M. Srinivasulu Reddy

1

IN THE COURT OF THE I ADDL. SESSIONS JUDGE :: GUNTUR

Present: Sri S. Surendra Babu Reddy, B.Com.,M.L.,

Sessions Judge, Guntur

FAC I Additional Sessions Judge, Guntur

Thursday, this the 29th day of March, 2012

SESSIONS CASE No.14 of 2011 (NDPS Act)

in P.R.No.389 of 2010-2011 of Proh. & Excise Station, Macherla

Between: -

The State: Proh. & Excise Inspector, Macherla. …Complainant.

And

Dodda Ramana, W/o Narayana, 27 yrs, Yadava, R/o Rajaka Colony, Adigoppula Durgi Mandal.… Accused.

This case came up on 27.03.2012 for final hearing before me, in the presence of Additional Public Prosecutor for the State, Sri S. A. Sharief, Advocate

for Accused; and upon perusing the material on record, and after hearing both

sides and having stood over till this day for consideration, this Court delivered the following: -

J U D G M E N T

As a result of investigation in P.R.No.389/2010-2011 of Proh. & Excise

Station, Macherla, the Proh. & Excise Inspector, Macherla laid charge sheet against the Accused, whereupon, cognizance is taken for the offence U/Sec.8(c) punishable U/Sec.20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substance Act, 1985 against the Accused.

2.The case alleged against the Accused in brief is as follows:

On 8.3.2011 at about 2:25PM, PW2 C. Madhu Babu, Proh. & Excise

Inspector, Enforcement Wing, Guntur in the presence of panchayatdars PW1 SH.

Dattatreyulu, Village Revenue Officer, Adigoppula village and Shaik Nabi Saheb,

Village Servant, Adigoppula (LW2) apprehended the Accused while she was coming from Oppicherla village towards Adigoppula village carrying a white plastic bag on her head. On suspicion he searched the bag which she was carrying on her head and found that there was dry ganja leaves, seeds, flower tops and stems weighing 3.9 Kgs. PW2 drew 100gms out of it as sample MO1, packed, sealed and affixed identity slips containing the signatures of 2 panchayatdars. He also seized remaining ganja in the bag, packed, sealed it and affixed identity slips containing the signatures of panchayatdars. The arrest, search and seizure proceedings were reduced into writing as Ex.P1 and the same was attested by the said panchayatdars. A copy of it was served to the accused and she acknowledge the receipt of the same and at 7PM, PW2 handedover the

Accused, property, sample and Ex.P1 to K. Bala Subba Rao Sentry, Proh. &

Excise Station Macherla. On 8.3.2011 PW3 V. Venkateswara Rao, Proh. & Excise

Sub Inspector, Macherla registered Ex.P1 as Ex.P2 FIR in P.R.No.389/2010-2011.

PW3 filed letter of advice and got the samples forwarded to GRPL for analysis.

GRPL analysed the samples and issued Ex.P4 report opining that the samples analyzed are ganja. The Inspector of Police conducted further investigation and laid charge sheet.

3.Copies of documents on which the prosecution intends to rely on were furnished to the Accused.

4.Upon hearing the learned Addl. Public Prosecutor and the counsel

for the Accused and considering the material on record, charge for the offence

U/Sec.8(c) punishable U/Sec.20(b)(ii)(B) of Narcotic Drugs and Psychotropic

Substances Act, 1985 against Accused is framed, readover and explained to her in Telugu. She pleaded not guilty and claimed to be tried.

5.The prosecution to prove its case, examined PWs 1 to 3 and marked Ex.P1 to Ex.P7 and MOs 1 to 3. After the closure of the prosecution evidence, Accused is examined U/Sec.313 of Cr.P.C explaining the incriminating evidence appearing against her. She generally denied the same as false. No defence witness was examined on her behalf.

6.Arguments of both sides heard.

7.The point that arose for consideration is:

Whether the prosecution proved beyond reasonable doubt that on 08-03-2011 at about 02:30PM, Accused was found in possession of 3 3.9Kgs of ganja on the way from Oppicherla village to Adigoppula village and thereby committed an offence U/Sec.8(c) punishable u/sec.20(b)(ii)(B) of Narcotic Drugs and psychotropic Substances

Act, 1985?

8.POINT:The prosecution to prove the charge levelled against the Accused examined PW2 C. Madhu Babu, Proh. & Excise Inspector,

Enforcement Wing, Guntur who according to the prosecution detected the offence, apprehended the accused, searched the bag in her possession and found 3.9 Kgs of ganja in it and also PW1 SH. Dattatreyulu in whose presence according to the prosecution PW2 conducted the said proceedings covered by

Ex.P1 and also PW3 V. Venkateswara Rao, Proh. & Excise Sub Inspector,

Macherla who according to the prosecution conducted further investigation and filed charge sheet.

