M Shyam Sree

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AS No.22/2019, dt.22.04.2024.

IN THE COURT OF THE I ADDL. DISTRICT JUDGE AT

KOTHAGDUEM

MONDAY, THIS THE 22 nd DAY OF APRIL, 2024

PRESENT: Dr. M. SHYAM SREE,

I ADDL. DISTRICT JUDGE,

KOTHAGUDEM.

AS No.22 of 2019

Between:

Smt. Thummala Suguna, W/o Vivek Rama Rao, Age: 65 years, Occu: Retired Employee, R/o H.No.13-1- 67/9/9, Plot No.181, Avanthi Nagar, Mothi Nagar, Hyderabad.

…Appellant/Respondent

And

Smt. Kothuru Chandra Kala, W/o Sanjeeva Rao, Age: 55 years, Occu: Business, R/o H.No.10-6-76, Near Parvathi Devi Hospital, Netaji Market, Kothagudem, Khammam. …Respondent/Petitioner

Against Judgment and decree passed in OS No.456 of 2010

dated 07.06.2019 by Addl. Senior Civil Judge, Kothagudem.

Between:

1Smt. Kothuru Chandra Kala, W/o Sanjeeva Rao, Age: 55 years, Occu: Business, R/o H.No.10-6-76, Near Parvathi Devi Hospital, Netaji Market, Kothagudem, Khammam.

…Plaintiff 2

AS No.22/2019, dt.22.04.2024.

And

Smt. Thummala Suguna, W/o Vivek Rama Rao, Age: 65 years, Occu: Retired Employee, R/o H.No.13-1- 67/9/9, Plot No.181, Avanthi Nagar, Mothi Nagar, Hyderabad.

…Defendant

This appeal is coming on 12.02.2024, before me for a final hearing in the presence of Sri S.R. Narasimha Reddy, advocate for the appellant, and of Sri G.V. Prasad, advocate for respondent; and upon perusal of the material papers on record and the case having been heard and stood over for consideration till this day; this court delivered the following judgment:

:: J U D G M E N T::

1.The appellant/defendant preferred this appeal against the judgment and decree passed by the Addl. Senior Civil Judge,

Kothagudem in OS No.456 of 2010 dated 07.06.2019 and the factual matrix leading to the filing of the appeal is, as follows:

For the sake of convenience and discussion, both the parties are referred to as plaintiff and defendant, as arrayed in the suit,

before the lower Court.

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AS No.22/2019, dt.22.04.2024.

The plaintiff filed the suit for passing decree of specific performance of agreement of sale, dated 14.08.2009, directing the defendant to execute sale deed for the suit schedule property, which is dilapidated tiled house bearing NO.7-3-51/1, with its appurtenant site to an extent of 400 sq. yards, situated at Medara Basthi,

Kothagudem of Khammam District, bounded by municipal road on four sides, alternatively, for damages, with costs of the suit.

(i) The case of the plaintiff from the plaint averments are as follows:

The defendant is the owner and possessor of the dilapidated tiled house bearing H.No.7-3-51/1 with its appurtenant site to an extent of 400 sq. yards, situated at Medara Basthi,

Kothagudem of Khammam District, i.e., the suit schedule property.

The defendant proposed to alienate the suit schedule property for her family needs. The plaintiff offered to purchase the suit schedule property for a total sale consideration of Rs.4,10,000/- and the defendant accepted the rate and entered into agreement fo sale on 14.08.2009 and received Rs.98,000/- from the plaintiff towards earnest amount of the sale consideration and acknowledged the same in the agreement. It is mentioned that as per the terms of the 4

AS No.22/2019, dt.22.04.2024.

agreement of sale, the plaintiff had to pay Rs.3,12,000/- at the time of registration of the sale deed and to take possession of the suit schedule property. Subsequently, the plaintiff expressed her readiness to perform the job on her part under the agreement of sale. The defendant has been postponing the same on one or the other pretext, with an ill intention to avoid the agreement. That after entering into the agreement of sale with the plaintiff, the market value of the land in the locality had been increased. That the plaintiff came to know that the defendant was making efforts to sell the suit schedule property to third parties at higher rate, with an intention to gain wrongfully8, by suppressing the agreement of sale in favour of the plaintiff. Immediately, after knowing the ill intention of the defendant, the plaintiff made every effort and conversed through telephone as the defendant was away from Kothagudem since the date of agreement of sale. The defendant was evading to entertain the plaintiff. Inspite of the expression of readiness and intention to pay the balance sale consideration and get registered sale deed in her favour. The defendant is not evincing any interest to perform the job on her part under the agreement of sale. The plaintiff mediated through mediators, but invain. The plaintiff is ready to pay the entire balance sale consideration and get the 5

AS No.22/2019, dt.22.04.2024.

registered sale deed in her favour for the suit schedule property with defacto delivery of possession. The defendant, with dishonest intention and to defraud the plaintiff, is making hectic efforts to sell the suit schedule property at higher rate. The defendant is not coming forward for execution of the registered sale deed in favour of the plaintiff and vexed with her attitude, the plaintiff got issued legal notice on 19.03.2010, demanding the defendant to execute registered sale deed in favour of the plaintiff for the suit schedule property. Inspite of the knowledge of the legal notice got issued by the plaintiff, the defendant is making efforts to dispose of the property to third parties. Cause of action arose on and from 14.08.2009 when the defendant executed agreement of sale in favour of the plaintiff and on all subsequent dates of demands made by the plaintiff for execution of the registered sale deed and on 19.03.2010 when the plaintiff got issued legal notice.

(ii) Case of the defendant from written-statement:

The defendant has filed a written statement admitting that she is the owner and possessor of house bearing H.NO.7-3-51/1 along with its appurtenant site to an extent of 400 sq. yards, situated at Medara Basthi of Kothagudem Town and it is a tiled house. It is 6

AS No.22/2019, dt.22.04.2024.

denied that the house is in dilapidated condition. It is also admitted that the defendant proposed to alienate the said house and offered the plaintiff to purchase the same for a consideration of

Rs.4,10,000/- and the defendant accepted the rate and entered into an agreement of sale on 14.08.2009. It is denied that the defendant received Rs.98,000/- from the plaintiff towards earnest amount of the sale consideration on the same day and acknowledged the same in the agreement. It is mentioned that it is false to allege that the plaintiff has to pay Rs.3,12,000/- at the time of registration of the sale deed and to take possession of the said house property. That the plaintiff did not pay any amount to the defendant towards advance amount. As per the alleged agreement, the vendee is paying the vendor, advance of Rs.98,000/-, by way of demand drafts each Rs.49,000/- bearing No.158918, SBI dated 14.08.2009,

Kothagudem and 158919, dated 14.08.2009, but the said aspect is not mentioned in the plaint. The said demand drafts are issued to the defendant towards discharge of debt payable by one Kodumuri

Satyanarayana to the defendant and the said demand drafts are not concerned to the present case. It is false that the defendant has been postponing performance of her contract. It is also to alleges that the plaintiff came to know that the defendant is marking efforts 7

AS No.22/2019, dt.22.04.2024.

to sell the suit schedule property to third parties at higher rate suppressing the agreement of sale with an ill intention to gain wrongfully. It is denied that the plaintiff made efforts and conversed through telephone with the defendant as she was away from

Kothagudem and that the defendant is evading to entertain the plaintiff. It is false that the defendant is not coming-forward for execution of the registered sale deed in favour of the plaintiff. It is not true that the plaintiff got issued legal notice, dated 19.03.2010 demanding the defendant to execute registered sale deed in favour of the plaintiff for the suit schedule property and inspite of having knowledge of the notice, the defendant has been making hectic efforts to dispose of the property to third parties. As per the sale agreement, the balance amount i.e., Rs.3,12,000/- is to be paid to the vendor within two months time, which is actually expired on 13.10.2009. The plaintiff failed to mention as to why she kept quite for all these days. The plaintiff got created the alleged cause of action for filing of the suit. The agreement of sale is not maintainable at law and the suit si liable to be dismissed and it is prayed to dismiss the suit with costs.

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2.The trial Court, based on the above pleadings, framed the following issues for trial:

1. Whether the plaintiff is entitled for specific performance of agreement of sale, dated 14.08.2009 ?

2. Whether the plaintiff is entitled for damages as prayed for ?

3. To what relief?

3.During the trial, on behalf of the plaintiff Pws.1 and 2 are examined and Exs.A.1 to A.4 are marked. On behalf of the defendant, Dws.1 and 2 are examined.

4.The trial Court, on hearing both sides and on appreciation of the oral and documentary evidence adduced by both parties, the suit is decreed with costs in favour of the plaintiff, directing the plaintiff to deposit an amount of Rs.3,12,000/- i.e., the balance sale consideration within a period of two months and on such deposit, the defendant is directed to execute registered sale deed in favour of the plaintiff in respect of the suit schedule property, within one month, failing which the plaintiff can approach the court for getting registered sale deed executed through process of law.

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AS No.22/2019, dt.22.04.2024.

5.Aggrieved by the judgment and decree of the trial

Court, the appellant/defendant have preferred this appeal contending inter alia that the judgment of the lower court is contrary to Law, equity, and facts and the lower court did not appreciate the documents of both the parties properly on the following grounds:

(i) The lower court failed to appreciate that fact that, the alleged agreement of sale which was pressed in to the service by the respondent/plaintiff is essence of time and the respondent/plaintiff wailfully failed to plead in her plaint of the above factum and inspite of pleadings by the appellant/defendant, the judgment is silent on the above aspect.

(ii) The appellant submits that, the court below inspite of a clear pleading in the written-statement, that the alleged agreement of sale undated is executed by this appellant/defendant on 14.08.2009 has to be concluded by way of registration of sale deed within 2 months from the date of it s execution 14.08.2009 and failed to frame an issue on the aspect of “whether the agreement of sale is essence of time” as pleaded by this appellant and without going into 10

AS No.22/2019, dt.22.04.2024.

the above aspect, passed the decree in favour of the respondent which is not only bad in law and also against the facts on record and also pleadings.

(iii) Appellant submits that, the respondent who filed the suit

before the court below grossly failed to show that, within the period

of enforcement of agreement of alleged deed, dt.14.08.2009, she is ready to perform her part of obligation therein, thereby estopped of filing specific performance suit, after lapse of period of agreement.

