Smt N Mary

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST

CLASS SPECIAL MOBILE COURT, MACHILIPATNAM.

Present : Smt.N.Mary,

Special Judicial Magistrate of I-Class Excise Court,

Machilipatnam

FAC/Judicial Magistrate of I-Class, Special Mobile Court, Machilipatnam

Friday, this the 16 th day of November, 2023

Calender Case No.180/2017

Between: State : Sub-Inspector of Police, Bandar Taluka Police Station, Machilipatnam (Cr.No.122/2015) …COMPLAINANT.

AND

A.1-Sannala Shanmukha Rajesh, S/o Venkata Srinivasa Rao, Hindu, age 24 years, Javvarapeta, Machilipatnam

A.2-Sannala Venkata Srinivas @ Srinivasa Rao, S/o Phani Rajeswara Rao, Hindu, age 48 years, Javvarapeta, Machilipatnam

A.3-Sannala Rama Krishna, S/o Phani Rajeswara Rao, Hindu, age 48 years, Javvarapeta, Machilipatnam

A.4-Bhogadula Sai Anugraha Jeeveswara Rao S/o Venkateswara Rao, Hindu, age 73 years, R/o Khojjilipeta, Machilipatnam ….. A1 to A4 Note:A4has been discharged as per the orders in Crl.R.P.No17/2019 on the file Hon’ble I Addl District &

Sessions Judge, Krishna, Machilipatnam dated :

This case is presented before me on 08.11.2023 for final hearing in the presence of learned Assistant Public Prosecutor Smt.B.Sneha garu for the State and of Sri.V.J.M.Lohiya, Learned advocate for A1 and A2 and Sri P.Murali Krishna, Learned Advocate for A3, upon hearing both sides and the matter having stood upon for consideration till this day, this court delivered the following:

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J U D G M E N T

The Sub-Inspector of police, Bandar Taluka Police Station filed a charge sheet against the A1 to A4 in Cr.No.122/2015 for the offences under Section 420,506 r/w 34 of IPC.

02. The case of the prosecution, in a nutshell is that :

a) In the year 2014, one Sannala Shanmukha Rajesh (A1),

S/o Venkata Srinivasa Rao, R/o Khojjillipeta, Machilipatnam induced LW.1/Pusala Rama Manohara Prasad with deceitful words that his relatives are working in customs department and he can provide them new four wheelers and two wheelers for low price and without tax. So saying, A1 took an amount of Rs.23,00,000/- from him and sincethen, his whereabouts are not known, later, he came to know that the accused A1 has cheated many people including him and that, when he asked A2 to A4 about A1, they threatened him with dire consequences.

Basing on the complaint given by LW1, LW.8/P.Uma

Maheswara Rao, registered a case in Cr.No.122 of 215 under section 420, 506 r/w 34 of IPC against A1 to A4 and during investigation, he examined the witnesses, recorded the statements and obtained bank transaction statements of the accused account numbers 913010000057411 of AXIS bank and 50100017178929 of HDFC

Bank, Machlipatnam branches and found that on 03.07.2014 and amount of Rs.6,00,000/- were credited by LW.1 through LW.3 in the account of the A1 vide Account No. 913010000057411 of AXIS bank and on 03.07.2014, an amount of Rs.5,50,000/- was credited in the account bearing No. 50100017178929 of HDFC Bank, Machlipatnam 3 pertaining to A1. During the course of further investigation,

LW.9/K.Srinivas, S.I of Police served S.41-A Cr.P.C notices to the accused on 18.03.2017 and he filed charge sheet.

03. Considering the charge sheet and material on record the court took the case on file for the offence under Sections 420,506 r/w 34 of IPC against the A1 to A4 and issued summons. In response to the process, accused entered their appearance and they were provided with the copies of documents as required U/S.207 Cr.P.C.

04. The 4th Accused had filed a petition U/Sec. 239 Cr.Pc to discharge him and the same is dismissed by my Learned

Predecessor,onwhich,A4preferredappealvide

Crl.R.P.No.17/2019 on the file Hon’ble I Addl District & Sessions

Judge, Krishna, Machilipatnam, the same is allowed and A4 is

discharged from the offence U/s.239 Cr.Pc.

05.When examined under section 239 of Cr.P.C., A1 to A3 denied the allegations levelled against them. After perusing the entire material on record and on hearing both sides, my Ld.

Predecessor has framed charges against the accused under Sections 420, 506 r/w 34 of IPC, which were readover and explained to them in Telugu, for which, A1 to A3 pleaded not guilty and claimed to be tried.

06.During the course of trial, on behalf of the prosecution, the prosecution has examined the P.Ws.1 to 8 and Ex.P1 to P8 were exhibited. The Ld. APP has given up the evidence of LW.2- Pusala

Janani .

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07. After closure of the prosecution evidence, A1 to A3 were examined under section 313 Cr.P.C., with regard to incriminating material appearing against them in the evidence of prosecution, for which, they denied and reported no defence evidence. No witnesses are examined and no documents are marked on behalf of accused.

08. Arguments of the learned Assistant Public prosecutor Smt.

B.Sneha Garu representing the State and the Learned counsels Sri

V.J.M.Lohiya garu and Sri P.Murali Krishna garu defending the accused 1 to 3 have been heard at length.

09.Now the point that arises for consideration are:

Whether the prosecution is able to bring home the guilt of

A.1 to A.3 with legal and acceptable evidence beyond all

reasonable doubt, in respect of charges framed against

each of the accused for the offence alleged to have been

committed by them under sections 420 and 506 r/w 34

IPC ?

P O I N T :

10. The sum and substance of the prosecution case alleged against the accused is that, A1 made a false promise that he will facilitate selling of two wheelers and four wheelers at lower price by getting tax exemption with the help of his maternal aunt who is allegedly working as Customs officer and believing the words of A1, he arranged Rs.23 lakhs partly in cash and partly through bank deposit. However, A1 failed to fulfill his promise which made PW.1 to approach police with Ex.P1 report against A1 to A3 and

A4(Bhogadula Sai Anugraha Jeeveswara Rao).

5 11. The prosecution in order to prove the complicity of the accused examined PW1 to PW.8 and got Ex.P1 to Ex.P8 and MO.1 marked. PW.1 who set the criminal machinery into motion by launching Ex.P.1 report. P.W.2 is friend and that P.W.3 and PW.4 are relatives of PW.1 respectively. PW.5 and P.W.6 are Bank officers.

PW7- Sub Inspector of Police, who registered Ex.P6 FIR, did investigation and on it’s conclusion, PW8, his succeeding Officer filed charge sheet against the accused. The plea of accused is one of total denial.

12. It is in this context profitable to extract the definition of cheating mentioned under section 415 of IPC. Section 415 of the

Indian Penal Code defines “cheating” and it reads thus:- “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is side to “cheat” An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:

 “Deception of a person either by making a false or misleading representation or by other action or omission;  Fraudulently or dishonestly inducing any person to deliver any property; or 6  To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit”

Thus, for the purpose of constituting an offence of cheating, the prosecuting party is required to show that, A1 had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made, in regard to failure on the part of the accused to keep up his promise, in the absence of a culpable intention, at the time of making initial promise, no offence under section 420 IPC can be said to have been made out.

13. It is now relevant to refer the evidence of PW 1 – P.Rama

Mohana Prasad, who set the criminal machinery into motion by launching Ex.P.1 complaint, has reiterated that, in the year 2013, he got acquaintance with A.1 through his friend/PW.3-

Kunnapureddy Avinash, and A1 informed him that he is a business man and his maternal aunt is a Customs Officer, as such, he could facilitate two wheelers and four wheelers at lower price and tax exemption, believing his words, he arranged Rs.23,00,000/- partly in cash and other through net banking (through Axis Bank and HDFC

Banks) to the account of A1, and that, bank challans were scribed by

PW.2, thereafter A1 absconded, after his making bonafied enquiries, during the year 2015, appraised A2 to A4 about the acts of A1 and when he asked A2 to A4 for A1 , all of them promised that A1 would return the aforesaid amount which was given to him, upon their promise, he returned and thereafter all of them absconded, later, he 7 gave report to the police against A1 to A3 and A4-Bhogadula Sai

Anugrah Jeeveswara Rao covered by Ex.P1.

14. PW.2- D. Hema Kumar has testified that in the year 2013,

A1 got introduced through LW4- Kunapareddy Avinashand informed them that as his maternal aunt is customs officer and he will facilitate selling of two wheelers and four wheelers at tax exemption at lower prices and that during year 2014, on believing the words of

A1, in order to start car business, PW1 arranged Rs.23 lakhs in his presence partly in cash and other through PW1 accounts respectively i.e., Axis bank and HDFC banks, thereafter A1 evaded his presence and communication and absconded. He further stated that during the year 2015 , himself and PW.1 together visited the house of A1 situated at Machilipatnam, and appraised A2 to A4 about the acts of

A1 and asked about the whereabouts of A1, to which, A2 to A4 promised that A1 would return the aforesaid amount given by Pw1, believing the same , they returned , but later, he found their house locked and also came to know that A1 has involved in similar type of offence at Vijayawada.

15. PW.3/Kunapareddy Avinash had deposed that, A1 is his classmate and he made him and PW.1 to believe that as his maternal aunt by name Nirmala Kumari is working in Customs Department

Officer and that, A1 would facilitate selling of two wheelers and four wheelers at Tax exemption at lower prices, on believing the words of

A1, PW.1 arranged Rs.23,00,000/- in his presence, partly in cash and also through bank account to his accounts respectively i.e, Axis 8 Bank and HDFC Banks and that he/ PW2 subscribed the bank challans, thereafter A1 has absconded, later, they made enquiries with A1 and during the year 2015, he visited the house of A1 , when asked A2 to A4 for A1 and all of them promised that A1 would return the aforesaid amount given by PW.1, on that, they returned and thereafter all of them found their house was locked.

16. PW.4. Nukala Srinadha Rao/LW.5 had deposed that A1 made PW.3 believe that his maternal aunt by name Nirmala Kumari is working in Customs Department Officer, and A1 would facilitate selling of two wheelers and four wheelers at lower prices with Tax exemption, PWs.1 to 3 believed the words of A1 and that, PW.1 arranged Rs.23,00,000/- partly in cash and other sum depositing through bank account to his accounts respectively i.e., Axis Bank and HDFC Banks and bank challans were scribed by PW.2, thereafter A1 absconded,

17. The testimony of P.W.5-P.V.Radha Krishna , Bank Manager,

HDFC Bank, Machilipatnam that upon receiving the letter from the

Bandar Taluka Police Station in Cr.No.122/2015 to furnish the transaction details of account No.50100017178929 belonging to A1, they have provided the bank statement under Ex.P2 along with

Letter issued as under Ex.P3. P.W.5 in his cross examination has stated that, the statement did not contain the purpose of transfer of amount, from the account of P.W.1 to others. PW.6: P.Ravi Kishore,

Bank Manager, Axis Bank, Machilipatnam,had also deposed that on 15.12.2015, he received a requisition from Bandar Taluka Police 9 station to furnish the account statement particulars of A1, they have furnished the account statement vide Ex.P4 along with letter under Ex.P5.

18. PW.7- P.Uma Maheswara Rao , S.I of Police, Bandar

Taluka Police Station has deposed that, on 12.06.2015 at about 8:00PM, he received a report and same was registered as FIR in

Cr.No.122 of 2015 under section 420 and 506 of IPC. He examined

PW.1 and recorded the statement in part-II case diary on the basis of

PW.1 statement added A2, A3, A4 and add r/w 34 of IPC. He examined PWs.2 to 4 and recorded their statements, he sent requisition letter to the Branch Manager, Axis Bank an HDFC Bank and obtained Bank transaction details marked under Ex.P7 and

Ex.P8 , later, further investigation was conducted by the Sub

Inspector of Police, K.Srinivas/PW.8.

19. PW.8: K.Srinivas, Sub Inspector of Police, Bandar

Taluka Police station, had deposed that he received the entire record from PW.7 and verified the same and found at an correct lines. On 18.03.2017, on reliable information about the A1 to A4, he called all of them to Police Station and on proper identification and served 41-

A Cr.P.C., notices to A1 to A4.

20. Submissions of prosecution:-

Learned Assistant Public Prosecutor Smt.B.Sneha garu, referring to the evidence on record would contend that, the evidence 10 brought on record by prosecution is sufficient enough to conclude that, A.1 with a dishonest intention induced P.W.1 to pay an amount of Rs.23,00,000/- on a false promise to get exemption in providing two and four wheeler vehicles, however, subsequently A1 did not stand up by the promise and breached the promise and absconded.

She further would contend that, in cheating cases direct evidence cannot be had to prove the mental state of the accused and it must be inferred from the attended circumstances, however, in the case on hand, the evidence of PW.5 and PW.6 bank officials would make it clear about transfer of amounts from the account of P.W.2 to the account of A1. She would maintained that the investigation carried out by P.W.7 clinchingly establishes the allegations made by P.W.1 and that it is the settled principle of law that any deficiency or irregularity in investigation need not necessarily lead to the rejection of evidence and thattrivial contradictions and discrepancies are insignificant, as such, she prays for appropriate punishment.

21. Submission of defence :

a. The learned counsel for the accused Nos. 1 and 2,Sri

V.J.M.Lohiya garu refuting the arguments advanced by the learned

APP and inter alia maintains that :- the testimony of P.W.1 suffers from the vice of improvements, which strikes the very substratum of the prosecution case, P.W.1 did not state either in Ex.P.1 or in 161 (3) Cr.P.C statement the omission pointed out during cross examination nor P.W.1 offered any worthwhile reason for such omissions, it is settled law that the omission of important facts 11 either from Ex.P.1 or from section 161 (3) Cr.P.C statement diminishes the credibility and trustworthiness of the witness PW.1 and that, the investigation claimed to have been carried out by

P.W.7 suffers from legal infirmities. Thus, by saying so, he tried to draw the attention of this court that there is no clinching evidence against A1 and A2 for believing their involvement in the case alleged and hence, prays for their acquittal.

b. On the otherhand, Sri P.Murali Krishna garu, the Learned counsel for Accused No.3 forcefully contended that there is no incriminating evidence against A3 and none of the prosecution witnesses have any acquaintance with A3 and that nothing was attributed A3 and there was no involvement of A3 in the commission of offence and he is no way concerned with the allegations of prosecution witnesses, thereby he is entitled for clean acquittal.