9.The evidence of PW2 is to the effect that on 8.3.2011 at 1PM while conducting raids in Piduguralla, he received information about transporation of ganja from Oppicherla village to Adigoppula village and informed the same to

Asst. Commissioner Guntur and on his instructions he went to Durgi Mandal

Office, collected panchayatdars PW1 and Shaik Nabi Saheb village servant and while proceeding towards Adigoppula village at about 2:25PM he saw the

Accused coming from opposite direction from carrying on white plastic bag on her head, ½ KM away from Adigoppula village, and that she was coming from

Oppicherla village. His further evidence is that on suspicion he stopped her and searched the bag in her possession in the presence of the said panchayatdars and found dry ganja leaves, seeds, flower tops and stems weighing 3.9 Kgs in it, that he took 100 gms out of it as sample (MO1), packed, sealed and affixed identity slips containing the signatures of the panchayatdars, and that he sealed and seized the remaining ganja in the plastic bag and affixed identity slips. His further evidence is to the effect that he got Ex.P1 panchanama drafted, attested 4 by panchayatdars and himself, that he supplied a copy of it to the accused and she affixed her thumb impression and acknowledged the receipt of the same.

His further evidence is that, from there he went to Macherla Excise station and handed over the Accused, property, MO1 sample and Ex.P1 to Sentry.

`10.The evidence of PW1 is to the effect that on 8.3.2011 at 2PM, Asst.

Commissioner, Proh. & Excise Enforcement wing, Guntur came to Tahsildar office, Durgi mandal and on his request he and Shaik Nabi Saheb accompanied him to Adigoppula village, that at about 2:30PM before reaching Adigoppula village at a distance of 1KM from Adigioppula village, Excise police stopped the accused and searched the bag in her possession and found that there was 3.9

Kgs of ganja leaves, seeds in it and excise officials took 100 gms out of it as sample (M.O.1), sealed it and affixed the slip containing his signature and the signature of the village servant to it. He also deposed that he seized the white plastic bag and affixed panch slips containing their signatures and then Ex.P1 panchanama was drafted and he and Nabi Saheb signed in it and that they supplied copy of it to the Accused and obtained her thumb impression.

11.The evidence of PW3 is to the effect that he received Ex.P1, registered Ex.P1 as Ex.P2 FIR on 8.3.2011 at 8:30PM, that he filed letter of advise covered by Ex.P3 got forwarded the samples to Government Regional

Proh. & Excise laboratory for analysis and that GRPL issued Ex.P4 report opining that the sample analysed is ganja, and that he also deposed that the inspector

Proh. & Excise conducted inventory in the presence of Tahsildar, Macherla on 21.06.2011 covered by Ex.P5 proceedings and also has drawn representative samples in the presence of Judicial Magistrate of First Class, Macherla covered by

Ex.P6 proceedings and then Ex.P7 photographs were also taken and that MOs 2 and 3 are the representative samples.

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12.The learned Addl. Public Prosecutor argued that there is no reason for PWs 1, 2 and 3 to foist a false case against the Accused and to give false evidence. They are all public servants, that they won't go to the extent of foisting a false case against a woman. It is further argued that their evidence is sufficient to prove the charge levelled against the accused.

13.On the other hand, the learned counsel for the Accused argued that the evidence of PW1 that on the request of Asst. Commissioner, Proh. &

Excise Enforcement wing, Guntur he and Shaik Nabi Saheb followed him and he conducted the alleged search and seizure is contradictory and against to the case of prosecution and the evidence of PW2 that PW2 conducted this raid, and that according to PW1, accused was apprehended even before reaching Adigoppula village at a distance of 1 KM and where as evidence of PW2 is to the effect that he apprehended accused while accused was proceeding to Adigoppula from

Oppicherla village. He also further argued that admittedly PW2 did not comply with the mandatory requirements of Sec.42 of N.D.P.S Act, 1985 and hence the entire proceedings are vitiated. In support of his contention, he placed reliance on the decision reported in “Karnal Singh Vs. State of Haryana” [2009 Cri.L.J 4299]. He further argued that PW2 handed over the accused, property and

Ex.P1 to the Sentry of Macherla police station also raises any amount of doubt on the case of the prosecution, since Sentry is not the Station House Officer and also there are no endorsements made by sentry on Ex.P1 and Ex.P2 to the effect that the same were handed over to the sentry. He submitted that the accused is innocent and that she is entitled for benefit of doubt. He also further argued that simply because PWs 1 to 3 are public servants, there is no presumption that whatever they deposed would be true. He further argued that PW2 and 3 and naturally interested in securing conviction since they claim that the case is detected and investigated by them. He also further argued that PW1 is a 6 government servant, and has to stick on to the version in Ex.P1in the interest of his employment. He therefore argued that the evidence of PWs 1 to 3 which is filled with number of suspicious circumstances cannot be believed.

