Naseem Sultana

IN THE COURT OF VII ADDITIONAL JUNIOR CIVIL JUDGE, WARANGAL

Friday, this the 8th day of May, 2015

PRESENT:Smt. Naseem Sultana, B.A, L.L.M., VII Addl. Junior Civil Judge, Warangal.

O.S. NO.1210/2012

Between:-

1. Karne Manjula Rani,W/o.Late Ravi Kumar,Age:38 yrs.

Occ:Housewife.

2.Karne Shiva Sai, S/o.Late Ravi Kumar,Age:15 yrs. Occ:Student.

3.Karne Kathyayani,D/o.Late Ravi Kumar,Age:12 yrs. Occ:Student.

(Plaintiffs Nos. 2 and 3 being minors rep. by their natural mother/next friend,

Plaintiff Nos.1/Karne Manjula Rani).

All are R/o.H.No.5-11-178, Naimnagar,Lashkar Singaram village,Hanamkonda, Warangal. … Plaintiffs.

AND 1.Karne Sathaiah, S/o.Late Ramaiah,Age:70 yrs. Occ:Pensioner, R/o.H.No.5-11-178, Naimnagar, Lashkar Singaram, Hanamkonda, Warangal. 2.Karne Vijaya Laxmi, W/o.Sathaiah,Age:63 yrs.Occ:Household, R/o.H.No.5-11-178, Naimnagar,Lashkar Singaram village, Hanamkonda, Warangal. 3.The State of A.P through its District Collector, Warangal. 4.The Superintendent of Engineer ( I & CAD) Chinthagattu,KC Campus, Warangal. 5.Whom so ever it may concerned.

. ..Defendants.

This case is coming before me on this day for final hearing in the presence of Sri T.V.Ramana, Advocate for the plaintiffs and of Sri Dussa

Janardhan, Advocate for D1 and D2 and the Defendant Nos. 3 to 5 are

set ex-parte and upon perusing the evidence on record; upon hearing the arguments; and having stood over for consideration, in the matter, till today, this Court delivered the following.

J U D G M E N T

The plaintiffs herein filed the present suit against the defendant No.1 and

D2 ,who are the parents of deceased, and D3/The state of AP through its District

Collector, Warangal, D4/Superintendent of Engineer (I & CAD) Chinthagattu, KC campus, Warangal, D5/To whom so ever it may concern seeking relief of

Declaration that the plaintiffs are Legal heirs of deceased/K.Ravi Kumar,

S/o.K.Sathaiah, who died on 19.04.2012 leaving behind the plaintiffs and D1 and D2 herein as surviving Legal heirs.

2. As per the plaint averments, the case of the plaintiffs is as hereunder:

That the plaintiff No.1 is the Legally wedded wife, plaintiffs No.2 and 3 are the children and D1 and D2 are the Parents of the deceased person/K.Ravi

Kumar.

3. According to plaint averments, the husband of plaintiff No.1 died on19.04.2012. In support of her contention, the plaintiff No.1 has also filed death certificate of the deceased person issued by the Municipal Corporation,

Warangal, dt:30.04.2012.

4.It is further stated in the plaint that the said deceased/K.Ravi Kumar worked as Engineer in the office of D4, Warangal and he died on 19.04.2012 at

Warangal, while he was in the Service. It is further submitted that plaintiffs applied for job under compassionate grounds. The employer of the deceased asked plaintiffs to obtain Legal heir certificate from the competent Court of Law.

Hence, this suit.

5. On filing the suit, this Court directed to issue summons to the defendants. On service of summons to D3, D3 was not present in person nor represented by his counsel, as such he was set ex-parte on 22.11.2012.

Summons served on D4, D4 was not present in person nor represented by his counsel, as such he was set ex-parte on 28.01.2013. Publication was ordered against D5 in “Namaste Telangana” Telugu Daily Newspaper. After Publication was ordered for appearance of D5 in “Namaste Telangana” Telugu Daily

Newspaper for appearance of interested persons, if any against the suit, but nobody appeared before the court against the claim of plaintiffs herein on behalf of D5. Hence, D5 was also set ex-parte on 25.11.2013. Summons were served on D1 and D2 and they appeared through their counsel and also filed the Written

Statement.

6. The averments of the Written Statement are :-

That it has been admitted that plaintiff No.1 is the wife and plaintiff Nos. 2 and 3 are the children of the deceased/K.Ravi kumar and further it has been stated that D1 and D2 are the parents of the deceased/K.Ravi Kumar, who died on 19.04.2012, due to ill health at Rohini hospital, Hanamkonda. It is further submitted that Plaintiffs and D1 and D2 are the legal heirs and successors of the deceased/K.Ravi Kumar. It is further submitted that Plaintiff No.1 got the employment on compassionate grounds as Junior Assistant in the office of D4 soon after the demise of K.Ravi Kumar. It is denied by D1 and D2 that they have not co-operated with plaintiff for taking necessary steps to obtain legal heir certificate and they submitted that they are ready to co-operate with the plaintiffs for any purpose including getting the death benefits from the office of

D4 and other concerned offices.

7. It is further submitted that the Plaintiff no.1 has received the compensation from LIC of India and also the amount from State Life Insurance

Company and some benefits from the office of D4 but she has not elicited anything to them. They further submitted that they are having right over the legitimate share on death benefits and other benefits, which was already received and to be received from the office of D4 and other concerned offices and institutions. Hence, it has been prayed to pass a Decree by declaring the plaintiffs as well as D1 and D2 as the Legal heirs of the deceased/Karne Ravi

Kumar.

8.Now the point for consideration is “whether plaintiffs and

Defendant no.1 and Defendant no.2 are entitled to seek relief of

Declaration that they are legal heirs of Deceased Karne Ravi

Kumar,S/o.Sattaiah,who died on 19.04.2012 and to What relief ,if any

plaintiffs entitled”

POINT:

On careful perusal of record ,it is found that the plaintiff has admitted both in her plaint and chief examination that D1 and D2 are parents of deceased/K.Ravi Kumar. Though it has been contended by her that they are not co-operating with her for taking necessary steps in obtaining legal heir certificate in her chief examination. But in her cross examination, she has admitted that D1 and D2 are her husband’s parents and that they are also having rights over the benefits of husband and that she is not having any objection over it.

9.So far as the relief of declaration, legal character status is concerned, I have gone through the Provision of Sec.34 of Specific Relief Act that reads as herein under:

(i) Sec.34. discretion of the Court as to declaration of status or right :-

Any person entitled to any Legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit asked for any further relief:

(ii) Provided that no Court shall make any such declaration where plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation:- A Trustee of property is a “person interested to deny” a title adverse to the title of someone who is not in existence, and whom, if in existence, he would be a trustee.

