Sri. Mohd. Bande Ali

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SC.No.191 of 2012

IN THE COURT OF ADDL. ASSISTANT SESSIONS JUDGE (FTC),

NIZAMABAD AT ARMOOR

Present: Sri Mohd. Bande Ali, B.Sc., LL.B., Asst. Sessions Judge, Nizamabad. FAC: Addl. Asst. Sessions Judge (FTC), Nizamabad at Armoor.

Friday, the 19th day of June, 2015

Sessions Case No.191 of 2012

Name of complainantThe State represented by the Sub Inspector of Police, PS Velpoor.

Name of AccusedKundhi Rajeshwar @ Poddutoori Rajeshwar, S/o. Rukmaiah, age: 30 years, Caste: Guradikapu, Occ: Business/Agrl.., R/o.Pachalanadkuda

(v), Velpoor (M).

ChargeUnder Section 354 IPC.

Plea of AccusedPleaded not guilty.

FindingAccused is found guilty.

Sentence or OrderIn the result, the accused is found guilty for the offence punishable under Section 354 IPC, and accordingly, he is convicted U/s 235(2) Cr.P.C., and sentenced to undergo RIGOROUS IMPRISONMENT for a period of TWO (02) YEARS and to pay fine of Rs.1,000/- (Rupees ONE THOUSAND only), for the offence punishable under Section 354 IPC, and in default of payment of fine, he shall suffer simple imprisonment for a period of THREE (03) MONTHS. The remand period undergone by the accused from 19.12.2011 to 28.12.2011 shall be set off U/s.428 Cr.P.C. The unmarked case property, if any, shall be destroyed after expiry of appeal time.

Prosecution conducted bySri Viplav Kiran, Addl. Public Prosecutor, Armoor.

Accused defended bySri K. Tulasidas, Advocate, Armoor.

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This case was committed by Addl. Judicial Magistrate of First Class, Armoor, in PRC No.6 of 2012 (Crime No.94/2011 of PS Velpoor.)

This case coming before me for final hearing on 12-6-2015 in the presence of Sri Viplav Kiran, Additional Public Prosecutor for the prosecution and that of Sri K. Tulasidas, Advocate for accused, and having stood over for consideration till this day, this Court delivers the following:

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

The case of the prosecution as narrated in the charge sheet in brief is that on 08.12.2011, at about 12.00 hours, the defacto complainant Smt.

Gaddam Raju W/o Late Gangaram lodged written report stating that on 6.12.2011 one Kondi Rajeshwar (A1), his wife and his mother beat her.

Therefore she lodged complaint before Police Station. While so on 8.12.2011 at about 7:30 A.M. when the defacto complainant and her children were present in the court yard, the said Kondi Rajeshwar came there, caught hold her hands and dragged her into the house. On the hue and cry made by the defacto complainant people gathered. On seeing them Kondi Rajeshwar stated to have fled away. It is submitted that one

Akkannagari Ganesh, Baddam Gangadhar, Noothula Chinna Ganga Reddy,

Baddam Rajalingu and others were present. Defacto complainant also stated in her complaint that Kondi Rajeshwar tried to outrage her modesty in the agriculture fields during night time and knocked her door in drunken condition.

2.00 Basing on the said report, the Sub Inspector of Police (for short 'SI'), PS Velpoor, registered a case in Cr.No.94/2011, under section 354

Indian Penal Code (for short 'IPC') and investigated into. During the course of investigation, witnesses were examined, their statements were recorded, and on 15.12.2011 the said Sub Inspector served notice under section 41 (b) of Criminal Procedure Code (for short Cr.P.C.) to the 3

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accused. The accused stated to have submitted his examination on 16.12.2011. It is alleged that the accused is a rowdy sheeter and he has been creating nuisance in the village. Hence on 19.12.2011 at 6:00 A.M.

Sub Inspector of Police apprehended the accused at his house and interrogated him. The accused alleged to have confessed to have committed the said offence. Thereupon Sub inspector of Police brought the accused to Police Station, effected his arrest and produced him before

Court after complying the provision laid down u/s 50 of Cr.P.C. The evidence collected stated to have established that the accused is guilty of the offence punishable under section 354 IPC.

3.00 Learned Addl. Judl. Magistrate of First Class, Armoor, committed the case to the Court of Sessions, Nizamabad and the Hon'ble

Prl. Sessions Judge, Nizamabad, took the case on file for the offences punishable under section 354 IPC and made over the same to this Court for disposal according to law.

4.00 After appearance of the accused, charge against the accused for the offence punishable under section 354 IPC was framed, read over and explained the same to him, who having understood the same, pleaded not guilty and claimed to be tried.

5.00 The prosecution to prove its case, got examined Pws 1 to 7 and got marked Ex.P1 & Ex.P2.

6.00 PW1- Smt. Gaddam Raju is the victim and defacto complainant.

Pw2-Gaddam Bhajamma, Pw3-Anbakkannagari GAnesh, Pw4-Baddam

Gangadhar, Pw5-Noothula Chinna Gangareddy and Pw6-Smt. Baddam

Rajalingu are the Eye-witnesses. Pw7-M. Niranjan Reddy is the Sub 4

SC.No.191 of 2012

Inspector of Police who investigated the case and filed charge sheet. Ex.P1 is the complaint. Ex.P2 is the F.I.R.

7.00 After closure of the evidence of prosecution, the accused was examined under Section 313 (1)(b) of Cr.P.C. He denied the incriminating evidence adduced against him and stated that he is falsely implicated in this case. Accused got examined one Mortad Dinesh as Dw.1 and one

Kanyagari Gangaram as Dw.2.

8.00 Heard both sides.

9.00 Point for consideration:

Whether the prosecution has proved the guilt of the accused for the offence punishable under section 354 IPC beyond reasonable doubt?

10.00 POINT:The prosecution having laid charge sheet against the accused for the offences punishable under section 354 IPC is required to establish that the accused used criminal force on PW1/defacto complainant intending to outrage her modesty. The evidence adduced by the prosecution in brief is as follows:

10.01PW1- who is the victim/defacto complainant deposed that about three years back at about 7:00 A.M. there was a quarrel between herself and the wife and mother of the accused. As such she lodged complaint against the wife and mother of the accused. The next day morning at about 7:00 A.M. the accused who is her neighbor came to her house and dragged her inside her house by holding her hand stating that as to why she filed complaint against his wife and mother. Thereupon Pw.1 started shouting. On hearing the shouting, her mother-in-law, one

Ganesh, Gangadhar, Chinna Ganga Reddy and Rajalingam came there. On 5

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seeing them the accused fled away. Later she deposed to have lodged

Ex.P1 complaint.

10.02PW2-Gaddam Bhajamma who is mother-in-law of the victim deposed that about 3 years back at about 7:00 A.M. there was quarrel between Pw.1 and the wife and mother of the accused. The next day morning accused held the hand of Pw.1 and dragged her inside the house.

She further deposed that she was not present at that time. On hearing the shouting she deposed to have come to the house and saw the accused holding hand of Pw.1. She also deposed that one Ganesh, Baddam

Gangadhar, Baddam Rajalingu and Chinna Reddy came there.

10.03Pw3-A. Ganesh deposed that about three years back at about 7:00 A.M. accused dragged Pw.1 to his house by holding her hand. On hearing the shouting Pw.1, himself, Gangadhar and Rajalingu came there.

He also deposed that on seeing the said person accused fled away.

10.04Pw.4-Baddam Gangadhar deposed that about three years back at about 7:00 A.M. while he was taking tea at a tea bunk by the side of road, he heard noise near the house of Pw.1 and the accused. He further deposed that by the time he went there, the accused was holding the hands of Pw.1 in front of the house of Pw.1. He also deposed about the presence of Pws.2 and 3. Pw4 further deposed to have learnt that the accused previously tried to outrage modesty of Pw.1.

10.05Pw5-Noothula Chinna Ganga Reddy deposed that about three years back at about 7:00 A.M. while he was at the house of Pw.2 there was a quarrel between accused and Pw.1. He also deposed that the accused 6

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held the hand of Pw.1 and pulled her. On seeing him and others the accused went away. He also deposed about the presence of Pws.1 to 4.

10.06Pw6- Baddam Rajalingu deposed that about three years back at about 7:00 A.M. the accused held the arm of Pw.1. He deposed to have gone there having heard the shouting of Pw.1. On seeing him the accused deposed to have ran away.

10.07Pw7-M. Niranjan Reddy the then Sub Inspector of Police,

Velpoor Police Station deposed that on 8.12.2011 at about 12:00 noon he received ex.P1 complaint from Pw.1 and registered the same as

Cr.No.94/2011 u/s 354 IPC and submitted Ex.P2 F.I.R. to the concerned

Officers. He deposed to have examined Pws.1 to 6 and recorded their statements. He further deposed that on 15.12.2011 he served the notice to accused u/s 41 (b) of Cr.P.C. On 16.12.2011 the accused submitted his explanation. He also deposed that the accused is a rowdy sheeter of

Velpoor Police Station. On 19.12.2011 he deposed to have apprehended the accused at his house at about 6:00 A.M., interrogated him, effected his arrest and produced him before the court. He deposed to have filed charge sheet after completion of investigation.

