Sri Moka Suvarna Raju

V A.D.S.J. Court, ALG. 1 S.C.No.224/2016

IN THE COURT OF THE V-ADDITIONAL DISTRICT & SESSIONS

JUDGE, ALLAGADDA.

Present: Sri Moka Suvarna Raju III Additional District & Sessions Judge, Nandyal FAC of V-Additional District & Sessions Judge, Allagadda.

Friday, the 26th day of July 2019.

SESSIONS CASE No.224 of 2016

P.R.C No.5 of 2016 on the file of the Judicial Magistrate of the First Class, Koilkuntla.

Committed by Ms. A. Manjulatha,

Judicial Magistrate of the First Class, Koilkuntla,

Cr.No.& P.S.Crime No.106/2014 of Koilkuntla P.S.

1.Description of the Dudekula Mohammad Rafi @ Rafi, S/o AccusedNadipi Mabusa @ Bavammagari Kuntanna, aged 19 years, R/o PerusomulaVillage,Sanjamala Mandal, Kurnool District. 2.ChargesU/Secs.302 IPC 3.Plea of the AccusedNot guilty 4.Finding of the JudgeFound guilty

5. Sentence or OrderThe Accused is found guilty of the Charge U/Sec.302 of the IPC and accordingly, he is convicted of the Charge U/Sec.235 (2) of Cr.P.C., and sentenced to suffer Imprisonment for Life and to pay a Fine of Rs.1,000/- (Rupees One thousand only). In default, to undergo Rigorous Imprisonment for Three Months.

6.Prosecution conducted bySri B. Satyanarayana,

Additional Public Prosecutor,

7.Accused defended bySri M.V. Ramana, Advocate, Nandyal

III-Additional District &Sessions Judge, Nandyal. FAC V-Additional District &Sessions Judge, Allagadda.

V A.D.S.J. Court, ALG. 2 S.C No.224/2016

IN THE COURT OF THE V-ADDITIONAL DISTRICT & SESSIONS

JUDGE, ALLAGADDA.

Present: Sri Moka Suvarna Raju III Additional District & Sessions Judge, Nandyal FAC of V-Additional District & Sessions Judge, Allagadda.

Friday, the 26th day of July 2019.

SESSIONS CASE No.224 of 2016

P.R.C No.5 of 2016 on the file of the Judicial Magistrate of the First

Class, Koilkuntla.

Between:

The State of A.P., represented by the Inspector of Police, Koilkuntla P.S. … Complainant - A N D -

Dudekula Mohammad Rafi @ Rafi, S/o Nadipi Mabusa @ Bavammagari Kuntanna, aged 19 years, R/o Perusomula Village,

Sanjamala Mandal, Kurnool District. ...Accused

This Case was coming on 19-06-2019 for final hearing before me in the presence of Sri B. Satya Narayana, the Additional Public Prosecutor for the State and of Sri M.V. Ramana, Advocate for the Accused and upon hearing both the sides and upon perusal of the material on record, this

Court delivered the following:-

J U D G M E N T

1.The State, represented by the Inspector of Police, Koilkuntla Circle, has filed Charge Sheet against the Accused for the offence under Section 302 of IPC in F.I.R No.106/2014 of Koilkuntla P.S.

2. The brief averments of the Charge Sheet are: that Mr.

Dudekula Mohammad Rafi (the Accused) and the second daughter of one

Mr. Mahanandigari Maddaiah, namely Maheswari were studying

Intermediate about 4 years prior to 2014, in C.V.Raman College at

Koilkuntla; that they both fell in love; that after Intermediate, the Accused joined B.Tech in Dhruva Institute of Engineering College, Hyderabad and whenever he visits Perusomula Village, he used to meet Maheswari and

V A.D.S.J. Court, ALG. 3 S.C No.224/2016

spend time in the house of his Senior Maternal Mother, namely

Hussainamma; that the girl Maheswari was taking treatment under a

Dentist at Smile Dental Hospital, Koilkuntla; that whenever she comes to

Koilkuntla, the Accused used to meet her; that in 2014 after completion of

Second year B.Tech, the Accused came to Perusomula for holidays; that the girl Maheswari met him and was insisting him to marry since her parents were searching alliances for her marriage; that the Accused postponed the same from time to time; that on 19-07-2014, Maheswari asked the Accused to come to Koilkuntla to meet her as she was going to

Dentist; that they both met at the Dental Hospital; that the girl insisted him to marry her at an early date; that the parents of the Accused did not agree for their marriage, as such, the Accused, to get rid of Maheswari, had purchased a Super Vasmol Bottle; that on the same date at about 08:00 pm, he met Maheswari at the Dental Hospital; that as she intensified him to marry her; that they both went to the Bus Stand and later went to the outskirts of Koilkuntla; that when the Accused forcibly caught hold of her hand and talking to her, she took his Cellphone and talked to her father; that one Ravindranath Chowdary and Boya Maddileti have seen both of them at the Bus Stand; that the Accused had taken the girl Maheswari to the outskirts of Koilkuntla to the fields behind Sai Baba

Temple; that they decided to commit Suicide by consuming Vasmol; that he administered Vasmol to her; that when she became unconscious, he tied her Chunni to her neck and tied the other end to a Cement Pole and forcibly pulled it and as a result she had died. It has been further pleaded that on 12-07-2014, on the Report of the brother of the deceased girl namely Mahendra, the Sub-Inspector of Police, had registered a Case vide

F.I.R No.106/2014 under Sections 364 and 302 of IPC and the Inspector of

Police had conducted investigation and filed Charge Sheet.

V A.D.S.J. Court, ALG. 4 S.C No.224/2016

3.The Judicial Magistrate of the First Class, Koilkuntla had taken cognizance of the offence under Section 302 of I.P.C., registered the same as P.R.C No.5/2016, and committed the Case to the Hon’ble Principal

District and Sessions Judge, Kurnool. The Hon’ble Principal District and

Sessions Judge, Kurnool had registered the same as Sessions Case No.

224/2016 and made over the same to this Court for disposal.

4.This Court after hearing the Additional Public Prosecutor and the

Counsel for the Accused has framed a Charge under Section 302 of the

IPC, and explained the same to the Accused, for which, he pleaded not guilty and claimed to be tried.

5.The Prosecution, to prove the Charge leveled against the Accused, has examined the brother and father of the deceased namely Mahendra and Maddiah, one Mr. Yella Sreenivasulu, Mr. G. Ravindranath, Mr. Maasuri

Sreenu, one Boya Bala Maddilety, the V.R.O of Koilkuntla Mr. N.

Ramakrishna Reddy, the Dentist Dr. Lakshman Kumar, the Civil Assistant

Surgeon, who conducted Postmortem Examination Dr. R. Sri Charan, the

Nodal Officer of Reliance Communication, Hyderabad, Mr. S. Madhusudhan

Gupta, the Alternate Nodal Officer of Vodafone Idea Limited, Hyderabad,

Smt. P. Jaya Lakshmi, the Police Constable P. Krishnaiah, the then Sub-

Inspector of Police Mr. B. Subba Rayudu, the then Inspector of Police Mr.

P.Sreenivasa Reddy, the then Inspectors of Police, Koilkuntla Mr. P. Naga

Raju Yadav and P.T. Kesava Reddy as Pws.1 to 16 and got marked documents and material objects as Exs.P1 to P6 and Mos.1 to 6. After closing the evidence when the Accused was examined under Section 313 (1)(b) of Cr.P.C., he denied the evidence and when called upon to enter defence, reported no defence evidence.

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6.[6.1]. Thereafter, heard the learned Additional Public Prosecutor and the learned Counsel for the Accused. The learned Additional Public

Prosecutor has argued that the Case rests upon circumstantial evidence; that the Prosecution could bring all the circumstances connecting with each other and proved the guilt of the Accused beyond reasonable doubt and prayed the Court to convict the Accused. In support of his arguments he quoted the following Case Law:

1. Anvar P.V. Vs. P.K. Basheer and others. AIR 2015 SC 180.

This Case is with regarded to Admissibility of Electronic Records and the requirement of 65 (B) Certificates etc.

2. Mothiram Padu Joshi and others Vs. State of Maharashtra, AIR 2018 Supreme Court 3245. This Case is regarding appreciation of evidence of eye witnesses and interested witnesses, etc.

3. Ganapathi and another Vs. State of Tamil Nadu, AIR 2018 Supreme Court 1635. This Case is also regarding appreciation of the evidence of interested witnesses.

[6.2] The learned Defence Counsel has argued that there is abnormal delay in lodging the Report which is not explained; that the

Prosecution has failed to prove the motive to commit the offence by the

Accused; that the Electronic evidence relied upon by the Prosecution is inadmissible for want of Section 65 (B) Certificate of the Indian Evidence

Act; that the manner of death as projected by the Prosecution could not be happened in view of the evidence of the Doctor who conducted the

Postmortem Examination; that only the Prosecution has examined interested witnesses; that there are several links missed in the chain of circumstances; that the last seen theory propounded by the Prosecution is not satisfactorily proved, thus the Accused is entitled to acquittal. He quote the following Case Law:

V A.D.S.J. Court, ALG. 6 S.C No.224/2016

i). Tomaso Bruno and another Vs. State of U.P., (2015 (1) ALD (Crl.) 663 (SC)). This Case relates to appreciation if circumstantial evidence and also proof of motive.

ii). Narne Gopala Krishna and another Vs. State of A.P. (2013 (1)

ALD (Crl.) 121 (AP)). In this Case the last seen theory has been dealt with.

iii). Kala @ Chandra Kala Vs State through Inspector of Police

(2016 (2) ALD (Crl.) 663 (SC)). In this Case the extra Judicial Confession has been discussed.

iv). Kondapaka Sridhar @ Siddu Vs. State of A.P. (2018 (2) ALD

(Crl.) 855). In this Case appreciation of circumstantial evidence has been dealt with.

v). Parasa Koteswara Rao Vs. Eede Srihari and others (2017 (2) ALD (Crl.) 338 (SC)). This Case is also about appreciation of circumstantial evidence.

vi). Sateesh Nirankari Vs. State of Rajasthan, (2017 (2) ALD (Crl.)

610 (SC)). This Case is also about appreciation of circumstantial evidence.

vii). Jose @ Pappachan Vs. Sub-Inspector of Police, Koyilandy and

another, 2017 (1) ALD (1) (SC)).This Case is about appreciation of circumstantial evidence and proof of motive etc.

viii). Harpal Singh @ Chhota Vs. State of Punjab, (2017 (1) ALD

(Crl.) 199 (SC)). It is held in this Case that when the Call details are printed copies of computer generated, in the absence of production of certificate under section 65 (B) are inadmissible.

ix). Mohammad Ali @ Guddu Vs. State of U.P. Crl.A.P 2238/2010

SC.

In the light of the evidence on record, arguments advanced and the

Case law quoted, I now formulate the following point for determination:

7. Whether the Prosecution could beyond the reasonable

doubt that the Accused had committed the murder of Maheswari,

if so, he be convicted.

8. Finding: My finding is that the Prosecution could prove that the Accused had committed the murder of Maheswari, hence, he is liable to be convicted.

9.Reasons for my finding are as below: [9.1]. The entire Case rests upon circumstantial evidence. The law has been set into motion on the Report of the brother of the deceased girl on 12-07-2014 after tracing

V A.D.S.J. Court, ALG. 7 S.C No.224/2016

the dead body on 12-07-2014. As per the contents of the Report (Ex.P1) on 09-07-2014 at about 9 am her sister went to Koilkuntla to consult the

Dentist; that on the same night at about 9 pm she made a call to the

Mobile Number 9160562740 and informed that the Accused was forcibly taking her from the way in between Dental Hospital and Bus Stand,

Koilkuntla; that on 11-07-2014 on getting the mobile number of the

Accused from his brother, he (the informant), his father and their villager one Yella Sreenivasulu made a call to the mobile of the Accused bearing

No. 9014994372 from the mobile of Yella Sreenivasulu bearing Cellphone

No. 9703998004 at about 3:00 pm; that till 11:00 pm, the Accused was dodging; that at about 11:30 pm the Accused himself made a call to the mobile phone of Yella Sreenivasulu and informed that he had killed

Maheswari and that the dead body was in the fields near Sai Baba Temple in the Gunjalapadu Road; that they all on the same night searched for the body of his sister; that again on 12-07-2014 at about 6 am, the Accused with the same mobile number 8099524140 made a call to Mr.

Sreenivasulu and had informed the location of the field where the dead body was lying; that as per the particulars disclosed by the Accused they all went and found the dead body of his sister in swollen condition tied with her Chunni and the second end was tied to a lying Cement Poll. Thus, the contents of the Report themselves explains the delay in lodging the

Report.

[9.2].The Inspector of Police of Sirvel Circle Mr. P. Sreenivasa

Reddy (PW.14) has deposed that he acted as in-charge to Koilkuntla Circle from 10-07-2014 24-07-2014; that on 12-07-2014 at 10:30 am, he received the Express F.I.R and rushed to the Scene of Offence along with his staff and conducted Inquest. The witnesses who have seen the dead body first have deposed, how the dead body was lying at the Scene of

V A.D.S.J. Court, ALG. 8 S.C No.224/2016

Offence. The brother of the deceased (PW.1) has deposed that they found the Chunni of his sister tied to her neck and the other end to a Cement

Pole; that they found the Eyes and Tongue protruded and bleeding marks from Ears and Nose of the Body. The Father of the deceased Mr. Maddaiah, one Yella Sreenivasulu, and a relative of the deceased Mr. Maasuri Sreenu (Pws.2, 3 & 5) have deposed similar version. The Inspector of Police said to have conducted Inquest in the presence of Panchayatdars namely N.

Ramakrishna Reddy, the V.R.O of Koilkuntla, who said to have acted as one of the Panchayatdars. He deposed that on 12-07-2014, he accompanied the Inspector to Gunjalapadu Road; that there they found one Cement Pole and the body of one girl with Chunni tied to her neck; that the Eyes and Tongue protruded and found blood marks from Ears and

Nose.

[9.3].The Civil Assistant Surgeon Dr. R. Sri Charan (PW.9) has deposed that on 12-07-2014 in between 02:15 and 04:45 pm, he conducted Postmortem Examination; that he noticed a white colour

Chunni tied to her body with blood stains. The body decomposed with putrefaction changes and that he found ligature mark present on the middle of the neck extending from middle to the Luchal region on the back of the neck; that Hyoid Bone was fractured at the mid level; that he did not find any poisonous substance in the stomach, but based on the

FSL Report, she issued PME Certificate, opining that the cause of death was Asphyxia, due to hanging. The Doctor has given detailed answers to the questions in the cross-examination and stated that he found the

Ligature mark more on front and both sides of the neck. When further questioned about the form of Ligature mark in the stimulation and in hanging he admitted that in stimulation ligature mark will be around the neck completely and in case of hanging there will not be any Ligature

V A.D.S.J. Court, ALG. 9 S.C No.224/2016

mark completely. However, he deposed that since the body was in decomposed stage, he could not give firm opinion on Ligature. The Doctor has ruled out any poisonous substance in the Viscera. The F.S.L Report (Ex.P6) shows that no poisonous substance was found in the Viscera. In view of such case though the Investigating Officer said to have seized the

Vasmol bottle, it was ruled out that the death was caused to administration of any poisonous substance, and that death was caused only due to hanging.