(iv) The appellant submits that, the date of alleged agreement of sale is dt.14.08.2009 and the same is essence of conclusion within 2 months from the date of execution and the respondent/plaintiff grossly failed to lead sufficient evidence and also produce documents as to issuance of notice on 19.03.2010, after lapse of more than 7 months, the court below out to have dismissed the suit filed by the respondent/plaintiff, for non adherence of the obligations on her part in respect of agreement of sale, and decreed the suit without justification.

(v) The appellant submits that, the respondent/plaintiff deliberately failed to produce cogent and coherent reasons as to why she kept quite for 7 months to issuance of the notice of specific performance and her pleadings of mediation and other allegations 11

AS No.22/2019, dt.22.04.2024.

are not proved by her by producing proper evidence before the court below and the court below grossly8 erred in decree in the suit of specific performance, when the time is essence of the agreement of sale.

(vi) The appellant submits that the respondent/plaintiff grossly failed to prove as to her readiness to perform her part of obligation in respect of the agreement of sale dt.14.08.2009 with the appellant, even as per her pleadings, as such the judgment of the court below is bad in law and facts and liable to be set aside.

6.This court heard the arguments of the learned counsels appearing for the appellant/defendant and the Respondent/plaintiff.

7.The point that arises for determination, are as follows:

1. Whether the plaintiffs are the owners of the suit

schedule property, and if, so, are they entitled to the

declaration and consequential relief of recovery of

possession and a perpetual injunction directing the

defendants not to alienate the suit schedule property and

mesne profits there on ?

2. Whether there are any valid grounds to interfere

with the judgment and decree passed by the trial court?

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AS No.22/2019, dt.22.04.2024.

3. To what relief?

POINT No.1:-

8.Originally the suit was filed seeking specific performance of agreement of sale alleging that the plaintiff agreed to purchase the schedule property for a sum of Rs.4,10,000/- out of which

Rs.98,000/- was paid towards earnest amount, though the plaintiff expressed her readiness the defendant avoided to receive the balance of sale consideration and procrastinate the execution of registered sale deed, so the plaintiff approached the court by way of this suit.

9.The defendant in his written statement admitted that she was the owner of the suit schedule property and had entered into the agreement of sale dated 14.08.2009 with the plaintiff, but she did not receive the earnest amount of Rs.98,000/- and it was alleged that the D.Ds for an amount of Rs.98,000/- which were mentioned in the agreement of sale were given by the plaintiff towards the discharge of debt payable by one Kodumuri Satyanarayana but not towards the earnest amount of agreement of sale.

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AS No.22/2019, dt.22.04.2024.

10.At the out set the defendant had admitted the execution of the sale agreement, dated 14.08.2009, but alleges that the amount mentioned in the said agreement was not received by her towards earnest amount.

11.However, the plaintiff who had approached the court seeking the discretionary relief, to establish the claim made by her got examined herself as PW.1 and deposed that she studied up to 2nd class and she can put only signature, she cannot read and write

English and Telugu and she also do not know the numbers, so, the plaintiff is nothing less than a illiterate. Therefore, she stated that she is not aware whether the date of agreement of sale was mention in Ex.A.1 or not but she is aware that she had filed the present suit as the defendant refused to execute a registered sale deed in her favour and the defendant had denied the payment of earnest money by way of two D.Ds for Rs.49,000/- each. She was also aware that later the defendant had denied the execution of agreement of sale under Ex.A.1 and denies that she has no capacity to pay the earnest money so also the balance of sale consideration.

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AS No.22/2019, dt.22.04.2024.

12.It is her testimony that the attestors of Ex.A.1 (i.e.)

Narmada and Saroja are the daughters of the defendants. So, the plaintiff had examined a 3rd party who had drawn the D.Ds for

Rs.49,000/- each from SBI, Kothagudem Branch on the day of execution of agreement of sale which was given by the plaintiff to the defendant in his presence. He too testified that the attestors of

Ex.A.1 are the daughters of the defendant, though the plaintiff had asked the PW.2 to attest the document, the daughters of the defendant had come forward to act as witnesses to the agreement of the sale/Ex.A.1 and it is his version that he discontinued the 2nd year of graduation and he is aware that there is the date was not mentioned in Ex.A.1 and it does contain his signature, but he is clear in his testimony that he had given the D.Ds to the plaintiff and the same were given to the defendant in his presence and the same were obtained by him in the name of defendant though he was not able to say the serial numbers of D.Ds’.

13.The plaintiff not only examined herself and also the person who had drawn the D.Ds for Rs.98,000/- but also filed the original agreement of sale alleged to have executed in his favour for the perusal of this court. As stated by the plaintiff, initially the 15

AS No.22/2019, dt.22.04.2024.

defendant had admitted the execution of the sale agreement in favour of the plaintiff but denied the receiving of the earnest money mentioned therein. But, later the defendant had come with a plea that the defendant had not executed the agreement of sale and it was a created one and in support of the plea she had examined

DW.2/advocate who had filed the written statement on behalf of the defendant NO.1 initially. It was her testimony that the defendant had instructed her to deny the execution and also the relief sought by the plaintiff but when the contents of the written statement and chief affidavit were typed, in advertently missed to type “not” and the missing of not is only typing mistake and it is not the pleading of the defendant and she never admitted the execution of agreement of sale. Whereas in her cross-examination she admitted the defendant in this suit signed on the written statement and after verifying, she declared that the contents of the written state are true and correct to best of her knowledge, belief and on information she had put her signature on the written-statement and further admitted that the written-statement was filed on 17.12.2012 and the affidavit in lieu of examination was filed in the year 2013 and the same was prepared and signed by the defendant after the verification of another advocate.

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AS No.22/2019, dt.22.04.2024.

14.At this juncture, it is necessary to reproduce the exact verbatim used in the written statement. At para No.3 it was mentioned as “It is true that the defendant has proposed to alienate the above said house property and offered the plaintiff to purchase the same for a consideration of Rs.4,10,000/- and the defendant accepted the rate of and entered into an agreement of sale on 14.08.2009. But, it is absolutely false to allege that the defendant received Rs.98,000/- from the plaintiff towards earnest amount of the sale consideration on the same day and acknowledged the same in the agreement. It is also equally false to allege that the plaintiff shall have to pay Rs.3,12,000/- at the time of registration of the sale deed and take possession of the said house property. It is submitted that the plaintiff did not pay any amount to the defendant towards advance amount. No consideration was passed by the plaintiff to defendant”.

In Ex.A.1/sale agreement produced by the plaintiff it was alleged that the vendee is paying to vendor as advance of

Rs.98,000/- by way of Demand Drafts each Rs.49,000/- bearing

No.158918, SBI, Dt.14.08.2009, Kothagudem and 158919,

Dt.14.08.2009. But, the same was not mentioned in the plaint.

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AS No.22/2019, dt.22.04.2024.

Further, the said D.Ds issued to the defendant towards the discharge of debt payable by one Kodumuri satyanarayana to the defendant.

The said D.Ds are unconcerned to the present case proceedings”.

15.After going through this admission made by the defendant in the written-statement the evidence of DW.2 that the “not” was missing in the written-statement prepared by her does not fit to terminology used there in nor the case facts and on the face it can be said that it was a after thought. The clear admission was made by the defendant in his written-statement as to the execution of the agreement of sale, further she raised an allegation as to the non passing of consideration under Ex.A.1.

16.The defendant who was examined as DW.1 admitted in his cross-examination that the plaintiff had filed criminal case with regard to the Ex.A.1 transaction against her and further that she knew Md.Abith Hussain with whom she got acquaintance through her younger brother, but she did not know his designation nor have any transactions with him. She denied that she had executed a registered GPA in his favour and that he had filed a petition along with the Vakalath through his counsel on her behalf and that the 18

AS No.22/2019, dt.22.04.2024.

plaintiff had filed a criminal case against the said Md. Abith Hussain and she is also unaware that the said Abith Hussain had filed a quash petition before the Hon’ble High Court to delete his name in the array of the accused in the criminal case filed by the plaintiff stating that he is no way connected with the suit schedule property and the same was allowed by the Hon’ble High Court and she is not aware whether he had come to this court after quash petition was allowed to pursue this case. She expressed her ignorance in whose favour she had executed a General Power of Attorney.

17.The nature of the defendant from day of filing of the written-statement till giving her evidence is not consistent nor she stuck the one defence, she keeps on changing her version and given different versions as to the transaction under Ex.A.1., Where the plaintiff had not only examined herself but also the person who had drawn out the D.Ds in the name of the defendant, but still the defendant intend to deny the execution of the agreement of sale though it was not her initial defence taken. The defendant have every opportunity and chance to send not only her signature but also the signatures of her daughters who were alleged to be the attestors of the Ex.A.1/Agreement of sale. When both Pws.1 and 2 19

AS No.22/2019, dt.22.04.2024.

stated that the witnesses on Ex.A.1/Agreement of sale were the daughters of the defendant, she had not even chose to examine any of them on her behalf.

18.Further, she has narrated an un-connected story that

Rs.98,000/- received by her under Ex.A.1 was towards the debt payable by one K. Satayanarayana. It is not brought on record who the said Satyanarayana was and the relation between the plaintiff and the Satyanarayana and her obligation to repay the said debt.

The agreement itself speaks that the it was agreed for selling of the suit schedule property which the defendant knew the same was even admitted by her in written-statement that she owns the schedule property and she proposed to alienate the suit schedule property to the plaintiff for a consideration of Rs.4,10,000/- which was the exact terms mentioned in the agreement, therefore, it can be held that without any doubt that the entire defence put up by the defendant is nothing but false.

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AS No.22/2019, dt.22.04.2024.

19.In this appeal it is the main ground that was taken by the appellant that the time is the essence of the contract which point was ignored by the trial court. At this juncture it is relevant to discuss the legal position laid by the Hon’ble Apex court in Civil

Appeal Nos.7254-7256 of 2002 and Contempt Petition ©

No.28-29 of 2009 between Saradamani Kandappan Vs. S.

Rajalakshmi and others

It was further observed that “The intention to make time stipulated for payment of balance consideration will be considered to be essence of the contract where such intention is evident from the express terms or the circumstances necessitating the sale, set out in the agreement. If for example, the vendor discloses in the agreement of sale, the reason for the sale and the reason for stipulating that time prescribed for payment to be the essence of the contract, that is, say, need to repay a particular loan before a particular date, or to meet an urgent time bound need (say medical or educational expenses of a family member) time stipulated for payment will be considered to be the essence. Even if the urgent need for the money within the specified time is not set out, if the words used clearly show an intention of the parties to make time the 21

AS No.22/2019, dt.22.04.2024.

essence of the contract, with reference to payment, time will be held to be the essence of the contract”.