10.08DW1-Mortad Dinesh deposed that in the month of December, 2011 there was quarrel between the accused and mother-in-law of Pw.1 by name Bajamma (Pw.2) at the agriculture filed of the accused in regard to boundary dispute. He further deposed that Pw.1 filed false complaint against the accused due to the said boundary dispute. He further deposed that police examined him and he stated same thing before the police.

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10.09Dw2-Kanyagari Gangaram deposed that about three years back there was a quarrel between the accused and mother-in-law of Pw.1 by name Bajamma (Pw.2) at the agriculture field of accused in regard to boundary dispute. Dw.2 and ten to fifteen persons went there and tried to settle the dispute but Bajamma told that she will file a case. Dw.2 further deposed that himself and others went to Police Station and requested

Bajamma not to file complaint. On the same day Bajamma (Pw.2) filed complaint before Police stating that the accused raped her daughter-in-law.

He further deposed that he does not know the name of her daughter-in- law. He also deposed that his name was recorded as a witness but he was not called by Police.

11.00Pw.1 has categorically deposed that about three years back at about 7:00 A.M. on the next day of her lodging complaint against the wife and mother of the accused, the accused came to her house and dragged her inside the house by holding her hand, questioning Pw.1 as to why she filed complaint against his wife and mother. She also categorically deposed that Pws.2 to 6 came there on hearing her shouting. Pws.2 to 6 who are cited as eye-witness have deposed in one voice that the accused held the hand of Pw.1 by the time they reached the place of occurrence.

All the witnesses deposed about each others presence and they have also deposed to have seen the accused holding hand of Pw.1. learned counsel

for the accused cross examined Pws.1 to 7, but nothing material is elicited

from their cross examination. It has been merely suggested to Pw.1 that she falsely implicated the accused since the accused questioned her as to why she filed complaint against his wife and mother. Pw.2 in her cross examination has deposed to have seen the accused dragging Pw.1. It has been suggested to Pw.2 that she did not see the accused dragging Pw.1 by 8

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holding her hand and that she was deposing falsehood due to enmity with the accused, his wife and his mother. Pw.3 in his cross examination stated that by the time he came Pw.1 was leaving the house. Pw4 stated in his cross examination that the accused left the hand of Pw.1 after he reached the place of incident. It has been suggested Pws.4 to 6 that no incident took place and that they were deposing falsehood. Pw.7 investigating officer stated in his cross examination that as per Ex.P1 complaint the accused pulled her into the room by holding her hand and left her hand after arrival of Pws.2 to 6. A perusal of Ex.P1 complaint clearly indicates the presence of Pws.2 to 6 at the time of incident. Nothing has been elicited from cross examination of Pws.1 to 6 to disbelieve and discredit their testimony which is very much consistent.

11.01A perusal of evidence of Dw.1 and Dw.2 indicates that the accused had a quarrel at agricultural field with Pw.2 who is the mother-in- law of Pw.1 in regard to boundary dispute during the month of December, 2011. It also appears from the evidence of Dws.1 and 2 that Pw.2 threatened the accused to falsely implicate him in a case, and thus got implicated the accused in this case. A perusal of the cross examination of

Pws.1 to 7, more particularly the cross examination of Pw.1 and Pw.2 indicates that they (Pw.1 and Pw.2) were not suggested to that effect.

Absolutely no suggestion is given to Pws.1 to 7 that Pw.2 got implicated the accused in this case due to the quarrel that allegedly took place at the agricultural field of accused in regard to boundary dispute. Even a suggestion in regard to boundary dispute was not given to Pws.1 to 7. In such view of the matter evidence of Dws.1 and 2 cannot be believed.

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11.02Learned counsel for the accused in his written submissions drew the attention of the court to certain discrepancies in the evidence of

Pws.1 to 6. The said discrepancies being minor are not sufficient to brush aside the categorical and consistent evidence of Pws.1 to 6. The lengthy written submissions on behalf of the accused simply point out minor, contradiction and omissions which are bound to happen when the witnesses are deposing before the court after long gap.

11.03Now the point that arises for consideration is whether the said act of accused viz holding hand, pulling and dragging Pw.1 amounts to outraging of modesty. At this juncture it would be appropriate to refer to a land mark full bench decision of the Apex Court in, STATE OF PUNJAB

V/s. MAJOR SINGH, AIR 1967 Supreme Court, 63, wherein His Lordship

Justice R.S. Bachawat delivering Judgment per majority held as follows:

“I think that the essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under section 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman, she may be unable to appreciate the significance of the act, nevertheless, the offender is punishable under the section.

A female of tender age stands on a somewhat different footing. Her body is immature, and her sexual powers are dormant. In this case, the victim is a baby seven and half months old. She has not yet developed a sense of shame 10

SC.No.191 of 2012

and has no awareness of sex. Nevertheless, from her very birth she possesses the modesty which is the attribute of her sex. But cases must be rare indeed where the offender can be shown to have acted with the intention of outraging her modesty. Rarely does a normal man use criminal force to an infant girl for satisfying his lust. I regret to say that, we have before us one of such rare cases. Let us reconstruct the scene. The time is 9.30 p.m. The respondent walks into the room where the baby is sleeping and switches off the light. He strips himself naked below the waist and kneels over her. In this indecent posture he gives vent to his unnatural lust, and in the process ruptures the hymen and causes a tear ¾” long inside her vagina. He flees when the mother enters the room and puts on the light. I think he outraged and intended to outrage whatever modesty the little victim was possessed of, and he is punishable for the offence under section 354”.

11.04In view of the cited decision cited supra, the intention of accused should be to outrage the modesty of the woman. In the present case in view of my foregoing discussions and findings it became abundantly clear that the accused held hand of the victim/Pw.1, pulled her and dragged her. The said act of the accused clearly indicates his intention to outrage the modesty of Pw.1. If really the accused did not have such intention and his intention was only to enquire as to why Pw.1 filed complaint against his mother and wife, there was absolutely no necessity for him to drag Pw.1 by holding her hand. A perusal of the evidence on record of course indicates that there is some variation in regard to dragging Pw.1 to a particular house. Pw.1 deposed that she was dragged inside her house by holding her hand. Pw. 2 did not specifically state as to a particular house. Pw.3 deposed that Pw.1 was dragged by accused into his house. The said variation is a minor variation and the same is bound to 11

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happen due to long lapse of time between the incident and the date of deposition in court. But the fact remains that the accused pulled or dragged Pw.1 by holding her hand which was absolutely not necessiated in the circumstance of the case. I am therefore inclined to believe the evidence of Pws.1 to 6 and consequently I hold that the accused outraged the modesty of Pw.1.

11.07My foregoing discussion and findings, persuaded me to irresistibly conclude that the prosecution has established the guilt of the accused for the offence punishable under Section 354 IPC beyond reasonable doubt.

12.00In the result, the accused is found guilty of the offence punishable under Section 354 IPC, and accordingly, he is convicted under

Section 235 (2) Criminal Procedure Code for the offence punishable under section 354 IPC.

Typed to my dictation directly by the typist of Senior Civil Judge Court, Nizamabad, corrected and pronounced by me in open Court on this the 19th day of June, 2015.

FAC: Addl. Asst. Sessions Judge (FTC), Nizamabad at Armoor.

13.00Heard the accused and his counsel on the point of sentence.

He submits that he got small children and old aged mother. Hence he prays for lenient view.

14.00In the circumstances of the case and in view of the nature of offences, I am not inclined to invoke the provision laid down under section 360 of Cr.P.C., and the provisions laid down under Probation of Offenders

Act.

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15.00Considering the circumstances of the case and the nature of offence, it would be just and proper to sentence the accused as follows.

16.00In the result, the accused is found guilty for the offence punishable under Section 354 IPC, and accordingly, he is convicted U/s 235(2) Cr.P.C., and sentenced to undergo RIGOROUS IMPRISONMENT for a period of TWO (02) YEARS and to pay fine of Rs.1,000/- (Rupees ONE

THOUSAND only), for the offence punishable under Section 354 IPC, and in default of payment of fine, he shall suffer simple imprisonment for a period of THREE (03) MONTHS. The remand period undergone by the accused from 19.12.2011 to 28.12.2011 shall be set off U/s.428 Cr.P.C. The unmarked case property, if any, shall be destroyed after expiry of appeal time.

17.00The accused is informed that he has right to prefer appeal against this Judgment and if he has no means to engage an Advocate in the appellate Court, he would be provided legal aid at the expense of the

State.

Typed to my dictation directly by the typist of Senior Civil Judge Court, Nizamabad, corrected and pronounced by me in open Court on this the 19th day of June, 2015.