22.As per prosecution, A1 has cheated and deceived him and also dishonestly induced to part with money and thereby committed offence punishable under Section 420 of I.P.C. In the wake of the aforementioned evidence coupled with material on record, it is to be seen whether the ingredients contemplated under section 420 IPC are available in full measure in the case on hand. After having gone through the evidence let in by the prosecution, what emerges from the testimony of PW1 that, A1 was got introduced through PW3 and by believing the words of A1 that his aunt by name Nirmala Kumari is working in Customs Department and he with her help facilitate for providing two wheelers and four wheelers without tax, claimed to 12 have given Rs.23 lakhs in different modes. No doubt, PW3 has testified that A1 made PW.1, PW.2 and LW2 to believe his words and given an amount of Rs.23 Lakhs in June and July, 2014 in his presence to A1, however, thereafter neither A1 nor other accused provided the vehicles as promised nor returned the amount. PW2 also claims that on the promise made by A1, PW1 arranged Rs.23 lakhs in his presence partly in cash and through bank account deposits wherein he scribed the challans. PW4 claims that he accompanied PW1 to AXIS bank while he was doing online transaction for transferring the amount to the account of A1. What needs to be looked into for appreciating the case of prosecution is that whether the amounts allegedly sent through online to the account of A1 is only for the purpose of getting the cars under Tax exemption, as promised by A1.

23. Incidentally, although it is the contention of the prosecution that A1 on a false promise to offer vehicles at lower price and without any tax with the help of his maternal aunt who was working as Customs Officer and had obtained Rs.23,00,000/-, but there is no material in his report covered by Ex.P1 or in his evidence before the court that, about the name of the person to whom, A1 has got acquaintance .

24. Whether the inordinate assertions made by P.W.1 during chief examination which are not cropped up either in Ex.P.1 or in 161 (3)

Cr.P.C statement negate the substance and salience of the case of 13 the prosecution.In the case on hand, the omissions pointed out by the learned counsel for the accused were not reflected either in

Ex.P.1 report or in 161 (3) Cr.P.C statement pertains to P.W.1. In this background, I need to extract the material portion of the cross examination of crucial witnesses for better appreciation.

25. PW.1 candidly admitted in his cross examination that he does not know the name of aunt of A1 and that nowhere in his complaint, he mentioned the date and time when A1 made him believe with his words. He further admitted that he does not remember when and where PW.3 introduced A1 and that he did not mention the date, place and time particulars when and where he questioned A3 for return of the amount. He categorically admitted that he does not remember the date and time when he enquired about the whereabouts of the accused. It is quite vivid that P.W.1 did not state the aforementioned facts before the police iin his statement 161(3) Cr.P.C. Therefore, his evidence has no good and probative significance.

26. PW2 in his cross examination has admitted that he did not mention the date and time when he accompanied PW.1 and asked A1 for return of the amount. He further admitted that the area and door number particulars of A1 are not mentioned including the relationship between the accused. Thus, in the absence of any cogent proof showing that cash was given to A1 by PW1 in his presence, the claim of prosecution cannot be acted upon.

14 27. It is no doubt true that, from the material brought on record, it is evident that, A1 is the prime accused in the present case and that the very claim of PW.1/defacto complainant that PW.3, who is his close fried introduced A1 to him. Surprisingly, there is no whisper about his presence when the accused made PW1 to believe about the nature of job of Vimala Kumari, including his presence at the time of exchanging cash between the accused and

PW1. What PW.3 , in his cross examination, admitted that, he was not present when A1 made believe PW.1 that his aunt can get vehicles at lesser price than market price and that, he does not know the particulars and whereabouts of aunt of A1 and that, he did not mention the mode of transaction of Rs.23,00,000/- and that he did not make any phone calls to the accused. It is the settled law that the version given by the witness in the court is different from the former version, the witness can be branded as untrustworthy witness.

28. PW4 also in his cross examination has admitted that he has no personal acquaintance with the case facts and he only came to know through PW1 . He further testified that in the month of March 2014, while PW.1 was doing on-line transaction to A1, he accompanied him to Axis Bank. Whereas, it is the clear case of

PW.1 that on 03.07.2014, he made payment to A1 through Axis

Bank. Thus, this circumstance makes me aware that P.W.4 resorted to untruth in order to help P.W.1. In the aforesaid circumstances, no credence can be attached to his testimony.

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29. It is the common phenomenon that the persons who invest huge amounts in the business enter into the written agreements and the written agreement mentions the covenants and the respective obligations to be performed by the parties to the contract. When it is the claim of PW.1 that in order to start Cars business and on believing the words of A1, he arranged Rs.23,00,000/- partly in cash and other through depositing in bank account of A1, but evidently, in the given case no written agreement is reduced into writing in between PW.1 and A1. In this regard, no plausible explanation emanated from the side of the PW.1 as to why he did not get the written agreement executed in between him and the accused with respect to the business terms. Even he did not enquire before offering amount to A1 about his particulars and his occupation.

Thus, this material purports to convey a message that the demeanor of P.W.1 is not that of a prudent man.None of the witnesses deposed about the avocation of A1. The evidence of PWs.1 to 4 nowhere manifest as to when and where they had met A1 and that when A1 made them believe. PW.1 did not advance any proof to show that he paid total amount of Rs.23 Lakhs to A1. However P.W.1 did not produce any iota of documentary evidence before this court to show that he is financially resourceful. There is no cogent evidence to arrive at conclusion whether the amounts allegedly sent through online transaction to the account of A1 is only for the purpose of getting the cars under Tax exemption. The material ommissions in the evidence of the vital witnesses can be noticed. The inconsistency found in the evidence of PWs. 2 to 4 as to their presence at the time 16 of alleged promise of A1 and mode of offering the amounts by PW.1, the possibility of their speaking before the court at the instance of

PW.1 cannot be ruled out.

30. Not only that, at one hand, PW.3 admitted that in the month of June 2015, he accompanied PW.1 to Governor Pet Police

Station and came to know about the accused, contrary to it, he himself asserted that he has no personal knowledge regarding the phone call received by PW.1 from Governorpet Police Station and he nev3er accompanied PW.1 to the Governor Pet Police Station and that he does not know, as to what A1 confessed in the Police. This part of his evidence obviously goes to the route of the prosecution case.

31. PW.7 the investigating Officer whoregistered Ex.P7- FIR is under legal obligation to investigate whether or not any such person by name Nirmala Kumari is working as Customs Officer, for attracting the element of cheating in the mind of A1 from the inception. Thatapart in his cross examination, PW7 has admitted the omissions pointed out by the accused in respect of the transaction allegedly held through bank and also through PW2 and those omissions are certainly material to the prosecution case and without there being any such material to be let-in at the earliest point of time by the prosecution witnesses, deposing the same during evidence definitely becomes an improvement.

32. In so far as the contention of the prosecution that, PW1 and PW2 have made online transactions and sent the amount to the 17 account of A1. No doubt the testimony of PW5 and PW6 coupled with

Exs.P2, P4 and P5 indicates that some transactions were held from the account of PWs.1 and 2 to the account of A1. There is also no dispute regarding the account of A1 covered by Ex.P2. What needs to be looked into for appreciating the case of prosecution is that whether the amounts allegedly sent through online to the account of

A1 is only for the purpose of getting the cars under Tax exemption.

However P.W.1 did not produce any iota of paper before this court to show that he is financially resourceful. There are no independent evidence to the alleged payment of remaining amount apart from the amount allegedly deposited in the account of A1. Except the oral testimonies of prosecution witnesses, there is no satisfactory evidence establishing the factum of their offering Rs.23 Lakhs including the date, month and year to A1 and in the absence of such concrete material that the aforesaid amounts deposited for the purpose of getting vehicles under tax exemption, though the intention of the A1 is spoken to by the witnesses, the same cannot be culminated into proof. It is for the prosecution to place all such necessary material to bring home the guilt of the accused, beyond all reasonable doubt. Accused need not prove their case, in its entirety, and it is sufficient, if they could create reasonable doubt in the mind of the court, as to the allegations made against them.

33. Even PW.7 did not make any exercise either to examine the neighbours of accused or collect the data from the cell phones of

A1 and PW.1 to see whether any such conversation held between 18 them regarding the alleged agreeement and, upon failure of A1, PW.1 demanded him for refund of amount. He did not even record separate confession of A1. It is also one of the important circumstance, for discrediting the investigation claimed to have been undertaken by PW7.

34. Turning to the next contention of accused that, there is an ordinate delay in filing the report under Ex.P.1 is concerned, according to P.W.1, he said to have approached A.1 in the month of

May, 2015 whereby A.2 to A4 threatened him that, they would not return the amount nor provide the vehicles. If that could be so,

P.W.1 being a prudent person ought to have filed a report, immediately, when he came to know that, accused is postponing the payment. P.W.1 for the obvious reasons known to him did not made any such effort. Infact, it is the case of PW.1 that, on 22.05.2015, having received phone call from SHO, Governor Pet, Vijayawada regarding the arrest of A1 in a similar offence he along with PW.1 ,

PW. 2 and LW.5 went to the Police Station, then A1 confessed about this crime in the presence of the Police. If that could be so, PW1 ought to have filed report immediately, either at the said police station , where he found the accused and made confession about the cheating or at concerned Police Station. However, he did not file report even on 22.05.2015. As could be seen from Ex.P.1, it is

dated 12.06.2015 ie 20 days after the alleged confession. No

plausible explanation offerred by Pw.1 what prevented him for not filing report on 22.05.2015 itself. It is evident from Ex.P.6-FIR at column No.8, it was mentioned that as if there is no delay. There is 19 absolutely no whisper either in Ex.P.6 report or in the evidence of

PW.1 explaining the abnormal delay in giving report. P.W.7, the investigating officer in his cross examination has admitted that, except Ex.P1, PW.1 did not file any other report, during the period

June 2014 to June, 2015, when he was allegedly asked A.1 to return the amounts.

35. Nonetheless, inspite of reference in Ex.P.1 report with respect to the filing of similar case in Governorpet P.S., and A1 confessed his guilt in the presence of PW.1 and agreed to repay the amount, but failed to pay subsequently, then only, PW.1 lodged report with police, PW7 ought to have visited the said police station, enquired the police concerned regarding so called confession of A1 as to in which crime, accused allegedly admitted the offence committed by him, by placing necessary documentary evidence.

Infact, no such exercise has been carried out in this case. From this evidence, it apparently follows that P.W.1 is not the author of the

Ex.P.1 and somebody else masterminded Ex.P.1 to fit with the case of the prosecution.

36. When PW.1 is claiming that accused involved in some other offences of Governorpet police station, PW.7/IO should have enquired in detail as to the alleged transactions and the purpose for which the amounts were allegedly transferred from the account of

PW1 to the account of A1. Unfortunately no such material is found placed on record. The way how the investigation carried out by the investigating officers, in a case of this nature, where the prosecuting 20 party have claimed cheating to a tune of Rs. 23,00,000/-, infact, has contributed, for the failure of prosecution case.

36. Indeed, it is for the Investigating Officer to examine all the issues. However, he did not do so and moreover in his cross examination, he stated that he does not know whether A1 filed

IP.109/2014 onthe file of Hon’ble I Addl.District and Sessions Court,

Machilipatnam. Where omissions are vital, they merit consideration

37. Even accepting the contents of petition, wherein A1 allegedly received amount from the victims and filed Insolvency petition, the copy of said IP filed indicates that it was filed on different grounds though some of the victims were shown as respondents. There is no mention in the Insolvency petition filed by the accused about his receiving amounts from some of the victims/prosecution witness/ defacto complainant/ PW.1 or PW.4 having promised to provide vehicles at lower price with Tax exemption. There is no nexus in between the allegations made by the prosecution witnesses against

A1 in filing of IP with that of the contents of petition filed in

Insolvency petition.

38. In the case at hand, when the accused put suggestion to

PW.1, that he procured four vehicles with its bearing numbers ie

Wagon R Car bearing No.AP 16 CN 6166, Four wheeler bearing No.

AP 16 AY 9199, Royal En filed and Jupiter Two wheeler vehicle from

A1, which he emphatically denied. In the case at hand, had the investigating officer bestowed his attention upon these aspects, certainly he would have got to know whether the crime is committed 21 or not, however all these aspects went unnoticed. This case must fail but for the perfunctory investigation carried out by PW7.

38. Likewise, in the present case, the names of A2 and A3 have surfaced in the charge sheet alleging that at first, they assured

PW.1 that A1 would return the money or provide the vehicles and that subsequent event, they threatened them with dire consequences.There is absolutely no independent or incriminating evidence against A2 and A3. The ignorance pleaded by PW7 as to the discharge of A4 itself is an indication that he failed to bestow his attention in a case of this nature where grave allegations are made involving Rupees in lakhs. Therefore basing on the unreliable and untrustworthy material which carries vital omissions in the evidence of material witnesses, no conviction can be recorded.As such, the only conclusion which need to be arrived at is that prosecution failed to prove the guilt of A1 to A3 beyond all resonable doubt. Consequently accused are entitled for acquittal.

39 . In the result, A1 to A3 are found not guilty for the offence punishable under section 420,506 r/w 34 of IPC and thereby they are acquitted under section 248(1) Cr.P.C for the said offences.

The Bail bonds of A1 to A3 shall stand cancelled after lapse of appeal period as per section 437(A) of Cr.P.C. There is no order regarding disposal of property since no property was seized and produced

before the Court.

Typed to my dictation directly on computer by the Personal Assistant, corrected and pronounced by me in open court, this the 17 th day of November, 2023.

sd/-(Smt.N.Mary)

FAC/Judicial Magistrate of First Class,

Special Mobile Court, Machilipatnam

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

PROSECUTION :DEFENCE:

PW1: P.Rama Mohan Prasad - NONE - PW2: D.Hema Kumar

PW.3: Kunapareddy Avinash

PW.4: Nukala Srinadha Rao

PW.5: P.V.Radha Krishna

PW.6: P.Ravi Kishore

PW.7: P.Uma Maheswara Rao, S.I of Police, Bandar Taluka P.S

PW.8: K.Srinivas, S.I of Police, Bandar Taluka P.S

EXHBITS MARKED

FOR PROSECUTION:

Ex.P1 : Report

Ex.P2 : Bank statement of A1-Shanmuka Rajesh

Ex.P3 : The letter issued by the Bank authorities to the SI of Police,

Bandar Taluka P.S regarding the enclosure of Bank statement of A1.

Ex.P4 : Bank authorities furnished the account statement of A1

Ex.P5 : Endorsement letter issued on 15.12.2015

Ex.P6 : FIR

Ex.P7 : The S.I of Police, Bandar Taluka P.S(PW.7) sent requisition letter to the Branch Manager, Axis Bank, Machilipatnam obtained

Bank transaction details of A1.

Ex.P8 :The S.I of Police, Bandar Taluka P.S(PW.7) sent requisition letter to the Branch Manager, HDFC Bank, Machilipatnam obtained

Bank transaction details of A1.

FOR DEFENCE: --None --

MOS marked: --NIL--

sd/-(Smt.N.Mary)

FAC/Judicial Magistrate of First Class,

Special Mobile Court, Machilipatnam

23

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, SPECIAL

MOBILE COURT, MACHILIPATNAM.