This section does not deal with any form of declaration but deals with only such a declaration which the plaintiff is entitled to regarding a specific legal character or to any right as to property. Therefore, a declaratory decree may be granted or refused depending upon the circumstance of each case. Since the claim of such relief is not an absolute one but only a discretionary one, but no such discretion can be exercised arbitrarily, but in accordance with established principles of law. A relief of declaration being a discretionary relief cannot be granted except in cases where substantial injury is established.

Further section 35 clarifies that the declaration given under section 34 of

Specific Relief Act is binding only between the parties, it is a declaration in personam and not in rem.

10.Now, coming to the evidence of Pw1, she has filed her affidavit as evidence of chief reiterating the same facts that are stated in the plaint. In proof, the testimony of Pw1 is that she is the wife and plaintiffs no.2 and 3 are the children and D1 and D2 are the Parents of deceased/K.Ravi Kumar Kumar and that K.Ravi Kumar died on 19-04-2012 and the Death certificate under

Ex.A1 is to that effect. Furthermore, A2 is the Family members certificate, showing plaintiff No.1 as the wife and plaintiffs No.2 and 3 as the children, and

D1 and D2 as Parents of deceased/K.Ravi. Therefore, considering the facts and circumstances of the case and the nature of relief sought for, I have gone through the case law in this regard.

11.To answer the point in issue question, I have gone through the provisions of sec.34 of the Specific Relief Act, 1963 ,which are in Pari materia with those of sec.42 of old act. Sec. 34 of the Specific Relief Act, 1963 reads thus:

“Any person entitled to any legal character, or to any right as to any property may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so.

Explanation....... “

In Bansi lal v/s Shankar lal, AIR (20) 1933 Nag.292. It was held that :

“A suit for a declaration that the plaintiff was and continued to be the adoptive father of the defendant was virtually a suit to declare that the defendant was the adopted son of the plaintiff and was maintainable. I am inclined to think that this case certainly lends support to the appellants contention, though it may be that a declaration of a person being the adoptive father of another may, where the former owns some property, involves an aliment of injury to his absolute title to that property. It is nevertheless a case in which the ‘legal character’, by which I mean the status of the adoptive father, is involved”. Before I refer to the cases in which the words ‘Legal- Character’ in

Sec. 42, Specific Relief Act, were interpreted as an expression of wide import so as to embrace the status of the person concerned. I may just make a brief observation with regard to the meaning which, in my view,should be assigned to that expression. In the first place, it must be kept in view that these words have specific reference to the person or the party seeking a declaration under this section without the same being affected by the circumstance whether or not he has a right to any property also. The words ‘legal character’ and right as to any property have been used disjunctively and not conjunctively. So as to entitle the plaintiff to a declaration on the exclusive basis of either the one or the other.

Again, the word “legal” before the word character is also not without any significance. Where a man a legitimate son of an another, whether he is adoptive father or another, whether he has legally married a particular woman or whether by virtue of his relationship with a particular family, he is entitled to a certain privilege and concession or instances of questions involving his ‘legal character’ within the meaning of this section, and if he finds a danger or entertains any fear of a challenge to his status, as such he may surely seek relief in a Court of Law. This position appears to be amply supported by the rulings which I shall now mention.

In Naqi Hussain v/s Mt. Chhaji Begum, AIR (12) 1925 oudh 210, it was remarked “it maybe that the plaintiff has intention of using the declaration which he may obtain from the Court for the purpose of inducing the authorities concerned to accept his claim to the pension, be either bar to the maintainability of the suit for a declaration u/s.4, Pensions Act, or a sufficient ground for dismissing it in the exercise of discretion under Sec. 42, of Specific

Relief Act the relief for a declaration of status is substantial relief perse and under the provisions of Sec.42, Specific Relief Act, such a claim would be maintainable, though it has no reference what so ever to any right as to any property.” Then there are two full bench decisions, one is of Calcutta High Court in Noor Jehar Begum v/s Eugene Tiscenko, AIR (19) 1942,Cal.325, and the other is of Lahore High Court in Abdul Kareem v/s Mt. Saraya Begum,AIR (38) 1945

Lah.266, in which the Calcutta case was noticed with approval in the former, the meaning of the expression ‘legal character’ received the attention of the learned

Judges, and it was held that the words were wide enough to include the status of

a person. In the later also the same meaning was assigned to those words. It was pertinently remarked that :

Where the relationship does carry with it certain legal consequences, even though it may not effect or involve any right to property, a suit for declaration as to the existence of such relationship is competent”.

12.Therefore, following above legal position as there is no rival claim against the plaintiffs, D1 and D2 herein, their contentions that they are the legal heirs of the deceased by relation and the evidence of Pw1 can be accepted and I am of view that the plaintiffs,D1 and D2 are entitled to relief of declaration that they are the legal heirs of the deceased person/K.Ravi Kumar.

Accordingly, point answered in favour of plaintiffs herein.

13.In the result, the suit of the plaintiffs is hereby decreed, holding that the plaintiffs,D1 and D2 herein are Legal heirs of the deceased/K.Ravi Kumar who died on 19.04.2012.

(Typed to my dictation directly by the Typist, corrected and pronounced by me in the Open Court on this the 8th day of May, 2015)

Sd/-

VII-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

PW1-Karne Manjula Rani.

FOR DEFENCE:

-None-

EXHIBITS MARKED

FOR PROSECUTION:

Ex.A1 is the Death certificate of K.Ravi Kumar.

Ex.A2 is the Family members certificate.

FOR DEFENCE:

-Nil- Sd/-

VII-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL

IN THE COURT OF VII ADDITIONAL JUNIOR CIVIL JUDGE, WARANGAL

Thursday, this the 7th day of May, 2015

PRESENT:Smt. Naseem Sultana, B.A, L.L.M., VII Addl. Junior Civil Judge, Warangal.

O.S. NO.402/2014

Between:- 1.Kadaboina Balamani, W/o.Late , :48 yrs. Occ:Household. 2.Kadaboina Holi Sushma, D/o.Late Kishan, Age:20 yrs. Occ:Student. 3.Kadabina Homani Shirisha, D/o.Late Kishan,Age:19 yrs. Occ:Student. All are R/o.H.No.3-9-637,Reddy Colony, Hanamkonda, Warangal.

… Plaintiff.

AND 1.The State of Telangana through its District Collector, Collectorate Complex,Subedari, Hanamkonda, Warangal. 2.The Superintendent Executive Engineer, Rural Wate supply and Sanitation Dept. of TS,Adilabad district. 3.Whom so ever it may concerned.

...Defendants.