14.As rightly contended by the learned Addl. Public Prosecutor PWs 1 to 3 may not have any personal interest in foisting a false case against the accused and in giving false evidence. But certainly PWs 2 and 3 who according to the case of prosecution have detected and investigated the case are naturally interested in securing conviction since the same will add luster to their career.

Similarly PW1 since signatory to Ex.P1 has to stick on to the version in it, in the interest of his employment. Therefore it is just and necessary to scrutinize the evidence of PWs 1 to 3 meticulously to arrive at the truth. This is best done by seeing whether PWs 2 and 3 have complied with the mandatory requirements of

N.D.P.S. Act 1985 and by observing whether there are any inherent and apparent circumstances which throws doubt on their testimony.

15.The striking contradiction and inconsistency in the evidence of PWs 1 and 2, which remained unexplained, is that according to PW1 Assistant

Commissioner, Proh. & Excise, Enforcement wing, Guntur requested him to follow them to act as panchayatdars, whereas, evidence of PW2 is to the effect that he requested PW1 and another to act as panchayatdars and he himself conducted the alleged search and seizure. His evidence also show that the Asst.

Commissioner of Proh. & Excise was not present and did not participate in this raid. PW1 is not an illiterate person and he is the Village Revenue Officer of

Adigoppula village. It is not the case of the prosecution that he cannot distinguish between the ranks of the Asst. Commissioner and Inspector, Proh. &

Excise. Since he is a Village Revenue Officer, one can expect that he know the distinction between their ranks. On the other hand his evidence is very specific that the Asst. Commissioner, Proh. & Excise Enforcement wing, Guntur went to 7 him and requested him to act as panchayatdar and he and Shaik Nabi Saheb followed him and his staff and witnessed the proceedings covered by Ex.P1.

This material inconsistency in the evidence of PWs 1 and 2 remained unexplained. Had the things had happened as deposed by PW1 and PW2 and alleged by the prosecution there is no possibility for the occurrence of this kind of material inconsistency in the evidence of PWs 1 and 2. Therefore this circumstance raises any amount of doubt as to the truth or otherwise of the alleged search and seizure and the manner of conducting search and seizure deposed by PWs 1 and 2 and alleged by the prosecution.

16.Now, coming to the another circumstance according to PW2 he handed over the accused, property and Ex.P1 to the Sentry of Proh. & Excise station, Macherla. He himself and PW3 admitted that the sentry is not the

Station House Officer of Macherla police station. There were also no endorsements on Ex.P1 and Ex.P2 showing that the sentry has received Ex.P1, property and the accused from PW2. Therefore this circumstance also raises doubt about the trustworthiness of the evidence of PWs 2 and 3 and the arrest, search and seizure alleged to have been conducted by PW2 in the presence of

PW1.

17.Now coming to the compliance of the requirements of Sec.42 which requires that whenever any officer empowered to arrest, search and seizure receives any information he shall reduce the same into writing, and if had proceed with the search and seizure without obtaining a warrant has to record the reasons for proceeding without obtaining warrant and shall also record grounds for his believe Under Subsection (1) to proceed with the search without obtaining a search warrant and shall send a copy of it to his immediate official superior within 72 hours. The Supreme Court of India laidown the scope, the procedure to be followed and the consequences of non compliance of sub 8

Section (1) and (2) of Sec.42 in “Karnal Singh Vs. State of Haryana” [2009

Cri.L.J 4299] as follows:

“In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior,

before proceeding to take action in terms of clauses (a) to

(d) of section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior .

(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

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(d) While total non-compliance of requirements of sub- sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section

42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001 (Para 17).

18.Therefore the Supreme Court in this decision held that the compliance of Sub Section (1) and (2) of Sec.42 in regard to writing down the information received and sending copy of it to the superior officer, shall normally proceed the search and seizure, bu in special circumstance this can be done after search and seizure. The Supreme Court also further held that the total non compliance is impermissible while delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Sec.42.

19.The evidence of PW2 is to the effect that at 1PM, while conducting the raids in Piduguralla he received the information of transportation of ganja and pursuant to the same he conducted the alleged search and seizure. In cross examination he admitted that he did not reduced the information received by 10 him into writing. He also admitted that he did not record the reasons to proceed with search and seizure without obtaining warrant from the Magistrate. He also stated that he did not record the reasons for proceeding with search and seizure without obtaining warrant at the time of apprehension of the accused or thereafter. Therefore he did not comply with the requirements of Sub section (1) and Sec.42 either before, during or after completion of the alleged search and seizure in this case. Further he states that he sent a report to the Asst.

Commissioner on the next day morning. Bu he did not file a copy of it in the court. He admitted that he did not file the acknowledgment showing the receipt of the said report by the Asst. Commissioner, showing that he sent a report and the Asst. Commissioner received it. Therefore PW2 admittedly did not comply with the requirements of Subsection (1) and (2) of Sec.42 of N.D.P.S. Act, 1985.

