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Fair Judgment

IN THE COURT OF THE JUDGE, FAMILY COURT – CUM - III

ADDITIONAL DISTRICT & SESSIONS JUDGE, SRIKAKULAM.

Present: Sri N. MALYADRI,

Judge, Family Court-cum-III Addl.

District & Sessions Court, Srikakulam.

Friday, the 27th day of March, 2015.

Criminal Appeal No.16/2013

From What Court the Appeal : Judicial Magistrate of I Class, is preferredAmadalavalasa.

Number of the case in that : C.C.No.121/2009. Court

Number of the Appeal: 16/2013

Name and description of the :Potnuru Suryanarayana, son of AppellantPapayya, 32 years, S.C.Adivarampeta, Srikakulam Srikakulam district.

The sentence and order : under which it was imposed in the lower Court. The accused is found guilty for the offence u/s.304A of IPC and as such he is convicted u/s.255(2) Cr.P.C and the accused is directed to suffer simple imprisonment for a period of one year.

Whether confirmed/modified : Confirmed or Reversed, if modified the modification

Date of presentation: 20-02-2013

Date of filing: 21-02-2013

Notice issued by Court to : 22-02-2013 appear

Bail bonds if appellant has : --- been let out on bail

Appellant ordered to appear: 30-04-2013

Date of hearing: 19-03-2015

Date of judgment: 27-03-2015 2

This Criminal Appeal No.16/2013 is coming on 19.03.2015 for final hearing

before me in the presence of Sri P.S.Gandhi, learned Advocate for Appellant and of

Sri S. Hari Babu, learned Addl. Public Prosecutor for the Respondent - State and having stood over till this day, for consideration and this court delivered the following;

JUDGMENT

This Criminal Appeal No. 16/2013 is filed against the Judgment of conviction of accused dated 1.2.2013 passed in C.C.No.121/2009 by the learned

Judicial Magistrate of First Class, Amadalavalasa.

02.The said C.C.No.121/2009 is filed by Sub Inspector of Police,

Amadalavalasa police station by filing a charge sheet in Crime No.117/2009 of

Amadalavalasa police station against the accused to punish the accused for the offence under section 304-A of IPC .

03.The brief and relevant facts alleged in the charge sheet in C.C. No.

121/2009 on the file of Judicial Magistrate of First Class, Amadalavalasa are as follows:

On 18.6.2009 LW1-P.Paparao, LW2-G.Sriramulu, LW3-M.Bheemudu, LW4-

G.Prasad and LW5-Shaik Subhan boarded the auto of the accused bearing No.AP 30 V 5029 at Srikakulam to go to Amadalavalasa and at about 11.30 p.m. by the time it reached Indira Gandhi statue near Pata Amadalavalasa gate, the auto turned turtle as accused drove the auto in rash and negligent manner. As a result, one of the passengers in the auto by name P.Rambabu fell down and he sustained head injury. He was shifted to RIMS hospital, Srikakulam and at about 6.30 a.m on 19.6.2009 he died. Thus, on a report given by LW1-P.Paparao, a case in crime

No.117/2009 under section 304-A of Indian Penal Code was registered. During investigation, he examined material witnesses, he conducted inquest over the dead body of deceased P.Rambabu and he had sent the dead body for post 3 mortem . He examined the scene of offence and prepared an observation report as well as rough sketch. Later on 23.6.2009 he arrested the accused and got sent him to court for remanding him to judicial custody. On completion of investigation and after obtaining post mortem certificate, and Motor Vehicle Inspector report stating that there was no mechanical defect in the crime vehicle, he filed a charge sheet alleging that the accused is liable to be punished under section 304-A of

IPC.

04. On 30.6.2009 the trial court had taken cognizance for the offence under section 304A of IPC against the accused.

05. On first appearance, the accused was served with copies of case documents as envisaged under section 207 Cr.P.C in the trial court.

06)On 25.11.2010 in the trial court the accused was examined under section 251 Cr.P.C. and the allegations made against him under section 304-A of

IPC were read over and explained to him in Telugu and the accused denied the offence and claimed to be tried.

07) During the course of trial of this case in the trial court, the prosecution had got examined P.Ws1 to 11 and got marked Exs.P1 to P11 as noted in the appendix of evidence.

08) On 9.1.2012 in the trial court the accused was examined under section 313

Cr.P.C. and the incriminating evidence appearing against him was read over and explained to him. The accused denied the incriminating evidence and reported no defence evidence in the trial court.

08.After conducting due trial, the Judicial First Class Magistrate Court,

Amadalavalasa held that “Accused is found guilty for the offence under section 304-A of Indian Penal Code and as such he is convicted him under section 255(2)

Cr.P.C. and the accused is directed to suffer simple imprisonment for One year.

The bail bonds of accused stands cancelled. The remand period unmarked 4 property if any shall be destroyed after the lapse of appeal time.”

09.As against the said judgment in C.C.No.121/2009 on the file of Judicial

First Class Magistrate Court, Amadalavalasa , the accused filed the present

Criminal Appeal No. 16/2013 under section 374 (3)(A) Cr.P.C and the brief and relevant grounds of appeal in it are as follows:

a)The judgment of the trial court is contrary to law, weight of evidence and probabilities of the case.

b)The trial court ought to have acquitted the appellant in stead of convicting him for the offence under section 304-A of IPC ;

c) The trial court did not consider that the plea taken by the petitioner/accused that he is not driver of that crime vehicle AP 30 V 5029 and one Gopi shown as witness who was not having driving licence is the driver and

Ex.P10 proves it as it shows that deceased was brought by K.Gopi who is shown as cleaner of the vehicle by the prosecution and also shown in Ex.P10 that the person who died was unknown Male-45 years. It clearly shows that no family members were there at the time of admission of the deceased person at RIMS hospital, Srikakulam but the trial court did not look into that aspect.

d) The trial court did not consider that Ex.P1 was given by the pW1 at 8 a.m.

that the same was sent to court at 9 a.m. but the same was received by Court at 5.10 p.m. on that day. The PW1 clearly stated that after his brother's death he has been with the dead body up to 2 p.m. until the post mortem concluded. But, how

Ex.P1 registered at 8 a.m. and why the same was received by the Court at 5.10 p.m. even though the court is nearer to police station which creates doubt. The

Ex.P1 might have been registered after 3 p.m only after setting the driver's name to implicate into the case. But the trial court not looked into the possibilities of the same while considering Ex.P1 and the unexplained delay also not considered.

e)The trial court did not consider that the implication of the accused by 5 the auto owner who gave the auto to the driver who was not shown as witness and not examined by the prosecution. It is the duty of the prosecution to consider the same in order to fix the liability on the accused who is driver of the auto at the time of incident;

f) The trial court did not consider that the prosecution examined LW8 and recorded his statement under Sec.161 Cr.P.C. that he is working as a cleaner in AP 30 V 5029 vehicle and the facts stated that after accident he went to the hospital on 108 Ambulance but the Ex.P10 shows the auto number as 5920 brought by

K.Gopi which is also doubtful that the number of the auto mistakenly stated instead of 5029 and stated as 5920. The dispute between the auto numbers was cleared as per the Sec.161 Cr.P.C. of LW8 but the trial court did not consider the said aspect.

g) The trial court did not consider that the LW8 stated that he himself handed over the vehicle records to the police before mediators but how he will hand over the entire records to the police without appellant in this case. If really the accused committed an offence he will hand over the records or his owner will hand over the records. But the LW8 handed over the records shows that in order to escape from the liability he has handed over the others records to the police.

In Ex.P3 also not shown the arrest of the accused and also about whether he has surrendered and forcibly arrested by the police. The date on Ex.P3 also altered as 23.6.2009 which is also creating doubt regarding the investigation.

h) If P.Ws.1 to 5 are travelled in that auto they may also sustained at least simple injuries when the auto was turned turtle as stated by P.Ws.1 to 5 but nothing was happened to them. In the cross-examination P.Ws.1 to 5 stated that they have not examined by the police at any time, it shows that the names were supplied to the police by someone interested to deceased family for filing insurance compensations because if no eye witness was shown they may defeat 6 the insurance case.

I)Since the beginning of the trial, the counsel who appeared before the trial court stating that the accused was not driver of the crime vehicle but how the counsel will give suggestion that the accused not drove the vehicle in rash and negligent manner, but the trial court not applied it's judicial mind and considered the same and simply came to conclusion on the chief-examinations of witnesses.

j)Therefore, the appellant prays to set aside the Judgment in

CC.No.121/2009 dated 01.02.2013 of Judicial First Class Magistrate,

Amadalavalasa, in the interest of justice.

10.During the course of enquiry in Criminal Appeal No.16/2013 no witnesses are examined and no documents are marked on behalf of any of the parties.

11.For the sake of brevity and convenience, here in after, the parties and evidence will be referred as referred in the judgment in C.C.No. 121/2009 on the file of Judicial Magistrate of I Class, Amadalavalasa dated 01.02.2013.

.12.a)The learned counsel for the appellant in Crl.A.No.16/2013 and accused in C.C. 121/2009 submits the brief and relevant facts alleged in the charge sheet and grounds of appeal referred supra.

b) The learned counsel for the accused submits that as per Ex.P10 which is brought on record at the instance of accused, it is P.W.11 K.Gopi who brought the deceased to hospital which shows that accused is not the driver but the trial court without considering the same wrongly observed that the accused did not even suggested to any of the witnesses that there was no rash and negligent driving of the accused, as the plea of the accused is that he was not the driver of the auto involved in this case and that is the plea of the accused from the beginning.

c) The learned counsel for the accused submits that the trial court did 7 not consider that PW11 who brought the deceased as per Ex.P10 turned hostile to the case of prosecution and denied of his stating as in Ex.P11 but the trial court has not considered the contents of Ex.P11.

d) The learned counsel for the accused submits that if really P.Ws.1 to 5 , out of which P.Ws.1 and 5 are close relatives of the deceased were traveling in the auto at the time of accident definitely they must have sustained some injuries as the auto turned turtle, but there is no evidence on record to show that any one of them sustained any injuries or not and as such the accused proved that they are not eye witnesses and they gave evidence falsely.

e) The learned counsel for the accused submits that if really the accused drove the auto in a rash and negligent manner and same was turned turtle and accused also must have sustained some injuries but there is no evidence to prove that accused also sustained injuries.

f) The learned counsel for the accused submits that as PW1 to PW5 who are claimed as eye witnesses of the incident were not known to accused by the date of offence, identification parade must have been conducted but the prosecution did not do so.

g) The learned counsel for the accused submits that PW11 stated that the auto number is 5920 but as per the charge sheet the auto number is 5029 and thus there is a doubt regarding what is the number of the auto involved in this case and also in the light of same as the owner of the auto is not examined, the prosecution failed to prove that the accused drove the auto at the time of accident much less that he drove the auto in a rash and negligent manner and caused injuries to accused which resulted into the death of deceased-P.Rambabu.

h) The learned counsel for the accused submits that as the alleged accident was occurred on 18.6.2009 at about 11.30 p.m. but the complaint is given at 8 a.m. on the next day i.e., 19.06.2009 without any valid reason for the 8 unreasonable delay caused and the First Information Report must have dispatched immediately after the registration of the same immediately and further as P.W.10 stated at 9 a.m he dispatched, but it reached the court with delay at 5.10 p.m, and how much delay also cannot be ascertained as First Information Report is not containing the date and time of dispatch, the trial court should have considered all these facts but it did not do so.

i) The learned counsel for the accused submits that as P.Ws.1 to 5 out which P.W.1 and P.W.5 are relatives did not join the deceased into the hospital though they are claimed as eye witnesses of the accident and it is PW11 who joined the deceased in the hospital, it is proved that P.Ws.1 to 5 are planted witnesses and they are not eye witnesses to the alleged accident.

j) The learned counsel for the accused submits that this false case is foisted against the accused in order to get insurance benefits as PW11 had no valid driving licence by the date of accident and further as there are very reasonable doubts raised by the accused, as per the evidence on record, benefit of doubt should have been given by the trial court to the accused but the trial court without appreciation of the evidence on record wrongly convicted the accused and hence, this appeal may be allowed and the accused may be acquitted by setting aside the conviction and sentence of accused in

C.C.121/2009.

13)The learned Additional Public Prosecutor for the respondent/state submits that the brief and relevant facts alleged in the charge sheet and the grounds of appeal referred supra.

a)The learned Additional Public Prosecutor submits that P.Ws. 1 to 5 are the injured eye witnesses and PW1 is the defacto complainant in this case and they all in one voice deposed that the accused drove the auto in a rash and negligent manner and responsible for the death of deceased by causing injuries to 9 him and they all identified the accused in the court and there is no reason to disbelieve the evidence of them.

b) The learned Additional Public Prosecutor submits that the evidence of

PW11 who turned hostile to the case of the prosecution may not be helpful but because of the same it cannot be held that the prosecution not proved the guilt of the accused.

c)The learned Additional Public Prosecutor submits that the evidence of

PW6 and P.W.10 coupled with contents in Ex.P2 and Ex.P3 prove the conducting of observation of scene of offence and also that the accused was the driver of the auto at the time of accident.

d)The learned Additional Public Prosecutor submits that the evidence of

PW7 coupled with contents of Ex.P4 inquest report prove that the deceased -Rambabu died due to the accident occurred by the auto driven by the accused.

e)The learned Additional Public Prosecutor submits that the evidence of

PW8 coupled with contents in Ex.P5 prove that there was no mechanical defect which is responsible for occurring of the accident.

f)The learned Additional Public Prosecutor submits that the evidence of

PW9 coupled with contents in Ex.P6 prove that the medical officer evidence also corroborates the evidence of P.Ws. 1 to 5 and prove that the deceased died due to head injury caused in the accident.

g)The learned Additional Public Prosecutor submits that as per Ex.P11 ,

PW11 brought the deceased to the hospital but because of that it cannot be held that P.Ws.1 to 5 are not eye witnesses to the incident, and because of relationship of P.W.1 and P.W.5 with the deceased it cannot be held that they are speaking falsehood, as their evidence is cogent and natural and the trial court rightly believed the same.

14.Basing on the allegations in the charge sheet and grounds of appeal 10 and contentions, of the learned counsel for the appellant in Crl.A. No.16/2013 and learned Additional Public Prosecutor, the following points emerge for consideration:

1) Whether there was death of human being by name P.Rambabu?