20.Therefore, the conditions stipulated in the agreement are of paramount importance to know the intention of the parties who entered into the agreement. As seen from the Ex.A.1 except mentioning that the balance amount of Rs.3,12,000/- is to be paid to the vendor at the time of notary or registration within two months time, the vendor also agreed same terms. This is a common condition which makes part of every sale agreement but there is no specific clause stipulated in the agreement to know the intention of the parties, further more, if there is lapse on the part of the plaintiff in fulfilling her part of contract, then the defendant will have the defence to show that the plaintiff was not ready to perform the contract in terms of the agreement, but in the present suit the plaintiff was very much ready to pay the balance of sale consideration. Ex.A.4 statement of account of the plaintiff for the year 2009-10 shows that in the month of November, 2009 an amount of Rs.2,52,200/- was credited to her account. It is not the case of the defendant that immediately after expiry of 2 months i.e., 22

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after 14.10.2009 she issued a notice to the plaintiff cancelling the agreement of sale. As already discussed the defendant was not clear in the defence taken by her. She tried to put up every possible defence she could but all in futile. Where as the plaintiff was successful in establishing her case making herself entitle to the discretionary relief.

POINT NO.2:

21.In view of the above discussion, this court of the considered opinion that there are no valid grounds to interfere with the finding of the trial court. As such, the appellant/defendant is not entitled to any of the reliefs as sought. Hence, the appeal is liable to be dismissed.

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POINT NO.3:

IN THE RESULT: The appeal is dismissed by confirming the judgment and decree passed by the learned Addl. Senior Civil Judge,

Kothagudem, dated 07.06.2019 in OS No.456 of 2010. Both parties shall bear their own costs.

Dictated to the Stenographer Grade-III, transcribed by

him, corrected, and pronounced by me in the open court on this the 22nd day of April, 2024.

I Additional District Judge Kothagudem

:: APPENDIX OF EVIDENCE::

-Nil-

I Additional District Judge Kothagudem

IN THE COURT OF I ADDITIONAL DISTRICT JUDGE

AT: KOTHAGUDEM

MONDAY, THIS THE 22nd DAY OF APRIL, 2024

Present Dr. M.Shyam Sree, I Additional District Judge, Kothagudem.

AS No.35 of 2019

Between:

1.Eeda Satish, S/o Narayana, Age: 46 years, Occu: Casual worker, H.NO.7-32/3/A situated at Sarapaka Village, Burgampad Mandal, Bhadradri Kothagudem District.

…Appellant/Defendant

And

1.Bandari Laxman Rao, S/o Ganapathi, Age: 44 years, Occu: Business, R/o H.No.22-1-13/1, Nehrunagar, Paloncha Towna and Mandal, Bhadradri Kothagudem District.

…Respondent/Plaintiff

Against Judgment and decree passed in OS No.226 of

2015 dated 28.10.2019 by Additional Senior Civil Judge,

Kothagudem.

Between:

1.Bandari Laxman Rao, S/o Ganapathi, Age: 44 years, Occu: Business, R/o H.No.22-1-13/1, Nehrunagar, Paloncha Towna and Mandal, Bhadradri Kothagudem District …Plaintiff

And

1.Eeda Satish, S/o Narayana, Age: 46 years, Occu: Casual worker, H.NO.7-32/3/A situated at Sarapaka Village, Burgampad Mandal, Bhadradri Kothagudem District.

…Defendant

This appeal is coming on 08.02.2024, before me for a final hearing in the presence of Sri. P. Ganesh Babu,advocate for the appellant and that Respondent remained exparte; and upon perusal of the material papers on record and the case having been heard and stood over for consideration till this day; this court delivered the following judgment:

:: J U D G M E N T::

1.The appellant/defendant preferred this appeal against the judgment and decree passed by the Additional Senior Civil

Judge, Kothagudem in OS No.226 of 2015 dated 28.10.2019 and

the factual matrix leading to the filing of the appeal is, as follows:

For the sake of convenience and discussion, both the parties are referred to as plaintiff and defendant, as arrayed in the suit, before the lower Court.

The plaintiff filed the suit for recovery of money of

Rs.4,11,300/- with future interest @ 24% per annum on the

principal amount of Rs.3,00,000/- from the date of the suit till

the date of realization and costs of the suit.

(i) The case of the plaintiff from the plaint averments are as follows:

The plaintiff and the defendant are well acquainted with each other, out of such acquaintance the defendant borrowed

Rs.3,00,000/- from the plaintiff on 15.02.2014, for his family necessities, and the defendant executed a promissory8 note on the same day at Paloncha town, in favour of the plaintiff, promising to repay the promissory8 note amount together with interest @ 24% per annum, either to the plaintiff or to his order on demand; that the plaintiff demanded the defendant many times for repayment of the promissory note amount with upto to date interest, but the defendant did not pay the amount' that finally on 02.09.2015, the plaintiff got issued a legal notice to the defendant to repay the promissory note amount with upto date interest, but there was no response from the defendant and that the defendant did not choose to repay the promissory note amount with interest. Hence, the suit.

(ii) Case of the defendants from written-statement:

(i) The defendant has filed a written statement mentioning that the suit is not maintainable and is liable to be dismissed; and that the allegations in the plaint are denied. The name of the defendant is Eeda Satish, but not Edha Satish, and it shows the fabrication of the suit promissory note. It is denied that the defendant borrowed an amount from the plaintiff, executed a promissory note, and that the defendant made several demands for repayment of the said amount. It is also mentioned in the written statement that the defendant has no acquaintance with the plaintiff-Bandari Laxman Rao; and that the defendant never borrowed any amount from the plaintiff.

After receipt of two summons, the defendant enquired about the plaintiff and came to know that he is a resident of Hyderabad and about 3 years back he migrated to Hyderabad from

Sarapaka and he has no residence at Paloncha and he never stayed at Paloncha' that the address given by the plaintiff i.e.,

H.No.22-1-13/1, Nehrunagar, Paloncha is false; that the plaintiff is a stranger to the defendant; that the defendant is casual labour and his monthly wages are around Rs.6,000/-; that due to sudden receipt of suit summons all the family members of the defendant including the defendant was subjected to fear mental agony and suffering a lot; that as the plaintiff and his men created suit promissory note and used the same in judicial proceedings for their wrongful gain, defendant sent notice to the police at Paloncha and as they did not initiate any action he filed a private complaint before the II AJFCM, Kothagudem.

(ii) It is also mentioned in the written statement that one

Thalluri Arogya Mary @ Divya, W/o Ramu, R/o Sarapaka is doing money lending business without any license or permission from the Government, at a huge rate of interest: that she used to collect ATM cards of her debtors and used to draw their salary amounts; that so many workers of BPL are the victims of

Thalluri Arogya Mary @ Divya and so many complaints were filed against her. The defendant, for his necessary, approached

Thalluri Arogya Mary @ Divya and borrowed Rs.2,20,000/- on 10.04.2013 and paid interest amount of about Rs.1,60,000/- at 60% per annum; when the defendant was unable to pay such huge amount as interest he requested to reduce the interest, but the said Argoya Mary did not agree. Therefore, the defendant lodged complaint before the police, Burgampahad, and then the matter was settled out of the said settlement the defendant paid Rs.1,40,000/- towards a full and final settlement to the said Thalluri Arogya Mary @ Divya, and she executed a receipt dated 16.06.2014; that thereupon the said Thalluri

Argoya mary @Divya bore grudge against the defendant and often threatening that she will file suits even by creating false documents. The promissory note is a created document with a forged signature and without any consideration. The suit promissory note is not binding on the defendant and it is not a valid document. The defendant has no acquaintance with the plaintiff and no transaction took place between them.

Suppressing the above facts the plaintiff filed the suit in collusion with Thalluri Arogya Mary @ Divya and his yesmen.

The plaintiff is liable to pay exemplary costs of Rs.10,000/- and hence sought to dismiss the suit.

2.The trial Court, based on the above pleadings, framed the following issues for trial:

1. Whether suit pronote is rank forged?

2. Whether the suit pronote is supported by consideration?

3. Whether the plaintiff is entitled to recovery of the

suit amount, with interest, as prayed for?

4. To what relief?

3.During the trial, on behalf of the plaintiff, Pws.1 and 2 are examined and Exs.A.1 to A.3 are marked. On behalf of the defendant, Dws.1 and 2 were examined and Exs.B.1 and B.2 are marked.

4.The trial Court, on hearing both sides and on appreciation of the oral and documentary evidence adduced by both parties, the suit decreed with costs in favour of the plaintiff and against the defendant, for Rs.4,11,300/- with interest @ 12% per annum from the date of filing of the suit till the date of decree and with future interest @ 6% per annum, ont he

principal amount of Rs.3,00,000/-.

5.Aggrieved by the judgment and decree of the trial Court, the appellant/defendant has preferred this appeal contending inter alia that the judgment of the lower court is contrary to Law, equity, and facts and the lower court did not appreciate the documents of both the parties judiciously.

6.The plaintiff failed to prove the execution of the promissory note but the lower court decreed the suit infavour of the plaintiff.

(i) That the lower court did not appreciate the cross- examination of PW.2 in a judicious way.

(ii) That the lower court did not appreciate the documents filed by the defendant vide Ex.B.1 and B.2 and the oral evidence of Dws.1 and 2. Nothing was clarified by the plaintiff about the said documents. The lower court did not appreciate the evidence judiciously.

(iii) That the lower court erroneously held that the plaintiff has proved the Ex.A.1 though it was not proved by the plaintiff.

The lower court decreed the suit as the defendant failed to prove his pleadings. This is much against the settled principles of law and precedents and prayed to allow the appeal by setting aside the Judgment and Decree passed in OS No.226/2015

dated 28.10.2019, on the file of Additional Senior Civil Judge,

Kothagudem.

7.This court heard the arguments of the learned counsels appearing for the appellant/Defendant and the

Respondent/plaintiff.

8.The point that arises for determination, are as follows:

1. Whether the appellant has made out any

ground for setting aside the judgment and decree

passed in OS No.226/2015?

2. Whether there are any valid grounds to

interfere with the judgment and decree passed by the

trial court?