This case is coming before me on this day for final hearing in the presence of Sri Chirra Sambasiva Raju, Advocate for the plaintiffs and the defendants set ex-parte and upon perusing the evidence on record, upon hearing the arguments, and having stood over for consideration, in the matter, till today, this Court delivered the following.

J U D G M E N T

The plaintiffs herein filed the present suit against the defendant No.1/The state of AP through its District Collector, Warangal, D2/The Superintendent

Executive Engineer, Rural Water supply and Sanitation Dept. of A.P, Adilabad

District. D3/To whom so ever it may concern, seeking relief of Declaration that the plaintiffs are the Legal heirs of Late Kadaboina Kishan,S/o.K.Balaiah, who died on 15.03.2013 leaving behind the plaintiffs herein as surviving Legal heirs.

2. As per the plaint averments, the case of the plaintiffs is as hereunder:

That the plaintiff No.1 is the wife and plaintiff Nos. 2 and 3 are the children of the deceased person/ Kadaboina Kishan.

3. According to the plaint averments, the deceased/K.Kishan, during his life time worked as Executive Engineer in the office of the Executive Engineer APRWSS

Project,Adilabad. While in the service, he died on 15.03.2013 leaving behind the plaintiffs as his sole legal heirs and successors to him and to his Estate. It is further submitted that plaintiff No.1 is the wife and plaintiff Nos.2 and 3 are the children of the deceased and his death intimation has been recorded in the register of Birth and Deaths maintained by the Municipal Corporation, Warangal.

4.It is further submitted that plaintiff’s husband died during his Service and the plaintiff’s family is entitled for employment on compassionate grounds and also entitled for death benefits. The plaintiffs being the legal heirs approached the

Tahsilder, Hanamkonda for issuance of legal heir certificate, who after conducting

Denova enquiry got issued the family members certificate, dt:21.09.2014 by certifying that the plaintiffs are the family members of the deceased and the same is filed in the Court.

5. It is further submitted that the plaintiffs approached D1 and D2 for providing employment on compassionate grounds but they informed them to submit legal heir certificate for forwarding the same to Higher Officials for providing the employment on compassionate grounds to the plaintiffs. It is also submitted that in view of the orders of the Hon’ble High Court of A.P.Hyderabad, the Revenue

Authorities are not issuing any legal heir certificate and advised to approach Court of Law for obtaining the same. Hence, this suit.

6. On filing the suit, this court directed to issue summons to D1, D2 and

Publication was ordered against D3 in “Namaste Telangana” Telugu Daily

Newspaper. After serving of summons to D1 and D2, they did not appeared either personally or through their counsel, hence D1 and D2 were set ex-parte on 04.08.2014. Furthermore, after Publication was ordered for appearance of D3 in “Namaste Telangana” Telugu Daily Newspaper for appearance of interested persons, if any against the suit, but nobody appeared before the court against the claim of plaintiff herein on behalf of D3. Hence, D3 was also set ex-parte on 21.11.2014.

Therefore, the matter heard ex-parte.

5.During the course of ex-parte hearing, on behalf of plaintiffs, the plaintiff

No.2 gave evidence as Pw1/K.H.Sushma and got marked Exs.A1 to A5. Ex.A1 is the family members certificate, Ex.A2 is the death certificate of K.Kishan. Ex.A3 is the election card of Plaintiff no.1. Ex.A4 is the election card of Pw1. Ex.A5 is the election card of Plaintiff No.3.Then the counsel appearing on behalf of plaintiff, reported no further evidence. Thus the plaintiff’s evidence is closed. Then the counsel appearing on behalf of plaintiffs herein submitted his arguments.

6.Now the point for consideration is “whether the plaintiffs herein entitle

to relief of declaration that they are the legal heirs of deceased

person/K.Kishan as prayed for”?

POINT:

7.So far as the relief of declaration, legal character /status is concerned, I have gone through the Provision of Sec.34 of Specific Relief Act that reads as herein under:

(i) Sec.34: Discretion of the Court as to declaration of status or right :- Any person entitled to any Legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit asked for any further relief:

(ii) Provided that no Court shall make any such declaration where plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation:- A Trustee of property is a “person interested to deny” a title adverse to the title of someone who is not in existence, and whom, if in existence, he would be a trustee.

This section does not deal with any form of declaration but deals with only such a declaration which the plaintiff is entitled to regarding a specific legal character or to any right as to property. Therefore, a declaratory decree may be granted or refused depending upon the circumstance of each case. Since the claim of such relief is not an absolute one but only a discretionary one, but no such discretion can be exercised arbitrarily, but in accordance with established principles of law. A relief of declaration being a discretionary relief cannot be granted except in cases where substantial injury is established. To entitle to plaintiff to maintain declaratory suit, he must show that he has legal character of some right to the property and that his opponent was denying or interested to deny the same.

Further section 35 clarifies that the declaration given under section 34 of Specific

Relief Act is binding only between the parties, it is a declaration in personam and not in rem.

8.Now, coming to the evidence of Pw1, she has filed her affidavit as evidence of chief reiterating the same facts that are stated in the plaint. In proof, the testimony of Pw1 is that she herself and plaintiff no.3 are the daughters and plaintiff no. 1 is the wife of deceased/K.Kishan, Death certificate under Ex.A2 is to that effect. Furthermore, A1 is the Family members certificate issued by

Tahsildar,Hanamkonda, dt:21.09.2013, showing plaintiff No.1 as the wife and plaintiffs No.2 and 3 as the daughters of deceased/K.Kishan. Exs. A3 to A5 are the election cards of plaintiffs nos. 1 to 3,showing the deceased/K.Kishan as the husband of plaintiff No.1 and father of plaintiffs No. 2 and 3. Therefore, considering the facts and circumstances of the case and the nature of relief sought for, I have gone through the case law in this regard.

9.To answer the point in issue question, I have gone through the provisions of sec.34 of the Specific Relief Act, 1963 ,which are in Pari materia with those of sec.42 of old act. Sec. 34 of the Specific Relief Act, 1963 reads thus:

“Any person entitled to any legal character, or to any right as to any property may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so.

Explanation....... “

In Bansi lal v/s Shankar lal, AIR (20) 1933 Nag.292. It was held that :

“A suit for a declaration that the plaintiff was and continued to be the adoptive father of the defendant was virtually a suit to declare that the defendant was the adopted son of the plaintiff and was maintainable. I am inclined to think that this case certainly lends support to the appellants contention, though it may be that a declaration of a person being the adoptive father of another may, where the former owns some property, involves an ailment of injury to his absolute title to that property. It is nevertheless a case in which the ‘legal character’, by which I mean the status of the adoptive father, is involved”.

