongole Taluka P.S and submitted original F.I.R to this Hon’ble Court and took up investigation.

During the course of investigation, LW.13 visited two scene of offences shown by LW.1 and inspected both the scene of offences in the presence of mediators i.e. LW.8/Papula Srihari Reddy and LW.9/Aadadala Naresh and drafted two scene of offences and LW.8 and LW.9 attested the same. LW.13 prepared rough sketches of both the scene of offences. LW.13 examined LW.1 to

LW.7 and recorded their statements.

LW.13 sent LW.1 to G.G.H., Ongole for treatment and examination where

LW.11 examined LW.1 and inspected both the scene of offences in the presence of mediators i.e. LW.8 and LW.9 and drafted two scene of offences and LW.8 and

LW.9 attested the same. LW.13 prepared rough sketches of both the scene of offences. LW.13 examined LW.1 to LW.7 and recorded their statements.

LW.13 sent LW.1 to G.G.H., Ongole for treatment and examination where

LW.11 examined LW.1 and collected M.Os like cervical smear etc., and issued preliminary wound certificate.

On receipt of information LW.13 took the accused in to custody on 10.01.2020 at 18.00 hours at Throvagunta Village main centre and interrogated him in the presence of mediators i.e. LW.8 and LW.10 and the accused confessed to have committed the offence on that LW.13 arrested him at 19.30 hours and seized his motorcycle bearing No.AP 17 AT 9960, his ID card, and chunni of LW.1 which is found the fuel tank cover of motor cycle of the accused 4 under a cover of arrest mediatornama and the mediators counter signed the same.

Then LW.13 /M. Lakshman, Inspector of Police produced the accused

before this Hon’ble Court for judicial remand. LW.12 /Dr. A. Ramesh Babu,

examined the accused and issued certificate of potency opining that there is nothing to suggest that the accused is not capable of doing act of coitus or sex.

LW.13 forwarded the M.Os preserved by LW.11 to RFSL, Guntur for analysis. On receipt of RFSL Report, LW.11 issued final opinion stating that there are signs of recent sexual intercourse.

Thus, the accused is liable to punishment for the offence Under Sections.

342, 363, 323, 376 of Indian Penal Code.

03. The III-Additional Judicial Magistrate of First Class, Ongole has taken this case on file Under Sections. 376, 363, 342 and 323 of Indian Penal Code against the accused. On appearance of the accused, copies of documents are furnished to him as required Under Section.207 Cr.P.C.

04.As the offence Under Section. 376 of Indian Penal Code is exclusively triable by the Court of Session, the III=Additional Judicial Magistrate of First

Class, Ongole committed this case to the Hon’ble Principal District & Sessions

Judge, Ongole U/Sec.209 of Cr.P.C. In turn the Hon'ble Principal District &

Sessions Judge, Ongole made over this case to this court for disposal according

to law.

05.On appearance of the accused, he is examined U/Sec.228 (1) (b) of

Cr.P.C, and on hearing prosecution and defence, charges Under Secs. 376, 342, 363, 323 of Indian Penal Code against the accused was framed, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be 5 tried.

06.On behalf of the prosecution, PWs.1 to PW.8 were examined and Exs.P.1 to Ex.P.21 and M.O.1 to M.O.3 were marked.

07.After closure of evidence of prosecution witnesses, the accused was examined Under Section.313 Cr.P.C and the incriminating material in the evidence of PWs.1 to PW.8 was read over and explained to the accused in

Telugu, for which he denied the offence and reported no defence evidence on his behalf.

08. Heard arguments on both sides.

The learned Public Prosecutor submitted arguments that on behalf of the prosecution, PWs.1 to PW.8 are examined and Exs.P.1 to Ex.P.21 and M.O.1 to

M.O.3 are marked. Though PWs.1 to PW.7 turned hostile, PW.8 supported the case of the prosecution. Taking into consideration of the evidence of PW.8,

Exs.P.1 to P.21 and M.O.1 to M.O.3 prayed for conviction of the accused.

The learned defence counsel submitted arguments that PW.1, who is

Victim Woman, PW.2, who is grandmother of PW.1/Victim Woman, PW.3, who is husband of PW.1/Victim Woman, PW.4 and PW.7, who are mediators present at the time of scene observation panchanamas and recording of confessional cum- arrest panchanama and PW.5 & PW.6, who are independent witnesses and they all turned hostile. PW.8 is case investigating officer supported the prosecution case. Mere basing upon the evidence of PW.8 alone, the accused cannot be convicted. Hence prayed for acquittal of the accused.

09. Now the points for determination are :

1. Whether the prosecution has proved this case against the accused 6

for the offences punishable Under Sections. 342, 363, 323, 376

of Indian Penal Code b eyond all reasonable doubt?

2. To what result, the accused is entitled?

10. POINT NO.1 :

To bring home the guilty of the accused, the prosecution has examined

PWs.1 to PW.8 and Exs.P.1 to P.21 and M.O.1 to M.O.3 are marked. PW.1, who is Victim Woman deposed in her chief examination that she do not know the accused. She do not know anything about this case facts. She never lodged any complaint against the accused. She do not know the contents of alleged complaint said to be lodged against the accused. PW.8 the then C.I of Police,

Ongole Taluk never examined her in connection with this case. Ex.P.1 is her signature on the alleged complaint. She do not know the contents of alleged complaint. She being the Victim turned hostile without supporting prosecution case. Her 161 Cr.P.C statement is marked as Ex.P.2.