Therefore since it is the case of total non compliance of Sub Section (1) and (2) of Sec.421 of N.D.P.S Act, it shall be held that it is a case of clear violation of

Sec.42 of the Act. Therefore in the circumstances, following the decision of the supreme court in the above said decision it shall be held that the non compliance of the mandatory requirements of Sec.42 renders the alleged search and seizure by PW2 is vitiated and hence entitles the accused for benefit of doubt.

20.It is the cardinal principle of Jurisprudence that where there is suspicion on the case of the prosecution and its witnesses, the same shall ennure to the benefit of the Accused. Therefore in the circumstances it is neither safe nor desirable to place implicit reliance on the evidence of PWs 1 to 3 and Ex.P1 since the same are shrouded with a cloud of suspicion, which the prosecution is unable to dispel, apart from the fact that the proceedings are vitiated for clear and total non compliance of Sec.42 of N.D.P.S. Act. Thus it shall be held that these circumstances force the court to extend benefit of doubt to the accused by holding that the prosecution failed to prove beyond reasonable doubt that the 11 accused on 08.03.2011 at 2:30PM, was found in possession of 3.9 Kgs of ganja, and thereby committed an offence U/Sec.8(c) punishable U/Sec.20(b)(ii)(B) of

N.D.P.S Act, 1985.

21.In the result, the Accused is found not guilty for the offence

U/Sec.8(c) punishable U/Sec.20(b)(ii)(B) of N.D.P.S. Act 1985 and she is acquitted U/Sec.235(1) of Cr.P.C. The bail bonds of Accused shall stand cancelled. MOs 1 to 3 and unmarked property if any, shall be delivered to the concerned Proh. & Excise officials for disposal according to law under intimation to court after expiry of appeal time.

Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me in open Court on this the 29th day of March, 2012.

Sd/- S. Surendra Babu Reddy

SESSIONS JUDGE

FAC I ADDL. SESSIONS JUDGE

GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW1: SH. Dattatreyulu.None.

PW2: C. Madhu Babu.

PW3: V. Venkateswara Rao.

DOCUMENTS MARKED

FOR PROSECUTION: EX.P-1: Mediator report dt.8.3.11 at 3:00PM.

EX.P-2: FIR in P.R.No.389/2010-2011 of Proh. & Excise, Macherla.

Ex.P-3: Copy of letter of advice.

Ex.P-4: Analysis report.

Ex.P-5: Inventory Proceedings.

Ex.P-6: Letter of learned Magistrate dt.8.7.2011.

EX.P-7: Four photos with CD.

FOR DEFENCE:Nil.

M.Os. MARKED

MO1: Sample packet of 100 gms

MO2: Sample packet

MO3: Sample packet

Sd/- S. Surendra Babu Reddy

SESSIONS JUDGE

FAC I ADDL. SESSIONS JUDGE

GUNTUR.

12

1

IN THE COURT OF II ADDL DISTRICT & SESSIONS JUDGE: GUNTUR

Present: - Sri M. Sreenivasulu Reddy, B.Com, B.L., II Additional District & Sessions Judge, Guntur Wednesday, the 31st day of OCTOBER, 2012

Criminal Appeal No:398/2011

Between:

Konda Mohan Babu ... Appellant/Accused

and

The State: Station House Officer, Narasaraopet Town P.S., Guntur District, rep. By Public Prosecutor,

Guntur. ... Respondent/Complainant.

This appeal is coming on 29-10-2012 before me for hearing in the presence of Sri G. Santha Kumar, Advocate for the Appellant/Accused and of the Additional Public Prosecutor for the State, upon hearing the counsel and on perusing the material on record, this court delivered the following :-

J U D G M E N T

The present appeal is filed by the accused in C.C.No.603/2010 on the file of the Additional Junior Civil Judge, Mangalagiri. The appellant is convicted for the offence under Section 498-A I.P.C. and he is sentenced to undergo R.I. for two years and also to pay a fine of Rs.5000/- in default simple imprisonment for three months.

02.Aggrieved by the same, the present appeal is preferred by the appellant against the conviction made against him under Section 498-A I.P.C.

03.For the sake of convenience, the appellant will be described as accused as in the trial court.

04.In C.C.603/2010 the accused was charge sheeted by the Sub Inspector of Police, Narasaraopet Police Station for the offences under Section 498-A I.P.C. The learned Additional Junior

Civil Judge, Mangalagiri after full trial convicted the accused for

the said offence.

05.The brief facts of the prosecution case is that: On 21-07-2008 the marriage of P.W.1-Balijepalli Sudha Swapna Prasanna was performed with the accused in Pamulapadu village. At the time of marriage, parents of PW.1 gave cash of Rs.1,50,000/-, one gold ring and some house hold articles as dowry to the accused and after the marriage, P.W.1 was sent to the accused to lead marital life. The accused from the beginning suspected the character of P.W.1 and began to harass P.W.1 and used to beat her by asking to go and get two lakhs of additional dowry from her parents as the dowry at the time of marriage is too less. Finally the accused beat P.W.1 and 2 necked her out from the house with a warning that he could not allow until P.W.1 fulfill his desire. Though the mediators tried to settle the issue but in vain. On the report given by P.W.1, a case in Crime No.257/2009 under Section 498-A I.P.C. was registered and after completion of investigation, charge sheet was filed making the accused liable for the offence under Section 498-A I.P.C.