Before i refer to the cases in which the words ‘Legal- Character’ in Sec. 42,

Specific Relief Act, were interpreted as an expression of wide import so as to embrace the status of the person concerned. I may just make a brief observation with regard to the meaning which, in my view,should be assigned to that expression. In the first place, it must be kept in view that these words have specific reference to the person or the party seeking a declaration under this section without the same being affected by the circumstance whether or not he has a right to any property also. The words ‘legal character’ and right as to any property have been used disjunctively and not conjunctively. So as to entitle the plaintiff to a declaration on the exclusive basis of either the one or the other. Again, the word “legal” before the word character is also not without any significance. Where a man is a legitimate son of an another, whether he is adoptive father or another, whether he has legally married a particular woman or whether by virtue of his relationship with a particular family, he is entitled to a certain privilege and concession or instances of questions involving his ‘legal character’ within the meaning of this section, and if he finds a danger or entertains any fear of a challenge to his status, as such he may surely seek relief in a Court of Law. This position appears to be amply supported by the rulings which I shall now mention.

In Naqi Hussain v/s Mt. Chhaji Begum, AIR (12) 1925 oudh 210, it was remarked “it maybe that the plaintiff has intention of using the declaration which he may obtain from the Court for the purpose of inducing the authorities concerned to accept his claim to the pension, be either bar to the maintainability of the suit for a declaration u/s.4, Pensions Act, or a sufficient ground for dismissing it in the exercise of discretion under Sec. 42, of Specific Relief Act... the relief for a declaration of status is substantial relief perse and under the provisions of Sec.42,

Specific Relief Act, such a claim would be maintainable, though it has no reference what so ever to any right as to any property.”

Then there are two full bench decisions, one is of Calcutta High Court in

Noor Jehar Begum v/s Eugene Tiscenko, AIR (19) 1942,Cal.325, and the other is of

Lahore High Court in Abdul Kareem v/s Mt. Saraya Begum,AIR (38) 1945 Lah.266, in which the Calcutta case was noticed with approval in the former, the meaning of the expression ‘legal character’ received the attention of the learned Judges, and it was held that the words were wide enough to include the status of a person. In the later also the same meaning was assigned to those words. It was pertinently remarked that :

Where the relationship does carry with it certain legal consequences, even though it may not effect or involve any right to property, a suit for declaration as to the existence of such relationship is competent”.

10.Therefore, following above legal position as there is no rival claim against the plaintiffs herein, their contentions that they are the legal heirs of the deceased by relation and the evidence of Pw1 can be accepted and I am of view that the plaintiffs are entitled to relief of declaration that they are the legal heirs of the deceased person/K.Kishan.

Accordingly, point answered in favour of plaintiffs herein.

11.In the result, the suit of the plaintiffs are hereby decreed, holding that the plaintiffs herein are Legal heirs of the deceased/K.Kishan, who died on 15.03.2013.

(Typed to my dictation directly by the Typist, corrected and pronounced by me in the Open Court on this the 7th day of May, 2015)

Sd/-

VII-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

PW1-

FOR DEFENCE:-None-

EXHIBITS MARKED

FOR PROSECUTION:

Ex.A1 is the Family members certificate.

Ex.A2 is the Death Certificate,dt:26.08.2013.

Ex.A3 is the Election card of plaintiff No.1/K.Balamani.

Ex.A4 is the Election card of Pw1.

Ex.A5 is the Election card of plaintiff No.3/Kh.Shirisha.

FOR DEFENCE:

-Nil- Sd/-

VII-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

IN THE COURT OF VII ADDITIONAL JUNIOR CIVIL JUDGE, WARANGAL.

Thursday, this the 7th day of May, 2015

PRESENT:Smt. Naseem Sultana, B.A, L.L.M., VII Addl. Junior Civil Judge, Warangal.

O.S. NO.99/2015

Between:- 1.Mohd. Riyaz Hussain,S/o.Late Gulam Murthuza Hussain, Age:53 yrs. Occ:Nil. 2.Mohd. Bilal Hussain,S/o.Riyaz Hussain,Age:25 yrs. Occ:Nil. (Physically handicapped, deaf and dumb). 3.Mohd Sohail Hussain,S/o.Riyaz Hussain,Age:22 yrs.Occ:Student. 4.Asiya Samreen,S/o.Riyaz Hussain,Age:16 yrs. Occ: Student being minor rep. by his natural father Mohd.Riyaz Hussain i.e., plaintiff No.1. All are R/o.H.No.5-2-53,Bokkalagadda, Hanmakonda,Warangal. … Plaintiffs. AND 1.The State of Telangana through its District Collector, Collectorate Complex,Subedari, Hanamkonda, Warangal. 2.Whom so ever it may concerned.

..Defendants.

This case is coming before me on this day for final hearing in the presence of Sri Y.Chandrasekhar, Advocate for the plaintiffs and the defendants set ex- parte and upon perusing the evidence on record, upon hearing the arguments, and having stood over for consideration, in the matter, till today, this Court delivered the following.

J U D G M E N T

The plaintiffs herein filed the present suit against the defendant No.1/The state of AP through its District Collector, Warangal, D2/ To whom so ever it may concern, seeking relief of Declaration that the plaintiffs are the Legal heirs of Late

Safia Sulthana, W/o.Riyaz Hussain, who died on 29.09.2014 leaving behind the plaintiffs herein as surviving Legal heirs.

2. As per the plaint averments, the case of the plaintiffs is as hereunder:

That the plaintiff No.1 is the husband and plaintiff Nos. 2 to 4 are the children of the deceased person/ Safia Sultana.

3. According to the plaint averments, the deceased/ Safia Sultana, during his life time worked as Superintendent in the office of the District Insurance Office, (APGLI,TGLI) Adilabad vide Employee ID number 1505635 and died while in the service, leaving behind the plaintiffs as her sole legal heirs and successors to her.

It is further submitted that plaintiff No.1 is the husband and plaintiff Nos. 2 to 4 are the children of the deceased and her death intimation has been recorded in the register of Birth and Deaths maintained by the Municipal Corporation, Warangal.

4.It is further submitted that plaintiff No.1’s wife died during her Service and the plaintiff’s family is entitled for employment on compassionate grounds and also entitled for death benefits. The plaintiffs being the legal heirs approached the

Tahsilder, Hanamkonda for issuance of legal heir certificate, who after conducting

Denova enquiry got issued the family members certificate, dt:24.12.2014 by certifying that the plaintiffs are the family members of the deceased and the same is filed in the Court.

5.It is further submitted that the plaintiffs approached the concerned Officials for providing employment on compassionate grounds but they advised them to approach Court to get legal heir certificate. It is also submitted that in view of the orders of the Hon’ble High Court of A.P.Hyderabad, the Revenue Authorities are not issuing any legal heir certificate and advised to approach Court of Law for obtaining the same. Hence, this suit.