[9.4] As per the evidence of the witnesses and the Rough Sketch marked before the Court, the Electric Pole to which the other end of the

Chunni was tied was not in erected position, but was lying on the ground.

Even, if it is an erected pole, there would be no possibility for hanging to the pole. The Doctor has deposed that at the time of Postmortem examination, he found the Chunni tied around the neck of the dead body.

He deposed that the Ligature mark was present on the middle of the neck, extending from middle to the Luchal region on the back of the neck. The further observation that he found an en-duration with blood stains of 4 cm width and 30 cms length around the neck and Hyoid Bone was fractured at the mid level neck gives to the irresistible conclusion that the deceased was strangulated with the Chunni around her neck by tying one end to the poll and by pulling the other end. The first appearance of the dead body as deposed by the witnesses made this Court to come to such conclusion.

[9.5].Now, the task before the Court is to decide whether the circumstances projected by the Prosecution connects the Accused to offence. The Pws.1 to 3 & 5, according to their version, could know the location of the dead body where it was lying only when disclosed by the

Accused through Phone calls. The Pws.1 & 2 have deposed that the

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deceased was getting Clip treatment at Koilkuntla, and by informing that she was going to the Clip treatment, on 09-07-2014, she left the house in the morning. Since, they might not have knowledge of the love affair between the Accused and the deceased, the PW.1 did not mention the same in his Report. The Prosecution to establish the last seen theory has examined one Mr. G. Ravindranath and Boya Maddileti (Pws.4 & 6). Mr. G.

Ravindranath a resident of Perusomula Village has deposed that he knows

Mr. Maddiah and his daughter Maheswari; that on 09-07-2014, he went to

Koilkuntla to purchase provisions for his Hotel; that at about 9:00 pm when he came to Koilkuntla Bus Stand, he saw the Accused and

Maheswari on the way to go inside the bus stand; that one Bala Maddileti was also with him; that they both boarded the Bus and returned to their village; that he heard that Maheswari died on 12th. Mr. Boya Maddileti (PW.6) has deposed that he knows the deceased Maheswari and her father; that on 09-07-2014 at Koilkuntla Bus Stand, he saw the Accused and Maheswari; that he saw the Accused catching hold the hand of the

Accused; that he did not inquire them since he knows that they were loving each other; that he boarded the Bus and returned to his house; that later he came to know that on 12th, the Accused had killed Maheswari. The

Defence Counsel has suggested him that he is a relative to the deceased, but he denied such relationship. The contention of the learned Defence

Counsel is that if the Accused was taking the girl high handedly, she should have raised cries or seek the help. These witnesses are known to her, but it is not the version of the Pws.4 & 6 that they both were quarreling in the Bus Stand. No animosity has been suggested to these witnesses to rope the Accused into this Case.

[9.6]. The learned Defence Counsel has argued that since the accusation rests upon circumstantial evidence, motive is required to be

V A.D.S.J. Court, ALG. 11 S.C No.224/2016

proved; that since none of the witnesses deposed about the motive, the

Accused shall be entitled to acquittal on the sole ground. In support of his contention he relied upon the Case of Tomaso Bruno and another Vs.

State of UP, 2015 (1) ALD (Crl.) 663 (SC).It is a Case of death by strangulation. It was held in Paragraph 34 as below:

“that the Case is based on circumstantial evidence, proof of motive will be an important corroborative piece of evidence. If motive is indicated and proved, it strengthens the probability of the commission of the offence. In the Case at hand, evidence adduced by the Prosecution suggesting motive is only by way of improvement at the stage of trial which, in our view does not inspire confidence of the Court.”

In a recent Judgment, the Hon’ble Apex Court in Sukhpal Singh

Vs.Punjab (Criminal Appeal No.1697 of 2009) decided on

12.02.2019 has held that the inability of the proof of motive in a case of circumstantial evidence is not always fatal to the Prosecution Case. The

Apex Court in this case has appreciated the importance of motive in determining the culpability of the Accused but has clearly and convincingly refused to acknowledge it as the sole criteria for not convicting the Accused in the absence of motive and that it is not mandatory where the Case rests upon circumstantial evidence, if the guilt can be proved by other evidence. In view of the recent pronouncement of the Hon’ble Apex Court, this Court is unable to rely upon the judgment quoted by the learned defence Counsel.

[9.7].Since, death has been established by way of strangulation by means of the Chunni of the deceased, the task before the

Court is to find out who had committed the offence. The deceased stated to have last seen in the company of the Accused on 09-07-2014 as seen from the evidence of the Pws.4 & 6. The last seen theory is a weak piece of evidence, but it can be used if other evidence supports the Prosecution.

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The deceased stated to have left their house in the morning by informing that she was going to Koilkuntla, to consult the Dentist. She, did not return home, even till night and at about 9 pm, she made a phone call to her father and informed that the Accused was forcibly taking her. Since, that time the father, brother and other relatives of the deceased started searching for the girl and made calls to the Accused through Mr. Yella

Sreenivasulu, a close relative of the deceased.

[9.8]The Accused has denied of making any calls or having any Mobile in his name. The father of the deceased, who said to have received the Phone call from the deceased could not say his Mobile number as well as the Mobile number from which he received Phone call from his daughter. As per the evidence of Mr. P. Sreenivasulu (PW.3), he was making calls to the Accused by getting the Mobile number from the brother of the Accused; that at last, as disclosed by the Accused on 12-07- 2014 at about 06:30 am, they could trace the dead body. Though, initially the PW.3 did not depose his phone number, the Prosecution recalled him and introduced his Aadhar Card, wherein his Mobile number 9703998004 was updated. The Prosecution, to establish the Phone conversation, has relied upon the evidence of the Nodal Officer, Reliance Communication (PW.10), and the Alternate Nodal Officer Vodafone, Idea Limited (PW.11).

They both produced the Call data particulars, copies of Customer

Application Forms in the name of the Accused as well as in the name of the father of the deceased. The learned Defence Counsel has argued that the evidence of the Pws.10 & 11 cannot be looked into, since they did not produce Section 65 (B) Certificate, which is mandatory to receive

Electronic evidence. The learned Additional Public Prosecutor has argued that Nodal Officers have furnished the details retrieved from the

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Computers, maintained from their Office; that they signed in each page of the document, as such the same shall be treated to be the Certificate under Section 65 (B), hence, the same can be relied upon. The learned

Additional Public Prosecutor has relied upon the Judgment of Anvar P.V

Vs. P.K. Basheer and others, AIR 2015 Supreme Court. The learned

Defence Counsel has relied upon the same Judgment as well.

[9.9].Now, I look into the evidence of the PW.10, who is the

Nodal Officer, Reliance Communication. He deposed that on the requisition given by the Additional Superintendent of Police, Kurnool, he had furnished the Call details of the Mobile Numbers 8099524140 & 9014994372. Through him the Call details of the Mobile number 8099525140, along with cover letter, Dt: 13-02-2015 was marked as

Ex.P8. Though, he did not issue separate Certificate under Section 65 (B) in his covering letter he mentioned as below:

“the Call detail Records (as per the Electronic Records maintained by our Company) for the Mobile numbers 8099525140 & 9014994372 for the period from 01-07-2014 to 15-07-2014 and the Customer Application Forms are retrieved from the Data Server for routine activities is herewith enclosed along with this covering letter”.

Thus, the covering letter satisfies the requirements of Section 65(B) though not separate Certificate had been issued.

The Alternate Nodal Officer of Vodafone, Idea Limited Smt. P. Jaya Lakshmi (PW.11) has deposed evidence and through her, the Call details furnished by the then Nodal Officer Smt. G. Shiva Kumari, has been marked as

Ex.P12 and also the Customer Application Form in the name of

Mahanandigari Maddaiah (PW.2) as Ex.P13. In such Covering Letter under

Ex.P13, the then Alternate Nodal Officer has mentioned as below:

“As per your request, we are furnishing the copy of Customer Application Form of the Mobile numbers 9966052757 & 9703998004 as per our records, along with a Certificate under Section 65 (B) of the Indian Evidence Act.”

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Though, the Certificate said to have been given by them is not available in the record, her version in the Covering Letter that they have furnished a copy of the Customer Application Form as per their records itself is sufficient. Likewise, in the Call details of the Mobile number 9160562740 (Ex.P2), each page of the Call details was attested by the

Nodal Officer, thereby she had certified their correctness. In a recent order pronounced on 30.01.2018, in Shafhi Mohammad Vs. The State

of Himachal Pradesh in Special Leave Petition (Crl.) No.2302 of

2017, the Hon’ble Apex Court has simplified or diluted the requirement of the Certificate under Section 65 (B) and held that a party who is not in the possession of the device from which the documents are produced such persons cannot be required to produce Certificates under Section 65 (B) of the Indian Evidence Act. Further, it held that the applicability of requirement of certificate being procedural can be relaxed by the Court wherever interest of justice so justifies. This Court, in view of the march of law, regarding the applicability of 65 (B) Certificate, satisfied with the

Covering Letters submitted by the Nodal Officer concerned when they were submitting the Call details and the copies of Customer Application

Forms of the persons concerned. In view of the latest pronouncement of the Hon’ble Apex Court, the judgments quoted by the learned defence

Counsel i.e., can not be strictly applied.

[9.10].Now, I look into the evidence of the witnesses about the phone calls. The father of the victim Mr. Maddaiah (PW.2) has deposed that his daughter made a phone to him on 09-07-2014 at 9:00 pm and informed that she was being forcibly taken by the Accused, while she was going to the Bus stand, Koilkuntla. He further deposed that Mr.

Sreenivasulu (PW.3) made conversation with the Accused from his mobile to different Phone numbers. According to the Nodal Offier S. Madhu

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Sudhan Gupta (PW.10), the Mobile number 8099524140 stands in the name of Mohammad Rafi, the Accused herewith. He had furnished the Call details of such Mobile number along with the attested copies of Customer

Application Form and Voter ID Card. He further deposed that as per their

Call records, the Mobile number 8099524140 was used in the Mobile bearing IMEI No. 351534048812920. He furnished another number i.e., 9014994372 stands in the name of one Shravan Kumar, R/o Pamidi,

Anantapur District. According to him the same Mobile number was used by the Mobile bearing IMEI No.351534048812920. According to him there were Three outgoing calls from the Mobile number 8099524140 to the mobile No. 9703998004, and one incoming call. He further deposed that there were one outgoing call from the mobile no. 9014994372 to the mobile no. 9703998004 and Three incoming calls.

[9.11].As per the evidence of the PW.11, the Mobile number 9160562740 was used by the Mobile bearing IMEI No. 351534048812920; that there was an outgoing call to the Mobile No. 9966052757 on 09-07- 2014 at 21:39 hrs. Now, I examine the period during which there were exchange of calls from the side of the family members and relatives of the deceased and from the side of the Accused. As per the Call data particulars and the Customer Application Forms, the following table is given to know which phone was in the name of whom.

Name Mobile No. Mahanandigari Maddaiah 9966052757 (PW.2), father of the deceased) Yella Sreenivasulu (PW.3, a 9703998004 relative of the deceased family)

Mohd. Rafi (the Accused) 1. 8099524140 (In the name of the

Accused)

2. 9160562740 (In the name of one N.Shavan Kumar used by the

Accused)

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The evidence of the PW.2 is that he received a call on the night of 09-07-2014, from his daughter and that she informed that the Accused was forcibly taking her. The evidence discloses that the deceased girl was not maintaining any Mobile number. The Call data particulars supports the contention of the PW.2 that she received a call from his daughter. This further supports the contention of her presence in the company of the

Accused, since the call was made by her with the Mobile used by the

Accused. The PW.3 has deposed that he contacted the Accused with the

Phone number given by Mr. Amit; that initially he did not disclose about the whereabouts of the deceased, but at 11:30 pm, the Accused made a

Phone call and informed that he had killed the girl and thrown the dead body in the agricultural field near the Sai Baba Temple, Gunjalapadu Road; that on 12-07-2014 at about 06:30 am, the Accused again made a call and disclosed the exact location where the dead body was lying. When, the Call Data particulars are analyzed, Mr. Yella Sreenivasulu (PW.3) made a call from his mobile No. 9703998004 to 9014994372 on 11-07-2014, at 14:59:47 and at 16:15:42 hrs, he received a call from the Mobile

No.9014994372 at 22:02:54 hrs. As per the Ex.P8, he received a call from

Mobile No. 8099524140 on 11-07-2014 at 22:23:44 hrs. He further received another call from the same Mobile number on 12-07-2014 at 00:00:03 hrs. He made a call to the Mobile No. 8099524140 on 12-07- 2014 at 06:09:11 hrs. He received a call from the Mobile No. 8099524140 at 06:34:38 hrs. These Call Data particulars corroborates the version of the PW.3 that he had called the Accused to know the whereabouts of the deceased and that initially he denied of his knowledge of the whereabouts, later he disclosed that he had killed the deceased and that later he informed the location where the body was lying. Though, the voice has not been recorded, it establishes beyond reasonable doubt that

V A.D.S.J. Court, ALG. 17 S.C No.224/2016

the Accused had called from different Mobile numbers by using same device with same IMEI number and made extra judicial confession about the offence committed by him and in pursuance of such information given by the Accused, the body was traced. The Accused, during the trial, has denied of his having Mobile connection and talking to the PW.3. It is nowhere suggested by the learned Defence Counsel to the Nodal Officer that the record produced by them showing the Call Data particulars and the Customer Application Forms are fabricated documents.

[9.12]. The Call Data particulars strengthen the evidence of the Pws.4 & 6 about their seeing the victim at Koilkuntla Bus Stand in the company of the Accused, just prior to the commission of offence. The

Accused is supposed to give an explanation, but he has taken the plea of total denial. Even, it is not suggested to the Pws.1 & 2 that they have animosity against him to implicate him in a serious offence. The evidence of the Pws.1 & 2 who being the brother and father of the deceased is found cogent, trustworthy and their evidence is corroborated by the other evidence adduced by the Prosecution. Thus, the prosecution could establish all the material circumstances to point the guilt against the

Accused, but none else. I found no De-link to the chain of the events in forming the ring of truth. Thus I hold that the Prosecution could prove the

Charge beyond reasonable doubt.