PW.2 and PW.3, who are grandmother and husband of PW.1/Victim

Woman they also deposed on the same lines of PW.1 during their chief examination stating that they do not know the accused. They do not know anything about this case facts. PW.1 never lodged any complaint against the accused. PW.8 the then C.I of Police, Ongole Taluk never examined them in connection with this case. They do not know the contents of alleged complaint.

They being the grandmother and husband of PW.1/Victim turned hostile without supporting prosecution case. Their 161 Cr.P.C statements are marked as Ex.P.3 and Ex.P.4 respectively.

PW.4 and PW.7, who are mediators deposed in their chief examination that at no point of time PW.8, who was the then C.I of Police, Ongole Taluka 7

P.S., conducted scene observation panchanama on 10.01.2020 at about 14.00 hours in their presence and they never attested the said panchanama. Ex.P.5 and Ex.P.10 are their signatures respectively in panchanama on 10.01.2020 at about 14.00 hours. At no point of time PW.8, who was the then C.I of Police,

Ongole Taluka P.S conducted scene observation panchanama on 10.01.2020 at about 15.00 hours in their presence and they never attested the said panchanama. Ex.P.6 and Ex.P.11 are their signatures respectively in panchanama on 10.01.2020 at about 15.00 hours. PW.8 never arrested the accused by recording his confessional statement in the presence of LW.10 on 10.01.2020 at about 18.00 hours. Ex.P.7 is signature of PW.4 on the alleged confessional cum-arrest mahazar dated 10.01.2020 at about 18.00 hours prepared by PW.8. He put his signatures in Ongole Taluka P.S at the request of police. They being the mediators present at the time of scene observation panchanamas and confessional-cum-arrest panchanama turned hostile without supporting prosecution case.

PW.5 and PW.6, who are independent witnesses and they deposed in their chief examination that they do not know the accused. They do not know anything about this case facts. PW.1 never lodged any complaint against the accused. They do not know the contents of alleged complaint said to be lodged against the accused. PW.8 the then C.I of Police, Ongole Taluk never examined them in connection with this case. They do not know the contents of alleged complaint. They being the independent witnesses turned hostile without supporting prosecution case. Their 161 Cr.P.C statements are marked as Ex.P.8 and Ex.P.9 respectively.

The one and only evidence available on record for the prosecution case is the evidence of PW.8, who is the investigation officer and who deposed in his 8 chief examination that on 10.01.2020 at about 13.15 hours while he was present in the Police Station, PW.1 came to police station and submitted written complaint and the same was registered as case in Crime No.11/2020 Under

Section.342, 363, 323, 376 of I.P.C and submitted original F.I.R to the Hon’ble

III-A.J.F.C.M., Ongole and copies to all concerned. Ex.P.12 is complaint of PW.1.

Ex.P.13 is original F.I.R submitted to the court. Then, he examined PW.1 in the police station itself and recorded her 161 Cr.P.C statement. Then, he secured the presence of PW.4 and PW.7, visited first scene of offence situated at

Pernamitta Donka, Jamel groove observed the same and prepared scene observation report duly attested by PW.4 and PW.7. Ex.P.13 is first scene of offence. Then, he also prepared rough sketch of first scene of offence. Ex.P.14 is said rough sketch. On 10.10.2020 at about 15.00 hours, he observed 2nd scene of offence at cross road, Pernamitta Donka to Kamepallivaripalem Village in the presence of PW.4 and PW.7 and prepared 2nd scene observation report duly attested by PW.4 and PW.7. Ex.P.15 is said 2nd scene observation report. Then, he also prepared rough sketch of 2nd scene observation panchanama. Ex.P.16 is 2nd rough sketch prepared at 2nd scene of offence. Then, he returned back to P.S.

Then, he forwarded PW.1 before LW.11 for medical examination. Accordingly,

LW.11 examined and collected material objects from PW.1 and forwarded the same to R.F.S.L., Guntur. LW.11 issued preliminary wound certificate which is marked as Ex.P.17. Ex.P.18 is R.F.S.L. Report, Guntur. Basing upon the clinical examination and R.F.S.L. Report, LW.11 gave final opinion, which is marked as

Ex.P.19. LW.11 opined in Ex.P.19 that there was recent sexual intercourse.

Then, he secured the presence of PW.2, PW.3, PW.5 and LW.4 examined them and recorded their 161 Cr.P.C statements. On 10.01.2020 at about 18.00 hours, he arrested the accused at Throvagunta Village in the presence of PW.4 and LW.10 by seizing motor cycle, bearing No.AP 27 AT 9960 Honda Unicorn 9 which was given to interim custody which was brought today I.D card of the

Accused and chunny of PW.1 and by preparing seizure, confessional and arrest panchanama duly attested by PW.4 and LW.10. Ex.P.20 is said seizure confessional and arrest panchanama, dt: 10.01.2020 at about 18.00 hours.