FAC: Addl. Asst. Sessions Judge (FTC), Nizamabad at Armoor.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTIONFOR DEFENCE

PW1(LW1)Gaddam RajuVictim/ Dw.1Morthad Dinesh Complainant PW2(LW2)Gaddam Bhajamma Eye-WitnessDw.2Kanyagari Gangaram PW3(LW3)Anbakkannagari Eye-Witness Ganesh PW4(LW4)Baddam Gangadhar Eye-Witness PW5(LW5)Nuthula Chinna Eye-Witness Gangareddy PW6(LW6)Baddam Raja LinguEye-Witness PW7(LW7)M. Niranjan Reddy Investigating Officer 13

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EXHIBITS MAKED

FOR PROSECUTION:FOR DEFENCE Ex.P1:Complaint - Nil -

Ex.P2:First Information Report.

MOs MARKED

-Nil-

FAC: Addl. Asst. Sessions Judge (FTC), Nizamabad at Armoor.

1

OP.91 of 2010

IN THE COURT OF THE SENIOR CIVIL JUDGE, NIZAMABAD.

Present: Sri Mohd. Bande Ali,

Senior Civil Judge, Nizamabad.

Wednesday, the 16th day of September, 2015

O.P.No.91 of 2010

Between:

Gangi Chinna Sailu S/o Sayanna, age 38 years, Occ: Agriculture Coolie, R/o. H.No.1-93, Ghanpur Mandal: Dichpally, District: Nizamabad.

.. Petitioner

AND

Gangi Gangamma W/o Gangi Chinna Sailu, age 36 years, Occ: Beedi Roller, R/o. Kaligote village, Mandal: Jakranpally, District: Nizamabad.

.. Respondent

This petition coming before me on 20-8-2015 for final hearing in the presence of Sri Yerram Ganapathi, Advocate for petitioner, and of Sri G.Madhusudhan Goud, Advocate for respondent, and after having stood over for consideration till this day, the Court has made the following:

:: O R D E R ::

This petition is filed by the petitioner/husband, under Section 13 (1) (ia) of Hindu Marriage Act, 1955 (for short 'the Act') against the respondent/wife, seeking dissolution of marriage between them, by a decree of divorce.

2.00The brief averments of the petition are that, petitioner and respondent married in the year 1992. The said marriage was in the form of

Udiki. One year thereafter, petitioner stated to have gone to Saudi Arebia.

Respondent, who was then pregnant delivered a baby boy by name Satish

Kumar, after four months of the departure of the petitioner. The said Satish

Kumar was aged 16 years by the date of filing of this petition. Two more sons by name Saikiran and Saikumar, aged 12 and 9 years respectively (by 16/9/2015SCJ 2

OP.91 of 2010

the date of filing of this petition), were born out of the said wedlock. It is submitted that petitioner used to send all his earnings from Saudi Arebia to the respondent.

2.01It is further submitted that after four years, respondent came to

India, stayed in India for two years, and thereafter, went to Dubai.

Petitioner used to send Rs.25,000/- per month to respondent for 2 ½ years.

Subsequently, petitioner came to India, stayed for five months and then, left to Dubai again and stayed there for 16 months. During the said period of 16 months, petitioner stated to have sent all his earnings to respondent.

Petitioner stated to have stayed in India for one year, and thereafter, left to

Iraq, and stayed there for 13 months. During the said period, petitioner stated to have sent to Rs.30,000/- per month to the respondent.

Subsequently, petitioner came to India.

2.02It is alleged that respondent used to go to her mother's house very frequently, during the stay of petitioner in India. It is alleged that respondent disliked the presence of petitioner. While so, first son of the petitioner alleged to have caught the respondent red-handed while she was in the company of one Mr.Ramesh. Respondent alleged to have poured kerosene on her body to commit suicide, but her first son prevented her from doing so. It is alleged that respondent from that time onwards, used to quarrel with her first son.

2.03It is further submitted that respondent could not furnish the details of amount sent to her every month by the petitioner from abroad, in spite of repeated demands. As and when petitioner demanded the 16/9/2015SCJ 3

OP.91 of 2010

respondent to account for the said amount, she used to go to her parents' house on the pretext that she gave the money on interest, and she will get back the said amount soon. Panchayaths were held by the caste elders several times, but of no use. On 23.5.2010, respondent stated to have left the company of petitioner with the cash (amount is not mentioned), with 3 ½ tulas of gold pusthela thadu, 3 tulas of gold necklace, gold buttakammalu, matilu and two rings. Respondent did not join the company of the petitioner in spite of repeated demands.

2.04Respondent stated to have filed false complaint against the petitioner before Police Station (for short 'PS') Jakranpally, Under Section 498-A of Indian Penal Code. Consequently, petitioner was arrested on 15.8.2010, and was in judicial custody till 18.8.2010.

2.05While the matter stood thus, on 21.8.2010, at 2.00 p.m., when the petitioner with his family members, relative and two nephews was taking food in his house, respondent along with her relatives trespassed into his house, assaulted one Palle Gangamani (a distant relative of petitioner), dragged her out of the house by holding her tuft of hair and beat her. Respondent also alleged to have dragged the petitioner and his elder son out of the house, beat them mercilessly with the help of her relatives, and henchmen. Respondent and her henchmen also snatched away 3 tulas of gold pusthela thadu, and 2 tulas of gold gundlu from the person of said Palle Gangamani. They also alleged to have snatched away 2 tulas of gold chain, ½ tula gold ring and wrist watch from the person of petitioner. Respondent and her relatives alleged to have snatched away one tula of gold chain from the person of Satish Kumar. Petitioner stated to 16/9/2015SCJ 4

OP.91 of 2010

have lodged complaint before the PS Dichpally. Though, the police referred the injured to Govt. Hospital, for treatment, but they did not take any action against the respondent and others, so far.

2.06It is alleged that respondent has been living in adultery, and she filed false case against the petitioner to escape from the charge of adultery.

Respondent alleged to have deserted the petitioner and also subjected him to cruelty. Petitioner, therefore, contend that it became highly impossible for him to live with her. Hence, the petition.

3.00Respondent filed counter, contending that petitioner filed this false petition with an ill-intention to get himself rid-of from the respondent. This respondent denied the averments of petition that petitioner used to send

Rs.25,000/- and Rs.30,000/- per month to the respondent. It is submitted that petitioner did not maintain respondent and her children properly.

Respondent and her children stated to have lived on the mercy of the parents of respondent. This respondent admitted her marriage with the petitioner, but denied the form of marriage as 'Udiki'. This respondent stated to have married the petitioner as per Hindu customs and rites.

Family members of respondent alleged to have given Rs.15,000/- cash, six tolas of gold, household articles, silver articles all worth Rs.35,000/- to the petitioner at the time of marriage. This respondent stated to have joined the company of the petitioner at Ghanpur village. Thereafter, petitioner and his family members ill-treated and harassed this respondent on petty issues. Petitioner on the instigation of his family members, used to beat the respondent mercilessly.

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OP.91 of 2010

3.01Petitioner used to send his entire earnings to his family members.

When this respondent asked the petitioner to send money for her maintenance and the maintenance of her children, the family members of the respondent abused her in filthy language. Family members of the petitioner alleged to have harassed the respondent, demanding her to bring

additional dowry of Rs.50,000/-. They used to send the respondent to her

matrimonial home with the said demand. They used to threatened the respondent that, if she fails to bring additional dowry, they will not allow her to live happy married life. As such, the matter was placed before the elders,who in their turn, advised and admonished the petitioner and his family members not to ill-treat or harass the respondent.

3.02It is further submitted that two years prior to filing of the counter, petitioner returned to India from abroad, and started harassment and ill- treatment, demanding additional dowry. Petitioner used to beat the respondent in drunken condition. Finally, petitioner necked out the respondent from his house. This respondent stated to have been living on the mercy of her old aged parents. It is submitted that respondent earns an amount of Rs.10,000/- per month by doing business, and earns an amount of Rs.4,00,000/- per annum from four acres of agriculture land owned by him. It is further submitted that petitioner gets an amount of

Rs.10,000/- per month towards the rent of two houses owned by him.

Respondent unable to bear the mental agony and harassment at the hands of petitioner, and his family members, filed complaint before PS Jakranpally on 07.08.2010. Thereafter, petitioner filed false case against the respondent, and threatened this respondent and her family members with 16/9/2015SCJ 6

OP.91 of 2010

dire consequences.

3.03This respondent while denying to have gone to her parents house very frequently, contended that petitioner created a false story of her alleged illicit intimacy with one Mr.Ramesh. It is submitted that petitioner is having illegal intimacy with one Palle Gangamani @ Gangu. Petitioner and the said Gangamani alleged to have been living together. This respondent suffered mental agony due to filing of the present petition. Therefore, she claimed an amount of Rs.1,00,000/- towards compensation. Hence, prayed the Court to dismiss the petition.

4.00Heard both sides.

5.00Point for consideration:

“Whether the petitioner is entitled to seek decree of divorce”?

6.00Petitioner to prove his case, examined himself as PW1 and got examined two more witnesses as Pws 2 and 3. Original Bank passbook of

SBH, Branch Dichpally is marked as Ex.P1. Respondent examined herself as RW1 and got examined two more witnesses as Rws 2 and 3. No documentary evidence is adduced on behalf of the respondent.