2) Whether the accused was the driver of crime vehicle bearing

No.AP30V 5029?

3) Whether the accused drove such crime vehicle either rashly or negligently and whether such of his act was the cause for accident and injuries and resultant death of P.Rambabu?

4) Whether there was unreasonable delay in giving the complaint to police and also in reaching the FIR to Judicial First Class Magistrate

Court, Amadalavalasa from police station?

5) Whether the prosecution proved point Nos.1 to 3 beyond reasonable doubt?

6) Whether the accused is guilty and committed offence under section 304A of IPC?

7) Whether the punishment of simple imprisonment for one year without invoking the provisions of Probation of Offenders Act in accordance with law?

8) Whether the judgment of conviction and sentence of accused in CC

No.121/2009 are in accordance with law? And if not, whether they require for varying or modification or confirmation?

9) To what relief?

15.Points 1 to 8:- These points 1 to 8 are inter related from closely to each other. Hence, in order to avoid the repetition of discussion of evidence and for the sake of brevity and convenience they are discussed in common.

16.During the course of trial of this case in the trial court, the prosecution 11 examined P.Ws.1 to 11 and got marked Exs.P1 to P11 as noted in the appendix of evidence.

17.The case of the prosecution is that on 18.06.2009 P.Ws.1 to 5 boarded the auto of the accused bearing No.AP 30 V 5029 at Srikakulam to go to

Amadalavalasa and at about 11.30 p.m. by the time it reached Indira Gandhi statue near Pata Amadalavalasa gate, the auto turned turtle as accused drove the auto in a rash and negligent manner. As a result, one of the passengers in the auto by name P.Rambabu fell down and he sustained head injury. He was shifted to RIMS hospital, Srikakulam and at about 6.30 a.m on 19.6.2009 he died. It is also the case of the prosecution that the investigation disclosed that accused is the driver of the said auto and he committed the offence under section 304A of

IPC.

18.The case of the accused is one of the total denial of offence and that

PWs 1 and 5 are related and partisan witnesses and this false case is foisted to claim compensation taking advantage of the death of the deceased P.Rambabu and that the accused had not driven the auto involved in this case and P.W.11 drove the auto at the relevant time and he has no driving license and in order to escape the punishment the accused is falsely implicated in this case.

19.The prosecution examined P.Ws.1 to 11, out of which P.Ws.1 to 5 are eye witnesses of the accident, P.W.6 is the mediator for observing the scene of offence, P.W.7 is one of the inquest panchayatdars, P.W.8 is the M.V.I inspector,

P.W.9 is the doctor who conducted post-mortem examination, P.W.10 is the Sub-

Inspector of police who conducted investigation and filed charge-sheet, and

P.W.11 is the a person who produced original records of the crime vehicle i.e., auto bearing No.AP30V 5029 and the accused who was the driver of the crime vehicle.

20. P.W.1 stated in his chief-examination that deceased Rambabu is his brother. He also stated that the accident happened on June, 2009 at about 11-12 12 p.m at mid night at Indira Gandhi statue, Amadalavalasa. He stated that they boarded the auto at Srikakultm RTC complex to go to Amadalavalasa. He also stated that along with his brother 4 more passengers were also found in the auto.

He also stated that the driver of the auto drive the auto speedily and took a turn near Indira Gandhi statue at Amadalavalasa, as such his brother fell down from auto and sustained injury on his head. He also stated that the auto driver stopped the auto and he was shifted to Srikakulam hospital in 108 ambulance. He also stated that his brother was alive till next day morning 6 a.m and later he gave report to police. He also stated that the present accused is the auto driver. He further stated that he cannot furnish the auto number. He also stated that police examined him and that for 15 minutes his brother was made to stay at the place of accident before he was shifted to Srikakulam. He also stated that auto driver also present along with them at the scene of offence. Ex.P1 is report.

21.P.W.2 who is a coolie by profession also corroborated the evidence of

P.W.1 in his chief-examination and stated that he boarded the auto at 10.30 p.m along with others at Srikakulam to go to Amadalavalasa. He also stated that the auto when reached Indiramma statue at Amadalavalasa the auto driver drove it speedily, one Rambabu, one of the passengers had fell down and sustained injuries and that with the help of 108 they shifted Rambabu to Government hospital. He also stated that the present accused is the auto driver and that later

Rambabu died in the hospital. He was examined by police.

22.P.W.3 who also attends coolie work stated in the chief-examination corroborating the evidence of P.W.1 about one year back along with others he boarded auto at 10.30 p.m to go to Amadalavalasa. He also stated that five or Six more passengers were also present along with him. He also stated that the auto when reached Indira Gandhi statue, Amadalavalasa as the auto was at high speed and as accused took a turn speedily Rambabu, one of the passengers fell down 13 and that accused is the driver of the vehicle and that the auto did not fell down, but Rambabu alone fell down and sustained injury to his head and Rambabu died at hospital. He also stated that he was examined by police.

23.P.W.4 resident of Amadalavalasa also corroborated the evidence of

P.Q.1 in his chief-examination and categorically stated that the accident was happened on 18.06.2009. He also stated that on that day he boarded the auto at

Srikakulam RTC complex along with Subhan(L.W.5) and that about 7 persons were found in the auto. Rambabu(deceased) was also present. He also stated that the auto when reached Indira Gandhi statue, as the auto was run speedily, he fell down and that he was sitting in the front side of the auto. In 108 ambulance he was shifted to Srikakulam hospital. After the accident the auto was stopped and that after the injured was shifted in ambulance, they went on the same auto. The present accused is auto driver. He also stated that the auto was bearing No.AP30V 5029. He was examined by police. The accident was happened at 11 p.m.,

24.P.W.5 resident of Amadalavalasa, who is the father of deceased

Rambabu categorically stated in his chief-examination that deceased died in an accident happened near Railway gate, Amadalavalasa about 2 years back. He also stated that on that day he was coming form Srikakulam to Amadalavalasa.

He also stated that the auto had taken at high speed and as such his son thrown out of the auto. One Suryanarayana was the driver of the auto and he is resident of Adivarampeta and that his son was shifted to Srikakulam and he died in hospital and that police examined him.

25.P.W.1 stated in his cross-examination that his brother died at 6.30 a.m.

P.W.5 is the father of the deceased Rambabu. Basing on the above facts that

P.Ws.1 and 5 are related to deceased P.Rambabu, it cannot be held that they are speaking falsehood and their presence is doubtful.

26.Nothing contra is elicited in the cross-examination of P.Ws.2 and 3 14 except their stating that police never recorded their statements. But P.W.2 stated that the was traveling in the auto, whereas both of them have stated in their chief-examinations that police examined them and P.W.10 investigation officer also stated that he examined P.Ws.2 to 3.

27.In the cross-examination of P.W.1, he stated that the auto driver accompanied them to hospital. He further stated that after the accident he was taken to hospital in 108 ambulance. He also stated that outpost police recorded his statement. He further stated that the post-mortem examination was conducted at about 2 p.m and till that time he was with the dead body. P.W.10 stated in his chief-examination that on 19.06.2009 at about 8 a.m P.W.1 came to police station and presented a written report, basing on it, he registered a case in

Cr.No.117/2009 under section 304A of IPC. He also stated that Ex.P7 is the original

FIR and he submitted it to the court and sent the copies of concerned and he examined P.W.1 and recorded his statement. He stated in his cross-examination that he registered the case on a report given by P.W.1 and he did not take the signature of the person on a report and FIR. Thereby, the evidence of P.W.1 and

P.W.10 coupled with the contents in Ex.P1 clearly prove that P.W.1 presented Ex.P1 complaint to P.W.10 and he registered the same and issued Ex.P7 original FIR.

28.P.W.1 stated that police recorded his statement at RIMS General hospital, Srikakulam. P.W.10 stated that he examined P.W.1 and recorded his statement. It is not elicited from P.W.10 where at he examined P.W.1. In view of that, there is no contradiction regarding examination of P.W.1 by police. P.W.1 stated that outpost police recorded his statement. P.W.10 stated that he did not make efforts to secure the medical intimation or earlier statement of injured. In view of that there is nothing to disbelieve the evidence of P.W.1 in respect of recording of statement of him by outpost police, because P.W.10 stated that he did not make efforts to secure medical intimation or the earlier statement of the 15 injured and he also stated that he had not sent the statement of complainant to court, which shows that P.W.10 did not evince interest and put efforts in securing medical intimation or the earlier statement of the injured and also statement of the complainant. Basing on that it cannot be held that there is any contradiction in between the evidence of P.W.1 and P.W.10 about P.W.1 stating that his statement was recorded by outpost police and P.W.10 stated that he recorded the statement of P.W.1.

29. P.W.1 stated in his cross-examination that his brother died at 6.30 a.m and post-mortem examination conducted at 2 p.m and till that time he was at the dead body. He stated in his cross-examination that auto driver accompanied them to hospital and he stated to police that the driver of the auto came to hospital with them in 108 ambulance. He also stated that his brother died at about 6.30 a.m., The same is mentioned in Ex.P1 also. P.W.1 stated that he did not state to police that he can identify the driver. The evidence of P.W.10 and the contents of

Ex.P1 prove P.W.1 presenting Ex.P1 complaint as stated earlier at about 8 a.m., In view of that after the death of the deceased brother of P.W.1, P.W.1 must have gone to police station and presented Ex.P1 complaint to police. Hence, because he stated that he was with the dead body till the post-mortem was conducted till 2 p.m, it cannot be presumed that Ex.P1 was not presented by P.W.1 and it is created. Thereby, it can be safely held that nothing contra is elicited in the cross- examination of P.W.1. Merely because he is the brother of deceased P.Rambabu, it cannot be held that his evidence is not believable.

30. P.W.4 stated in his cross-examination that “It is true that normally all vehicles runs slowly near Indira Gandhi statue to go ahead. It is true that the auto in which i was traveling make run slowly near the statue. It is true that if the vehicle is made to run slowly person would falls if he sleeps negligently. I cannot furnish the names of persons travelling along with me.” Basing on the above 16 statements, it cannot be held that the deceased was sleeping negligently due to which he had fallen. In the chief-examination P.W.4 categorically stated that the auto was run speedily when it reached Indira Gandhi statue, due to which,

Rambabu fell down and Rambabu was sitting in the front side of the auto. Thereby the above facts elicited in the cross-examination of P.W.4 is no way helpful to the accused to prove that deceased had fallen while he was sleeping negligently.

Merely because P.W.4 could not furnish the names of persons traveling along with him, it cannot be held that he is speaking falsehood and he was not traveling in the auto driven by accused at the time of accident, as generally a person who is traveling in the auto may or may not be knowing the names of the other persons in the auto. P.W.4 stated in his cross-examination that he never enquired the name of the auto driver. He also stated that police identified the accused and as such he stated the accused to be the driver of the auto. There is no need for P.W.4 to enquire the name of the driver. As such, he may not enquire the name of the auto driver. But in his chief-examination he categorically stated that the accused person in the court is the auto driver. Thereby, due to not enquiring the name of accused by P.W.4, it cannot be held that his evidence is not believable. In the chief-examination of P.W.4, he stated categorically that the deceased was shifted in the ambulance and he and some others went in the same auto which caused the accident. In view of that basing on the facts elicited in the cross-examination of P.W.4 that police identified the accused, due to which, he stated that accused is the driver of the auto itself is not sufficient to prove that P.W.4 did not see the accused driving the auto, as he categorically stated that even after the accident the deceased was shifted in the ambulance to the hospital and he went in the same auto which caused the accident to the hospital.

31.P.W.5 stated in his cross-examination that police examined him on the next day of accident. He also stated that police have informed him the name of 17 accused, and that police had recorded his statement and obtained his signature.

Nothing contra is elicited in the cross-examination of P.W.5. Merely because, he stated that police informed the name of the accused to him and he signed in the statement recorded by police, it cannot be held that the same is in any way helpful to the accused. Merely because P.W.5 is the father of the deceased it cannot be held that he was not traveling in the auto at the time of accident.

32.P.W.10 stated in his cross-examination that by denying the suggestion “It is not true to suggest that L.W.8 Gopi did the accident but I implicated the accused in this case. It is not true to suggest that medical intimation and statement also the name of Gopi was shown as accused. It is true that as per the statement of deceased we noted that no blood relative was present. It is true that as per hospital intimation it was noted as if the deceased brought P.Gopi auto

NO.5920. Ex.P10 is the hospital intimation. It is true that in Ex.P10 intimation the name Palli Rambabu was inserted.” Ex.P0 shows that the deceased was brought by Kumili Gopi. Kumili Gopi is examined as P.W.11. P.W.11 turned hostile to the case of prosecution and denied of his giving statement as in Ex.P11. He also stated that he does not know the details of the auto bearing No.AP30V 5029.

Thereby his evidence is not at all helpful for the prosecution to prove the guilt of the accused. But because of the above evidence of P.W.10 that as per Ex.P10 deceased P.Rambabu was brought by P.W.11 and the auto number is 5920 as mentioned in Ex.P10, it cannot be held that the presence of P.Ws.1 to 5 in the auto is doubtful. The evidence of P.Ws.1 to 5 clearly prove that they traveled in the auto which turned turtle at the Indira Gandhi statue of Amadalavalasa and the accused drove the said auto. They all in one voice stated that accused drove the auto speedily rather P.Ws.3 and 5 stated that the accused drove the auto at high speed, due to which, the accident was occurred. Thereby, their evidence show that accused drove the auto in rash and negligent manner, due to which the auto 18 turned turtle at the Indira Gandhi statue at Amadalavalasa resulting sustaining of injuries of P.Rambabu and subsequent death of him. Merely because P.Ws.1 to 5 and accused did not sustain any injuries and they have not taken any treatment, it cannot be held that P.Ws.1 to 5 are not the eye witnesses and the accused is not driver of the auto.

33.The evidence of P.W.6 and P.W.10 coupled with the contents in Exs.P2 and P3,P8 and P9 prove about conducting of observation of scene of offence and drawing of rough sketch Ex.P8 by P.W.10 and taking of Ex.P9 photographs. In the cross-examination, P.W.6 stated that Gopi was not present when he drafted Ex.P3 and no record was seized from him. As per Ex.P3, P.W.11 brought the records relating to AP30V 5029, but as stated earlier P.W.11 turned hostile to the case of prosecution. The records alleged to have been seized are not got marked in this case. So, seizure of the records relating to AP30V 5029 from P.W.11 is not proved.