M.O.1 is motor cycle bearing No. AP 27 AT 9960 Honda Unicorn. M.O.2 is I.D card of accused. M.O.3 is chunny of PW.1. Then, he made requisition before the

Court to forward the accused for potency test before LW.12, who accordingly conducted on the permission given by the court. As per potency test report given by LW.12 there is nothing to suggest that the accused is not capable of performing sexual act or act of coitus. Ex.P.21 is said potency certificate. His successor LW.14 verified the records, perused C.D file and filed charge sheet against the accused by enclosing all the relevant documents. PW.1 to PW.3,

PW.5 and PW.6 stated before him as in Ex.P.2 to P.4, P.8 and P.9 respectively.

During the cross examination, he denied all the suggestions made by the defence counsel as false.

11.As already discussed above, PW.1, who is Victim Woman, PW.2 and

PW.3, who are grandmother and husband of PW.1, PW.4 and PW.7, who are mediators present at the time of scene observation panchanamas and confessional-cum-arrest panchanama, PW.5 and PW.6, who are independent witnesses and they all turned hostile without supporting the prosecution case.

Mere basing upon the sole evidence of PW.8, who is investigating officer, the accused cannot be convicted, as the evidence of PW.8 lacks corroboration of independent eye witnesses.

For the above said fore going discussions, this Court is of considerable opinion that the prosecution failed to prove the guilt of the accused beyond all reasonable doubts and the accused is entitled for the benefit of doubt.

10

Accordingly, point No.1 is answered.

12.Point No.2: To what result the Accused is entitled?

In the result, the accused is found not guilty for the offences punishable

Under Secs. 342, 363, 376 and 323 of Indian Penal Code and he is acquitted

Under Section 235(1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as contemplated Under Section 437-A of Cr.P.C.

M.O.1/Motor Cycle bearing No.AP 27 AT 9960 Honda Unicorn, which was already given to the petitioner/accused vide Crl.M.P.No.734/2020 dt:

13.07.2020 shall holds good after completion of appeal time, M.O.2/I.D Card of

Accused and M.O.3/ is chunny of PW.1 vide C.P.R.No.02/2023 ( C.P.R.No.30/2020 of III-A.J.F.C.M., Ongole) of this Court shall be destroyed after completion of appeal time.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in Open Court, this the 30th day of January, 2023.

Sd/- M.A.Somasekhar,

II Addl. District & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam District, Ongole.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Prosecution For the Accused

PW.1: Victim Woman -None- PW.2: Ch. Malleswari PW.3: M. Vinay PW.4: P. Srihari Reddy PW.5: K. Pavan PW.6: T. John Victor PW.7: Y. Naresh PW.8: M. Lakshman, C.I. of Police.

DOCUMENTS MARKED

On behalf of the Prosecution :

11

Ex.P1: Signature of PW.1 on complaint

Ex.P2: 161 (3) Cr.P.C statement of PW.1

Ex.P3: 161 (3) Cr.P.C statement of PW.2

Ex.P4: 161(3) Cr.P.C statement of PW.3

Ex.P5: Signature of PW.4 on 1st scene observation report

Ex.P6: Signature of PW.4 on 2nd scene observation report

Ex.P7: Signature of PW.4 on confessional cum- arrest panchanama

Ex.P.8: 161(3) Cr.P.C statement of PW.5

Ex.P.9: 161(3) Cr.P.C statement of PW.6

Ex.P.10: Signature of PW.7 on 1st scene observation report.

Ex.P.11: Signature of PW.7 on 2nd scene observation report.

Ex.P.12: Complaint of PW.1

Ex.P.13: 1st Scene of offence.

Ex.P.14: 1st Rough Sketch

Ex.P.15: 2nd Scene of offence

Ex.P.16: 2nd Rough Sketch

Ex.P.17: Preliminary wound certificate

Ex.P.18: R.F.S.L. Report

Ex.P.19: Final Report

Ex.P.20: Arrest- cum-seizure panchanama

Ex.P.21: Potency certificate.

On behalf of the Accused :NIL

Material Objects

M.O.1: Motor Cycle bearing No.AP 27 AT 9960 Honda Unicorn

M.O.2: I.D Card of Accused

M.O.3: Chunny of PW.1

Sd/- M.A.Somasekhar,

II -Addl. District & Sessions Judge-cum-Spl.

Judge for Trial of Offences against

Women, Prakasam District, Ongole. // True Copy //

II Addl. Dist. & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam at Ongole.

12

CALENDAR AND JUDGMENT

IN THE COURT OF THE II-ADDITIONAL DISTRICT AND SESSIONS JUDGE

-CUM- SPECIAL COURT FOR TRIAL OF OFFENCES AGAINST WOMEN,

PRAKASAM DISTRICT AT ONGOLE

Present: Sri M.A.Soma Sekhar, II-Addl. Dist. & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam at Ongole.

Monday, this the 30th day of January, 2023.

SESSIONS CASE No. 96 of 2022

(P.R.C.No.24/2020 of III-Additional Judicial Magistrate of First Class, Ongole in Crime No. 11/2020 of Ongole Taluka Police Station)

State:

Inspector of Police, Ongole Taluka Police Station. …. Complainant

Versus

Rajupalem Anand, S/o. Yakobu, aged 37 years, Caste by Madiga, R/o. Beside Nirmala Nagar Park, Ongole, Native of Palaparru Village, Pedanandipadu Mandal, Guntur District, Previously worked as Civil P.C.379

Kothapatnam Police Station. ….. Accused

Charges under section(s) : Sections. 342, 363, 376 and 323 of the Indian Penal Code, 1860 against Accused.