6. On filing the suit, this court directed to issue summons to D1 but he did not appeared either personally or through his counsel, hence D1 was set ex-parte on 31.03.2015. Publication was Ordered against D2 in “Sakshi” Telugu Daily

Newspaper. Furthermore, after Publication was ordered for appearance of D2 in “Sakshi” Telugu Daily Newspaper for appearance of interested persons, if any against the suit, but nobody appeared before the court against the claim of plaintiff herein on behalf of D2. Hence, D2 was also set ex-parte on 16.04.2015.

Therefore, the matter heard ex-parte.

7.During the course of ex-parte hearing, on behalf of plaintiffs, the plaintiff

No.3 gave evidence as Pw1/Md.Sohail Hussain and got marked Exs.A1 and A2.

Ex.A1 is the death certificate.Ex.A2 is the family members certificate. Then the counsel appearing on behalf of plaintiffs, reported no further evidence. Thus the plaintiff’s evidence is closed. Then the counsel appearing on behalf of plaintiffs herein submitted his arguments.

8.Now the point for consideration is “whether the plaintiffs herein entitle

to relief of declaration that they are the legal heirs of deceased

person/Safia Sultana as prayed for”?

POINT:

9.So far as the relief of declaration, legal character /status is concerned, I have gone through the Provision of Sec.34 of Specific Relief Act that reads as herein under:

(i) Sec.34: Discretion of the Court as to declaration of status or right :- Any person entitled to any Legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit asked for any further relief:

(ii) Provided that no Court shall make any such declaration where plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation:- A Trustee of property is a “person interested to deny” a title adverse to the title of someone who is not in existence, and whom, if in existence, he would be a trustee.

This section does not deal with any form of declaration but deals with only such a declaration which the plaintiff is entitled to regarding a specific legal character or to any right as to property. Therefore, a declaratory decree may be granted or refused depending upon the circumstance of each case. Since the claim of such relief is not an absolute one but only a discretionary one, but no such discretion can be exercised arbitrarily, but in accordance with established principles of law. A relief of declaration being a discretionary relief cannot be granted except in cases where substantial injury is established. To entitle to plaintiff to maintain declaratory suit, he must show that he has legal character of some right to the property and that his opponent was denying or interested to deny the same.

Further section 35 clarifies that the declaration given under section 34 of Specific

Relief Act is binding only between the parties, it is a declaration in personam and not in rem.

10.Now, coming to the evidence of Pw1, he has filed his affidavit as evidence of chief reiterating the same facts that are stated in the plaint. In proof, the testimony of Pw1 is that he herself and plaintiff nos. 2 and 4 are the children and plaintiff no. 1 is the husband of deceased/Safia Sultana, Death certificate under

Ex.A1 is to that effect. Furthermore, A2 is the Family members certificate issued by

Tahsildar, Hanamkonda, dt:24.12.2014, showing plaintiff No.1 as the husband and plaintiffs No.2 to 4, as the children of deceased/Safia Sultana. Therefore, considering the facts and circumstances of the case and the nature of relief sought for, I have gone through the case law in this regard.

11.To answer the point in issue question, I have gone through the provisions of sec.34 of the Specific Relief Act, 1963 ,which are in Pari materia with those of sec.42 of old act. Sec. 34 of the Specific Relief Act, 1963 reads thus:

“Any person entitled to any legal character, or to any right as to any property may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so.

Explanation....... “

In Bansi lal v/s Shankar lal, AIR (20) 1933 Nag.292. It was held that :

“A suit for a declaration that the plaintiff was and continued to be the adoptive father of the defendant was virtually a suit to declare that the defendant was the adopted son of the plaintiff and was maintainable. I am inclined to think that this case certainly lends support to the appellants contention, though it may be that a declaration of a person being the adoptive father of another may, where the former owns some property, involves an ailment of injury to his absolute title to that property. It is nevertheless a case in which the ‘legal character’, by which I mean the status of the adoptive father, is involved”.

Before i refer to the cases in which the words ‘Legal- Character’ in Sec. 42,

Specific Relief Act, were interpreted as an expression of wide import so as to embrace the status of the person concerned. I may just make a brief observation with regard to the meaning which, in my view,should be assigned to that expression. In the first place, it must be kept in view that these words have specific reference to the person or the party seeking a declaration under this section without the same being affected by the circumstance whether or not he has a right to any property also. The words ‘legal character’ and right as to any property have been used disjunctively and not conjunctively. So as to entitle the plaintiff to a declaration on the exclusive basis of either the one or the other. Again, the word “legal” before the word character is also not without any significance. Where a man is a legitimate son of an another, whether he is adoptive father or another, whether he has legally married a particular woman or whether by virtue of his relationship with a particular family, he is entitled to a certain privilege and concession or instances of questions involving his ‘legal character’ within the meaning of this section, and if he finds a danger or entertains any fear of a challenge to his status, as such he may surely seek relief in a Court of Law. This position appears to be amply supported by the rulings which I shall now mention.

In Naqi Hussain v/s Mt. Chhaji Begum, AIR (12) 1925 oudh 210, it was remarked “it maybe that the plaintiff has intention of using the declaration which he may obtain from the Court for the purpose of inducing the authorities concerned to accept his claim to the pension, be either bar to the maintainability of the suit for a declaration u/s.4, Pensions Act, or a sufficient ground for dismissing it in the exercise of discretion under Sec. 42, of Specific Relief Act.. the relief for a declaration of status is substantial relief perse and under the provisions of Sec.42,

Specific Relief Act, such a claim would be maintainable, though it has no reference what so ever to any right as to any property.”

Then there are two full bench decisions, one is of Calcutta High Court in

Noor Jehar Begum v/s Eugene Tiscenko, AIR (19) 1942,Cal.325, and the other is of

Lahore High Court in Abdul Kareem v/s Mt. Saraya Begum,AIR (38) 1945 Lah.266, in which the Calcutta case was noticed with approval in the former, the meaning of the expression ‘legal character’ received the attention of the learned Judges, and it was held that the words were wide enough to include the status of a person. In the later also the same meaning was assigned to those words. It was pertinently remarked that :

Where the relationship does carry with it certain legal consequences, even though it may not effect or involve any right to property, a suit for declaration as to the existence of such relationship is competent”.

11.Therefore, following above legal position as there is no rival claim against the plaintiffs herein, their contentions that they are the legal heirs of the deceased by relation and the evidence of Pw1 can be accepted and I am of view that the plaintiffs are entitled to relief of declaration that they are the legal heirs of the deceased person/Safia Sultana. Accordingly, point answered in favour of plaintiffs herein.

12.In the result, the suit of the plaintiffs are hereby decreed, holding that the plaintiffs herein are Legal heirs of the deceased/Safia Sultana, who died on 29.09.2014 .

