Mohammad Gouse

IN THE COURT OF THE II ADDITIONAL CIVIL JUDGE (JR. DIVISION),

SATTENAPALLI.

Present: - MOHAMMAD GOUSE II Addl. Civil Judge (Jr. Division), Sattenapalli.

Saturday, this the 18th day of January, 2025.

D.V.C. No. 04 of 2018

Between:

Aluri Venkata Ramana, W/o. Thirupathi Rao, 31 Years,

R/o. Grandhasiri Village, Atchampet Mandal. ...Petitioner.

And

1. Aluri Thiruapthi Rao, S/o. Sambasiva Rao, 45 Years,

2. Aluri Seethamma @ Seetharavamma, W/o. Sambasiva Rao, 62 Years,

3. Aluri Ashok Kumar, S/o. Madhava Rao, 49 Years,

4. Nathani Srinadh, S/o.Venkateswara Rao, 35 Years,

5. Nathani Samabasiva Rao, S/o. Sambasiva Rao, 60 Years,

6. Kaka Chanti @ Sarth, S/o. Koteswara Rao, 45 Years,

7. Guduri Banu, 35 Years,

All are R/o. Thulluru village and Mandal. ...Respondents.

This petition is coming for hearing before me in the presence of Sri. B. Amaraiah Naik and Sri. B. L. Chinnaiah learned counsel for the petitioner and Sri. K. Hanumaiah, learned counsel for the respondents and upon perusing the material papers available on record and having stood over till this day, for consideration, this court made the following:

O R D E R

The petitioner/aggrieved person filed the present petition U/s. 12 of the Protection of Women from Domestic Violence Act, 2005 (for short “the

Act, 2005”) claiming the reliefs of protection order, compensation, alternative accommodation and maintenance under the Act, 2005.

2. The substance of the petition is as follows:

a) The respondent No.1 is husband, respondent No.2 is mother- in-law, respondent no. 3 is brother-in-law, respondent’s no. 4 and 5 are brother and uncle, respondent’s no. 6 and 7 are close friends of respondent no.1. The petitioner is legally wedded wife of 1st Respondent. The marriage of the petitioner with the 1st respondent was performed according to Hindu customs and rites on 21.08.2004 at Grandhasiri village of Atchampet

Mandal. At the time of marriage, the parents of the petitioner presented an 2 of 13 D.V.C. 04/2018

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amount of Rs. 1,00,000/- to the 1st Respondent and 1/2 sovereigns of Gold necklace, 3 sovereigns of two pairs of Gold ear studs, 1½ sovereigns of gold ring, 1/2 sovereign of another gold ring, 1/2 sovereign of papadi billa, 2 1/2 sovereigns of Gold chain, 3 sovereigns of Gold bangles to the petitioner as per earlier demand of the Respondents 1 & 2. Soon after the marriage the petitioner joined with the 1st respondent along with above gold ornaments and thus their marriage was consummated. Out of their wedlock the petitioner blessed with two children. The 3rd Respondent is vagabond and he is remained unmarried. Some misunderstandings arose in between

Respondents 2 & 3 and due to which the 3rd Respondent leaves the family of the 1st respondent. The 3rd Respondent bore grudge against the petitioner that she is responsible for disputes among them and he is waiting to take revenge against the petitioner.

b) While things stood thus, in the month of April 2015, the parent of the petitioner asked her to provide an amount of Rs. 40,000/- for their urgent need. Then the petitioner asked the 1st respondent and took an amount of Rs. 40,000/- form him to give her parents. Meanwhile, one Shaik

Subhani who is friend of the 1st respondent, approached the house of the 1st respondent and by that time, 1st respondent was not in the house and then he requested the petitioner to arrange an amount of Rs. 50,000/- as his son was admitted in Hospital and he will repay the same within in a week. Then the petitioner gave the said amount of Rs. 40,000/- to Shaik Subhani on humanity grounds as his son is in hospital. As Shaik Subhani failed to repay the same within a week there arose some misunderstandings between the petitioner and 1st respondent. Taking advantage of the same, the respondents 3 and 4 along with respondents 6 and 7 with an ulterior motive interfered with family affairs of the petitioner. At the instigation of above said persons the Respondents 1 & 2 made false and unfounded aspersions against the petitioner. On 23.08.2015 the Respondents 1 to 7 unnecessarily picked up quarrel with the petitioner and telephoned to Chintalacheruvu

Narasimharao/L.W.3 who is none other than the mother's brother of the petitioner. On the intimation, L.W.3 immediately rushed to the house of the 1st respondent and made enquiry about the dispute and in which he agreed to pay the said amount and pacified the issue. During that time, again on 25.08.2015 the above said persons along with 5th Respondent picked up quarrel with the petitioner and beat her in black and blue and necked out 3 of 13 D.V.C. 04/2018

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from the matrimonial house with wearing cloths. On the intimation of the petitioner, her uncle/L.W.3 brought her to Grandhasiri village. In spite of several mediations and family counseling, the 1st respondent refused to take back the petitioner even they are not allowed her to see her children also.

The petitioner being Hindu faithful women and taking into consideration of the welfare of the children made all efforts for reunion, but in vain.

c) It is further submitted that the 1st respondent owns two houses at Thulluru village. Among them, one house is situated in Boddurayi center, wherein the respondents 1 & 2 at present are residing, another old house is situated at Salipet. The 1st respondent has got Ac. 5-50 cents within the radius of New Andhra Capital. The 1st respondent also doing money lending business and getting monthly income of Rs. 35,000/- per month. He has got sufficient means to provide maintenance to the petitioner and intentionally avoiding the same and as such the petitioner filed M.C. 31/2017. The petitioner also filed H.M.O.P. for restitution of conjugal and the same is also pending. The gold ornaments of the petitioner are with the 1st respondent.

Hence the petitioner prays to allow the petition.

3. Respondents by denying contents of petition filed detailed counter by submitting that the petitioner is working as tailor and she has illicit intimacy with Shaik Subhani of Tulluru village, who is also a tailor due to the illicit intimacy between them he asked the petitioner to give him a sum of Rs.

40,000/- to meet his vices, the petitioner asked the respondent to provide a sum of Rs. 40,000/- to her by stating that her parents are in dire need of money as such the respondent believed the words of the petitioner he paid a sum of Rs. 40,000/- to the petitioner and in turn the petitioner paid the above said amount of Rs. 40,000/- to Shaik Subhani and subsequently the respondent came to know about the same and he questioned the behaviour of the petitioner in the presence of her mother, but the petitioner paid deaf ear and at the advice of said Shaik Subhani she herself along with her mother left the matrimonial house of the respondent and went to her native place i.e., Grandhasiri Village on 25-08-2014. Subsequently, inspite of mediations made by the respondent personally and through mediators the petitioner did not accept to lead marital life with the respondent and continued her illegal intimacy. It is further submitted in the counter that there are several phone conversations between the petitioner and Shaik Subhani 4 of 13 D.V.C. 04/2018

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and the petitioner admitted before the respondent and elders about her illicit intimacy with Shaik Subhani and the same was recorded in video and the father of petitioner also admitted that the petitioner had illicit intimacy with

Shaik Subhani and requested the mediators to pacify the matter and to made the respondent to receive the petitioner for his matrimonial house and the same was also recorded in video. The petitioner noted the cell phone number of Shaik Subhani 9603820206 under the head of '143'. The respondent is looking welfare of his children and they are studying in Tulluru in a Private Convent. The mature function of the daughter of the respondent was held in the house of the respondent on 26-05-2018 and on that day the petitioner along with her parents and other relatives came to the house of the respondent and abused the respondent and others in filthy language.

Hence the respondents pray for dismissal of the petition.

4. To prove the case, the petitioner examined herself as PW1 and got marked Ex.P1 on her behalf. On the other hand, the respondent No.1 himself examined as RW1 and got marked Exs.R1 to R16 on his behalf.

5. Heard both sides. Perused the material on record.

6. Now the points for determination are:

1. ”Whether the petitioner is able to prove the

Domestic Violence as contemplated under the

Protection of Women from Domestic Violence Act,

2005, if so, to what extent”?.

2. Whether the petitioner is entitled to get relief

under Sections 18, 19, 20 and 22 of the Act claimed

in her petition?

7. POINT No.1:

Before going to that, it is appropriate on my part to present a

synoptic outline of the evidence of both parties. During the course of enquiry, the chief-affidavits filed by them in lieu of their chief-examination almost reflects their respective contentions in petition and counter.

a) It is the evidence of PW.1/Aluri Venkata Ramana that she is the legally wedded wife of the respondent No.1 and their marriage was performed on 21.08.2004 and at the time of their marriage, the parents of 5 of 13 D.V.C. 04/2018

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the petitioner presented an amount of Rs.1,00,000/- to the R-1 and gold ornaments to the petitioner and their marriage was consummated and out of their wed-lock, she was blessed with one female child and male child and all the respondents are residing under one roof. While so, some disputes arose between the respondents 2 and 3 and due to that the respondent No.3 left the family and residing separately and since then the respondent No.3 bore grudge against the petitioner. While so, in the month of April 2015, the parents of the petitioner asked her to provide an amount of Rs.40,000/-, then she took from respondent No.1 to give to her parents, meanwhile one Shaik

Subhani, who is the friend of respondent No.1 approached the house and requested to arrange an amount of Rs.50,000/- as his son was admitted in hospital and he will repay the same within a week, as such she gave the said amount to Shaik Subhani on humanity ground, but the said Shaik Subhani failed to repay the same within week, then some misunderstandings arose between the petitioner and respondent No.1. Then by taking advantage of the same, respondent Nos.3, 4, 6 and 7 interfered with the family affairs and made false allegations and on 25.08.2015 all the respondents picked up quarrel with her and beat in black and blue and necked her out from the matrimonial house and inspite of several mediations and counseling’s, the respondent No.1 refused to take back the petitioner and even she was allowed to see her children.

b) During the course of cross-examination, she stated that though the dowry amount of Rs.1,00,000/- was given to the parents of respondent

No.1 in the presence of elders, but could not recollect their names. She also admitted that in a Maintenance Case, which was filed by her, the court has granted Rs.1,000/- (Rupees one thousand) per month and she also filed a petition for restitution of conjugal rights. She also denied to the suggestion that she pledged gold ornaments in Bank and obtained, but obtaining loan was without the knowledge of her husband and also gave the loan amount of Rs.82,000/- to her parents. She admitted that she knows one Subhani, who is the friend of her husband, but she denied to the suggestion that she gave a gold chain to said Subhani. She also denied to a suggestions that the writing shown in a note pad reflecting "143" with a mobile number "9603820206" belongs to the said Subhani and that she maintained illicit relationship with the said Subhani and the same was known by her daughter and informed the same to R-1, and when R-1 questioned her, she beat the 6 of 13 D.V.C. 04/2018

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respondents and left the matrimonial home.

c) On the other hand, the respondent No.1 was examined as

R.W.1 and he reiterated the contents of the counter in his chief affidavit and during his cross-examination he admitted that he is the only son and after the death of his father, Ac.5.00 of agricultural land, a house and a cattle shed were devolved upon him being legal heir. He also admitted that the petitioner filed a petition for restitution of conjugal rights and the same was allowed.

He further stated that he did not issue any notice or file any case against the said Subhani, against whom he made allegation of illegal intimacy with the petitioner. He further added that after knowing about the alleged illegal intimacy, he did not enquire about the said Subhani and also stated that he does not have any proof about the said illegal intimacy. He categorically stated that at present he is not interested to take the petitioner for marital life, because his children are not interested to live together. Further, he admitted that prior to filing of criminal case u/s.498-A IPC, he did not take any steps legally against the petitioner.

8. In the light of the above evidence brought on record by both parties, before proceeding for analysis of the evidence, it is to be looked into as to what Sec.3 of the Act says. The very reading of Section 3 of the act defines Domestic violence, which includes physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse meted out by the aggrieved person in the hands of respondents. When the evidence of both the petitioner/PW.1/wife and the respondent No.1/RW.1/husband was scrutinized by holding the spirit of the above said law in mind, it renders a just conclusion of this case.

9. The undisputed facts that have been emerged from the record are that there is no denial of marital relationship between the petitioner and respondent No.1 and also the parentage of the children. Admittedly, the petitioner has not been living with the respondent No.1/husband but she is taking shelter in her parental home and the children are with the respondent

No.1/husband.

10. As can be seen from the evidence adduced by both sides in this case, the evidence of PW1/petitioner speaks that in the month of April 2015 when her parents asked her to provide an amount of Rs.40,000/- for their urgent need, she asked her husband/R.W.1 and took the same, but 7 of 13 D.V.C. 04/2018

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meanwhile, at the request of one Shaik Subhani who is the friend of her husband/R.W.1, she gave the same to him, as the son of said Subhani was in hospital. At the time of receiving the said amount, the said Shaik Subhani promised to return the said amount within a week, but the said Subhani failed to repay the said amount within the week and taking advantage of the same, the respondents No.3,4,6 and 7 interfered in the family affair and at their instigation, respondent No.1 and 2 made false allegations and picked up a quarrel with the petitioner on 23.08.2015, but the same was pacified by the maternal uncle of the petitioner. Again on 25.08.2015 the respondents picked up quarrel with the petitioner and beat her in black and blue and necked her out and since then she has been taking shelter with her parents.