3. To what relief?

ISSUE No.1:-

9.Originally, the suit was filed for recovery of the amount alleging that the defendant had borrowed an amount of

Rs.3,00,000/- by executing a promissory note and failed to repay the same.

10.The defendant denied the execution of the promissory note so also the consideration passed under the pronote and further submitted that previously he had borrowed the amount from Arogya Mary @ Divya with whom he settled the matter, but the said Arogya Mary @ Divya bore grudge against the defendant herein for having filed a police complaint.

So, though the plaintiff who is none other than her brother-in- law had created/forged a promissory note and filed the present suit. Therefore, the defendant is not liable to pay any amount under the said promissory note.

11.As the defendant had denied the execution of the promissory note it is the burden of the plaintiff to establish the execution of the promissory note. To establish the same he got herself examined as PW.1 and examined one of the attestors as

PW.2 further got marked Ex.A.1 to A.3 i.e., Ex.A.1 is the original promissory note, dt.15.02.2014, Ex.A.2 is the office copy of the legal notice along with the postal receipt dated 02.09.2015 and

Ex.A.3 is the postal acknowledgment, dt.05.09.2015.

12.The learned counsel for the defendant had argued that the lower court failed to appreciate the oral evidence. He mainly objected to the jurisdiction of this court alleging that the plaintiff is not a resident of Paloncha Town, therefore, execution at Paloncha Town does not arise which bars the jurisdiction of this court, further objects to the appreciation of oral evidence of

Pws.1 and 2 and that the Exs.B.1 and B.2 were not appreciated judiciously and that the defendant cannot be lead positive evidence and the burden is always on the plaintiff to establish its case. On this, he relied upon the following decision.

1. The Hon’ble Supreme Court of India reported in 1999 (3)

SCC 35 between Bharat Barrel & Drum Manufacturing

Company Vs. Amin Chand Payrelal.

13.There is absolutely nothing to disagree with the legal position highlighted by the learned counsel. In the said decision also once the plaintiff is able to establish his case, the presumption available to him is a rebuttable one and if the defendant convinces the court from the available documentary or oral evidence with the circumstances of the case and the preponderance of the probability are in his favour, at that juncture, the burden shifts back to the plaintiff. Therefore, as already discussed above it is for the plaintiff to establish the execution of the promissory note as it was denied.

14.The plaintiff in support of his case was examined himself as PW.1 and in his cross-examination, he stated that he has been doing bike servicing work in Hyderabad for the last three years and admitted that Arogya Mary @ Divya is his sister in law who resides in Sarapaka and expressed his ignorance as to the transactions between the plaintiff and the said Arogya

Mary @ Divya, he bluntly denies that it is she who is behind this litigation and he says that he had acquaintance with the defendant as a co-worker but he has no relation with the defendant and denied that he had no capacity to lend an amount of Rs.3,00,000/- as he kept the amount with him and he did not withdraw from the bank and he is also not aware that

Paloncha police had registered a case against him alleging that he fabricated Ex.A.1.

15.The alleged suit promissory note transaction had taken place in the year 2014 whereas it is his evidence that in the year 2018, three years was residing in Hyderabad. So the defendant was able to elicit that in the year 2015, he shifted to

Hyderabad I..e, after the alleged pronote transaction. However, the defendant could not elicit anything in support of his case that he is not a resident of Paloncha at that relevant point in time. The learned counsel for the defendant/appellant had stressed much on the evidence of PW.2 that he did not even know the plaintiff nor any of the landmarks of the house of the plaintiff, therefore, the evidence of PW.2 has to be dis-believed as PW.1 stated that he is resident of Paloncha, but the plaintiff had nowhere stated that PW.2 is resident of Paloncha, but he is resident of Sarapaka, therefore his evidence should be discarded.

16.It was the examination in chief of PW.1 that the suit pronote was attested by one S. Srinivasa Rao and it was scribed by one M. Madhava Rao of Paloncha Town. Apart from that he had not specified or mentioned any other details of the said M.

Madhava Rao and he also did not state that he was residing at

Paloncha Town or working at Paloncha Town. Adding to that it is the evidence of PW.2 that he did not know the plaintiff and on the other hand he is a tenant of the defendant and he had come to the court to give evidence at the request of the defendant, as such he is unable to give any of the particulars except saying that the house of the plaintiff is a RCC building.

He does not even know how many years the plaintiff has been residing in Paloncha, whereas, on the other hand, he is quite familiar with the defendant and his details, that the defendant works in BPL, Sarapaka, and earns a monthly income of

Rs.50,000/-, more particularly he was also aware the surname of the defendant is EEDHA and admitted that his surname is

Eeda. He does know the father of the plaintiff, but he is aware that the defendant has two daughters. So, when, the evidence of PW.2 is considered he did not whisper of having any relation or friendship between himself and the plaintiff, further no reason is assigned to give false testimony against the defendant with whom he had good acquaintance and was also his tenant. No circumstance could be made out by the defendant to disbelieve his version, nor he deny his acquaintance with him.

17.Further, there appears no reason to support the plaintiff without there being any relation or friendship between them. Having said the description and the financial capacity of both the parties, PW.2 was firm in saying that it was in his presence the defendant had put the signature on Ex.A.1 and borrowed an amount of Rs.3,00,000/- and he was also not acquainted with the attestor Srinivasa Rao, but he stated that he was aged between 45-50 years. Therefore, the evidence of

PW.2 gains confidence, and nothing could be elicited by the defendant to disbelieve the credibility of the said witness.

18.Apart from this oral evidence, the plaintiff had also produced an original promissory note for perusal of this court, on which, the name of the executor was mentioned as "Eada

Satish". In Ex.B.1 which was a cancelled promissory note executed by the defendant also mentioned as Eada, but in the body of Ex.A.1 in Telugu, it was mentioned as Eadha, whereas, in Ex.B.1 in Telugu it was mentioned as Eada. When DW.1 was cross-examined on this aspect he stated that his surname is

Eada and the spelling of his surname is also correct as Eadha.

19.The executant of both Exs.A.1 and B.1 had put his signature as Eada Satish, the difference is in the body of the promissory note and it is not the case of the defendant that he is not the person that was referred in Ex.A.1. and the irregularity crept in is not material to go to the root of the case of the plaintiff. Even otherwise assuming for a moment Ex.A.1 was prepared by the plaintiff in collusion with Arogya Mary @

Divya, they would have mentioned the exact name that was mentioned in Ex.B.1 without there being any difference, but this minute difference should go in favour of the plaintiff to show that this transaction has nothing to do with the earlier transaction with Arogya Mary @ Divya and there is no consensus between the plaintiff and the said Arogya Mary @

Divya. Therefore, the plaintiff is able to discharge the initial evidential burden placed on him.

Sec.118 (a) of N. I Act reads as:

(a) of consideration —that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

20.Therefore, it is for the defendant to rebut the presumption under section 118-(a) of the Act which comes to the aid of the plaintiff. In a decision reported in 2002 (2) ALD 682 between D. Nagarathnamma And Ors. Vs Pulicherla

Krishna Reddy And Ors. Wherein it was observed that:

“Whenever the defendant admits the execution of the suit promissory note, the burden is on him to prove that the suit promissory note is not supported by consideration and the circumstances under which he executed the suit promissory note".

Another decision of the Hon’ble High Court of A.P reported in Appeal Suit No.1006/1999 between Siram

Srirama Murthy vs Meka Suryanarayanamma, wherein it was observed that :

“Sec.118 of the Act deals with the presumptions as to negotiable instruments. One such presumption is, that every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. This presumption is based upon a principle and is not a mere technical provision.

The principal incorporated being, inferring of a presumption of consideration in the case of a negotiable instrument. A full

Bench of the Rajasthan High Court in Heerachand v.Jeevraj (AIR 1959 Raj.1) held that presumption, therefore, as to consideration is the very ingredient of negotiability and in the case of negotiable instrument, the presumption as to consideration has to be made. A Full Bench of the Andhra

Pradesh High Court in G.Vasu v. Syed Yaseen Sifuddin Quadri (AIR 1987 Andhra Pradesh 139) while dealing with the words until the contrary is proved held that it was permissible for the

Court to look into the preponderance of the probabilities and the entire circumstances of the particular case".

21. It is also a settled legal proposition that the defendant cannot be compelled to adduce positive/direct evidence as to the non-existence of consideration, it is sufficient if the defendant is able to extract from the evidence adduced by the plaintiff and circumstances in which the present suit has been filed to make a prudent man believe that it is improbable for passing of the consideration, which is enough to hold that the defendant had discharged his onus of burden.

22. Keeping this legal position as a backdrop it has to be analyzed whether the defendant is able to rebut the evidence adduced by the plaintiff.

23.118-A of N. I Act comes to the aid of the plaintiff, but the evidential burden is fixed on the defendant to rebut the evidence adduced by the plaintiff, and to rebut the same the defendant got examined himself and DW.1 and further examined a 3rd party as DW.2, he is not acquainted with the suit transaction but was aware of the transaction between the plaintiff and the said Arogya Mary @ Divya and the settlement they reached, though he stated that the present promissory note is a rank forged one and the defendant had not borrowed the amount from the plaintiff, he failed to substantiate his version by showing the source of his knowledge because in his cross-examination he clearly stated that the defendant was not his friend but resides in the same street.

24.When he was not a friend of the defendant it cannot be presumed that the residents of the locality would be aware of the financial transactions of other residents. So, though the defendant is able to establish by virtue of Exs.B.1 and B.2 that there were some financial transactions between himself and A.

Meri, he failed to rebut the evidence of the plaintiff by showing some valid reasons or circumstances attached to the case that the plaintiff had forged the signature. When the defendant had failed to find any of the circumstances in his favour he ought to have at least sent the disputed signatures to seek the expert opinion as he had already filed Ex.B.1 bearing his signatures. In these circumstances, when the defendant had failed to point out any situation or circumstances in his favour, this court cannot hold that the defendant had discharged his evidential burden and through it back to the plaintiff, in other words the defendant failed to discharge his burden.

25.This Court has perused the judgment and decree of the Trial Court. The same is found on correct lines and this

Court does not find any reason for interference of this Court, to set aside the same. As such, the appellant/defendant is not entitled to any relief as sought. Accordingly. these points are answered against the appellant/defendant and in favour of the respondent/plaintiff.

26.Given the above findings, the appeal of the appellant/defendant fails and is liable to be dismissed.

Accordingly, this issue is answered.