C.C. No. 180 of 2017

1. Offence : 12.06.2015

2. Filing: 12.06.2015

3. Apprehension of Accused : 22.08.2017

4. Commencement of Trial : 05.02.2020

5. Closure of Trial : 02.08.2023

6. Judgment: 17.11.2023

7. Complainant: The State : Sub-Inspector of Police, Bandar Taluka Police Station,Machilipatnam

8. Name of accused : Sannala Shanmukha Rajesh(A1) Sannala Venkata Srinivas(A2) Sannnala Rama Krishna (A3) all R/o Javvarpeta, Machilipatnam

9. Offence:U/Sec.420,506 r/w 34 of IPC

10. Plea of accused : Pleaded not guilty

11. Finding: Found not guilty

12. Sentence or Order : In the result, A1 to A3 are found not guilty for the offence punishable under section 420,506 r/w 34 of IPC and thereby they are acquitted under section 248(1) Cr.P.C for the said offences. The Bail bonds of A1 to A3 shall stand cancelled after lapse of appeal period as per section 437(A) of Cr.P.C. There is no order regarding disposal of property since no property was seized and produced before the Court.

13. Explanation of Delay : After appearance of A1 to A3, copies of documents were furnished to them as contemplated U/Sec.207 Cr.P.C on 21.01.2020 and they were examined U/sec.239 Cr.P.C. for the offences U/s.420,506 r/w 34 of IPC. On 12.03.2020, P.Ws.1and 2 were examined and Ex.P1 was marked on behalf of PW.1. On 22.06.2023, PWs.3 and 4 were examined. On 22.06.2023, PW.5 was examined and got marked Exs.P2 and P3. On 30.06.2023, PW.6 was examined and Exs.P4 and P5 were marked. On 07.07.2023, PW.7 was examined and got marked Exs.P6 to P8. On 02.08.2023, PW.8 was examined on the same day the prosecution evidence was closed. On 02.08.2023, the A1 to A3 were examined U/s.313 Cr.P.C, for which, they denied and reported no defence evidence, arguments heard on 10.11.2023 and Judgment pronounced on 17.11.2023.

sd/-(Smt.N.Mary)

FAC/Judicial Magistrate of First Class,

Special Mobile Court, Machilipatnam

Copy submitted to: The Hon’ble I Addl. District & Sessions Judge, Krishna, Machilipatnam.

MC.26 of 2019 1 Dt:17.11.2023

IN THE COURT OF THE JUDL.MAGISTRATE OF I-CLASS

SPL.MOBILE COURT FOR TRIAL OF CASES UNDER P.C.R.ACT–CUM–

IX METROPOLITAN MAGISTRATE, MACHILIPATNAM.

PRESENT : SMT. N.MARY,

Spl.Judl.I-Class Magistrate, For trial under Proh. & Excise Act, Machilipatnam. FAC JMFC Special Mobile court, Machilipatnam

Friday, this the 17 th day of November, 2023

Maintenance Case No.: 26 o f 2019

Between:

1. Korepalli Naga Sowjanya, W/o.Venkata Srinivasa Rao, age 27years,

2. Korepalli Jayavardhan, S/o.Venkata Srinivasa Rao, age 06years,

3. Korepalli Lakshmi Dakshayani, D/o.Venkata Srinivasa Rao, age 05 years, (2nd and 3rd petitioners being minor Rep., by their natural guardian, 1st Petitioner) all are R/o D.No.1/64, Gopuvanipalem, Bandar Mandal)

...Petitioners 1 to 3

Korepalli Venkata Srinivasa Rao, S/o. Late Koteswara Rao, Hindu, age 35 years,

R/o.Akumarru Laku, Guduru Mandal ...Respondent

This petition is presented before me on for final hearing in the presence of Sri M.Srinivasa Perumallu, Advocate for Petitioners and Sri.K.N.Srinivasa Rao, Advocate represented the case of Respondent .Upon perusing the material available on record, and having stood over for consideration till this day, this Court made the following:

O R D E R

The instant application has filed under Section 125 of

Criminal Procedure Code (for short “the code”), by the petitioner seeking maintenance, at the rate of Rs.5,000/- per month to the 1st

Petitioner and Rs.3,000/- each to the 2nd and 3rd Petitioners from the respondent, from the date of filing of this petition and to grant costs of the petition.

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02. A brief resume of the contents of the petition filed reads thus :

a).The respondent is the husband of the 1st Petitioner and father of the Petitioners 2 and 3. The marriage of the 1st Petitioner and the Respondent was performed on 13.11.2011 at Dwaraka Tirumala Sri

Venkateswara Swamy Temple, as per Hindu rites. At the time of the marriage, her parents gave Rs.20,000/- towards Pasupu Kumkuma and the same was handed over to the Respondent and his mother to improve the same and thereafter the parents of the 1st Petitioner gave house hold articles, worth of Rs.20,000/- to the 1st Petitioner while she was going to lead marital life. They lived together happily for a period of seven years and they are blessed with two children by name Korepalli Jayavardhan and Korepalli Lakshmi Dakshayani, who are aged about 6 years and 05 years respectively.

b. The respondent is addicted bad vices. After that, the respondent started harassing the 1st petitioner both physically and mentally demanding to bring additional dowry of Rs.50,000/- from her parents. She informed the same to her parents and the matter was placed before the elders and they tried to convince the respondent and his mother by saying that the parents of the 1st Petitioner are not having financial capacity to fulfill his illegal demand but they did hear their words and used to continue his attitude towards the 1st Petitioner.

c) She further alleged that, the matter stood thus, the respondent and his mother beat her indiscriminately with hands and kicked her with legs and necked her out from the marital house by

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demanding her to bring additional dowry from her parents and his mother threatened her with dire consequences that ‘not to lodge any complaint before the police station’ and in case she filed report, she would face serious consequences and thereby the respondent and his family members harassed the 1st Petitioner both physically and mentally.

The petitioners and her children were necked out by the respondent and his mother in the month of March, 2017. There is no other go, the 1st

Petitioner came to her parents’ house at Pedana, narrated the entire incident to her parents and since then, they have been living with her parents. After three months, negotiation between the 1st Petitioner and the respondent was done by the village elders to lead the marital life, then, they lived for a period of one month. However, there was no change in the attitude of the respondent, he insisted her to bring money from her parents’ house and harassed her. The parents of the Petitioner with the assistance of the elders tried to pacify the matter, but in vain.

She lodged a complaint against the respondent and his family members

before the police station, Pedana.

d) She further stated that, she has no movable or immovable property and she is unable to maintain herself and the two children. The petitioners are living on the mercy of her parents. She underwent operation to the left side breast cancer and she has been continuing to take medicines to the decease of cancer. The respondent has not been paying any single pie to her for the medication. But the parents of the 1st petitioner spending huge amount for her treatment including operation expenses. On the other hand, the respondent is having own house

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situates at Akumarrulaku, Guduru Mandal and he also has been doing tiles laying work and getting an amount of Rs.30,000/- per month the value of the thatched house and site is more than two lakhs and thereby the respondent is having capacity to maintain the 1st Petitioner and her two children. Hence, the petition.

03. On receipt of notice from the Court, Respondent filed counter opposing the petition and contends inter-alia, while admitting his relationship with the petitioners that, no dowry and presentations, as alleged were given by the parents of 1st petitioner and that, the he never subjected her to physical and mental cruelty, demanding additional dowry.

i) He submits that, the Petitioner is arrogant in character and she is more fond of leading fascinating life rather than family life and she is more fond of living modern and luxurious and sophisticated life and at the same time respondent is man of primitive person having more respect for elders and at the same time he is more fond of living marital life with the petitioner with love and affection but at the same time petitioner had been behaving otherwise. The petitioner had been moving recklessly without any respect towards elders and she is more fond of moving with high-class people and she never respect the marital home. He further submits that, the Petitioner is very fond of using cell phone, most of time she used to talk with other persons, when the respondent asked, she starts bickering with respondent.

ii) While the matter stood thus, the petitioner eloped with one Muchu Naga Malleswara Rao about 03 years back and thereafter

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she quit and left her marital home with her baggage including all valuable articles, with her paramour, then respondent visited the house of her parents for petitioner and her parents replied that “ you can do as you like and we never bother about her”, and thereafter the respondent searched for here and there, but without informing anything to this respondent, she left her children and went away and although he requested her parents to send the Petitioner to his marital home but but they did not honour the legitimate request of respondent.

iii) The respondent further submits that, though he has been looking after his children with love and affection but the female child being a small kid used to ask “amma amma” and ignored the food also, as such , he sent his daughter to her mother, but the male child i.e., 2nd

Petitioner has been in care and custody of this respondent.

v) The Petitioner is more fond of fascinating life rather the family life and has been fornicating with her paramour ignoring the decency and decorum and prestige of family and also ignoring the welfare of tender age children left them their destiny, even then also knowing fully well indifferent and other wise character of Petitioner, this respondent, keeping in view of welfare and future of tender age children, has been trying to get the petitioner to his marital home and also mediation of mediators for reunion also yields no results, irked over the indifference attitude of petitioner and her parents, having no option, the respondent filed Restitution of Conjugal rights Under section 9 of Hindu Marriage

Act, against this Petitioner before Additional Senior Civil Judge at

Machilipatnam, vide HMOP.No.28 of 2020 and the same was allowed.

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vi) He further submits that, the 1st Petitioner is having sufficient means to maintain herself and she is also doing money lending business and getting interest of Rs.10,000/- per month she is also doing vegetable business getting Rs.5,000/- per month and she also doing saris business getting Rs.5,000/- per month in total she getting Rs.20,000/- per month. The respondent is agricultural season coolie and he attends work and he cannot attend coolie work in all days in a work season as he is suffering from ill health and body weakness and that the respond has a duty to look after the welfare of his old age parents. He further submits that, there is no negligence on the part of the respondent as the 1st Petitioner hugely dissented the respondent and staying at her parent’s house and did not come back, though the respondent totally vexed with her behaviour but still he is having love and affection towards

Petitioners and he is ever ready to join with the Petitioner No.1 lead happy marital life. The respondent is attending agricultural works on daily wages and maintaining him and his parents and he has no movable and immovable properties of his own. With these submissions, he prays to dismiss the petition.

4. During the course of enquiry, the 1st petitioner herself is examined as P.W.1, however, marked no documents. The respondent did not choose to examine any person on his behalf and marked no documents, despite conditional order. However , both petitioner and respondent have filed affidavit of assets and liabilities in compliance of the guidelines of Hon’ble Supreme Court Rajnesh Vs. Neha and

Another, (2021) 2 SCC 32.

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5. I have heard the learned counsels on either side. The Ld. Counsel

for petitioner relies upon the following judicial pronouncements:

a. Rajathi Vs C.Ganesan reported in 1999(6) SCC 326, wherein it

was held that, burden lies on the husband to prove that he has no sufficient means to discharge his obligation or he did not neglect or refuse to maintain sufficient means to discharge his obligation or he did not neglect or refuse to maintain her statement by wife that she was unable to maintain hereself, held would be enought-it would be for the husband to prove otherwise.

b. Anju Garga and another Vs.Deepak Kumargarg reported in 2022

SCC Online SC 1314, wherein it is held that, the husband is required to earn money even by doing physical labout and provide maintenance to the wife and to the minor children.

c. Maddina Subbamma Vs. Maddina Venkateswarlu and state reported in 1992(2) ALT 433, their Lordship held that claim for maintenance by wife - Decree for restitution of conjugal rights not an absolute bar for consideration of an application under section 125 of Cr.P.C., d. Sunita Kachwaha & Ors, Vs. Anil Kachwaha reported in (2014) 16 SCC 715 , it was held that, Minute details of matrimonial dispute need not be considered.

e. Gollapudi Kishore Babu Vs. Gollapudi Rebaka, decided on 16.02.2021, wherein it is held that, the allegation of adultery cannot be viewed lightly, having regard to the social stigma, it attaches to an individual and the said allegation cannot be permitted to be made without there being any foundation or basis.

f. Vijaykumar Ramachandra Bhate Vs. Neela Vijay Kumar Bhate, reported in 2003(6) SCC: it is held that leveling disgusting accusations of unchastitty and indecent familiarity with a person outside wedlock and allegations of extramarital relationship constitute grave assault on the character, honour reputation status as well as the health of the wife. Such allegations made in written statement or suggested in the course of examination and by way of cross-examination constitute cruelty and to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband.

g. Chaturbhuj Vs. Sitabai reported in 2008(2) SCC 316, the Hon’ble Apex court held that “ the object of maintenance proceedings is not to punish a person for his past neglect, but no prevent vagrancy and destitution of a deserted wife by providing her food, clothing and shelter by a speedy remedy,. Section 125 of the Cr.P.C., is a measure of social justice especially enacted to protect women and children, and falls within the constitutional sweep of article 15(3), reinforced by Article 39 of the Constitution.

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h. Bhuwan Mohan Singh Vs. Meena&Ors reported in (2015) 6 SCC 353, wherein it was held that, the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able bodied, and could not avoid his obligation.

i. Reema Salkan Vs. Sumer Singh Salkan reported in (2019) 12 SCC 303, wherein it was observed that, the Court must have due regard to the standard of living of the husband, as well as the spiraling inflation rates and high costs of living.

j. Vidhyadhar Vs. Manikrao & Another reported in 1999(3) SCC 573: wherein it was held that, if a party abstains from entering the witness box, an adverse inference would arise against him.

06. The point that arises for consideration is that:-

Whether the petitioners are entitled for maintenance

from the respondent as prayed for @5,000/- to the first

petitioner and Rs.3,000/- to the 2 nd and 3 rd petitioners

each invoking the provisions of section 125 Cr.P.C. ?

07. It is not in dispute regarding the marriage of PW1 with respondent. Petitioner Nos.2 and 3 are none other than son and daughter of 1st petitioner and respondent. The contention of the 1st petitioner is that her 1st husband died and later, she is married to respondent in the year 2011 as per Hindu Caste customs and during their wedlock, she blessed with petitioners 2 and 3 and later, the respondent addicted to vices and started harassing her demanding to bring additional dowry of Rs.50,000/- from her parents and harassed her both physically and mentally and though the matter was placed

before elders, he did not heed their words and used to continue his

harassment towards the 1st Petitioner and necked her out from the house and neglected their welfare. Her main grievance is that when she underwent surgery of her brest cancer and even she has been under continuous medication, the respondent has not been paying any single

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pie to her and did not lookafter the welfare of her children, hence, this petition seeking for their hand to mouth feeding, claiming maintenance, by taking shelter U/Sec.125 of Cr.P.C.