11. The defence of respondents is that P.W.1 got illicit intimacy with one Subhani and due to that she had provided Rs.40,000/- by taking the same from R.W.1 and after knowing the same, when R.W.1 questioned the

P.W.1, she paid deaf ear and gave evasive reply and she herself left matrimonial home and went to her parents' house and subsequently, when the R.W.1 tried his level best to settle the matter neither the P.W.1 nor her parents cooperated. Further, it is the contention of the R.W.1 that there were several phone conversations in between the P.W.1 and the said Shaik

Subhani. It is also stated during his cross-examination that the P.W.1 clearly admitted her illegal affair with Shaik Subani before the elders. It is further stated that the P.W.1 and her relatives come upon the house of R.W.1 and made galata at the time of maturity function of his daughter and the same was also recorded in CCTV footage.

12. A perusal of the record shows that the contention of the petitioner is that as she gave an amount of Rs.40,000/- to one Shaik Subhani on humanitarian grounds, as the son of the said Subhani was admitted in hospital and as per the promise made by the said Subhani failed to return the said amount within one week, some misunderstandings arose in the family and by taking advantage of the same, at the instigation of respondents

No.3 to 7 , the respondents No.1 and 2 made allegations against the petitioner of illicit intimacy with the said Subhani and by beating her necked out from the matrimonial home. Such a contention which imputed immoral character without having any proof for the said allegation and much less any legally accepted evidence and he could not be in a position to say even the 8 of 13 D.V.C. 04/2018

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particular date on which, the petitioner was with the said Subhani in the private space on a specific date. It was the imputation of the respondent

No.1 that the petitioner was having illicit relationship with the said Subhani.

Making allegation against the petitioner with regard to her character without proving the truth of such imputation of immoral character will humiliate the petitioner and it shows the vindictive and wanted only indicate her character by alleging that she was having illegal contact with the said Subhani.

13. Moreover, the respondent No.1 himself categorically admitted in para No.7 of his chief affidavit that the petitioner admitted her illegal affair with Shaik Subhani before the elders. When the petitioner admitted her illicit relationship before the elders at the time of a settlement, why the respondent

No.1 did not try to produce the said elders before the court to prove the said admission of the petitioner, has not been explained. Though the respondent

No.1 had no relevant strong proof regarding the illicit relationship of the petitioner, at least he should have produced the elders before whom the petitioner clearly admitted about her illicit relationship, but he did not do so.

Further, the respondent No.1 stated in the para No.12 of his chief affidavit that he was having CCTV footage regarding the galata made by the petitioner and her relatives at the time of maturity function of his daughter, he did not produce the same before the Court. The respondent No.1 also admitted in his cross examination that prior to filing of Section 498-A IPC case against him, he did not take any steps legally against the petitioner with regard to her illicit relationship. Even during the Maintenance Case filed by the petitioner, she was granted maintenance by the Court.

14. Admittedly, the petitioner filed petition for Restitution of Conjugal rights and the same was also allowed, even then the respondent No.1 did not try to take back the petitioner for matrimonial home. Imputing allegations against the petitioner regarding her character without an unassailable evidence, shows that the petitioner was subjected to domestic violence of the nature of psychological abuse. In the absence of any legally valid proof, the said contention is a mere contention without having any legal base to prove the same. Therefore, the point No.1 is accordingly answered infavour of the petitioner and against the respondents.

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15. POINT NO.2:

a) The relief that is claimed by the petitioner is to prohibit the respondents from committing any act of domestic violence. It was held under point No.1 that the respondent No.1 subjected PW1 to domestic violence and the factum of psychological abuse suffered by PW.1/petitioner more particularly at the hands of 1st respondent/husband was clearly established.

Hence the respondent No.1 is directed not to commit any domestic violence against the petitioner.

b) One of the reliefs claimed by the petitioner is to direct the respondent No. 1 to pay maintenance amount of Rs.10,000/- to the petitioner. It is the case of the petitioner that she being a destitute living on the mercy of her aged old parents and unable to maintain herself, whereas the respondent No.1 is doing money lending business and getting monthly income of Rs.35,000/- per month apart from having immovable properties.

Since the petitioner was already granted maintenance of Rs.1,000/- in the

M.C., keeping in view of the day to day expenses and the earning capacity of R.W.1, granting Rs.3000/- per month to the petitioner towards maintenance would better serve the ends of Justice.

c) The another relief that is claimed by the petitioner is to direct the respondent No.1 to provide rent and pass such necessary orders under

Sec.19 of the Act. The evidence of PW1 and RW1 show that PW1 has been residing in the house of her parents. In view of the discussion made in the above paragraphs, and the categorical admission of R.W.1 that since his children are not interested to live together with the P.W.1, he will not take his wife to his matrimonial fold. Hence the respondent No.1 is directed to pay

Rs.3,000/- per month to the petitioner towards alternative accommodation charges.

d) The another relief that is claimed by the petitioner is to handover the minor children to her. But, as seen from the record, both the petitioner and the respondent No.1 are having one daughter and one son.

It is admitted that the daughter has become major, as such, this Court cannot direct a major regarding the living option, as she can live at her will. So as to the son, when his statement was recorded by the Court in camera, he clearly stated that he will not live with his mother and has no interest to go with her. Hence, against the interest of the son, this Court cannot pass any 10 of 13 D.V.C. 04/2018

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order. Further, if any, the petitioner intends to seek any order of custody of her minor son, she may file a petition under Guardian and Wards Act before the appropriate forum.

e) The another relief that is claimed by the petitioner is to direct the respondents to pay compensation of Rs.2,50,000/- for mental and physical harassment. It was held supra that the respondent No.1 subjected

PW1 to domestic violence by suspecting her fidelity without a strong proof,

PW1 would have suffered mental agony in the hands of respondent No.1 and consequently psychological grief. Therefore, Keeping in view of earning capacity of RW1, mental agony suffered by her, this court is inclined to grant

Rs.50,000/- (Rupees fifty thousand only) towards compensation to the petitioner, payable by the respondent No.1, within six months from the date of this order.

f) The relief that is sought for by the petitioner is for return of the gold ornaments apart from cash of Rs.1,00,000/- cash given by her parents to the respondents. As seen from the record, there is no valid evidence either oral or documentary to prove that the gold ornaments and cash of

Rs.1,00,000/- were given by the parents of the petitioner to the respondents, as such this Court cannot order for return of the said ornaments and cash.

16. In view of the findings on the above point, this Court is of the opinion that the petition is to be allowed in part.

17. IN THE RESULT, the petition is partly allowed and the following reliefs are hereby granted in favor of the petitioner.

A protection order U/s. 18 of the Protection of Women from

Domestic Violence Act is granted hereby in favor of the petitioner whereby the Respondent No.1 or any other person purportedly acting on his behalf is prohibited by this court from committing any act or conduct which harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the petitioner or any other persons related to her, or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or has the effect of threatening the petitioner or any person related to her.

a) An amount of Rs.50,000/- (Rupees Fifty Thousand only) is granted as compensation to the petitioner and the same shall be payable by the 1st respondent within six months from the date of this order.

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b) An amount of Rs.3,000/- (Rupees Three Thousand only) per month is hereby granted as alternative accommodation charges to the petitioner from the date of the petition, payable by the 1st respondent on or

before 05th of every succeeding month. The amount already paid under

interim alternative accommodation shall be deducted.

c) An amount of Rs.3,000/- (Rupees Three Thousand only) per month is hereby granted as maintenance charges to the petitioner, payable by the 1st respondent on or before 05th of every succeeding month.

18. Any breach by 1st respondent or any other person purportedly acting on his behalf, of the protection order passed under the Act, will be held liable for punishment U/s. 31 of the Act.

19. The protection officer is hereby directed to implement the said orders forthwith, without any delay and report the same to court as early as possible. Derogation in implementation of the said order will be viewed seriously by this court and held for liability under section 33 of the Act.

20. Office is directed to serve the copy of order on the petitioner at free of cost as per Sec. 24 of the Act. Copy of this order shall be communicated to the concerned protection officer and concerned police for the purpose of assistance in its effective implementation.

Directly typed to my dictation by the Stenographer Gr-III, corrected and pronounced by me in open court, this the 18 th day of January, 2025.

Sd/- Mohammad Gouse.

II ADDL. CIVIL JUDGE (JR. DIVISION),

SATTENAPALLI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER :

P.W.1: Aluri Venkata Ramana.

FOR RESPONDENTS :

R.W.1: Aluri Thirupathi Rao.

EXHIBITS MARKED

FOR PETITIONER :

Ex.P1 is the decree and order in H.M.O.P. 140/2017.

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FOR RESPONDENTS :

Ex.R1 - Adangal copy of Kilari Narasimma who is mother of petitioner is having Ac. 1.50 cents of land for fasali 1433. Dt:02.03.2024.

Ex.R2 - Adangal copy of Kilari Yedukondalu who is father of petitioner is having Ac.1.40 cents of land for fasali 1433 Dt: 13.03.2024.

Ex.R3 - Family members details card for Free medical treatment.

Dt:08.12.2014

Ex.R4 - Hand book of petitioner- respondent containing phone number with her own handwriting and shown-143-9603820206.

Ex.R5 - Certified copy of Criminal Petition No.3147/2023 it shows

CC.No.428/2018 is allowed quashing the proceedings.

Dt:04.07.2023

Ex.R6 - Notice issued from State Bank of India, Thullur to the petitioner- respondent it shows the petitioner respondent mortgaged the gold ornaments and the same was auctioned on 19.12.2015 (office copy). Dt: 23.12.2015.

Ex.R7 - The 2nd respondent taking treatment from Srinivasa Nuero Centre from 25.07.2012 to till today. Dt:25.07.2012

Ex.R8 - Aluri Meghana who is daughter of 1 petitioner and respondent – treatment details on 03-07-2015 and 30.06.2015 and 04.07.2015.

Dt: 04.07.2015.

Ex.R9 - Discharge summary of Aluri Ashok (R3) issued by MJ Naiduu, Super Speciality Hospital, Vijayawada- Date of Surgery 30.06.2015 Fracture both bone left leg. Dt: 29.06.2015.

Ex.R10 - Fee receipt of Aluri Meghana who is the daughter of petitioner and respondent for Rs.2,18,460/- issued by Canara Bank (Xerox copy)

Dt: 17.10.2023

Ex.R11 - Hostel fee receipt of Aluri Meghana who is the daughter of the petitioner and respondent office copy receipt Nos.334, 1003 and 334 (17.10.2023) Dt:13.09.2023

Ex.R12 - Certificate issued by Panchayath Secretary of Thulluru on behalf of respondent No.3 Aluri Ashok having a house property in his name bearing D.No.11-31 Assessment No. 1124. Dt: 09.07.2018.

Ex.R13 - Order copy Xerox copy of C.A in M.C.No.31/2017. Dt: 18.07.2022

Ex.R14 - Electricity Bill in the name of Kilari Narasamma who is the mother of the petitioner respondent (Xerox copy) Dt: 04.03.2024.

Ex.R15 - House tax receipt issue by secretary on behalf of R2 D.No.12-80, Assessment No.2361 office copy. Dt: 31.03.2016.

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Ex.R16 - House tax receipt issued by Secretary on behalf of R2 D.No.11-27 Assessment No.1126 office copy. Dt: 23.03.2014.

MATERIAL OBJECTS

--Nil--

Sd/- Mohammad Gouse.

II ADDL. CIVIL JUDGE (JR. DIVISION),

SATTENAPALLI.

// TRUE COPY //

II ADDL. CIVIL JUDGE (JR. DIVISION),

SATTENAPALLI

IN THE COURT OF THE II ADDITIONAL CIVIL JUDGE

(JR. DIVISION), SATTENAPALLI.

Present: - MOHAMMAD GOUSE II Addl. Civil Judge (Jr. Division), Sattenapalli.

Saturday, this the 18th day of January, 2025.

C.C. No. 181 of 2018

Between:

State represented by the Sub-Inspector of police, Pedakurapadu P.S. …Complainant.

And

1. Gudisa Narsi Reddy, S/o. China Sambireddy, 32 Years,

2. Gudisa Lakshmi Kumari @ Lakshmi, W/o. China Sambireddy, 47 Years,

3. Gudisa China Sambireddy @ Sambireddy, S/o. (Late) Ramireddy, 55 Years,

4. Gudisa Thulasi Reddy, S/o. China Sambireddy, 30 Years,

5. Gudisa Lakshmi, W/o. Koti Reddy, 45 Years,

75-Thyalluru village, Pedakurapadu Mandal. ...Accused.

This case is coming on 16.01.2025 before me for final hearing in the presence of learned Assistant Public Prosecutor, for the prosecution and Sri. N. Kotaiah, learned counsel for A1 to A5 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, Pedakurapadu P.S., has filed a charge sheet in Cr.No.31/2018 of Pedakurapadu P.S., against A1 to A5 for an offence punishable U/sec. 498-A r/w 34 I.P.C. & Sec. 3 & 4 of D.P.