(Typed to my dictation directly by the Typist, corrected and pronounced by me in the Open Court on this the 7th day of May, 2015)

Sd/-

VII-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

PW1-

FOR DEFENCE:-None-

EXHIBITS MARKED

FOR PROSECUTION:

Ex.A1 is the Death certificate, dt:24.1.2014.

Ex.A2 is the Family members certificate.

FOR DEFENCE:

-Nil- Sd/-

VII-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

1

IN THE COURT OF VII. ADDL JUDL. FIRST CLASS MAGISTRATE::

WARANGAL

Tuesday, this is the 15th day of May, 2012

Present: Smt. Naseem Sultana, B.A., L.L.M., VII. Addl. Jud l. First Class Magistrate, Warangal.

M.C.NO. 3 of 2011

Between:

Rama Meena Kumari, W/o Rajaiah, Age: 52 yrs., Occu: Housewife, Rampur village, Dharmasagar Mandal, Warangal District.

… Petitioner

And

Rama Rajaiah, S/o Komuraiah, Age: 60 yrs., Occu: Conductor, E.No.54332, APSRTC Depot-I, R/o H.No.5-54, Near: Ashoka Gardens, Petrol Pump, Rampoor, Hyderabad Road, Dharmasagar (M), Warangal Dist. … Respondent

This petition is coming before me for hearing in the presence of Sri C.Vidya Sagar Reddy, counsel for Petitioner and of Sri. Bhaskar Reddy, Counsel for Respondent and upon perusing the material on record and having stood over for consideration in this matter till today, this court passed the following:

O R D E R

This petition is filed U/Sec.125 of Cr.P.C., by the Petitioner stating that she is legally wedded wife of the respondent and their marriage was performed on 5.9.1976 at Kothagudem village of Khammam district. It was further submitted that she is the 2nd wife of the respondent and her marriage was held with the consent of the 1st wife of the respondent. After the said marriage, they led happy marital life at Kothur, Hanamkonda.

Out of the wedlock, they were blessed with two children, one daughter and one son, who are married and leading their 2 independent life. It was further submitted that the respondent is also having one son and one daughter with his 1st wife and they are also leading independent life away from the respondent. It was further stated that the terms between the petitioner and respondent failed and hence, the respondent deserted the petitioner since 2003 and from then, the respondent neglected the petitioner and did not took care of her welfare. At the instance of the petitioner, several mediations were held to get back the society of the respondent, but it failed. As there was no other option, hence the petitioner, unable to maintain herself, approached the Secretary, District Legal Services Authority,

Warangal for claiming maintenance from the respondent, where the respondent voluntarily agreed to pay monthly maintenance of

Rs.900/- to the petitioner and an award was passed in the record by the District Legal Services Authority vide FLSA.No.190/2006

dated 4.10.2006, but the respondent is willfully avoiding the

terms of the award and is not paying the monthly maintenance regularly to the petitioner.

2.It was further submitted that the said amount was not sufficient for her maintenance and treatment for her old age diseases. It was further submitted that the respondent retired from his service on 31.10.2008 and received all the retirement benefits in lump-sum, even then he is avoiding to pay the maintenance to the petitioner. It was further submitted that the respondent used to receive pension as APSRTC Conductor

Rs.15,000/- per month and is having immovable property at 3

Rampur village and getting an amount of Rs.10,000/- per month and he is willfully neglecting the petitioner and not allowing her to join his society. The petitioner submitted that she is unable to do any work and she has no source of income and completely depending on her parents and leading miserable life, as such she prayed this court to award a sum of Rs.10,000/- per month to her from the respondent.

3The respondent through his counsel filed counter stating that the petitioner is not his legally wedded wife and that the petitioner is residing with her son Rama Neelender Kumar, who is working as Medical Representative. It was further submitted that the daughter of himself and the petitioner namely, Matedi

Bhavani's marriage was performed by him by spending huge amounts and agricultural land, worth of Rs.50,00,000/- (fifty lakhs), was given to his son Rama Neelender Kumar. It was further submitted that the daughter is working as private lecturer.

4. It was further admitted that he agreed to pay Rs.900/- per month to the petitioner before the District Legal Services

Authority, Warangal for the maintenance of the petitioner, when he was working as Conductor in APSRTC, but on 31.07.2008 he retired from his service and is getting pension of Rs.1,363/- per month and the said pension sanctioned copy vide its

No.AP/WGL/PENSION/10/599, is submitted in this court. He further stated that he is eking his livelihood with the meager 4 amount of Rs.1,363/- per month by meeting the medical expenses and also the livelihood of his 1st wife Sarojana, beside the household requirements. It was further submitted that except the pension amount, he is not having any source of income from any corner, as such he is facing much hardship in eaking out his livelihood.

5.Now, the point for consideration is :

“Whether the petitioner is entitled for maintenance as provided U/s.125 of Cr.P.C.?”

6.The learned counsel for the petitioner contended that the respondent has not disputed the relationship between him and the petitioner as his wife and that they had led matrimonial life and out of their wedlock they are blessed with two children and it is also admitted by the respondent that in the District Legal

Services Authority, he accepted to pay maintenance of Rs.900/- to the petitioner towards her maintenance, as such he is accepting the relation of the petitioner as his wife. As they led conjugal life and as he neglected to maintain the petitioner, hence he is liable to pay maintenance to the petitioner.

7.Whereas the learned counsel for the respondent argued that the petitioner is not legally wedded wife of the respondent and that the respondent is having already the 1st wife and

U/s.125 Cr.P.C., the petitioner is not entitled for maintenance.

5

8.On careful perusal of the evidence on record, it is found that the marriage between the petitioner and respondent was performed on 5.9.1976, as per the version of the petitioner. The respondent admitted that himself and the petitioner led the life as wife and husband and out of their wedlock, they are blessed with one son and one daughter. As such, it is clear that there is matrimonial relationship between the petitioner and the respondent.

9.The counsel for the petitioner relied on a judgment, reported in 2006 (3) ALT (Crl.) 218 (A.P.), held in between

Polivela Macharayya Vs Palivela Thirupthamma and

another, wherein it was held by our Hon'ble High Court that “the respondent is entitled for maintenance since she led conjugal life with the petitioner for more than 30 years and performed the marriage of the children.” Further, it was held by Hon'ble Madras

High Court in Shanmuga Udayar V. Sivanandan and another, reported in 1994 AIR Madras 123 that “Man and woman continuously living together and cohabiting for number of years, presumption that they are husband and wife”. In the present case also, both the petitioner and respondent led conjugal life for more than 30 years and the petitioner is liable for the maintenance from the respondent.