10.As a result, the Accused is found guilty of the Charge under

Section 302 of IPC and accordingly he is convicted under Section 235 (2) of Cr.P.C.

Dictated to the Stenographer Grade-III, transcribed by him corrected and

pronounced by me in open court on this the 26 th day of July 2019.

III-Additional District &Sessions Judge,

Nandyal. FAC V-Additional District &Sessions Judge, Allagadda.

V A.D.S.J. Court, ALG. 18 S.C No.224/2016

IN THE COURT OF THE V-ADDITIONAL DISTRICT & SESSIONS

JUDGE, ALLAGADDA.

Present: Sri Moka Suvarna Raju III Additional District & Sessions Judge, Nandyal FAC of V-Additional District & Sessions Judge, Allagadda.

Friday, the 26th day of July 2019.

SESSIONS CASE No.224 of 2016

P.R.C No.5 of 2016 on the file of the Judicial Magistrate of the First

Class, Koilkuntla.

Between:

The State of A.P., represented by the Inspector of Police, Koilkuntla P.S. … Complainant - A N D -

Dudekula Mohammad Rafi @ Rafi, S/o Nadipi Mabusa @ Bavammagari Kuntanna, aged 19 years, R/o Perusomula Village,

Sanjamala Mandal, Kurnool District....Accused

J U D G M E N T

The Court questioned the Accused about his version, if any regarding Sentence. He submitted that he is an Engineering

Graduate and that he has to look after his old aged parents and thus submitted to impose lesser punishment. The learned Counsel for the

Accused has submitted to take lenient view. The learned Additional

Public Prosecutor has submitted to impose maximum punishment. A perusal of the entire Case does not disclose that this Case falls under the category of rarest of rare Case to impose maximum punishment. Hence, I am inclined to impose minimum Sentence.

Accordingly, the Accused is sentenced to suffer Imprisonment for

Life and to pay a fine of Rs.1,000/- (Rupees One Thousand Only), in default to undergo Rigorous Imprisonment for 3 months. The Bail bonds of the Accused shall stand cancelled. He is taken into

V A.D.S.J. Court, ALG. 19 S.C No.224/2016

Custody. The M.Os 1 to 3, 5 & 6 shall be destroyed and the MO.4 shall be confiscated to the State after expiry of the Appeal time.

Dictated to the Stenographer Grade-III, transcribed by him

corrected and pronounced by me in open court on this the 26 th day of

July 2019.

III-Additional District &Sessions Judge,

Nandyal. FAC V-Additional District &Sessions Judge, Allagadda.

APPENDIX OF EVIDENCE

Witnesses examined

For the Prosecution:For the Defence:

PW1: M. Mahendra-Nil-

PW2: M. Maddaiah

PW3: Yella Srinivasulu

PW4: G. Ravindranath

PW5: Massuri Srinu

PW6: Boya Bala Maddhileti @ Yerrodu

PW7: N. Ramakrishna Reddy

PW8: Dr. Laxman Kumar

PW9: Dr. R. Sricharan

PW10: S. Madhusudan Gupta

PW11: P. Jaya Lakshmi

PW12: P. Krishnaiah

PW13: B. Subba Rayudu

PW14: P. Srinivasa Reddy

PW15: B. Nagaraju Yadav

PW16: P.T. Kesava Reddy

Exhibits Marked

For the Prosecution: For the Defence:

Ex.P1: Report.N I L

Ex.P2: Inquest Report.

Ex.P3: Relevant portion of Confession, arrest and Seizure Panchanama. Ex.P4: Seizure Panchanama.

Ex.P5: PME Report.

V A.D.S.J. Court, ALG. 20 S.C No.224/2016

Ex.P6: FSL Report.

Ex.P7: Final opinion.

Ex.P8: Call details of Mobile No.8099524140 along with PW.10 Covering Letter, Dt: 13-04-2015 (4+1 sheets) .

Ex.P9: Attested copies of Customer Application Form along with Voter’s Identity Card of Mohammad Rafi(Two Sheets).

Ex.P10: Call details of Mobile No.9014994372 (2 Sheets).

Ex.P11: Attested copies of Customer Application Form along with Voter’s Identity Card of Shavan Kumar N. (Two Sheets)

Ex.P12: Call details of Mobile No.9160562740 along with the Covering Letter, Dt: 13-04-2015 (5+1 Sheets).

Ex.P13: Copy of the Retrieved Customer Application Form on the name Mahanandigari Maddaiah of the Mobile No.9966052757 along with the Covering Letter, Dt: 17-01-2019 (2+1 Sheets).

Ex.P14: Original F.I.R.

Ex.P15: Rough Sketch.

Ex.P16: Letter of Advice, Dt: 22-07-2014.

Ex.P17: Aadhar Card of PW.3.

Ex.D1: Relevant portion in 161(3) Cr.P.C. statement of PW.5.

MATERIAL OBJECTS MARKED

MO.1 to 3: Kurtha, Pant and Chunni.

MO.4: Cell phone.

MO.5: The Super Vasmol Bottle.

MO.6: Two SIM Cards bearing Nos. 8991014310000303908 8991014450000559768

III-Additional District &Sessions Judge,

Nandyal. FAC V-Additional District &Sessions Judge, Allagadda.

V A.D.S.J. Court, ALG. 21 S.C No.224/2016

IN THE COURT OF THE V-ADDITIONAL DISTRICT & SESSIONS

JUDGE, ALLAGADDA.

Present: Sri Moka Suvarna Raju III Additional District & Sessions Judge, Nandyal FAC of V-Additional District & Sessions Judge, Allagadda.

Friday, the 26th day of July 2019.

SESSIONS CASE No.224/2016

TABULAR STATEMENT UNDER RULE 71 OF Crl.R.P.

01.Name of the P.S. & Cr.No.: Koilkuntla Police Station in Cr.No.106 of 2014.

02.Sessions Case No.: 224 of 2016.

03.Sections of law: 302 of IPC

04.Description of the Accused:

Father Age in Occu- Residence Relig

Name of the Name years pation ion

Accused Nadipi Mabusa Dudekula @NotPerusomula Village,Musli Mohammad25 BavammagariknownSanjamala Mandalm. Rafi @ Rafi Kuntanna

05.Date of occurrence of offence:09-07-2014

06.Date of Complaint:12-07-2014

07.Date of Apprehension of Accused:14-07-2014

08.Date of release of Accused:16-09-2014

09.Date of Commitment of case:11-03-2016

10.Date of Commencement of trial:17-12-2018

11.Date of close of trial:05-03-2019

12.Date of sentence of Order:26-07-2019

13.Explanations for delay:-

On 20-07-2016, the Principal District & Sessions Judge, Kurnool has made over this case to this Court for disposal according to law. On receipt

V A.D.S.J. Court, ALG. 22 S.C No.224/2016

of records for appearance of Accused, posted to 01-09-2016. On 26-07- 2018 Charges were framed; Trial Schedule commenced from 17-12-2018 and closed on 05-03-2019, and Heard the Arguments on 19-06-2019 also.

On 26-07-2019 Judgment pronounced.

III-Additional District &Sessions Judge,

Nandyal. FAC V-Additional District &Sessions Judge, Allagadda.

Copy to the Hon’ble High Court of Judicature at Hyderabad, for the State of Telangana and the State of Andhra Pradesh, by way of C.D.

Copy communicated to :-

1.The Director of Prosecutions, D.No.24-19-12/A,

Durgapuram, Vijayawada.

2.The District Collector, Kurnool.

3.The Superintendent of Police, Kurnool.

4.The Judicial Magistrate of the First Class, Allagadda.

5.The Additional Public Prosecutor.

III-ADJ, NDL. 1

IN THE COURT OF THE III-ADDITIONAL DISTRICT JUDGE,

KURNOOL AT NANDYAL.

Present:- Sri Moka Suvarna Raju,

III-Additional District Judge, Nandyal.

Monday the 11th day of April 2022

APPEAL SUIT No.12 of 2014

Between:

Thumu Chandrasekhara Reddy, aged 50 years, S/o.Chinna Siva Reddy, Hindu, Cultivation, R/o. Munagala Village, Nandyal Mandal, Kurnool District . . .Appellant/Plaintiff -And-

Pothireddy Seshi Reddy, S/o. Baki Reddy, aged 50 years, Hindu, cultivation R/o. Munagala Village, Poluru Post, Nandyal Mandal, Kurnool District . . . Respondent/Defendant

On Appeal under Order XLI Rule 1 of C.P.C. against the Judgment and Decree,

dated 31.05.2014 passed by the learned Principal Junior Civil Judge, Nandyal,

in O.S No.777 of 2005.

Between:

Thumu Chandrasekhara Reddy, aged 50 years, S/o.Chinna Siva Reddy, Hindu, Cultivation, R/o. Munagala Village, Nandyal Mandal, Kurnool District . . .Plaintiff -And-

Pothireddy Seshi Reddy, S/o. Baki Reddy, aged 50 years, Hindu, cultivation R/o. Munagala Village, Poluru Post, Nandyal Mandal, Kurnool District . . . Defendant * * * * This Appeal Suit was coming on 01-04-2022 for hearing before me in the presence of Sri C.Madduleti, Advocate for the Appellant/Plaintiff

Sri D.Madhava Reddy, Advocate for the Respondent/Defendant and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

01. The unsuccessful Plaintiff in O.S No.777/2005 on the file of the Principal

Junior Civil Judge, Nandyal has preferred this Appeal being aggrieved by the dismissal of the by the Judgment and Decree dated 31.05.2014.

02.Before looking into the grounds of Appeal it is necessary to have a glance at the pleadings. The Plaintiff had filed the Suit for Perpetual Injunction against

III-ADJ, NDL. 2 the Defendant in respect of Ac.03.64 cents in Sy.No.89/2. He pleaded that the

Paternal grandfather of the Plaintiff namely Thumu Pulla Reddy was a Land-

Lord; that after his death, his father namely Chinna Siva Reddy had succeeded the Plaint Schedule Properties along with other properties; that his father had died in the year 1984; that after his death, disputes arose among the brothers of the Plaintiff; that on the advise of the well-wishers, they orally partitioned their properties; that the Plaint Schedule Properties along with some other properties have fallen to the share of the Plaintiff; that mutation had been effected in the name of the Plaintiff; that he has been in continuous possession and enjoyment over the Plaint Schedule Properties. He further pleaded that the

Defendant had no manner of right over the Plaint Schedule Properties; that due to the recent Elections misunderstandings have developed between him and the

Defendant; that the Defendant was trying to trespass into the Plaint

Schedule Properties and hence, the Suit has been filed.

03.The Defendant had pleaded in his Written Statement that there was no oral partition between the Plaintiff and his brothers namely Thumu Eswar Reddy and Lakshmi Prabhakar Reddy; that the Plaintiff had suppressed the facts and filed the Suit; that he deliberately mentioned the Survey Number of the Plaint

Schedule Properties as “89/2” instead of “89”, to have false claim. He further pleaded that the Plaintiff and his two brothers have obtained a loan of

Rs.29,000/- on 16.12.1988 from Rayalaseema Grameena Bank, Poluru by mortgaging the land in Sy.No.89 belonging to them; that since they committed default, the Bank had filed a Suit vide O.S No.37/1996 on the file of the Principal

Junior Civil Judge, Nandyal, obtained a Decree, brought the property to sale in

E.P No.15/1998; that the Defendant became successful bidder in the Court

Auction held on 06.12.1999 for Rs.1,00,000/-, being the highest bidder. He further pleaded that after conducting the Sale, the Plaintiff and his two brothers have filed an Objection Petition under Order XXI Rule 90 of C.P.C., vide E.A

III-ADJ, NDL. 3

No.92/2000, but the same was dismissed on 05.11.2001; that against which they preferred C.M.A., before the III Additional District Judge, Nandyal vide

C.M.A No.9/2001 which was dismissed as well on 28.07.2003; that against such

Order, they preferred Revision vide C.R.P No.3959/2003 on the file of the

Hon’ble High Court of Andhra Pradesh which was also dismissed on

03.02.2004 and thereafter, Sale Certificate was issued for the land in Sy.No.89 in the name of the Defendant; that the Plaintiff and his two brothers after exhausting all the remedies have created an Agreement of Sale in a white paper as if, Thumu Chinna Siva Reddy the father of the Plaintiff had sold the Plaint

Schedule Property for Rs.1,10,000/- on 05.09.1983 to one Jayareddy Swamy

Reddy of Yerraguntla Village, Bandi Atmakur Mandal and delivered possession; that the said Suit vide O.S No.86/2004 on the file of the Principal Junior Civil

Judge, Nandyal is pending; that in the said Agreement of Sale, the Sy.No. was

wrongly mentioned as “89/2” instead of “89” deliberately; that the Defendant had filed Written Statement therein; that having lost all the remedies, the

Plaintiff, at the instigation of his brothers had filed the Suit suppressing the facts, for wrongful claim; that the Defendant has been in possession and enjoyment of the properties in 26.02.2005. The learned Principal Junior Civil Judge, Nandyal having conducted trial and appreciated the evidence held that the Plaintiff had failed to establish that he has been in exclusive possession and enjoyment of the Plaint Schedule Property but the Defendant is able to establish that he was put in possession of Ac.05.31 cents in Sy.No.89 through process of law and ultimately dismissed the Suit.

04. The Plaintiff has preferred the Appeal on the following grounds:

(i) that the Lower Court had erred in believing the evidence of the Defendant and dismissing the Suit;

(ii) that the Lower Court did not observe that the Sy. No. of the Plaint Schedule Property is different from the Sy.No. claimed by the Defendant;

(iii) that the Plaintiff had filed all the material arguments to establish his right and possession over the Plaint Schedule Property;

III-ADJ, NDL. 4

(iv) that the Lower Court without considering the documents erroneously held that the Plaintiff had not establish his right, hence, the Appeal may be allowed by setting aside the Judgment and Decree and ultimately the Suit may be Decreed granting for Permanent Injunction against the Defendant. The parties did not let in any additional evidence in the Appeal.

05.Both the Counsel have submitted Written Arguments and Case Law in addition to their oral submissions. The learned Counsel for the Appellant has argued that the Plaintiff apart from examining himself and getting the documents marked as Exs.A1 to A8, summoned the Branch Manager, Rayalaseema

Grameena Bank, Poluru examined him as CW.1 and got marked Exs.X1 and

X2; that the Ex.A8 Adangal proves the possession and enjoyment of the Plaintiff over the Plaint Schedule Properties; that the Defendant had admitted in the cross-examination that the Plaint Schedule Properties is the ancestral properties of the Plaintiff; that the Sy.No.89 was sub-divided; that he had purchased the property in the Court Auction in the Sy.No.89 pyki and thus, the claim of the

Defendant is different from the claim made by the Plaintiff; that the Bank

Manager of Rayalaseema Grameena Bank, Poluru had deposed about mortgage of the property in Sy.No.89 pyki; that the Exs.A1 to A8 clearly establishes the title and possession of the Plaintiff and thus submitted to allow the Appeal.