08. What the respondent contention is that, the parents of 1st petitioner never given any dowry including household articles to PW1, as contended. He also denies the allegation of 1st petitioner that, he subjected her to physical and mental cruelty, demanding to bring

additional dowry of Rs.50,000/-. His main contention is that the

Petitioner is arrogant in character and she is more fond of living luxurious life so also using cell phone and most of time, she used to talk over phone with other persons, ignoring the welfare of tender aged children and that she used to make bickerings with respondent. He further maintained that, at about 03 years back, without having regard about the welfare of tender aged children and prestige of family, she left her marital home with all her valuable articles and eloped with one

Muchu Naga Malleswara Rao. When he approached her parents and requested them to send the Petitioner to his marital home, but she did not heed his request. He further would contend that the 2nd Petitioner has been in his care and custody and that out of love and affection on 1st petitioner, he filed a petition for restitution of conjugal Rights vide

HMOP.No.28 of 2020 and the same was allowed, however, she did not

join him and left his company voluntarily without any just reason and that she can not claim maintenance 09. It has to be seen whether the petitioners able to justify their claim for maintenance. It is the contention of petitioners that they are

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entitled for grant of maintenance as they were neglected by the respondent. The sum and substance of the argument of the learned counsel for the petitioner is that respondent has no inclination to lead marital life with P.W.1 and his intention is only to walk out from the marital relationship.

10. Per contra, the learned counsel for the respondent inter alia maintains that P.W.1 and Respondent have happy days only for some time, thereafter P.W.1 never showed any conjugal kindness towards respondent and that P.W.1 has no transparent sincerity to sustain the marriage and that the matter was placed before the elders, however failed to yield any result and that she left the matrimonial home on her own volition and eloped with one Nageswara Rao and leading adulterous life, therefore she is not entitled to claim the monitory reliefs. He would further contend that she has properties and she is getting income out of it and that she is able to maintain herself and her child.

11. As said, there is no controversy with regard to the relationship in between the 1st petitioner and respondent. Her testimony is that the respondent used to harass her by demanding to bring Rs.50,000/- as additional dowry and necked her out from his society, and having no other go, she joined with her parents along with 3rd petitioner and placed the matter, before the caste elders. Even though PW.1 was subjected to extensive cross examination on behalf of respondent, no much material is elicited to throw light on his defence.

12. To appreciate the contention of 1st petitioner, whether or not, cash and gold, as alleged was given towards dowry to the respondent,

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what needs to be looked into is whether parents of PW1 has got the capacity of offering the dowry of gold as alleged. Respondent emphatically had denied about the dowry and presentations allegedly given by the parents of petitioner. In the instant case, she could not examine either parents or any elder to her marriage to prove that, the dowry and presentations as contended by her are allegedly given. She did not place convincing evidence that her father has sufficient financial affluence to part with the dowry amount, since she admitted in her cross examination that her father has no properties. In any view of the matter as there is no legal and acceptable positive evidence establishing the fact that, the dowry and presentations given to respondent, it is unsafe to believe that, her parents parted with the said amount as deposed by her.

13. In the instant case, what has to be seen is that, whether there is any harassment towards the 1st petitioner by the respondent on any ground, which made her to leave the company of Respondent and living separately along with her child/P3. Admittedly, their marriage was held in the year 2011 and she joined with respondent for leading marital life and lived with him till 2017. Had there been any harassment during her 6 years of her family life as contended by P.W.1, she could have stated at least one or two specific instances and as to manner of cruelty.

But, no such evidence is brought on record. The fact remains is that, she did not file any criminal case against the respondent during 6 years alleging that, she was subjected to harassment in the hands of respondent demanding additional dowry. Except her oral assertion that

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she placed the matter before elders, she did not named before whom the mediations held and on what ground the so called elders admonished the respondent. She neither chosen to examine her parents or elders.

That apart, no any complaint was made at the relevant point of time regarding such harassment. In the absence of making any such efforts, her contention that the respondent harassed her for want of additional dowry, do not gain any significance.

14. At the same time, I respectfully disagree with the contention of Ld. Counsel for the respondent that the Petitioner is arrogant in character and she is more fond of living modern and luxurious and sophisticated life. For the reason that, as per the evidence available on record, PW.1 was born and brought up in lower middle class family and that, as admitted by either parties, the respondent is a daily wage worker, however, she had lead her conjugal life with the respondent for more than 6 years and also blessed with two children. Had she really fond of luxurious life, she would not have lived and lead normal family life with respondent for 6 years.

15. Notably, the scope of enquiry in the maintenance case U/Sec.

125 Cr.Pc is very limited and it is not only necessary for the court to go into the matrimonial disputes between the parties in detail but also cannot be gone into in this petition. It has observed by the Hon’ble

Apex court in Sunita Kachwaha & Ors, Vs. Anil Kachwaha1 that, ‘minute details of matrimonial dispute need not be considered’.

. (2014) 16 SCC 715 1

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Therefore, it has to be seen whether the petitioners able to justify their claim for maintenance.

16. The sum and substance of the argument of the learned counsel

for the petitioner is that Respondent has no inclination to lead marital

life with P.W.1 and that he never cared about the welfare of children and did not even provide expenses towards medication of PW1. Per contra, it is the case of the respondent that the 1st petitioner herself deserted the society of Respondent, on account of her adamant attitude and in view of extra marital relation with one Muchu Naga Malleswara Rao and that inspite of the best efforts made by him to get back her in accordance with law, she did not join, for the obvious reasons known to her. PW.1 admitted about the proceedings of restitution of conjugal rights. But, no worthwhile evidence brought on record, what prevented PW.1 not to join the respondent even after court proceedings. This circumstance drops an hint that P.W.1 has no transparent righteousness to sustain the marriage.

17. The second limb of the argument canvased by the learned counsel for the respondent that the petitioner is very fond of using cell phone and most of time she used to converse with others and that she has been developed extra- marital affair with one Mutchu Naga

Malleswara Rao and eloped with him ignoring the welfare of tender aged children. It is the settled law that mere pleading does not survive, unless it is substantiated. Except his bald allegation, he did not put- forth any cogent evidence to prove his allegations. Had the respondent got any material showing that, PW1 used to chat with him , in the form

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of documentary evidence, his case could have been appreciated and in the absence of any such evidence, the allegations made by respondent against PW1, do not merit for consideration.

18. In this context, the Ld. Counsel for petitioner placed heavy reliance upon the decisions of Hon’ble Supremen Court in the case of

Vijaykumar Ramachandra Bhate Vs. Neela Vijay Kumar Bhate 2 , it is held that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra- marital relationship constitute grave assault on the character, honour reputation status as well as the health of the wife. Such allegations made in written statement or suggested in the course of examination and by way of cross-examination constitute cruelty and to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband. In another case of Hon’ble High court of

A.P. between Gollapudi Kishore Babu Vs. Gollapudi Rebaka, decided on 16.02.2021, it was observed that, the allegation of adultery cannot be viewed lightly, having regard to the social stigma, it attaches to an individual and the said allegation cannot be permitted to be made without there being any foundation or basis.

19. In the given case, except attributing unchastity to PW.1, no cogent evidence placed before the court to substantiate his contention that she developed extra marital relation with said Muchu Naga . 2003(6) SCC 2

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Malleswara Rao and she eloped with him. Thus, it is highly unsafe to believe that, she has got illegal contact with aforesaid person. Perhaps respondent having developed suspicion against PW1, might have harassed her on that ground, cannot be ruled out. From this material, it can be inferred that respondent resorted to falsehood in order to get rid of the maintenance.

20. Whatsoever the reasons, it manifests that the relationship in between the parties was strained beyond repairs. It is pertinent to note that though the 1st petitioner claims maintenance to her son/2nd petitioner, admittedly and evidently, the 2ndpetitioner has been residing with her father respondent. Therefore, she is not entitled to claim maintenance for 2nd petitioner. Primarily, it is not in dispute that the 3rd petitioner is a minor and she is a student. In the given case, if indeed Respondent has love and care towards P.W.1 and his child, by all means, he would have been sending the amounts to them for maintenance irrespective of the matrimonial bickering among them, but admittedly, no sustenance was provided to them by respondent. Thus, this court of the considered opinion that the petitioners 1 and 3 were neglected by the respondent. In such circumstances, the respondent had no other go, except to provide the minimum necessities of food, clothing and shelter to the petitioners being husband of 1st petitioner and father of 3rd petitioner and he cannot run away from his legal obligation of maintaining them, till their marital tie broken down, in accordance with law.

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21. What is required to be seen is whether the respondent has got sufficient means to maintain his wife and children. Literally either parties failed to place any documentary proof to substantiate their respective contentions with regard to their income. Admittedly, no documentary evidence is placed by the petitioner to prove that she was suffering with said disease cancer at any point of time. Though she was stated to be treated at hospital and also undergoing continuous medication, but no sort of medical evidence has been produced in support of such claim. It is the contention of learned counsel for the petitioners that, respondent having sufficient means to provide food, shelter and other basic necessities, did not pay even a single pie from the date of their separation. The record indicates that, the respondent has not paid any amount to the petitioners from the date of their living separately. The onus is on the husband to establish with necessary material that, there are sufficient grounds to show that, he is unable to maintain the family and to discharge his legal obligations, for reasons beyond his control. But not only he failed to explain his unable circumstances but failed to let in satisfactory evidence, to say that, the 1st petitioner is able to maintain herself and her child, who is prosecuting her studies.

22. Needless to reproduce Sec.125 of Cr.P.C., whereunder wife, children and parents are entitled to maintenance from a person having sufficient means, neglects or refuses to maintain. The basic canon of law that it is the sacrosanct duty of the husband to provide financial

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support to the wife and to the minor children. In this regard, it is apt to refer the reliance placed by the Ld. Counsel for petitioner in a case between Anju Garga and another Vs.Deepak Kumargarg 3 , would be fruitful, wherein it was held that, “The husband is required to earn money even by physical labour, if he is an able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute.” Yet, the object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves as was held by the Hon’ble Apex court in

Chaturbhuj Vs. Sitabai4.

23. In the instant case, it is not the case of the respondent at any point of time that, he is suffering from ill-health and not doing any work.

Therefore, as long as, the respondent is hale and healthy and able to do work, he is expected to maintain his wife and children, who are unable to maintain themselves. The first and foremost duty of the husband, is to maintain wife and children.

24. The next question for consideration is, as to what is the quantum of maintenance to be granted in favour of the petitioners ?

24.1. Although the 1st petitioner claimed that the respondent is having own house situated at Akumarrulaku, Guduru Mandal and he has been doing tiles laying work and getting an amount of Rs.30,000/- per month and that he is having thatched house and site worth of two 3.2022 SCC Online SC 1314 4 2008(2) SCC 316

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lakhs, but there is no document to show that the said house and site stand in the name of the respondent and deriving income on the properties. Petitioner contended that the respondent is attending Tiles laying works. Yet, the respondent, in his counter, fairly stated that he is an agricultural coolie and he attends work in all seasonal days. As such, treating respondent to be a casual laborer, the income of respondent could be adjudged at Rs.500/- per day which comes to

Rs.15,000/- per month. Having regard to the facts and circumstances, necessities of the petitioners, present day of cost of living, responsibilities of the respondent towards his parents, and after taking into consideration of all other facts and circumstances, in the given case,

I am of the considered view that, awarding an amount of Rs.3,000/- to the 1st petitioner and Rs.1,000/- to the 2nd petitioner, would appears to be fair, adequate and reasonable. In view of the aforementioned legal positions, the point is answered accordingly.

25. IN THE RESULT, the petition is partly allowed and the

Respondent is hereby directed to pay a monthly maintenance of

Rs.3,000/- to the 1st petitioner and Rs.1,000/- to the 3rd petitioner, i.e., totaling Rs.4,000/- [Rupees four thousand only] towards their maintenance from the date of the Petition i.e., on 25.03.2019. Further the Respondent is directed to pay the awarded maintenance to the

Petitioners by 07th day of every month, either directly or depositing the same in the bank account of the Petitioners or by depositing the same in the Court, so as to enable the same to be given to the Petitioners. The respondent further directed to pay arrears of maintenance within three

MC.26 of 2019 19 Dt:17.11.2023

months from the date of this order. However, the relief sought for 2nd

Petitioner concerned is herein dismissed. No costs.

Typed to my dictation directly by stenographer on the computer, corrected and pronounced by me in open court on this the 17 th day of November, 2023.

FAC/Judicial Magistrate of First Class,

Special Mobile court,Machilipatnam.

Appendix of Evidence

Witnesses Examined

For Petitioners:

PW.1: Korepalli Naga Sowjanya

For Respondent: None

Documents Marked on both sides

// NIL//

FAC/Judicial Magistrate of First Class, Special Mobile court,Machilipatnam

Note: Office to furnish copy of this order free of cost to petitioner.

FAC/Judicial Magistrate of First Class, Special Mobile court,Machilipatnam.

MC.26 of 2019 20 Dt:17.11.2023

MC.26 of 2019 21 Dt:17.11.2023

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.1

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS FOR TRYING PROHIBITION AND EXCISE OFFENCES,

MACHILIPATNAM.

Present : Smt.N.Mary,

Spl. Judl. Magistrate of First Class, for trying P & E offences, Machilipatnam.

Wednesday, this the 16th day of April, 2025

Calender Case No.1133/2020

Between : State :Station House Officer, Mahila Police Station (Cr.No.42/2019) …Complainant

And

A1- Bhupathi Joji Babu, s/o Sundara Rao (late), age 35 years.

A2- Bhupathi Madavi @ Chekka Madhavi, w/o Joji Babu, age 32 years.

…..Accused 1 & 2

( Both are the residents of Apartment Flot No.F2, Opp.Nirmala convent, Machilipatnam, Bandar Mandal ).

This case is coming before me for final hearing on 09-04-2025, in the presence of learned Assistant Public Prosecutor for the Complainant and Sri D.Pothuraju, Learned counsel for Accused and upon hearing both sides and the matter having stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

The Sub-Inspector of Police, Mahila P.S., filed charge sheet against Accused 1 and 2 in Cr.No.42/2019 of Mahila P.S., for the offence under sections 498-A, 494, 201 of Indian Penal Code, 1860 and Sec.3&4 of

D.P.Act .