Act.

02. The brief facts of the prosecution case are as follows:

The marriage of L.W.1-G. Ramya Jyothi was performed with A1 on 27.02.216. At the time of marriage, the parents of L.W.1 gave one acre of agricultural land, two lakhs cash and 4 sovereigns, of gold as dowry to

A1 and also gave one lakh cash for house hold articles to L.W.1 in-laws.

Soon after the marriage L.W.1 joined with A1 and out of their wedding bond they were blessed with a son. Further, after the marriage of LW1, the engagement of A4 was performed and he got huge dowry. Since then, A1 to A3 started harassment over L.W.1 both physically and 2 of 11

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II A.C.J.(Jr.D.), SAP.

mentally for demanding additional dowry from her parental house and A4 also used to support A1 to A3. Moreover, A1 used to made quarrel and beat L.W.1. A1 to A3 sold the agricultural land which was given to LW1 in order to fulfil their debts. Later on 02.12.2017 at about 7.00 pm A1 necked out L.W.1 from the house. L.Ws. 4 & 5 who were present there came to subside the issue, even then while L.W.1 was stood with her child, A1 beat her due to which L.W.1 fallen down and at that time A2 to

A5 beat L.W.1 and necked her out from the house. As there is no other go L.W.1 went to her parental house and presented a report against them.

Basing on it L.W.7/S.I. registered the case in Cr.No.31/2018,

U/secs. 498-A r/w 34 I.P.C. & Sec. 3 & 4 of D.P. Act, examined the witnesses, visited the scene of offence, drew rough sketch and served 41-A Cr.P.C. notice to A1 to A5 on 15.04.2018 and after completion of investigation he filed the charge sheet.

03. This court took cognizance for the offence punishable U/sec.

498-A I.P.C. and Sec. 3 & 4 of the D.P. Act.

04. Copies of case record were furnished to A1 to A5 as required

U/s. 207 of Cr.P.C.

05. A1 to A5 are examined U/s. 239 Cr.P.C. and a charge for an offence punishable U/secs. 498-A r/w 34 I.P.C. & Sec. 3 & 4 of D.P. Act.

was framed and read over to them for which they pleaded not guilty and claims for trial.

06. In order to prove the case, L.Ws.1 to 6 and L.W.7/S.I. are examined as P.Ws. 1 to 7 respectively. Exs.P1 to P3 are got marked.

07. After completion of the prosecution evidence, A1 to A5 are examined U/s. 313 Cr.P.C. by setting forth with the incriminating circumstances appearing in the evidence of prosecution, for which they denied the same and further reported that no defence evidence on their behalf.

08. Heard the learned Assistant Public Prosecutor and learned counsel for A1 to A5.

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09. Now the point for determination is

“Whether the prosecution could able to bring

home the guilt of A1 to A5 for the offence U/secs.

498-A r/w 34 I.P.C. & Sec. 3 & 4 of D.P. Act,

beyond reasonable doubt?”

10. POINT:

The learned A.P.P. submitted that in order to prove the guilt of the accused, the prosecution has examined P.Ws.1 to 5. P.W.1, who is the victim, deposed about the harassment caused to her and dowry demanded by the accused; P.W.2 is the mother and P.W.3 is the relative of P.W.1 who deposed in support of P.W.1 and P.W.5, who is

Investigating Officer also corroborated P.W.1, as such prays to convict the accused according to law.

11. In order to substantiate the case of the prosecution,

LW1/Gudisa Ramyajyothi is examined as PW1 and she deposed that her marriage with A1 was performed on 27-02-2016 at the house of her in- laws in 75 Talluru village. At the time of her marriage, her parents gave 2,00,000 cash, one Acre of Agriculture land, four sovereigns of Gold.

After her marriage, cash of Rupees 1,00,000/- was given to A1 towards house hold articles to establish a new family at Bangalore. Now as seen the evidence of PW2 who is father of PW1, he deposed that on 27-02- 2016 he performed the marriage of PW1 with A1 at 75 Thallur as per their caste customs and at the time of marriage he gifted one acre agricultural land, cash of Rs.2 lakhs and 4 sovereigns of gold ornaments as a dowry to A2 and A3. It is the evidence of PW3 who is mother of PW1 that on 27.02.2016 marriage of PW1 was performed with A1 and at the time of marriage Rs. 2,00,000/-, 4 sovereigns gold and one acre land was given towards dowry besides Rs.2,00,000/- for house hold articles. So the evidence of PWs1 to 3 is corroborated with regard to presenting of dowry to accused.

12. Section 3 of Dowry Prohibition Act deals with giving or taking of dowry and the same is punishable under the Act. Here as per the version of PWs1 to 3 the receipt of dowry by the accused took place at the time of marriage i.e., on 27.02.2016 and the PW1 gave report against accused on 22.02.2018. Therefore, it is hopelessly barred by limitation in view of 4 of 11

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Rule 5 (c) and Rule 10 of Andhra Pradesh Dowry Prohibition Rules. On this aspect this court relies on the judgment of our Hon’ble High Court of

Andhra Pradesh in Sangaraju Sandeep Kumar Raju vs The State Of

Andhra Pradesh, Rep by PP reported in ANR., on 30 October, 2018 wherein it was held that “As per Rule 5 (c) of Andhra Pradesh Dowry

Prohibition Rules, the complaint shall be made on the demand of dowry or accepting dowry within a period of one year.” It is apparent from the case of prosecution that accepting of dowry took place on the date of marriage i.e., on 27.02.2016 and the complaint was given by PW1 on 22.02.2018 i.e., after two years. So, the allegation levelled by PW1 against accused with regard to presenting of dowry is barred by limitation.

Thus, the prosecution utterly failed to bring home the guilt of A1 to A5

U/s.3 of D.P. Act.

13. In addition to that it is the evidence of PWs1 to 3 that A1 to A5 harassed PW1 by demanding her to bring additional dowry of

Rs.20,00,000/-. But the said fact was remained uncorroborated by independent witnesses i.e., PWs4, 5, 6. Though it is mentioned in the 161

Cr.P.C. statements of PWs4 to 6 that A1 to A5 demanded PW1 to bring

additional dowry, but PWs4 to 6 omitted to state the same before the

court. So from the aforesaid discussion except PWs1 to 3, none of the prosecution independent witnesses disclosed what amount of additional dowry was demanded by accused. Basing on all these facts and circumstances, it is highly difficult for the court to believe the version of

PWs1 to 3. Thus the court comes to conclusion that there is no iota of evidence placed before this court to show that the accused demanded

additional dowry of Rs. 20,00,000/-. Thus, the prosecution failed to bring

home the guilt of the accused U/s.4 of D.P. Act.

14. Coming to the next aspect that whether A1 to A5 were subjected the P.W1 to cruelty by mentally and physically to cause danger of life, limb or health to P.W1 and harassed the P.W1 to meet any unlawful demand for any property or on account of failure by P.W.1. So the initial burden lies upon the prosecution to prove that A1 to A5 harassed the

P.W1 both physically and mentally for the unlawful demand of additional dowry. To analyse the said fact when the evidence of PW1 is looked into, she deposed that after the marriage they lead the happy marital life and 5 of 11

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due to which she was blessed with a male child in November 2016.

Thereafter she joined with her husband at Bangalore, and after the confirmation of her pregnancy, she came to know about the engagement of her brother in law i.e, A4 and she also came to know that he was going to provide with a huge dowry. Since then her in laws started to harass her demanding for additional dowry alike A4. In that manner, A1 to A5 demanded for Additional dowry of 20,00,000/- and her husband i.e., A1 also started to harass her in their privacy during the bedroom. Due to the harassment she was not able to bear the harassment and she returned to her parental home during her third month pregnancy and stayed with her parent. In her 5th month pregnancy she went to Bangalore and lived there with her husband till 7th month pregnancy. During her stay, A1 again started to harass. Due to that she again went to her parental home.

During 9th month of her pregnancy, marriage of A4 was confirmed, but her in-laws did not invite her. Later the bride of A4 who is friend of PW1 invited her and then PW1 along with her father went to the house of bride of A4. Knowing the same, A1 came to there and bet her indiscriminately.

After giving birth, my husband came to the hospital and after seeing male child on the same day he went away. After five days of giving birth to a baby boy, the village elders settled the dispute between them and sent her to marital home at Bangalore. On the eve of First birth day of her child i.e, on 29-11-2017 herself along with her husband came to the 75 Thallur village to celebrate the birthday and after the celebrations her in-laws called her parents to their house and A1 stated that there is no necessity of PW1 to live with him. During the scuffle, her husband necked the father of PW1 by holding the collar. After the incident when PW1 went into the house of her in-laws, her husband and her mother in law beat her and necked her out of their house. Then she went to her parent's house and gave report to police.

15. After elucidating the entire testimony of PW1 whatever the narration made by PW1 with regard to the incidents happened before the year 2017 she merely stated that all the accused harassed PW1 mentally and physically. But she has not described the harassment that was meted out towards PW1 by all the accused persons before the year 2017. So this entire portion of afore said evidence of P.W1 to 4 clearly shows that 6 of 11

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since the year of 2011 the A2 and A3 have been residing separately from the A1 and P.W1 by attending agricultural works for their lively hood, thus the involvement of A2 and A3 about the alleged harassment towards

P.W1 cannot be reliable as it is not the case of P.Ws.1 to P.W.4 that A2 and A3 harassed the P.W1 by demanding additional dowry over phone.

The entire evidence of P.Ws.1 to 4 was kept silent to that regard. Except the alleged demand made by A2 to A5, she did not utter any word against

A2 to A5. It is also kept silent in the evidence of P.W1 to 4 that when and where A2 and A3 made harassment along with A1 towards P.W1 for

additional dowry. Even the PW1 did not say what kind of harassment was

caused by A2 to A5. When such is the case and in the absence of cogent evidence placed before this court to prove about the harassment of A2 to

A5 against P.W1, it may presume that the P.W1 has unnecessarily implicated the A2 to A5 by made false allegations against them with an intention to harass the A2 to A5.

16. In addition to that the learned counsel for the accused argued that A1 never harassed the P.W1 for alleged additional dowry. Except bald allegations there is no material evidence placed before this court to prove that the accused harassed the P.W1 by physically and mentally by demanding additional dowry of Rs.20,00,000/-. At this juncture as seen the cross examination of P.W1, the PW1 stated that at the time of her stay with A1 at Bangalore, first three months of her pregnancy expenses were borne by A1 and the A1 bore all the delivery expenses. It is also apparent from the cross examination of PW1 that only A1 and PW1 used to live at Bangalore after their marriage. A2 to A5 used to reside at 75

Thallur village. So allegations made by P.W1 against A1 to A5 about their harassment towards P.W1 seems to be bald statement and except bald statement of P.W1 there is no material evidence placed before this court to show that the accused harassed the P.W1 physically and mentally.

17. Moreso, a bald statement of PW1 that accused harassed her mentally and physically for additional dowry is not at all enough to establish the accusation against accused U/s.498-A IPC. Furthermore it is an admitted fact that the alleged harassment of accused took place at

Bangalore and if really the A1 harassed the P.W1, who prevented the

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without taking any action against the offenders. But admitted by the P.W1 did not give any report Bangalore against the accused No.1 that itself also gives an inference over the case of P.W1.

18. It is also an admitted fact that the PW7 did not examine any neighbour at Bangalore to prove the alleged harassment caused by A1 towards PW1 and non-examination of neighbours at Bangalore caused lacuna to the case of prosecution.

19.More so, PWs2 and 3 being parents of PW1 went on same lines of PW1. Now as seen the evidence of independent witnesses i.e.,

PWS4 to 6, it is the version of PW4 that he does not know other facts of the case and he came to know about dowry through PW1. It is the version of PW5 that he does not know factual aspect of the dispute in between family members of A1 and family members of PW1. It is the evidence of

PW6 that disputes arose in between accused and PW1 and a mediation was conducted in his house. So the evidence of PWs4 to 6 is also not cogent and sufficient to prove the allegations levelled against accused persons. Furthermore it is an admitted fact that the P.W2 to 6 are not at all neighbours of the A1's house where the alleged offence took place, they are relatives of P.W1, so they can speak false evidence at the instance of P.W1 as suggested by learned defence counsel. On the other hand, the learned counsel for the accused argued that whatever the entire allegations made by the P.W1 against accused are general and sweeping, as the P.W1 to 6 have not stated any specific dates and details of the alleged incidents, as well as which were also not mentioned in the

Ex.P1 report. So that part of evidence cannot be taken into consideration as it is no evidential value to convict the accused persons.

20. At this juncture it is held that, if really the accused harassed the

P.W1 for unlawful demand of additional dowry, any of the prosecution witnesses can say the specific date and when and where the accused demanded the P.W.1 for additional dowry. It is the duty cast upon the prosecution to prove the said material fact. If really accused harassed the

P.W.1 for alleged additional dowry and P.W.1 gone to the extent of left the matrimonial home. Then the prosecution witnesses can speak specific dates or occasion of alleged harassment of accused, but in the absence 8 of 11

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of such material evidence, no truthfulness can be given over the evidence of P.W.1 to P.W.6.