The auto driven by the accused is bearing No.AP30V 5029. In Ex.P10 the auto number is mentioned as 5920. Basing on that, it is contended that accused is not the driver of the auto bearing No.5920 and as P.Ws.1 to 5 deposed that they came in the auto driven by the accused to the hospital and Ex.P10 shows the auto number is 5920, but accused is not the driver of the said auto No.5920 and the said auto driven by P.W.11 is responsible for occurring of the accident. In Ex.P10 there is no mention that Gopi i.e. P.W.11 was the driver of the auto bearing

NO.5920. If really auto bearing No.5920 which is claimed to be one of the autos owned by the owner of the auto driven by the accused, then the accused should have proved that auto involved in the accident was bearing No.5920, but not

AP30V 5029 and that the said auto bearing No.5920 is driven by Gopi. In this case, while the evidence of P.Ws.1 to 5 clearly prove that accused drove the auto bearing No.AP30V 5029. Except Ex.P10 there is no evidence to prove the contention of accused.

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34.The evidence of P.W.7 coupled with the contents in Ex.P4 though P.W.7 in the cross-examination stated that he does not know the details of inquest report clearly prove in the light of the evidence of P.W.10 that panchayatdars opined that the deceased Rambabu died in the accident. Thereby cause of the death of the deceased Rambabu is due to occurring of the accident.

35. The evidence of medical officer P.W.9 coupled with the contents in

Ex.P6 clearly prove that the deceased P.Rambabu died as per the opinion of P.W.9 due to head injury.

36. The evidence of P.W.8 coupled with the contents in Ex.P5 prove that the accident was not occurred due to any mechanical defects in the auto bearing

NO.AP30V 5029.

37.P.W.10 stated that he sent the first information report at 9 a.m on the day when it was registered and the same is reached at 5.10 p.m on 19.06.2009.

The above statement do not prove that there was any undue delay in registering the first information report and sending it and also reaching of the first information report to the court. Merely because, FIR was sent at 9 a.m and it reached by 5.10 p.m as per the contents in Ex.P7 it cannot be held that the same is in order to search the accused to implicate him into this case. There is no any enmity for P.Ws.1 to 5 with the accused. If that is so, if really P.W.11 drove the auto in rash and negligent manner which fact is not proved by the accused, there is no any valid reason why P.Ws.1 to 5 in one voice stated that accused drove the auto.

38. The evidence of P.W.10 coupled with the contents in Ex.P2 is not of much use as P.W.10 could not find any incriminating evidence at the scene of offence.

39.The learned counsel for the accused submits that P.Ws.1 to 5 were not suggested that accused had not driven the crime vehicle rashly or negligently or 20 speedily because the accused had not driven the auto. Even assuming that accused is not the driver of the auto at the relevant time, but still the accused has to prove that he is not the driver of the auto and in case if it is proved that he is the driver of the auto then he did not drive the auto in rash and negligently. But as observed by the trial court, the facts elicited in the cross-examination of P.Ws.1 to 5 is only with regard to identity of the accused and not in respect of rash and negligent speedy driving of the auto by the driver of the auto. As such, the evidence of P.Ws.1 to 5 in one voice clearly proved as held by the trial court that accused drove the auto bearing No.AP30V 5920 in rash and negligent manner, due to which, the auto turned turtle at the Indira Gandhi statue of Amadalavalasa and deceased P.Rambabu fell down the auto and received head injury and other injuries and subsequently while undergoing treatment he died.

40.The learned counsel for the accused submits that as the alleged accident was occurred on 18.06.2009 at about 11.30 p.m but the complaint is given at 8 a.m on the next day i.e., on 19.06.2009 without any valid reason for the delay. But it is pertinent to note that even though accident was occurred on 11.30 p.m P.W.1 and P.W.5 and others must have been looking after the injured brother and son of them respectively, who was under treatment and due to that P.W.1 had given complaint at 8 a.m on the next day. But because of that, it cannot be said that there is any unreasonable delay in giving the complaint. The learned counsel

for the accused submits that this false case is foisted against the accused in order

to get insurance benefits as P.W.11 had no valid driving license by the date of accident and that P.W.11 stated that the auto number is 5920 but as per the charge-sheet the auto number is 5029 and thus there is a doubt regarding what is the number of the auto involved in this case and also in the light of same as the owner of the auto is not examined, the prosecution failed to prove that the accused drove the auto at the time of accident much less that he drove the auto in a rash and negligent manner and caused injuries to accused which resulted into the death of deceased P.Rambabu. But no evidence is placed by the accused to prove that P.W.11 is in any way responsible for the occurring of accident. Basing on the contents in Ex.P10 alone, it cannot be held that false case is foisted.

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41.The learned counsel for the accused submits that as P.Ws.1 to 5 out of which P.Ws.1 and 5 are relatives did not join the deceased into the hospital though they are claimed as eye witnesses of the accident and it is P.W.11 who joined the deceased in the hospital, it is proved that P.Ws.1 to 5 are planted witnesses and they are not eye witnesses to the alleged accident. But mere joining of the injured in the hospital itself will not make P.W.1 as the driver of the auto and P.Ws. 1 to 5 are not the eye witnesses of the accident. As stated earlier, there is no reason for the P.Ws.1 to 5 to speak falsehood against the accused as they got no enmity with accused.

42.The trial court after finding the accused guilty of the offence and convicting him questioned him about the sentence and considered the submission that he did not commit any offence and he may be considered sympathetically. On consideration of the same, the trial court held that this is not a fit case to invoke the provisions of Probation of Offenders Act and sentenced him to simple imprisonment for a period of one year. In the facts and circumstances the said finding of the trial is in accordance with law as there is no any valid and specific reason for invoking the provisions of Probation of Offenders Act in this case and also the imprisonment of one year is reasonable, fair, proper and correct.

43.The trial court in the judgment held as follows:

After conducting due trial, the Judicial First Class Magistrate Court,

Amadalavalasa held that “Accused is found guilty for the offence under section 304-A of Indian Penal Code and as such he is convicted him under section 255(2)

Cr.P.C. and the accused is directed to suffer simple imprisonment for One year.

The bail bonds of accused stands cancelled. The remand period unmarked property if any shall be destroyed after the lapse of appeal time.” 22 The above finding clearly shows that the trial court intends to set off the remand period under section 428 Cr.P.C, but it has failed to note that set off is given of the remand period though it is noted the words 'remand period'. Hence, in the facts and circumstances, while confirming the conviction and sentence of the accused, the accused shall be given set off of remand period, if any, as per section 428 Cr.P.C.,

44. In the decision reported in Crl.L.J. 3699 (2009) 2 ALT (Crl.) 128

Piginarayi Rangarao Vs. State of A.P. represented by Public Prosecutor the

Honourable High Court of A.P. held that “because there was no prior

acquaintance between the witnesses and accused and after the accident the driver after stopping the lorry ran away in the facts and circumstances, the investigating officer should have got conducted the identification parade.”

In the present case, the evidence of P.Ws.1 to 5 prove that accused is the driver and after the accident accused had driven the auto to the hospital. If that is so, in the facts and circumstances, even though identification parade is not conducted, it can be safely held that the accused is identified by the witnesses in the court as the person who drove the auto in rash and negligent manner at the time of accident and the same is believable. In view of that, the prosecution has proved that there was death of human being by name P.Rambabu, that the accused was the driver of crime vehicle bearing No.AP30V 5029, that the accused drove the crime vehicle rashly and negligently and such of his act was the cause for accident and injuries and resultant death of P.Rambabu, that there was unreasonable delay in giving the complaint to police and also in reaching the FIR to Judicial First Class Magistrate Court, Amadalavalasa from police station, that the prosecution proved point Nos.1 to 3 beyond reasonable doubt, that the accused is guilty and committed offence under section 304A of IPC, that the punishment of simple imprisonment for one year without invoking the provisions 23 of Probation of Offenders Act in accordance with law, that the judgment of conviction and sentence of accused in CC No.121/2009 are in accordance with law, beyond reasonable doubt that accused is guilty of the offence under section 304A of IPC. As such, the Judgment of conviction and sentence of accused in

CC.121/2009 is in accordance with Law. Accordingly the points 1 to 8 are

answered. Basing on the answers to points 1 to 8, the point No.9 has to be answered.

45.Point No.9:- In the result, this Criminal Appeal No.16/13 is dismissed confirming the judgment in CC.No.121/09 dated 01.02.2013 on the file of Judl.

Magistrate of 1st Class, Amadalavalasa convicting and sentencing of the accused

for a period of one year. The remand period, if any, of the accused shall be given set off as per under section 428 Cr.P.C., The judgment of the trial court to that extent is ordered to be modified by deleting the words 'remand period'.

Dictated to the Personal Assistant, transcribed by him, corrected and pronounced

by me, in open court this 27th day of March, 2015.

Judge,

Family Court-cum-III Additional District & Sessions Judge, Srikakulam.

Appendix of Evidence

Witnesses Examined

No witnesses are examined and no documents are marked on either side.

Judge,

Family Court – cum – III Addl. District & Sessions Court,

SRIKAKULAM.

Copy to: The Judicial Magistrate of I Class, Amadalavalasa along with LC record by RP.

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//Fair order//

IN THE COURT OF THE JUDGE, FAMILY COURT – CUM - III

ADDITIONAL DISTRICT & SESSIONS COURT, SRIKAKULAM.

Present: Sri N. MALYADRI,

Judge, Family Court-cum-III Additional

District & Sessions Court, Srikakulam.

Monday, the 23rd day of March, 2015.

Criminal Appeal Nos.106 & 108 of 2011 and Crl.M.P.No.53/14

in C.A.No.108/2011.

C.A.No.106/2011:

From what court the appeal : Judicial Magistrate of I Class, Srikakulam. is preferred

Number of the case in that : D.V.C.No.15/2009. Court

Number of the Appeal: 106/2011,108/11 & Crl.M.P.No.53/14 in C.A.No.108/11.

Name and description of the : Korada Janardhana Rao, s/o.late Appellant Suryarao, Hindu, aged 38 years, Line business, resident of Door No.11-2-183, Opposite Harishankar Theatre, K.T.Road, Palasa, Srikakulam district. The sentence and order : under which it was imposed in the lower Court. In the result, Final relief of the protection order u/s.18 of Act: the 1st respondent is prohibited from causing violence to the aggrieved person or her daughters under section 18 of the Act; Final relief of the residential order u/s19: The 1st respondent is directed not to disposes the aggrieved person from the shared house hold or to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared house hold or to pay rent @Rs.800/- per month for the same if the circumstances so required, under section of the Act from the date of order. The future rental amount shall be paid on 5th of every month; Final relief of monetary relief under section 20 of the Act: The 1st respondent is directed to pay the maintenance @Rs.1000/- per month to the aggrieved person from the date of application. The future monetary relief to be payable on 5th of every month, the arrears of said monetary relief amount should be paid within two months from the date of this order. The application is allowed against the 1st respondent and the application with regard to the relief claimed against 2nd respondent is dismissed as the case against R.2 is abated on his death.

2 Whether confirmed/modified : Dismissed. or Reversed, if modified the modification

Date of presentation: 25.08.2011

Date of filing: 30.08.2011

Notice issued by Court to : 24.10.2011 appear

Bail bonds if appellants have : --- been let out on bail

Appellantsorderedto : 24.10.2011. appear

Date of hearing: 17.03.2015.

Date of judgment: 23.03.2015.

C.A.No.108/2011:

From what court the appeal : Judicial Magistrate of I Class, Srikakulam. is preferred

Number of the case in that : D.V.C.No.15/2009. Court

Number of the Appeal: 108/2011

Name and description of the : Korada Lakshmi, w/o.Korada Janardhana Appellant Rao, aged 32 years, Now residing at Compost colony, c/o.Chitralaya photo studio, Zilla Parishath, Srikakulam town and district.

The sentence and order : under which it was imposed in the lower Court.

3 In the result, Final relief of the protection order u/s.18 of Act: the 1st respondent is prohibited from causing violence to the aggrieved person or her daughters under section 18 of the Act; Final relief of the residential order u/s19: The 1st respondent is directed not to disposes the aggrieved person from the shared house hold or to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared house hold or to pay rent @Rs.800/- per month for the same if the circumstances so required, under section of the Act from the date of order. The future rental amount shall be paid on 5th of every month; Final relief of monetary relief under section 20 of the Act: The 1st respondent is directed to pay the maintenance @Rs.1000/- per month to the aggrieved person from the date of application. The future monetary relief to be payable on 5th of every month, the arrears of said monetary relief amount should be paid within two months from the date of this order. The application is allowed against the 1st respondent and the application with regard to the relief claimed against 2nd respondent is dismissed as the case against R.2 is abated on his death.

Whether confirmed/modified : Partly allowed. or Reversed, if modified the modification

Date of presentation: 26.08.2011

Date of filing: 02.09.2011

Notice issued by Court to : 24.10.2011 appear

Bail bonds if appellants have : --- been let out on bail

Appellantsorderedto : 24.10.2011. appear

Date of hearing: 17.03.2015.

Date of judgment: 23.03.2015.

These Criminal Appeal Nos.106/2011 and 108/2011 are coming on 17-03- 2015 for final hearing before me in the presence of Sri M.Sampath Kumar, learned Advocate for Appellant in C.A.106/11 and learned Advocate for respondent No.1 in C.A.108/11 and Crl.M.P.No.53/14 and of Sri K.Kameswararao, learned advocate for respondent No.1 in C.A.106/11 and learned Advocate for appellant in C.A.108/11 and Crl.M.P.No.53/14, and of Sri S. Hari Babu, learned Addl. Public Prosecutor for the Respondent No.2 – State in both the criminal appeals, and having stood over till this day, for consideration and this court delivered the following; 4

COMMON JUDGMENT

The Criminal Appeal 106/2011 is filed by the husband/respondent. The wife, who is the defacto-complainant filed Criminal Appeal No.108/2011 against the Order passed in D.V.C.No.15/2009 dated 13.07.2011 by the learned Judicial

Magistrate of First Class, Srikakulam.