06.Before the trial court, the prosecution examined P.Ws.1 to 3 and marked Exs.P1 to P3. Ex.D1 is marked. The learned Additional Junior Civil Judge, Mangalagiri after full trial, convicted the accused for the offence under Section 498-A I.P.C.

07.Aggrieved by the conviction and sentence of the learned Additional Junior Civil Judge, Mangalagiri against him for the offence under Section 498-A I.P.C., the present appeal is preferred contending that the lower court failed to appreciate the evidence in proper perspective. The lower court went wrong in appreciating the evidence of PW.1 that the inconsistence version of demanding the amount whether it is Rs.1,00,000/- or Rs.2,00,000/- by the appellant. The lower court failed to see that the accused filed an application for restitution of conjugal rights

before the Family Court in I.D.O.P.No.52/2009 and the same was

allowed and six months after filing of I.D.O.P.No.52/2009, P.W.1 gave Ex.P1-report to the police. The lower court failed to see that P.W.1 did not join the accused to lead matrimonial life as per the order of the Family Court, Guntur. The lower court went wrong in appreciating the evidence of P.W.1 and P.W.2 that P.W.1 had not deposed any specific event of alleged harassment of additional dowry. The lower court erroneously appreciated the evidence of P.W.1 that except omissions and allegations there is no material evidence placed so far the lower court with regard to the cruelty or harassment. The lower court failed to consider in appreciating Ex.D1 marked during evidence of P.W.2. The lower court failed to see that none of the independent witnesses were examined. The lower court failed to see that there is no corroboration of Ex.P2 and Ex.P3 as there is no jurisdiction within 1st Additional Junior

Civil Judge's Court, Narasaraopet. The lower court failed to

observe the findings by the Senior Civil Judge, Guntur in Tr.W.O.P.No.1087/2010. The entire judgment of lower court is imaginary and finally prays to allow the appeal setting aside the conviction and sentence passed against the appellants.

08. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor.

09.Now the points for determination are: 1Whether the prosecution proved the guilt of the accused for the charge under Section 498-A I.P.C. beyond reasonable doubt or not ? 2Whether the judgment of the trial court in respect of conviction of accused under Section 498-A I.P.C. is erroneous and require interference or not? 3To what relief? POINT No.1:

10.To succeed the case, the prosecution has to prove and satisfy the ingredients of offence under Section 498-A I.P.C.

3 by producing cogent evidence. Once the ingredients of offence under Section 498-A I.P.C. is perused: “498-A. Husband or relative of husband of a woman subjecting her to cruelty:- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation:- For the purposes of this section, "cruelty" means:-

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

11. In the backdrop of above provision of law, now the evidence of the witnesses available on record has to be scrutinized to find out how far the prosecution had succeeded in proving the guilt of accused for the charge under Section 498-A I.P.C.

12. A perusal of the record, the prosecution examined P.Ws.1 to 3 and marked Exs.P1 to P3. P.W.1 is the defacto- complainant. It is her evidence that on 21-7-2008 her marriage with the accused was performed and at that time, her parents gave cash of Rs.1,50,000/- and gold ornaments and household articles to the accused towards dowry. Later, she joined with her husband to lead matrimonial life at Pamulapadu village. Since from the date of joining with him, her husband used to suspect her fidelity and beat her. He never used to allow her to come out of the house. He used to harass her by stating that she being an educated, she had some friends and further used to insist her to say their names. Her husband used to say that the dowry amount which was given by them was very less and further used to insist her to bring cash of Rs.1,00,000/- as additional dowry from her parents. She used to inform to her parents but they used to express their inability to meet the demand of the accused. She informed the same to accused for which he stated to her that she was having illegal intimacy with others and he insisted her to bring cash of Rs.2,00,000/- from her parents. Though the matter was tried to be settled through mediators, but the accused did not heed their words. On 29-9-2008 he was necked out of the house of the accused by stating that he would not allow her into the house unless she would bring an amount of Rs.2,00,000/- from her parents. Then, she gave report to police under Ex.P1.

13.It is the evidence of P.W.2-M. Abraham who is father of P.W.1. His evidence is regarding the performing marriage of his daughter with accused and giving cash. He further deposed 4 that after marriage, his daughter joined the accused to lead matrimonial life at Pamulapadu village. His daughter used to inform him that the accused used to harass her physically and mentally by demanding her to bring additional dowry of Rs.2,00,000/- from them. Though they went to the accused and stated their inability to meet his demand but he did not heed their words. In the month of September, P.W.1 came to their house and stated that she was having fear at the accused and she was subjected to cruelty by the accused by suspecting her fidelity. Though they tried to settle the matter through the elders, but in vain. Later, her daughter gave a report to police.