21. As it is clearly discussed by the Hon'ble Apex Court in the case of Giridhar Shankar Tawade Vs State of Maharashtra, reported in (2002) 5 SCC 177 that "The basic purport of statutory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascertain a meaning to the word 'cruelty' as is expressed by the legislature (a) involves three specific situations viz.,

(i) to drive the woman to commit suicide, or (ii) to cause grave injury, or

(iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury, whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embarrass the attributes of cruelty in terms of

Section 498(A) IPC"

22. Even as seen from the evidence of P.W1 to P.W6 the cruelty is not such as is likely to drive P.W.1 to commit suicide. It is not the case of

P.W.1 that she was being beaten by accused or caused grave injury or danger to life, limb or health. It is stipulated by our Hon’ble Apex court in the case of State of A.P vs M. Madhusudhan Rao reported in (2008) 15

SCC 582 that “Every harassment does not amount to “cruelty” within the meaning of Section 498-A. For the purpose of Section 498-A, harassment simpliciter is not “cruelty” and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property, etc. that it amounts to “cruelty” punishable under Section 498-A IPC.”

23. Therefore, it is not a mere conduct of the accused, which can satisfy the Court to convict the accused. It is wilful mis-conduct of the accused that means the accused must have intentionally and wilfully conducted themselves with clear intention that P.w1 should commit suicide or she should cause grave injury or danger to life, limb or health.

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“Accordingly, something more has to be proved before this Court other than the mere conduct of accused, to establish their intention and wilfulness in conducting themselves". Hence, the prosecution has to prove its case in terms of provisions under Section 498(A) of IPC and principles enumerated in the decisions stated supra.

24. It was also laid by the Hon’ble Apex Court in the case of Onkar

Nath Mishra Vs. State (NCT of Delhi) reported in 2008 (2) SCC 561 that “Section 498-A IPC was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives.” Further it cannot ignore the golden thread passing through criminal jurisprudence that an accused is presumed to be innocent till proved guilty and that the guilt of an accused must be established beyond a reasonable doubt. It must carefully assess the evidence and not allow either suspicion or surmise or conjectures to state the place of proof in their zeal to stamp out the evil from the society while at the same time not adopting the easy course of letting technicalities or minor discrepancies in the evidence result in acquitting an accused. It must critically analyses the evidence and decide the case in the realistic manner.

25. In the light of the scheme of the Act along with the above principles, now it shall to consider the merits of the present case, that there is no dispute that the marriage of the accused was performed with

PW1. In addition to that when the evidence of PW7/investigating officer is looked into he reiterated the procedure of investigation conducted by him.

Except such material facts of investigation there is no such piece of evidence to establish the fact that the accused caused harassment towards PW1.

26. Further it is also held by our Hon’ble Apex Court in Sushil

Kumar Sharma v. Union of India, reported in (2005) 6 SCC 281 that “the provision U/s.498-A IPC is intended to be used as a shield and not as an assassin’s weapon.” Hence, it is clear that where the harassment is caused with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security, it is 10 of 11

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punishable under section 498-A I.P.C. In the instant case, it is held that the prosecution has not been able to establish allegations against the accused as there is no evidence against the accused and allegations against accused with regard to causing cruelty towards PW1 are only vague and general in nature. So itself create doubt over the case of the prosecution and that it is settled law that while considering the case of cruelty under section 498-A I.P.C, the court must examine the allegations or accusation against the accused and it should be proved beyond all reasonable doubt. To that context, it is relied upon the decision reported in “ Smt. Raj Rani v. State (Delhi Administration) reported in AIR 2000

SC 3559, wherein our Hon'ble Supreme Court held that “while

considering the case of cruelty in the context to the provisions of Section 498A of the Indian Penal Code, the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt”. Having perused the above principle, this court now likes to bring up the evidence of prosecution witnesses.

27. So having perused of overall examination of the evidence on record, it is apparent that except the PWs1 to 6, no other witnesses specified the acts made by the accused towards P.W1. Even the evidence of PWs2 to 6 that are discussed above, it is apparent that they have given their evidence in a routine manner without narrating any sort of incident of assault, torture or about time, date and manner of torture so as to reflect what sort of torture was made upon her. Their evidence is absolutely silent as regards the manner of torture or as to what sort of dowry demand was made by the accused. So, the allegation made by

PW1 was cryptic without any elaboration as to what sort of torture was made upon her. Therefore, this court arrived at a finding that all the prosecution witnesses have not been able to prove the incident of torture upon the PW1 to constitute the offence of cruelty within the purview of

Section 498(A) IPC.

28. So in view of considering all these facts, circumstance and afore said discussion this court comes to conclusion that the theory of demanding of amount appears to have been invented by the P.W1 for the first time at the time of giving the report to the Women police station under Ex.P1 report in order to create fear to the accused. In these 11 of 11

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circumstances, it is highly unsafe to place reliance on the evidence of

P.W1 to P.W6 and except oral assertion of P.W1 there is no material evidence placed before this court that the accused harassed the PW1 by physically and mentally for additional dowry. So it is safe to come to conclusion that the prosecution has failed to establish the guilt of the accused under section 498-A of I.P.C and sections 3 and 4 of Dowry prohibition Act. For the reasons stated supra the A1 to A5 are entitled for benefit of doubt. Accordingly, I answer this point against the prosecution.

29. IN THE RESULT, A1 to A5 are not found guilty for the offence punishable U/sec. 498-A r/w 34 I.P.C. & Secs. 3 & 4 of D.P. Act and accordingly, they are acquitted U/s. 248(1) of Cr.P.C. The bail bonds of

A1 to A5, if any, shall be in force for a period of six months as required

U/s. 437-A of Cr.P.C.

Directly typed to my dictation by the Stenographer Gr-III, corrected and pronounced by me in open court, this the 18 th day of January, 2025.

Sd/- Mohammad Gouse.

II ADDL. CIVIL JUDGE (JR. DIVISION),

SATTENAPALLI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: None P.W.1: G. Ramya Jyothi. P.W.2: G. Subbareddy. P.W.3: G. Jayalakshmi. P.W.4: M. Raghu Rami Reddy. P.W.5: G. Venkat Reddy. P.W.6: Ch. Vijay Bhaskar Reddy. P.W.7: G. Nageswararao/S.I.

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE: --NIL-- Ex.P1: Report given by PW1 to the police. Ex.P2: FIR. Ex.P3: Rough Sketch.

MATERIAL OBJECTS

--Nil--

Sd/- Mohammad Gouse.

II ADDL. CIVIL JUDGE (JR. DIVISION),

SATTENAPALLI.

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CALENDAR & JUDGMENT

IN THE COURT OF II ADDL. CIVIL JUDGE (JR. DIVISION),

SATTENAPALLI.

C.C. No. 181 / 2018

1. Date of Offence : 02.12.2017

2. Filing : 11-06-2018

3. Date of apprehension of the accused : 15-04-2018

4. Date of release on bail : 15-04-2018

5. Date of commencement of trial : 28-11-2023

6. Date of close of trial : 25-06-2024

7. Date of Sentence or Order : 18-01-2025

8. Explanation of delay if any : Delay is due to non- production of witnesses by the prosecution in time. Arguments of both sides were finally heard on 16.01.2025 and the judgment was

pronounced on 18.01.2025.

Hence, the delay. COMPLAINANT:

State represented by the Sub-Inspector of police, Pedakurapadu P.S.

ACCUSED:

1. Gudisa Narsi Reddy, S/o. China Sambireddy, 32 Years,

2. Gudisa Lakshmi Kumari @ Lakshmi, W/o. China Sambireddy, 47 Years,

3. Gudisa China Sambireddy @ Sambireddy, S/o. (Late) Ramireddy, 55 Years,

4. Gudisa Thulasi Reddy, S/o. China Sambireddy, 30 Years,

5. Gudisa Lakshmi, W/o. Koti Reddy, 45 Years, 75-Thyalluru village, Pedakurapadu Mandal.

Section of Law : U/sec. 498-A r/w 34 I.P.C. & Sec. 3 & 4 of D.P. Act.

Finding of Court : A1 to A5 are not found guilty.

Sentence/Order :In the result, A1 to A5 are not found guilty for the offence punishable U/sec. 498-A r/w 34 I.P.C. & Secs. 3 & 4 of D.P. Act and accordingly, they are acquitted U/s. 248(1) of Cr.P.C. The bail bonds of A1 to A5, if any, shall be in force for a period of six months as required U/s. 437-A of Cr.P.C.

Sd/- Mohammad Gouse.

II ADDL. CIVIL JUDGE (JR. DIVISION),

SATTENAPALLI.

Copy submitted to the Hon’ble Chief Judicial Magistrate, Guntur District.

APGU1D0004332016

IN THE COURT OF THE II ADDITIONAL CIVIL JUDGE

(JR. DIVISION), SATTENAPALLI.

Present:- MOHAMMAD GOUSE II Addl. Civil Judge (Jr. Division), Sattenapalli.

Tuesday, this the 15th day of April, 2025.

C.C.No. 391 of 2016

Between:

State represented by the Sub-Inspector of police, Pedakurapadu P.S. …Complainant.

And

1. Kota Nagabhusana Rao, S/o. Ramachandraiah, 56 Years,

2. Kota Naga Sudheer, S/o. Nagabhusana Rao, 36 Years,

3. Kota Venkateswarlu, S/o. Nageswara Rao, 28 Years,

4. Penumutchu Ravindra Babu, S/o. Raghava Rao, 31 Years,

5. Patibandla Bala Swamy, S/o. Francis, 45 Years, (Died)

All are R/o. Mandepudi village, Amaravathi Mandal. ...Accused.

This case is coming on 08.04.2025 before me for final hearing in the presence of Learned Assistant Public Prosecutor for the Prosecution and Sri. J. Ranga Raju and Sri. R.V. Ramana Naik Learned Counsel for A1 to A5 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, Pedakurapadu Police Station has filed a charge sheet against A1 to A5 in Cr.No.08 of 2016 for the offence punishable U/ss. 420,468,471 and 109 r/w. 34 of the I.P.C. and Sec. 82 of

Registration Act.

02. The brief facts of the charge sheet are as under:

a) A1 is the son of L.W.2-K. Rama Chandraiah, whereas A2 is the son of A1. L.W.5-Penumachu Babu Rao married the daughter of L.W.2 2 of 13

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and all are living in the terraced house, constructed in the site, which is in lawful possession of L.W.5. Whereas one Penumatchu Subbaiah, S/o.

Chandraiah purchased a site to an extent of 31 cents, which is located in

Survey Number 345/B of Mandepaudi Village and the property was originally owned by Penumutchu Subbaiah, who purchased it in the year 1945 and 1948 in two pieces, which are adjoining to each other. After purchasing first piece of property admeasuring AC.0.21 in the year 1945, got constructed a house therein. Subsequently in the year 1948, Subbaiah purchased the second piece of property admeasuring Ac.0.10 cents of vacant site on the north side of the house.

b) The grandfather of L.W.5 by name Subbaiah did not construct any house in the second piece of the land, as such, it is vacant till date. After the death of the grandfather of L.W.5, the house along with vacant site consisting of Ac. 0.31 cents was devolved upon the father of

L.W.5 by name Penumutchu Kanakaiah. After the death of L.W.5’s father

Kanakaiah, the entire property devolved upon L.W.5 by way of gift. On being learnt that L.W.2 lodged a complaint before L.W.3-T. Balaswamy who has been working as District Registrar, that the property admeasuring 692 Sq. Yards in Survey number 345/B of Mandepudi, was originally owned by L.W.5, which was purchased by grandfather of L.W.5, was no more vide

Document No. 753/1948 of SRO, Amaravathi. Subsequently the property was gifted to the father of L.W.5 by constructing a terraced house. After the demise of L.W.5’s father, the same property was devolved on L.W.5 by way of gift, who married the daughter of L.W.2. After the marriage of L.W.5,

L.W.2 along with his family members including A1 and A2 are living in the terraced house of L.W.5.

c) While the matter stood thus, A1 registered the site cum terraced house of L.W.5 in favour of his son A2 at SRO, Pedakurapadu which is an extent of 692 Sq. yards i.e., out of 31 Cents in S.No. 345/B of 3 of 13

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Mandepudi village under registered Document No. 966/2015 with fraudulent intention by submitting certificate furnished by A5 mentioned that the site in S.No. 345/B, having no structures, which was ancestral property, since L.W.2 and his wife are alive. A5 who furnished possession certificate in favour of A1, by colluding with A1 and A2 being ancestral property, as well as A3 and A4 also colluded with A1 got attested the registered document of A1, before L.W.1-P. Anjaneyulu since they know the facts of possession and enjoyment of site by L.Ws. 2 and 5 having terraced house. Even though the family members of L.W.2 including A1 and A2, the actual lawful right and possession of site having terraced house in Survey No. 345/B vide Document No. 966/15 of SRO Pedakurapadu is belongs to L.W.5, who was the son-in-law of L.W.2. A5 by colluding with

A1 to A4, furnished possession certificate with false information that the site of L.W.5 belongs to A1, having no structures through his ancestors since his parents and family members are alive. Believing the same, L.W.1 registered the site of L.W.5 in favour of A2. A3 and A4 attested the registered sale deed in the presence of L.W.1 and thus, A1 to A5 suppressed the facts with fraudulent intention, cheated Sub-Registrar i.e.,

L.W.1 as well as L.Ws. 2 and 5 and their family members by using the registered sale deed as genuine.

d) On that L.W.2 approached and lodged a complaint before

L.W.3. On that L.W.3 enquired into the matter with regard to the registration of Document No. 966/15 and submitted his enquiry report to the Director and Inspector General of Regn. & Stamps, Hyderabad and also elicited that the site having old terraced house, and the parents as well as the family members of A1 and A2 are living under the same roof. On that L.W.1 lodged a complaint before L.W.9/S.I. of police who in turn registered the same as a case in Cr. No. 8/16 U/s. 420, 468 and 471 r/w 34 of the I.P.C., and Sec. 82 of Registration Act, submitted the copies of F.I.R. to all Officers 4 of 13

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concerned, examined the witnesses and recorded their statements, inspected the scene of offence, drew rough sketch. During the course of investigation, L.W.10/S.I. of police examined the witnesses and recorded their statements and after completion of the investigation he filed charge sheet.