Plea of the Accused: Pleaded not guilty.

Finding of the Court: Found not guilty.

Result of the Case: In the result, the accused is found not guilty for the offences punishable Under Secs. 342, 363, 376 and 323 of Indian

Penal Code and he is acquitted Under Section 235(1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as contemplated

Under Section 437-A of Cr.P.C. M.O.1/Motor Cycle bearing No.AP 27 AT 9960

Honda Unicorn, which was already given to the petitioner/accused vide

Crl.M.P.No.734/2020 dt: 13.07.2020 shall holds good after completion of appeal

time, M.O.2/I.D Card of Accused and M.O.3/ is chunny of PW.1 vide

C.P.R.No.02/2023 ( C.P.R.No.30/2020 of III-A.J.F.C.M., Ongole) of this Court shall be destroyed after completion of appeal time.

13

DATES OF

Date of occurrence:08.01.2020

Date of report:10.01.2020

Date of appearance:15.11.2022

Date of commencement of trial:23.01.2023

Date of closure of trial:27.01.2023

Date of Judgment:30.01.2023

Explanation for Delay :

The III-Additional Judicial Magistrate of First Class, Ongole committed this case as P.R.C.No.24/2020 to Hon'ble Sessions Division, Prakasam District,

Ongole on 11.10.2021 the same was numbered and made over the same by

Honourable’ Prl. District and Sessions Judge, Prakasam District at Ongole to

this Court for disposal according to law. On 15.11.2022 accused was appeared.

On 15.12.2022 Accused was examined U/Sec.228 (1) (b) of Cr.P.C for the offence U/Secs. 376, 342, 363, 323 of Indian Penal Code against the accused has been framed and charges were read over and explained to him in Telugu, for which, he pleaded not guilty and claimed to be tried. In this case, trial was commenced from 23.01.2023 and concluded on 27.01.2023, during trial PWs.1 to PW.8 are examined and got marked Exs.P.1 to P.21 and M.O.1 to M.O.3 and on the same day the accused was examined U/Sec.313 Cr.P.C. for which he pleaded denial and further reported that he has no defence evidence, posted the matter for arguments. On 30.01.2023 arguments were heard judgment

pronounced acquitting the accused. ( Vide Separate Judgment). Hence, the

delay.

Sd/- M.A.Somasekhar,

II Addl. District & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam District, Ongole. Copy submitted to : :Copy submitted to

The Hon’ble Registrar (Judl.,) Hon’ble High Court of Andhra Pradesh. The Hon’ble Registrar (Judl.,) Hon’ble High Court of Andhra Pradesh. Nelapadu, Guntur District.Nelapadu, Guntur District. Copies to :

1. The Additional Public Prosecutor, Ongole.

2. The Superintendent of Police, Ongole.2. The Superintendent of Police, Ongole. // True Copy //

II Addl. Dist. & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam at Ongole.

1

IN THE COURT OF THE II-ADDITIONAL DISTRICT AND SESSIONS JUDGE

-CUM- SPECIAL COURT FOR TRIAL OF OFFENCES AGAINST WOMEN,

PRAKASAM DISTRICT AT ONGOLE

Present: Sri M.A.Soma Sekhar,

Special Judge, POCSO Court, Ongole.

FAC II-Addl. Dist. & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam at Ongole.

Thursday, this the 4th day of April, 2024.

SESSIONS CASE No. 148 of 2023

(P.R.C.No.14/2020 of Additional Judicial Magistrate of First Class, Addanki in Crime No. 17/ 2020 of Santhamaguluru Police Station)

State:

The Inspector of Police, Addanki Circle. …. Complainant

Versus

1. Namala Venkateswarlu, S/o. Subba Rao ( late), aged 31 years, Naidu by caste, Auto Driver, Tangedumalli Village, Santhamaguluru Mandal.

2. Gade Gangadhar, S/o. Sivaiah, aged 32 years, Cutting Operator, Ragavendra Granites, Gurijepalli Village, N/o. Tangedumalli Village,

Santhamaguluru Mandal. ….. Accused

Anantha Bhulakshmi, D/o. Somaiah, aged 21 years, Naidu by caste, Tangedumalli Village, Santhamaguluru Mandal. … Victim/deceased.

The Sessions Case coming on 04.04.2024 before me for final hearing in the presence of Sri Y. Konda Reddy, Learned Additional Public Prosecutor for

State/Complainant and of Sri N. Anjaneyulu, Learned Advocate for Accused

No.1 and of Sri P.L.Govindaiah, Learned Advocate for Accused No.2; and upon hearing arguments and on perusal of material on record, and having stood over for consideration, till this day, this Court delivered the following:

2

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

1. The Inspector of Police, Addanki Circle filed charge sheet against the accused for the offences punishable Under Section.376 (2) (l) r/w.Sec.109 of

Indian Penal Code in Crime No. 17/2020 of Santhamuguluru Police Station.