He relied upon the following Case Law :

(i). Rame Gowda (Died) by LRs v/s. M.Varadappa Naidu (Died) by LRs and another (AIR 2004 (SC) 4609) “ The person in peaceful possession is entitled to retain possession; that the law presumes that possession go with the title unless rebutted; that the owner of any property may prevent even by using reasonable force he trespass from an attempted trespass”.

(ii). Potte Ramanna and another V/s. Mukka Rajanna and others (2005 (3) APLJ 389)

It was held - “In a Suit for Permanent Injunction simplicitor, it is well settled that the most relevant issue is whether the Plaintiff is in possession of the land on the date of filing of the Suit. The relief of injunction is discretionary. Even if the Plaintiff proves his possession, in a given Case, the Court in its discretion can deny the relief. In the event of the Court accepting the Case of the Plaintiff, the Court has to apply the principles, prima-facie Case and balance of convenience and hardship”.

III-ADJ, NDL. 5

(iii) G.Trinadha Swamy V/s. Gandham Satyanarayana and others 2006 (4) ALT 627 C.P.C- Order XXXIX Rule.1-Presumption of Possession - “Law provides for drawing of presumption forward and backward, particularly in the context of possession. If the Plaintiff is in a position to point out that backed by his title, he is in possession of the property, up to a particular point of time, the same state of affairs deserves to be presumed in a forward direction. Such presumption must however stop, if it meets a road block, in the form of a more assertive and evident proof or probability of the Defendant being in possession of the same property. Another important aspect is that though the weakness of a Defendant in a Suit cannot be treated as the strength of the Plaintiff, in the course of relative assessment of claims, such a weakness, if exists, would have its own role to play. The reason is that cases cannot be expected to exist in a set or moulded pattern. The Court has to weigh the probabilities, than to require the Plaintiff to prove his case beyond any reasonable doubt”.

(iv). Bongunoori Bal Reddy and others V/s. D.V. Satyanarayana Raju and others 2009 (5) ALT 828

C.P.C.- Order XXXIX Rules 1 and 2 – Temporary Injunction. “In a Suit for Perpetual Injunction title does not assume primary importance. It is referred mostly to justify claim for possession”.

(v). P.Buchi Reddy and others V/s. Ananthula Sudhakar 1999 (2) ALT 192 “It is well settled that in a suit for injunction the primary question to be considered is one of possession on the date of filing of the suit. Of course, the question of title also may be gone into incidentally. It is also well settled that a person in possession, though without title, can resist interference from another who has no better title than himself and get injunction. Section 38 of the Specific Relief Act, 1963 deals with the grant of perpetual injunction. Under sub-section (3) of Section 38 a perpetual injunction may be granted to the plaintiff when the Defendant invades or threatens to invade the plaintiffs right to or enjoyment of property where the invasion is such that compensation in money would not afford adequate relief and where the injunction is necessary to prevent multiplicity of judicial proceedings”.

Thus, it was held that a Suit for Bare Injunction is maintainable without a prayer for declaration of title.

06.The learned Counsel for the Respondent has argued that one Chinna

Siva Reddy had three sons namely Thumu Eswar Reddy, T.Chandra Sekhar

Reddy and T. Lakshmi Prabhakar Reddy; that they have Ac.07.34 cents of agricultural land in Sy.No.89 pyki in Munagaala Village limits; that they jointly obtained loan from Rayalaseema Grameena Bank, Poluru for digging a Bore-

Well by mortgaging an extent of Ac.05.31 cents out of Ac.07.34 cents; that as they committed default, the mortgaged property was sold in Court Auction; that

III-ADJ, NDL. 6 in spite of several obstacles caused by the Plaintiff and his brothers, Sale

Certificate was issued in the name of the Defendant and possession was delivered to him and that the Defendant has been in possession and enjoyment of the Ac.05.31 cents of the property; that in all the proceedings it was clearly held that the Survey Number Concerned is “89 pyki” and that there is no Sy.No.

“89/2” and that the Plaintiff had failed to prove that the Sy.No.89 was sub- divided by producing any Survey Register. He further argued that the Plaintiff had relied mainly upon a copy of the Adangal (Ex.A8) for the year 2000. He submitted that the Adangal shows that Sy.No.89 consist of Ac.07.34 cents; that since Ac.05.31 cents was sold the remaining land of Ac.02.03 cents shown as

Sy.No.89/1 stands in the name of P.Narayana Reddy; that the land shown as 89/2 in the Ex.A8 and the land mortgaged by the Plaintiff and his brothers before the Rayalaseema Grameena Bank, Poluru is one and the same and thus the own document of the Plaintiff disproves his Case. He further argued that the

Plaintiff has to establish that he was in possession and enjoyment of the Plaint

Schedule Property as on the date of filing of the Suit; that he filed the Suit in the year 2005 but relied upon the Exs.A1 to A8 to prove his possession; that the

Exs.A1 to A8 are very old documents; that they could not produce any piece of document relating to the year 2005 in which the Suit was filed that with fabricated documents the Plaintiff had filed the Suit to have wrongful claim and thus submitted to dismiss the Appeal.

He relied upon the following Case Law:

01. Balakrishna Dattatraya Galande V/s. Balakrishna Rambharose Gupta and another (2019 SCCR 398) “In a Suit filed under Section 38 of Specific Relief Act, possession on the date of Suit is a must for grant of Permanent Injunction. When the Plaintiff fails to prove that he was in actual possession of the property as on the date of the Suit, he is not entitled to the Decree for Permanent Injunction”

02. Vangala Chandrakanth Reddy V/s. Makireddy Lakshmi Kanth Reddy and others 2021 (4) ALT 380 (DB) (AP)

III-ADJ, NDL. 7

Wherein it was held “ one has to approach the Writ Court with clean hands and put forth all the facts before the Court without suppressing or concealing any fact”.

03. Dolla Subbarao and another V/s. Eeda Amrutharao and others 2018 (1) ALD 529

Specific Relief Act Section 39 “ It is settled law that tax receipts are not evidence of possession, likewise Bank Pass Books, Pension Pass Book and Ration Card. When a specific contention was raised by the Respondents that the survey numbers given for the Plaint Schedule Property by the Plaintiff are not correct, it was incumbent on the part of the Plaintiff to adduce independent evidence to establish the fact that the survey numbers mentioned by them actually relate to the Plaint Schedule Property, but since the Plaintiffs have not examined any neighbours or Revenue Officials or marked any Revenue Record, they shall fail.”

04. Jabisetti Kutumba Rao, Khammam District and others V/s. Karnati Venkat Rao, Khammam District and others (2017 (4) HLT 671)

Specific Relief Act Section 38 – Grant of Perpetual Injunction-Principles:

“It is a settled principle of law that the Plaintiff has to establish that he was in possession of the Suit Schedule Property as on the date of filing of the Suit in order to seek Perpetual Injunction. In a Suit for Perpetual Injunction, the Court has to consider whether the Plaintiff was in possession of the property as on the date of filing of the Suit or not”

05. Sadasivuni Manmadeswara Rao V/s. Patnana Lakshmana Rao and others (2012 (1) ALD 511)

Specific Relief Act - Section 38: “In a Suit for injunction, it is essential for a Plaintiff to prove his possession over the Plaint Schedule Property as on the date of filing of the Suit. The scrutiny of the plea about the title would be only to satisfy the Court that the possession, even if established by the Plaintiff is not that of an outright stranger or trespasser and that he holds a semblance of right vis-a-vis the property. This is obviously to overcome the prohibition ordained by law that relief of injunction cannot be granted against a true owner. In case the Defendant in a Suit of this nature claims a right or title, the Court would be forced to examine whether it is relatively superior that the one pleaded by the Plaintiff. Barring this, the Court cannot pronounce upon the legality or otherwise of the title pleaded either by the Plaintiff or the Defendant”.

06. Second Appeal No.64/2021 of Hon’ble High Court of A.P. delivered on 08.03.2022 Wherein it was held “In view of law declared by the Hon’ble Apex Court, the Suit filed and continued by the Appellants/Plaintiffs for Perpetual In- junction notwithstanding the denial of title by the Respondents may not proper. The dismissal of the Suit by the Trial Court and confirmation of the Judgment and Decree by the Appellate Court do not call for any interference under Sec- tion 100 C.P.C”.

07. In the light of the arguments advanced by both the Counsel and

the Case Law quoted I now formulate the following Points for

determination:

Whether the Plaintiff ha s been in possession and enjoyment of the Plaint

III-ADJ, NDL. 8

Schedule Property and whether the Judgment of the learned Principal Junior

Civil Judge, Nandyal is erroneous if so, the same be interfered in the Appeal.

08. Finding: My finding is that the Plaintiff had failed to prove that he has been in possession and enjoyment of the Plaint Schedule Property. I found no illegality in the Judgment of the learned Principal Junior Civil Judge, Nandyal, to interfere in the Appeal.

09. Reasons for my finding are as under: (9.1) The various Case Law submitted before this Court explains that in Suits for Injunction simplicitor the

Plaintiff has to establish his possession as on the date of the Suit. The Plaintiff claims exclusive title over the Plaint Schedule Property claiming the same to have been succeeded from his father and in an oral partition held among his brothers. The Specific claim of the Defendants is that there was no partition among the brothers of the Plaintiff; that they all have mortgaged Ac.5.31 cents in

Sy.No.89 pyki in the Rayalaseema Grameena Bank, Poluru and obtained loan for digging a Bore-Well; that since they committed default the property was sold in Court Auction; that the Defendant became successful bidder and that Sale

Certificate had been granted in his favour and possession had been delivered to him. The Defendant had specifically denied the claim of the Plaintiff that the

Sy.No., of the Plaint Schedule Property is “89/2”.

(9.2) The nature of the evidence of the Plaintiff from his deposition in his examination-in-chief as well as in the cross-examination is to be observed while appreciating the evidence. The Plaintiff in his examination-in-chief has deposed that his elder brother Thumu Eswara Reddy who got Ac.05.34 cents in Sy.No.89 pyki, had borrowed a loan from the Rayalasweema Grameena Bank by mortgaging his share of land but as insisted by the Bank, since the partition was oral one, he too signed therein; that the property was brought to Sale; that the

Defendant being the highest bidder purchased the property and Sale Certificate was issued to him and that under the guise of such Sale Certificate, the

III-ADJ, NDL. 9

Defendant is trying to trespass into the Plaint Schedule Property. But in the cross-examination when questioned about the Court Sale, he deposed as under “I do not know whether the Hon’ble Court of Senior Civil Judge sold the property in Sy.No.89 in Public Auction and the Defendant herein was the successful bidder in that auction and the Hon’ble Court confirmed the Sale in his favour”.

(9.3)The Defendant had specifically pleaded in his Written

Statement that the Plaintiff and his brothers have initiated various proceedings subsequent to the Decree obtained by the Rayalaseema Grameena Bank.

When the same was posed to the PW.1, he deposed as under: “According to me I am not at all a party in O.S No.36/1996 and also in E.P. proceedings which was filed by Rayalaseema Grameena Bank. I do not know whether myself and my two brothers jointly filed a set-aside Petition of Sale in E.P

No.15/1998 in O.S No.36/1996 and the said Petition was dismissed. According to me, I never preferred any Appeal before the Hon’ble III Additional District

Judge, Nandyal and the Hon’ble High Court. I do not know C.M.A No.4/2003

was dismissed by the Hon’ble III Additional District Judge, Nandyal. I do not know myself and my brothers preferred second Appeal in C.R.P. on the file of the Hon’ble High Court of A.P. in C.R.P No.59/2003 and the same was dismissed”.

(9.4) Now, I look into the documents marked through the Bank Manager and through the Defendants to ascertain what was the original property that was mortgaged to the Bank and who were parties to the proceedings in various

Courts. Ex.X1 is a certified copy of the Loan Application of Thumu Eswar

Reddy. The property that was mortgaged was described as under: “Sy.No.89

Ac.03.64 cents, Sy.No.89 Ac.01.67 cents, total Ac.05.31 cents”. Ex.B1 is the

Sale Certificate issued by the Principal Senior Civil Judge, Nandyal in E.P

No.15/1998 in O.S No.36/1996. In this Sale Certificate, the Defendant herein

III-ADJ, NDL. 10

Pothureddy Seshi Reddy is shown as Auction Purchaser, Rayalaseema

Grameena Bank is shown as Decree Holder. One Thumu Eswar Reddy, Thumu

Chandra Sekhar Reddy, Thumu Lakshmi Prabhakar Reddy and Pothureddy

Chandra Sekhar Reddy have been shown as J.Drs. Among them the J.Dr No.2

Mr.Chandra Sekhar Reddy is the Plaintiff herein. In the Sale Certificate, the property is described as under:

(i) Sy.No. 89 pyki Ac.03-64 cents

(ii) Sy.No. 89 pyki Ac.01-67 cents, with common boundaries as below:

East : The land of Thumu Thirupal Reddy

West : The land of Mahanandi Reddy

North : The land of Lakshmi Reddy

South : The land of Yallur Anki Reddy (9.5) The allegation of the Plaintiff is that the Defendant having obtained

Sale Certificate is trying to trespass into the Plaint Schedule Property which has been in his possession and enjoyment. But in the boundaries shown to both the items, no where the Plaintiff is shown as one of the boundary owners. When the

Plaintiff is not a boundary owner to the land purchased by the Defendant in the

Court Auction where he would encroach and how he would encroach is not explained by the Plaintiff. When the boundaries of the Plaint Schedule Property are examined, no where, Mr. Pothireddy Seshireddy (the Defendant) is shown as one of the boundary owners. The boundaries to the Plaint Schedule Property are shown as under:

East : Land of Thumu Viswanatha Reddy

West : Lands of Thumu Nageswara Reddy

North : Land of Thumu Eswar Reddy

South : Lands of Thumu Bhaskara Reddy, Y. Sivarami Reddy and others.

The certified copy of the Decree and Order in E.A No.92/2000 in E.P

No.15/1998 in O.S No.36/1996 (Ex.B2) shows that the Petition under Order XXI

III-ADJ, NDL. 11

Rule 90 of C.P.C. was filed by Thumu Eswar Reddy, Thumu Chandra Sekhar

Reddy and Thumu Lakshmi Prabhakar Reddy. Among them the 2nd Petitioner is the Plaintiff. In the other exhibits i.e., the certified copies of Decree and Order in

C.M.A No.4/2003, CRP 3959/2003, the Plaintiff is shown to be the 2nd Applicant but during the cross-examination, he denied that he made applications and participated in the proceedings.