03. This court took cognizance for the offence punishable U/secs.

420, 468, 471 and 109 r/w 34 of the I.P.C. and Sec. 82 of Registration Act.

04. Copies of case record were furnished to A1 to A5 as required

U/s. 207 of Cr.P.C.

05. A1 to A5 were examined U/s. 239 Cr.P.C. and a charge for an offence punishable U/secs. 420, 468, 471 and 109 r/w 34 of the I.P.C. and

Sec. 82 of Registration Act was framed and read over to them for which they pleaded not guilty and claims for trial.

06. In order to prove the case, L.W.1/Sub-Registrar,

L.W.4/Panchayath Secretary, L.W.3/District Registrar, L.W.7 and L.Ws.9 and 10/S.I. of police were examined as P.Ws. 1 to 6 respectively. The remaining witnesses were said to be died. Exs.P1 to P11 were got marked.

Since A5 is died the case against A5 was abated on 02.04.2024.

07. After completion of the prosecution evidence, A1 to A4 were examined U/s. 313 Cr.P.C. by setting forth with the incriminating circumstances appearing in the evidence of prosecution, for which they denied the same and further reported that no defence evidence on their behalf.

08. Heard the learned Assistant Public Prosecutor and learned counsel for A1 to A4.

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09. Now the point for determination is

“Whether the prosecution could able to bring

home the guilt of A1 to A4 for the offence U/secs.

420, 468, 471 and 109 r/w 34 of the I.P.C. and Sec.

82 of Registration Act, beyond all reasonable

doubt?”

10. POINT:

The case of the prosecution is that A1 to A4 along with A5 intentionally cheated L.W.2 to grab his property by fraudulently thereby committed the offences U/secs. 420, 468, 471 and 109 r/w 34 of the I.P.C.

and Sec. 82 of Registration Act.

11. The learned A.P.P. submitted that in order to prove the guilt of the accused, P.Ws.1 to 6 have been examined. P.W.1 is the then Sub

Registrar, who has lodged a report to the police, P.W.2 is the Panchayat

Secretary, P.W.3 is the then District Registrar, who had conducted enquiry with regard to false information submitted by A-1, P.W.4 was the witness and P.Ws.5 and 6 are the Investigating Officers. All the testimonies of the witnesses prove the offence committed by the accused as their evidence is corroborative, as such prays to convict the accused according to law.

12. The learned counsel for the accused replied to the arguments of the learned A.P.P. and submitted that there are so many contradictions between the evidence of the defacto complainant and the official witnesses and original document relating to the subject property has not been seized and while conducting enquiry without calling for the accused it was conducted and the contents of the Ex.P-1 report are to be decided by a civil court only and it does not attract the criminal nature and as there is no corroboration of the evidence of the prosecution, the prosecution utterly 6 of 13

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failed to prove the guilt of the accused, as such the accused are liable to be acquitted.

13. In order to prove the case against A1 to A4, the prosecution has examined P.Ws.1 to 6 and the gist of the said testimony is as under:

a) P.W.1, who was the then Sub Registrar deposed that on 07.04.2015 A-1 executed a gift deed in favoaur of his son/A-2 to an extent of 629.2 sq. Yards of vacant site situated in Sy.No.345/B of Mandepudi village and at that juncture A-5 gave a certificate in favour of A-1 certifying that the said vacant site was in possession of A-1 and it is his ancestral property and basing on the same, he registered the settlement deed presented by A-1. Subsequently, L.W.2, who is none other than the father of A-1, filed a complaint before theP.W.3/District Registrar alleging that the said land does not belongs to A-1 and he has no right over the said property and the same was got registered fraudulently. Then P.W.3 conducted due enquiry and found that A-1 does not have any property and by making false statement, A-1 intentionally delivered the false document and then requested P.W.1 to file a criminal case and in turn he lodged a report to police against A-1 to A-5. During his cross-examination he stated that

L.W.2 did not give any complaint to him and he also did not receive any copy of the complaint from the District Registrar, but he simply submitted the enquiry report of the District Registrar to the police.

b) P.W.2 who is Panchayat Secretary deposed that as per the records available in the office, the house situated in Assessment No.133 of

Mandepudi village belongs to one Kota Ramachandraiah. During his cross- examination he was cross-examined in very short, and he admitted that he has stated before the police about the assessment number but not the survey number.

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c) P.W.3, who is the then District Registrar stated that he received a complaint on 20.04.2015 from Kota Ramachandraiah with regard to illegal registration of document bearing No.966/2015 of S.R.O.,

Pedakurapadu alleging that A-1 created a settlement deed in favour of his son/A-2 in respect of the property of 691 sq. Yards in Sy.No.345/B of

Mandepudi village with all false information by suppressing the facts of structures situated in the said land and also by furnishing false certificate issued by the V.R.O., Mandepudi. Then he conducted enquiry and found that the subject property belongs to the forefathers of Penumachu

Baburao/L.W.5 and that there is a RCC building and his enquiry also reveals that A-1 is not only the legal heir but there are three siblings. As such A-1 is liable for prosecution u/s.82 and 83 of the Indian Registration

Act and reported the matter to the Commissioner of Stamps and

Registration. During his cross-examination he stated that he did not enquire about the person who has executed the alleged document and who abetted for execution of said document and also admitted that he did not submit any enquiry report to the police. He further admitted that L.W.2-Kota

Ramachandraiah is not a title holder of the subject property and his enquiry reveals that the house is located in Ac.0.13 cents which includes some vacant site and basing on the VRO certificate the document was registered and he categorically stated that he did not enquire the said V.R.O. He denied to the suggestion that at the instance of one YSS Sai Babu, the case has been foisted.

d) P.W.4 who is the witness did not support the case of prosecution and turned hostile. Though the witness is cross-examined by the learned A.P.P., nothing elicited in support of the prosecution.

e) P.W.5, Inspector of Police stated that on receipt of complaint sent by P.W.1 on 26.02.2016, he registered the same as FIR in Cr.No.8 of 2016 for the offences punishable u/ss.420, 468, 472 r/w.34 IPC and 8 of 13

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Section 82 of the Registration Act and examined the statements of the witnesses and prepared two rough sketches and sent a requisition to P.W.1 requiring the relevant documents of the subject property. During the cross- examination he stated that no document was annexed to the Ex.P-1 report and he also did not receive any letter from P.W.1 during the investigation and he denied to the suggestion that his investigation is a table enquiry.

f) The only remaining I.O., is P.W.6 who has conducted further investigation and stated that after verifying the documents received from his predecessor/P.W.5 secured the presence of the witnesses and recorded their statements and also got recorded the Section 164 cr.p.c.

statement of L.W.2 and after obtaining legal opinion he filed charge sheet.

During cross examination, he stated that he also did not get any documents relating to the disputed land from the accused. He categorically admitted that his investigation reveals that the disputed subject land does not belong to L.W.2. He denied to the suggestion that his investigation is a table investigation and the present case is foisted against the accused on the political pressure.

14. I would like to appreciate the evidence of prosecution by keeping in mind the ingredients of Sections 420, 468, 471, 109 r/w.34 IPC and Sec- tion 82 of the Registration Act, 1908.

15. As per the prosecution version, the P.W.3 received a complaint on 20.04.2015 from L.W.2/Kota Ramachandraiah with regard to illegal registration of document, as A-1 created a settlement deed in favour of his son/A-2 in respect of the property in Sy.No.345/B of Mandepudi village, and the enquiry conducted by P.W.3 reveals that the A-1 by submitting false information got registered the land. Then the P.W.3 reported the matter to the Commissioner of Stamps and Registration and as per the 9 of 13

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directions of higher authorities, P.W.3 instructed P.W.1 to lodge a complaint.

16. A perusal of the record discloses that the investigation in this case has been conducted by the Registration authorities, prior to lodging the complaint, and later on, by the police after lodging the complaint. After conducting a full-fledged enquiry, the P.W.3 got prepared an enquiry report, but the said report has not been filed before the court. The power conferred to the District Registrar to conduct enquiry and impose penalty is u/s.82 of the Registration Act. But, nowhere was it mentioned that after conducting enquiry, whether any penalty was imposed against the accused or not.

17. At this juncture, it is relevant to extract the Section 82 of the

Registration Act, 1908. Section 82 of the Registration Act, 1908 reads as under:

“S.82. Penalty for making false statements, delivering false copies or translations, false personation, and abetment.

- Whoever

(a) intentionally makes any false statement, whether on oath or not, and whether it has been recorded or not,

before any officer acting in execution of this Act, in any

proceeding or inquiry under this Act; or

(b) intentionally delivers to a registering officer, in any proceeding under section 19 or section 21, a false copy or translation of a document, or a false copy of a map or plan; or 10 of 13

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(c) falsely personates another, and in such assumed character presents any document, or makes any admission or statement, or causes any summons or commission to be issued, or does any other act in any proceeding or enquiry under this Act; or

(d) abets anything made punishable by this Act, shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.”

18. Though the penalty was imposed or not, but as P.W.3 conducted enquiry and filed the report, the said report should have filed before the

Court, but no report has been filed. In the absence of the said report, this

Court has to take into consideration the investigation done by the

Investigating Officers i.e., P.Ws.5 and 6. When it comes to the evidence of P.W.5, who has conducted initial investigation, stated that he did not collect any documents during the course of his investigation. Contrary to that P.W.6, who is the successor of P.W.5, stated that he verified the certified copies of the documents obtained by his predecessor. During his cross-examination he also stated that he did not get any documents relating to the disputed land from the accused during his investigation.

Neither P.W.5 seized any document, nor did P.W.6 obtain the document relating to the subject property. Then, how the P.W.6 conducted investigation in the absence of the relevant documents is the million dollar question.

19. As per the contention of L.W.2, the subject land does not belong to A-1, even then the A-1 fraudulently got registered the same in the name of his son/A-2. However, L.W.2 who sets the law into motion has not been examined as he was reported as dead. But, as seen from the testimony of 11 of 13

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P.W.3, in his chief examination itself, stated that his enquiry reveals that the subject property belongs to the forefathers of one Penumachu

Baburao/L.W.5.

20. In order to attract the offence u/s.468 IPC, the prosecution has to establish that the accused commits forgery, intending that the document forged shall be used for the purpose of cheating. Further, to attract Section 471 IPC, it is to be established that the accused fraudulently or dishonestly uses as genuine the document, which he knows or has reason to believe to be a forged document. Furthermore, to prove the Section 420 IPC, it should prove that the accused dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security or anything which is signed or sealed, and which is capable of being converted into a valuable security.

21. A reading of the above sections explain that in order to prove the forgery, the accused must commit forgery of a document and uses it as genuine for which he knows or has reason to believe to be a forged document. But in the present case, neither the police seized the forged document nor did the prosecution take any steps to send the forged document for the opinion of the Expert. Firstly, it must be proved that there was a forged document and secondly, it should have been used as a genuine for the purpose of cheating. Without pointing a forged document, the prosecution cannot prove that the accused said to have forged document and by using the same cheated the defacto complainant.

22. A perusal of the record clearly shows the laches and also the lacunas on the part of the prosecution so also the Investigating Officers.

Therefore, in view of the above evidence, this court opines that the prosecution miserably failed to prove the guilt of the accused 1 to 4 for the 12 of 13

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offences under Sections 420, 468, 471 and 109 r/w. 34 IPC and Sec. 82 of

Registration Act beyond all reasonable doubt. Accordingly, the point is answered against the prosecution.

23. IN THE RESULT, A1 to A4 are not found guilty for the offence punishable U/ss. 420, 468, 471 and 109 r/w 34 of the I.P.C. and Sec. 82 of

Registration Act and accordingly, they are acquitted U/s. 248(1) Cr.P.C.