7.00 POINT:Petitioner filed this petition seeking dissolution of his marriage with the respondent on the grounds that the respondent had illicit intimacy with one Mr.Ramesh, and that the respondent treated the petitioner with cruelty. Petitioner to prove his case, placed reliance on the evidence of Pws 1 to 3, and Ex.P1 original Bank passbook. PW1 is petitioner himself, who reiterated the averments of petition in his affidavit 16/9/2015SCJ 7

OP.91 of 2010

of chief examination. Pws 2 and 3 filed their affidavits of chief examination mostly reiterating the averments of petition. They also stated that petitioner used to sent his earning to respondent for the maintenance of the family; that respondent used to quarrel with the petitioner frequently; that she purchased land in the name of her brother with the money sent by the petitioner; she used to quarrel with the petitioner whenever petitioner asked the respondent to account for the money sent by him from abroad; the caste elders in the panchayath admonished the respondent, but she did not change her attitude; and that respondent left the company of the petitioner in the year 2010 with all her gold belongings. Pws 2 and 3 stated to have seen respondent quarreling with the petitioner. Pws 2 and 3 further deposed that respondent subjected the petitioner to cruelty and deserted him since 2010.

7.01Respondent examined herself as RW1 and got examined her elder son Gangi Satish Kumar and her brother M.Ramulu as Rws 2 and 3.

Respondent reiterated the averments of her counter in her affidavit of chief examination. Rws 2 and 3 supported the evidence of RW1. RW2 categorically denied the allegation that he caught respondent/RW1 red- handed while she was in the company of Mr.Ramesh. He also denied to have prevented the respondent from committing suicide.

7.02Petitioner in paragraphs No.8 and 9 of the petition, has categorically stated that respondent is living in adultery and that respondent used to pickup quarrel on petty issues, and subjected him to cruelty, and desertion. Though, petitioner filed petition under Section 13 (1) and (ia) of Hindu Marriage Act, which are in respect of adultery and 16/9/2015SCJ 8

OP.91 of 2010

cruelty, but petitioner also took the plea of desertion in the petition.

Admittedly, petitioner did not see the respondent in the company of one

Mr.Ramesh, and he did not specifically assert in the petition and depose in his affidavit of chief examination in regard to the alleged adultery. In paragraph No.3 of the petition, petitioner has merely stated that his first son (RW2) caught the respondent red-handed, while she was in the company of one Mr.Ramesh. Except that allegation, there is absolutely nothing in the petition and in the evidence adduced by the petitioner to substantiate the commission of adultery by the respondent. The first son/elder son, of the petitioner, who is examined as RW2 has categorically denied to have caught respondent, while she was in the company of

Mr.Ramesh. Therefore, the said allegation stands disproved. More so, mere fact that respondent was found in the company of another person, without any further details, is not sufficient to infer an act of adultery or sexual intercourse. The fact that a wife is moving in the company of strangers, cannot prove adultery. I am, therefore, inclined to hold that petitioner has failed to establish that respondent was living in adultery or that she had voluntary sexual intercourse with any person other than her spouse.

7.03Now, coming to the allegation of cruelty, the expression 'cruelty' is not defined in the Act. 'Cruelty' under Hindu Marriage Act and in the Spl.

Marriage Act of 1954, was understood to mean such conduct as to cause danger to life, limb or health or as to give rise to a reasonable apprehension of such danger. The word 'danger to life etc' normally means harmful or injurious act. The Hon'ble Supreme Court observed that harm or injury to health, reputation, the working career or the like would be an important 16/9/2015SCJ 9

OP.91 of 2010

consideration to know whether the conduct of the respondent amounts to cruelty; that the Courts have to see whether the petitioner proves that the respondent has treated him/her with such cruelty as to cause reasonable apprehension in the mind that it will be harmful or injurious to live with the respondent.

7.04In PRANAB BISWAS V/s. MRINMAYEE DEV, AIR 1976, CALCUTTA, 156, and in JAGANNADHAM V/s. SAVITRAMMA, AIR 1972, AP 377, it has been held that cruelty as interpreted by the Courts is of two kinds viz., physical cruelty and mental cruelty. Physical cruelty may consist of physical violence and bodily danger. Physical violence may consist of actual or threatened violence. At the same time, a single act of violence may not amount to cruelty. Mental cruelty may consist of verbal abuses and insults by using foul and abusive language, disturbing mental peace (KAMALADEVI

V/s. BALBEER SINGH, 1979, J & K, PAGE 4).

7.05In the present case, petitioner did not plead and prove physical or mental cruelty. Petitioner in paragraph No.7 of his petition and paragraph

No.12 of his affidavit of chief examination, deposed that on 21.8.2010, respondent and her family members trespassed into his house, and beat one Palle Gangamani and the petitioner. On the other hand, it is the case of the respondent that petitioner created the said false story as a counter- blast to the complaint filed by the respondent with PS Jakranpally, under

Section 498-A IPC. In the circumstances of the case, and in view of the settled proposition of law that, a single act of violence may not amount to cruelty, I am inclined to hold that even if the alleged incident of beating

Gangamani and petitioner by the respondent and her relatives is presumed 16/9/2015SCJ 10

OP.91 of 2010

to be true is not sufficient to hold that respondent treated the petitioner with cruelty.

7.06It has been the case of the petitioner that respondent used to quarrel with him as and when he asked the respondent to account for the money sent by him from abroad. In this regard, petitioner got marked

Bank passbook as Ex.P1. Per contra, it is the case of the respondent that petitioner himself used to withdraw the amount deposited in the Bank.

RW1 in her cross examination has stated that, herself and petitioner purchased plots near Dichpally Railway Station and at Ghanpur. She also stated that herself and petitioner got constructed house, spending

Rs.15,00,000/- and purchased another house worth Rs.5,00,000/-. The dispute in regard to the accounting of money, cannot be held to be an act constituting cruelty.

7.07Pws 2 and 3 deposed that respondent deserted the petitioner in the year 2010. This petition is filed on 26.8.2010. Petitioner in his petition, did not specifically assert anything in regard to the desertion by the respondent. On the other hand, it is the case of the respondent that she was necked out by the petitioner and his family members, demanding her to bring additional dowry of Rs.50,000/-. Under the explanation to Section 13 of Hindu Marriage Act, desertion means 'the desertion of the petitioner by the other party to the marriage, without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage'. There is absolutely nothing in the petition and the evidence adduced by the petitioner to prove that respondent deserted the petitioner. It is pertinent 16/9/2015SCJ 11

OP.91 of 2010

to mention here that respondent expressed her readiness to join the company of the petitioner, but the petitioner did not agree for it.

Petitioner/PW1 in his cross examination (at page No.7) has categorically stated that he is not prepared to take back the respondent. In these circumstances, I am inclined to hold that petitioner has also failed to prove that the respondent deserted him.

7.08Learned counsel for the respondent by placing reliance on decisions in RADHIKA 2 M.LAVANYA V/s. LOKENDER, 2014 LAWSUIT (AP) 307; in PADMAVATHI V/s. SAI BABU, 2012 LAWSUIT (AP) 608; and in

MIRAPALA VENKATA RAMANA V/s. MIRAPALA PEDDIRAJU, 2000 LAWSUIT (AP) 71, would contend that non-joinder of adulterer as co-respondent is fatal to the case of petitioner.

7.09In view of all my foregoing discussion and findings, I am inclined to hold that petitioner has failed to establish that respondent was living in adultery, treated the petitioner with cruelty and deserted the petitioner.

Therefore, petitioner is not entitled to seek the relief of dissolution of marriage. Point is accordingly held against the petitioner.

8.00In the result, this petition is dismissed with costs quantified at

Rs.3,000/- (Rupees Three Thousand only) payable by the petitioner to the respondent.

Dictated to PA, transferred by her, corrected and pronounced by me in open

Court, on this the 16th day of September, 2015.

Senior Civil Judge,

Nizamabad.

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OP.91 of 2010

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER(S)FOR RESPONDENT(S)

PW1: Gangi Chinna Sailoo.RW1: Gangi Gangamma. PW2: Podduturi Janardhan Reddy.RW2: Gangi Satish Kumar. PW3: D.Kalavathi.RW3: M.Ramulu.

EXHIBITS MARKED

(On behalf of the)

FOR PETITIONER(S)FOR RESPONDENT(S)

Ex.P1: Original Bank passbook of respondent of - Nil - SBH, Branch Dichpally.

Senior Civil Judge,

Nizamabad.

16/9/2015SCJ

1

OS.No.1/2006

IN THE COURT OF THE SENIOR CIVIL JUDGE: NIZAMABAD

Present: Sri Mohd.Bande Ali,

Senior Civil Judge, Nizamabad.

Wednesday, the 16th day of September, 2015

O.S.No.1 of 2006

Between:

Smt.Sarojini Bai W/o Rama Rao, aged 60 years, Occupation: Agriculture, R/o. Ho.No.6-24, Boargoam (P) Village, Nizamabad Mandal, Dist. Nizamabad.