2. The brief averments of the charge sheet are as follows :

LW.1 is the resident of Tangedumalli village, Santhamaguluru Mandal, mother of the victim woman and living by doing coolie works. LWs.2 and 3 are the husband and son of LW.1 respectively. L.Ws.4 to 7 are the neighbours to the scene of offence. LWs.1 and 2 blessed with one son namely Anantha

Lakshmi Narayana, aged about 23 years and one daughter/Victim Woman, aged about 21 years and she is mentally disabled from her childhood and she staying at house. On 29.01.2020 at about 16.15 hrs, the victim woman went near by the house of Gade Venkata Rathamma and playing with the children.

At about 16.30 hrs, LW.1 went to the house of Gopavarapu Padma (LW.4), chitchatting with her, meanwhile LW.1 heard huge cries of her daughter/victim from the house of Gade Venkata Rathamma and on hearing the cries, immediately LW.1 rushed to the house of Venkata Rathamma and found Gade Gangadhar (A.2) was consuming alcohol in the kitchen room and when LW.1 entered in to the house, noticed the accused No.1 laid the daughter/victim of the LW.1 on the cot and committing sexual intercourse and on seeing arrival of LW.1, both Accused No.1 and 2 fled away from the spot. In the meantime Goparavarapu Padma (LW.4), Gopavarapu

Veeranjaneyulu (LW.5), Miriyala Ravanamma (LW.6) and Anantha Srinivasa 3

Rao (LW.7) came to the spot and LW.1 revealed the facts to them. Then they observed the victim and noticed that the blood was bleeding from her. Later

LW.1 took her daughter to her house, got bath with victim and washed the clothes of victim. As the husband of LW.1 went somewhere for coolie works,

LW.1 could not able to inform the matter to him. On 30.01.2020 evening the husband of LW.1 returned to house and she narrated incident to him. They discussed the matter with their elders and on their advice on 31.01.2020

LW.1 came to Santhamangaluru police station along with her daughter/victim, her husband (LW.2) and her son (LW.4). As the victim is not able to give her statement as she in mentally disabled woman and LW.1 submitted her written report against the both accused to the police for necessary action.

On receipt of the report of LW.1, LW.15 registered the same as a case in

No.17/2020 U/S 376 (2) (L) r/w. 109 I.P.C of Santhamaguluru P.S on 31.01.2020 at 17.15 hrs, submitted the original FIR along with LW.1 report to the Hon'ble A.J.F.C.M. Court, Addanki and submitted a copy of FIR to LW.16 for took up investigation.

On 31.01.2020, during the course of investigation LW.16 examined

LWs.1 to 3 at the police station and recorded their statements. Later 01.02.2020 he visited the scene of offence with the help of LW.3 and inspected the same and photographed the scene of offence in various angles and seized the red, pink, yellow, green color flower design blanket in which the sexual intercourse was occurred on the blanket, drafted an observation report to that 4 effect duly attested by LWs.8 & 9 and also prepared the rough sketch of the scene of offence.

On 01.02.2020, during the course of further investigation LW.16 secured the presence of four eye witnesses examined as LWs. 4 to 7 and recorded their statements. On 04.02.2020, LW.16 submitted a requisition to

LW.13 with a request to examine the victim woman (Un sound female person) woman and obtained age determine certificate accordingly. LW.16 got recorded the statement of victim woman with the help of LW.14 before the presence of

LW.13. On 14.02.2020, Victim woman and LW.1 were produced before LW.10 to record 164 Cr.P.C statement, LW.10 recorded 164 Cr.P.C statement. On the same day LW.16 produced the accused No.1 before LW.11 for potency test.

On 27.02.2020, LW.16 received Certificate of opinion of Potency of the accused from LW.11. He opined that from the above mentioned objective sings it can be concluded that there is nothing to suggest that Accused No.1 is not capable of performing sexual intercourse or act of coitus. LW.16 obtained certified copies of 164 Cr.P.C statements of victim woman and LW.1 recorded by LW.10.

LW.17 obtained analysis report from L.W.12, who conducted

Biochemical test on M.Os issued report and opined that, items 1 to 12 are examined, Blood is detected on Items 1, 3 and 7 only. But not on other items.

Semen is detected on Items 3, 4, 7, 9, 10, 11 and 12 is of Human Origin, but their blood group could not be determined.

LW.17 obtained final opinion from LW.13, who examined Victim Woman 5 issued final opinion and opined that “ there is an evidence suggestive of recent sexual intercourse”. After completion of entire investigation, LW.17 filed charge sheet against the accused No.1 and 2 for the offences punishable

Under Sections. 376 (2) (L) r/w.109 of I.P.C.

03. The Additional Judicial Magistrate of First Class, Addanki has taken this case on file Under Section. 376 (2) (l) of Indian Penal Code against

Accused No.1 and U/Sec. 376 (2) (l) r/w.109 of I.P.C against the accused No.2.

On appearance of the accused No.1 & 2, copies of documents are furnished to them as required Under Section.207 Cr.P.C.

04.As the offence Under Section.376 of Indian Penal Code is exclusively triable by the Court of Session, the Additional Judicial Magistrate of First

Class, Addanki committed this case to the Hon’ble Principal District &

Sessions Judge, Ongole U/Sec.209 of Cr.P.C. In turn the Hon'ble Principal

District & Sessions Judge, Ongole made over this case to this court for disposal according to law.