The bail bonds of A1 to A4, if any, shall be in force for a period of six months as required U/sec.437-A of Cr.P.C. The case against A5 is abated on 02.04.2024.

Directly typed to my dictation by the Stenographer Gr-III, corrected and

pronounced by me in open court, this the 15 th day of April, 2025.

Sd/- Mohammad Gouse.

II ADDL. CIVIL JUDGE (JR. DIVISION),

SATTENAPALLI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: None

P.W.1: P. Anjaneyulu/Sub-Registrar.

P.W.2: K. Venkatadri/Panchayath Secretary.

P.W.3: T. Balaswamy/District Registrar.

P.W.4: B. Sambasiva Rao.

P.W.5: K. ChandraSekhar/S.I. of police.

P.W.6: P. Nageswara Rao/S.I. of police.

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE: --NIL--

Ex.P1: Report.

Ex.P2: Attested copy of letter.

Ex.P3: CC of document No. 753/1948.

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Ex.P4: CC of the alleged settlement deed Dt: 07.04.2016.

Ex.P5: Certificate given by A5.

Ex.P6: CC of partition deed, Dt: 27.05.2014.

Ex.P7: 161 Cr.P.C statement of PW4.

Ex.P8: F.I.R.

Ex.P9: Rough Sketch.

Ex.P10: Rough Sketch.

Ex.P11: 161 Cr.P.C statement of PW6.

MATERIAL OBJECTS

--NIL--

Sd/- Mohammad Gouse.

II ADDL. CIVIL JUDGE (JR. DIVISION),

SATTENAPALLI.

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CALENDAR AND JUDGMENT

IN THE COURT OF II ADDL. CIVIL JUDGE (JR. DIVISION),

SATTENAPALLI.

CC.No. 391 of 2016

DATE OF:

1. Date of Offence : Prior to 26.02.2016

2. Filing : 21-12-2016

3. Date of apprehension of the accused : ---

4. Date of release on bail : ---

5. Date of commencement of trial : 13-02-2020

6. Date of close of trial : 31-03-2023

7. Date of Sentence or Order : 15-04-2025

8. Explanation of delay if any : Delay is due to non- production of witnesses by the prosecution in time. Arguments of both sides were finally heard on 08.04.2025 and the judgment was pronounced on 15.04.2025. Hence the delay. ------------------------------------------------------------------------------------------------- COMPLAINANT: State represented by the Sub-Inspector of police, Pedakurapadu P.S. ACCUSED:

1. Kota Nagabhusana Rao, S/o. Ramachandraiah, 56 Years,

2. Kota Naga Sudheer, S/o. Nagabhusana Rao, 36 Years,

3. Kota Venkateswarlu, S/o. Nageswara Rao, 28 Years,

4. Penumutchu Ravindra Babu, S/o. Raghava Rao, 31 Years,

5. Patibandla Bala Swamy, S/o. Francis, 45 Years, (Died) All are R/o. Mandepudi village, Amaravathi Mandal.

Nature of Offence :- U/Sec. 420, 468, 471 and 109 r/w 34 of the I.P.C. and Sec. 82 of Registration Act. Finding :- A1 to A4 not found guilty. Sentence or Order :- In the result, A1 to A4 are not found guilty for the offence punishable U/ss. 420, 468, 471 and 109 r/w 34 of the I.P.C. and Sec. 82 of Registration Act and accordingly, they are acquitted U/s. 248(1) Cr.P.C. The bail bonds of A1 to A4, if any, shall be in force for a period of six months as required U/sec.437-A of Cr.P.C.

Sd/- Mohammad Gouse.

II ADDL. CIVIL JUDGE (JR. DIVISION),

SATTENAPALLI.

Copy submitted to the Hon’ble Chief Judicial Magistrate, Guntur.

IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE,

SATTENAPALLI.

PRESENT: Sri. Mohammad Gouse II Addl. Junior Civil Judge, Sattenapalli.

Friday, this the 14th day of July, 2023.

C.C.No. 95 of 2023

Between:

State represented by the Enforcement Inspector, Sattenapalli. …Complainant.

And

Alla Veera Reddy, S/o. Sambi Reddy, 54Years,

Kantepudi Village, Sattenapalli Mandal. ...Accused.

This case is coming on 12.07.2023 before me for final hearing in the presence of learned Assistant Public Prosecutor for the Prosecution and Sri M. Linga Reddy, learned counsel for the accused and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Inspector of police, SEB Station, Sattenapalli, filed charge sheet in Cr.No.13/21 of SEB Sattenapalli, against the accused for the offence punishable U/s. 34(a) of the AP Excise Act 1968.

02. The gist of the charge sheet is as under:

On 01.02.21 at about 10.20pm, LW1/Md. Khasim Sheriff/Sub-

Inspector of Police along with his staff LWs2 and 3 i.e.,

M.Venkateswarlu/Constable, T.Hanumantha Rao/Head Constable while detecting Prohibition and Excise Offences at Nandigama Cross Road,

Nandigama Village, Sattenapalli Mandal, they noticed the accused coming on the two wheeler bearing registration No. AP 39 FZ 7961 with a White colour plastic bag and on suspicious LW1 stopped the vehicle with the help of staff and on questioning the accused admitted that the said bag

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2 contains liquor bottles. Then LW1 instructed LW2 to secure mediators but non come forward to act as mediators. Then he decided to proceed with the special report and opened the bag and found 12 bottles of Southern

Blue Supreme Whisky with torned eals of duty paid liquor. On questioning the accused replied that he has no permit or license to sell the said bottles and confessed that he purchased the contraband from Sattenapalli GRO shops for selling them at higher prices. Then LW1 seized the bottles and the two wheeler from the possession of the accused and drawn a sample for analysis by following the Excise rules and arrested the accused and brought him along with seized contraband to the police station and registered the special report as FIR in Cr.No.13/21 for the offence U/s.

34(a) of AP Excise Act and sent the original FIR to the court and copies to all concerned and sent the accused for remand. Then LW1 sent the sample bottle to the Government Chemical Examiner for analysis and the Analyst opined that the sample contains Indian liquor and after receipt of the analysis report, and after completion of investigation LW4/Inspector of police filed charge sheet.

03. This court took cognizance for the offence punishable U/s. 34(a) of the AP Excise Act.

04. Copies of case record were furnished to the accused as required

U/s. 207 of Cr.P.C.

05. The accused was examined u/s.239 Cr.P.C. and a charge for the offence punishable U/s. 34(a) of the AP Excise Act was framed, read over and explained to him, for which he pleaded not guilty and claims for trial.

06. In order to prove the case, LW2/Constable and LW1/Sub-Inspector were examined as PWs 1 and 2 respectively. The remaining witnesses LWs

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3 3 and 4 i.e., T.Hanumanth Rao/Head Constable, D.Sreedhar

Babu/Inspector were given up by the prosecution. Ex.P1 to P5 and MO.1 was marked.

07. After completion of the prosecution evidence, the accused was examined U/s. 313 Cr.P.C. by setting forthwith the incriminating the circumstances appearing in the evidence of prosecution, for which he denied the same and further reported that no defence evidence on his behalf.

08. Heard the Learned Assistant Public Prosecutor and Learned

Counsel for the accused.

09. Now the point for determination is

“Whether the prosecution could able to establish the

guilt of the accused beyond all reasonable doubt for

the offence U/s. 34(a) of the AP Excise Act.”

10. POINT:

To prove the offence U/sec.34 (a) of the A.P Excise Act, the prosecution has to establish that accused herein imports, exports, transports, manufactures, collects or possess or sells any intoxicant in contravention of the A.P. Excise Act,1968 or any license or of permit granted or issued under this Act.

11.According to the evidence of PWs.1 and 2, who are the SEB consta- ble and SEB Sub Inspector, they deposed in one voice that, on 01.02.2021 at about 10.40 p.m., while P.W.2-Sub Inspector of Police along with his staff i.e., P.W.1 and L.W.3-T. Hanumantha Rao, conducting raids, they no- ticed a two wheeler bearing registered No.A.P.39-FZ-7961 on which the

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4 accused being the rider of the said vehicle riding by keeping a white colour polythene bag and on seeing them in uniform, he tried to flew away and on the instructions of the Sub Inspector of Police, L.W.2 detained him and on questioning he admitted that he is in possession of liquor bottles and when P.W.2 sent P.W.1 to bring mediators, but his efforts are in vain and as no one come forward to act as mediator P.W.2 proceeded with special report and opened the bag and found total 12 liquor bottles of 180 ml.

each i.e., Southern Blue Supreme Whisky bottles, which are found to be duty paid liquor. Then P.W.2 ascertained the identity particulars as that of the accused and when questioned about the source of liquor bottles, he has stated that he purchased the said bottles from different GROs to sell the same for higher rate to eke out his livelihood. Then P.W.2 lifted one bottle as a sample and after explaining the grounds of arrest, arrested the accused and seized the contraband. Basing on the mediator report, P.W.2 registered a case in Cr.No.13/2021 under Sec.34(a) of the A.P.Excise Act and forwarded the accused to the court for judicial remand. Thereafter,

P.W.2 sent the sample bottle to the chemical examiner, AP Excise and Pro- hibition Laboratory for chemical examination and after completion of in- vestigation, L.W.4-Inspector of Police filed charge sheet against the ac- cused.

12. PW.1 admitted in his cross-examination that no written summons or notices were given to him to serve the same on the mediators and no calls were made to any persons requesting to act as mediators and to the question regarding the names of the persons to whom he asked to act as mediators, he replies that he could not recollect the names of the said persons and he also stated that no batch numbers or manufacturing dates of the seized liquor bottles were mentioned in the Ex.P-1 report. Both

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5

P.Ws.1 and 2 admitted that the scene of offence was a very busy locality and though the public gathered at the scene of offence, they did not try to ask them to act as mediator and for the reasons best known to them why they could not secure them. P.W.1 simply stated that he tried to se- cure the VRO and VRA of the village, but as they were not available, he returned to the scene of offence and reported the same to P.W.2. How- ever, he failed to apprise the particulars of the said VRO or VRA for whom he tried to secure. His evidence further discloses that he tried for only

VRO and VRA, but not any local respectable inhabitants, so also Ex.P1 special report is also silent about as to whom he requested to act as me- diators and who refused to join in the seizure proceedings. Neither the special report nor the evidence of PWs-1 and PW.2 would disclose the names of persons, whom PW.1 requested to act as mediators for the al- leged search and seizure. It is not at all the evidence of either PW.1 or

PW-2 that they had ever attempted to summon any independent wit- nesses to act as mediators. The stereo type of evidence of non-availability of independent witnesses for search and seizure does not suffice, partic- ularly when at the time of search and seizure it could be possible to secure independent mediators. But, here in the case on hand, the scene of of- fence is a busy locality situated on the road leading from Sattenapalli to

Kantepudi, and also as admitted by P.W.2 gathering of the public was there, even then he did not try to secure the mediators and the reason for not securing the independent mediators is also not explained by him.

When the SEB personnel are searching to secure the mediators in the village admittedly shops, hotels and residential houses would be available and there is every possibility of securing the presence of independent me- diators from the vicinity, moreover a huge gathering of the public was also there at the scene of offence, in such circumstances, the SEB officials are

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6 bound to take local respectable independent inhabitants of the locality and they must make sincere efforts to secure local mediators as mandated by

Section 100(4) of Criminal Procedure Code. If not followed, it would not only be a contravention to the procedure laid down under Section 100(4) of Criminal Procedure Code but also a doubtful circumstance as to the genuineness of search and seizure conducted by the SEB officials. It is relevant to extract Sec.100(4) of Cr.P.C.

Sec. 100(4) Cr.P.C reads thus:

“Before making a search under this chapter, the

officer or other person about to make it shall call

upon two or more independent and respectable

inhabitants of the locality in which the place to be

searched is situated or of any other locality if no

such inhabitant of the said locality is available or is

willing to be a witness to the search, to attend and

witness the search and may issue an order in

writing to them or any of them so to do.”

13. On a close reading of the above section, it is clear that the officer

before making search shall call at least two or more respectable inhabit-

ants of the locality in which the place is to be searched and if no such inhabitants of the locality are willing to be a witness to the search, the officer may issue an order in writing or any of them so it to do.

14. On this point, I feel it appropriate to remember a decision of the

Honourable Apex court rendered in between Matajog Dobey Vs H.C.

Bhari reported in 1955 (2) SCR 925, wherein, it was held that:

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7

“When a power is conferred or a duty imposed by

statute or otherwise, and there is nothing said ex-

pressly inhibiting the exercise of the power or the

performance of the duty by any limitations or re-

strictions, it is reasonable to hold that it carries with

it the power of doing all such acts or employing such

means as are reasonably necessary for such execu-

tion, because it is a rule that when the law com-

mands a thing to be done, it authorizes the perfor-

mance of whatever may be necessary for executing

its command.”