… Plaintiff AND

1) Manu Bramma Venkata Rajaiah S/o M.Laxmaiah, aged 52 years, Occupation: Govt. Servant, R/o. Ho.No.5-8-689, Ashok Nagar Colony, Kamareddy, Dist. Nizamabad.

2) Komarshetty Venkata Ramanaiah S/o Rajaiah, aged 55 years, Occupation: Daily Collector in S.B.H. Kamareddy, R/o. Ho.No.4-4-182, Hanumanmandir Road, Kamareddy, Dist. Nizamabad.

.. Defendants

This suit is coming before me on 25-8-2015for hearing in the presence of Sri B.Anna Rao, Advocate for plaintiff and of Sri Gorrepati Madhava Rao, Advocate for defendants, and having stood over for consideration to this day the Court delivers the following:

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

This suit is filed for perpetual injunction, praying the Court to restrain the defendants and their men from interfering into the possession of the plaintiff over the land bearing Sy.No.576, extent Ac.1-33 guntas, situated at

Boargoam (P) village, Nizamabad mandal, which will be hereinafter referred as 'suit property' and the same is more-fully described in the schedule appended to the plaint; and for costs.

2.00The brief averments of the plaint are that plaintiff is owner, pattedar and possessor of the suit property since several years, and had 16/9/2015SCJ 2

OS.No.1/2006

been cultivating the said land with dry crops. It is further submitted that the adjacent land owners converted their agriculture lands into plots. Plaintiff stated to have stopped cultivating the said land, with an intention to convert the suit property into plots. It is further submitted that the name of the plaintiff is shown as pattedar and possessor of the suit property in revenue records.

2.01It is further submitted that defendants 1 and 2 were having their plots towards south west corner of the suit property, and the plots of the defendants are existing in Sy.No.575 towards western side of suit property.

In the year 2003, plaintiff got surveyed the suit property by revenue authorities and fixed boundary stones in presence of village Sarpanch and elders. The Surveyor also conducted panchanama on 10.1.2002 in presence of village elders, and since then, plaintiff is in peaceful possession of suit property. It is further submitted that on 26.12.2003, at 11.00 a.m., defendants 1 and 2 came to the suit property with the help of unsocial elements, tried to remove the boundary stones to encroach a portion of the suit property. Plaintiff with the help of her husband and other neighbouring house owners, did not allow the defendants to occupy the suit property.

Defendants stated to have gone back by stating that they will come again with great force to occupy the suit property forcibly. It is alleged that defendants are mischievous persons. Plaintiff apprehending danger of dispossession, filed the present suit.

3.00Defendants 1 and 2 filed their joint written statement, questioning the maintainability of the suit on the premise that defendants have already filed OS.No.553/2005 on the file of Prl. Junior Civil Judge,

Nizamabad, and obtained interim injunction order against the plaintiffs 16/9/2015SCJ 3

OS.No.1/2006

(defendants therein). It is alleged that plaintiff in spite of interim injunction, has been trying to interfere into the construction work of the compound wall of the defendants herein. These defendants admitted the ownership of plaintiff in respect of Sy.No.576, measuring Ac.1-33 guntas, situated at

Borgoam (P) village (suit property), but denied the other averments of written statement. In the year 1980, these defendants stated to have purchased plot bearing No.70, measuring 286.780 Sq. Yards, and plot bearing No.126, measuring 205.56 Sq. Yards, comprised of Sy.No.574 and 575 of Borgaom (P) village shivar, which is adjacent to the suit property.

Since then, these defendants stated to have been enjoying possession over the said plots. It is alleged that plaintiff by taking advantage of the absence of defendants at the said plots, developed ill will and hatched a plan to grab the said plots. It is further alleged that plaintiff with the help of her husband and sons, managed the Mandal Surveyor, Nizamabad, and got conducted a panchanama, without notice of these defendants. She also alleged to have got prepared tounch map and fixed the boundaries as per her desire.

3.01It is further submitted that plaintiff filed the present suit suppressing the material facts about filing of suit in OS.No.553/2005, and

IA.No.1454/2005 by these defendants against her, on the file of Junior Civil

Judge, Nizamabad. Plaintiff also suppressed the fact of granting temporary

injunction in the said IA against her. Hence, prayed the Court to dismiss the suit.

4.00Basing on the above pleadings, my learned Predecessor's

Predecessor framed the following issues on 07.6.2007:

1.Whether the plaintiff is the owner and possessor of the suit schedule property with title?

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OS.No.1/2006

2.Whether the plaintiff is entitled for perpetual injunction against the defendants?

3.To what relief?

5.00Plaintiff to prove her case, examined herself as PW1, and got examined two more witnesses as Pws 2 and 3. Exs.A1 to A7 are marked on behalf of the plaintiff. Defendants 1 and 2 examined themselves as Dws 1 and 2 and marked Exs.B1 to B6 on their behalf.

6.00Heard both sides.

7.00 ISSUE NOS.1 & 2:Plaintiff filed this suit for injunction simplicitor, claiming that she is the owner and possessor of the suit property and that defendants tried to interfere into her possession over the suit property. Therefore, plaintiff is required not only to establish her possession over the suit property by the date of filing of suit, but is also required to establish the alleged interference by the defendants. Plaintiff to substantiate her case, placed reliance on her own evidence as PW1, and evidence of

Inspector of Survey and Land Record, Urban Land Ceiling, Hyderabad, who previously worked as Deputy Inspector, Survey and Land Record as PW2, and the evidence of one Chamakura Hanmandloo as PW3, and Exs.A1 to A7.

PW1 filed her affidavit of chief examination, reiterating the averments of plaint. PW2 deposed to have surveyed land bearing Sy.No.576 of Borgaon village, as per the directions of Revenue Divisional Officer, Nizamabad. PW2 deposed to have surveyed the said land with the help of village map and teepan, and fixed the boundaries of Sy.No.576 with the help of pegs. He further deposed to have located the said survey number by taking help of road boundary stones. After completion of survey, he deposed to have conducted a panchanama, which was scribed by Village Secretary. PW3 16/9/2015SCJ 5

OS.No.1/2006

deposed that he was present at the time of survey of Sy.No.576, measuring 1.33 guntas of Borgaon village by PW2. Both Pws 2 and 3 deposed that nobody came and objected for surveying the said land. Exs.A1 to A5 are certified copies of pahanies in respect of the suit survey numbers from the year 2000-01 to 2004-05. Ex.A6 is the true copy of panchanama, dated 10.1.2002 with tonch map. Ex.A7 is the plan appended to the plaint.

7.01Defendants 1 and 2 got themselves examined as Dws 1 and 2.

They got marked Exs.B1 to B6 on their behalf. Ex.B1 is the sale deed, dated 21.3.1980 in respect of plot No.70 in Sy.No.574 and 575 of Boargoan (P) village. Ex.B2 is the rectification deed of Ex.B1, dated 07.5.1980. Ex.B3 is the sale deed, dated 07.5.1980 in respect of plot No.126 of Sy.No.574 and 575 of Boargoan (P) village. Ex.B4 is the certified copy of sale deed, dated 23.5.2008 in respect of plot No.69. Ex.B5 is the true copy of layout plan issued by Panchayath Secretary of GP Boargoan (P) village. Ex.B6 is the certified copy of sale deed, dated 26.6.2007 in respect of plot No.42. Dws 1 and 2 in their affidavits of chief examination, reiterated the averments of their written statement. They also deposed that they never interfered into the possession of the plaintiff. Dws 1 and 2 also deposed that plaintiff tried to interfere into their possession over the plot Nos.70 and 126. A perusal of the written statement, clearly indicates that defendants admitted the ownership of plaintiff in respect of the suit property. Exs.A1 to A5 certified copies of pahanies indicate that plaintiff is the pattedar and possessor of the suit property. Plaintiff merely stated in her plaint and in her evidence as

PW1 that, in the year 2003 she got the suit property surveyed and got boundaries fixed by the revenue authorities, under the original of Ex.A6 panchanama, dated 10.1.2002. Plaintiff did not plead anything in regard to the necessity of getting the suit property surveyed. She also did not plead 16/9/2015SCJ 6

OS.No.1/2006

whether the extent of land by the date of survey was less or more. Ex.A6 true copy of panchanama also does not reveal whether previous extent was less. Plaintiff in paragraph No.5 of her plaint and affidavit of chief examination, admitted that defendants are having their plots on the south west corner of suit property in Sy.No.575. Admittedly, the survey covered by the original of Ex.A6 panchanama was got done in the absence of defendants and in the absence of the owners of adjoining land. PW2 did not depose to have issued notice to the adjoining land owners. It can, therefore, be said that the survey covered by the original of Ex.A6 panchanama was done behind the back of adjacent land owners and the defendants. In such view of the matter, one cannot expect objection from the adjoining land owners. Consequently, the survey of suit property done by PW2 under the original of Ex.A6 panchanama and tonch map, cannot be given evidentiary value. Therefore, plaintiff cannot take aid of the evidence of Pws 2, 3 and

Ex.A6 panchanama with tonch map.