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.2

02. The brief allegations leveled against A1 & A2 are as follows:-

(a)That on 06-10-2019, the complainant/LW1 Bhupathi

Chinni lodged a report with the Mahila Police stating that, on 21.06.2004, her parents performed her marriage with one Bhupathi Joji Babu/A1, at the time of marriage her parents gave cash of Rs.1,00,000/- towards Pasupu

Kumkuma and household articles worth of Rs.25,000/-. After marriage,

LW1 and A1 lead happy marital life for a considerable period and they were blessed with two children during their wed-lock. At about four years back, A1 performed another marriage with Bhupathi Madavi @ Chekka Madavi / A2 who is working in his office, and that, A1 and A2 are living at Apartment Flot

No.F2 located opposite Nirmala convent, Machilipatnam and on 11-11- 2016, A2 delivered a male child and that, A1 and A2 entered their names in the hospital register as wife and husband. At about 5 months ago, LW1 came to know about the 2nd marriage of A1, when LW1 questioned A1 about his 2nd marriage, A1 shouted against LW1 that he performed marriage and did it without evidence, to which, A1 came to the house in drunken state and beat LW1 and demanded an amount of Rs.10 lakhs for development of finance.

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.3

(b) Basing on the above report the Sub-Inspector of Police registered a cae in Cr.No.42/2019 under Section 498-A, 494 of IPC and

Section 3 and 4 of D.P. Act. During the course of investigation, LW9-

Ch.Manikanta, WSI, Mahila P.S, added the section 201 IPC. The Police commenced the investigation wherein LW1 to 8 were examined in the course of investigation, recorded the statement of complainant (LW1) and other witnesses (LW2 to 8) and served Notice under Section 41 (A) of

Cr.P.C., on A1 and A2 and after completion of the investigation the Sub-

Inspector of Police filed final report against A1 and A2.

03.The case is taken on file for the offence U/s. 498-A of IPC and

Sec.3 & 4 of D.P.Act against A1 and further Sec.494 of IPC against A1 and

A2 and summons were ordered.

04. After appearance of the accused before the court, copies of documents were furnished as required U/s 207 Cr.P.C.

05. A1 and A2 were examined U/Sec.239 of Cr.P.C., by explaining the accusations leveled against them. Charge for the offence under Section 498-A of IPC against A1 and charge u/sec. 494 of IPC against A1 and A2,

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.4 have been framed, read over and explained to A1 and A2, for which, they pleaded not guilty and claimed to be tried.

06. In order to prove the guilt of accused, prosecution has examined

PW1 to PW3 and got marked Ex.P1 to P5. None was examined and no documents marked on behalf of the accused .

07.After completion of prosecution side evidence, accused were examined U/Sec.313 Cr.P.C. about the incriminating material elicited from the evidence of prosecution witnesses, for which, their plea is of total denial and reported no defence evidence.

08.Heard arguments on both sides. Perused the record.

09. Now the point for consideration is :

" Whether the prosecution has established the guilt of

accused 1 and 2 for the offence under Sections 498-A, 494 of IPC , beyond reasonable doubt ?"

P O I N T :

10. Case of the complainant, as is culled out from the material brought on record is that, A1 having married PW.1 lawfully, without obtaining any divorce from any court of Law, had married A2 and also begot

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.5 children and that, A1 subjected her to cruelty by demanding her to give

Rs.10 lakhs for development of business and thereby, committed the offences U/S.498-A and 494 of IPC.

11. The prosecution, in order to prove the complicity of the accused, examined PW1 to P.W.3 got Ex.P1 to Ex.P.5 .

12. The defacto complainant as well as wife of A1, got herself examined as PW1 and she has given specific evidence before the court that, her marriage with A1 was solemnized on 21-06-2004, after the marriage, PW1 and A1 lead happy conjugal life and they had blessed with two children. PW.1 further deposed that, at the time of marriage, on the demand of accused, her parents had given an amount of Rs.1,00,000/- towards pasupukumkuma besides giving household articles worth of

Rs.25,000/-. PW1 further deposed that, A1 used to run finance business at

Machilipatnam under the name and style Vijayawada Finances, and that, in the year 2016, when she visited the institution, one person present thereat and informed her that, "just the owner of the institution and his wife went ఇప్పు�డే భార్యా�భర్త�లు ఇద్ద�రు బై�టకి వెళ్లా� రు), on enquiry, she was informed that out" ( the said lady was Chekka Madhavi/ A2. PW1 further deposed that, having

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.6 ascertained the details of A2 and has been living near Nirmala convent, she along with her sister and brother-in-law went to the house of A2 and found A1 also present there and when questioned both of them, but they have quarreled with PW.1 and A1 arrogantly uttered that, there was no evidence as to prove his marriage with A2. PW.1 further stated that she placed the matter before the village elder, wherein A1 admitted his marriage with A2 and having two children to them as well. PW.1 categorically deposed that, A1 stopped to visit her house and neglected the welfare of the family and children and that, even during his visits her house, he used to harass her both physically and mentally by demanding amount for development of business, and that, in the year 2019, she approached the police and lodged complaint against A1.

13.PW.1 was subjected to cross-examination by the learned Counsel

for the accused at length. During cross examination, PW.1 conceded that

about 13 years ago, her parents passed away and presently, she has been residing in the house of her parents at Devarapalli Village. She admitted that, they are five children to her parents and that during his lifetime, her father used to do coolie so also resale of she buffaloes on commission basis and that he got no own properties. She fairly admitted that except her oral

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.7 assertion, no document is with her to say that her father saved Rs.1 lakh and gave the same to A1 at the time of marriage. She candidly admitted that on the demand of her parents, A1 came to their house as illatom son and they both lead conjugal life at Devarapalli village. She admitted that her husband/A1 has been incurring educational expenditure of their children and also providing their basic necessities and other requirements till date.

PW.1 candidly admitted that, she did not directly witness the marriage of her husband/A1 with A2 and that in the year 2019, the neighbours of the office of A1, informed her about the 2nd marriage of A1 with A2. PW.1 categorically admitted that she did not mention that, she visited the house of

A2. Per contra, she admitted that , she stated in her statement before police that having come to know about the 2nd marriage of A1 with A2, she called her sister and brother in law over to Devarapalli village and informed them about the 2nd marriage of my husband A1 and then all of them questioned A1 about his 2nd marriage with A2 and at that time, A1 requested her to arrange Rs.1,00,000/- from others for the purpose of development of his finance business. PW.1 fairly admitted that she did not know the house particulars of A2 and its bearing door number where A1 and A2 said to have leading marital life. PW.1 also admitted that she came to know about 2nd marriage of A1 with A2 and about their children, from 3rd party but she

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.8 never personally interacted with A2 nor seen her children at any point of time. PW.1 also admitted that she stated before police in her statement

U/S.161 Cr.PC that , about five months ago, she was informed about the marriage of A1 with A2. PW.1 also admitted that she deposed in her evidence before the court that, she was informed about the 2nd marriage of

A1 in the year 2016 itself, but she reported the matter to police, in the year 2019. She asserted that not only with regard to the 2nd marriage of A1 with

A2, but as A1 used to beat her under the influence of liquor since 2016, she gave the present report Ex.P1 to police. PW.1 asserted that, the accused used to beat her in Devarapalli Village, but she never made complaint before police with regard to his physical cruelty (beating) towards her since marriage to till 2016. She denied the suggestion that, on account of the disputes between A1 and 3rd sister of PW.1 (wife of deceased brother of A1), at her instance, she gave the present complaint with false allegations.

14. P.W.2 – Mandava Vani, Doctor, had deposed that, on 11-11- 2016, A1 brought A2 for delivery to her clinic and A2 blessed with a male baby, and that, the hospital authorities forwarded the birth certificate to the

Registrar of Births, Machilipatnam as mandatory. She further deposed that,

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.9 on 25-10-2019, police approached her and enquired with regard to A2 delivery of child in their hospital, on that, she had issued certificate to that effect. During cross examination, PW.2 candidly admitted that since

November, 2020, she stopped to indulge in medical practice due her advanced age and she had been to USA in the year 2022, with intent to spend with her children. She has further stated that on 25.10.2019, she was examined by police, but no entry was made into hospital records. She fairly admitted that before coming to the witness box, she has gone through the FIR and other connected records present with the police like date and details of certificate. Her further say that, except reducing the information being given by the patient/their relatives, into writing register, they never inquire into whether the said details are correct or not. She stated that the police did not secure any register from the hospital, and that according to the details being furnished by police, she had issued Ex.P2 mentioning the patient name as Bhupathi Madhavi. Whereas, she admitted that in the certificate covered by Ex.P2, the name of the patient mentioned as

Mrs.Ch.Madhavi.

15. P.W.3- Ch.Manikanta, the then W.S.I. of Mahila Police,

Machilipatnam deposed that, on 06.10.2019, she received a report from

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.10

PW.1 against Accused , basing on its, she registered a case in

Cr.No.42/2019 U/s.498-A, 494, 201 of IPC and Sec.3 and 4 of D.P.Act under Ex.P3/FIR. She further would deposed that, she examined the

Prosecution witnesses and recorded their statements and prepared rough sketch, and that, she served notices U/s.41-A Cr.P.C., on A1 and A2 and on completion of investigation, she filed charge sheet against accused.

16. In the cross examination, PW.3 candidly admitted that except the statement of PW1, she neither probe into nor secured any oral or documentary evidence whether the parents really offered Rs.1,00,000/- of dowry and house articles worth of Rs.25,000/- to the accused. She further stated that in Ex.P1 report and in her statement u/Sec.161Cr.P.C, PW.1 asserted that, she came to know that the accused married to one Madhavi and had two children to them and they have been leading conjugal life in

Apartment F2 situated opposite to Nirmala Convent but she did not state that, she directly witnessed the marriage of A1 with A2 and she physically visited the apartment and noticed A1 and A2 are leading marital life in the said Flat and that PW1 did not refer to the name of apartment. PW.3 further admitted that she did not mention the name of the said apartment in her record and she did not procure any documentary proof to substantiate

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.11 that, A1 and A2 have been living as husband and wife in apartment since long time. She also asserted that the name of the mother of child is not tallying between Ex.P2/medical certificate being issued by Mamatha

Hospital and Ex.P5 Birth certificate got issued by Municipal authorities and that, she did not collect any evidence to say that Bhupathi Madhavi and

Ch.Madhavi are one and the same. She candidly admitted that by the date of filing of charge sheet, there is no evidence to show that, A1 married A2.

She stated that as per Ex.P2 and Ex.P3, A1 and A2 blessed with a child, but she did not collect any scientific evidence to substantiate that the children of

A2 are born through A1.

17. The learned Assistant Public Prosecutor contended that, as per Ex.P2-medical certificate and Ex.P5-Birth certificate of child of A2,

A1 married A2 and fathered a child, then it will definitely amounts to mental cruelty for a wife/PW.1, who is legally married to the husband/A.1 and it will fall under mental cruelty as defined under

Section 494 and 498(A) IPC. She would maintained that the evidence of PW1 is corroborated by PW2/medical officer and other circumstantial evidence is enough to hold guilt of the accused U/Sec. 498-A and 494 of IPC. She contended that there might be discrepancies regarding

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.12 name of child, but it is not material , hence, prayed to convict the accused.

18. Resisting the same, Sri DPR, the learned defence counsel

for the accused specifically invited attention of this Court to Section

498-A IPC, to state that cruelty, if any, was required to be proved by the prosecution within the ambit of explanation as provided under Section 498A IPC, but in the instant case, the prosecution failed to prove beyond reasonable doubt that cruelty was meted out to the complainant in the hands of A1, as defined under Section 498A IPC, therefore much credence can be placed upon the testimony of P.W.1. He further has conceded that, except self serving statement of P.W.1, no other independent evidence brought on record to say that, A2 is the legally wedded wife of A1. He mainly contended that there is clear discrepancy regarding the names of patient/A2 and her husband in medical certificate being issued by PW.2/Medical officer, as such, it is highly unsafe to conclude that, A1 and A2 have committed the offence of Bigami. He also urged that, both the accused were falsely implicated in this case, as such, they are entitled for clean acquittal.

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.13

19. The provisions of Section 498A IPC read as under :

"498A. Husband or relative of husband of a woman subjecting her to cruelty. - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation. - For the purposes of this section `cruelty' means -

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

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

Thus, in order to constitute "cruelty" under clause (a) and (b), there has to be harassment to coerce wife or any person related to her to meet any unlawful demand and case has to be made out that there is a failure to meet such demand.

20. In Smt. Raj Rani v. State (Delhi Administration)1; this Hon'ble

Apex Court held that while considering the case of cruelty in the context to the provisions of Section 498A I.P.C., the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt.

1. AIR 2000 SC 3559

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.14

21. In the case at hand, evidently, no documentary evidence substantiating her contention to prove the factum of giving Rs.1 lakh to A.1 has been brought on record, either by P.W.1 or by the investigating officer, for presuming that, the allegations made by the prosecuting party against

A.1 are true . Moreover, the complainant herself stated that they are five children to her parents and that his father is a coolie and used to look after the family with his earnings and that he owned no properties. She fairly admitted that except her oral assertion, no document is with her to say that her father saved Rs.1 lakh and gave the same to A1 at the time of marriage.

On the other hand, PW.1 candidly admits that on the demand of her parents, A1 came to their house as illatom son and they both lead conjugal life at Devarapalli village itself and thattill date, A1 has been incurring educational expenditure of their children and also providing their basic necessities and other requirements.

22. Either in the complaint or in her evidence before the court, PW1 neither the dates of alleged cruelty have been spelt out nor the manner in which the harassment has been committed is explained. Further, no specific instance was deposed by PW.1, except making a bold statement that, accused harassed PW.1 demanding amounts. Nowhere, PW1 had

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.15 stated that, as to what is the quantum of additional dowry allegedly demanded by A1. There is also no corroboration in the testimony of the

PW.1. Though complainant made an attempt to state before the court during her evidence that she was beaten several times but, there is no cogent evidence available on record to support the contention, if any, with regard to beatings. Similarly, PW3- investigation officer has admitted about the omissions in the statements of witnesses pointed out by the defence counsel. There is no evidence on the record to show that the accused committed harassment on P.W.1 with a view to force her to fullfil illegal demands of him. Therefore, her allegation that A.1 harassed her both physically and mentally by demanding to bring additional dowry is far away from truth.

23. It is pertinent to note that, as per PW.1, she informed about the marriage between A1 and A2, and when the matter placed before her sister and brother-in-law, at that time, A1 demanded her to arrange Rs.1,00,000/- from others, for the purpose of finance business development. Even if the allegation is taken as true, for a moment, and such acts cannot come within the purview of section 498-A of IPC. As held, in the evidence of PW1 , no specific instance was deposed by her nor the manner in which the

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.16 harassment has been committed is explained. As per PW.1, her marriage was taken place in the year 2002. But, no complaint filed against A1 till 2020. No corroborative independent witnesses evidence is available on record in this respect that there was a continuous physical or mental torture towards PW.1. Thus, there was no case of mental or physical torture to bring home the charges under Section 498A IPC.

24. Section 494 IPC deals with bigamy, which is defined as marrying again while having a living spouse from a valid marriage. Section 494 reads thus:

"Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

In a bigamy case the second marriage has to be proved as a fact. The necessary ceremonies must be proved to have been performed. In case the subsequent marriage is contracted without following or performing the required rituals then the offence of bigamy cannot be constituted. Thus, the

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.17 next question that arises for consideration is whether the offence of bigamy is committed.