(9.6) The Defendant had pleaded that the Plaintiff and his brothers have created an Agreement of Sale in white paper in favour of one Dereddy Swamy

Reddy and that in turn Swamy Reddy had filed a Suit against the Plaintiff, his brothers and the Defendant herein. When the same was asked the PW.1 during the cross-examination, has deposed that he does not know the person by name

Dereddy Swamy Reddy and whether he had filed any Suit against his brothers and Defendant for Specific Performance in respect of the property covered in

Sy.No.89 vide O.S No.86/2004 on the file of the Senior Civil Judge, Nandyal.

The Defendant by getting marked a certified copy of the Decree in O.S

No.86/2004 on the file of the II Additional Senior Civil Judge, Nandyal FTC

Nandyal had brought on record that the Suit filed by Dereddy Swamy Reddy for

Specific Performance was dismissed for default. The Decree shows that the

Plaintiff is shown as 2nd Defendant and the Defendant herein is shown as

Defendant No.5. This part of evidence of the Plaintiff denying even the Court proceedings wherein he is one of the parties in respect of the land in Sy.No.89 shows his evil conduct to have wrongful gain by filing a Suit for mere injunction against the property purchased by the Defendant in the Court Auction.

(9.7) In view of the nature of the dispute and on consideration of the observations of the Hon’ble High Court and the Supreme Court in the Case Law quoted, the very existence of the land claimed by the Plaintiff in Sy.No.89/2 and his possession therein is not proved by producing any Revenue Record. Among the Revenue Records, 1-B Register is an authenticated Register to prove the

III-ADJ, NDL. 12 title of the property. Though the Suit was filed for injunction simplicitor and the

Plaintiff is not able to establish the identity of the property more particularly when the Defendant is able to prove his title and possession in respect of Ac.03.64 cents and Ac.01.67 cents in Sy.No.89 pyki totaling to Ac.05.31 cents. In the absence of any authenticated record the contention of the Plaintiff that the Plaint

Schedule Property comes under Sy.No.89/2 which is different from the property claimed by the Defendant can not be accepted. The Plaintiff did not plead as to how many Acres of property his father had succeeded from his father. When the

Plaintiff claims that the property owned by his father was partitioned among his brothers by way of oral partition, he should have mentioned total extent of property and the extent of property each one got in such oral partition. It is the well settled principle of law that tax receipts or other Revenue Record does not confer title and even cannot establish possession of the persons claiming through such receipts.

(9.8) The Defendant had pleaded that in the tax receipts (Exs.A3 to A6) for the years 1988, 1989, 1990, 1991, the Survey Numbers and extent of land owned by the Plaintiff have not been mentioned. The evidence of the Bank

Manager (CW.1) shows that the Plaintiff and his brothers have mortgaged their family property an extent of Ac.05.31 cents in Sy.No.89. He substantiated his contention by getting the Loan Application marked Exs.X1. The Plaintiff had no where pleaded in which year partition had taken place. Division of the family properties is a major event in a joint family and if it is by way of Partition Deed there would be a document and if it is an oral partition certainly each member would remember the year of the partition though not the date specific. In such event, under the Record of Rights Act, the Tahsildar concerned should make enquiry and issue Pattadar Pass Book and Title Deed specifying the nature of acquisition of the property but the Pattadar Pass Book and Title Deed does not show such recital. Thus, the Plaintiff has failed to prove the existence of the

III-ADJ, NDL. 13

Plaint Schedule Property and his possession over the same. On the other hand, the Defendant could prove his title and possession over Ac.05.31 cents in

Sy.No.89 which he purchased in Court Auction. The learned Principal Junior

Civil Judge, Nandyal had considered the oral and documentary evidence

minutely, discussed the same elaborately and rendered the Judgment by applying the law concerning Perpetual Injunctions. Thus, I found no illegality or perversity in her Judgment to interfere in the Appeal and no necessity to receive

additional evidence which was sought by the Respondent to get marked certain

documents in support of his contention.

10. As a result, this Appeal Suit is dismissed with costs confirming the

Judgment and Decree dated 31.05.2014, in O.S No.777/2005, on the file of the

Principal Junior Civil Judge, Nandyal.

Dictated to the Stenographer, typed by her, corrected and pronounced by me in

the open Court on this the day 11th day of April 2022.

Sd/-. Moka Suvarna Raju,

III-ADDITIONAL DISTRICT JUDGE,

KURNOOL at NANDYAL.

APPENDIX OF EVIDENCE

- NIL - Id/-.M.S.R.,

III-ADJ, NDL.

Copy to the Principal Junior Civil Judge, Nandyal.

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 1

IN THE COURT OF THE V-ADDITIONAL DISTRICT & SESSIONS

JUDGE, ALLAGADDA.

Present :- Moka Suvarna Raju V-Additional District & Sessions Judge, Allagadda.

Friday, the 15th day of February 2019.

SESSIONS CASE No.104 of 2016

P.R.C No.3 of 2015 on the file of the Judicial Magistrate of the First Class, Allagadda.

Committed by Ms.A.Manjulatha

Judicial Magistrate of the First Class.

Cr.No.& P.S.Crime No.92 of 2014 of Allagadda Town P.S 1.Description of the AccusedShaik Ganuga Masthan Vali, Aged 48 years, Son of Nabisa, H.No.8-7-57, Occupation-Cloths Business, Adarsha Abhyudaya Colony, Allagadda Town, Native of Jangalapalli Village, Peddamudium Mandal. 2.ChargesU/Sec.302 IPC 3.Plea of the accusedNot guilty 4.Finding of the JudgeThe Accused is found not guilty of the Charge under Section 302 of IPC, and he is acquitted of the said Charge under Section 235[1] of Cr.P.C. But, he is found guilty of the offence under Section 304-II of IPC. Accordingly, he is convicted for the said offence under Section 235[2] of Cr.P.C.

5. Sentence or OrderThe Accused is sentenced to suffer Rigorous Imprisonment for a period of five [5] years and to pay a fine of Rs.300/- [Rupees Three Hundred only]. In default of payment of fine, to suffer Rigorous Imprisonment for one month. The Bail Bonds of the Accused shall stand cancelled. M.O.1 – Pestle, M.Os. 2 to 4 – Saree, Blouse and Petty Coat [Langa]; M.Os.5 & 6 – Blood Stained Stone and Control Stone shall be destroyed after expiry of the Appeal time. The Remand Period of the Accused i.e., 91 days

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 2

i.e., from 09-06-2014 to 08-09-2014 shall be set off under section 428 of Cr.P.C.

6.Prosecution conducted bySri B.Satyanarayana, Additional Public Prosecutor, 7.Accused defended bySriM.SrinivasaMurthyand Sri G.Amaranadha Reddy, Advocates.

This Case was coming on 01.02.2019 for final hearing before me in the presence of Sri M.Sreenivasa Murthy and Sri G.Amarnadha Reddy,

Advocate for the Accused; and Sri B.Satya Narayana, the Additional

Public Prosecutor for the State and upon hearing on both sides and upon perusal of material available on record, this Court delivered the following:-

J U D G M E N T

1.The State represented by the Inspector of Police, Allagadda

Circle had filed Charge sheet against the Accused for the offence under section 302 of the IPC in Cr.No.92 of 2014 of Allagadda Town P.S.

2. The brief averments of the Charge Sheet are: that on 07-06-2014 at about 14-30 hours, one Yadururi Mabu Vali had lodged a

Report informing that his brother-in-law Ganuga Masthan Vali had killed his wife who is the Cousin of the Informant with a Pestle on the same day at about 02-00 PM,; that on such Report, the Sub Inspector of Police had registered a case vide FIR No.92 of 2014, for the offence under Section 302 of IPC; that the Inspector of Police, Allagadda Circle had investigated the Case and filed Charge Sheet against the Accused.

03.The Judicial Magistrate of the First Class, Allagadda had taken cognizance of the offence under section 302 of IPC, registered the same as PRC No.3 of 2015 and made over the same to the Hon’ble

Principal District & Sessions Court, Kurnool. The Hon’ble Principal

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 3

District & Sessions Court, Kurnool has registered the same as Sessions

Case No.104 of 2016 and made-over the same to this Court for disposal.

04.After appearance of the Accused and after hearing the learned Additional Public Prosecutor and the Counsel for the Accused, a

Charge under section 302 of the IPC has been framed against the

Accused. When the Charge was read-over and explained to the Accused in his vernacular language, he pleaded not guilty and claimed to be tried.

05.The Prosecution, to prove the Charge, has examined the

Informant by name Mabu Vali, the brother of the Deceased by name

Shaik Shareef, the Mother of the Informant by name Y.Mabunni, the

Neighbours namely Mulla Mahaboob Basha and Mulla Mahaboob Bee, the elders to the previous Panchayat namely B.Gopal Reddy, Mekala

Ramakrishna, the Panchayatdars, namely, Shaik Abdul Sattar, Shakina

Bee, S.Dasthagiri, the Police Constable who recorded the Statement of the witnesses, B.Ramesh, Mr.M.Ramesh Babu, the Sub Inspector of

Police, Mr.I.Sudhakar Reddy, the Inspector of Police and Dr.Jayavardan

Reddy, the Civil Assistant Surgeon,v who conducted the Postmortem

Examination as Pws.1 to 14 and marked Exs.P1 to P11 and M.Os.1 to 6.

06.After closing the evidence, when the Court has examined the

Accused under section 313 [1][b] of Cr.P.C., he denied the evidence but reported no defence evidence.

07.Thereafter, heard the learned Additional Public Prosecutor and the learned Counsel for the Accused. The learned Additional Public

Prosecutor has argued that the Prosecution Witnesses have supported the Prosecution in all material aspects, and thus, the Prosecution could prove the Charge levelled against the Accused. The learned Defence

Counsel has argued that the case against the Accused is a fabricated

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 4

one; that the Prosecution has failed to prove the scene of offence; that there is no corroboration to the evidence of the Informant and thus, his testimony, cannot be accepted to record conviction. In support of his arguments, the learned Defendant Counsel has quoted the following case laws:

1. Syed Ibrahim Vs State of Andhra Pradesh in

2007 [1] ALT [Crl] 183 SC - [2] Thummala

Lovaraju Vs State of Andhra Pradesh in 2009

[1] ALD [Crl] 720 [AP] – it was held that when the place of the occurrence has not been established, it is improper to convict the Accused.

2. Nararasapuram Balaiah Vs State of A.P.

represented by its Public Prosecutor in 2016

[2] ALT [Crl] 449 [DB] [AP]; (2) Mukkamala

Chinna Venkata Reddy Vs State of Andhra

Pradesh reported in 2018[3] ALT [Crl] 319

[DB] [T.S. & A.P] – the sum and substance of the case law is that if there is unexplained delay in lodging the FIR and forwarding the same to the Court, the FIR shall be viewed with suspicion.

3. Gogula Ramanaiah Vs. State of Andhra Pradesh in 2018 [2] ALD [Crl] 135 – It was held that the recovery basing on the evidence of the Investigating Officer, cannot be accepted at its face value in the absence of any witness for the said recovery.

4. Bannareddy and others Vs State of Karnataka and others in 2018 [1] ALT [Crl] 289 [SC] – It was held that when the Panch Witnesses have turned Hostile, it is not safe to rely upon the recovery of the weapon to substantiate the guilt of the Accused.

5. Pankaj Vs State of Rajasthan in 2016 [3] ALT [Crl] 205 SC - It was held that in a case where death is due to injuries or wounds caused by a lethal weapon, it is always the duty of the Prosecution to prove by Expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which in the manner in which they are alleged to have been caused.

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 5

By quoting the above case law, the learned Defence Counsel has argued that the ocular evidence differs from the Medical evidence to prove the cause of death, like wise the time of death, and thus, the

Prosecution has failed to prove the Charge against the Accused beyond reasonable doubt, as such, he is entitled to acquittal.

08.In the light of the evidence on record and the arguments advanced on the case law quoted, I formulate the following Point for determination.

Whether the Prosecution could prove beyond

reasonable doubt that the Accused had committed the murder of

his wife.

09. Finding :- My finding is that the Prosecution has failed to prove the Charge under Section 302 of the Indian Penal Code, but the evidence makes out that the offence committed by the Accused falls under the Category Culpable homicide not amounting to murder, punishable under Section 304 Part-II of IPC.

10.The reasons for my finding are as under :- [10.1]. As per the case of the Prosecution, the offence was alleged to have been committed in the presence of Mr. Yadururi Mabu Vali, who is the Cousin of the Deceased. The law was set into motion on his Report given to the

Station House Officer of Allagadda Town Police Station on 07-06-2014 at 14-30 hours. The offence alleged to have been occurred at about 14-00 hours. Thus, according to the time given in the First Information Report, the Report was given within half-an-hour of the offence. The Informant has mentioned in his Report that the Accused had hit the head of his wife with a Pestle, with an intention to kill her; that when he raised cries, the

Accused had run away; that when he observed his Sister, she was found

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 6

dead; that the opposite neighbours, namely, Mulla Mahaboob Basha and his wife, namely, Mulla Fathima Bee have witnessed the occurrence and raised cries. According to him, the offence was committed at the house of the Accused. He deposed the same version in his Examination-in-

Chief. The relevant Portion is as under: “ at about 4 ½ years ago, he went to Allagadda Town to purchase Fertilizers and after purchasing the same, he went to the house of Mabu Chan [Deceased] to see her, that he waited for the Accused to come home to have Lunch; that after 10

Minutes, the Accused came and informed that he took meals in a Hotel, and on that, a quarrel took place between Mabu Chan and the Accused; that then, the Accused had taken a Pestle, hit on her head, due to which,

Mabu Chan sustained bleeding injuries and died on the Spot”. He did not specifically state the exact place of the house where the incident had occurred. During the Cross Examination, he answered that the stone used as Morter [Rolu] was kept in the Veranda and the Pestle was kept by the side of the Morter [Rolu]. It was also elicited that by the time of his visiting the house of the Accused, his sister was stitching flowers.

However, such details have not been placed in the Ex.P1 Report or in his

Examination-in-Chief.

[10.2].The own brother of the Deceased Shaik Shareef [PW2] is not a witness to the occurrence but he came to know of the incident when informed by the PW1 through Phone. He deposed that after receiving information, he visited the house of the Accused and saw the

Dead body of his sister, flowers, thread and Pestle. Since he is not a witness to the offence, we could not expect more details from him except about topography. The evidence of Y.Mabunni [PW3], the mother of the

Deceased is similar to the evidence of PW2.