7.02As observed by me supra, defendants admitted the ownership of plaintiff over the suit property. Exs.A1 to A5 establish possession of plaintiff over the suit land upto the year 2004-2005. This suit is filed on 30.12.2005.

Therefore, plaintiff was required to file pahani for the year 2005-2006, to substantiate her possession, but she did not choose to file. However, DW1 in his cross examination, fairly stated that himself and defendant No.2 are nothing to do with the suit property. Defendants are concerned about their plots, situated in Sy.Nos.574 and 575, which plots are admittedly adjacent to the suit property. Defendants stated to have filed suit in OS.No.553/2005 on the file of Prl. Junior Civil Judge, Nizamabad, for perpetual injunction, when the plaintiff alleged to have tried to interfere into their possession over the plots covered by Exs.B1 and B3. Plaintiff/PW1 in her cross examination, 16/9/2015SCJ 7

OS.No.1/2006

pleaded ignorance about filing of said suit, but both Dws 1 and 2 were suggested that the suit filed by them was dismissed for default on 18.3.2009. The said suggestions to Dws 1 and 2 indicate that the suit was filed by the defendants against the plaintiff herein. It is very much clear from the pleadings that plaintiff suppressed the said fact of filing of suit by the defendants herein against her. The relief of injunction being equitable relief, attracts maxim of equity that he who seeks equity must do equity to a case, in which such an equitable remedy is prayed for. Therefore, plaintiff cannot suppresses any material fact. Suppression of such material fact dis- entitles plaintiff from seeking equitable relief. In the present case, the plaintiff suppressed the material fact of filing of suit in OS.No.553/2005 on the file of Prl. Junior Civil Judge, Nizamabad, for perpetual injunction by the defendants against her to protect and safeguard their possession over plots

No.70 and 126 located in Sy.Nos.574 and 575, which plots are admittedly situated on the south western corner of the suit property.

7.03Though, Exs.A1 to A5 pahanies from the year 2000-01 to 2004- 05 show possession of the plaintiff over the suit property, but plaintiff did not choose to adduce any evidence in regard to the alleged interference by the defendants into her possession over the suit property. Plaintiff/PW1 alone deposed in her affidavit of chief examination about the alleged interference by the defendants on 26.12.2003 at 11.00 a.m. Plaintiff did not choose to examine any witness to support her said evidence in regard to interference.

In the absence of such evidence regarding invasion of her right in respect of the suit property by the defendants, plaintiff cannot seek the relief of injunction against the defendants. In view of all my foregoing discussion and findings, I am inclined to hold that plaintiff is not entitled for perpetual 16/9/2015SCJ 8

OS.No.1/2006

injunction as prayed for. These issues are accordingly held against the plaintiff.

8.00 ISSUE NO.3:In the result, the suit of the plaintiff is dismissed with costs.

Partly dictated to P.A., transcribed by her, and partly typed to my dictation directly by P.A., corrected and pronounced by me in open Court, on this the 16th day of September, 2015.

Senior Civil Judge,

Nizamabad.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF(S) FOR DEFENDANT(S)

PW1: Sarojini Bai. DW1: Manu Brahma Venkata Rajaiaha. PW2: Mohd.Shahabuddin Ghori. DW2: Komarshetty Venkata Ramanaiah. PW3: Chamakura Hanmandloo.

EXHIBITS MARKED

(On behalf of the)

FOR PLAINTIFF(S)

Ex.A1: Certified copy of pahani for the year 2000-01 issued by Tahsildar, Nizamabad. Ex.A2: Certified copy of pahani for the year 2001-02 issued by Tahsildar, Nizamabad. Ex.A3: Certified copy of pahani for the year 2002-03 issued by Tahsildar, Nizamabad. Ex.A4: Certified copy of pahani for the year 2003-04 issued by Tahsildar, Nizamabad. Ex.A5: Certified copy of pahani for the year 2004-05 issued by Tahsildar, Nizamabad. Ex.A6: True copy of panchanama, dtd: 10.1.2002, conducted by A.O., R.D.O., Nizamabad, along with tonch map. Ex.A7: Suit plan.

FOR DEFENDANT(S): Ex.B1: Sale deed bearing No.746/1980, dtd: 21.3.1980 in respect of plot No.70, in Sy.No.574 and 575 of Boargoan (P) village. Ex.B2: Deed of rectification bearing No.1367/1980, dtd: 07.5.1980. Ex.B3: Sale deed bearing No.1363/1980, dtd: 07.5.1980 in respect of plot No.126 of Sy.No.574 and 575 of Boargoan (P) village.

16/9/2015SCJ 9

OS.No.1/2006

Ex.B4: Certified copy of sale deed bearing No.3157/2008, dtd: 23.5.2008. Ex.B5: True copy of layout plan issued by Panchayath Secretary of GP Boargoan (P) village, by its resolution No.6, dtd: 30.6.1980. Ex.B6: Certified copy of Sale deed bearing No.6327/2007, dtd: 26.6.2007, in respect of plot No.42.

Senior Civil Judge,

Nizamabad.

16/9/2015SCJ

1

OS.No.165/2011

IN THE COURT OF THE SENIOR CIVIL JUDGE: NIZAMABAD

Present: Sri Mohd.Bande Ali,

Senior Civil Judge, Nizamabad.

Tuesday, the 22nd day of September, 2015

O.S.No.165 of 2011

Between:

Sri Bolli Dayanand @ Bolli Daivadeenam S/o Bolli Narahari, aged 38 years, Occ: Govt. Service, R/o. 3-10-443/2, R/o. Chandranagar, Varni Road, Nizamabad.

.. Plaintiff

And

1) Yerra Devender S/o Mallaiah, aged 45 yrs, Occ: Computer Operator, IIIT Basar, Basar village, Mudhole Mandal, Adilabad District, R/o. 6- 15-34, Pavan Nagar, Dubba, Nizamabad.

2) Bobbili Chinnaiah S/o Rajaiah, aged 47 yrs, Occ: Junior Assistant, PACS, Yedpally village & mandal, Nizamabad District, R/o. 1-11-13, Bobbili Veedhi, Nizamabad.

3) Lakka Ashok S/o Kishtaiah, aged 39 yrs, Occ: Junior Assistant, ICDMS, Gurbabadi Road, Dubba, Nizamabad, R/o. 6-22-368, Gouthamnagar, Nizamabad.

.. Defendants

This suit is coming before me on 14-9-2015 for hearing in the presence of Sri M.Rajender Reddy and Sri P.Chandra Shekhara Reddy, Advocates for plaintiff, and of Sri B.Thirupathi, Advocate for defendants 1 to 3, and having stood over for consideration to this day the Court delivers the following:

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

This suit is filed for recovery of Rs.3,08,000/- being the principal and interest due on an agreement, dated 24.1.2010, with interest @ 18% per annum from the date of suit till realization, and for costs.

2.00The brief averments of the plaint are that plaintiff and defendant

No.1 are known to each other. Out of the said acquaintance, on 24.1.2010, first defendant borrowed hand loan of Rs.2,20,000/- from the plaintiff, to meet his personal and domestic requirements, promising to repay the same

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OS.No.165/2011

in three installments i.e. Rs.80,000/- on 05.3.2010, Rs.70,000/- on 05.5.2010 and Rs.70,000/- on 30.6.2010. Defendant No.1 stated to have executed a document to that effect on the same day. Defendants 2 and 3 stated to have stood as guarantors for the repayment of the said loan.

Plaintiff stated to have demanded to repay the said amount, but the first defendant avoided the same on one pretext or the other. As such, plaintiff approached defendants 2 and 3. Defendants 2 and 3 gave evasive reply.

Hence, the plaintiff got issued notice, dated 08.06.2011, calling upon the defendants 1 to 3 to repay the loan amount. First defendant alleged to have replied the notice with false and fictitious averments. It is alleged that defendants 1 to 3 threatened the plaintiff with dire consequences, if the plaintiff insist the defendants to repay the amount. Hence, the suit.

3.00Defendants 1 to 3 filed their joint written statement, denying the material averments of plaint, contending that plaintiff with the help of one

Bantu Manik Raj, Advocate, along with unsocial elements, forcibly got the document, dated 24.1.2010 signed by defendants 1 to 3. Plaintiff along with the said Bantu Manik Raj, Advocate, one Gadugu Gangadhar and Abdul

Rasheed, alleged to have trespassed into the Office of IDCMS, Nizamabad, and threatened first defendant to execute document, admitting his liability to the tune of Rs.2,20,000/-. Therefore, defendants contend that the suit is not maintainable.

3.01Defendants denied to have borrowed loan of Rs.2,20,000/- from the plaintiff. It is further submitted that first defendant and plaintiff are friends. In the year 2004, first defendant borrowed small amount of

Rs.2,000/- and Rs.5,000/- etc. In all, first defendant stated to have borrowed Rs.25,000/- from the plaintiff in the month of February, 2004, and

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OS.No.165/2011

repaid the same with interest. Plaintiff with a malafide intention, did not return the promissory notes of the said transactions, in spite of request by the first defendant. First defendant also did not force the plaintiff to return the same due to his friendship with the plaintiff.