POINT NO.2:

IN THE RESULT: The appeal is dismissed by confirming the judgment and decree passed by the learned

Addl. Senior Civil Judge, Kothagudem, dated 28.10.2019 in OS

No.226 of 2015. Both parties shall bear their own costs.

Dictated to the Stenographer Grade-III,

transcribed by him, corrected, and pronounced by me in the open court on this the 22nd day of April 2024.

I Additional District Judge Kothagudem

:: APPENDIX OF EVIDENCE::

-Nil-

I Additional District Judge Kothagudem

1 SC.(POCSO).No 178 of 2022

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR

EXPEDITIOUS DISPOSAL OF CASES OF RAPE AND

PROTECTION OF CHILDREN FROM SEXUAL

OFFENCES(POCSO) ACT, KOTHAGUDEM

FRIDAY, THIS THE 12th DAY OF APRIL, 2024

Present:DR. M.Shyam Sree, I Addl. Sessions Judge, Kothagudem FAC:Special Sessions Judge for Expeditious Disposal of Cases of Rape and Protection of Children from Sexual Offences (POCSO) Act, Kothagudem.

SC (POCSO) No.178 OF 2022

1.Name of the Complainant:State through the Police, Sub- Divisional Police officer, P.S. Kothagudem I Town

2.Name of the accused:A1. Maramreddy Raja Shekar Reddy, S/o. Kona Reddy, Age: 28 years,R/o.Vepalagadda, Sujathanagar.

A2. Kota Delip Kumar, S/o. Suresh, Age: 33 Years, Occu: VidyanagarColony, Chunchupally.

A3. Udumula Leela Madhava Reddy, S/o. Venkat Reddy, R/o. Vepalagadda, Sujatha Nagar.

3.Offence under Section :Under Sections 448, 354-A, 354- D, 506 of IPC, Sec 8 of the POCSO Act and sec3(2)(VA) of SC/ST Act

4.Crime Number and police:109/2022 stationKothagudem I Town 2 SC.(POCSO).No 178 of 2022

5.Plea of the accused:Pleaded not Guilty

6.The finding of the court:Found Not Guilty

7.Sentence of order: The accused Nos. 2 and 3 are found NOT GILTY for the offencespunishableunder Sections 448, 506 of IPC and Section 3(2)(va) of SC/ST Act, and accused No.1 is found NOT GUILTYfortheoffences punishable under sections 448, 354-A, 354-D, 506 of IPC, section 8 of the POCSO Act and section 3(2)(va)ofSC/STAct. Accordingly, the accused Nos. 1 to 3 are acquitted under Section 235 (1) Cr.P.C., for the said offences. The bail bonds of the accused shall stand canceled after the expiry of the appeal time.

The unmarked and invaluable property, if any, shall be destroyed after the expiry of the appeal time.

8.Prosecution conducted : Sri.R.Vijay Kumar, Additional byPublic Prosecutor, Kothagudem.

9.Defence conducted by: Sri L.V. Durga Rao, Advocate, Kothagudem, *** This Sessions case came up before me on 01.04.2024 for a final hearing; After hearing the arguments of the Special Public Prosecutor for the State and that of Sri L. V. Durga Rao, counsel 3 SC.(POCSO).No 178 of 2022

for the accused Nos. 1 to 3; upon perusing the material available

on record and having stood over for consideration till this day, this court delivered the following:

:: J U D G M E N T::

The Sub Inspector of Police, Kothagudem I Town laid a charge sheet against the accused in Cr. No.109/2022 for the offences punishable under sections 448, 354-A, 354-D, 506 of IPC,

Sec 8 of the POCSO Act, and sec3(2)(va) of SC/ST Act

2. The case of the prosecution as alleged in the charge sheet in brief is:

On 06.06.2022 at 18.00 hours, the complainant, who is the mother of the victim came to the police station and lodged a report stating that in the year 2004, her marriage was performed with one Balagam Sridhar, who was already a married person. In their marital life, they were blessed with a daughter who is now 14 years of age. After the marriage, a dispute arose with her husband due to personal reasons, for which her husband left her in 2015 and living with his first wife. Since then she has been living alone with her daughter. As she was living alone with her daughter, one Maram Raja Shekar Reddy developed intimacy with 4 SC.(POCSO).No 178 of 2022 her in 2016 by telling deceitful words that he would marry her and they were in live -in -relationship and had sexual intercourse with her. After 4 years live-in -relationship she asked him to marry her, on he knotted a thread in her neck before god's image on 24.04.2020 in the house. Knowing, this in his house, his mother and elder sister began to search for matches for him. Upon this, she informed their marriage matter to his elders. Since then, he had been saying that he did not want her, he wanted to marry another woman so that could get a dowry and maintain distance from her. When she questioned about spoiling her life, he abused her by taking caste name, madiga lanja, kulam thakkuvadana, neetho vundalante nee kuthurni naa dagara pandabettu. Upon which, she warned him to complain the matter to the police. On that, he requested to excuse him as he spoke in a drunken state and assured to change himself. Since then, he used to visit her house now and then. ; By developing a sore eye on her daughter, one month ago Raja Shekar Reddy misbehaved with her daughter 14 years old minor daughter by touching her private parts and sexually harassed her daughter. Her daughter informed her. Upon which, she questioned him. On that, he dared her to tell anybody 5 SC.(POCSO).No 178 of 2022 and came to her rented house in Babu Camp with two persons viz

Delip and Madhava Reddy and forced her to give a video clip with a smiling so saying that he did not misbehave with her daughter, else they would kill them and forcibly took the video accordingly.

Since then, he stopped coming to her house and threatened her of lodging a complaint to the police if she made calls to him. On that, she approached women's organizations out of fear.

On receipt of the complaint, the Sub-Inspector of Police (LW.16) registered a case in Cr. No.109/2022, Under Sections Under

Sections 448, 354-A, 354-D, 506 of IPC, Sec 8 of the POCSO Act and sec3(2)(va) of SC/ST Act and issued FIR. Examined and recorded the statement of the LW.1 under section 161 of Cr. PC.

During the investigation, he visited the scene of offence along with lW.3 and secured the presence of LW2 minor daughter of LW.1, he examined and got a recorded statement of LW2 under videography in the Govt. Tab through LW.3. After that forwarded the CD file to LW.17 the SDPO, Kothagudem, as the SC/St (POA)

Act Cases are being investigated by Dy. S.P.s concerned.

On his requisition, LW14 / II Addl. Junior Civil Judge,

Kothagudem cum II Addl. Judl. Magistrate of I Class, Kothagudem 6 SC.(POCSO).No 178 of 2022 recorded the statement of LW1 U/s. 164 of Cr.P.C. LW17 got recorded voice clippings available with LW1's mobile retrieved with the help of LW8 into a CD and obtained a Certificate. LW15 furnished the FSL report vide File NO. FAV/77.2022 dated 29-07- 2022. LW11 issued caste certificates of the LW.1 and 2. LW12 issued caste certificates of the accused NO.1 and 2. After completing his entire investigation and after collecting all the relevant documents, he filed a charge sheet against the accused.

3. Based on the report, cognizance was taken against the accused for the offences under Sections 448, 354-A, 354-D, 506 of

IPC, Sec 8 of the POCSO Act, and sec3(2)(va) of SC/ST Act

4.On the appearance of the accused is furnished with copies of documents as required U/sec.207 of the Code of Criminal

Procedure. The Hon'ble Judge found a prima facie case for the offence punishable under Sections 448, 354-A, 354-D, 506 of IPC,

Sec 8 of the POCSO Act, and sec3(2)(va) of SC/ST Act

5.On the appearance of the accused before the court, the learned Additional Public Prosecutor and the defence Counsel were 7 SC.(POCSO).No 178 of 2022 heard under section 226 of Cr. P.C. and considering the material on record, as per section 228 of Cr. P.C., Charges under Sections

Under Sections 448, 354-A, 354-D, 506 of IPC, Sec 8 of the POCSO

Act and sec3(2)(va) of SC/ST Act were framed, read over, and explained to the accused Nos. 1 to 3 for which he pleaded not guilty and claimed to be tried.

6.During the trial, the prosecution examined Pws.1 to 5, and Exs.P.1 to P.18 and MO.1 were exhibited.

7.After the closure of the prosecution evidence, when the accused is examined U/sec.313 of the Code of Criminal Procedure with reference to the incriminating material appearing against them in the evidence of prosecution witnesses, they deny the same. However, they did not choose to adduce any evidence on their behalf.

8.This court has heard the arguments of the learned

Additional Public Prosecutor and the learned counsel appearing for

the accused.

8 SC.(POCSO).No 178 of 2022

9.The points that arise for determination are, as follows:

1. “Whether the prosecution is able to establish his

case against the accused for the offence punishable under

Sections 448, 354-A, 354-D, 506 of IPC, Sec 8 of the POCSO

Act and sec3(2)(va) of SC/ST Actbeyond all reasonable

doubt?

2. To what Result?

P O I N T NO. 1 :

10.The charge framed against the accused is that he committed atrocity on scheduled caste persons by non-SC & ST caste persons against her as such charges under sections 448, 354-A, 354-D, 506 of IPC, Sec 8 of the POCSO Act and sec3(2)(va) of SC/ST Act. But the defence of the accused is a total denial of the prosecution's version. Even according to the prosecution except for the victim, there are no direct witnesses who had seen the occurrence of the offence.

11.P.W.1 /mother of the victim girl stated in her examination in chief that the accused had abused had abed her daughter over the phone, immediately in cross-examination she stated the dispute was between her and the accused but they did not harass 9 SC.(POCSO).No 178 of 2022 the victim. However, the crucial witness and the victim, in this case, is PW.2 who has not chosen to support the case, she deposed that the accused never harassed her sexually nor abused her and she is not aware of the dispute between her mother and the accused.

12. PW.3/Sd. Shaheena, S.I. of Police, supported the version of the prosecution case. She stated that on 07.06.2022, on the instructions of SHO. PS. Kothagudem I Town, she enquired with the victim girl as to the incident at her house. Then the victim stated her as in Ex.P.4. under the videography of women PC No. 3384.

While recording the statement, the victim and her mother were present.

13. PW.4/B. Sravan Kumar, a Police Constable supported the version of the prosecution case. He stated that, in the year June 2022, I Town Police had come to him and given him a mobile phone and requested him to extract the audio recordings from the said phone. Accordingly, he extracted the audio recordings from 10 SC.(POCSO).No 178 of 2022 the phone and made it into the C.D. and handed over the same to the I Town Police, Further, he also furnished a 65-B Certificate.