15. In the light of the above legal principle, it is clear that when the law required a particular thing to be done in a particular way it must be done in that way only and not otherwise. If any violation of the statutory provision makes the act of investigation officer doubtful when it is bereft of proper explanation as to what made him impossible for complying with the said statutory provisions. Here in this case, the investigating officer did not offer convincing explanation and failed to explain the circum- stances which made it impossible for her to conduct seizure proceedings in the presence of respectable inhabitants of the vicinity as contemplated under Sec.100(4) of Cr.P.C. It appears that PW.2 or PW.1 did not make any effort to secure the immediate neighbours of the said locality, but said to have proceeded to the village for securing village officials and in vain, which version deposed by Pws.1 and 2 appears to be not believable.

Hence, the testimonies of Pws.1 and 2 cannot be said to be credible, reli- able and trustworthy to believe the prosecution case and as a conse- quence, the alleged seizure proceedings carried by the SEB personnel has to be seen with suspicion. When the seizure itself is doubtful, the alleged

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8 confession made by the accused in the presence of SEB personnel will be hit by Section 25 of Indian Evidence Act and is of no use for the prosecu- tion to prove against the accused. It is well settled principle that the object of Section 100(4) of Cr.P.C. is to ensure confidence in the neigh- bours and in the public general that a genuine search has been made and incriminating material has been really found and not planted in order to implicate the accused falsely.

16. It is well settled principle of law and the same is reiterated by our

Hon’ble High Court in Mudavath Mothia Vs. State of Andhra Pradesh

reported in 2002(1) ALT (Crl) 437, it was held that “the excise officers have to be treated as police officers for the purpose of Sec.25 of Indian

Evidence Act and no confession made to police officer shall be proved as against the person of accused of any offence and thereby the alleged con- fession made by the accused in the presence of excise officials is hit by sec.25 of the Indian Evidence Act and shall not be proved against him”.

As far as the alleged seizure of contraband from the accused is concerned, except the evidence of SEB personnel, there is no other independent ev- idence brought on record to prove the possession of contraband by ac- cused. The burden of proof rests on the shoulders of the prosecution and it has to be established by the prosecution that the required procedure as contemplated under Sec.100(4) of Cr.P.C for seizure is duly followed by the SEB personnel during the search and seizure. But the SEB personnel even not tried to secure the independent mediators from the vicinity and they gave a stereo type explanation that they tried to secure VRO or VRO but they were not available, as such, it does not inspire the confidence of the court. Furthermore, the SEB personnel having entrusted with the du- ties of prevention and detection of excise offences are generally interested in seeing success of their cases by getting the accused convicted. If that

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9 being so, in the absence of any corroborating evidence from the inde- pendent source of testimony, the evidence of the SEB officials has to be scrutinized with care and caution. In this case, the SEB personnel Pws.1 and 2 had given their evidence in a mechanical way. Unless there is le- gally acceptable, cogent and convincing evidence brought on record, it cannot be said that the prosecution had substantiated its charge against the accused beyond reasonable doubt. Even otherwise, at least PW.2 crime detecting officer did not take any steps to accompany some inde- pendent mediators to the place of occurrence before started to proceed for raid. The officer conducting raid must have shown a genuine attempt has been made to join the public witnesses in the search and seizure proceedings carried by them. A stereo type statements of non-availability of public witnesses or respectable inhabitants of the locality will not inspire the confidence of the court, when at the relevant point of time, it was not difficult to procure the services of independent witnesses, No doubt, when search and seizure is in open place, there is no mandatory requirement to secure the independent mediators of the locality. But apart from the head of the raiding team, the constable who has been sent for securing the mediators failed to disclose the names of the villagers whom he re- quested and who had refused to join in the seizure proceedings, it creates doubt in the mind of the court whether the prosecution witnesses had presented the true version as it was happened at the alleged place of occurrence. More particularly, when the liquor bottles similar to the con- traband seized are easily available in the market, it is expected that the

SEB officials should have seriously and sincerely tried for independent mediators to show their genuineness of proceedings and impartial inves- tigation.

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10

17. Regarding the credibility and reliability of the prosecution wit- nesses, our Honourable High Court in Babu Saheb @ Babu Vs. State of

A.P reported in 2010(1) ALT (Crl.) 32, held that; “The evidence let in by the prosecution must create confidence and must be reliable.”

18. It is the contention of the learned counsel for accused that no raid was conducted on the alleged date and no contraband was seized from the accused and the case was foisted for statistical purpose and it was a table investigation. No doubt, the acts of SEB officials in discharge of their official duties are presumed to be correct unless the contrary is proved.

But, when there was opportunity to secure the mediators, no convincing attempts being made and PWs.1 and 2 not deposing about the same is fatal to the prosecution case.

19. In Babu Saheb @ Babu Vs. State of A.P (supra), the Hon’ble

High Court also held that ‘no efforts being made to secure the mediators is doubtful. The necessity was emphasized by the Hon’ble High Court when there is seizure of contraband’.

20. InGajamker Narayana v. State of A.P. reported in 2005 (3)

A.L.T. (Crl.) Page.1, it was held by the Hon’ble Apex court that the sei- zure of contraband was held to be illegal when the provision of Sec- tion.100(4) of Code of Criminal Procedure is not complied. It was also held that the evidence of SEB officials is interested, artificial and routine.

21. In the case on hand also, Pw.s.1 and 2 did not depose the con- vincing reasons for non-securing of the independent mediators from the locality.

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11

22.In Botcha Raju v. State Rep.by the Inspector of Police, Vi- zianagaram Rural Circle reported in 1994 (2) A.L.T.(Crl.) P.69 (A.P.), it was held by the Hon’ble High Court of Andhra Pradesh that the conviction cannot be given basing on the sole evidence of the police offic- ers without corroboration by disinterested witnesses.

23. Thus, all the above said laches in the case of prosecution throws a doubt about the genuinity of the search and seizure in this case and as such, the accused is entitled to get benefit of doubt.

24. From the foregoing discussion and the reasons stated above and in the back drop of the evidence of PWs.1 and 2 being the SEB officials and their evidence pertaining to Ex.P1- special report, in view of the legal principles cited supra, this court feels that the prosecution failed to prove the guilt of accused beyond reasonable doubt for the offence U/sec.34(a) of the AP Excise Act. Therefore, it can be safely concluded that the accused is entitled for benefit of doubt.

25. IN THE RESULT, accused is not found guilty for the offence punishable u/sec. 34(a) of A.P. Excise Act and accordingly, he is acquitted u/s.248 (1) of Cr.P.C. The bail bonds of the accused shall remain in force for a period of six months as required U/s. 437-A Cr.P.C. M.O.1 covered under CPR.No.30/2021shall be destroyed after expiry of appeal time.

Directly typed to my dictation by the Stenographer Gr-III, cor- rected and pronounced by me in open court, this the 14 th day of July, 2023.

Sd/- Mohammad Gouse.

II ADDL. JUNIOR CIVIL JUDGE,

SATTENAPALLI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: None

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12

PW.1: M. Venkateswarlu/Constable

PW.2: Md. Khasim Shariff/Sub-Inspector

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE: --NIL--

Ex.P1: Special Report/Dt: 01.02.2021

Ex.P2: FIR/Dt: 02.02.2021

Ex.P3: Letter of Advice/Dt: 02.02.2021

Ex.P4: Chemical Analysis Report/Dt: 24.04.2021

Ex.P5: Confiscation Proceedings/Dt: 05.01.2022

MATERIAL OBJECTS

Mo.1: Sample Bottle.

Sd/- Mohammad Gouse.

II ADDL. JUNIOR CIVIL JUDGE,

SATTENAPALLI.

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13

CALENDAR & JUDGMENT

IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE,

SATTENAPALLI.

C.C.No.95 of 2023

DATE OF:

Offence : 01.02.2021

Filling : 06.02.2023

Apprehension of accused : 01.02.2021

Released on bail : 15.02.2021

Commencement of trial : 13.06.2023

Close of trial : 22.06.2023

Sentence or order : 14.07.2023

Explanation for delay : Due to non-production of witnesses.

COMPLAINANT:

State represented by the Enforcement Inspector, Sattenapalli. (Cr.No.13/2021)

ACCUSED:

Alla Veera Reddy, S/o. Sambi Reddy, 54Years, Kantepudi Village, Sattenapalli Mandal.

Offence : U/s. 34(a) of AP Excise Act

Finding : Found not guilty

Sentence : Accused is not found guilty for the offence punishable U/sec. 34(a) of AP Excise Act and accordingly, he is acquitted U/s.248 (1) of Cr.P.C. The bail bonds of the accused shall remain in force for a period of six months as required U/s. 437-A Cr.P.C. M.O.1 covered under CPR.No.30/2021shall be destroyed after expiry of appeal time.

Sd/- Mohammad Gouse.

II ADDL. JUNIOR CIVIL JUDGE,

SATTENAPALLI.

Copy submitted to: The Hon’ble Chief Judicial Magistrate, Guntur.

IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE,

SATTENAPALLI.

PRESENT: Sri Mohammad Gouse II Addl. Junior Civil Judge, Sattenapalli.

Friday, this the 14th day of July, 2023.

C.C.No. 43 of 2023

Between:

State represented by the Station House Officer, SEB Station, Thullur. …Complainant.

And

Perumalla Chalapathi Rao, S/o. Venkateswarlu, 53Years,

Lingapuram Village, Amaravathi Mandal. ...Accused.

This case is coming on 11.07.2023 before me for final hearing in the presence of learned Assistant Public Prosecutor for the Prosecution and Sri Bayyavarapu Narasimha Rao, learned counsel for the accused and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Enforcement Inspector of police, SEB Station, Thulluru, filed charge sheet in Cr.No.60/21 of SEB Thulluru, against the accused for the offence punishable U/s. 34(a) of the AP Excise Act 1968.

02. The gist of the charge sheet is as under:

On 25.11.21 at about 9.00am, LW3/Y.Venkateswarlu/ Inspector of Police along with his staff while conducting raids near Bus stop left side margin Lingapuram Village towards to Amaravathi to Pedakurapadu road of Amaravathi Mandal, they noticed the accused with a Black polythene cover and on seeing them the accused got perturbed and tried to escape, then on the instructions of LW3, LW1 and 2 detained him and on

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2 questioning the accused admitted that the said bag contains liquor bottles. Then LW3 instructed LW1 to secure mediators but non come forward to act as mediators. Then he decided to proceed with the special report and opened the bag and found 9 Nips of 9 Sea Horses Whisky with torned eals of duty paid liquor. On questioning the accused replied that he has no permit or license to sell the said bottles and confessed that he purchased the contraband from the Government retail outlets for selling them at higher prices at Amaravathi village for eking out his livelihood.

Then LW3 seized the bottles from the possession of the accused and drawn a sample for analysis by following the Excise rules and arrested the accused and brought him along with seized contraband to the police station and registered the special report as FIR in Cr.No.60/21 for the offence U/s. 34(a) of AP Excise Act and sent the original FIR to the court and copies to all concerned and sent the accused for remand. Then LW3 sent the sample bottle to the Government Chemical Examiner for analysis and the Analyst opined that the sample contains Indian liquor and after receipt of the analysis report, and after completion of investigation he filed charge sheet.

03. This court took cognizance for the offence punishable U/s. 34(a) of the AP Excise Act.

04.Copies of case record were furnished to the accused as required

U/s. 207 of Cr.P.C.

05. The accused was examined u/s.239 Cr.P.C. and a charge for the offence punishable U/s. 34(a) of the AP Excise Act was framed, read over and explained to him, for which he pleaded not guilty and claims for trial.

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3

06. In order to prove the case, LW1/Constable and LW3/ Inspector were examined as PWs 1 and 2 respectively. The remaining witness LW2 i.e., M.Suresh Babu/Constable was given up by the prosecution. Ex.P1 to

P5 and MO.1 was marked.

07. After completion of the prosecution evidence, the accused was examined U/s. 313 Cr.P.C. by setting forthwith the incriminating the circumstances appearing in the evidence of prosecution, for which he denied the same and further reported that no defence evidence on his behalf.

08. Heard the Learned Assistant Public Prosecutor and Learned Counsel

for the accused.

09. Now the point for determination is

“Whether the prosecution could able to establish the

guilt of the accused beyond all reasonable doubt for

the offence U/s. 34(a) of the AP Excise Act.”

10. POINT:

To prove the offence U/sec.34 (a) of the A.P Excise Act, the prosecution has to establish that accused herein imports, exports, transports, manufactures, collects or possess or sells any intoxicant in contravention of the A.P. Excise Act,1968 or any license or of permit granted or issued under this Act.

11. According to the evidence of PWs.1 and 2, who are the SEB constable and SEB Inspector, they deposed in one voice that, on 25.11.2021 at about 9.30 a.m., while P.W.2-Inspector of Police along with his staff i.e., P.W.1 and L.W.2-M. Suresh Babu , conducting raids and

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4 when they reached near bus stop in Lingapuram village, they noticed the accused with a black colour polythene bag and on seeing them in uniform, he tried to flew away and on the instructions of the Inspector of Police,

P.W.1 and L.W.2 detained him and on questioning he admitted that he is in possession of liquor bottles and when P.W.2 sent P.W.1 to bring mediators, but his efforts are in vain and as no one come forward to act as mediator P.W.2 proceeded with special report and opened the bag and found total 10 liquor bottles of 180 ml. each i.e., 9 sea Horse Whisky bottles, which are found to be duty paid liquor. Then P.W.2 ascertained the identity particulars as that of the accused and when questioned about the source of liquor bottles, he has stated that he purchased the said bottles from different GROs to sell the same for higher rate to eke out his livelihood. Then P.W.2 lifted one bottle as a sample and after explaining the grounds of arrest, arrested the accused and seized the contraband.