02.The said D.V.C.No.15/2009 is filed basing on the application forwarded by the Protection Officer and Project Director, (District Women and Child

Development Agency) Srikakulam district and comprised in Form-II under section 12 of the Protection of Women from Domestic Violence Act, 2005 r/w. Rule 6 sub- rule (1) of the said Act with a copy of domestic incident report I.e, Form-I along with a written report given to the Protection Officer by the aggrieved person

Smt.Korada Lakshmi and her affidavit in Form-III. The Protection Officer forwarded the application to the trial court against R.1 and R.2. R.1 is the husband of the aggrieved person and R.2 is the father of the 1st respondent. During the proceedings R.2 died and as such the case against R2 has been abated in the trial court.

03.The brief and relevant facts alleged in the application in

D.V.C.No.15/2009 on the file of Judicial Magistrate of First Class, Srikakulam are as follows:

a) The marriage of the aggrieved person was performed on 01.03.2002 with the 1st respondent at Lord Sri Venkateswara temple, Tirupathi. Her parents gave 1 lakh rupees dowry, gold chain of one tola and gold ring worth Rs.5,000/- and house hold items to a worth of Rs.20,000/- to the 1st respondent, immediately after her marriage she joined her matrimonial home. During their wedlock, she gave birth to two female children. During the period of 3 years her husband i.e. 1st respondent, father, mother and sisters of 1st respondent harassed her physically and mentally and they did not provide food to the 5 aggrieved person and her children. They used to neck out the aggrieved person at the mid night after beating her. Even then the aggrieved person bore all the harassment with a hope that the respondent will change attitude.

b)On 07.01.2006 the 1st respondent and the mother-in-law and sisters- in-law of the aggrieved person beat her. They also made the workers to beat the aggrieved person. The pustelatradu, necklace, Ettu Golusulu and golden ring of aggrieved were taken by them forcibly and necked out her. She informed the same to her parents then her parents placed the matter before the elders, then the elders made an agreement between the respondents and the aggrieved person. The terms of the agreement are that the 1st respondent shall pay

Rs.3,000/- to the aggrieved person for 6 months and that the aggrieved person shall stay at Srikakulam for the said period of 6 months, and after 6 months the respondent will take away the aggrieved person from Srikakulam. The aggrieved person was made to stay at Srikakulam but the respondents did not pay the amount as agreed by them. The aggrieved person stayed at Srikakulam for 9 months by the time of the application. She lived on the amounts given by her parents and the gold of her . She prayed the court to grant relief under sections 18,19 and 20 of P.W.D.V. Act.

04.The case was taken on file under sections 18,19 and 20 of Domestic

Violence Act in the trial court.

05.The 1st respondent filed his counter. The brief and relevant facts pleaded in the counter are as follows:-

a)The 1st respondent denied all the allegations made in the application specifically against him and his family members by the aggrieved person. The 1st respondent did not take any dowry from the aggrieved person and that he did not take any gold ornaments from the aggrieved person. The aggrieved person used to quarrel with the respondents unnecessarily and without reason and also she 6 was not co-operating to lead sexual life. Her behaviour was intimated to her parents, and they admonished her. But her behaviour was not changed. She subjected the 1st respondent to mental agony. On 02.01.2005 the aggrieved person left the matrimonial house in the absence of the 1st respondent by leaving her two minor female children who were aged about 2 and 3 years. On the advice of the elders the aggrieved person resumed to conjugal life on 05.01.2005.

Thereafter she threatened the 1st respondent by stating that she would commit suicide. The 1st respondent lodged a complaint on 05.02.2005 before the S.H.O, with regard to the behaviour of the aggrieved person. Thereafter the matter was placed before the elders.

b)Both the parties arrived at an agreement that the 1st respondent shall pay Rs.1750/- to the aggrieved person. Accordingly, he paid maintenance of

Rs.1750/- per month till 03.05.2008. On 30.01.2009 during the pendency of a criminal case under section 498A of IPC against respondent and his relatives, the aggrieved person threatened the 1st respondent that she would commit suicide when the 1st respondent made a report before the police, Kasibugga.

c)The 1st respondent and aggrieved person were residing separately in a separate rented house at Kasibugga and the parents of the 1st respondent resided at a different place at Kasibugga and as such the question of necking out of the aggrieved person would not arise. The aggrieved person harassed them by showing cruelty and abusing him in unparliamentary language and prayed the court to dismiss the application.

06.On behalf of aggrieved person in the trial court, she examined herself as P.W.1 and got examined her mother as P.W.2, no documents were marked on her behalf. On behalf of the respondents, the 1st respondent was examined as

R.W.1 and his former employer was examined as R.W.2 and the 1st respondent got marked Exs.R1 to R5 on his behalf in the trial court.

7

07.The trial court framed the following points for consideration:

1) Whether the allegations of Domestic Violence are proved against R.1?

2) Whether the aggrieved person is entitled for a Protection Order under section 18 of the Act?

3) Whether the aggrieved person is entitled for residential order under section 19 of the Act?

4) Whether the aggrieved person is entitled for monetary relief under section 20 of the Act?

5) To what relief?

08.After conducting due enquiry, the trial court trial found Final relief of the protection order u/s.18 of Act: the 1st respondent is prohibited from causing violence to the aggrieved person or her daughters under section 18 of the Act; Final relief of the residential order u/s19: The 1st respondent is directed not to disposes the aggrieved person from the shared house hold or to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared house hold or to pay rent @Rs.800/- per month for the same if the circumstances so required, under section of the Act from the date of order. The future rental amount shall be paid on 5th of every month; Final relief of monetary relief under section 20 of the Act: The 1st respondent is directed to pay the maintenance @Rs.1000/- per month to the aggrieved person from the date of application. The future monetary relief to be payable on 5th of every month, the arrears of said monetary relief amount should be paid within two months from the date of this order. The application is allowed against the 1st respondent and the application with regard to the relief claimed 8 against 2nd respondent is dismissed as the case against R.2 is abated on his death.

09.As against the said order in D.V.C.No.15/2009 dated 13.07.2011 on the file of Judicial First Class Magistrate Court, Srikakulam, the appellant in

C.A.No.106/11 ie., the husband/1st respondent in the main application presented a memorandum of appeal under section 29 of the Protection of Women from

Domestic Violence Act, 2005 r/w.section 382 of Cr.P.C and the brief and relevant grounds of appeal are as follows:

a)The trial court should have seen that the aggrieved party totally failed to prove any harassment by the 1st respondent/appellant by examining any independent witnesses.

b)The trial court should have seen that the aggrieved party harassed the 1st respondent/appellant because of her suffering from 'ECOTIC BEHAVIOUR'.

c)The trial court should have seen that having come to conclusion that the aggrieved party failed to prove the harassment by way of demanding dowry ought not to have given relief under sections 18 to 20 of Domestic Violence Act, 2005.

d)The trial court should have seen that the 1st respondent has been maintaining himself and his 2 daughters as admitted by the aggrieved party without any employment, hence the trial court ought not to have granted relief under sections 18 to 20 of Domestic Violence Act, 2005.

e)The trial court should have seen that the 1st respondent has no employment and the same is proved by the evidence of Exs.R1 to R5 and the oral evidence of R.Ws.1 to 2 which was accepted by the trial court.

f)The trial court erred in thinking that the 1st respondent can seek similar employment or by doing the same job to maintain his wife but the earnings of the 1st respondent hardly sufficient for maintenance of himself and 9 his daughters and the educational expenses of his daughters.

g)The trial court failed to consider the evidence of R.W.2.

h)The trial court failed to consider the financial position of the appellant and the aggrieved person cannot produce any documentary evidence to show the income of the appellant.

I)The award passed by the trial court is baseless and the rent of

Rs.800/- and maintenance of Rs.1000/- is exorbitant.

j)For these and other grounds the appellant/respondent No.1 prays to set aside the order dated 13.07.2001 in DVC 15/2009 by the Judicial Magistrate of

First Class, Srikakulam and be pleased to allow the appeal in the interest of

justice.

10.The appellant in C.A.No.108/11 presented a memorandum grounds of appeal under section 29 of the Protection of Women from Domestic Violence Act, 2005 by the appellant against the orders passed in DVC 15/2009 on 13.07.2011 by the Judicial Magistrate of I Class, Srikakulam. The brief and relevant grounds pleaded in it are as follows:

a)The order of the trial court is quit contrary to law, weight of evidence and probabilities of the case.

b)The trial court failed to consider that P.Ws.1 and 2 deposed that the respondent is the license holder for selling liquor and also having two vehicles i.e., jeeps and also he is having landed property and getting income of Rs.1,00,000/- and above.

c)The trial court failed to consider that the evidence of R.Ws.1 and 2 did not corroborate regarding income of the respondent.

d)The trial court failed to consider that admittedly there is no evidence to show that the appellant is suffering Ecotic behaviour.

10

e)The trial court ignored the relief regarding grant of compensation and even did not discuss about the claim.

f)The trial court did not discuss the evidence of the appellant in the order regarding the means of the respondent.

g)The trial court should have awarded compensation to the appellant when the violence is proved.

h)The trial court should have granted an amount of Rs.3000/- p.m instead of Rs.800/- towards the relief of residential order under section 19 of Act.

I)The trial court should have granted an amount of Rs.3000/- p.m instead of Rs.1000/- towards the relief of monetary relief under section 20 of Act.

j)For these and other grounds the appellant/petitioner prays to enhance the amount granted under sections 19, 20 of Act and also to grant compensation by setting aside the order dated 13.07.2001 in DVC 15/2009 by the Judicial

Magistrate of First Class, Srikakulam and be pleased to allow the appeal in the

interest of justice.

11.The appellant/wife also filed an application in Crl.M.P.No.53/14 in

C.A.No.108/11 under section 391 Cr.P.C to receive the documents mentioned in the petition as additional evidence and mark them as exhibits. The brief and relevant facts pleaded in it are as follows:

a)The contention of the petitioner is that the respondent is doing liquor business under the name and style as M/s.Mankinamma wines, Palasa and getting

Rs.1,00,000/- per month in all, but the respondent is contending that he is working in the said wines shop and getting Rs.3,000/- per month as wage and to prove the said contention he filed Ex.R1 i.e. copy of register of wages issued by the proprietor Sri Mankinamma wines, Kasibugga. Basing on the Ex.R1 document the trial court came to conclusion and awarded very meager amount and aggrieved by the said order the petitioner preferred the appeal.

11

b)The respondent himself is the owner of the M/s.Mankinamma wines,

Palasa and managed the things and created Ex.R1 document as if he is a worker in the said wines shop. To prove the case of petitioner/appellant that the respondent is running wines under the name and style as M/s.Mankinamma wines,

Palasa, she applied the Prohibition and Excise Inspector, Prohibition and Excise

Station, Palasa under R.T.I.Act to issue the particulars of the license holder of

M/s.Mankinamma wines, Palasa. The public information officer furnished the details of the license holder of M/s.Mankinamma wines, Palasa, and it is clearly shows that the respondent is the license holder of M/s.Mankinama Wies, Palasa and the license fee is Rs.42,00,000/-. Hence, the petition may be allowed as prayed for.

12.The respondent filed counter and the brief and relevant facts pleaded in it are as follows:

a)The material averments made in the petition are all not true, valid and binding on the respondent and the petitioner is put to strict proof of those allegations which are not expressly traversed herein.

b)The allegations in the petition are specifically denied by the respondent. As per the list mentioned documents in the petition clearly appears that the respondent is not the owner of the M/s.Mankinamma wines, Palas by the time of filing DVC 15/2009 I.e, for the period of 2008 to 2012. During the period of 1998 to 2008 the respondent is the owner of the M/s.Mankinamma wines, Palasa, the said business was fell in loss and the respondent had lost his entire money in that business. Thereafter the respondent joined as a helper for his livelihood under Palavalasa Vaikuntarao M/s.Mankinamma wines, Palasa and getting

Rs.4,445/- as salary. In fact the maternal uncles of respondent and some others formed as a syndicate and filed the tender forms for the shop of M/s.Mankinamma wines, Palasas in the name of the respondent for the period of 2012 to 2013. The 12 said period was also completed. The said business was also fell in loss.

c)At present, the respondent is doing line business and he used to earn an amount of Rs.3,000/- and the said amount is hardly sufficient to maintain him and his family. The respondent is having old aged mother, aged about 73 years and two minor daughters who depending upon the earnings of him and under the said circumstances at present the respondent is not having sufficient means.

d)The petitioner has no right to file the present petition and the provision of law is also not correct and hence this petition may be dismissed.

13.This application in Crl.M.P.No.53/14 is clubbed with main C.A.108/11 for joint enquiry in main C.A as per orders dated 23.04.2014. The said C.A.108/11 is also clubbed with C.A.106/11 for conducting joint enquiry in C.A.No.106/11 as per orders passed in Cr.M.P.No.347/11 dated 21.07.2014.

14.During the course of joint enquiry in Criminal Appeal No.106/2011 no witnesses are examined and no documents are marked on behalf of any of the parties.

15.For the sake of brevity and convenience, here in after, the parties and evidence will be referred as referred in the order in D.V.C.No.15/2009 on the file of

Judicial Magistrate of I Class, Srikakulam and the Protection of Women from

Domestic Violence Act, 2005 will be referred as D Act and Rules will be referred as

D Rules.

16.a)The learned counsel for the appellant in Crl.A.No.106/2011, who is respondent No.1 in the main application submits the brief and relevant facts pleaded in the application in DVC NO.15/2009 and in the counter of 1st respondent and also the brief and relevant grounds pleaded in C.A.No.106/11 and

C.A.No.108/11 and also the facts pleaded in the petition and counter in

Crl.M.P.No.53/14 in C.A.No.108/11 referred supra.