05.On appearance of the accused, they are examined U/Sec.228 (1) (b) of

Cr.P.C, and on hearing prosecution and defence, charges Under Secs. 376 (2)

(l) of Indian Penal Code against the accused No.1 and for the offences Under

Sec.376 (2) (l) r/w.109 of I.P.C against Accused No.2 was framed, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

6

06.On behalf of the prosecution, PWs.1 to PW.9 were examined and Exs.P.1 to Ex.P.20 were marked.

07.After closure of evidence of prosecution witnesses, the accused were examined Under Section.313 Cr.P.C and the incriminating material in the evidence of PW.9 was read over and explained to the accused in Telugu, for which they denied the offence and reported no defence evidence on their behalf.

08. Heard arguments on both sides.

The learned Public Prosecutor submitted arguments that on behalf of the prosecution, PWs.1 to PW.9 are examined and Exs.P.1 to Ex.P.20 are marked.

Though PWs.1 to PW.8 turned hostile, PW.9 supported the case of the prosecution. Taking into consideration of the evidence of PW.9, Exs.P.1 to

P.20 prayed for conviction of the accused.

The learned defence counsel submitted arguments that PW.1 to PW.3, who are mother, father and brother of Victim Woman, PW.4 to PW.6 and PW.8 who are close relatives and neighbours to PW.1 to PW.3, PW.7, who is mediator present at the time of scene observation panchanama, and recording of confessional cum arrest panchanama and they all turned hostile. PW.9 is case investigating officer, who took up investigation in this case, examined the witnesses, recorded their statements, visited the scene of offence and drawn rough sketch of the scene supported the prosecution case. Mere basing upon 7 the evidence of PW.9 alone, the accused cannot beconvicted. Hence prayed for acquittal of the accused.

09. Now the points for determination are :

1. Whether the prosecution has proved this case against the

accused No.1 for the offences punishable Under Sections. 376 (2) (l)

of Indian Penal Code and this case against the Accused No.2 for the

offences punishable Under Section. 376 (2) (l) r/w.109 of I.P.C

b eyond all reasonable doubt?

2. To what result, the accused are entitled?

10. POINT NO.1 :

To bring home the guilty of the accused, the prosecution has examined

PWs.1 to PW.9 and Exs.P.1 to P.20 are marked. PW.1 to PW.3, who are mother, father and brother of Victim deposed in their chief examination that they do not know Accused No.1 and 2. The accused never committed any offence against the Victim. They do not know anything about this case facts. PW.1 gave complaint before LW.15/Sk. Khajavali, Head Constable as tutored by elders, but not volunteer one. Ex.P.1 is said complaint. PW.1 stated before the

Hon’ble P.J.C.J., Addanki as tutored by elders, but not volunteer one. Ex.P.2

is said 164 Cr.P.C statement recorded by the Hon’ble P.J.C.J.,

Addanki/LW.10. PW.9 never examined them in connection with this case.

They being the mother, father and brother of Victim turned hostile without supporting prosecution case. Their 161 Cr.P.C statements are marked as

Ex.P.3 to Ex.P.5 respectively.

PW.4 to PW.6, who are close relatives and neighbours to PW.1 to PW.3 and they also deposed on the same lines of PW.1 during their chief 8 examination stating that they know the accused No.1 & 2. The Accused never committed any offence against Victim. They do not know anything about this case facts. PW.9 never examined them in connection with this case. They being the close relatives and neighbours to PW.1 to PW.3 and Victim turned hostile without supporting prosecution case. Their 161 Cr.P.C statements are marked as Ex.P.6 to Ex.P.8 respectively.

PW.7 is Village Revenue Officer, who deposed in his chief examination that at no point of time PW.9, who was the then Inspector of Police, Addanki

Circle conducted scene observation panchanama on 01.02.2020 at about 08.30 a.m., by seizing red, pink, yellow, green flower design blanket in his presence and in the presence of LW.8 and they never attested the said panchanama. Ex.P.9 is his signature in panchanama on 01.02.2020 at about 08.30 a.m. He signed in Addanki Police Station at the request of police. PW.9 never arrested the accused by recording his confessional statement and also by seizing white light blue, light green strips full hands shirt, gray colour black pant, red and black colour elastic drawer in his presence and in the presence of LW.8 on 02.02.2020 at about 12.45 p.m. Ex.P.10 is his signature on the alleged confessional cum arrest mahazar dt: 02.02.2020 at about 12.45 p.m., prepared by PW.9. He put his signatures in Addanki P.S at the request of police. He being the mediator present at the time of scene observation panchanama and recording of confessional cum arrest mahazar turned hostile without supporting prosecution case.