14. PW.5 / G. Venkateswara Babu deposed that on 06.06.2022 at 18:2022 at 18.00 hours, PW.1 had come to the police station and lodged a complaint. Based on that LW.16 registered a case in

Cr. NO. 109/2022, U/s. 498-A, 354, 354-A, 354-D, 506, 109 of IPC and Sec. 12 of POCSO Act and Sec. 3 (1) (r), (w), section 3 (2) (va) of Sc/St POA Act and issued FIR. On 06.06.2022 he took over the

C.D. file from LW.16. Later, he examined and recorded the statement of PW.1 at the police station. On the same day, he visited the scene of offence and observed the scene of offence, and drew the rough sketch in the presence of Lws.9 and 10. Later, he examined and recorded the statements of witnesses. On 06.06.2022 he got recorded the statement of the victim girl through PW.3 under the videography. He collected the study and conduct certificate of the victim girl from LW.7. Later, he got recorded the statements of Pws.1 and 2 under section 164 of

Cr.P.C. by the Magistrate / LW.17. Later, he got recorded the voice clippings of PW.1 and the accused NO.1 and retrieved with the 11 SC.(POCSO).No 178 of 2022 help of PW.4 and obtained certified under 65-B of I.E. Act and sent it to the FSL and received the FSL report. Later, he also collected the caste certificates of the complainant and the victim girl / Pws.1 and 2 from Tahsildar, Kothagudem / LW.11. He also collected the caste certificate of the accused Nos.1 and 3 from Tahsildar,

Sujathanagar / LW.12. He also collected the caste certificate of the accused No.2 from Tahsildar, Chunchupally. On 17.06.2022 at 12.00 hours, he arrested the accused NO.1 produced him before the court for his judicial remand, and served notices to the accused Nos. 2 and 3. After completion of his entire investigation and after collecting the relevant documents, he filed a charge sheet.

15.As seen from the above evidence the material witness

PW.2, the victim did not support the case of the prosecution. The prosecution could not bring any material on record the reason for the victim to give false testimony. The learned P.P. had cross- examined her, but nothing was elicited except denying their statements recorded by the police and the statement of the victim girl recorded by the Magistrate. As the material witness, PW.2 did 12 SC.(POCSO).No 178 of 2022 not support the case of the prosecution, the evidence of the remaining listed witnesses was rightly given up by the learned

Public Prosecutor.

16.The evidence of PW.2 does not connect the accused to the present crime and the evidence of the SI of police officer is only procedural. Even otherwise the victim stated that she stated

before her at the instructions of the elders. So, there is no

evidence to prove that the accused committed sexual harassment against her.

17.The prosecution failed to prove the guilt of the accused for the offence punishable under Sections 448, 354-A, 354-D, 506 of IPC, Sec 8 of the POCSO Act, and sec. 3(2)(va) of SC/ST Act beyond all reasonable doubt. Therefore, the accused is entitled to the benefit of the doubt and acquittal.

P O I N T NO. 2 :

In the result, The accused is found NOT GUILTY for the offences punishable under Sections 448, 354-A, 354-D, 506 of IPC, 13 SC.(POCSO).No 178 of 2022

Sec 8 of the POCSO Act, and sec3(2)(va) of SC/ST Act. Accordingly, the accused is acquitted under Section 235 (1) of Cr.P.C., for the said offences. The bail bonds of the accused shall stand canceled after the expiry of the appeal time.

The unmarked and invaluable property, if any, shall be destroyed after the expiry of the appeal time.

Typed to my dictation, corrected and pronounced by me in the open court on this the 12th day of April 2024.

FAC: Special Sessions Judge for Expeditious Disposal of cases of Rape and Protection of Children from Sexual Offences (POCSO) Act, Kothagudem

:: APPENDIX OF EVIDENCE::

WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION

P.W-1A. Saritha

P.W-2Victim

P.W-3Sd. Shaheena

P.W-4B. Sravan Kumar

P.W-5G. Venkateswara Babu 14 SC.(POCSO).No 178 of 2022

WITNESSES EXAMINED ON BEHALF OF THE DEFENCE

-Nil-

DOCUMENTS EXHIBITED ON BEHALF OF THE PROSECUTION

Ex.P-1Report

Ex.P-2Statement of the PW.1 under section 161 of Cr. P.C

Ex.P-3Signature of PW.2 under section 164 of Cr. P.C

Ex.P-4Statement of the PW.2 under section 161 Cr. P.C

Ex.P-5Statement of PW.2 under section 164 Cr.P.C.

Ex.P-665-B Certificate

Ex.P-7Petition

Ex.P-8First Information Report

Ex.P-9CDF

Ex.P-10Study and Conduct certificate of the victim girl

Ex.P-11Statement of the PW.1 under section 164 of Cr.P.C.

Ex.P-12FSL Report

Ex.P-13Caste Certificate of the PW.1

Ex.P-14Caste certificate of the PW.2.

Ex.P-15Caste certificate of the Accused NO.1

Ex.P-16Caste certificate of the Accused NO.2

DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENCE

-Nil- 15 SC.(POCSO).No 178 of 2022

MATERIAL OBJECTS EXHIBITED ON BEHALF OF THE

PROSECUTION

Mo.1Two C.Ds.

FAC: Special Sessions Judge for Expeditious Disposal of cases of Rape and Protection of Children from Sexual Offences (POCSO) Act, Kothagudem

1 SC.(POSCSO).No 18 of 2023

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR

EXPEDITIOUS DISPOSAL OF CASES OF RAPE AND

PROTECTION OF CHILDREN FROM SEXUAL

OFFENCES(POCSO) ACT, KOTHAGUDEM

MONDAY, THIS THE 26th DAY OF FEBRUARY, 2024

Present:Smt. M.Shyam Sree, I Addl. Sessions Judge, Kothagudem FAC:Special Sessions Judge for Expeditious Disposal of Cases of Rape and Protection of Children from Sexual Offences (POCSO) Act, Kothagudem.

SC (POCSO) No.18 OF 2023

1.Name of the Complainant:State through the Police, Sub- Divisional Police officer, P.S. Laxmidevipally

2.Name of the accused:Korra Venkat, S/o. Ramulu, Age: 20 years, Occu: Hamali work, R/o. Haliya Thanda, H/o. Vepalagadda G.P of Laxmidevipally Mandal.

3.Offence under Section :Under Sections 366.376(3) IPC and Sec 3 r/w 4 of the POCSO Act.

4.Crime Number and police:14/2020 stationLaxmidevipally

5.Plea of the accused:Pleaded not Guilty

6.The finding of the court:Found Not Guilty

7.Sentence of order:The accused is foundNOT GUILTY for the offences punishableunderSections 366.376(3) IPC and Sec 3 r/w 4 of the POCSO Act. Accordingly, the accused is acquitted under 2 SC.(POSCSO).No 18 of 2023

Section 235 (1) Cr.P.C., for the said offences. The bail bonds of the accused shall stand canceled after the expiry of the appeal time.

The unmarked and invaluable property, if any, shall be destroyed after the expiry of the appeal time.

8.Prosecution conducted : Sri.R.Vijay Kumar, Additional byPublic Prosecutor, Kothagudem.

9.Defence conducted by: Sri B.Madhava Rao, Advocate, Kothagudem, *** This Sessions case came up before me on 09.02.2024 for a final hearing; After hearing the arguments of the Special Public Prosecutor for the State and that of Sri B.Madhava rao counsel

for the accused; upon perusing the material available on record

and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The Sub Inspector of Police, Laxmidevipally laid a charge sheet against the accused in Cr.No. 14/2020 for the offences punishable under sections 366.376(3) IPC and Sec 3 r/w 4 of POCSO Act.

2. The case of the prosecution as alleged in the charge sheet in brief is:

3 SC.(POSCSO).No 18 of 2023

On 19.01.2023 at 19:30 hours the complainant, father of the victim came to the police station and lodged a report stating that Victim/LW.6 is a resident of Haliya Thanda and the accused also hails from the same village, and the accused followed the victim girl since a few years on the name of love and taken her into his confidence with his deceitful words and maintained the same. By believing his deceitful words the victim decided to marry him and with the behavior of her parents she thought that they might marry her marriage with another person and disclosed the same to the accused. On 16.01.2023 at 2330 hours the accused came to the water tank which is near the Lw.6 house and was taken away to Kothagudem Bus stand boarded the bus and went to Vijayawada, there the accused called his brother-in-law Banoth

Gatla and informed him, he came to Vijayawada his brother in law came to him and said that she is a minor girl and told that if they may there, then it will be a problem for him and took away her.

Later the accused and LW.6 both went to Miryalaguda and performed marriage at Budiyabapu temple on 17.01.2023, subsequently the accused went to the temple premises and took a room and stayed there as wife and husband and participated 4 SC.(POSCSO).No 18 of 2023 sexually one time, the accused and LW.6 stayed in the same area for 3 days.

On receipt of the complaint, the Sub-Inspector of Police (LW.18) registered a case in Cr. No.14/2023, Under Sections 363

IPC and issued FIR. During the investigation, LW.18 examined and recorded the statement of LW.1. Based on the victim's statement,

LW.19 altered the section of law Sec 366, 376(3) IPC, Sec 3 r/w 4 of

POCSO Act instead of Sec 363 IPC and issued express memo.

On his requisition, LW.7/WSI recorded the statement of the victim girl. LW.9/Headmaster issued study and conduct certificate of the victim girl. On 03.02.2023 at 1030 hours on reliable information, LW.21 along with staff apprehended the accused at his house in Haliya Thanda village, Laxmidevipally. After completing his entire investigation and after collecting all the relevant documents, he filed a charge sheet against the accused.

3. Based on the report, cognizance was taken against the accused for the offences under Sections 366.376(3) IPC and Sec 3 r/w 4 of the POCSO Act.

5 SC.(POSCSO).No 18 of 2023

4.On the appearance of the accused is furnished with copies of documents as required U/sec.207 of the Code of Criminal

Procedure. The Hon'ble Judge found a prima facie case for the offence punishable under Sections 366.376(3) IPC and Sec 3 r/w 4 of the POCSO Act.