3.02Defendants 2 and 3 being the staff of IDCMS Office, Nizamabad, intervened and asked the defendant No.1 to pay Rs.1,00,000/- to the plaintiff to avoid nuisance in the Office. Therefore, first defendant stated to have issued cheque bearing No.480212, dated 29.07.2010 for Rs.1,00,000/- to the plaintiff towards full and final settlement of the claim of the plaintiff, in presence of defendants 2 and 3, under a receipt. Thereafter, all the defendants requested the plaintiff to return the document scribed by Bantu

Manik Raj, Advocate, but the plaintiff went back without returning the said document. It is further submitted that defendants 2 and 3 signed the document as witnesses, but not as guarantors. Defendants 1 to 3, therefore, prayed the Court to dismiss the suit.

4.00Basing on the above pleadings, my learned Predecessor framed the following issues on 28.6.2012:

1)Whether the plaintiff is entitled to suit claim as prayed for?

2)Whether defendant paid Rs.1,00,000/- towards final payment on 29.7.2010?

3)To what relief?

5.00The plaintiff to prove his case, examined himself as PW1, and got examined one of the witnesses and scribe of the suit document as Pws 2 and 3. Exs.A1 to A7 are marked on behalf of the plaintiff. Defendant No.1 examined himself as DW1. No documentary evidence is adduced on behalf of the defendants.

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OS.No.165/2011

6.00Heard the counsel for plaintiff. Defendants and their counsel were called absent and there was no representation till 4.00 p.m.

7.00 ISSUE NOS.1 & 2:It is very much clear from the perusal of the joint written statement of defendants 1 to 3 that the defendants admitted the execution of Ex.A1 agreement by defendant No.1 in favour of the plaintiff. It is the contention of the defendants that plaintiff got Ex.A1 executed by force and coercion. It is also the case of the defendants that first defendant at the instance of defendants 2 and 3, paid Rs.1,00,000/- to the plaintiff on 29.07.2010 towards full and final settlement of the claim of plaintiff through cheque bearing No.480212, under a receipt. Therefore, defendants are burdened to establish 1) that Ex.A1 was got executed forcibly, 2) that the matter was settled for Rs.1,00,000/-, 3) that defendants paid Rs.1,00,000/- through cheque No.480212 on 29.07.2010, 4) that plaintiff failed to return Ex.A1 in spite of full and final settlement of the claim of plaintiff, and 5) that defendants 2 and 3 signed Ex.A1 as witnesses, but not as guarantors.

7.01Plaintiff to substantiate his case, placed reliance on the evidence of Pws 1 to 3 and Exs.A1 to A7. PW1 filed his affidavit of chief examination reiterating the averments of plaint. PW2 in his affidavit of chief examination, deposed that first defendant borrowed Rs.2,20,000/- under

Ex.A1 and promised to repay the same in three installments as detailed in

Ex.A1 and as detailed in the plaint. He also deposed that defendants 2 and 3 stood as guarantors, agreeing to repay the said loan amount, if the first defendant fails to repay the same. PW3 having witnessed the transaction, deposed to have scribed Ex.A1. Learned counsel for the defendants cross examined Pws 1 to 3, but failed to elicit any material. The entire cross

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OS.No.165/2011

examination of Pws 1 to 3 by the counsel for defendants, consists of suggestions, meeting the case of defendants. First defendant in his affidavit of chief examination, reiterated the averments of written statement.

DW1/defendant No.1 in his cross examination, though denied the suggestion to have borrowed Rs.2,20,000/- from the plaintiff under Ex.A1, but admitted the suggestion that defendants 2 and 3 stood as guarantors to the said loan transaction. He also admitted that Ex.A1 was scribed by PW3. DW1 also admitted to have received the original of Ex.A2 notice from plaintiff. DW1 in his cross examination while admitting the fact that, he did not give any complaint to the police, nor did he issue any legal notice to plaintiff, did not choose to add the reason for not doing so. The written statement filed by defendants 1 to 3 does not disclose as to why the defendants 1 to 3, or at least, defendant No.1 did not choose to file complaint before police, and also did not choose to issue any legal notice to the plaintiff, complaining the alleged act of getting Ex.A1 forcibly executed through him. It is also pertinent to mention here that defendants did not choose to adduce any evidence about the visit of plaintiff along with PW3 and others and creation of alleged nuisance in the Office. Defendants also failed to establish the alleged settlement of the matter for Rs.1,00,000/- and issuance of alleged cheque for Rs.1,00,000/- on 29.07.2010 under a receipt. Defendants 2 and 3 did not choose to enter the witness box to support the case of the first defendant, and further, to substantiate that they signed Ex.A1 as witnesses, but not as guarantors. Non filing of complaint before police, or any other authority, and non issuance of notice to plaintiff about the alleged forcible execution of Ex.A1, and non adduction of evidence of defendants 2 and 3, and so also, non filing of the alleged receipt for the issuance of cheque for

Rs.1,00,000/- towards full and final settlement of the claim of plaintiff,

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clearly establish that first defendant executed Ex.A1 having borrowed

Rs.2,20,000/- from the plaintiff.

7.02In view of all my foregoing discussion and findings, it became clinchingly clear that defendants 1 to 3 failed to discharge their burden to prove Ex.A1 was forcibly got executed by the plaintiff and that the matter was settled for Rs.1,00,000/-, which amount was paid by the defendant

No.1 through cheque. I am, therefore, inclined to hold that plaintiff is entitled to recover the suit claim amount of Rs.3,08,000/- from the defendants 1 to 3 with costs and interest. Issue No.1 is accordingly held in favour of the plaintiff. Issue No.2 is accordingly held against the defendants.

8.00 ISSUE NO.3:In the result, the suit of the plaintiff is decreed with costs for an amount of Rs.3,08,000/- (Rupees Three Lakhs and Eight

Thousand only) with interest @ 12% per annum from the date of filing of suit till the date of this Judgment and decree, and thereafter, @ 6% per annum till realization on the principal amount of Rs.2,20,000/- (Rupees Two

Lakhs and Twenty Thousand only) against the defendants 1 to 3, holding them jointly and severally liable to pay the said amount.

Dictated to P.A., transcribed by her, corrected and pronounced by me in open Court,

on this the 22nd day of September, 2015.

Senior Civil Judge,

Nizamabad.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF(S)FOR DEFENDANT(S)

PW1: Bolli Dayanand @ Bolli Daivadeenam.DW1: Yerra Devendar. PW2: Gadugu Gangadhar. PW3: B.Manik Raju.

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EXHIBITS MARKED

(On behalf of the)

FOR PLAINTIFF(S)FOR DEFENDANT(S)

Ex.A1: Original document, dtd: 24.01.2010, for- Nil - Rs.2,20,000/- executed by D1 in favour of plaintiff. Ex.A2: Office coy of legal notice, dtd: 08.06.2011. Ex.A3: Original reply notice caused by D1 counsel to plaintiffs counsel, dtd: 16.6.2011. Ex.A4: Original returned Regd. cover with acknowledgment addressed to D2 to his residence. Ex.A5: Original returned Regd. cover with acknowledgment addressed to D2 to his place of work. Ex.A6: Original returned Regd. cover with acknowledgment addressed to D3 to his residence. Ex.A7: Original returned Regd. cover with acknowledgment addressed to D3 to his place of work.

Senior Civil Judge,

Nizamabad.

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1

SC.No.107 of 2012

IN THE COURT OF ADDL. ASSISTANT SESSIONS JUDGE (FTC),

NIZAMABAD AT ARMOOR

Present: Sri Mohd. Bande Ali, B.Sc., LL.B., Asst. Sessions Judge, Nizamabad. FAC: Addl. Asst. Sessions Judge (FTC), Nizamabad at Armoor.

Friday, the 12th day of June, 2015

Sessions Case No.107 of 2012

Name of complainantThe State represented by the Sub Inspector of Police, PS Armoor.

Name of AccusedA2) Smt. Beebi @ Shameena Begum W/o Md. Shamsheer ali, age 45 years, Caste: Muslim, Occ: House Wife,

A3) Md. Shamsheer Ali, S/o Late Md. Sadak Ali, age: 53 years, Caste: Muslim, Occ: Hotel business.

A4) Abdul Rahaman S/o Md. Shamsheer Ali, age: 25 years, Caste: Muslim, Occ: Hotel worker.

A5) Nafees Begum @ Naseef W/o Sk. Ahmed, age: 40 years, caste: Muslim, Occ: Beedi roller.

A6) Sk. Abdul S/o Sk. Ahmed, age: 25 years, caste: Muslim, Occ: Auto driver.

All R/o.H.No.1-4-42/1,Zirayathnagar, Armoor.

Case against A1 was separated and registered as SC No.308/2014 in PRC 5/2012.

ChargeUnder Section 498-A IPC and section 3 & 4 of DP Act.

Plea of AccusedPleaded not guilty.

FindingAccused No.2 to 6 are found not guilty.