13

b)The learned counsel for the respondent No.1 submits that the aggrieved party totally failed to prove any harassment by the 1st respondent/appellant by examining any independent witnesses of the locality where parties resided.

c) The learned counsel for the respondent No.1 submits that as the aggrieved party is not able to prove that respondent NO.1 harassed the aggrieved party by demanding any dowry and also any domestic violence is caused by 1st respondent and as such the question of granting any relief under sections 18 to 20 of D Act does not arise.

d) The learned counsel for the respondent No.1 submits that during the period of 1998 to 2008 the respondent is the owner of the M/s.Mankinamma wines, Palasa, the said business was fell in loss and the respondent had lost his entire money in that business, and that thereafter the respondent joined as a helper for his livelihood under Palavalasa Vaikuntarao M/s.Mankinamma wines,

Palasa and getting Rs.4,445/- as salary and in fact the maternal uncles of respondent and some others formed as a syndicate and filed the tender forms for the shop of M/s.Mankinamma wines, Palasa in the name of the respondent for the period of 2012 to 2013 and the said period was also completed and the said business was also fell in loss and as such the documents sought to be received are not all necessary for deciding he disputes in this case.

e) The learned counsel for the respondent No.1 submits that as 1st respondent is earning Rs.3,000/- and has to maintain his old aged mother and two daughters besides maintaining himself, he is not having any source of income to pay any money to aggrieved party.

f) The learned counsel for the respondent No.1 submits that the application in Crl.M.P.No.53/14 is filed belatedly and as respondent No.1 admits that tender form for the shop of M/s. Mankinamma wines, Palasa is filed in the 14 name of respondent NO. for the period from 2012 to 2013 and the said period also completed at this stage the aggrieved party is not entitled for the relief sought for in the application in Crl.M.P.No.53/14 and hence the same may be dismissed.

g) The learned counsel for the respondent No.1 submits that the 1st respondent did liquor business and incurred heavy loss and closed his business and working as salesman and he has to maintain his old aged mother and two minor children, who are staying with him and as such unable to maintain him and not having any income to pay any maintenance to aggrieved party.

h) The learned counsel for the respondent No.1 submits that no evidence is placed to prove that respondent No.1 is getting any income and such respondent No.1 is not liable to pay any amount to the aggrieved party.

I) The learned counsel for the respondent No.1 submits that the maintenance awarded in D.V.C case need not be separately paid in addition to the maintenance awarded in the maintenance case, but the trial court without considering the order passed granting maintenance to aggrieved party wrongly ordered to pay an amount of Rs.1,000/- per month from the date of application and hence the same may be set aside and D.V.C.No.15/09 may be dismissed.

17.a)The learned counsel for the respondent NO.1 in

Crl.A.No.106/2011, who is the aggrieved party in the main application submits the

brief and relevant facts alleged in the application in DVC NO.15/2009 and also pleaded in the counter of 1st respondent and also the brief and relevant grounds pleaded in C.A.No.106/11 and C.A.No.108/11 and also the facts pleaded in the petition and counter in Crl.M.P.No.53/14 in C.A.No.108/11 referred supra.

b)The learned counsel for the aggrieved party submits that the trial court did not consider the evidence of P.Ws.1 and 2, who stated that respondent

NO.1 is the license holder for selling liquor and also having two vehicles i.e., jeeps and also he is having landed property and getting income of Rs.1,00,000/- and 15 above.

c) The learned counsel for the aggrieved party submits that the trial court without giving any reasons refused to grant compensation though aggrieved party has proved by placing evidence about domestic violence caused.

d) The learned counsel for the aggrieved party submits that the trial court without considering the cost of living and the facts and circumstances of the case and the status of the family granted only Rs.800/- towards the relief of residential order under section 19 of D Act and monetary relief of only Rs.1000/- though aggrieved party is entitled for a sum of Rs.3,000/- per month instead of

Rs.800/- towards rent and a sum of Rs.3,000/- per month instead of Rs.1,000/- towards maintenance.

e) The learned counsel for the aggrieved party submits that respondent

No.1 himself is the license holder and paid Rs.42,00,000/- for getting the license and the documents sought to be received in Crl.M.P.No.53/14 clearly prove that respondent is doing liquor business under the name and style as

M/s.Mankinamma wines, Palasa and getting Rs.1,00,000/- per month in all, but the respondent is contending that he is working in the said wines shop and getting

Rs.3,000/- per month as wage and to prove the said contention he filed Ex.R1 i.e.

copy of register of wages issued by the proprietor Sri Mankinamma wines,

Kasibugga, and basing on the Ex.R1 document the trial court came to conclusion and awarded very meager amount.

f)The learned counsel for the aggrieved party submits that in fact respondent No.1 is the owner of M/s.Mankinamma wines and to prove the same aggrieved party has filed the documents supplied by Pubic Information Officer under R.T.Act it contains the details of the license holder of M/s.Mankinamma wines, Palasa, which clearly shows that the respondent is the license holder of

M/s.Mankinamma Wines, Palasa and the license fee is Rs.42,00,000/- and in the 16 interest of justice the said application may be allowed so as to prove the contentions of the aggrieved party.

g) The learned counsel for the aggrieved party submits that for any reason if the said application in Crl.M.P.No.53/14 is dismissed also since the trial court without appreciating the evidence wrongly granted only a sum of Rs.800/- per month under section 19 of D Act and a sum of Rs.1,000/- per month under section 20 of D Act in the interest of justice, the orders may be modified by granting compensation by granting the reliefs under sections 18 to 20 of D Act by granting Rs.3,000/- per month under section 19 and Rs.3,000/- per month under section 20 and reasonable and fair compensation amount under section 18 of the

Act by allowing the C.A.No.108/11 and by dismissing the C.A.No.106/11 and by modifying the order passed in D.V.C.No.15/09 and hence Crl.M.P.No.53/14 in

C.A.No.108/11 and C.A.108/11 may be allowed and for any reason

Crl.M.P.No.53/14 in C.A.No.108/11 dismissed also in the facts and circumstances

C.A.No.108/11 may be allowed.

18.a)The learned Additional Public Prosecutor for 2nd respondent in

C.A.106/2011 submits the brief and relevant facts alleged in the application in

DVC NO.15/2009 and also pleaded in the counter of 1st respondent and also the brief and relevant grounds pleaded in C.A.No.108/11 and also the facts pleaded in the petition and counter in Crl.M.P.No.53/14 in C.A.No.108/11 referred supra.

b) The learned Additional Public Prosecutor for 2nd respondent submits that the trial court on careful consideration of the entire evidence on record passed “Final relief of the protection order u/s.18 of Act: the 1st respondent is prohibited from causing violence to the aggrieved person or her daughters under section 18 of the Act; Final relief of the residential order u/s19: The 1st respondent is directed not to disposes the aggrieved person from the shared house hold or to secure same level of alternate 17 accommodation for the aggrieved person as enjoyed by her in the shared house hold or to pay rent @Rs.800/- per month for the same if the circumstances so required, under section of the Act from the date of order.

The future rental amount shall be paid on 5th of every month; Final relief of monetary relief under section 20 of the Act: The 1st respondent is directed to pay the maintenance @Rs.1000/- per month to the aggrieved person from the date of application. The future monetary relief to be payable on 5th of every month, the arrears of said monetary relief amount should be paid within two months from the date of this order. The application is allowed against the 1st respondent and the application with regard to the relief claimed against 2nd respondent is dismissed as the case against R.2 is abated on his death,” and hence in the facts and circumstances the orders may be passed in accordance with law.

19.Basing on the allegations in the complaint and counter in main

D.V.C and grounds of appeal and contentions of the learned counsel for all the parties in C.A.No.106/11 and in C.A.No.108/11 and also the brief and relevant facts pleaded in Crl.M.P.No.53/14 in C.A.No.108/11 and the learned

Additional Public Prosecutor for 2nd respondent, the following points

emerge for consideration:

1) Whether the petitioner was subjected to domestic violence in the hands of respondent No.1 at matrimonial house or not?

2) Whether the petitioner is entitled for protection of orders against the respondents?

3) Whether the petitioner is entitled for residence order against the 1st respondent?

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4) Whether the petitioner is entitled for maintenance from the 1st respondent or not?

5) Whether the petitioner is entitled for compensation from the 1st respondent as prayed by her?

6) Whether the order passed in D.V.C.No.15/2009, dated 13.07.2011 on the file of Judicial First Class Magistrate,

Srikakulam court is in accordance with law and if so, whether it requires varying or modification or confirmation?

7) Whether the petitioner in Crl.M.P.No.53/14 in C.A.108/11 who is aggrieved party in the main D.V.C.No.15/09 is entitled for the relief prayed in that petition?

8) Whether the respondent No.1 is liable to pay maintenance amount awarded in Domestic Violence case separately in addition to the maintenance awarded in the M.C?

9) To what relief?

20.Point Nos.1 to 8:- These points 1 to 8 are inter related to each other very closely. Hence, in order to avoid the repetition of discussion of evidence, and for the sake of brevity and convenience they are all discussed in common.

21.The aggrieved party to prove her case examined herself as P.W.1 and her mother as P.W.2. The 1st respondent to disprove the case of aggrieved party and to prove his claims examined himself as R.W.1 and owner of the Mankinamma wines at Palasa as R.W.2.

22.P.W.1 and R.W.1 being parties as aggrieved party and respondent

No.1 deposed in their chief-examinations as per their respective pleadings, 19 claims, contentions, and cases. P.W.2, who is the mother of P.W.1 corroborated the evidence of P.W.1 in her chief-examination. R.W.2 in the chief-examination corroborated the evidence of R.W.1 in respect of himself being the owner of Mankinamma wines. R.W.1 got marked Exs.R1 to R5 which are copy of register of wages issued by the proprietor i.e. Sri

Mankinamma wines, Kasibugga, receipt of salary receipt for amount of

Rs.4,445/-, salary receipt for the month of December, 2009, salary receipt for the month of January, 2010 and copy of license certificate in form NO.4.

23.The 1st respondent admitted his marriage with P.W.1 and birth of two female children out of their wedlock and also P.W.1 living with him, as such the domestic relationship and living in the shared house hold by P.W.1 and R.W.1 is proved. P.W.1 admitted in her cross-examination that she did not show any of the neighbourers as witnesses in the complaint to prove harassment. She further stated by adding that everybody in the locality is afraid of the respondent, nobody come to the court to give evidence against the respondent. She also voluntarily stated that as per the terms of the agreement the respondent has to pay Rs.2,000/- per month to her and she has to stay at her mother's house for six months. She also admitted and stated that respondent is residing in a rented house. P.W.2 in her cross- examination stated that respondent is providing education for the children who are residing with him. She also stated that they gave dowry and valuable articles at the time of marriage recorded on a paper. She also admitted about the agreement entered by P.W.1 and R.W.1 on 07.09.2006.

All other suggestions put to P.Ws.1 and 2 are denied by them. No documents are filed to prove giving of any dowry to respondent No.1. No 20 witnesses are examined to prove that there was demand of any additional dowry. The harassment of R.W.1 stated by P.Ws.1 and 2 is as observed by the trial court is occurred between P.W.1 and R.W.1 within the four walls of the house. R.W.1 is also not examined any independent witnesses or neighbours. The evidence of P.Ws.1 and 2 clearly prove that P.W.1 and R.W.1 are residing separately and R.W.1 neglected P.W.1 and not provided maintenance to her.

24.R.W.1 in his cross-examination stated that petitioner herself raised disputes but he does not know the reason for the disputes. He also stated that as per the agreement entered he has to pay Rs.1,750/- to P.W.1 and he must have custody of the children with him. He also stated that he stopped payment of

Rs.1,750/- to the petitioner after she filed Criminal Case under section 498A of

IPC. He also stated that he gave report against the petitioner to police two times.

He also stated that petitioner attempted to commit suicide in the year 2005 by leaking gas. He also stated that he provided treatment for one year under a psychiatrist and after that also petitioner did not co-operate with him. He further stated that he is not interested to take the petitioner to his house even if she comes with him. He stated that he does not remember whether it is mentioned in his counter that the petitioner consumed wine and caused disturbance and nuisance by coming to their shop. He also stated that his children are studying in

Palasa and he is paying a school fee of Rs.6,000/- per year to each child. He also stated the salary of Rs.4,445/- is enhanced salary. He further stated that 'It is true that he has liability to maintain the petitioner'. He further stated that as she filed 498A case against him, he is not paying her maintenance. The above statements of R.W.1 also prove that he has got means to maintain the petitioner and he is looking after the welfare and maintaining the children of him and that he is not making payments and maintaining the petitioner because she filed 498A case 21 against him.

25.R.W.2 stated in his cross-examination that 'It is true that for every two years the auction will be conducted by the Government regarding the wine shops and the highest bidder will get the shop. He also stated that the superintendent of

Excise Department will also issue Noukarinama regarding the clerks to be worked in the shop. He also stated that at the request of R.W.1, he is giving evidence. He also stated that photo copy of Noukarinama is filed before the court which was issued by the Superintendent, Excise Department, Palasa. In the further cross- examination he stated that the original of the said noukarinama is present in his shop. There is no reason why original nowkarinama is not filed into court. Exs.R1 to R5 clearly prove that respondent is earning a sum of Rs.4,445/- as salary and

R.W.2 is the owner of Sri Mankinamma wines, Kasibugga. The evidence also shows that R.W.1 lost his employment. But as observed by the trial court, R.W.1 who admittedly did business and also worked under R.W.2 and who is an able bodied person can perform his duties at any place.

26.The trial court after considering the evidence on record granted protection order prohibiting 1st respondent causing violence against aggrieved person. The evidence of P.Ws.1 and 2 and R.W.1 clearly prove that P.W.1 was neglected and not maintained by respondent and R.W.1 has not placed evidence to prove that he provided treatment under a psychiatrist to P.W.1 and she is suffering from ecotic behaviour. The evidence of P.W.1 and R.W.1 clearly prove that there is domestic violence against P.W.1 caused by R.W.1 though demand of dowry and giving of dowry at the time of marriage is not proved. The trial court considering the evidence of R.Ws.1 and 2 and the income of Rs.4,445/- granted to pay rent @Rs.800/- per month and Rs.1,000/- towards maintenance. The maintenance is granted under section 20 of D Act by way of monetary relief. The said monetary relief can be in addition to any other relief granted to petitioner, as 22 the principles laid down by Hon'ble High Court of A.P in the decision between

Mathi Venkataraju v. State of A.P and others reported in 2012(3)

A.L.T(Crl.) 208 A.P, as per which granting of maintenance is in addition to and not in derogation of the other laws in force. Hence, granting of maintenance and other reliefs by trial court is proper.

27.The learned counsel for the 1st respondent cited a decision reported in 2012 (3) ALT (Crl.) 208(A.P) between Mathi Venkataraju v. State of A.P and others in which the Hon'ble High Court held as follows:

'Therefore, it would be suffice to clarify that the maintenance awarded in the Domestic Violence Case need not be separately paid in addition to the maintenance awarded in M.P.No.33 of 2008 in M.C.No.157 of 2007 and so long as, both or either order, are in force, the petitioner will be liable to pay the monthly maintenance at Rs.1,500/- per month to the second respondent while the maintenance payable to the third respondent shall be as per the orders in

M.P.No.33 of 2008 in M.C.No.157 of 2007 so long as to the said orders are in force.'