The one and only evidence available on record for the prosecution case 9 is the evidence of PW.9, who is the investigation officer deposed in his chief examination that on 31.01.2020 at about 05.15 p.m., while LW.15, who was the then H.C of Police, Santhamaguluru P.S was present in P.S., PW.1 came to Police Station and submitted written complaint, which in turn he registered the same as a case in Crime No.17/2020 U/Secs. 376 (2) (l) r/w.109 of I.P.C and submitted original F.I.R. to the Hon’ble A.J.F.C.M., Addanki and copies to all concerned. Ex.P.1 is complaint of PW.1. Ex.P.12 is original F.I.R submitted to A.J.F.C.M., Addanki. Then, he took up investigation in this case, secured the presence of PW.1 to PW.3 examined them and recorded their 161 Cr.P.C statements. Later, on 01.02.2020, he rushed to scene of offence along with

PW.2 which is situated at the house of PW.1 observed the same and taken photos in angles and seized red, pink, green, yellow colour flower design blanket in which the sexual intercourse occurred by preparing scene observation report in the presence of PW.7 and LW.8, dt: 01.02.2020 at about 08.30 a.m. then, he has also drawn rough sketch of the same. Ex.P.14 is said rough sketch. On 01.02.2020, he secured the presence of PW.4 to PW.6 and 8 examined them and recorded their 161 Cr.P.C statements. Then, on 04.02.2020, he made requisition before LW.13 to examine the Victim and also to determine the age. He also recorded the statement of Victim with the help of LW.14 in the presence of LW.13. On 14.02.2020 the Victim Woman and

PW.1 were produced before LW.10 to record 164 Cr.P.C statements, who accordingly recorded. Ex.P.15 is said requisition for recording 164 Cr.P.C statements. He arrested the accused No.1 and 2 in the presence of PW.7 and 10

LW.8 at Main Road, Kundurthi Village by recording their confessional cum arrest panchanama duly attested by PW.7 and LW.8, brought them to P.S and sent them to remand after due formalities. Ex.P.16 is said confessional cum arrest panchanama dt: 02.02.2020 at about 12.45 hours. He produced the

Accused No.1 before LW.11 for conducting potency test, who accordingly conducted. Ex.P.17 is potency certificate of accused No.1 which speaks that there is nothing to suggest that Accused No.1 is not capable of performing of sexual act or act of coitus. Further investigation in this case was took up by

LW.17, who collected RFSL report from LW.12. LW.17 obtained preliminary wound certificate, RFSL report and final opinion from LW.13, who examined the Victim woman. Ex.P.18 is said preliminary wound certificate. Ex.P.19 is

RFSL Report. Ex.P.20 is final opinion, which speaks that there is an evidence of suggestive recent sexual intercourse. After completion of entire investigation, LW.17 filed charge sheet against Accused No.1 and 2 by enclosing all documents. PW.1 to PW.6 and PW.8 stated before him as in

Ex.P.3 to P.8 and Ex.P.11 respectively. During the cross examination, he denied all the suggestions made by the defence counsel as false.

11.As already discussed above, PW.1 to PW.3, who are mother, father and brother of Victim Woman, PW.4 to PW.6 and PW.8 who are close relatives and neighbours to PW.1 to PW.3, PW.7, who is mediator present at the time of scene observation panchanama, and recording of confessional cum arrest panchanama and they all turned hostile. PW.9 is case investigating officer, who took up investigation in this case, examined the witnesses, recorded their 11 statements, visited the scene of offence and drawn rough sketch of the scene supported the prosecution case. Mere basing upon the sole evidence of PW.9, who is investigating officer, the accused cannot be convicted, as the evidence of PW.9 lacks corroboration of independent eye witnesses.

For the above said fore going discussions, this Court is of considerable opinion that the prosecution failed to prove the guilt of the accused beyond all reasonable doubts and the accused are entitled for the benefit of doubt.

Accordingly, point No.1 is answered.

12.Point No.2: To what result the Accused are entitled?

In the result, the accused No.1 is found not guilty for the offences punishable Under Secs. 376 (2) (l) of Indian Penal Code, and accused No.2 is found not guilty for the offences punishable Under Sec. 376 (2) (l) r/w.109 of

I.P.C and they are acquitted Under Section 235(1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as contemplated

Under Section 437-A of Cr.P.C. Unmarked case property if any shall be destroyed after completion of appeal time.

Typed to my dictation to the Stenographer, corrected and pronounced by me in Open Court, this the 4th day of April, 2024.

Sd/- M.A.Somasekhar,

Special Judge, POCSO Court, Ongole.

FAC: II Addl. District & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam District, Ongole.

12

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Prosecution For the Accused

PW.1: A. Sivamma -None- PW.2: A. Somaiah PW.3: A. Lakshmi Narayana PW.4: G. Padma PW.5: G. Veeranjaneyulu PW.6: M. Ravanamma PW.7: B. China Bikshalu, V.R.O PW.8: A. Srinivasa Rao PW.9: T. Ashok Vardan, S.D.P.O.

DOCUMENTS MARKED

On behalf of the Prosecution :

Ex.P.1: Complainant of PW.1

Ex.P.2: U/Sec.164 Cr.P.C statement of PW.1

Ex.P.3: U/Sec.161 (3) Cr.P.C statement of PW.1

Ex.P.4: U/Sec.161 (3) Cr.P.C statement of PW.2

Ex.P.5: U/Sec.161 (3) Cr.P.C statement of PW.3

Ex.P.6: U/Sec.161 (3) Cr.P.C statement of PW.4

Ex.P.7: U/Sec.161 (3) Cr.P.C statement of PW.5

Ex.P.8: U/Sec.161 (3) Cr.P.C statement of PW.6

Ex.P.9: Signature of PW.7 on scene observation panchanama

Ex.P.10: Signature of PW.7 on confessional cum arrest mahazar

Ex.P.11: U/Sec.161 (3) Cr.P.C statement of PW.8

Ex.P.12: Original F.I.R

Ex.P.13: Scene Observation report

Ex.P.14: Rough Sketch.