Basing on the mediator report, P.W.2 registered a case in Cr.No.60/2021 under Sec.34(a) of the A.P.Excise Act and forwarded the accused to the court for judicial remand. Thereafter, P.W.2 sent the sample bottle to the chemical examiner, AP Excise and Prohibition Laboratory for chemical examination and after completion of investigation, he filed charge sheet against the accused.

12. PW.1 admitted in his cross-examination that no written summons or notices were given to him to serve the same on the mediators and no calls were made to any persons requesting to act as mediators and to the question regarding the names of the persons to whom he asked to act as mediators, he replies that he could not recollect the names of the said persons and he also stated that no batch numbers or manufacturing dates of the seized liquor bottles were mentioned in the Ex.P-1 report. Both

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5

P.Ws.1 and 2 admitted that the scene of offence was a very busy locality and though the public gathered at the scene of offence, they did not try to ask them to act as mediator and for the reasons best known to them why they could not secure them. P.W.1 simply stated that he tried to secure the mediators from the Village Secretariat of Lingapuram, but as they were not available, he returned to the scene of offence and reported the same to P.W.2. His evidence further discloses that he tried for only staff of Village secretariat, but not any local respectable inhabitants, so also Ex.P1 special report is also silent about as to whom he requested to act as mediators and who refused to join in the seizure proceedings.

Neither the special report nor the evidence of PWs-1 and PW.2 would disclose the names of persons, whom PW.1 requested to act as mediators for the alleged search and seizure. It is not at all the evidence of either

PW.1 or PW-2 that they had ever attempted to summon any independent witnesses to act as mediators. The stereo type of evidence of non- availability of independent witnesses for search and seizure does not suffice, particularly when at the time of search and seizure it could be possible to secure independent mediators. But, here in the case on hand, the scene of offence is a busy locality situated near Bus stop in

Lingapuram village, even then they did not try to secure the mediators and the reason for not securing the independent mediators is also not explained by him. When the SEB personnel are searching to secure the mediators in the village admittedly shops, hotels and residential houses would be available and there is every possibility of securing the presence of independent mediators from the vicinity, moreover a huge gathering of the public was also there at the scene of offence, in such circumstances, the SEB officials are bound to take local respectable independent inhabitants of the locality and they must make sincere efforts to secure

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6 local mediators as mandated by Section 100(4) of Criminal Procedure

Code. If not followed, it would not only be a contravention to the procedure laid down under Section 100(4) of Criminal Procedure Code but also a doubtful circumstance as to the genuineness of search and seizure conducted by the SEB officials. It is relevant to extract Sec.100(4) of

Cr.P.C.

Sec. 100(4) Cr.P.C reads thus:

“Before making a search under this chapter, the

officer or other person about to make it shall call

upon two or more independent and respectable

inhabitants of the locality in which the place to be

searched is situated or of any other locality if no

such inhabitant of the said locality is available or

is willing to be a witness to the search, to attend

and witness the search and may issue an order in

writing to them or any of them so to do.”

13. On a close reading of the above section, it is clear that the officer

before making search shall call at least two or more respectable

inhabitants of the locality in which the place is to be searched and if no such inhabitants of the locality are willing to be a witness to the search, the officer may issue an order in writing or any of them so it to do.

14. On this point, I feel it appropriate to remember a decision of the

Honourable Apex court rendered in between Matajog Dobey Vs H.C.

Bhari reported in 1955 (2) SCR 925, wherein, it was held that:

“When a power is conferred or a duty imposed by

statute or otherwise, and there is nothing said

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7

expressly inhibiting the exercise of the power or the

performance of the duty by any limitations or

restrictions, it is reasonable to hold that it carries with

it the power of doing all such acts or employing such

means as are reasonably necessary for such

execution, because it is a rule that when the law

commands a thing to be done, it authorizes the

performance of whatever may be necessary for

executing its command.”

15. In the light of the above legal principle, it is clear that when the law required a particular thing to be done in a particular way it must be done in that way only and not otherwise. If any violation of the statutory provision makes the act of investigation officer doubtful when it is bereft of proper explanation as to what made him impossible for complying with the said statutory provisions. Here in this case, the investigating officer did not offer convincing explanation and failed to explain the circumstances which made it impossible for her to conduct seizure proceedings in the presence of respectable inhabitants of the vicinity as contemplated under Sec.100(4) of Cr.P.C. It appears that PW.2 or PW.1 did not make any effort to secure the immediate neighbours of the said locality, but said to have proceeded to the village for securing village officials and in vain, which version deposed by Pws.1 and 2 appears to be not believable. Hence, the testimonies of Pws.1 and 2 cannot be said to be credible, reliable and trustworthy to believe the prosecution case and as a consequence, the alleged seizure proceedings carried by the SEB personnel has to be seen with suspicion. When the seizure itself is doubtful, the alleged confession made by the accused in the presence of

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8

SEB personnel will be hit by Section 25 of Indian Evidence Act and is of no use for the prosecution to prove against the accused. It is well settled principle that the object of Section 100(4) of Cr.P.C. is to ensure confidence in the neighbours and in the public general that a genuine search has been made and incriminating material has been really found and not planted in order to implicate the accused falsely.

16. It is well settled principle of law and the same is reiterated by our

Hon’ble High Court in Mudavath Mothia Vs. State of Andhra Pradesh

reported in 2002(1) ALT (Crl) 437, it was held that “the excise officers have to be treated as police officers for the purpose of Sec.25 of Indian

Evidence Act and no confession made to police officer shall be proved as against the person of accused of any offence and thereby the alleged confession made by the accused in the presence of excise officials is hit by sec.25 of the Indian Evidence Act and shall not be proved against him”.

As far as the alleged seizure of contraband from the accused is concerned, except the evidence of SEB personnel, there is no other independent evidence brought on record to prove the possession of contraband by accused. The burden of proof rests on the shoulders of the prosecution and it has to be established by the prosecution that the required procedure as contemplated under Sec.100(4) of Cr.P.C for seizure is duly followed by the SEB personnel during the search and seizure. But the SEB personnel even not tried to secure the independent mediators from the vicinity and they gave a stereo type explanation that they tried to secure

VRO or VRO but they were not available, as such, it does not inspire the confidence of the court. Furthermore, the SEB personnel having entrusted with the duties of prevention and detection of excise offences are generally interested in seeing success of their cases by getting the

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9 accused convicted. If that being so, in the absence of any corroborating evidence from the independent source of testimony, the evidence of the

SEB officials has to be scrutinized with care and caution. In this case, the

SEB personnel Pws.1 and 2 had given their evidence in a mechanical way.

Unless there is legally acceptable, cogent and convincing evidence brought on record, it cannot be said that the prosecution had substantiated its charge against the accused beyond reasonable doubt.

Even otherwise, at least PW.2 crime detecting officer did not take any steps to accompany some independent mediators to the place of occurrence before started to proceed for raid. The officer conducting raid must have shown a genuine attempt has been made to join the public witnesses in the search and seizure proceedings carried by them. A stereo type statements of non-availability of public witnesses or respectable inhabitants of the locality will not inspire the confidence of the court, when at the relevant point of time, it was not difficult to procure the services of independent witnesses, No doubt, when search and seizure is in open place, there is no mandatory requirement to secure the independent mediators of the locality. But apart from the head of the raiding team, the constable who has been sent for securing the mediators failed to disclose the names of the villagers whom he requested and who had refused to join in the seizure proceedings, it creates doubt in the mind of the court whether the prosecution witnesses had presented the true version as it was happened at the alleged place of occurrence. More particularly, when the liquor bottles similar to the contraband seized are easily available in the market, it is expected that the SEB officials should have seriously and sincerely tried for independent mediators to show their genuineness of proceedings and impartial investigation.

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17. Regarding the credibility and reliability of the prosecution witnesses, our Honourable High Court in Babu Saheb @ Babu Vs. State of A.P reported in 2010(1) ALT (Crl.) 32,held that; “The evidence let in by the prosecution must create confidence and must be reliable.”

18. It is the contention of the learned counsel for accused that no raid was conducted on the alleged date and no contraband was seized from the accused and the case was foisted for statistical purpose and it was a table investigation. No doubt, the acts of SEB officials in discharge of their official duties are presumed to be correct unless the contrary is proved.

But, when there was opportunity to secure the mediators, no convincing attempts being made and PWs.1 and 2 not deposing about the same is fatal to the prosecution case.

19. In Babu Saheb @ Babu Vs. State of A.P (supra), the Hon’ble

High Court also held that ‘no efforts being made to secure the mediators is doubtful. The necessity was emphasized by the Hon’ble High Court when there is seizure of contraband’.

20. InGajamker Narayana v. State of A.P. reported in 2005 (3)

A.L.T. (Crl.) Page.1, it was held by the Hon’ble Apex court that the seizure of contraband was held to be illegal when the provision of

Section.100(4) of Code of Criminal Procedure is not complied. It was also held that the evidence of SEB officials is interested, artificial and routine.

21. In the case on hand also, Pw.s.1 and 2 did not depose the convincing reasons for non-securing of the independent mediators from the locality.

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22.In Botcha Raju v. State Rep.by the Inspector of Police,

Vizianagaram Rural Circle reported in 1994 (2) A.L.T.(Crl.) P.69 (A.P.), it was held by the Hon’ble High Court of Andhra Pradesh that the conviction cannot be given basing on the sole evidence of the police officers without corroboration by disinterested witnesses.

23. Thus, all the above said laches in the case of prosecution throws a doubt about the genuinity of the search and seizure in this case and as such, the accused is entitled to get benefit of doubt.

24. From the foregoing discussion and the reasons stated above and in the back drop of the evidence of PWs.1 and 2 being the SEB officials and their evidence pertaining to Ex.P1- special report, in view of the legal principles cited supra, this court feels that the prosecution failed to prove the guilt of accused beyond reasonable doubt for the offence U/sec.34(a) of the AP Excise Act. Therefore, it can be safely concluded that the accused is entitled for benefit of doubt.

25. IN THE RESULT, accused is not found guilty for the offence punishable u/sec. 34(a) of A.P. Excise Act and accordingly, he is acquitted u/s.248 (1) of Cr.P.C. The bail bonds of the accused shall remain in force for a period of six months as required U/s. 437-A Cr.P.C. M.O.1 covered under CPR.No.16/2023shall be destroyed after expiry of appeal time.

Directly typed to my dictation by the Stenographer Gr-III, corrected and pronounced by me in open court, this the 14 th day of July, 2023.

Sd/- Mohammad Gouse

II ADDL. JUNIOR CIVIL JUDGE,

SATTENAPALLI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: None

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12

PW.1: P. Raju/Constable

PW.2: Y. Venkateswarlu/Inspector

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE: --NIL--

Ex.P1: Special Report/Dt: 25.11.2021

Ex.P2: FIR/Dt: 25.11.2021

Ex.P3: Letter of Advice/Dt: 09.01.2023

Ex.P4: Chemical Analysis Report/Dt: 21.01.2022

Ex.P5: Confiscation Proposals/Dt: 20.05.2022

MATERIAL OBJECTS

Mo.1: Sample Bottle.

Sd/- Mohammad Gouse

II ADDL. JUNIOR CIVIL JUDGE,

SATTENAPALLI.

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13

CALENDAR & JUDGMENT

IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE,

SATTENAPALLI.

C.C.No.43 of 2023

DATE OF:

Offence : 25.11.2021

Filling : 18.01.2023

Apprehension of accused : 25.11.2021

Released on bail : 30.11.2021

Commencement of trial : 26.06.2023

Close of trial : 28.06.2023

Sentence or order : 14.07.2023

Explanation for delay : Due to non-production of witnesses.

COMPLAINANT:

State represented by the Station House Officer, SEB Station, Thullur. (Cr.No.60/2021)

ACCUSED:

Perumalla Chalapathi Rao, S/o. Venkateswarlu, 53Years, Lingapuram Village, Amaravathi Mandal.

Offence : U/s. 34(a) of AP Excise Act

Finding : Found not guilty

Sentence : Accused is not found guilty for the offence punishable U/sec. 34(a) of AP Excise Act and accordingly, he is acquitted U/s.248 (1) of Cr.P.C. The bail bonds of the accused shall remain in force for a period of six months as required U/s. 437-A Cr.P.C. M.O.1 covered under CPR.No.16/2023shall be destroyed after expiry of appeal time.

Sd/- Mohammad Gouse

II ADDL. JUNIOR CIVIL JUDGE,

SATTENAPALLI.

Copy submitted to: The Hon’ble Chief Judicial Magistrate, Guntur.