Basing on the principles laid down in the above decision the learned counsel for the 1st respondent submits that the trial court without giving any reasons wrongly ordered to pay maintenance as monetary relief under section 20 of D Act in addition to the maintenance amount granted, but in fact the same should not be separately to be paid in addition to the maintenance. It is pertinent to note that the trial court exercised it's discretion and after considering the evidence on record granted maintenance as monetary relief. There is no any valid reason to order that the amount awarded in this D.V.C case should not be separately paid and not in addition to the maintenance amount. Section 20 of D Act empowers the

Magistrate to provide monetary reliefs. As per section 20(1) of D Act the monetary

relief may include any reliefs, but it is not limited to the maintenance for the aggrieved person, if any, including an order under section 125 of Cr.P.C or any other law for the time being in force. The Magistrate is empowered to grant 23 monetary relief in addition to the maintenance amount granted to the aggrieved person. As such, there is no force in the contention of the learned counsel for the 1st respondent that the monetary relief granted should not be in addition to the relief granted under section 125 Cr.P.C.,

28.in the facts and circumstances as not only the Crl.M.P.No.53/14 is filed belatedly, but the respondent is claiming that his maternal uncles and some others formed as a syndicate and filed the tender forms for the shop of

M/s.Mankinamma wines, Palasa in the name of the respondent for the period of 2012 to 2013, the said period was also completed and the said business was also fell in loss. Hence, in the facts and circumstances the petitioner is not entitled for receiving the documents sought to be received at this stage. Hence, the

Crl.M.P.No.53/14 is liable to be dismissed. But the fact remains that during the

period of 2012 to 2013 even according to respondent his maternal uncle and some others formed syndicate for the shop of M/s.Mankinamma wines, Palasa in the name of respondent. So, the business is done in the name of respondent, but respondent is claiming that the said business fell in loss and further it is not his business. Keeping that fact in view and also the fact that R.W.1 did business previously and also worked under R.W.2 and also cost of living and status of the family and that R.W.1 is providing and looking after the welfare of children who are residing with him, in the interest of justice if the monetary relief of Rs.1,000/- granted is enhanced to Rs.1,500/- per month that will meets the ends of of justice.

In view of that the aggrieved party is entitled for an amount of Rs.1,500/- per month from the date of application instead of Rs.1,000/- per month granted to her. The amount of Rs.800/- granted per month towards residential purpose is found reasonable and correct in the facts and circumstances of the case as P.W.1 has to reside alone since her children are residing with respondent No.1. The order of the trial court in respect of the relief claimed against 2nd respondent 24 dismissing as he has died and abated is correct. Hence, the petitioner has proved that she was subjected to domestic violence in the hands of respondent NO.1 at matrimonial house and she is entitled for the protection and residential order by granting Rs.800/- per month as ordered by the trial court and she is entitled for granting monetary relief of Rs.1,500/- per month from the date of application and not Rs.1,000/- per month. The petitioner in Crl.M.P.No.53/14 is not entitled for the relief sought for. Hence, the said Crl.M.P.No.53/14 in C.A.No.108/11 is dismissed.

C.A.No.106/11 is dismissed. The petitioner is not entitled for compensation from 1st respondent. The order in D.V.C.No.15/09 of Judicial First Class Magistrate,

Srikakulam dated 13.07.2011 is modified by granting maintenance @Rs.1,500/- per month instead of Rs.1,000/- per month and in respect of all other findings the said order is confirmed. Accordingly, point Nos.1 to 8 are answered. Basing on the answers to points 1 to 8, the point No.9 is answered.

29. Point No.9:- In the result, the Criminal Appeal No.108/11 is partly allowed granting Rs.1,500/- per month under section of Protection of Women from

Domestic Violence Act instead of Rs.1,000/- per month to the aggrieved person from the date of application. The remaining order of the Judicial First Class

Magistrate, Srikakulam granting other reliefs is confirmed. For remaining reliefs

the C.A.No.108/11 is dismissed. The C.A.No.106/11 is dismissed. The

Crl.M.P.No.53/14 in C.A.108/11 is dismissed.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open Court this the 23rd day of March, 2015.

JUDGE,

FAMILY COURT – CUM – III ADDL.

DISTRICT & SESSIONS COURT,

SRIKAKULAM.

25

Appendix of Evidence

Witnesses Examined

No witnesses are examined and no documents are marked on either side.

Judge,

Family Court – cum – III Addl. District & Sessions Court,

SRIKAKULAM.

Copy to: The learned Judicial Magistrate of I Class, Srikakulam along with LC record by RP.

1

//Fair order//

IN THE COURT OF THE JUDGE, FAMILY COURT – CUM - III

ADDITIONAL DISTRICT & SESSIONS COURT, SRIKAKULAM.

Present: Sri N. MALYADRI,

Judge, Family Court-cum-III Additional

District & Sessions Court, Srikakulam.

Tuesday, the 24th day of March, 2015.

Criminal Appeal No. 130/2011

From what court the appeal : Judicial Magistrate of I Class, is preferredNarasannapeta.

Number of the case in that : C.C.No.102/2009 Court

Number of the Appeal: 130/2011

Name and description of the : Yerra Rajulu son of Ramulu, 35 years, Appellants resident of Sriram Nagar, Narasannapeta town and mandal, Srikakulam district. The sentence and order : under which it was imposed in the lower Court. Accused found guilty for the offence under section 138 of Negotiable

Instrument Act and convicted him under section 255(2) Cr.P.C. and sentenced the accused to under go simple imprisonment for three months for the offence under section 138 of Negotiable Instrument Act .

Whether confirmed/modified : REVERSED or Reversed, if modified the modification

Date of presentation: 24.10.2011

Date of filing: 31.10.2011

Notice issued by Court to : 1.11.2011 appear

Bail bonds if appellants have : --- been let out on bail 2 Appellantsorderedto : 13.12.2011 appear

Date of hearing: 17.3.2015

Date of judgment:24.03.2015

This Criminal Appeal No.130/2011 is coming on 17-03-

2015 for final hearing before me in the presence of Sri K. Jagan

mohan Rao learned Advocate for Appellant and of Sri

M.Janardhana Rao, learned advocate for respondent No.1, and Sri

S. Hari Babu, learned Addl. Public Prosecutor for the Respondent

- State and having stood over till this day, for consideration and

this court delivered the following;

DRAFT JUDGMENT

This Criminal Appeal 130/2011 is filed against the Judgment of conviction of accused dated 29.9.2011 passed in C.C.No.102/2009 by the learned

Judicial Magistrate of First Class, Narasannapeta.

02.The said C.C.No.102/2009 is filed by the complainant by presenting a complaint for the offence under section 138 and 142 of Negotiable Instruments

Act.

03.The brief and relevant facts alleged in the complaint in C.C. No.

102/2009 on the file of Judicial Magistrate of First Class, Narasannapeta are as follows:

The accused availed loan under loan agreement ISNRTWNCT 00010E/2008 for purchase of consumer articles in discharge of the same the accused issued cheque bearing No. 6`13433 dated 15.4.2009 on Karur Vysya bank for Rs.17,780/-. The complainant presented the same in Andhra Bank,

Narasannapeta for collection on 15.4.2009, the same was dishonored due to insufficient funds under memo dated 7.5.2009. The complainant issued lawyer notice on 23.5.2009 under registered post with acknowledgment due requesting 3 to pay the cheque amount within 15 days. But the accused did not pay the amount. The complainant filed this complaint under section 138 of Negotiable

Instrument Act. Hence, the accused may be convicted as per law.

04.The case was taken cognizance under section 138 of Negotiable

Instruments Act against the accused and copies of documents are supplied to him as required u/Sec. 207 of Cr.P.C. by the Presiding Officer in the trial court.

05.The accused was examined under Section 251 of Cr.P.C., for the offence under section 138 of Negotiable Instrument Act, (herein after referred as the “Act” for the sake of convenience) for which he pleaded not guilty and claimed to be tried in the trial court.

06.During the course of trial in the trial court, the complainant examined

PW1 and got marked Ex.P1 to Ex.P4.

07.After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., during which he denied the incriminating evidence against him and reported no defence evidence in the trial court.

08.After conducting due trial, the Judicial First Class Magistrate Court,

Narasannapeta found the Accused guilty for the offence under section 138 of

Negotiable Instrument Act and convicted him under section 255(2) Cr.P.C. and sentenced the accused to under go simple imprisonment for three months for the offence under section 138 of Negotiable Instrument Act .

09.As against the said judgment in C.C.No.102/2009 on the file of Judicial

First Class Magistrate Court, Narasannapeta , the accused filed the Criminal

Appeal No.6130/2011 under section 374 (1)(b) Cr.P.C and the brief and relevant grounds of appeal in it are as follows:

a)The judgment of the trial court is contrary to law, weight of evidence and probabilities of the case.

b)The finding of the trial court in giving punishment to the accused for 4 the offence under section 138 of N.I. Act is unsustainable under law and also the trial court failed to ascertain valid reasons for giving so.

c)The trial court failed to consider that the complainant fabricated Ex.P1 for purpose of the case by using the same which was given by the accused along with other empty cheques towards collateral security;

d) The trial court failed to consider that Ex.P1 cheque was not issued by the appellant for legally recoverable debt;

e) The trial court also failed to consider that the receipt dt.30.9.2008 for

Rs.17,700/- issued by the respondent chit company is itself sufficient to thrown out the entire case of the complainant ;

f) the trial court failed to consider the receipt dt.30.9.2008 though it was filed by the appellant/accused at the time of examination under Sec.313 Cr.P.C. in the trial court on 26.9.2011.

g) Hence, the appellant prays to set aside the conviction and sentence of simple imprisonment for three months imposed in CC 102/2009 in it's judgment dt.29.9.2011 on the file of the file of Judicial Magistrate of First Class,

Narasannapeta.

10.During the course of joint enquiry in Criminal Appeal No.130/2011 no witnesses are examined and no documents are marked on behalf of any of the parties.

11.For the sake of brevity and convenience, here in after, the parties and evidence will be referred as referred in the judgment in C.C.No. 102/2009 on the file of Judicial Magistrate of I Class, Narasannapeta.

.12) The appellant has filed an application in Crl.M.P.176/2013 in Crl.A.

No.130/2011 under section 391 of Cr.P.C. to receive the receipt dt. 30.9.2008 for payment of Rs.17,700/- as an additional evidence on his side. The brief and relevant facts pleaded in that petition are as follows :

5

a) The trial court conducted examination under section 313 Cr.P.C. on 26.9.2011 and at that time the accused filed a receipt bearing No.015453 dt.30.9.2008 since he paid Rs.17,700/- to the 1st respondent Chit company in order to prove his contentions in the case.

b)The trial court did not consider his case and did not mark the said receipt and there is no any discussion in the judgment of the trial court pertaining to the said report and it is very essential evidence in order to prove his contentions and unless the said receipt is not received as an additional evidence on his side, he will be put to irreparable loss. Hence, the petition may be allowed as prayed for.

13) The respondent No.1 has not filed any counter even after giving sufficient time. Hence, treated as no counter.

14)The learned Additional Public Prosecutor reported no counter .

15) The said Crl.M.P.176/2013 is clubbed with main criminal Appeal

No.130/2011 for joint eqnuriy in the appeal as per orders dt.25.6.2014 . Thus the said criminal M.P.176/2013 is clubbed with main criminal appeal No.130/2011 .

16.a)The learned counsel for the appellant in Crl.A.No.130/2011 and accused in C.C. 102/2009 and petitioner in Crl.M.P.176/2013 submits the brief and relevant facts alleged in the charge sheet and grounds of appeal and also pleaded in the criminal M.P. 176/2013 referred supra.

b) The learned counsel for the accused submits that the trial court did not consider the facts elicited in the cross examination of PW1 and also the receipt dt. 30.9.2008 filed when as per the Section 313 Cr.P.C. examination of the accused was conducted and wrongly held that the accused did not comply with the Ex.P3 notice and held that the accused committed the offence punishable under section 138 of N.I.Act.

c) The learned counsel for the accused submits that on bare perusal of 6 Ex.P1 cheque clearly shows that the date 22.9.2008 is striked off and date 15.4.2009 is put in the relevant column meant for date and by tampering and altering the cheque presented it and the trial court did not consider the same.

d) The learned counsel for the accused submits that Ex.P1 chque was given as collateral security but not for the purpose of making payment in respect of any existing enforceable debt and the complainant by fabricating Ex.P1 by using empty cheque signed by the accused as collateral security filed the present complaint, but the trial court did not consider the same.

e) The learned counsel for the accused submits that as the complainant failed to prove that there was any legally recoverable and enforceable debt by the date of handing over of the Ex.P1 cheque which contains only the signature and the contents were not written at the time of signing of cheque by the accused and as such the accused has not committed any offence.

f) The learned counsel for the accused submits that as the trial court did not consider the receipt dt.30.9.2008 filed at the time of examination of accused under Sec.313 Cr.P.C. the accused has filed an application in Crl.M.P.176/2013 and the same is not filed belatedly and that the said receipt is already available on record and hence the Crl.M.P.176/2013 may be allowed and that in the event of dismissal of the same also for any reason, the said receipt dt.30.9.2008 may be considered, as it is filed in the Sec.313 Cr.P.C. examination of accused and as the notice under Ex.P3 was issued in respect of Ex.P1 cheque regarding which already amount is paid, the accused may be acquitted.

g) The learned counsel for the accused submits that even though accused is not examined as a witness himself or placed any evidence to disprove the case and presumption in favour of defacto complainant, but the accused is entitled of discharging the burden of proof placed on him under statute basing on the material brought on record and as such as Ex.P1 clearly shows that it is having 7 correction of date by striking off the date, thereby the accused discharged the burden of proof that the date of the cheque is corrected and it was not issued for the discharge of any enforceable debt, but the trial court did not consider the same and hence, the finding of the trial court that the accused is guilty of the offence is not correct as it is not after consideration of entire evidence on record, and more particularly the receipt dated 30.9.2008 passed for payment of

Rs.17,700/- and filed during the course of Sec.313 Cr.P.C. examination of the accused and hence, the judgment of conviction and sentence of accused may be set aside by allowing this criminal appeal.