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 7

[10.3].The evidence of the then Sub Inspector of Police

Mr.M.Ramesh Babu [PW12] is with reference to the registration of FIR alone. Without any material, the learned defence counsel has suggested him that he suppressed the first Report received at 02-30 PM. The learned Defence Counsel has pointed out that there is delay in reaching the FIR to the Court though the Court is within a distance of 3 Kms. The

FIR was registered at 14-30 hours, and it reached the Magistrate on 07- 06-2014 at 08-20 PM. In the FIR, there is reference of General Diary entry at 14-30 hours. Though there is 6 hours delay in reaching the FIR to the Court which itself is not fatal since no suspicious circumstances has been introduced in the evidence.

[10.4].The evidence of the neighbours, namely, Mulla

Mahaboob Basha and Mulla Fathima Bee [PW5] is that the Accused and the Deceased were quarreling on the date of incident; that later, they came out from their house on hearing of the cries and found the

Deceased lying on the ground. The Defence Counsel on the evidence of these witnesses has argued that their evidence is hear-say evidence and they have not witnessed the occurrence and that they have implicated the Accused when the deceased came to the house of the Accused in his absence and fallen from the Up-stair. Nothing has been suggested to them to rope their neighbour the Accused into a false case. Their evidence that the Accused and the Deceased were quarreling when they came out on hearing the cries and later they found the deceased lying on a ground is their immediate reaction to the incident without there being no scope for concoction. Thus, there is spontaneity and immediacy of such statements, their evidence is contemporaneous with the acts which the constitutes the offence. Thus, their evidence is an exception to hear

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 8

say evidence and the same can be accepted as corroboration to the evidence of the PW1 under Section 6 of the Indian Evidence Act.

[10.5].The learned Defence Counsel has strenuously argued that there is no proof of recovery of the Pestle through cogent evidence and there is no Expert Opinion that there is possibility of causing the injuries as found on the skull of the Deceased, resulting into her death, when hit with a Pestle.

[10.6].About the seizure of Pestle, one of the Panchayatdars

Mr.S.Dasthagiri [PW10] has deposed that about four years ago, as was called by the Inspector of Police, he went to Abhyudaya Colony of

Allagadda Town along with the Village Revenue Officer, where the Police have seized a Pestle and that he signed in the Papers as produced by the

Police; that later, he left that place. During the Cross Examination, he categorically deposed that the contents of the Papers were read-over to him and his signatures were taken at the Police. Thus, his evidence is two fold i.e., he was present at the time of seizure and put his signatures at the Police Station.

[10.7].The P.C.No.2603 Mr.B.Ramesh [PW11] who said to have scribed the Statements of the Witnesses and Scene Observation

Panchanama, etc., has deposed that the Inspector of Police had seized one Pestle, blood stained stone and Control Stone from the scene of offence. Mr.Shaik Abdul Sattar [PW8] and Shakina Bee [PW9] have deposed that they signed as Inquest Panchayatdars. However, PW8 deposed that he did not observe anything, but signed in the Inquest report at the request of the Police.

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 9

[10.8].The Investigating Officer, namely, Sri I.Sudhakar Reddy has deposed that he had seized a Pestle from the scene of offence under

Scene Observation Panchanama. Through him a Pestle, Blood Stained

Stone and Control Stone were marked as M.Os.1, 5 and 6, and the clothes of the Deceased as M.Os.2 to 4. Thus, from the evidence of these witnesses no inconsistency is found about the seizure of Pestle from the scene of offence. Though, the learned Defence Counsel put to the

Witness about the omissions elicited from the other witnesses, the Pws 2 and 3, since not direct witnesses, the omissions as elicited from them, have no significance.

[10.9].The Defence of the Accused is that he and his wife have been living separate; that in his absence at the house, the deceased visited his house for money and accidentally fallen from the Up stair, sustained injuries and died. If his version is true, the subsequent conduct of the Accused is relevant for consideration. There is no explanation from his side whether he lodged any Report with the Police when his wife had accidentally fallen from the Up-stair and died. The opposite neighbours of the Accused have deposed that they heard the quarreling of the Accused and his wife just before her death. No animosity was suggested to those witnesses to implicate the Accused.

On observation of the evidence of these neighbours, they never said that they saw the Accused while beating his wife with a Pestle. The learned

Defence Counsel has further pointed out that according to the PW1, at the time of his visit, the Deceased was stitching flowers, but in the Scene

Observation Report or in the Rough Sketch, the observation of the flowers was not referred, which is material defect. To this argument, the learned Additional Public Prosecutor has replied that the flowers being

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 10

perishable objects, their seizure or their mention in the Reports is not relevant for consideration. It is true, there was no reference of flowers, in the Reports. Mere omission to mention their existence will not cause any harm to the case of the Prosecution, since they have no much significance.

[10.10].About the Medical Opinion, the learned Defence

Counsel has argued that there was no opinion elicited from the Doctor that the death is apparent cause due to hit by a Pestle. It is within the knowledge of all of us, the nature of Pestle and its use in the domestic life. It is made of a wooden log, fixed with Iron strip on one of its end and its a hard object. The Doctor has described the injuries as found in the body of the deceased as 1] Abrasion 4 x 2 cms present over the skin of left side of Abdomen involving left lumber region 2] On internal examination, he found Laceration of 5 x 3 cms over the left Tempo Parietal region with fracture of skull bones involving both outer table and inner table with laceration of brain 3] Multiple small fractures of skull bone 3 x 2 cms noted over left mastoid and occipital region with laceration 3 x 2 cms noted behind left pinna; [10.11].He deposed that he gave his opinion as to the cause of death as “shock due to damage to vital organs [Brain]”. The Defence

Counsel has pointed out that the Doctor did not note the colour of the

Postmortem Staining in the Report. For several questions, he deposed positive answers in favour of the Defence such as abrasion can be caused, abrasion can be caused by falling on hard surface, abrasion noted in Ex.P11 may be possible due to fall on hard surface and the laceration of brain and fracture of skull bones are also possible due to fall from heights, multiple small fractures observed on the dead body are

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 11

also possible due to fall from heights, the shock referred in his Report i.e., Ex.P11, will not be resulted in instantaneous death and the death is possible after 2-30 PM on 07-06-2014. By eliciting these positive answers, the learned Defence Counsel has argued that the Prosecution has not established the time of death and the cause of death and failure to examine the food particles in the stomach. The Pestle is a hard object and hit by such hard object causes fracture of skull bones. Though the learned Additional Public Prosecutor failed to get the Opinion of the

Doctor by showing the Pestle, in view of the nature of the object the injuries as described were caused. Moreover, the evidence of the PW1 corroborates the evidence of the Medical Officer and thus, no advantage be gained by the Accused.

[10.12].The Doctor has given the time of death as 18 to 20 hours prior to the Postmortem Examination. The PW1 has deposed in his evidence and mentioned in his report about the timing of the death of the deceased. Thus, the time of death as stated by the Doctor and as stated by the PW1 more or less co-incide. Thus, there is no force in the further version of the Doctor that death could have been occurred after 02-30

PM on 07-06-2014, since no accurate time can be given.

[10.13].In view of above arguments of the learned Defence

Counsel, I once again, look into the Report and the evidence of the PW1 and the Doctor. In the Report, the PW1 has deposed that at about 02-00

PM, the Accused returned to the house; that when the deceased offered the Accused to have Lunch, he informed that he had Lunch, due to which, an altercation took place between them and in the meanwhile, the

Accused took a Pestle and hit on her head and that his sister died

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 12

instantaneously. According to the time given by him, the death was occurred in and around 02-00 PM. During the Cross Examination, he deposed that he went to the house of the Accused by 01-45 PM, after the accident, he went to the Police Station before 02-30 PM. Thus, timings given by him during the cross examination is inconsonance with the timings as given in the Report.

[10.14].The Prosecution, to prove the Motive, has examined the elders who said to have mediated between the Accused and the deceased. Mr.B.Gopal Reddy [PW6] and Mr.Mekala Ramakrishna [PW7] have deposed that prior to some disputes arose between the Accused and his wife as such they both conducted Mediation, that the Accused has agreed to give Rs.1,30,000/- to the deceased and that later they came to know they both were living together happily. Even one of the

Neighbours [PW4] has deposed about the previous compromise.

However, they deposed that the both Accused and the deceased were living together. Thus, the Prosecution could not proved the Motive of the

Accused to commit the offence. Even the PW1 did not depose that the

Accused, with a Premeditated Plan, attacked his wife to commit murder.

The evidence of Pws.1, 4 and 5 read together gives a clear picture that the Accused never intended to kill his wife, but in view of the sudden quarrel between them, the Accused had beaten his wife with the Pestle not with an intention to kill. The Accused proved to have not acted in a cruel or unusual manner in the commission of offence. Hence, the act of the Accused falls under Exception 4 of Section 300 Cr.P.C. The Charge under section 302 of IPC could not be proved against the Accused, but the act of the Accused falls under Section 304 Part II of IPC.

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 13

11.As a result, the Accused is found not guilty of the Charge under Section 302 of IPC, and he is acquitted of the said Charge under

Section 235 [1] of Cr.P.C. But, he is found guilty of the offence punishable under Section 304 Part-II of IPC, and accordingly, he is convicted under section 235 [2] of Cr.P.C.

Dictated to the Stenographer Grade-III, transcribed by him,

corrected and pronounced by me in open court, this the 15th day of February 2019.

Sd/- M.Suvarna Raju

V-Addl. District & Sessions Judge, Allagadda.

15-02-2019 :- [11.1].When the Court questioned the Accused regarding the

Sentence, he submitted to take lenient view since he is having two children and that has to lookafter them.

[11.2].Heard the Additional Public Prosecutor and the learned

Defence Counsel.

[11.3].The Additional Public Prosecutor has submitted to award maximum punishment.

[11.4].The Defence Counsel has submitted to take lenient view, to award minimum punishment.

[11.5].Having considering the submissions and the nature of the offence, I hereby Sentence the Accused to suffer Rigorous Imprisonment for a period of five [5] years and to pay a fine of Rs.300/- [Rupees Three

Hundred only]. In default of payment of fine, to suffer Rigorous

Imprisonment for one month. The Bail Bonds of the Accused shall stand cancelled. M.O.1 – Pestle, M.Os. 2 to 4 – Saree, Blouse and Petty Coat [Langa]; M.Os.5 & 6 – Blood Stained Stone and Control Stone shall be

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 14

destroyed after expiry of the Appeal time. The Remand Period of the

Accused i.e., 91 days i.e., from 09-06-2014 to 08-09-2014 shall be set off under section 428 of Cr.P.C.

Dictated to the Stenographer Grade-III, transcribed by him,

corrected and pronounced by me in open court, this the 15th day of February 2019.

Sd/- M.Suvarna Raju

V-Addl. District & Sessions Judge, Allagadda.

APPENDIX OF EVIDENCE

Witnesses examined

For the Prosecution:

PW1: Y.Mabu Vali.

PW2: Shaik Shareef.

PW3: Y.Mabunni.

PW4: Mulla Mahaboob Basha.

PW5: Mulla Fathima Bee.

PW6: B.Gopal Reddy.

PW7: Mekala Ramakrishna.

PW8: Shaik Abdul Sattar [Revenue Inspector]

PW9: Shakina Bee.

PW10: S.Dasthagiri.

PW11: B.Ramesh [Police Constable]

PW12: B.Ramesh Babu [Inspector of Police]

PW13: I.Sudhakar Reddy [Inspector of Police]

PW14: Dr.Jayavardhan Reddy [Civil Assistant Surgeon]

For the Defence: Nil.

Exhibits Marked for the Prosecution: Ex.P1: Report.

Ex.P2: Signature of PW8 on the Inquest Report.

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 15

Ex.P3: Inquest Report.

Ex.P4: Signature of the PW10 on Confession and Seizure Panchanama.

Ex.P5: Signature of the PW10 on the Scene Observation Panchanama.

Ex.P6: First Information Report.

Ex.P7: Rough Sketch.

Ex.P8: Scene Observation and Seizure Panchanama.

Ex.P9: Letter of Advice.

Ex.P10: R.F.S.L. Report.

Ex.P11: Postmortem Examination Report.

For the Defence:

Nil.

MATERIAL OBJECTS MARKED :-

M.O.1 : Pestle.

M.Os. 2 to 4 : Saree, Blouse and Petty Coat [Langa].

M.Os.5 & 6 : Blood Stained Stone & Control Stone.

Sd/- M.Suvarna Raju

V-Addl. District & Sessions Judge, Allagadda.

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 16

Judgment

S.C.No.104 of 2016

Dt.15-02-2019

V A.D.S.J. Court, ALG. S.C.No.104 of 2016 Page 17

V-ADSJ, ALG1Crl.A.P.86/2017

IN THE COURT OF THE V-ADDITIONAL DISTRICT & SESSIONS

JUDGE: ALLAGADDA.

Present: Sri Moka Suvarna Raju, V-Additional District & Sessions Judge

Thursday, the 27th day of June 2019.

CRIMINAL APPEAL No.86 of 2017

From which CourtThe Judicial Magistrate of the First Class, the Appeal isAllagadda. preferred

Number of case in C.C No.29 of 2010 that Court (Cr.No.147 of 2008 of Sirvel Police Station)

Number of the Criminal Appeal No.86 of 2017 Appeal

Name andPanyam Srinivasa Rao, S/o Dasappa, aged description of theabout 66 years, R/o Mahadevapuram Appellant/ AccusedVillage, Sirvel Mandal, Kurnool District.

The Sentence andThe Accused was found guilty for the law under which itoffence punishable under Sections 465 of was imposed in theIPC and was sentenced to undergo Rigorous

Lower CourtImprisonment for one year and to pay a fine of Rs.5,000/-, also found guilty for the

Charge 353 of IPC and sentenced to undergo Simple Imprisonment for one year and to pay a fine of Rs.5,000/-, in default, to undergo Simple Imprisonment for three months, and was also found guilty for the

Charge 447 of IPC and sentenced to undergo Simple Imprisonment for a period of three months but the Accused was found not guilty for the Charge 420 of IPC, and accordingly, he was acquitted for the said

Charge under Section 248 (1) Cr.P.C.

V-ADSJ, ALG2Crl.A.P.86/2017

Whether confirmed, Reversed. modified or As a result, the Appeal is allowed reversed; and if modified, the setting aside the Conviction of the Accused modification. in C.C No.29/2010, and accordingly he is acquitted of the Charges under Sections 465, 353 and 447 of I.P.C and set at liberty.

Date of Presentation22-03-2017

Date of filing23-03-2017

Date of Notice23-03-2017 issued by Court to appear

Date of Bail Bond if-- the appellant has been let out on bail

Date of Appellant-- ordered to appear

Date of hearing19-06-2019

Date of Judgment 27-06-2019

V-Addl. District & Sessions Judge, Allagadda.

V-ADSJ, ALG3Crl.A.P.86/2017

IN THE COURT OF THE V-ADDITIONAL DISTRICT & SESSIONS

JUDGE: ALLAGADDA.