5.On the appearance of the accused before the court, the learned Additional Public Prosecutor and the defence Counsel were heard under section 226 of Cr. P.C. and considering the material on record, as per section 228 of Cr. P.C., Charges under Sections 366.376(3) IPC and Sec 3 r/w 4 of the POCSO Act are framed, read over, and explained to the accused for which he pleaded not guilty and claimed to be tried.

6.On 03.08.2022, this case was transferred from I

Additional District and Sessions Court, Khammam as per the

proceedings of the Hon’ble Prl. District and Sessions Judge,

Khammam, in Dis No.1783.

7.During the trial, the prosecution examined Pws.1 to 3, and Exs.P.1 to P.4 were exhibited.

6 SC.(POSCSO).No 18 of 2023

8.After the closure of the prosecution evidence, when the accused is examined U/sec.313 of the Code of Criminal Procedure with reference to the incriminating material appearing against him in the evidence of prosecution witnesses, he denies the same.

However, he did not choose to adduce any evidence on his behalf.

9.This court has heard the arguments of the learned

Additional Public Prosecutor and the learned counsel appearing for

the accused.

10.The points that arise for determination are, as follows:

1.“Whether the prosecution is able to establish his case against the accused for the offence punishable under Sections 366.376(3) IPC and Sec 3 r/w 4 of the POCSO Act beyond all reasonable doubt?

2. To what Result?

P O I N T NO. 1 :

11.The charge framed against the accused is that he kidnapped and committed rape against her as such charges under sections 366.376(3) IPC and Sec 3 r/w 4 of the POCSO Act. But the defence of the accused is a total denial of the prosecution's 7 SC.(POSCSO).No 18 of 2023 version. Even according to the prosecution except for the victim, there are no direct witnesses who had seen the occurrence of the offence.

12. The crucial witness and the victim, in this case, is PW.3 who has not chosen to support the case, she deposed that the accused never kidnapped nor committed rape.

13. PW.1/N.Deva, who is the complainant in his chief examination

before the court supported the version of the prosecution case. He

stated that one day when he woke up at 4:00 A.M he found that his daughter was missing. He searched her for two days, but we could not find her. On the second day, he went to the police station and gave a report. He gave a report with the suspicion that the accused had previously also harassed her daughter. After three days his daughter returned home. When his wife asked her, she informed that at 11:30 PM the accused asked to come to the water tank, from there they went to the Kothagudem bus stand and went to Vijayawada to the relative's house of the accused. As the brother-in-law of the accused had questioned him, he 8 SC.(POSCSO).No 18 of 2023 immediately took her to Mirayalaguda, at Budiyabapu temple they married, took a room there, and participated in sexual intercourse without the consent of her daughter.

On coming to know that a case has been filed against him.

He brought her daughter and dropped her at the Kothagudem bus stand. Her daughter went to the police station and from there we took her to our house.

13. PW.2/N.Rukmini who is the complainant in her chief examination before the court supported the version of the prosecution case. She stated that after the Sankranthi festival, one day when he woke up at 4:00 A.M, she found that her daughter was missing. she searched for her for two days, but we could not find her. On the second day she went to the police station and gave a report. she gave a report with the suspicion that the accused had previously also harassed her daughter.

After three days her daughter returned home. When his wife asked her, she informed that at 11:30 PM the accused asked to come to the water tank, from there they went to the Kothagudem bus stand and went to Vijayawada to the relative's house of the 9 SC.(POSCSO).No 18 of 2023 accused. As the brother-in-law of the accused had questioned him, he immediately took her to Mirayalaguda, there at Budiyabapu temple they married and took a room there, and participated in sexual intercourse without the consent of her daughter. On coming to know that a case has been filed against him. She brought her daughter and dropped her at the Kothagudem bus stand. Her daughter went to the police station and from there they took her to their house.

14.The Sub Inspector of police/LW.7 is examined as PW.4 and she deposed against the accused and supported the case of the prosecution stating that the victim stated before her as in Ex.P.3 but the evidence of the victim reveals that she deposed the Sub

Inspector of police as per the instructions of the elders. Therefore, unless there is any evidence on the lines that these witnesses including the victim were won over by the court, the court cannot assume. In this case, there is no such evidence to conclude that the victim/witnesses were giving false testimony. Therefore, the sole evidence of the Sub Inspector of police cannot be held sufficient to prove the guilt of the accused.

10 SC.(POSCSO).No 18 of 2023

15. PW.5/A.Ramakanth, Inspector of police, deposed in his chief examination before the court supported the version of the prosecution case. He stated that on 25.01.2023 he took over the

CD file from LW.20. During the investigation on 27.01.2023 he sent the victim girl to the hospital for medical examination after her mensuration period. He has collected the medical examination report of the victim girl. He also collected the report from RFSL. He deputed LW.19 who visited the scene of offence and he prepared the CDF-II. He can identify his signature on CDF-Ii. He apprehended the accused at his house and sent him for medical examination and accordingly, he collected his examination report for potency test. He got recorded Sec 164 of Cr. P.C. statement of victim girl by LW.16. After completion of investigation and collecting the relevant documents, he filed the charge sheet.

16.As seen from the above evidence the material witness

PW.3, the victim did not support the case of the prosecution.

Although her parents stated against the accused, it is through her they came to know about the incident, so they are only hearsay witnesses but nothing more. The prosecution could not bring any material on record the reason for the victim to give false 11 SC.(POSCSO).No 18 of 2023 testimony. The learned P.P. had cross-examined her, but nothing was elicited except denying their statements recorded by the police and the statement of the victim girl recorded by the

Magistrate. As the material witness, PW.3 did not support the case

of the prosecution, the evidence of the remaining listed witnesses was rightly given up by the learned Public Prosecutor.

17.The evidence of PW.3 does not connect the accused to the present crime and the evidence of the WPC officer is only procedural. Even otherwise the victim stated that she stated

before her at the instructions of the elders. So, there is no

evidence to prove that the accused kidnapped or committed rape on her.

17.The prosecution failed to prove the guilt of the accused for the offence punishable under Sections 366.376(3) IPC and Sec 3 r/w 4 of the POCSO Act beyond all reasonable doubt. Therefore, the accused is entitled to the benefit of the doubt and acquittal.

P O I N T NO. 2 :

In the result, The accused is found NOT GUILTY for the offences punishable under Sections 366.376(3) IPC and Sec 3 r/w 4 12 SC.(POSCSO).No 18 of 2023 of the POCSO Act. Accordingly, the accused is acquitted under

Section 235 (1) of Cr.P.C., for the said offences.

The bail bonds of the accused shall stand canceled after the expiry of the appeal time.

The unmarked and invaluable property, if any, shall be destroyed after the expiry of the appeal time.

Typed to my dictation, corrected and pronounced by me in the open court on this the 26th day of February 2024.

FAC: Special Sessions Judge for Expeditious Disposal of cases of Rape and Protection of Children from Sexual Offences (POCSO) Act, Kothagudem

:: APPENDIX OF EVIDENCE::

WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION

P.W-1N.Deva P.W-2N.Rukmini P.W-3Victim

WITNESSES EXAMINED ON BEHALF OF THE DEFENCE

-Nil-

DOCUMENTS EXHIBITED ON BEHALF OF THE PROSECUTION

Ex.P-1Report

Ex.P-2Signature of the PW.2 under section 164 of Cr. P.C

Ex.P-3 Statement of PW.2 under section 161 of Cr. P.C 13 SC.(POSCSO).No 18 of 2023

Ex.P-4Statement of the PW.2 under section 164 Cr. P.C

Ex.P-5Medical examination report of the victim girl

Ex.P-6RFSL report

Ex.P-7CDF-II

Ex.P-8First Information report

Ex.P-9Crime Detail Form-I

Ex.P-10Potency test report of the accused

DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENCE

-Nil-

MATERIAL OBJECTS EXHIBITED ON BEHALF OF THE

PROSECUTION

-Nil-

FAC: Special Sessions Judge for Expeditious Disposal of cases of Rape and Protection of Children from Sexual Offences (POCSO) Act, Kothagudem

1 SC.(POCSO).No.124 of 2022

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR

EXPEDITIOUS DISPOSAL OF CASES OF RAPE AND

PROTECTION OF CHILDREN FROM SEXUAL

OFFENCES(POCSO) ACT, KOTHAGUDEM

FRIDAY, THIS THE 22nd DAY OF MARCH, 2024

Present:Dr. M.Shyam Sree, I Addl. Sessions Judge, Kothagudem FAC:Special Sessions Judge for Expeditious Disposal of Cases of Rape and Protection of Children from Sexual Offences (POCSO) Act, Kothagudem.

SC (POCSO) No.124 OF 2022

1.Name of the Complainant:State through the Police, Circle- Inspector of Police, P.S. Aswaraopeta

2.Name of the accused:A1. Vanama Venkanna Babu @ Venky@Vicky,S/o. Satyanarayana, Age: 23 years, Occu:Coolie,R/o. Naramvarigudemvillage, Aswaraopeta.

3.Offence under Section :Under Sections 366, 376 IPC, and Sec 4 of the POCSO Act against A1 and Section 17 of the POCSO Act against A2.

4.Crime Number and police:62/2022 stationAswaraopeta

5.Plea of the accused:Pleaded not Guilty

6.The finding of the court:Found Not Guilty

7.Sentence of order:The accused is foundNOT GUILTY for the offences punishable Under Sections 366, 2 SC.(POCSO).No.124 of 2022 376 IPC, and Sec 4 of the POCSO Act against A1 and Section 17 of the POCSO Act against A2. Accordingly, the accused is acquitted under Section 235 (1) Cr.P.C., for the said offences. The bail bonds of the accused shall stand canceled after the expiry of the appeal time.

The unmarked and invaluable property, if any, shall be destroyed after the expiry of the appeal time.

8.Prosecution conducted : Sri.R.Vijay Kumar, Additional byPublic Prosecutor, Kothagudem.

9.Defense conducted by: Sri K. Chinni Krishna, Advocate, Kothagudem, ***

This Sessions case came up before me on 13.03.2024 for a final hearing; After hearing the arguments of the Special Public Prosecutor for the State and that of Sri K. Chinni Krishna counsel

for the accused; upon perusing the material available on record

and having stood over for consideration till this day, this court delivered the following:

:: J U D G M E N T ::

The Circle Inspector of Police, Aswaraopeta laid a charge sheet against the accused in Cr. No.62/2022 for the offences punishable Under Sections 366, 376 IPC, and Sec 4 of the 3 SC.(POCSO).No.124 of 2022

POCSO Act against A1 and Section 17 of the POCSO Act against

A2.