17. a) The learned counsel for the first respondent-defacto complainant submits that the accused had given Ex.P1 cheque for a sum of Rs.17,700/- which was dis-honoured for the reason of “insufficient funds” and the defacto complainant placed evidence in proof of the same by examining PW1 and marking of Ex.P1 and Ex.P2 and the trial court rightly considered the same.

b)The learned counsel for the defacto complainant submits that the evidence of PW1 coupled with contents of Ex.P3 and Ex.P4 and the absence of the evidence on behalf of accused and the suggestions put to PW1 clearly prove that the Ex.P1 was issued in discharge of enforceable debt and the accused did not pay the cheque amount even after receipt of notice under Ex.P3 and within 30 days after the notice of the same and the trial court rightly convicted the accused under section 138 of N.I. Act.

c)The learned counsel for the defacto complainant submits that the receipt dated 30.9.2008 is not in respect of the Ex.P1 amount and as such the trial court rightly did not consider the same and hence, at this stage, the accused is not entitled for allowing the application in Crl.M.P.176/2013 as it is filed belatedly in this appeal in the year 2011 and as the trial court rightly after careful consideration of the entire evidence on record convicted the accused and that 8 there are no grounds to interfere with the conviction and sentence of accused.

Hence the criminal appeal No.130/2011 and Crl.M.P.176/2013 may be dismissed by confirming the judgment of conviction and sentence of accused.

18.Basing on the allegations in the charge sheet and grounds of appeal and contentions, of the learned counsel for the appellant in Crl.A. No.130/2011 and the learned counsel for the respondent NO.1 and the learned Additional Public prosecutor for the state, the following points emerge for consideration:

1.Whether the accused issued Ex.P1 cheque for Rs.17,780/- on 15.4.2009 in discharge of loan amount and same was presented in Andhra Bank on 15.4.2009 and it was dishonoured on 7.5.2009 due to insufficient funds?

2.Whether the complainant issued lawyer notice on 23.5.2009 within 30 days of receipt of return memo giving 15 days time to pay the cheque amount and though the accused received said notice did not pay the amount within 15 days of receipt of notice and complaint filed within 30 days of expiry of 15 days time?

3. Whether the complainant proved that the accused committed an offence punishable under sections 138 of N.I. Act beyond reasonable doubt?

4. Whether the accused filed the receipt dt. 30.9.2008 when section 313 Cr.P.C. examination was conducted and if so, whether the accused is entitled for consideration of the same on his behalf?

5. Whether the petitioner/accused is entitled for the reliefs sought for in Crl.M.P.176/2013 ?

6)Whether the judgment of conviction and sentence of accused for the offence under section 138 of N.I. Act by the Judicial Magistrate of I Class, Narasannapeta dated29.9.2011 requirying or reversal or modification or confirmation?

7) To what relief the parties are entitled?

19. POINT NOS.1 TO 6: These points Nos.1 to 6 are interrelated very closely to each other and hence, in order to avoid repetition of discussion of evidence and for the sake of convenience, they are discussed in common.

20.The defacto complainant to prove the guilt of the accused under

Section 138 of N.I. Act examined its office assistant as PW1 . On behalf of the 9 accused no witnesses are examined.

21)a)PW1-P.Ananda Rao being office assistant of defacto complainant in his chief examination which is filed by way of affidavit deposed all the facts pleaded in the complaint. He got marked Ex.P1 to Ex.P4 which are Cheque for

Rs.17,780/-, Bank return memo, office copy of lawyer notice and postal acknowledgment respectively. PW1 in his chief examination deposed that, the accused availed loan under agreement No. ISNRTWNCT 00010E/08 in discharge of the loan amount the accused issued cheque Ex.P1 bearing No.613433 on 15.4.2009 drawn at Karoor Vysya Bank for Rs.17,780/-. He also deposed that he presented the same in Andhra Bank, Narasannapeta on 15.4.2009 the same was dishonoured due to insufficient funds with return memo Ex.P2 dt.7.5.2009 He also deposed that he issued lawyer notice on 23.5.2009 with registered post acknowledgment due demanding to pay to the cheque amount within 15 days from the date of receipt of the said notice but the accused neither paid amount nor issued reply notice. He also got marked postal acknowledgment as Ex.P4.

b)PW1 in his cross examination stated that they have not filed loan agreement and other related papers of the loan. He also denied the suggestion and stated that it is not true to suggest that we used to obtain blank cheques at the time of availed of loan for the installments due. He also stated that “It is true that one E.M.N.Rao is arbitrator of our firm. It is not true to suggest that accused handed over all post date cheques in respect of loan installments, the same was mentioned in the notice issued by our arbitrator. The accused issued every month cheque for payment of loan installments. All the cheques given by the accused were bounced. The accused issued 36 cheques and all the cheques were dishonoured. We filed complaints in respect of two cheques. It is not true to suggest that all 34 other cheques that were issued by the accused is honored then we not filed criminal cases only two cheques were dishonoured then we filed 10 complaint against the accused. It is true that there is a correction on the date.

Witness voluntarily says that there were initials of accused on the striking of dates. It is true that the original date is 22.9.2008 and corrected date is 15.4.2009. It is not true to suggest that the correction and signature of the accused is not that of the accused. It is not true to suggest that the purpose of the case we corrected the date and affixed the signature that forging the signature of the accused. He also stated that he has not filed the counterfoil of the presentation of Ex.P1 cheque and returned memo of Andhra Bank along with

Ex.P1. It is not true to suggst that the accused paid all the installments due under loan.”

c) The above facts stated by PW1 proves that the complainant has not filed the loan agreement and other related papers of the loan in the court, but suggestions put to PW1 clearly prove as per the accused he handed over all post- dated cheques in respect of loan installments and that 2 cheques were dishonoured due to which the defacto complainant filed the criminal cases against the accused. They also prove that there is a correction of the date 22.9.2008 as 15.4.2009 and that the accused is claiming that the signature in Ex.P1 cheque where correction is there is not that of him . If that is so, the defacto complainant should have placed the evidence to prove that the signautre at the correction in

Ex.P1 is that of the accused. In Ex.P3 notice there is no mention that Ex.P1 cheque date is corrected and the accused put his signature at the place of correction. On the other hand, it is mentioned that the cheque dated is 15.4.2009.

In the complaint also there is no mention that the accused corrected date and put the signature of him after correcting the date as 15.4.2009. As per the complaint also Ex.P3 notice the cheque date is 15.4.2009 but there is no whisper about the accused striking off the actual date of cheque as 22.9.2008 and he is putting 15.4.2009 date and putting his signature. When PW1 is suggested that the 11 accused has not signed in Ex.P1 at the relevant place after correction the complainant should have placed evidence in proof of the same. Apart from that the receipt dt.30.9.2008 for a sum of Rs.17,700/- is filed into the court on 26.9.2011 on which date the Sec.313 Cr.P.C. examination of the accused is conducted. In Sec.313 Cr.P.C examination of accused also it is not mentioned that the cheque Ex.P1 contains the signature of the accused after the correction of date. It is so, because PW1 also did not state the same in his chief examination. If really the initials in the name of the accused after striking off the date is that of the accused then apart from the evidence of PW1, the defacto complainant should have placed evidence in proof of the same, but he did not do so.

22). The receipt dt.30.9.2008 filed on the date of examination of accused under section 313 Cr.P.C. shows that an amount of Rs.17,700/- is paid under receipt No.93680, but it is not mentioned in respect of which installments the said amount is paid but the date of receipt is dt.30.9.2008. This cheque is originally

dated 22.9.2008. The learned counsel for the accused submits that the payment

under receipt is in respect of the amount due covered by the cheque dt.22.9.2008. The defacto complainant since admittedly not filed the loan agreement and other related papers it cannot be ascertained whether the said payment under the receipt is entered into the accounts and records of the defacto complainant. Except the self-serving statement of the PW1 that all the 36 cheques issued by the accused are bounced, there is no proof of the same. But in view of the suggestion made to PW1 that only 2 cheques were dishonoured then the complainant filed the complaint against the accused, it can be presumed that two cheques were dishonoured of the accused but there is no evidence about whether Ex.P1 is also one of the cheque out of those two cheques.

23) The evidence of Pw1 coupled with contents in Ex.P1 to Ex.P4 clearly proves that the defacto complainant proved Ex.P1 cheque was issued in discharge 12 of the loan amount with date 22.9.2008 and it was presented in Andhra Bank on 15.4.2009 and the same was dishonoured due to insufficient funds on 7.5.2009 and within 30 days legal notice is issued dt. 23.5.2009 under Ex.P3 after returning of the memo giving 15 days time to pay the cheque amount to the defacto complainant and he did not pay the amount due within 30 days after receipt of notice and complaint is filed within 30 days after expiry of 15 days time. But the complainant miserably failed to prove that the signature in Ex.P1 after striking the date of cheque from 22.9.2008 to 15.4.2009 is that of the accused and 15.4.2009 is put by accused.

24). Unless and until the defacto complainant prove that Ex.P1 cheque is issued in discharge of the legally enforceable debt the complainant is not entitled to claim that there is guilt of the accused under the Act. In this case the receipt

dt. 15.4.2009 proves that an amount of Rs.17,780/- which is also the amount

mentioned in Ex.P1 cheque dt.30.9.2008 and thereby after issuing of the cheque

Ex.P1 with date 22.9.2008 the said amount is paid by the accused. If that is so it is for the defacto complainant to prove that amount covered under the receipt is accounted and it is not in respect of the Ex.P1 cheque, but there is no evidence to prove the same. In those facts and circumstances, since the trial court did not consider the receipt filed by the accused in Sec. 313 Cr.P.C. examination and also the trial court did not consider the correction of whether the alleged date and counter signature of the accused in Ex.P1 is that of the accused are not, it can be safely held that the trial court has not appreciated the evidence on correct lines.

13 25).The trial court held that the accused did not place any evidence to prove that the correction of date on right top corner and the counter signature is not that of the accused is not correct, because the accused filed receipt dt.30.9.2008 in his Sec.313 Cr.P.C. examination and further the accused is always presumed to be innocent and it is for the defacto complainant to prove the guilt of the accused. In view of that placing the burden on the accused to prove that the correction of date and the signature at the place where correction of the date is there is that of the accused is not a cardinal principle of criminal law.

26) The trial court observed that the accused has taken a plea that he discharged the loan amount and all the 36 cheques issued by him are honoured and the burden is on the accused. It is pertinent to note that even though as observed by the trial court Ex.P1 cheque was dishonoured on the ground that the signature on the date of correction is not that of the accused but as stated earlier the defacto complainant failed to plead in the complaint and also not mentioned in the notice about the correction of date and accused putting his signature at the relevant place. In view of that, placing the burden on the accused that he has to prove the signature in Ex.P1 and the correction of date is not that of him and also presuming that Ex.P1 cheque is issued by the accused in the absence of not sending Ex.P1 to the handwriting expert by the accused as that of the accused is not proper and correct.

27) Always, it is the burden of defacto complainant to prove that it is the accused who altered the date and put the signature in it, but the defacto complainant failed to prove the same. The defacto complainant did not take steps to send the cheque to the handwriting expert and also the defacto complainant has not filed relevant accounts and records of the loan to prove that the cheque

Ex.P1 amount is not paid by the accused. Merely because the accused did not file 14 the loan particulars it can not be held that he is due of the amount shown in the

Ex.P1 cheque by the date corrected date 15.04.2009 he might be due of the said amount by the date 22.9.2008 and in discharge of the same Ex.P1 cheque might have been issued and as such in view of the receipt subsequently dt.30.9.2008 the accused is able to place the evidence to prove that he paid the amount mentioned in the cheque. In such an event the burden is on the defacto complainant to prove that the payment made under the receipt is not in respect of Ex.P1 cheque dt.22.9.2008 and further by 15.4.2009 there is legally enforceable existing debt and in discharge of the same the accused has given the

Ex.P1 cheque after correcting the date and by putting his signature but the defacto complainant miserably failed to prove the same.

28) In the facts and circumstances as already discussed the receipt dt.30.9.2008 is filed on the date when accused was examined under Sec.313

Cr.P.C. Hence, at this stage the petitioner is not entitled for the relief sought for in the application in Crl.M.P.176/2013 to place additional evidence in respect of the said receipt and hence the said petition is liable to be dismissed.

29) a) The Hon'ble Supreme Court in the decision reported in 2014 Crl.L.J.

Page No.443 between Kamlesh Prabhudas Tanna and another v. State of

Gujarath held as follows: In this context, we may refer with profit to the decision in Padam Singh v. State of U.P.[1], wherein a two-Judge Bench, while dealing with the duty of the appellate court, has expressed thus: - “It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as 15 the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.” [Emphasis supplied]

In Rama and others v. State of Rajasthan[2], the Court has stated about the duty of the appellate court in the following terms: - “It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law.”

Recently, a three-Judge Bench in Majjal v. State of Haryana[5] has ruled thus: - “It was necessary for the High Court to consider whether the trial court’s assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court’s concurrence with the trial court’s view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter.”

The Hon'ble Supreme Court also held as follows:

We are pained to say so, as we find that the learned trial Judge has written an extremely confused judgment replete with repetitions and in such a situation it becomes absolutely obligatory on the part of the High Court to be more careful to come to a definite conclusion about the guilt of the accused persons, for their liberty is jeopardized. It may be stated at the cost of repetition that it is the sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re-appreciation and re-scrutiny of the material on 16 record.

It can be stated with certitude that appreciation of evidence and proper re-assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate court to be undertaken and when that is not done, the cause of justice is not subserved, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt. Ergo, the emphasis is on the duty of the appellate court.

b)As per the principles laid down in the above decision, in this case also since trial court without discussing the facts stated by P.W.1 and without considering the receipt filed by the accused dt.30.9.2008 in his Sec.313 Cr.P.C.

and also by placing the burden on the accused to prove that the signature in

Ex.P1 and the correction of date is not made by the accused convicted the accused and gave it's finding and hence, there is a need for appreciation of the evidence and proper re-assessment of the same to arrive to any conclusion in order to serve the cause of justice so as to see, an innocent person is not sent to prison and a guilty person is not let of despite evidence on record to assure his guilt.

30) a) The Hon'ble Supreme Court in the decision reported in 2014 Crl.L.J.