Present : Sri Moka Suvarna Raju V-Additional District & Sessions Judge

Thursday, the 27th day of June 2019.

CRIMINAL APPEAL No.86 of 2017

Between: Panyam Srinivasa Rao, S/o Dasappa, aged about 66 years, R/o Mahadevapuram Village, Sirvel Mandal, Kurnool District. …Appellant/Accused

Vs.

The State, represented by the S.H.O., of Sirvel Police Station, Sirvel.

... Respondent/Complainant.

This Criminal Appeal was coming on 19-06-2019 for final hearing before me, in the presence of Sri M.V. Ramana, Counsel for the Appellant/Accused and Sri B. Satyanarayana, Additional Public

Prosecutor, Counsel for the Respondent/Complainant and upon hearing and perusal of the material on record and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

This Appeal has been preferred by the Accused in C.C

No.29/2010 on the file of the Judicial Magistrate of the First Class,

Allagadda, challenging the Conviction and the Sentence thereon imposed against him for the Charge under Sections 465, 353 & 447 of the IPC.

2.The brief averments of the Charge Sheet in C.C No.29/2010 are:

that prior to 12-11-2008, the Accused had criminally trespassed into the Poramboke land situated in Mahadevapuram Village bearing

Sy.Nos.388/1, 388/2 comprising an extent of Ac.7-20 cents and Ac.0- 25 cents respectively called Vurakunta and created D-Form Patta and

V-ADSJ, ALG4Crl.A.P.86/2017

Pattadar Passbook in his favor and has been cultivating the same and cheating the Government; that when the Sarpanch of

Mahadevapuram Village and other Villages insisted him to vacate the land with a view to take up NREP program works, he paid a deaf ear; that on 08-10-2008, when the Tahsildar, Revenue Inspector, V.R.O and Mandal Surveyor visited the Village and was making enquiry into the occupation of the Government Poramboke land, the Accused had obstructed them, while they were discharging their duties; that on the strength of the report of the Tahsildar, the Sub-Inspector had registered a Case and filed Charge Sheet.

[2.2]. Before the trial Court, the Prosecution had examined six witnesses and got marked documents as Exs.P1 to P3. The learned

Magistrate had convicted the Accused basing on the evidence

adduced and by getting the documents taken from the Suit filed by the Accused in O.S No.284/2008 and marked them as Exs.D1 to D3 and C1 to C7, while rendering the Judgment.

3.The Accused has challenged his Conviction on the following grounds:

1.that the Judgment of the learned Magistrate is against to law, weight of evidence and probabilities of the Case;

2.that the trial Court has failed to consider the evidence of the PW.2, that he did not receive any information from the

Villagers or the M.R.O;

3.that the trial Court has failed to consider the extraordinary delay in lodging the Report, which has not been explained;

4.that the learned Magistrate without giving opportunity to

V-ADSJ, ALG5Crl.A.P.86/2017 the Accused, has marked the documents concerned in the

O.S No.284/2008, which have not been tendered in

evidence. Thus, the Judgment of the learned Magistrate is illegal or perverse, hence, the same may be set aside and the Accused may be acquitted.

4.Thereafter, heard the learned Counsel for the Appellant and the learned Additional Public Prosecutor.

5.The points for consideration are:

1. Whether the Prosecution could prove beyond reasonable doubt that the Accused had forged a Patta and Pattadar Passbook, trespassed into the Government land and obstructed the Public

Servants while they discharging their duties.

2. Whether the Judgment of the learned Magistrate suffers from illegality or perversity, if so, the same be interfered in the

Appeal.

6.Finding on points 1 & 2: My finding is that the Prosecution has failed to prove the Charges levelled against the Accused and that the Judgment of the learned Magistrate suffers from perversity and illegality, hence, the same is required to be set aside.

7.Reasons for my finding are as under: [7.1]. The report of the Tahsildar to the S.H.O., is basis for initiation of the Prosecution.

According to the report, the land in Sy.No.388/1 & 388/2 comprises

Ac.7-20 cents and Ac.0-25 cents and the same has been classified as

Tank, which is Government Poramboku land, locally called Vurakunta for the benefit of the villagers for drinking water for their cattle; that the Accused had occupied the Kunta and obstructed the inflow of the water to the Tank from the upper land and raised crops; that he is

V-ADSJ, ALG6Crl.A.P.86/2017 threatening people as he is having D-Form Patta, issued by the

Mandal Revenue Officer; that the Sarpanch and the Villagers have given report requesting to remove the unauthorized occupation of the Accused to take up the work of NREP; that the Accused had produced copies of D-Form Patta vide DKD/121/F/DAR/1411, Dt: 05- 11-2002, and the Pattadar Passbook 667355 with Patta No.811 for 4 acres in Sy No.388/1 and Ac.3-45 cents, in Sy No.388/2; that the

Kunta being the Government Poramboku land it cannot be assigned without permission of the Grama Panchayat; that the D-Form Patta and the Pattadar Passbook produced by him are false and created document; that he had also obstructed the Government Officials when they visited on 08-10-2008. This report was lodged and signed by the Tahsildar on 04-11-2008 and was registered as F.I.R on 12-11- 2008.

[7.2]. The witnesses examined on behalf of the Prosecution are the Tahsildar who lodged the F.I.R., Mr. Pasala Janardhan Setty, the

Revenue Inspector of Sirivel, Smt. Susheelamma, the Sarpanch of

Mahadevapuram Village, Mr. M. Ramanjaneyulu, the Mandal

Surveyor, two Sub-Inspectors of Sirivel P.S., U Venkata Kumar and P.

Siva Shankar.

[7.3] The informant Mr. D. Sreenivasulu (PW.1) has deposed that on 05-10-2008, he received a complaint from the Village

Sarpanch and the other villagers, who complained that the Accused had occupied Vurakunta and raising crops; that there upon he along with the Revenue Inspector, the V.R.O., and the Mandal Surveyor

V-ADSJ, ALG7Crl.A.P.86/2017 along with other villagers went to the Village; that then, the Accused had obstructed them stating that he got D-Form Patta and that he has Revenue records and accordingly he submitted the same; that then they went back to their Office, verified the Registers and

Records and found that the no Patta had been granted to the

Accused and that the documents produced by him are fake documents and there upon he had lodged a complaint. The Accused has claimed that he has right over the dispute site with genuine documents, which were issued by the Revenue Authorities; that his ancestors have also cultivated the same. But, this witness, who was the Tahsildar, except his oral evidence, did not get marked any

Revenue Records. The Accused has further claimed that he filed a

Suit vide O.S No.284/2008 on the file of the Junior Civil Judge,

Allagadda and obtained temporary injunction, for which the PW1 has pleaded ignorance. He did not disclose in his evidence, how the

Accused had obstructed him and the other Public Servants. The

Accused had claimed that in the disputed site i.e., Vurakunta, some more people have also been cultivating, but the Tahsildar pleaded ignorance of the same.

[7.4] The other witness Mr. Janardhan Setty (PW.2), the then

Revenue Inspector has deposed similar version. According to him when he along with the Tahsildar, V.R.O., and the Mandal Surveyor went to inspect the disputed land, the Accused had objected stating that he had D-Form Patta and Pattadar Passbook. He admitted that in the disputed land, the Accused, as well as some other villagers have

V-ADSJ, ALG8Crl.A.P.86/2017 been cultivating. This witness even did not get marked any documents of the Revenue Department concerning the disputed land.

[7.5] The then Sarpanch, Smt. Susheelamma (PW.3) has deposed that about 6 years ago on one day, the Revenue Inspector and the Mandal Surveyor came to their Village to measure

Vurakunta; that then, the Accused had told them and obstructed from the Survey; that he is utilizing the said Kunta for agriculture; that then the Revenue Authorities went back. She admitted that apart from the Accused, some other people namely Peramma, Golla

Peddanna, Golla Nadipenna and Golla Gurunatham have also been cultivating the Kunta. She admitted that she received a copy of

Injunction order in I.A No.1853/2008 in O.S No.284/2008. The Mandal

Surveyor Mr. M. Ramanjaneyulu (PW.4), who was called to depose evidence appeared before the Court but as he was not in a position to give rationale answers, the Court did not examine him.

[7.6] The Sub-Inspector Mr. U. Venkata Kumar, who registered the F.I.R did not give any explanation for the delay in lodging the report. The other Sub-Inspector, who continued the investigation has deposed about examination of the witnesses. He further deposed that he made a requisition to the Tahsildar to furnish the Revenue

Records for the disputed land. The learned Defence Counsel though suggested that the Accused had filed a Suit vide O.S No. 284/2008 and obtained Injunction order, did not specify on which date the

Injunction Order was granted and for how long it was in force. The

V-ADSJ, ALG9Crl.A.P.86/2017 evidence of the Sub-Inspector does not disclose the location of the land, which has been in the occupation of the Accused.

[7.7]. The learned Magistrate procured the documents from the

Suit i.e., O.S No.284/2008 and some other documents which have not been marked from the Prosecution witnesses, marked the same as

Exs.D1 to D3 i.e., Affidavit in I.A No.1853/2008 in O.S No.284/2008,

Petition in I.A No.1853/2008 and the docket order in the I.A., Dt: 05- 11-2009 and Exs. C1 to C7 i.e., Re-survey and Re-Settlement

Register extract, Village map of Sy No.388, Extract of 1B Namuna for the year 2002-2008, No.3 Adangals for the years 2007 & 2008,

Certified Copies of Pattadar Passbook and Title deed and D-Form

Patta as Exs. C1 to C7. The learned Magistrate while marking those documents in the Judgment, tried to justify her action by narrating that as the same Court is dealing with the Civil matters, she perused the original Suit record i.e., O.S No.284/2008 as to the Injunction

Order, which is relevant under Section 43 of the Indian Evidence Act.

She further commented in Page 7 of her Judgment that the

Prosecution has failed to file the marked documents along with

Charge Sheet, hence, she marked those documents as Exs.C1 to C7.

The learned Counsel for the Appellant has argued that the Accused was not given opportunity to submit his version about the documents marked by the Court and such marking is illegal.

[7.8]. Now, I look into Section 45 of the Indian Evidence Act, which the learned Magistrate has referred, to look into the Suit record. Section 43 reads as under:

V-ADSJ, ALG10Crl.A.P.86/2017 Judgments, etc., other than those mentioned in Sections 40 to 42, when relevant.—Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act As per the Section 40 of the Indian Evidence Act, previous Judgments relevant to bar a second suit or trial.

Section 41 says that a final Judgment, order or decree in the exercise of probate, matrimonial admiralty or insolvency jurisdiction is relevant.

Section 42 says that Judgments, orders or decrees other than those mentioned in section 41, are relevant, if they relate to matters of a public nature relevant to the enquiry, but such judgments, orders or decrees are not conclusive proof of that which they state.

[7.9] The documents concerning the Injunction Order and the

Suit have not been confronted by the Counsel for the Accused to the

Pws.1 to 3 & 6. The learned Magistrate though in the capacity of

Junior Civil Judge has been dealing with a Suit between the same parties, she is not authorized to pick up documents in one matter and to introduce in another matter. If either the Prosecution or the

Accused obtains certified copies of the documents concerning the

Suit and file the same through the witnesses in this Case, the witnesses concerned shall be subjected to cross-examine in respect of those documents. Section 43 of the Indian Evidence Act, does not authorize the Magistrate to bring out documents from another litigation, though between the same parties, unless they are properly brought herein. Likewise, marking of the documents by the Court itself, which ought to have been marked by the Prosecution, while

V-ADSJ, ALG11Crl.A.P.86/2017 rendering the Judgment as Court documents is also unknown to law.

Unless, the documents have been tendered through the witness concerned, the Judge or Magistrate is not supposed to look into the documents if otherwise they are part of the record. If, such documents are marked through the Judgment the Accused would have no opportunity to project his version and to question those documents or contradict the same. Thus, the marking of Exs.D1 to

D3 and C1 to C7 by the learned Magistrate while rendering the

Judgment is illegal, hence, they are excluded from consideration.

[7.10] After such exclusion, what is the evidence on record for appreciation, is now to be considered. As pointed out by the learned

Counsel for the Appellant, the informant or the Sub-Inspector, who registered the F.I.R, did not disclose any reason for the delay in lodging the report. Even, the column No.8 of the F.I.R is kept blank. In view of such unexplained delay of more than one month in lodging the report, it creates any amount of doubt about the very obstruction alleged to have been caused by the Accused to the Public Servants.

Even if it is considered that the Accused had raised an objection that

Patta had been granted to him and that he had been cultivating the disputed land from the time of his fore-fathers, that is the assertion of a right. The Pws.1 & 2 who were the then Tahsildar and the

Revenue Inspector did not whishper any word in their evidence that the Accused had assaulted them or used criminal force with intent to prevent them from discharging their duties. Mere assertion of right, when he has been cultivating the land, as admitted by the Accused,

V-ADSJ, ALG12Crl.A.P.86/2017 is not an assault or using criminal force to deter the Public Servants.

The act of forgery cannot be decided in the absence of marking documents through the informant, which the Accused alleged to have forged. Admittedly, along with the Accused, several other people have been cultivating the Vagu Poramboku. Then, the

Government can take steps for removal of the encroachment if the encroachment is unauthorized. Thus, the Prosecution has failed to prove the Charges levelled against the Accused, and the finding of the learned Magistrate holding the Accused guilty and convicting him is illegal and perverse. Hence, the Judgment is liable to be set aside.

8.As a result, this Appeal is allowed setting aside the Conviction of the Accused in C.C No.29/2010 on the file of the Judicial Magistrate of the First Class, and consequently the Accused is acquitted of the

Charges under Sections 465, 353 & 447 of IPC and accordingly he is set at liberty. The Bail Bonds of the Appellant shall stand cancelled.

The fine amount paid by the Accused shall be returned to him.

Dictated to the Stenographer Grade-III, transcribed by him, corrected and

pronounced by me in open court, on this the 27 th day of June 2019.

V-Addl. District & Sessions Judge, Allagadda.

Appendix of Evidence

No additional evidence in the Appeal.

V-A.D.S.J., ALG.

Copy to the Judicial Magistrate of the First Class, Allagadda.

III-ADSJ, NDL

IN THE COURT OF THE III-ADDITIONAL DISTRICT & SESSIONS

JUDGE: KURNOOL at NANDYAL.