10.Further, the learned counsel for the petitioner has contended that due to lack of knowledge the petitioner in her cross examination has stated that she is having land of 1½ acres 6 situated in between Warangal and Hyderabad Highway Road, which costs Rs.25,00,000/- per acre. Even the respondent in his cross examination admitted that he did not gave any property to the petitioner. As he stated that he gave Rs.50,00,000/- (fifty lakhs) property/land to his son/Nilender Kumar situated on the

Warangal-Hyderabad road. He further admitted that the petitioner is not having any source of income. Hence, it is clear that the petitioner has stated the same out of lack of knowledge itself.

11.Though it is contended by the learned counsel for the respondent that the petitioner ought to have asked for maintenance from her children but not from the respondent as he is a retired Conductor and is living only on pension amount of

Rs.1,363/- per month, but in the cross examination, respondent admitted that beside receiving the pension he is also running a petty kirana shop and the petitioner is having all the rights to claim maintenance from the respondent as he led conjugal life with her and there is no hard and fast rule that she has to claim maintenance from the children itself. It was further contended by the learned counsel for respondent that as petitioner is 2nd wife, respondent is not liable to pay any maintenance to the petitioner.

But, it shall be noted that respondent led conjugal life for about 30 years with her. And he has not denied their matrimonial relations. Further, as admitted by the respondent also, he agreed to pay Rs.900/- as maintenance as per Award of District Legal

Services Authority and paid the same till his retirement. Hence, 7 considering this case on a different stand and as Sec.125 Cr.P.C.

Is a beneficial legislation, by considering the bad condition of the petitioner and as respondent also admitted that she is not having any source of income. It cannot be said that after leading a long conjugal life with petitioner, respondent cannot escape from his liability.

12.The learned counsel for the respondent has relied on the judgments reported in 1992 (3) ALT 570, 1985 Crl.L.J. 1706. But, the facts and circumstances of the present case are different from the above reported cases. Hence, these cases are not applicable to the present case.

13.Though the respondent stated that he has distributed his property in between his two sons i.e., one son of his 1st wife and the other son of the petitioner, but it does not have any affect to the petitioner, as the said property is given to sons and she is not getting anything out of the same and respondent has not proved that petitioner is receiving any earnings from the said property.

14.Hence, considering that the respondent led conjugal life with the petitioner and that at present he is neglecting her and he has also stated in his cross examination that he is not willing to take the petitioner into his company by not stating any reason.

Hence, this court is of the considered opinion that the petitioner is liable for the maintenance from the respondent. Further, considering the age of the respondent and also source of his 8 earnings, I am of the considered opinion that the petitioner is liable for maintenance of Rs.800/- only per month from the respondent.

15.IN THE RESULT, the petition is allowed partly and the petitioner is granted Rs.800/- per month towards her maintenance from the respondent from date of this order.

(Dictated to steno, after her transcription, corrected and

pronounced by me in the open court on 15th day of May,

2012).

Sd/- (NASEEM SULTHANA)

VII. ADDL. JUDL. FIRST CLASS MAGISTRATE,

WARANGAL.

:: APPENDIX OF EVIDENCE ::

(Witnesses Examined)

For Petitioner : For Respondent:

PW.1 : Rama Meena KumariRW.1 : Rama Rajaiah

: Exhibits Marked :

For Petitioner : Nil.

For Respondent:

Ex.R-1 : Pension sanction letter.

Sd/- (NASEEM SULTHANA)

VII. ADDL. JUDL. FIRST CLASS MAGISTRATE,

WARANGAL.

1

IN THE COURT OF VII-ADDITIONAL JUDICIAL FIRST CLASS

MAGISTRATE, WARANGAL

Friday, this is the 4th day of May, 2012

PRESENT: Smt. Naseem Sultana, B.A, L.L.M., VII. Addl. Judl. First Class Magistrate, Warangal.

CALENDER CASE NO. 316 of 2011

Between:

The State of A.P represented through Sub Inspector of Police, PS Hasanparthy … Complainant

AND

Madarapu Venkateshwarlu, S/o Ramchandraiah, 38 Yrs, Rajaka, R/o Damera. …Accused

This case is coming before me for final hearing in the presence of Assistant Public Prosecutor for State/Complainant and of Sri.M.Sahoder Reddy, Counsel for Accused and upon perusing the evidence on record and having stood over for consideration till today, this Court delivered the following.

J U D G M E N T

The accused is arraigned before this Court for the offences punishable under Sections 290, 323 and 353 of IPC.

2.The case of the prosecution is that on 24-10-2011 at 10.30 p.m, while LW.1/Mallikarjun, PC 107 of PS Hasanparthy along with

LW.2/Karunakar, HG 284 of PS Hasanparthy were performing patrolling duty near the houses of prostitutes in Vangapahad, then the accused along with another person came on their motor cycles and stopped in front of the houses of prostitutes. When he questioned them about their identity and that why they stopped there on which they abused him in filthy language and tried to push

LW.1/PC 107 by saying who is he to ask him and hence obstructed 2 from performing his legitimate duties then LW.2 Karunaker and LW.3

Abbani Pasha rescued him from them as such LW.1 Mallikarjun lodged report in the PS Hasanparthy.

3.Basing on the said report LW.9 HC 970 registered a case in Crime No. 222/2011 for the offences punishable U/Secs.290,323 and 353 of IPC and took up the investigation. During the course of investigation, he examined and recorded the statements of witnesses, visited the scene of offence, there prepared Crime Detail

Form in the presence of mediators, later on he handed over case CD file to LW.10 SI of Police for further investigation, who verified the investigation done by LW.9 and found it to be correct and took up further investigation.

4.On 25.10.2011 at 2.00 p.m, he arrested the accused and on interrogation he voluntarily confessed to have committed this offence. After the arrest he was sent to the Court for judicial custody.

After completion of investigation he filed charge sheet against the accused for the offences punishable U/Secs.290, 323 and 353 of IPC.

5.This case was taken on file by taking cognizance for the offences punishable under Sections 290, 323 and 353 of IPC and on appearance of accused, case copies were furnished to him as contemplated under Section 207 of Cr.P.C.

6.The accused was examined under Section 251 of Cr.P.C, and the substance of the accusation of the offences was read over and explained to him, for which he denied the allegations leveled against him, pleaded not guilty and claimed to be tried.

3

7.To prove its case, the prosecution has examined PWs 1 to 9 and got marked Exs-P1 to P7. PW.1 is the complainant, PW.2 to

PW.5 and PW.8 are the eye witnesses to the incident, PW.6 and

PW.7 are panch witnesses for Crime Detail Form, , PW.9 is the investigating officer . As Pw.9 deposed on behalf of LW.10 , hence the evidence of LW.10 B.Praveen, SI of Police has been closed.