Ex.P.15: Requisition for recording 164 Cr.P.C statement of PW.1.

Ex.P.16: Confessional cum arrest panchanama

Ex.P.17: Potency certificate of Accused No.1 13

Ex.P.18: Preliminary Wound certificate.

Ex.P.19: RFSL Report

Ex.P.20: Final Opinion.

On behalf of the Accused : NIL

Material Objects

NIL

Sd/- M.A.Somasekhar,

Special Judge, POCSO Court, Ongole.

FAC: II -Addl. District & Sessions Judge-cum-Spl.

Judge for Trial of Offences against Women,

Prakasam District, Ongole.

// True Copy //

Special Judge, POCSO Court, Ongole.

FAC: II Addl. Dist. & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam at Ongole.

14

CALENDAR AND JUDGMENT

IN THE COURT OF THE II-ADDITIONAL DISTRICT AND SESSIONS JUDGE

-CUM- SPECIAL COURT FOR TRIAL OF OFFENCES AGAINST WOMEN,

PRAKASAM DISTRICT AT ONGOLE

Present: Sri M.A.Soma Sekhar,

Special Judge, POCSO Court, Ongole.

FAC II-Addl. Dist. & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam at Ongole.

Thursday, this the 4th day of April, 2024.

SESSIONS CASE No. 148 of 2023

(P.R.C.No.14/2020 of Additional Judicial Magistrate of First Class, Addanki in Crime No. 17/ 2020 of Santhamaguluru Police Station) State: The Inspector of Police, Addanki Circle. …. Complainant

Versus

1. Namala Venkateswarlu, S/o. Subba Rao ( late), aged 31 years, Naidu by caste, Auto Driver, Tangedumalli Village, Santhamaguluru Mandal.

2. Gade Gangadhar, S/o. Sivaiah, aged 32 years, Cutting Operator, Ragavendra Granites, Gurijepalli Village, N/o. Tangedumalli Village,

Santhamaguluru Mandal. ….. Accused

Anantha Bhulakshmi, D/o. Somaiah, aged 21 years, Naidu by caste, Tangedumalli Village, Santhamaguluru Mandal. … Victim/deceased.

Charges under section(s) : Sections. 376 (2) (l) of the Indian Penal Code, 1860 against Accused No.1 U/Sec.376 (2) (l) r/w.109 of IPC against Accused No.2.

Plea of the Accused: Pleaded not guilty.

Finding of the Court: Found not guilty.

Result of the Case: In the result, the accused No.1 is found not guilty for the offences punishable Under Secs. 376 (2) (l) of Indian Penal Code, and accused No.2 is found not guilty for the offences punishable Under 15

Sec. 376 (2) (l) r/w.109 of I.P.C and they are acquitted Under Section 235(1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as contemplated Under Section 437-A of Cr.P.C. Unmarked case property if any shall be destroyed after completion of appeal time.

DATES OF

Date of occurrence:29.01.2020 Date of report:31.01.2020 Date of appearance:28.11.2023 Date of commencement of trial:26.02.2024 Date of closure of trial:28.03.2024 Date of Judgment:04.04.2023

Explanation for Delay :

The Judicial Magistrate of First Class, Addanki committed this case as P.R.C.No. 14/2020 to Hon'ble Sessions Division, Prakasam District, Ongole on 28.10.2023 the same was numbered and made over the same by

Honourable’ Prl. District and Sessions Judge, Prakasam District at Ongole to

this Court for disposal according to law. On 28.11.2023 accused No.1 and 2 were appeared. On 31.01.2024 Accused No.1 and 2 were examined U/Sec.228 (1) (b) of Cr.P.C for the offence U/Secs. 376 (2) (l) of Indian Penal Code against the accused No.1 and U/Sec.376 (2) (l) r/w.109 of I.P.C against the Accused No.2 have been framed and charges were read over and explained to them in Telugu, for which, they pleaded not guilty and claimed to be tried. In this case, trial was commenced from 26.02.2024 and concluded on 28.03.2024, during trial PWs.1 to PW.9 are examined and got marked Exs.P.1 to P.20 and on the same day the accused were examined U/Sec.313 Cr.P.C. for which they pleaded denial and further reported that they have no defence evidence, posted the matter for arguments. On 04.04.2024 arguments were heard judgment pronounced acquitting the accused No.1 and 2. ( Vide Separate Judgment). Hence, the delay.

Sd/- M.A.Somasekhar,

Special Judge, POCSO Court, Ongole.

FAC: II Addl. District & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam District, Ongole. Copy submitted to : :Copy submitted to

The Hon’ble Registrar (Judl.,) Hon’ble High Court of Andhra Pradesh. The Hon’ble Registrar (Judl.,) Hon’ble High Court of Andhra Pradesh. Nelapadu, Guntur District.Nelapadu, Guntur District. Copies to :

1. The Additional Public Prosecutor, Ongole.

2. The Superintendent of Police, Ongole.2. The Superintendent of Police, Ongole.

16 // True Copy //

Special Judge, POCSO Court, Ongole.

FAC II Addl. Dist. & Sessions Judge-cum- Spl. Judge for Trial of Offences against Women, Prakasam at Ongole.