14.P.W.3 is the Investigating Officer. His evidence is with regard to his registering F.I.R., conducting investigation and on verification of his investigation, filing of charge sheet by Sub Inspector of Police.

15.P.W.1 is the victim and defacto-complainant and is admittedly an educated woman and she studied M.A.,B.Ed., and her marriage with accused took place on 21-7-2008 at Pamulapadu village. It is the specific case of P.W.1 as per her evidence “..... on 29-9-2008 I was necked out of the house of the accused by stating that he would not allow me into the house unless I would bring an amount of Rs.2,00,000/- from my parents. Then, I gave a report to the police i.e. Ex.P1.” Thus, according to P.W.1, she hardly lived two months and eight days and she gave the police report admittedly as per the endorsement on Ex.P1 on 10-8-2009. So, after she was driven out from the house of the accused, she waited for a period of nearly 11 months for presenting the report to the police. It is the evidence of P.W.1 that the accused demanded Rs.2,00,000/- as additional dowry. But a perusal of Ex.P1 reveals that the accused suspected the character of P.W.1 and used to beat her and he demanded Rs.1,00,000/- only as additional dowry at the first instance. Subsequently, the accused according to P.W.1 demanded Rs.2,00,000/- as additional dowry. It is an admitted fact during the cross examination of P.W.1 “It is true to say that my husband filed a petition before the Hon'ble Family Court for restitution of conjugal rights and the said petition was allowed by the court. Since I was having fear from the accused, I did not join with him”. Thus, the competent Civil Court i.e. the Family Court thoroughly enquired the petition for restitution of conjugal rights filed by the accused and allowed that petition and directed the defacto-complainant i.e. P.W.1 to join the company of A1. It means that the civil court satisfied that P.W.1 deserted her husband without sufficient reason. In view of that circumstance and in view of the long delay of giving Ex.P1 report to the police after nearly 11 months after she was driven out by the accused from his house, there is any amount of doubt on the case of the prosecution. P.W.1 is an educated woman and she lived only two months in the company of the accused. The evidence of P.W.2-M. Abraham, the father of P.W.1 is that his daughter used to inform him that the accused used to demand her additional dowry of Rs.2,00,000/-. He did not speak that the accused demanded P.W.2 for any additional dowry. He also stated that in the month of September P.W.1 came to his house and stated that 5 she was having fear at the accused and she was subjected to cruelty by the accused by suspecting her fidelity. Thus, the evidence of P.W.2 is only hearsay evidence and absolutely except the own self serving evidence of P.W.1, there is no other evidence supporting the case of P.W.1 with regard to the cruelty. The evidence of P.W.3 is only with regard to his investigation of this case. Thus, except the evidence of P.W.1, there is no other evidence to prove the cruelty against the accused. In view of the stay of P.W.1 in the house of accused being only hardly two months and eight days and the huge delay in giving the report of Ex.P1 to the police after she was driven out by the accused, throws any amount of doubt on the case of the prosecution. Apart from that as admitted by P.W.1, the competent court namely the Family Court, allowed the petition for restitution of conjugal rights filed by the accused and directed the P.W.1 to join the company of the accused. As such, the prosecution miserably failed to prove the guilt of the accused for the charge under Section 498-A I.P.C. The benefit of doubt is to be given to the accused. This point is held in favour of accused and against the prosecution. POINT No.2:

16.In view of the finding on point No.1, the judgment of the trial court is erroneous in convicting the accused as if the prosecution proved the guilt of the accused beyond reasonable doubt for the offence under Section 498-A I.P.C. by proving the guilt within the purview of Section 498-A I.P.C. It requires interference of this court. This point also held in favour of accused and against the prosecution. POINT No.3:

17.In the result, this Criminal Appeal is allowed setting aside the conviction and sentence passed by the Additional Junior

Civil Judge, Mangalagiri under the impugned Calender and

Judgment in C.C.No.603/2010, dt.14-10-2011. Consequently, accused is found not guilty for the offence under Section 498-A IPC and is acquitted U/Sec.386(b)(i) of Cr.P.C. The bail bonds of the Accused and his sureties shall stand cancelled. Fine amount if any paid shall be refunded to him after appeal time is over.

Dictated to Personal Assistant, transcribed by him,

corrected and pronounced by me in the open court, this the 31st day of October, 2012.

II ADDL. SESSIONS JUDGE

GUNTUR.

IN THE COURT OF THE I ADDL. SESSIONS JUDGE: GUNTUR.

PRESENT: SRI S.SURENDRA BABU REDDY, B.Com., M.L.,

PRL. SESSIONS JUDGE

FAC.I ADDL. SESSIONS JUDGE.

Thursday, the 29th day of March, 2012.

CRIMINAL REVISION PETITION NO.14/2012.