2. The case of the prosecution as alleged in the charge sheet in brief is:

On 11.03.2022 at 20.00 hours, the complainant, who is the father of the victim came to the police station and lodged a report stating that his daughter was studying her 8th standard at

U.P.S. at Naramvarigudem and she used to go and come to school by walk day. On 10.03.2022 at 21.00 hrs, they all completed their dinner and he and his wife slept in the front hall his daughter slept in the room. Later in the night he woke up for drinking water and found his younger daughter was not in the house. Later he and his wife made the searches for his daughter, in and around the known areas, and enquired with the known persons, but in vain.

On enquiring, it was disclosed that one of his villagers

Venkannababu followed his daughter while she was on her way to school and house in the name of love and marriage. The complainant is expressing his suspicion that the said person is behind the kidnap of his minor daughter with his deceitful words 4 SC.(POCSO).No.124 of 2022

(ii) On receipt of the complaint, the Circle-Inspector of Police (LW.21) registered a case in Cr. No.62/2022, Under Sections 366, 376 IPC, and Sec 4 of the POCSO Act against A1 and Section 17 of the POCSO Act against A2 and issued FIR. During the investigation,

LW.20 recorded the statement of LW.1 in part – II CD in detail.

On his requisition, LW.20/HC recorded the statement of the

LW1 in Part-II CD in detail. On 12.03.2022 at about 08.00 hours

LW.20/HC of PS Aswaraopeta visited the scene of offence and secured the presence of LWs 11 and 12 as mediators and drafted

Crime detail form – I and later secured the witnesses, examined and recorded the statements of LWs 2 and 3 in Part – II CDs in detail. After completing his entire investigation and after collecting all the relevant documents, he filed a charge sheet against the accused.

3. Based on the report, cognizance was taken against the accused for the offences Under Sections 366, 376 IPC, and Sec 4 of the POCSO Act against A1 and Section 17 of the POCSO Act against A2.

5 SC.(POCSO).No.124 of 2022

4.On the appearance of the accused is furnished with copies of documents as required U/sec.207 of the Code of Criminal

Procedure. The Hon'ble Judge found a prima facie case for the offence punishable Under Sections 366, 376 IPC, and Sec 4 of the

POCSO Act against A1 and Section 17 of the POCSO Act against

A2.

5.On the appearance of the accused before the court, the learned Additional Public Prosecutor and the defence Counsel were heard under section 226 of Cr. P.C. and considering the material on record, as per section 228 of Cr. P.C., Charges Under Sections 366, 376 IPC, and Sec 4 of the POCSO Act against A1 and Section 17 of

POCSO Act against A2 are framed, read over, and explained to the accused for which he pleaded not guilty and claimed to be tried.

6.This case was transferred from I Additional District and

Sessions Court, Khammam as per the proceedings of the Hon’ble

Prl. District and Sessions Judge, Khammam to the I Additional

District and Sessions Court, Kothagudem and again transferred from I Additional Sessions Court, Kothagudem as per the 6 SC.(POCSO).No.124 of 2022 proceedings of the Hon’ble Prl. District and Sessions Judge,

Bhadradri Kothagudem vide order Dis No. 715, dated 21.04.2023.

7.During the trial, the prosecution examined Pws.1 to 6, and Exs.P.1 to P.13 were exhibited.

8.After the closure of the prosecution evidence, when the accused is examined U/sec.313 of the Code of Criminal Procedure with reference to the incriminating material appearing against him in the evidence of prosecution witnesses, he denies the same.

However, he did not choose to adduce any evidence on his behalf.

9.This court has heard the arguments of the learned

Additional Public Prosecutor and the learned counsel appearing for

the accused.

10.The points that arise for determination are, as follows:

1.“Whether the prosecution is able to establish his

case against the accused for the offence punishable Under

Sections 366, 376 IPC, and Sec 4 of the POCSO Act against

A1 and Section 17 of POCSO Act against A2 beyond all

reasonable doubt?

7 SC.(POCSO).No.124 of 2022

2. To what Result?

P O I N T NO. 1 :

11.The charge framed against the accused No.1 Under

Sections 366, 376 IPC, and Sec 4 of the POCSO Act and Section 17 of POCSO Act against A2 that they committed sexual harassment against her as such charges Under Sections 366, 376 IPC, and Sec 4 of the POCSO Act against A1 and Section 17 of POCSO Act against A2. But the defence of the accused Nos. 1 and 2 is a total denial of the prosecution's version. Even according to the prosecution except for the victim, there are no direct witnesses who had seen the occurrence of the offence.

12. The crucial witness and the victim, in this case, is PW.3 who has not chosen to support the case, she deposed that the accused never kidnapped nor committed rape. PW.1 and PW.2 are the mother and father of the victim / PW.3, they deposed in similar lines as to that of PW.3.

8 SC.(POCSO).No.124 of 2022

14. PW.4/Challa Aruna, SI of Police, stated that on 18.03.2022, on the instructions of SHO. P.S. Aswaraopeta went to the house of the victim girl and enquired as to the incident. Then the victim stated to him about the incident, the he recorded her statement under the videography of LW.7 While recording the statement, the victim and her mother were present.

15. PW.5/ S. Gopala Swamy, stated that at the request of the police he had taken the videograph while the victim was giving a statement to women S.I. at the house of the victim girl. Later, he made the video into C.D. and gave it to the police. He had also given a 65 _ B certificate.

16. PW.6 / B. Upendra Rao, C.I. of Police, Dornakal stated that on 11.03.2022 at 20.00 hours, PW.1 had come to the police station and lodged a complaint. Based on that LW20 registered a case in

Cr. No.62/2022, U/s. 363 of the IPC Act and issued FIR. Later,

LW.20 examined and recorded the statement of Pw.1 at the police station. On 12.03.2022, he visited the scene of offence and observed the scene of offence, and drew the rough sketch in the presence of Lws.11 and 12. Later he examined and recorded the statement of PW.2 and LW.3 Later, PW.4 took up the C.D. file for 9 SC.(POCSO).No.124 of 2022 further investigation. On 18.03.2022 the victim girl /PW.3 was brought to the police station by her parents and recorded her statement. She recorded the statement of the victim girl under the videography of PW.5. Based on her statement the section of the law was altered to Sec. 366, 376 of IPC and Sec 4 and 17 of the POCSO Act. On 18.03.2022 he took over the C.D. file from

PW.4. He sent the victim girl to the hospital for medical examination. He examined and recorded the statements of Pws.4 and 5 and LW.6. Later, he collected the study and conduct certificate of the victim girl from LW.9. On 23.03.2022 at 11.00 hours, he arrested the accused Nos. 1 and 2 and recorded their confession statements before the mediators and referred them to the Govt. Hospital for potency tests and later produced them

before the court for their judicial remand. He collected the

medical certificate of the victim girl from LW17 and he also collected the potency test report from LW.18. On 26.03.2022 he got recorded the statement under section 164 of Cr.P.C. Statement of the victim girl by LW.19. After completion of my entire investigation and after collecting the relevant documents, he filed a charge sheet.

10 SC.(POCSO).No.124 of 2022

15.As seen from the above evidence the material witness

PW.3, the victim did not support the case of the prosecution.

Although her parents stated against the accused, it is through her they came to know about the incident, so they are only hearsay witnesses but nothing more. The prosecution could not bring any material on record the reason for the victim to give false testimony. The learned P.P. had cross-examined her, but nothing was elicited except denying their statements recorded by the police and the statement of the victim girl recorded by the

Magistrate. As the material witness, PW.3 did not support the case

of the prosecution, the evidence of the remaining listed witnesses was rightly given up by the learned Public Prosecutor.

16.The evidence of PW.2 does not connect the accused to the present crime and the evidence of the SI of a police officer is only procedural. Even otherwise the victim stated that she stated

before her at the instructions of the elders. So, there is no

evidence to prove that the accused committed sexual harassment against her.

11 SC.(POCSO).No.124 of 2022

17.The prosecution failed to prove the guilt of the accused for the offence punishable under Sections 366 and 376 of IPC and

Sec. 4 and 17 of the POCSO Act beyond all reasonable doubt.

Therefore, the accused Nos. 1 and 2 are entitled to the benefit of the doubt and acquittal.

P O I N T NO. 2 :

In the result, The accused is found NOT GUILTY for the offences punishable under Sections 366, and 376 of IPC and Sec. 4 and 17 of the POCSO Act. Accordingly, the accused Nos. 1 and 2 are acquitted under Section 235 (1) of Cr.P.C., for the said offences.

The bail bonds of the accused shall stand canceled after the expiry of the appeal time.

The unmarked and invaluable property, if any, shall be destroyed after the expiry of the appeal time.

Typed to my dictation, corrected and pronounced by me in the open court on this the 22nd day of March 2024.

FAC: Special Sessions Judge for Expeditious Disposal of cases of Rape and Protection of Children from Sexual Offences (POCSO) Act, Kothagudem 12 SC.(POCSO).No.124 of 2022

:: APPENDIX OF EVIDENCE::

WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION

P.W-1M. Rangarao P.W-2M. Nagamani P.W-3Victim P.W-1Ch. Arun P.W-2S. Gopala Swamy P.W-3B. Upendra Rao

WITNESSES EXAMINED ON BEHALF OF THE DEFENCE

-Nil-

DOCUMENTS EXHIBITED ON BEHALF OF THE PROSECUTION

Ex.P-1Signature of the PW.1 on the complaint

Ex.P-2Statement of the PW.1 under section 161 of Cr. P.C

Ex.P-3Statement of PW.2 under section 161 of Cr. P.C

Ex.P-4Statement of the victim

Ex.P-565 – B Certificate

Ex.P-6Petition

Ex.P-7First Information Report

Ex.P-8CDF

Ex.P.9Section alteration Memo

Ex.P.10Study and Conduct certificate of the victim girl

Ex.P.11Medical Report

Ex.P.12Potency test report

Ex.P.13Statement of the Victim girl U/s. 164 of Cr.P.C.

13 SC.(POCSO).No.124 of 2022

DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENCE

-Nil-

MATERIAL OBJECTS EXHIBITED ON BEHALF OF THE

PROSECUTION

-Nil-

FAC: Special Sessions Judge for Expeditious Disposal of cases of Rape and Protection of Children from Sexual Offences (POCSO) Act, Kothagudem