25. Although PW.1 contended that A1 and A2 got married and they had children, but there was no evidence to establish the marriage between A1 and A2. The testimony of PW1 is self contradicting, for the reason that, in her chief evidence, she asserted that, in the year 2016, when she visited the Finance institution being run by her husband A1, one person present there informed her that A1 and A2 are wife and husband and on enquiry, she was informed that A1 and A2 are residing in Apartment situated opposite Nirmala Convent, Machilipatnam , on that, she along with her sister and brother-in-law, went to apartment and questioned A1 and A2, and they quarreled with her, whereas, during her cross-examination, she has admitted that she came to know about 2nd marriage of A1 with A2 and about their children, from 3rd party but she never personally interacted with

A2 nor seen her children at any point of time. She further admitted that about five months ago, she was informed about the marriage of A1 with A2.

26. To prove the charge U/Sec. 494 IPC against A1 and A2, in addition to PW.1 and PW.2, the investigating officer/PW.3 has cited the

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.18 neighbors of A2 as LWs.6 & 7 in the charge sheet, in which, LW.2- who happens to be the sisterofPW1 and LW.3 is husband of LW.2 who are crucial witnesses to the case of prosecution. But the prosecution has given up the evidence of LW.2 to 7 with certain reasons viz., the whereabouts of

LW.2 are not known and LW3 was died. On the other hand, the prosecution has given up the evidence of LWs. 4 to 7, as per memo filed by the PW1.

Therefore, the prosecution failed to bring the crucial evidence of close relatives of PW.1 as well as neighboring witnesses of A2. Thus, non examination of LWs.2, 4 to 7 in the facts and circumstances of this case is certainly fatal to the prosecution case.

27. Insofar as offence under Section 494 is concerned, though prosecution has chosen to examine the medical officer of Mamatha

Hospital, Machilipatnam, where A2 said to have delivered a baby, and A1 was shown as husband of A2 in Hospital Registers, but PW.3/Investigating officer, categorically asserted that she did not collect any documents from the registers in Mamatha Nursing Home, Machilipatnam and that, she did not make any efforts in securing scientific evidence to substantiate that the children of A2 are born through A1. The Medical officer/ PW.2 has testified that A2 joined in her clinic and delivered a boy and the hospital authorities

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.19 has transmitted the birth details of the child, to the Registrar of Births and

Deaths as mandated , per contra, during her cross examination, she admitted that, according to the details being furnished by police, she had issued Ex.P2 mentioning the patient name as Bhupathi Madhavi and that

before coming to the witness box, she has gone through the FIR and other

connected records present with the police like date and details of certificate.

Therefore, in the absence of any such positive oral evidence establishing the factum of marriage between A1 and A2, Ex.P2 and Ex.P3 are no way helpful to othe case of prosecuiton and thus, no credibility can be attached to the evidence of PW.2. It is settled Law that, the paternity of children does not, in itself, constitute the offence under Section 494 of the Indian Penal

Code. Thus, there is no necessity of making an elaborate discussion as to the Ex.P2 Medical certificate and Ex.P5- Birth certificate of A2 son.

Therefore, the evidence of PW2 is no way helpful to the case of prosecution.

28. To bring home a charge of bigamy, it is for the prosecution, to prove that the the second marriage between the A1 and A2 took place as per the religious rites and ceremonies including the details as to the place, date, type of second marriage, name of the person who witnessed the occurrence of second marriage, before the court. Though Pw.1 stated that , A1 admitted before village about his marriage, but she did not name

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.20 the alleged elder either in her report or in her statement before police or evidence before the court. However, admission of marriage by A2 is not an evidence for the purpose of proving marriage in a bigamy case. Thus, the factum of the marriage between A1 and A2 is not established in this case for connecting the accused with the offence of bigamy as provided under

Section. 494 IPC.

29. As per PW.1, her marriage was taken place in the year 2002. But, no complaint filed against A1 till 2019. It is the case of the PW.1 that, in the year 2016, she came to know that A1 and A2 married and when she questioned, A1 quarreled with her. Ex.P1 report indicates that it was lodged in the year 2019. There is no explanation forthcoming why PW.1 kept silent for nearly three years, if any, cruelty was meted by her. Surprisingly,

PW.1 fairly admitted that A1 came to their house as ill-atom son and they both lead happy conjugal life at Devarapalli village and that, still A1 has been incurring educational expenditure of their children and also providing their basic necessities and other requirements.

30. In the light of the foregoing discussion, for want of legal and acceptable evidence, this court of the view that the prosecution failed to bring home the guilt of accused, for the charges framed against them,

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.21 beyond all reasonable doubt, and consequently, A1 and A2 are entitled, for acquittal.

31. In the result, A1 is found not guilty for the charge U/Sec.498-A of

IPC. Further, A1 and A2 are found not guilty for the charge U/Sec.494 of IPC, therefore, the accused 1 and 2 are acquitted U/Sec.248(1) Cr.P.C. The bail bonds of Accused A1 and A2 shall be in force for a period of six months as per

Sec.437-A Cr.P.C. Since no property produced, no order passed in that regard.

Typed to my dictation directly on computer by the Personal Assistant, corrected and pronounced by me in open court, this the 16 th day of April, 2025.

sd/-

Spl.J.M.F.C. For Trying P & E Offences, Machilipatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

PROSECUTION : DEFENCE: PW1: Bhupathi Chinni. - None– PW2: Mandava Vani, Doctor. PW3: Ch.Manikanta, WSI of Police, Mahila P.S, MTM.

EXHBITS MARKED

FOR PROSECUTION: Ex.P1 : Report of P.W.1 dated 06-10-2019 Ex.P2 : Medical certificate. Ex.P3 : FIR in Cr.No.42/2019 of Mahila P.S. Ex.P4: Rough sketch of the scene of offence. Ex.P5: Birth certificate of one Bhupathi Sowri Siddarth. FOR DEFENCE: --None -- MOS marked: --NIL--

sd/-

Spl.J.M.F.C. For Trying P & E Offences,

Machilipatnam.

C.C.No. 1133/2020Dt. 16.04.2025 Excise Court/MTM Page No.22 //True copy//

1 of 17

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF

FIRST CLASS FOR TRYING PROHIBITION AND EXCISE

OFFENCES, MACHILIPATNAM

Present : Smt.N.Mary,

Spl. Judl. Magistrate of First Class, for trying P & E offences, Machilipatnam. Friday, this the 17 th day of November, 2023

Calender Case No.819 of 2018

Between :

The State represented by Sub Inspector of Police,

Pedana Police Station ...Complainant.

And

Merugu Jagadeesh, S/o Ramu, A/28 years, R/o.D.No.4/59, Vavillapalli Village, Samsthana Ramapur Mandal, Bhuvanagiri District (Driver of the lorry bearing No. AP 29 TB 2466) …Accused.

This case is coming up before me for final hearing on this day in the presence of Ld. Assistant public prosecutor for state, Advocate and of Sri.G.Vijaya Rao, Advocate for accused; upon hearing both sides and the matter having stood upon for consideration till this day, this court delivered the following :

J U D G M E N T

The Sub-Inspector of Police,Pedana P.S, filed charge sheet in Cr.No.14/2018 with a prayer to punish the accused, by alleging that he committed an offence U/sec. 304-A of IPC.

[2.] Briefly stated, the prosecution case is like this:-

i) On 13.01.2018, the family of defacto complainant and the family of deceased No.1 have celebrated Sankranthi festival at Urivi Village and on 14.01.2018, at about 4:00PM, in order to go toThallagaruvuVillage,thecomplainantRamisetti veeranjaneyulu(PW.1) along with his wife Sunitha(PW.4) and his 2 of 17 younger daughter Bhavana on a Glamour bike and that his brother- in-law D.Nagababu(Deceased No.1) and Ramisetti Jahnavi (Deceased

No.2), who is no other than the elder daughter of LW.1 on Honda

Activa bike, started from Urivi village and at 5:10 PM, when they have crossing the turning situated at Anjaneyaswamy temple at

Nandigama Village, the complainant has been proceeding ahead of his brother-in-law Nagababu and at that time one lorry bearing

Regd.No.AP 29 TB 2466, coming on their back, the driver of the said lorry drove the same in a rash and negligent manner at high speed, without blowing horn and dashed against the back side of the bike of Naga Babu. As a result of which, the said Nagababu and pillion rider Jahnavi, the elder daughter of complainant, fell down and the lorry back tire ran over the abdomen of Nagababu and across

Jahnavi. Resulting which, both Naga Babu and Jahnavi died on the spot.

ii) Basing on the report given by PW1 (brother in law of the deceased), LW.30-K.V.Narayana Rao, the then S.I of Police, Police station, Pedana, registered the same as a case in Crime No.14/2018 under section 304-A of IPC, recorded the statements of witnesses, visited the place of offence, prepared rough sketch of the scene, observation report, got photographed the scene, shifted the dead bodies to Hospital, held inquest over the dead bodies of the deceased No.1 and 2, in the presence of Revenue Officials and mediators and forwarded the dead bodies were postmortem examination. Subsequently, on his requisition, LW.28-Seethapathi 3 of 17

Rao, inspected the offending vehicle, held road test and issued report with opinion. On 16.01.2018, he served notice under section 41-A

Cr.P.C., to the accused and after obtaining postmortem reports and

M.V.I report along with necessary documentary evidence, he laid final report against the accused.

03. Considering the charge sheet and material on record the court took the case on file for the offence U/sec.304-A of I.P.C and issued process. In response to the process, accused entered his appearance and he was provided with the copies of documents as required U/S.207 Cr.Pc .

04. Accused is examined under section 251 Cr.P.C. and whereupon, the accusation was read over and explained to him in

Telugu, for which, he denied to have committed the offence and claimed to be tried.

05. The prosecution in order to prove the complicity of the accused, examined PW.1 to P.W.11 got Ex.P1 to Ex.P.9 marked.

Though he cited LW.2- Dondapati Veerababu, LW.3-Dondapati Siva

Sankara Rao, LW.5-Dondapati Ramakrishna Venkata Satya

Poornachandra Prasad, LW.8-Ramisetti Srinivasa Rao, LW.9-

Ramisetti Vani, LW.11-Ramisetti Ramababu, LW.12-Yarramsetti

Dhamodhara Rao, LW.15-Matta Kumara Swamy, LW.16-Rajulapti

Amaleswara Rao, LW.17-Garlapati Jaganmohna Rao, LW.19- 4 of 17

Motepalli Rajarao, LW.22-Gandham Venkateswara Rao, LW.23-Saina

Jayababu, LW.24-Perugumala Veera Venkateswara Rao, LW.25-Ravi

Siva Koteswaramma, LW.26-Puppala Rama Mohana Rao and LW.29-

B.Abhimanyu, Sub Inspector of Police, Pedana Police station are given up their evidence.

06. Accused was examined under section 313(1)(a) Cr.P.C. by explaining the incriminating material appearing from the evidence of prosecution witnesses, for which, he denied the same and reported no defence evidence.

07. I have heard the Learned Assistant Public Prosecutor for

State and the Learned counsel for accused. The learned A.P.P.

Smt.B.Sneha garu took this court through the evidence of prosecution witnesses and concedes that, the evidence of investigating officer couple with the evidence of PW.7 establishes that the accused is the driver of the crime vehicle and that, due to his rash and negligent driving, the deceased No.1 and 2 died.

Hence, the accused is liable for appropriate punishment.

08. Resisting the same, the learned counsel for the accused

Sri.G.Vijay Rao garu would maintain that, there is no chance of going any vehicle at high speed, for the reason that, there is a turning and also a speed breaker at the place of offence, and that, the road is filled with gravel due to pendency of the road work. It is 5 of 17 also his version that, only to claim compensation, on the report given by P.W.1, the investigating officer, did mechanical investigation and falsely implicated the accused in this case.

09.Now the question that arises for the consideration is :

Whether the prosecution is able to prove the guilt of the

accused beyond all reasonable doubt, for the offence

under section 304-A IPC ?

P O I N T :

10. In a case of death caused in a road accident, the prosecution is under legal obligation to prove with satisfactory evidence that, the death of deceased is the direct result of rash and negligent driving of driver of crime vehicle and that, accused is the driver of the crime vehicle, on the date of accident and unless these ingredients are proved with legal and acceptable evidence, offence under section 304-A IPC cannot be said to have been established.

In order to connect the accused with the said offence of causing death of deceased 1 and 2, the prosecution has made the evidence of

PW1 to PW11 coupled with Ex.P.1 to Ex.P.9 available on record.

11. Since it is the case of prosecution that, on 14.01.2018, at about 4:00PM, in order to go to Thalagaruvu Village, the complainant Ramisetti veeranjaneyulu(PW.1) along with his wife

Sunitha(PW.4) and his younger daughter Bhavana on a Glamour bike and that his brother-in-law D.Nagababu(Deceased No.1) and 6 of 17

Ramisetti Jahnavi (Deceased No.2), who is no other than the elder daughter of PW.1 on Honda Activa bike, started from Urivi village in order to go to Talagaruvu Village and when they reached near turning situated at Anjaneyaswamy temple at Nandigama Village, the lorry which is coming on their back dashed against the Honda Activa being driven by Nagababu, resulting which, the said Nagababu and the pillion rider Jahnavi died on the spot, therefore, in regard to the death of deceased 1 and 2 is concerned, it is appropriate to refer the relevant evidence on record.

12. As can be seen from the testimony of PW.1-Ramisetti

Veeranjaneyulu (LW.6), brother in law of Deceased No.1/D.Naga

Babu, that on 14.01.2018 at abut 10:00 AM, himself along with

LW.7-Ramisetti Sunitha and his younger daughter proceeding on his bike towards Lellagaruvu Village and and that, Deceased No.1

Naga Babu along with pillion raider Deceased No.2 Jahnavi are on another bike i.e., Honda Activa followed him(PW.1), and when they reached nearby Nandigama, suddenly a lorry bearing No.2466 coming from their back at High speed, without blowing horn, dashed the two wheeler of D1- Dondapati Naga Babu, as a result, they fell down and the lorry left front tyre ran over stomach of both of D1 and D2, resulting resulting which, D1 and D2 died on the spot, however, he made good escape from the incident. Thereafter, having informed the same to his family members, he filed report vide

Ex.P1.