Present : Moka Suvarna Raju,

III-Additional District & Sessions Judge,

Kurnool at Nandyal

Thursday, the 31st day of March 2022

CRIMINAL APPEAL No.220 of 2017

From which Court the appealThe Special Magistrate Court, Nandyal is preferred Number of case in that CourtC.C No.1241 of 2014

Number of the AppealCriminal Appeal No.220 of 2017

Name and description of the Budidapati Narasimhulu, Aged 46 years, Appellant /Accused S/o. Saruppa, Hindu, Employee, SRBC Division No.1 (CADA), Nandyal, Kurnool District

The Sentence and law underThe Accused was found guilty of the offence which it was imposed in the punishable under Section 138 of the Lower Court Negotiable Instruments Act and accordingly he was convicted under Section 255 (2)

Cr.P.C and sentenced to undergo Simple

Imprisonment for a period of three (3) months besides to pay a compensation of

Rs.1,20,000/- (Rupees one lakh twenty thousand only) to the Complainant as per

Section 357 (3) Cr.P.C.

Whether confirmed, modified As a result, the Appeal is dismissed or reversed; and if modified confirming the conviction and the sentence the modification. imposed by the learned Special Magistrate,

Nandyal against the Accused in C.C

No.1241 of 2014, dated 17.08.2017 where under, the Appellant/Accused was convicted for the offence under Section 138 of the

Negotiable Instruments Act. The Office is directed to return the Case File to the

Special Magistrate, Nandyal with a direction to secure the presence of the

Appellant/Accused and send him to the prison.

III-ADSJ, NDL

Date of Presentation25-09-2017 Date of filing25-09-2017 Date of Notice issued by25-09-2017 Court to appear Date of Bail Bond if-- appellant has been let out on bail Date of Appellant/s ordered30-10-2017 to appear Date of hearing25-03-2022 Date of Judgment 31-03-2022

III-Addl. District & Sessions Judge, Kurnool at Nandyal.

III-ADSJ, NDL

IN THE COURT OF THE III-ADDITIONAL DISTRICT & SESSIONS

JUDGE: KURNOOL at NANDYAL.

Present : Moka Suvarna Raju,

III-Additional District & Sessions Judge,

Kurnool at Nandyal

Thursday, the 31st day of March 2022

CRIMINAL APPEAL No.220 of 2017

Between:

Budidapati Narasimhulu, Aged 46 years, S/o. Saruppa, Hindu, Employee, SRBC Division No.1 (CADA), Nandyal, Kurnool District … Appellant/Accused

Vs.

M.Bala Venkata Reddy, Aged about 45 years, S/o. Bala Rosi Reddy, Hindu, R/o. D.No.26-603-C4-1, Venkatachalam Colony, Nandyal Town,

Kurnool District – 518501.... Respondent/Complainant

This Criminal Appeal was coming on 25-03-2022 for final hearing

before me, in the presence of Sri A.Venkateswarlu and R.K.Sudhakar Babu,

Advocates for the Appellant/Accused and Sri S.I.Khaleel and Sri D.Hussain

Raju, Counsel for the Respondent/Complainant and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

01.The Accused in C.C No.1241 of 2014, on the file of the Special

Magistrate Court, Nandyal has preferred this Appeal under Section 374 (3)

Cr.P.C., challenging the Conviction and the Sentence imposed against him for the offence under Section 138 of the Negotiable Instruments Act.

02.Before looking into the grounds of Appeal, it is necessary to have a look at the contents of the Complaint in C.C No.1241/2014. The

Respondent/Complainant had alleged that on 25.08.2004, the Accused had borrowed an amount of Rs.1,20,000/- (Rupees one lakh and twenty-thousand only) from him as hand loan and on the same day issued a cheque bearing

No.456538 drawn on State Bank of India, Sreenivasa Nagar, Nandyal for

Rs.1,20,000/-; that when the Complainant had presented the cheque on

III-ADSJ, NDL

24.09.2014 in Punjab National Bank, Nandyal Branch, the same was bounced with an endorsement “Funds Insufficient”; that on 01.10.2014, the

Complainant got issued a Legal Notice to the Accused calling upon him to pay the amount under the cheque but the Notice was returned not served; that the

Accused having knowledge of the Statutory Notice failed to make payment within 15 days, hence, he filed the Complaint.

03.The defence of the Accused in the Complaint was that one Mr.Dasu who works as Manmazdoor at S.R.B.C., a colleague of the Accused, with an assurance to stand as Surety in getting finance from one Subbareddy, had obtained two blank cheques and one Promissory Note from the Accused; that the said Dasu had received an amount of Rs.30,000/- without the knowledge of the Accused; that the Complainant having received a blank cheque of the

Accused from Subbareddy, filled in the cheque leaf for Rs.1,20,000/- and filed the Complaint. The learned Special Magistrate, Nandyal having conducted trial, found the Accused guilty of the offence under Section 138 of the

Negotiable Instruments Act, convicted him under Section 255 (2) Cr.P.C and sentenced him to undergo Simple Imprisonment for a period of three months besides to pay a compensation of Rs.1,20,000/- to the Complainant.

04.The Accused being aggrieved by the conviction and sentence has preferred this Appeal on the following grounds:

(i) that the Judgment of the Lower Court is contrary to law weight of evidence and probabilities of the Case:

(ii) that the observations of the Lower Court are purely on imaginations and inferences;

(iii) that the Lower Court wrongly believed the self serving statements of the Respondent/ Complainant;

(iv) that the Lower Court has failed to consider that there is no documentary proof to show that there is a legally enforceable debt or other liability against the Accused;

(v) that the Lower Court has failed to appreciate that the Accused had rebutted the presumption under Section 139 of the Negotiable Instruments Act

III-ADSJ, NDL

and so the entire burden shifted to the Complainant to prove that the cheque had been issued towards discharge of any debtor any other liability but the Complainant has failed to prove the same;

(vi) that the Lower Court had wrongly concluded that due to non issuance of Reply Notice strong circumstances goes against the Accused, hence, the Appeal may be allowed by setting aside the conviction and the sentence passed thereon and the Accused may be acquitted.

05.Both the Counsel have submitted Written Arguments. The Counsel for the Appellant has submitted the following Case Law:

01. Suresh Agarwal V/s. State of Andhra Pradesh and another (2012 (2) ALD (Crl.) 302 AP)

02. Krishna Janardhan Bhat V/s. Dattatraya G.Hegde (2008 (1) ALD (Crl.) 485 SC)

03. B.Girish V/s. S.Ramaiah 2010 (2) CCC 57 (Karnataka)

04. C.Bhaskaran Nair V/s. B.Mohanan 2010 (1) CCC 345 (Kerala)

05. Yeshpal V/s. Vijay Kumar 2009 (1) CCC 253 (Madras)

06. The Point for determination is whether the Appellant/Accused could rebut the presumption under Section 139 of the Negotiable Instruments Act available to the Complainant, if so, there is illegality or perversity in the

Judgment of the learned Special Magistrate Nandyal, if so, the same be interfered in the Appeal ?

07. Finding: My finding is that the Appellant/Accused has failed to rebut the presumption under Section 139 of the Negotiable Instruments Act available to the Complainant. Thus, I found no illegality or perversity in the

Judgment of the learned Special Magistrate Nandyal to interfere in the

Appeal.

08. Reasons for my finding are as under: (8.1) How a Presumption is available to the Complainants and how the same shall be rebutted have been held in various judgments. In Suresh Agarwal’s case, the Hon’ble High

Court of Andhra Pradesh has held that there is a presumption in favour of the

Complainant under Section 139 of the Negotiable Instruments Act that the said Cheque was issued towards legally enforceable debt or liability but the

III-ADSJ, NDL

presumption is rebuttal one and the Accused can rebut the presumption either by adducing positive evidence or basing on the material available on record such as averment in the Complaint and the evidence of the witnesses examined by the Prosecution. It was further held that in the instant case, in the Complaint itself it was mentioned that the said Cheque was issued towards security for the loan borrowed. When a Cheque was issued as security, the Accused is not liable for Prosecution under Section 138 of the

Negotiable Instruments Act despite the fact that it was dishonoured. It was further observed that the Complainant did not adduce any evidence in proof of the fact that the Accused had borrowed Rs.1,50,000/- from him. Hence, it was held that the Accused could be able to successfully rebut the presumption available to the Complainant under Section 139 of the Negotiable Instruments

Act. Consequently the conviction and the sentence passed against the

Accused was set-aside.

(8.2) In Krishna Janardhan Bhat V/s. Dattatraya G.Hegde the

Hon’ble Supreme Court has held that existence of a legally enforceable debt

under Section 139 of the Negotiable Instruments Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not of a matter of presumption under Section 139 of the

Negotiable Instruments Act. It merely raises a presumption in favour of a holder of the Cheque that the same has been issued for discharge of any debt or other liability.

(8.3) In the Judgment of Rangappa V/s. Mohan, a three Judge Bench of the Hon’ble Supreme Court has set-aside the observation in Krishna

Janardhan Bhat’s Case that the existence of legally recoverable debt is not a matter of presumption under Section 139 of the Negotiable Instruments Act and held that existence of a legally enforceable debt can even be presumed under Section 139 of the Act.

III-ADSJ, NDL

(8.4) The presumption available to the Complainant is a rebuttal presumption and the Accused shall rebut the same by preponderance of probabilities. To discharge such burden, he need not come into the witness box but can rely upon other material on record to probablize his defence. The defence of the Accused as could be seen from the cross examination of the

PW.1, is that he stood as surety to one Dasu a colleague of the Accused while getting finance from one Subbareddy a Moneylender, and in that process, the said Subbareddy had obtained two blank Cheques and a Promissory Note from the Accused and that from the said Subbareddy, the Complainant had obtained a blank Cheque and filed the Case to have wrongful gain.

(8.5) The Accused had deposed evidence as DW.1. In his examination- in-chief affidavit, he deposed that he does not know the Complainant; that his colleague namely Yesudasu and his friend Subbareddy have taken blank

Cheques and Promissory Notes from him without his knowledge; that

Yesudasu and Subbareddy have taken some amount from the Complainant on the basis of the blank Cheques and Promissory Notes and that with a malafide intention, by filling the Cheque leaf, filed false Complaint.

(8.6) The Accused had examined Mr. Muchu Yesudasu as DW2. He deposed that he had been working as a Printing Technician, CADA Division,

SRBC Colony No.1, Nandyal; that the Accused is his colleague and that the

Accused and one Subba Reddy are friends; that due to dire necessity, he requested the Accused to give him Rs.30,000/- as hand loan but the Accused instead of cash, issued a blank Cheque to him; that due to Holiday, he was not able to submit the Cheque in State Bank of India, Nandyal; that as he had immediate necessity of money he and the said Subbareddy approached the

Complainant; that the Complainant had taken the blank Cheque which was

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issued by the Accused as security and had given him Rs.30,000/-; that he repaid said amount with interest @ 24% p.a.,; that when he insisted the

Complainant to return the blank Cheque, he stated that it was misplaced and that to have wrongful gain, he misused the blank Cheque and filed the

Complaint. During the cross-examination he deposed that in the year 2014 on one day he had requested the Accused for a hand loan of Rs.30,000/- and then he had issued a blank Cheque duly signed by him; that he handed over the said Cheque to M.Bala Venkata Reddy and in turn he paid Rs.30,000/-; that after one year, he repaid the amount with interest.

(8.7) On scrutiny of the cross-examination of the PW.1, the evidence of the DWs 1 and 2, it is found that the stand taken by the Accused is not static and it is inconsistent from one stage to the other. The evidence of Mr.Muchu

Yesudasu shows that when he approached the Accused to lend an amount of

Rs.30,000/- he issued a Cheque to him; that due to holiday he could not encash the Cheque as he was in immediate necessity he and one Subbareddy approached the Complainant and as security he had given such blank Cheque to the Complainant. The examination-in-chief of the DW.1 is that his colleague

Muchu Yesudasu and his friend Subbareddy have taken blank Cheques and

Promissory Note from him without his knowledge. It is further evidence is that

Yesudasu and Subbareddy have taken some amount from the Complainant on the basis of blank Cheque and Promissory Notes. The version of the

Complainant is that on 25.08.2014 the Accused had borrowed a sum of

Rs.1,20,000/- from him as hand loan and on the same day handed over a

Cheque bearing No.456538 of State Bank of India, Sreenivasa Nagar,

Nandyal for Rs.1,20,000/-; that on 24.09.2014, when he presented the

Cheque in Punjab National Bank for collection it was bounced for want of money; that in spite of issuance of Legal Notice on 01.10.2014, the Accused did not repay the amount. Thus, these versions are inconsistent to each other

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and such evidence will not help the Accused to rebut the presumption since there are no preponderance of probabilities.

(8.8) Cheque leaves are not ordinary pieces of paper but valuable

Negotiable Instruments and they are being issued to the Account Holders to deal with their financial matters. Section 118 (a) of the Negotiable Instruments

Act envisages that whenever a Cheque had been issued, the presumption is that it was validly issued towards discharge of a legally enforceable debt.

Section 118 reads as under :

Presumptions as to negotiable instruments: —Until the contrary is proved, the following presumptions shall be made:—

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

Section 139 of the Act is in favour of the holder of the Cheque.

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

(8.9) In view of the presumptions which are in favour of holders of

Cheques, the Complainant herein is entitled to have such presumptions unless they are rebutted. The learned Counsel for the Appellant/Accused has argued that the Accused had discharged his burden and thereby rebutted the presumption; that the conduct of the Respondent/Complainant in lending huge amount of Rs.1,20,000/- without obtaining any Promissory Note or a piece of paper is unbelievable; that the Cheque is stated to have been issued on the same day of borrowing the amount which amounts to a security, hence, the offence under Section 138 cannot attract. But the law is that when the

Accused admits his signature in the Cheque, a presumption shall be raised

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under Section 139 that the Cheque was issued in discharge of a debt or liability. The defence as raised by the Accused as seen from the cross- examination of the PW.1, in his examination in chief and in the evidence of the witness whom he examined are found inconsistent and improbable and there is no clarity as to how his blank signed Cheque reached the hands of the

Complainant. Since the defence raised by the Accused is found improbable the presumption shall always be with the Complainant and hence the burden will never be shifted to the Complainant. The Case Law quoted by the learned

Counsel for the Appellant will not come to his rescue since the defence taken by the Accused is found inconsistent and improbable. Thus, I found no illegality or perversity in the Judgment of the learned Special Magistrate in convicting the Accused. Hence the Appeal is liable to be dismissed.

09. As a result, the Appeal is dismissed confirming the conviction of the

Appellant/Accused for the offence under Section 138 of the Negotiable

Instruments Act and the sentence imposed by the learned Special Magistrate,

Nandyal in C.C No.1241 of 2014, dated 17.08.2017. The Office is directed to return the Case File to the Special Magistrate, Nandyal with a direction to secure the presence of the Appellant/Accused and send him to the prison.

Dictated to the Stenographer, typed by her, corrected and pronounced

by me in open court, this the 31 st day of March 2021.

III-Addl. District & Sessions Judge, Kurnool at Nandyal.

Appendix of Evidence

No additional evidence in the Appeal.

III-A.D.S.J., NDL.

Copy to the Special Magistrate, Nandyal.