Between:

Dandamraju Raghuram @ Raghu. …Revision Petitioner/Accused No.1.

-And-

State: S.H.O., Mangalagiri Rural P.S., Cr.No.72/2010, Rep. by Public Prosecutor, Guntur.… Respondent.

This revision petition came up on 27-3-2012 for final hearing

before me in the presence of Sri Ch.Radha Krishna Murthy, advocate for

revision petitioner; learned Addl. Public Prosecutor for respondent and the matter having stood over for consideration till this day, this Court made the following:

O R D E R

This is a revision petition directed against the order of the court of

Asst. Sessions Judge, Mangalagiri in Crl.M.P.No.4/2012 in

S.C.No.228/2011, dated 17-1-2012 filed by the accused No.1 therein, aggrieved by the dismissal of the petition filed by him U/Sec.311 of

Cr.P.C. to recall P.Ws.1 and 11 for cross-examination.

2.The facts leading to filing of this revision petition, in brief, are as follows:

The revision petitioner/accused No.1 filed a petition in

Crl.M.P.No.4/2012 U/Sec.311 of Cr.P.C. to recall P.W.11, the Sub-

Inspector of Police, Mangalagiri Rural P.S., the Investigating Officer, who 2 was examined on 18-11-2011, since on that day, his counsel could not attend the court and cross-examine him due to his personal problems and also to recall P.W.1 for the purpose of further cross-examination, since some material points were not elicited by over sight. The learned

Asst. Sessions Judge, Mangalagiri find that the counsel for accused No.2 cross-examined P.W.11 and hence, no prejudice is caused to the revision petitioner/accused No.1 and therefore, recalling of P.W.11 is not warranted for cross-examination by the accused No.1 and also find that the accused No.1 did not disclose on what material points P.W.1 was not cross-examined and hence, he find no reason to recall P.W.1 for further cross-examination and ultimately, find that the petition is devoid of merits and dismissed the petition on 17-1-2012.

3.Aggrieved by this order, the present revision petition is filed urging in the memorandum of grounds of revision and the learned counsel for the revision petitioner argued, in brief, as follows:

P.W.11 being the Investigating Officer, is a material witness and there is necessity to cross-examine him and due to personal problems, counsel for the petitioner/accused No.1 could not attend the court and cross-examine the witness on 18-11-2011. Since P.W.11 is a material witness, the accused No.1 may be given an opportunity to cross-examine him to prove his defence. P.W.1 is a material witness and due to over sight, he was not cross-examined on some material aspects and hence, it is necessary to recall P.W.1 for further cross-examination. There are no laches on the part of the accused No.1 in not cross-examining P.W.11, but it is only on account of the personal problems of his counsel, he could 3 not attend the court on 18-11-2011. It is the right of the accused to cross-examine the witness and this right will be defeated, if the accused

No.1 is not given an opportunity to cross-examine P.Ws.1 and 11 and this will result in handicap in proving his defence.

4.The learned Addl. Public Prosecutor argued that the order of the trial court is correct and legal and the same has to be confirmed.

5.The points for consideration are as follows:

(1) Whether P.W.11 and P.W.1 have to be recalled by exercising power U/Sec.311 of Cr.P.C. for cross-examination and for further cross-examination by the revision petitioner/accused No.1?

(2) Whether the order of the trial court in Crl.M.P.No.4/2012 in

S.C.No.228/2011, dated 17-1-2012 is correct and legal and whether the same has to be confirmed, reversed or modified?

6.POINTS 1 AND 2:

It is to be seen that it is the right flowing from Article 21 of the

Constitution of India that the accused is entitled to be defended by the legal counsel and to cross-examine the prosecution witnesses. This is also fundamental requirement of the principle of natural justice that a fair opportunity shall be given to the accused to cross-examine the prosecution witnesses. This is the integral part of the fair trial. Thus, the court shall afford all opportunity to the accused to defend himself through a legal counsel and have full opportunity to cross-examine the prosecution witnesses.

7.Though, in the circumstances, the accused No.2 has cross- examined P.W.11, it cannot be said that it will satisfy the right of the revision petitioner/accused No.1 to cross-examine P.W.11. It is also to 4 be noted that for the fault on the part of his counsel, the accused cannot be penalized. Non-cross-examination of a material witness, will result in handicap to the accused to substantiate his defence.

8.In the circumstances, it is just and proper that the trial court ought to have recalled P.W.11 for the purpose of cross-examination by the revision petitioner/accused No.1, since P.W.11 is the person, who investigated the case and the revision petitioner/accused No.1 is facing grave charge for the alleged commission of the offence punishable

U/Sec.306 of I.P.C.

9.In the circumstances, I find that the order of the trial court, dated 17-1-2012 to this extent is not correct.

10.In the circumstances, I find that P.W.11 has to be recalled by exercising power U/Sec.311 of Cr.P.C. for the purpose of cross- examination by the revision petitioner/accused No.1.