7 of 17 13. The testimony of PW.4.Ramisetti Sunitha(LW.7) sister of

Deceased No.1 / Dondapati Nagababu as well as mother of Deceased

No.2-Jahnavi that, at about 05 years ago, on the eve of Bhogi at 5:30 PM, she along with her husband and his younger daughter on one bike and that, her brother and her elder daughter Jahnavi is on another bike, were going towards Pedana from Urivi Village and that, her husband proceeding ahead, but her brother and daughter coming on activa bike their behind, did not appear for some time, as such, they stopped their vehicle at Nadupuru and called her brother(D1) over cellphone, but some unknown persons attended the call and informed that, the person on the bike died in the accident on the spot, immediately, they rushed to the spot i.e, near

Anjaneyaswamy temple road and seen the dead bodies of her brother

Nagababu and daughter. She further deposed that, on receiving information, police have come and shifted the dead bodies of her brother and daughter to hospital and the police have held inquest over the Dead body of her daughter and handed over the body.

14. PW2-(Dondapati Sarweswara Rao) and PW.3 (Venkayamma) are parents of Deceased No.1 Dondapati Nagababu as well as grand parents of Deceased No.2-Jahnavi and that, PW.5(Ramisetti

Anjaneyulu) is brother-in-law of deceased No.1 and uncle of

Deceased No.2. The evidence of PW.2 and PW.3 discloses that, at about 06 years ago, on one day, while they were present at home, they received phone call from unknown persons and informed that, 8 of 17 their son Nagababu met with an accident at Nandigama Village near

Anjaneyaswamy Temple, immediately, PW.2 rushed to the scene of offence, by the time, Nagababu and grand daughter were already shifted to Hospital and that, they were informed that, a lorry hit the bike of Nagababu. PW.s.2 and 3 further deposed that, in their presence the Police held inquest over the dead body of the Deceased 1 and 2 at Hospital.

15. PW.5-Ramisetti Anjaneyulu(LW.8) deposed that, in the year 2018, on the eve of Bhogi, around 5:30 to 6:00 PM, they received information that, D1-Naga Babu and D2-Jahnavi met with an accident near Anjaneyaswamy Temple, while coming from Urivi village towards Pedana on bike, immediately, they went to the spot, by the time, they have already been shifted to Govt.Hospital,

Machilipatnam, then, they went to hospital and found the dead bodies of D1 and D2, whereat, Police held inquest over the dead body of the Deceased 1 and 2.

16. Apart from the blood relatives of the Deceased No.1 and 2, the prosecution has chosen to examine the alleged eye witness of the incident as PW.7: Polagani Ramanjaneyulu(LW.13). It is the version of PW7 that, on 14.01.2018 around 5:00PM, while he was coming from home towards center Nandigama, he noticed one Activa bike coming from Penumalli to Pedana and the vehicle is riding a male person and one child as Pillion rider, at the same time, one lorry coming from Penumalli to Pedana side, hit on the back of Activa 9 of 17 vehicle, resulting which, both the rider and pillion rider of Activa fell on the road and received severe injuries and the rider of the

Activa vehicle died on the spot and the kid also died after some time at the spot. He stated that, he has not seen the face of the driver of crime vehicle.

17. Similarly, another independent eye witness PW.8: Devarapalli

Brahmam(LW.14) have deposed that, on 14.01.2018, on hearing shouting, he rushed to the spot and found D1 died at the spot, but

D2 alive one or two seconds later, she also died, due to road accident. He further deposed that, he noticed one Activa Two wheeler and lorry and that, they found the driver of lorry going away from back of lorry. He categorically stated that, he was informed that the person, who present in the court hall is the driver of the crime vehicle.

18. The testimony of PW6, Village Revenue Officer, in whose presence, inquest panchanamas and scene observation report was conducted by the investigating officer/ PW11, that, accident took place near turning situated at Anjaneyaswamy temple, Nandigama, on 14.01.2018 involving the crime vehicle and a two wheeler, as was shown in Ex.P8 rough sketch. It is also evident from his testimony, coupled with Ex.P.3 and Ex.P9 inquest reports that, deceased

D.Naga Babu and R.Jahnavi died, on account of injuries, they sustained in a road accident.

10 of 17

19. PW.10, the doctor, who conducted Postmortem Examination and issued Exs.P5 and P6 Postmortem examination reports also has opined on his examination that, deceased 1 and 2 died, due to wounds the bleeding and wounds sustained leading to Cardio

Vascular collapse.

20. PW.11-Katta Venkata Narayana(LW.30) the then Sub Inspector of Police deposed that, on 14.01.2018 basing on the report given by

PW.1, he registered a case in crime No.14 of 2018 under section 304-A of IPC under Ex.P7, immediately PW.1 he along with PW.1 rushed to the scene of offence, got shifted the dead bodies of

Deceased 1 and 2 to the hospital, he got shifted the lorry from the scene of offence to station, on the next day, in the presence of

Revenue officers/PW.6(LW.18) and LW.19-M.Rajarao, he inspected the scene of offence, got prepared scene observation report/Ex.P2, rough sketch/Ex.P8, later, he went to the Govt.Hospital, in the presence of LW.19 and LW.20 and in the presence of blood relatives of deceased, held inquest over the dead bodies of Deceased No.1 and

Deceased No.2 and prepared a report under Ex.P3 and Ex.P9 and forwarded the dead bodies of D1 and D2 to the medical officer with a requisition to conduct postmortem report. He further deposed that, he has examined witnesses and recorded their statements and that, during their further investigation, they ascertained the details of the driver of the crime vehicle and that, on 16.01.2018, he served

Section 41-A Cr.P.C notice. He further deposed that, having received 11 of 17

Motor Vehicle Inspector report(Ex.P4 and postmortem reports of D1 and D2(Exs.P5 and P6), he field final report against the accused for the offence under section 304-A of IPC.

21. Thus, it is clear from the testimony of PW2, PW3 and PW5 that, on coming to know about the accident information, they rushed to the spot therefrom to Hospital and noticed the dead bodies of the deceased No.1 and 2 and in their presence police held inquest. Therefore, they have had no occasion to observe about the manner, how the accident took place. It is no doubt true that, PW1 in his report covered by Ex.P.1, has stated that, the crime vehicle came speedily and dashed against the deceased vehicle, which was going ahead of the crime vehicle. However, during evidence, PW.1 and pillion rider PW.4 categorically stated that, having noticed that, the vehicle of deceased No.1 is not coming on their back, they stopped the vehicle at Nudupuru and phoned up to the deceased

No.1 and they were informed about the mishap through some unknown persons over phone, immediately, they reached the scene, after the accident and therefore, it is not wise to expect that, they have got an opportunity of noticing the manner, how the accident took place. However, they stated that, they have not seen the driver of crime vehicle.

22. Similarly PW7 having stated that, he witnessed the accident, failed to speak, as to the manner, how the crime vehicle was running at the scene of offence. The testimony of PW7 virtually 12 of 17 did not reveal any incriminating evidence against the accused, for coming to the conclusion that, only on account of his rash and negligent driving of crime vehicle, accident did take place, which lead to death of deceased 1 and 2. The testimony of PW8, neighbour of spot, indicates that, after hearing some shouting, he came out of the shop and noticed the incident and death of deceased 1 and 2. His evidence did not indicate any incriminating material, attracting the ingredients of rash and negligent driving of crime vehicle and also as to the identity of crime vehicle. PW.8 stated that he has noticed the driver going away from the spot. If that could be so, PW8 should have caught hold the accused, on the spot and handed over him to the police. Such is not the case of prosecution theory. However,

PW.8 fairly conceded that, he has seen him on back ,but not seen his face. Furthermore, all the witnesses have stated that, they do not know the number of crime vehicle and they have not seen the driver of crime vehicle.

23. It is of course evident from the testimony of PW6, Village

Revenue Officer, in whose presence, inquest panchanamas and scene observation report was conducted by the investigating officer/

PW11. The testimony of PW10, the doctor, who conducted

Postmortem Examination and issued Exs.P5 and P6 Postmortem examination reports also has opined that, deceased 1 and 2 died, due to wounds the bleeding and wounds sustained leading to Cardio

Vascular collapse.

13 of 17 24. PW.9 is the investigating officer, who conducted entire investigation, and having satisfied himself that, accused is the driver of crime vehicle, filed final report, fixing the liability on accused saying that, only on account of his rash and negligent driving of crime vehicle both deceased died, however, during evidence, the prosecution failed to place convincing, cogent and reliable material, for believing the case as was set out by prosecution. PW.1 also admitted that, he did not mention the identity particulars of the accused, in his report.

25. As per PW.8/ eye witness and PW.11 , the accused has absconded from the spot. As per prosecution, the accused is resident of Samsthana Ramapur Mandal, Bhuvanagiri District.

Admittedly, PW.11 did not seize any vehicle records. If that could be true, it is for the PW.11 to explain, how and in what way he had procured the particulars of driver of the crime vehicle. In that view of the matter, the identification of accused, who is resident of

Samsthana Ramapur Mandal, Bhuvanagiri District, in the absence of any material in the statements of prosecution witnesses that, they have seen the driver of crime vehicle and they could identify him, if shown, creates any amount of doubt. However, there is no satisfactory material in the evidence let-in by prosecution that the deceased persons died in the said accident, only on account of the rash and negligent driving of crime vehicle by its driver and accused is the driver of the said vehicle. Therefore, the evidence brought on 14 of 17 record is not sufficient to connect the accused with the offence leveled within the meaning of section 304-A IPC attracting the essential elements of the act for which, accused stood charged and as such, he is entitled for acquittal.

26. IN THE RESULT, the accused is found not guilty of the offence punishable under sections 304-A IPC. Accordingly, the accused is acquitted of the said offence under section 255(1) Cr.P.C.

The bail bonds of the accused shall remain in force for a period of 6 months as per the Provision of Sec.437-A of Cr.P.C. There is no order regarding disposal of property since no property was seized and produced before the Court.

Typed to my direct dictation on computer, corrected and pronounced by me in open court on this the 17 thday of November, 2023.

FAC/Judicial Magistrate of First Class,

Special Mobile court, Machilipatnam

APPENDIX OF EVIDENCE

Witnesses Examined for

PROSECUTION: DEFENCE:

PW1: -Ramisetti Veeranjaneyulu(Defacto complainant )

PW2: Dondapati Sarveswara Rao-LW.1

PW3: Dondapati Venkayamma-LW.4

PW4: Ramisetti Suneetha-LW.7

PW5: Ramisetti Anjaneyulu-LW.10

PW6: Tadepalli Krupavaraprasad, VRO, Nandigama Village

PW7: Polagani Ramanjaneyulu-LW.13

PW8: Devarapalli Brahmam-LW.14 15 of 17

PW9: Sitapathi Rao, Motor Vehicle Inspector, Bandar

PW.10: Dr.J.Vinay Babu, CAS, Govt.Hospital, Machilipatnam

PW.11: K.V.Narayana Rao, Sub Inspector Police, Pedana `

EXHBITS MARKED

For Prosecution: Defence:

Ex.P1: Statement of P.W.1 --NIL--

Ex.P.2: Observation report dated 15.01.2018

Ex.P.3: Inquest report of Deceased No.1 dated 15.01.2018

Ex.P.4: MVI report dated 18.01.2018

Ex.P.5: Postmortem report of Deceased No.1

Ex.P.6: Postmortem report of Deceased No.2

Ex.P.7: Original FIR

Ex.P.8: Rough Sketch

Ex.P9: Inquest report of Deceased No.2

MOS marked: NIL

FAC/Judicial Magistrate of First Class,

Special Mobile court, Machilipatnam

16 of 17

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,

SPECIAL MOBILE COURT, MACHILIPATNAM.

C.C.No. 819 of 2018

1. Offence : 14.01.2018

2. Filing: 14.01.2018

3. Apprehension of Accused : 26.12.2018

4. Commencement of Trial : 08.02.2019

5. Closure of Trial : 14.11.2023

6. Judgment: 17.11.2023

7. Complainant: The State : Sub-Inspector of Police, Bandar Taluka Police Station,Machilipatnam

8. Name of accused : Merugu Jagadeesh, S/o Ramu, A/28 years, R/o.D.No.4/59, Vavillapalli Village, Samsthana Ramapur Mandal, Bhuvanagiri District

9. Offence:U/Sec.304-A of IPC

10. Plea of accused : Pleaded not guilty

11. Finding: Found not guilty

12. Sentence or Order : In the result, the accused is found not guilty of the offence punishable under sections 304-A IPC. Accordingly, the accused is acquitted of the said offence under section 255(1) Cr.P.C. The bail bonds of the accused shall remain in force for a period of 6 months as per the Provision of Sec.437-A of Cr.P.C. There is no order regarding disposal of property since no property was seized and produced before the Court.

13. Explanation of Delay: After appearance of accused, copies of documents were furnished to him as contemplated U/Sec.207 Cr.P.C on 26.12.2018 and on 08.02.2019, he was examined U/sec.251 Cr.P.C. for the offence U/s.304-A of IPC. On 14.02.2020, P.W.1 was examined and on 05.03.2020 Ex.P1 was marked. On 26.10.2023, P.W.2 was examined, on 27.10.2023, PWs.3 to 6 were examined and got marked Ex.P2. On 07.11.2023, Pws.7 to PW.9 were examined and Exs.P3 and P4 marked. On 08.11.2023, PW.10 was examined and Exs.P5 and P6 marked. On 14.11.2023, PW.11 was examined and got marked Exs.P7 to P9, on the same day, the prosecution evidence was closed. On 15.11.2023, the accused was examined U/s.313 Cr.P.C, for which, he denied and reported no defence evidence and heard arguments. Judgment pronounced on 17.11.2023. FAC/Judicial Magistrate of First Class,

Special Mobile Court, Machilipatnam

Copy submitted to : The Hon'ble I Addl. District & Sessions Judge, 17 of 17

Krishna,Machilipatnam.

Excise Court, CC No. 996 of 2024 Machilipatnam. Dt: 16-04-2025

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS FOR TRYING PROHIBITION AND EXCISE OFFENCES ::

MACHILIPATNAM.

PRESENT : Smt.N.Mary

Spl. Judl. Magistrate of First Class for trying P & E Offences, Machilipatnam.

Wednesday, this the 16 th day of April, 2025

Calender Case No. 996 of 2024

Between:-

State: represented by Sub-Inspector of Police,

Proh.& Excise Station,Machilipatnam...Complainant.

And

Ganjala Venkata Lakshmi, w/o Dharmaiah, age 35 years, r/o D.No.3/27, Near Ramalayam, Pindivaripalem village,

Guduru Mandal. ... Accused.

This case is coming before me for final hearing on this day in the presence of Learned Assistant Public Prosecutor for State and

Sri.M.Venkatramaiah, Counsel for accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following :

J U D G M E N T

The Sub-Inspector of Police,Proh. & Excise Station,

Machilipatnam, filed charge sheet against accused in Cr.No.162/2023 for the offence punishable U/Sec.7(A) r/w 8(e) of A.P. Prohibition (Amendment) Act, 2020.