8.After closure of the prosecution evidence, the accused was examined under Section 313 Cr.PC, for which he denied the incriminating circumstances appearing against him in the evidence on record and reported no defence evidence.

9.Heard arguments from both sides.

10.Now, the point for consideration is:

1).Whether the accused has abused PW.1 and PW.2 in filthy language and caused public nuisance. ?

2).Whether the accused voluntarily caused hurt to PW.1?

3).Whether the accused obstructed Pws.1 and 2 from discharging their legitimate duties?

4). Whether the prosecution has proved the guilt of the accused beyond reasonable doubt ?

11.POINT Nos.1 to 3 :

On perusal of the case record, it is found that PW.1 is the complainant and victim, PW.s 2 to 5 and 8 are the eye witnesses to the incident. It is found that Pws.4 and 5 who are cites as eye witnesses to the incident did not support the prosecution case as they stated that they do not know anything about the said incident.

Though PW.6 stated that he came to know that some discussion took 4 place between the accused and others. He has not stated whether any incident occurred between the accused and PW.1 or not.

Further, he has not stated that he has witnessed the said incident.

He merely stated that he came to know about it through others. As such his evidence is not worthwhile.

11.Hence there remains the evidence of Pws.1 to 3. PW.1 who is the complainant and victim has stated that on 24.10.2011 the accused and another abused them by saying that they are merely home guards and there is no need for them to reply to them.

Whereas PW.2 has stated that accused and another gave evasive reply and asked them not to question them in the capacity of home guards. He has no where stated that the accused abused them.

Further PW.1 has stated that the accused pushed him . Then PW.2 went to outpost and brought PW.3 along with him. He gave complaint to him. Whereas PW.2 has stated that he himself and PW.1 caught hold the accused and took him to the outpost and produced him

before PW.3 then they informed about the same to the PS

Hasanparthy. And PW.9, Bheema Reddy HC came to outpost in a jeep and took the accused. Whereas PW.3 ASI has stated that he received a phone call from the public that some incident was going on in front of the houses of prostitutes then he immediately rushed to the place and found the accused. Then he took the accused into custody and took him to the outpost. Hence, it clearly shows that all the witnesses are giving different versions, their evidence is inconsistent, not corroborating with each other as such their evidence is not believable.

5

12.It is further to be noted that PW.1 has stated that the said incident took place about three minutes whereas PW.2 has stated that the said incident took place for about half-an-hour.

Moreover, PW.1 has stated that except himself and PW.1 no one were there at the said scene of offence. Whereas PW.2 has stated in his cross examination that about 10 persons gathered at the time of said incident. Whereas PW.3 has stated that at the time of incident, PW.4, PW.5 and PW.8 were there. As such it is clear that all the witnesses are giving different versions and their versions is not at all corroborating in any way with each other, whether it is with regard to the time of the incident or about the persons witnessing the said incident. Even for a moment if the version of PW.3 is believed then from the record it is clear that Pws.4, 5 and 8 did not supported the prosecution case and nothing trustworthy was elicited in their cross examination by the learned APP.

13.Except PW.1 no other witnesses stated that accused abused PW.1. As PW.2 who is said to be eye witness as per PW.1 also did not stated that accused abused PW.1 in filthy language as such the prosecution could not prove the offence U/Sec.290 of IPC against the accused.

14.As per the versions of Pws.1 and 2, accused merely pushed PW.1 and no witness has stated that accused voluntarily caused hurt to PW.1 nor even his medical certificate is filed and no medical officer is examined in this case to prove that PW.1 received simple injuries. As such I am of the considered opinion that 6 prosecution could not prove the offence U/Sec.323 of IPC against the accused.

15.Though it is said that Pws.1 and 2 are police constable and home guard of PS Hasanparthy and they were on duty at the time of alleged incident but there is nothing on record to show that they were on duty at the time of the said incident. Though it is stated that there will be a register in the outpost but the investigating officer has not taken any efforts to submit the same before the Court so as to prove that Pws.1 and 2 were discharging their legitimate duties . When the prosecution could not prove that Pws.1 and 2 were on duty, as such there does not arise any question with regard to anyone committing of any assault or criminal force to deter them from discharging their legitimate duties. Hence the ingredients of the offence U/sec.353 of IPC is not proved by the prosecution.

16.Further as rightly argued by the learned counsel for the accused that Pws.1 and 2 has stated that along with accused another person was there at the time of said incident, but the prosecution has not taken any steps to cite him as eye witness.

Hence an adverse inference can be drawn about the causing of said incident.

POINT No:4

17.In view of all the above discussions, I am of the considered opinion that prosecution could not prove the guilt of the accused beyond reasonable doubt, hence I am inclined to extend benefit of doubt to the accused.

7 18IN THE RESULT, Accused is found not guilty for the offences punishable under Sections 290, 323 and 353 of IPC and hence acquitted under Section 255(1) Cr.P.C. The bail bonds of the accused shall stands cancelled.

Dictated to Personal Assistant, after her transcription,

corrected and pronounced by me in the open Court on this the 4th day of May, 2012).

Sd/- (Naseem Sultana),

VII-ADDL. JUDL. FIRST CLASS MAGISTRATE,

WARANGAL.

APPENDIX OF EVIDENCE

FOR PROSECUTION:

PW/LW.1– M.Mallikarjun/Complainant PW2/LW.2 – Karunakar/Eye witness PW3/LW.3 – Md.Abbani Pasha/Eye witness PW4/LW.4 - M.Venkateshwarlu/Eye witness PW5/LW.5 -M.Rajesh/Eye witness PW6/LW.7 -M.Vinod/Panch witness for Crime Detail Form PW7/LW.8 -M.Narshima/Panch witness for Crime Detail Form PW8/LW.6 -S.Kishore/Eye Witness PW9/LW.9 -S.Bheema Reddy/Investigating officer

EXHIBITS MARKED

FOR PROSECUTION

Ex-P1 is the complaint of PW.1 dt:24-10-2011 Ex-P2 is the 161 Cr.P.C statement of PW.4 dt:25.10.2011 Ex.P3 is the 161 Cr.P.C statement of PW.5 dt:25.10.2011 Ex.P4 is the signature of PW.6 on Crime Detail Form, dt:25.10.2011 Ex.P5 is the signature of PW.7 on Crime Detail Form, dt:25.10.2011 Ex.P6 is the FIR dt:24.10.2011 Ex.P7 is the Crime Detail Form, dt:25.10.2011

FOR DEFENCE

-Nil-

MATERIAL OBJECTS MARKED

-Nil-

Sd/- (Naseem Sultana),

VII-ADDL. JUDL. FIRST CLASS MAGISTRATE,

WARANGAL.