11.Now, coming to the further request of the revision petitioner/accused No.1 to recall P.W.1 for further cross-examination, the reason given in support of his request is that, some material points were not elicited by over sight and hence, it is necessary to recall P.W.1 for further cross-examination. This ground alleged by the revision petitioner/accused No.1 is vague, as rightly observed by the trial court.

12.In the circumstances, I find that the revision petitioner/accused

No.1 has not made out a case to satisfy the court that there is need to recall P.W.1 by exercising power U/Sec.311 of Cr.P.C. for further cross- examination.

13.In the circumstances, I find that the trial court rightly found that the revision petitioner/accused No.1 is not entitled to seek indulgence of 5 the court to recall P.W.1 for further cross-examination by exercising power U/Sec.311 of Cr.P.C.

14.In the light of the above discussion, points 1 and 2 are answered as follows:

POINT NO.1:

I hold that P.W.11 has to be recalled by exercising power

U/Sec.311 of Cr.P.C. for the purpose of cross-examination by the revision petitioner/accused No.1. I further hold that the revision petitioner/accused No.1 has failed to satisfy the court that there is need to recall P.W.1 for further cross-examination by exercising power

U/Sec.311 of Cr.P.C.

POINT NO.2:

I hold that the order of the trial court in Crl.M.P.No.4/2012 in

S.C.No.228/2011, dated 17-1-2012 to the extent of dismissal of the petition rejecting the prayer of the accused No.1 to recall P.W.11 for the purpose of cross-examination by him is not correct and hence, has to be set aside and it shall be ordered that the revision petitioner/accused No.1 shall be permitted to cross-examine P.W.11 by recalling him. I further find that the order of the trial court to the extent of dismissing the petition rejecting the prayer of the revision petitioner/accused No.1 to recall P.W.1 for further cross-examination is correct and has to be confirmed.

15.IN THE RESULT, the revision petition is allowed in part. The order of the court of Asst. Sessions judge, Mangalagiri in

Crl.M.P.No.4/2012 in S.C.No.228/2011, dated 17-1-2012 is set aside to

6 the extent of dismissing the petition for the relief of recall of P.W.11 for cross-examination by the revision petitioner/accused No.1.

Consequently, Crl.M.P.No.4/2012 is allowed in part directing to recall

P.W.11 for cross-examination by the revision petitioner/accused No.1.

The rest of the order of the trial court is confirmed. The revision petitioner/accused No.1 is directed to cross-examine P.W.11 on the date to be fixed by the trial court and if he fails to cross-examine the witness on that day, he will loose his right to cross-examine P.W.11.

Dictated to Personal Assistant, transcribed by him, corrected and

pronounced by me in the open Court, this the 29th day of March, 2012.

Sd/- S.Surendra Babu Reddy,

PRL. SESSIONS JUDGE

FAC.I ADDL. SESSIONS JUDGE

GUNTUR.

Copy to the Asst. Sessions Judge, Mangalagiri.

// TRUE COPY //

SESSIONS JUDGE

FAC.I ADDL.SESSIONS JUDGE

GUNTUR.

APGU000000102012

Presented on : 09-10-2012 Registered on : 09-10-2012 Decided on : 06-11-2012 Duration : 0 years, 0 months, 28 days

IN THE COURT OF

II Addl. District and Sessions Judge

AT ,GUNTUR

(Presided Over bySri.M.Srinivasulu Reddy)

CRLMP.BAIL/1912/2012 (PROSECUTION):

AVANIGADDA DEVAKUMARI

Through Police Station Officer Duggirala P.S 89, MOREMPUDI VILLAGE, DUGGIRALA MANDAL GUNTUR

AVANIGADDA DEVAKUMARI

VERSUS :

SHO,DUGGIRALA PS

Age: 0 Occupation : GUNTUR ----------------------------------------------------------------------------- APP for State }: MSB, Advocate for APP appearing for SHO,DUGGIRALA PS Advocate appearing for , respectively. -----------------------------------------------------------------------------

ORDER

Petition is not pressed by petitioner. Hence, this petition is dismissed as not pressed.

Date : 06-11-2012 Sd/- (Sri M.Srinivasulu Reddy

II Addl. District and Sessions Judge GUNTUR

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In the Court of :II Addl. District and Sessions Judge

Case No. :CRLMP.BAIL/0002000/2012 PYRDHALA NAGARAJU Vs SHO, AMARAVATHI PS

Date : 30-10-2012

Business:Heard. \ Orders pronounced. VSO. \ In the result, this petition is allowed and the petitioner/accused is ordered to be enlarged on bail on executing a bond for Rs.10,000/- with two sureties for the like sum each to the satisfaction of II Additional Junior Civil Judge, Sattenapalli Nature of Disposal:ALLOWED Disposal Date:30-10-2012 II Addl. District and Sessions Judge 1 of 121/12/24, 15:14