Excise Court, CC No. 996 of 2024 Machilipatnam. Dt: 16-04-2025

02. The case of the prosecution in nutshell that :

(a) On 12-12-2023 at 10-00 A.M., PW2 – M.Ramakrishna

Das, Inspector of SEB, MTM, he secured mediators PW1-

Ch.Varaprasad, VRO, Posinavaripalem village, LW.2- B.Surekha, GMSK,

Posinavaripalem village, along with his team, LW4- Y.Vinayakumar, Ec of

SEB, MTM, proceeded in a vehicle towards Pindivaripalem village of

Guduru Mandal and reached to the house D.No.3/27 situated in the said village and found a female person by holding a mica bag, on seeing them, she tried to escape from there, but with the assistance of constable stopped her, when questioned, accused has stated that, the said bag contain ID liquor and she has been manufacturing the ID liquor on her own, in order to sell it at higher price for eking her livelihood. In pursuant of her statement, he verified the bag and found two bottles which contain 02 liters and 01 liter of ID liquor in it. Thereupon, he had drawn 300 ml ID liquor as a sample from the property found in possession of accused, sealed it, for sending it to analysis, and also sealed the remaining property in the presence of mediators and kept it for safe custody. He prepared a Mediator report, brought the accused along with property under seizure to the SEB station, for further enquiries.

Excise Court, CC No. 996 of 2024 Machilipatnam. Dt: 16-04-2025

(b)Further basing on the mediator report, PW3-

T.Chittibabu, SI of Police, SEB, MTM, registered a case in

Cr.No.162/2023 U/sec.7(A) r/w 8(e) of A.P. Prohibition (Amendment) Act, 2020., issued FIR, sent the accused to Court for remand. During the course of investigation, he sent the sample for chemical analysis, and received analysis report, and on receipt of proceedings of Deputy

Commissioner, the remaining property was destroyed. Having completed the entire investigation, he charge sheeted the accused, for the offence indicated above.

03.The Court took cognizance of the offence under Section .7(A) r/w 8(e) of A.P. Prohibition (Amendment) Act, 2020.

04.On appearance of accused before the Court, copies of documents as contemplated under section 207 Cr.P.C., are furnished to her.

05.Accused is examined under section 239 of Cr.P.C., explaining the accusation made against her and charge under Section .7(A) r/w 8(e) of A.P. Prohibition (Amendment) Act, 2020., has been framed, read over and explained to her, in Telugu, for which, she pleaded not guilty and claimed to be tried.

Excise Court, CC No. 996 of 2024 Machilipatnam. Dt: 16-04-2025

06.The prosecution in order to prove the complicity of the accused, examined PWs.1 to 3 and got marked Exs.P1 to Ex.P6 and Mo.1 marked.

07.Accused is examined under section 313(1)(a) Cr.P.C. by explaining the incriminating material appearing from the evidence of prosecution witnesses, for which, she denied the same and reported no defence evidence.

08. I have heard the learned Assistant Public Prosecutor and learned counsel for accused.

09.Now, the point for determination is:-

“Whether the prosecution proved its case beyond all

reasonable all doubt that the accused committed the

offence punishable under Section .7(A) r/w 8(e) of A.P.

Prohibition (Amendment) Act, 2020., as alleged by the

prosecution”?

POINT:

10.Accused has been charged on the allegation that, during detection of P&E offences by PW2 – M.Ramakrishna Das, Inspector of

SEB, MTM along with his team, the accused was found in possession of property in question, namely, 03 liters of ID arrack, in violation of the provisions of Section 7(A) r/w 8(e) of A.P. Prohibition (Amendment)

Act, 2020, and conducted enquiries in the presence of mediators, seized

Excise Court, CC No. 996 of 2024 Machilipatnam. Dt: 16-04-2025 the property under a report, and PW3- T.Chittibabu, SI of Police, SEB,

Machilipatnam, registered crime, sent the sample for chemical examination, and on receipt of the report, he filed final report. The plea of accused is one of total denial.

11.As could be seen from the testimony of PW2-

M.Ramakrishna Das, Inspector of SEB, Machilipatnam, it appears that, on 12-12-2023 at 10-00 A.M., he secured mediators PW1-

Ch.Varaprasad, VRO, Posinavaripalem village, LW.2- B.Surekha, GMSK,

Posinavaripalem village, along with his team, LW4- Y.Vinayakumar, Ec of

SEB, MTM, proceeded to the Pindivaripalem village of Guduru Mandal for conducting raids and after reaching to the house D.No.3/27 situated in the said village, found the accused present, enquired with her and in pursuant of her confession that, she is in possession of ID liquor, PW2 enquired her particulars who is accused herein, thereupon, PW2 seized the liquor and drawn 300 ml ID liquor as sample from the contraband found in possession of accused under MO.1 , sealed it, for sending it to analysis, and also sealed the remaining property in the presence of mediators, and kept it for safe custody. He prepared a mediator report, brought the accused along with property under seizure to the police

Excise Court, CC No. 996 of 2024 Machilipatnam. Dt: 16-04-2025 station and PW3- SI of Police registered crime, sent the sample for chemical examination and on receipt of the report, he filed final report.

12.During the cross-examination PW2 testified that, he did not mention the names and designation particulars of raiding party in Ex.P1 report. He further admitted that, except official witnesses, none of the independent witnesses are secured to act as mediators. He fairly admitted that, no document as to the ownership of the location, has been furnished so as to fix the liability on the accused. He further admitted that, the ID liquor was not measured at the scene of offence. He further conceded that, there is no seal and signatures of the slips contain on the sample and it appears to be affixed recently. PW3 in his cross- examination testified that, there is long delay in sending sample to chemical examination. He further conceded that, there is long delay in destruction of remaining property in dispute. He further admitted that, the mediators said to have present at the time of destruction are not shown in charge sheet. PW2 denied a suggestion that, accused did not commit any offence in the present case and she is falsely implicated in the present case.

13.In order to support the case of prosecution, the prosecution has chosen to examine one of the mediator as P.W.1. The P.W.1

Excise Court, CC No. 996 of 2024 Machilipatnam. Dt: 16-04-2025 testified that, he is working as VRO in Akulamannadu village and that, he accompanied with SEB officers and reached near to the house situated infront of Ramalayam of Pindivaripalem village, where they found accused by holding a bag which contain 03 liters of ID liquor and further enquiry, the SEB officer drawn some quantity for sample out of the entire property, prepared a report, later, SEB officer took the accused along with contraband in question to police station.

14. During cross-examination, he admitted that, the scene of offence is a residential locality and ten members gathered, but the SEB officers did not obtain their signatures in Ex.P1 report. He further admitted that, he did not know the names and designation particulars of the team with whom he accompanied. He fairly admitted that, he is not aware the name of constable as to who prepared Ex.P1 report and ID slips allegedly fixed on Mo.1. He conceded that, the SEB officials did not enquire with regard to door number of the house in dispute. He further admitted that, he did not furnish any document to show that, he was placed as incharge

VRO of Pindivaripalem village.

15.Learned counsel for the accused would maintain that, the investigation claimed to have been carried out by PW2/Inspector of SEB is table made and with the help of interested witnesses, he falsely

Excise Court, CC No. 996 of 2024 Machilipatnam. Dt: 16-04-2025 implicated the accused. Resisting the same, the Ld.APP contended that minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.

16. It is important to note that, the case is registered sue-motu as such, this Court considered it appropriate to go for corroboration.

Therefore, it is apt to advert to the material elicited from the cross- examination of P.Ws.1 & 2 and the recitals of Ex.P1 – Mediator report. In the cross-examination of P.W.1/mediator categorically admitted that, he did not know the name of constable who prepared Ex.P1 report and ID slips allegedly affixed on MO.1. He further admitted that, he cannot say the particulars of the house in dispute. He further admitted that, the contraband was not quantified in his presence. He further conceded that, the description of the bag and bottle were not mentioned in Ex.P1 report.

He fairly admitted that,he did not furnish any document to show that, he was placed as incharge VRO of Pindivaripalem village. Thus, the testimony of PW1 is not even corroborated with the contents of Ex.P1 report. The evidence of P.W.1 before the Court is not free from suspicion and creates any amount of doubt regarding his presence at the time of alleged search and seizure.

Excise Court, CC No. 996 of 2024 Machilipatnam. Dt: 16-04-2025

17. In this context, it is profitable to refer the observation made by the

Hon’ble High Court of A.P. in S.Babu Saheb @ Babu Vs. State of

A.P 1 at paragraph No.16 that “ The excise officials were proceeding on information. When they were proceeding on information, they were right in taking mediators along with them. If in a given case the excise or police officials have to search a vehicle in a forest area or at a place where there is no possibility of securing any local mediators, then probably they will be justified in conducting seizure proceedings in the presence of mediators brought by them from a different place. But when they are conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants.

They must make sincere efforts to secure local respectable mediators.

That is the mandate of Sec.100(4) of Cr.P.C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under Sub-section (4) of Sec.100

Cr.P.C. The object of Sec.100 Cr.P.C is to ensure confident in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted”.

1. 2010 (1) ALT (Crl.) 32

Excise Court, CC No. 996 of 2024 Machilipatnam. Dt: 16-04-2025

As already stated above , the procedure under Sec. 55 of AP Excise Act and the procedure U/Sec. 100(4) Cr.P.C is very much similar.

In the given case, admittedly and evidently, PW.1 is working as

VRO at Akulamannadu village whereas, the offence allegedly took place at Pindivaripalem village. As per PW.2, nearly 10 people gathered at the time of alleged search and seizure at the house of accused in dispute but he did not secure them as mediators. Therefore, the proposition held in the above said case is squarely applicable to the present case.

18. Further, PW.1 stated that,he did not know the name of constable who prepared Ex.P1 report and ID slips allegedly affixed on

MO.1. PW1 further stated that, the contraband was not quantified in his presence. If these circumstances are taken into consideration, the presence of P.W.1 at the time of search and seizure of contraband at the scene of offence, is highly doubtful. Likewise, there is no iota of evidence regarding exclusive possession of the contraband by the accused and sale. The evidence of such a witness, therefore, may not be accepted without sufficient corroboration.

19.Coming to the other crucial aspect that as per prosecution, the sample had been drawn on 12.12.2023. Whereas, the Laboratory

Analysis report make it clear that, there is onemonth delay in sending the

Excise Court, CC No. 996 of 2024 Machilipatnam. Dt: 16-04-2025 sample for chemical examination. Admittedly and evidently, there is one month delay in sending sample. No plausible explanation, whatsoever has been offered by the prosecution about the delay in sending the sample to the Analyst and it is one of the important circumstances for doubting the case of prosecution. In Ratnala Brundavanam Vs. State of

AP 2 , the Hon’ble High Court of A.P. held that the delay in sending the sample is always fatal to the case of prosecution, where no explanation is offered for such delay.

20. Ex.P5 Chemical Examiner Report discloses that, the sample tested is I.D. Liquor unfit for human consumption and injurious to health, however seizure of I.D. Liquor and lifting of sample under Ex.P1 is under cloud. Moreover, there is no evidence that, the alleged sample bottle is in hygiene condition. There is no evidence to show that, the sample allegedly seized from the possession of accused and the sample sent to the analysts are one and the same for the reason, the PW.2 fairly admitted that the slips on the sample bottle appears to be affixed recently.

Such is the situation, no reliance can be placed on either Ex.P5 Analysis report. Therefore, Ex.P5 is no way helpful to the case of prosecution in proving the charge.

2. 2004 (1) ALD Crl. 905

Excise Court, CC No. 996 of 2024 Machilipatnam. Dt: 16-04-2025

21. It is a case where the property was seized at the house

D.No.3/27 in Pindivaripalem village. The fact that there was no eye witness to the commission of the offence of selling/indulging in preparing

ID liquor by accused. PW2/IO in his cross-examination testified that, he did not enquire and examine the neighbors of that village to ascertain that the said house belongs to the accused and the nexus between accused and site in dispute and he did not secured any document to that effect. He categorically admitted that, he did not quantified the contraband, but he approximately measured the ID liquor at scene of offence.Therefore, I hold that the prosecution failed to connect the accused with the premises, where the alleged liquor is said to have been recovered.

22. Further more, the prosecution failed to let in evidence regarding destruction of remaining contraband and in whose presence the said proceedings were conducted. Admittedly, no such mediators who said have present at the time of destruction were cited in Charge sheet. Thus, it creates any amount of doubt about the credibility of the investigation claimed to have undertaken by PW.2. It is settled Law that accused is entitled to the benefits of every reasonable doubt in the prosecution story

Excise Court, CC No. 996 of 2024 Machilipatnam. Dt: 16-04-2025 and any such doubt in the prosecution case entitle the accused to acquittal.

23. In view of the aforesaid discussion, for the lack of adequate evidence, this Court holds that the prosecution failed to establish that accused was in possession of ID Liquor and selling the same in

Pindivaripalem Village. Therefore, in view of the proposition laid down in the referred citations (Supra) this Court holds that the prosecution failed to prove the guilt of the accused beyond reasonable doubt. Hence,

Accused is entitled for acquittal.

24. In the result, I find that, accused is not guilty for the offence under section 7(A) r/w 8(e) of A.P. Prohibition (Amendment) Act, 2020 .

Accordingly, she is acquitted under section 248(1) of Cr.P.C. The bail bonds of the accused shall be in force, for a period of six months under section 437-A Cr.P.C. The Mo.1 -Unexpended portion of the sample bottle, shall be destroyed after expiry of appeal time.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open Court, this the 16 th day of April, 2025.

sd/-

Spl.Judl.I-Class Magistrate, For trial under Proh. & Excise Offences, Machilipatnam.

Excise Court, CC No. 996 of 2024 Machilipatnam. Dt: 16-04-2025

//Appendix of Evidence//

Witnesses Examined

For Prosecution:

PW.1 : Ch.Varaprasad, VRO, Posinavaripalem village.

PW.2 : M.Ramakrishna Das, Inspector of SEB Police Station, Machilipatnam. PW.3 : T.Chittibabu, Sub-Inspector of SEB Police Station, Machilipatnam.

For Defence: None //Exhibits marked// For Prosecution:

Ex.P.1 : Mediator report dated 12-12-2023. Ex.P.2 : Rough sketch of scene of offence. Ex.P.3 : FIR in Cr.No.162/2023 of SEB, MTM. Ex.P.4 : Letter of advice, dt.08-01-2024. Ex.P.5 : Chemical analysis report dated 23-01-2024. Ex.P.6 : Copy of destruction proceedings dt.01-03-2024..

For Defence :Nil

//Material objects marked //

M.O.1 : Unexpended portion of sample bottle.

sd/-

Spl.Judl.I-Class Magistrate, For trial under Proh. & Excise Act,

Machilipatnam

//true copy//