Sentence or OrderAccused No.2 to 6 are acquitted.

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Prosecution conducted bySri Viplav Kiran, Addl. Public Prosecutor, Armoor.

Accused defended bySri Khandesh Srinivas, Advocate, Armoor.

This case was committed by Judicial Magistrate of First Class, Armoor, in PRC No.5 of 2012 (Crime No.337/2010 of PS Armoor)

This case coming before me for final hearing on 05-6-2015 in the presence of Sri Viplav Kiran, Additional Public Prosecutor for the prosecution and that of Sri Khandesh Srinivas, Advocate for accused, and having stood over for consideration till this day, this Court delivers the following:

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

1.00The case of the prosecution in brief is that on 29.9.2010, at about 11.00 am., the defacto complainant by name Sri Waheed Pasha lodged complaint before the S.H.O, Armoor Police Station, stating that he is resident of Nehru Nagar village of Yedpally mandal. Marriage of his sister Rizwana Begum was performed with one Abdul Azeez (A1) of Armoor about 12 days back i.e., 16.9.2010. An amount of Rs.40,000/- net cash, 2 tulas of gold and other house hold articles were given towards dowry.

Rizwana Begum and A1 stated to have lived happily for two days only.

Thereafter A1, his mother by name Bibi (A2), his father by name Md.

Shamsheer Ali (A3) and relatives by name Md. Umar, Abdul Rahman (A4),

Jameela, Shakeel, Nafees (A5), Abdul (A6) and Parveen started harassing the sister of the defacto complainant demanding her to bring additional dowry. The said persons alleged to have sent back to Rizwana Begum to his house at Nehru Nagar. Thereupon the village Sarpanch, Ex-Sarpanch

Mohammad Ami and Shen Amanullah Shareef became annoyed and sent her to the house of her in-laws. The accused 1 to 6 and others named above did not change their attitude. The said persons alleged to have 3

SC.No.107 of 2012

harassed Rizwana Begum physically and mentally demanding her to bring

additional dowry of Rs.2,00,000/-, which fact was informed to the defacto

complainant by Rizwana Begum over phone. While so on 28-09-2010 at about 3:00 A.M. accused No.1 informed the defacto complainant over phone that his sister Rizwana Begum (Wife of A1) is admitted in M.J.

Hospital, Armoor for treatment. Immediately the defacto complainant rushed to the said hospital. On enquiry Rizwana Begum told that on 27.9.2010 at about 10:30 P.M. she slept after having supper. At about 11:30 P.M. Accused No.1 sat on her chest and pressed her neck with hands and left her thinking that she died. Defacto complainant therefore stated in the complaint that A1 attempted to commit murder of his sister by sitting on her chest and pressed her neck and that the other persons named above harassed his sister physically and mentally demanding

additional dowry.

1.01Basing on the above said report, a case in Cr.No.337/2010, under section 498-A & 307 IPC and section 3 & 4 of DP Act was registered.

During the course of investigation, the Sub Inspector of Police, stated to have examined the defacto complainant and other witnesses, recorded their statements, visited the scene of offence, observed the same in presence of mediators. On 6.10.2010 the Sub Inspector of Police stated to have arrested A1 to A3 at 8:00 A.M., on 19.10.2010 apprehended A4 to

A6 at 2:00 P.M., interrogated them, effected their arrest and produced them before court. The evidence collected stated to have established that the accused No.1 is guilty of the offence punishable under section 498-A & 307 IPC and section 3 & 4 of DP Act and whereas A2 to A6 are guilty of the offences punishable under section 498-A IPC and section 3 & 4 of DP Act.

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SC.No.107 of 2012

2.00 Learned Judl. Magistrate of First Class, Armoor, committed the case to the Court of Sessions, Nizamabad and the Hon'ble Prl. Sessions

Judge, Nizamabad, took the case on file for the offence punishable under

section 498-A & 307 IPC and section 3 & 4 of DP Act and made over the same to this Court for disposal according to law.

3.00 After appearance of the accused, charges against the accused

No.2 to 6 for the offences punishable under section 498-A IPC and section 3 & 4 of DP Act were framed, read over and explained to them, who having understood the same, pleaded not guilty and claimed to be tried.

4.00 The prosecution to prove its case, got examined Pws 1 to 5 and got marked Exs.P1 to P5.

5.00 PW1 Waheed Pasha is the Complainant/Brother of the victim,

PW2-Rizwana Begum is the victim, PW3 Ahemadi Begum is the Mother of the victim. Pw.4-Jareena Begum is the witness. Pw5-Md Jakeer Hussain is the Neighbor of A1/Witness. Exs.P1 to P5 are the statements of Pws 1 to 5 recorded by Police under section 161 Criminal Procedure Code (for short 'Cr.P.C').

6.00 After closure of the evidence of prosecution, as there was no incriminating material in the evidence of prosecution, examination of the accused No.2 to 6 under Section 313 Cr.P.C. was dispensed with.

7.00 Heard both sides.

8.00 Point for consideration:

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Whether the prosecution has proved the guilt of the accused

No.2 to 6 for the offences punishable under section 498-A IPC and section 3 & 4 of DP Act beyond reasonable doubt?

9.00 POINT:The accused No.2 to 6 who are facing trial in this case stood charged for the offences punishable under section 498-A IPC and section 3 & 4 of DP Act. Therefore, the prosecution is required to establish that the accused subjected his wife/Pw.2 to cruelty, demanded additional dowry of Rs.2,00,000/-. The prosecution to substantiate its case, placed reliance on the evidence of Pws 1 to 5 and Exs.P1 to P5. The evidence adduced by the prosecution in brief is as follows:

9.01PW1 who is the defacto complainant and also brother of victim deposed that about five years back his sister Rizwana Begum married to

A1. Fifteen days thereafter at about 4:00 A.M., A3 who is the father of A1 informed over phone to the defacto complainant that is his sister is sick and she is hospitalized at Armoor. Himself and his mother Ahmedi Begum stated to have rushed to the hospital and found Rizwana Begum was undergoing treatment. On enquiry Rizwana Begum told that she fell sick and hence she was admitted in hospital. Pw.1 denied to have filed complaint before police.

9.02Pw.2 victim deposed that about five years back she was married Accused No.1. After fifteen days she fell sick and hence she was admitted in hospital at Armoor. She further deposed that on information

Pw.1 and her mother came to hospital. She also deposed that accused

No.1 to 6 and others did not do anything to her. Pw.3 who is the mother of Pw.2 deposed in the same line as that of Pws.1 and 2. Pw.4 and Pw.5 who are neighbors of A1 deposed that they do not know anything about 6

SC.No.107 of 2012

this case. Learned additional P.P. cross examined Pws.1 to 5 but nothing material is elicited except getting their statements recorded under section 161 Cr.P.C. marked as Ex.P1 to P5. Therefore learned Addl. P.P. gave up the remaining witnesses. In fact no use full purpose would have been served by examining other witnesses.

10.00A perusal of the above evidence on record, clearly indicates that Pws.1 to 3 who are the material witnesses including the defacto complainant and victim turned hostile to the case of prosecution. PW2 who is the Victim categorically deposed that the accused did not do anything to her. PW1 and 3 who are brother and mother of Pw.2 deposed that the accused did not do anything to Pw.2. There is absolutely nothing on record to connect the accused with the alleged offences. It thus, become very much clear that the prosecution has failed to establish the guilt of the accused No.1 for the offences punishable under Section 498-A

IPC and section 3 & 4 of DP Act beyond reasonable doubt.

11.00 In the result, the accused No.2 to 6 are found not guilty of the offences punishable under Section 498-A IPC and section 3 & 4 of DP Act, and accordingly, they are acquitted under Section 235 (1) Criminal

Procedure Code. Bail bonds executed by them shall stand canceled. The unmarked case property if any shall be destroyed after appeal time.

Typed to my dictation directly by the typist of Senior Civil Judge Court, Nizamabad, corrected and pronounced by me in open Court on this the 12th day of June, 2015.

FAC: Addl. Asst. Sessions Judge (FTC), Nizamabad at Armoor.

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SC.No.107 of 2012

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTIONFOR DEFENCE

PW1(LW1)Waheed PashaComplainant/Brother of - None - victim. PW2(LW2)Rizwana BegumVictim PW3(LW3)Ahemadi BegumMother of Victim PW4(LW6)Jareena BegumWitness PW5(LW7)Md. Jakeer HussainWitness/Neighbor of A1

EXHIBITS MAKED

(On behalf of)

FOR PROSECUTION FOR DEFENCE

Ex.P1:Sec.161 Cr.P.C. statement of PW1. -Nil- Ex.P2:Sec.161 Cr.P.C. statement of PW2. Ex.P3:Sec.161 Cr.P.C. statement of PW3. Ex.P4:Sec.161 Cr.P.C. statement of PW4. Ex.P5:Sec.161 Cr.P.C. statement of PW5.

MOs MARKED

- Nil -

FAC: Addl. Asst. Sessions Judge (FTC), Nizamabad at Armoor.