Page No.743 between Putchalapalli Naresh Reddy v. State of A.P. & etc.

held as follows:

In State of U.P. vs. Anil Singh, A.I.R. 1988 SC 1998, this Court observed as follows:

“In an appeal against acquittal, in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood, stated or embroidery added by witnesses.

In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. The indifferent attitude of the public in the investigation of crimes could also be pointed. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on ground that all witnesses to occurrence have not been examined. It is also not proper to reject the case for 17 want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies of falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished.

A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.”

In State of Punjab v. Karnail Singh, (2003) 11 SCC 271, this

Court held as follows:

“There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from -the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re- appreciate the evidence even where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.”

b)As per the principles laid down in the above decision, in the present case also in view of the inconsistency in the evidence of P.W.1 destroying the confidence on him as in the chief examination and also in the notice Ex.P3 and also in the complaint, the PW1 did not whisper about the correction of date and 18 putting of signature by accused and only in the cross examination of him he stated that the said correction is made by accused , it can be safely held that the entire evidence of PW1 is required to be appreciated and on appreciation it is found that the defacto complainant failed to discharge the burden of proving that

Ex.P1 cheque is issued by making correction of date and putting signature by the accused.

31). The accused is able to prove that the cheque amount was paid by him by 30.9.2008 whereas the cheque is given Ex.P1 originally on 22.9.2008 and as such the defacto complainant also failed to prove that there was any existing liability or debt to defacto complainant by the altered date of Ex.P1 dt.22.9.2008.

In those facts and circumstances, it can be safely held that the defacto complainant failed to prove that the accused issued Ex.P1 cheque for Rs.17,780/- on 15.4.2009 in discharge of loan amount but complainant has proved that the complainant issued lawyer notice on 23.5.2009 within 30 days of receipt of return memo giving 15 days time to pay the cheque amount though the accused received said notice did not pay the amount within 15 days of receipt of notice and complaint filed within 30 days of expiry of 15 days time. The complainant failed to prove that the accused committed an offence punishable under sections 138 of N.I. Act beyond reasonable doubt. Though the defacto complainant proved that Ex.P1 cheque was presented in Andhra Bank on 15.4.2009 and it was dishonoured on 7.5.2009 due to insufficient funds and the complainant issued lawyer notice on 23.5.2009 within 30 days of receipt of return memo giving 15 days time to pay the cheque amount though the accused received said notice did not pay the amount within 15 days of receipt of notice and complaint filed within 30 days of expiry of 15 days time. The conviction of accused is not in accordance with law. The Crl.M.P.176/2013 is dismissed. Hence, the judgment and conviction of sentence of accused in C.C.No.102/2009 dt. 29.9.2011 on the file of Judicial 19

Magistrate of I Class, Narasananpeta is set aside by allowing this appeal,

Accordingly, points 1 to 6 are answered. Basing on the answers to points 1 to 6, the point No.7 has to be answered.

32). Point No.7:- In the result, the Criminal Appeal No. 130/2011 is allowed and the judgment of conviction and sentence of appellant/accused is set aside.

Consequently accused is found not guilty for the offence under section 138 of N.I.

Act . Hence, he is acquitted under section 255(1) CrP.C. for the said offence. The bail bonds of the accused and surities if any, shall stand canceled.

Crl.M.P.No.176/13 is dismissed.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open Court this the 24th day of March, 2015.

JUDGE,

FAMILY COURT – CUM – III ADDL.

DISTRICT & SESSIONS COURT,

SRIKAKULAM.

Appendix of Evidence

Witnesses Examined

No witnesses are examined and no documents are marked on either side.

Judge,

Family Court – cum – III Addl. District & Sessions Court,

SRIKAKULAM.

Copy to: The learned Judicial Magistrate of I Class, Narasannapeta along with LC record by RP.

20

1

//Fair order//

IN THE COURT OF THE JUDGE, FAMILY COURT – CUM - III

ADDITIONAL DISTRICT & SESSIONS COURT, SRIKAKULAM.

Present: Sri N. MALYADRI,

Judge, Family Court-cum-III Additional

District & Sessions Court, Srikakulam.

Friday, the 20th day of March, 2015.

Criminal Appeal No.33/2012

From what court the appeal : Spl.Judicial Magistrate of I Class, is preferredProhibition & Excise, Srikakulam..

Number of the case in that : C.C.No.114/2009. Court

Number of the Appeal: 33/2012

Name and description of the : BagguVenkataramanaMurty, Appellants s/o.Apparao, aged about 29 years, r/o.Thotapalem village, Etcherla mandal, Srikakulam district. The sentence and order : under which it was imposed in the lower Court. In the result, A.1 to A.7 are not found guilty for the offence punishable under section 324 of Indian Penal Code and they are acquitted under section 248(1) Cr.P.C., The bail bonds of the accused shall stand cancelled. Unmarked property, if any, shall be destroyed after expiry of appeal time.

Whether confirmed/modified : Confirmed. or Reversed, if modified the modification

Date of presentation: 20.03.2012

Date of filing: 27.03.2012

Notice issued by Court to : 29.03.2012 appear

Bail bonds if appellants have : --- been let out on bail

Appellantsorderedto : 11.05.2012. appear 2 Date of hearing: 17.03.2015.

Date of judgment: 20.03.2015.

This Criminal Appeal No.33/2012 is coming on 17-03-2015 for final hearing

before me in the presence of Sri G.Anil Kumar, learned Advocate for Appellant and

of Sri Ch.Suresh Kumar, learned advocate for respondents 1 to 7, and Sri S. Hari Babu, learned Addl. Public Prosecutor for the Respondent No.8 - State and having stood over till this day, for consideration and this court delivered the following;

JUDGMENT

This Criminal Appeal 33/2012 is filed against the Judgment of acquittal of accused Nos.1 to 7 dated 27.01.2012 passed in C.C.No.114/2009 by the learned Spl.Judicial Magistrate of First Class, Prohibition & Excise Court,

Srikakulam.

02.The said C.C.No.114/2009 is filed by S.I. of Police, Etcherla Police

Station by filing a charge sheet in Crime No.14/2008 of Etcherla Police Station against the accused Nos.1 to 7 to punish them under Sections 324,323 r/w.34 of

Indian Penal Code.

03.The brief and relevant facts alleged in the charge sheet in C.C.

No.114/2009 on the file of Spl.Judicial Magistrate of First Class, Prohibition &

Excise Court, Srikakulam are as follows:

a)The accused are residents of Thotapalem village of Etcherla mandal. The accused A.1 and A.2 are the husband and wife, A.3 and A.4 are the sons of A.1 and A.2, A.5 and A.6 are the wives of A.3 and A.4 respectively and daughter-in-laws of A.1 and A.2, A.7 is the daughter of A.1 and A.2 and all are one and the same family.

b)L.W.1 Baggu Venkataramanamurty is the defacto-complainant, L.Ws.2 and 4Baggu Rajulamma and Baggu Aparao are the mother and father of L.W.1, 3 L.W.3 Mantri Ramarao is the brother-in-law, and while L.W.5 Bhyri Sravani is the sister of L.W.1, L.Ws.6 and 7 Dangala Sankar and Sirla Mohanarao are the direct witnesses to the offence, L.Ws.8 and 9 Pothula Surya Bhagavathirao and Mutyala

Srinivasarao are the mediators for the observation of scene of offence, L.W.10

Dr.D.Suryarao is the medical officer, L.Ws.11 and 12 K.Narayanarao, A.S.I and

D.Vijayakumar, Sub-Inspector of police are the investigating officers.

c)There are land disputes pending between the complainant and his uncle Baggu Suryanarayana(A.1) and the Hon'ble Senior Civil Judge, Srikakulam issued orders in favour of the complainant. Since then, the said land is under peaceful enjoyment possession of the complainant, but the accused family grew wild against the complainant and his family members and now and then picked up quarrel with them by claiming right over the said land. While so, on 24.01.2008 at about 2230 hours while the complainant is attending for dinner at his house in

Thotapalem village, the marginally noted accused came to the house of complainant abused him in filthy language. ON that the complainant came out from the house asnd questioned the high handed behaviour of the accused, for which, all the accused attacked on the complainant and L.Ws.5 and 6 poured chilly powder into the eye of the complainant, meanwhile A.3 and A.4 beat the complainant with iron rods on his head and caused bleeding injuries. The remaining accused beat him with hands and caused injuries. The injured admitted in the Government hospital, Srikakulam and got treatment.

d)Basing on the medical intimation and statement of the complainant, a case in Cr.No.14/2008 under sections 324, 323 r/w.34 IPC was registered on 25.01.2008 at 1800 hours by L.W.11 and investigated into. Investigation discloses that all the accused with a common intention committed the offence punishable under sections 324, 323 r/w.34 IPC.

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04.The case was taken cognizance under sections 323,324 r/w.34 of

Indian Penal Code, against the accused A.1 to A.7 and copies of documents are supplied to them as required u/Sec. 207 of Cr.P.C. by the then Presiding Officer in the trial court.

05.The accused A.1 to A.7 were examined under Section 239 of Cr.P.C., and read over and explained the contents of the charges of the offences under section 324 of Indian Penal Code in Telugu to them and they denied the offence, pleaded not guilty and claimed to be tried in the trial court.

06.During the course of trial prosecution examined P.Ws.1 to 9 and marked Exs.P1 and P6 in the trial court.

07.After closure of the prosecution evidence, the accused A.1 to A.7 were examined under Section 313 Cr.P.C., during which they denied the incriminating evidence of prosecution against them and reported no defence evidence in the trial court.

08.After conducting due trial, the trial court found the Accused 1 to 7 are not guilty for the accusation of the offences punishable under section 324 of

Indian Penal Code and they are acquitted under section 248(1) of Code of Criminal

Procedure for the said offence. The unmarked property, if any, shall be destroyed after expiry of appeal time.

09.As against the said judgment in C.C.No.114/2009 on the file of

Spl.Judicial First Class Magistrate Court, Prohibition & Excise, Srikakulam, the defacto-complainant filed the Criminal Appeal No.33/2012 under section 372 5 Cr.P.C and the brief and relevant grounds of appeal in it are as follows:

a)The judgment of the trial court is contrary to law, weight of evidence and probabilities of the case.

b)The trial court without considering the evidence of P.W.1, who is injured and stated that all the accused trespassed into his house and A.3 to A.4 beat him with iron rods on his head and neck and the evidence of P.Ws.2 to 4 who corroborated the evidence of P.W.1 acquitted the accused.

c)The trial court failed to consider that the evidence of P.W.2 who is the mother of the appellant, who stated that she was beaten by accused Nos.4 and 5.

d)The trial court erred in holding that the evidence of the witnesses is inconsistent.

e)The trial court failed to consider that in the evidence of witnesses i.e.

P.Ws.1 to 4 nothing was elicited during the cross-examination by the defence.

f)The trial court failed to consider the evidence of P.W.1 is corroborated with the evidence of P.W.9 i.e. doctor who treated and examined him and found lacerated injury on the left side of the neck of P.W.1.

g)The trial court failed to consider that the evidence of P.Ws.2 to 4 who categorically stated that they were present in the house at 10 p.m which shows that they were very much available in the houses at the time of incident and they witnessed the incident and they categorically stated about the manner of incident.

h)The trial court failed to consider that appropriate charges were not framed in regard to trespass of the accused into the house of the P.W.1 despite the evidence.

I)The trial court basing on the conjectures and surmises wrongly acquitted the accused though there is acceptable evidence placed by the prosecution.

6 I)For these and other grounds to be submitted at the time of hearing of the appeal, the appellant prays to set aside the acquittal passed against the appellants in C.C.No.114/2009 dated 27.01.2012 by the Spl.Judicial Magistrate of

First Class Court, Prohibition & Excise, Srikakulam and be pleased to allow the

appeal in the interest of justice.

10.During the course of joint enquiry in Criminal Appeal No.33/2012 no witnesses are examined and no documents are marked on behalf of any of the parties.

11.For the sake of brevity and convenience, here in after, the parties and evidence will be referred as referred in the judgment in C.C.No.114/2009 on the file of Spl.Judicial Magistrate of First Class Court, Prohibition & Excise, Srikakulam.

12.a)The learned counsel for the appellant in Crl.A.No.33/2012 and defacto-complainant in C.C.No.114/2009 submits the brief and relevant facts alleged in the charge sheet and grounds of appeal referred supra.

b) The learned counsel for the defacto-complainant submits that the trial court without considering the evidence of p.W.1 whose evidence is corroborated by the evidence of P.Ws.2 to 4 independent witnesses and medical officer P.W.9 wrongly acquitted the accused.

c) The learned counsel for the defacto-complainant submits that as per the orders of Senior Civil Judge's Court, Srikakulam, defacto-complainant is in possession and enjoyment of the land in respect of which there are disputes between defacto-complainant and A.1 and due to the said orders P.W.1 was beaten by the accused.

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d) The learned counsel for the defacto-complainant submits that though the prosecution proved the guilt of the accused by proving it's case beyond reasonable doubt, the trial court wrongly held that accused Nos.1 to 7 are found not guilty and hence Judgment of acquittal may be set aside by allowing this appeal and the accused 1 to 7 may be punished in accordance with law.

13. a) The learned counsel for the respondents 1 to 7/accused 1 to 7 submits that the brief facts alleged in the charge sheet and the grounds of appeal referred supra.

b)The learned counsel for the accused submits that the trial court on a careful consideration of the entire evidence on record he rightly held that while the evidence of P.W.1 is that A.3 and A.4 beat him with iron rods on his neck and head and he became unconscious, the evidence of P.W.2 is that A.5 and A.6 sprinkled chilly powder on her and P.W.1, and A.4 and A.5 beat her and P.W.1 became unconscious.

c)The learned counsel for the accused submits that the trial court rightly on consideration of the evidence of P.Ws.1 to 4 held that their evidence is inconsistent and contradictory to each other and untrustworthy and unbelievable.

d)The learned counsel for the accused submits that there is variation regarding the date of offence as per F.I.R and evidence of P.W.1 and prosecution also failed to seize any material objects like iron rods, sticks and stones and the evidence of medical officer P.W.9 also do not corroborate the evidence of P.W.1 and the prosecution miserably failed to prove the guilt of the accused and thr trial court and the trial court rightly after consideration of the entire evidence on record found that the accused are not guilty of the offence with which they are charged and they were rightly acquitted and there are no grounds to interfere with the Judgment of the trial court and hence the appeal in Criminal Appeal 8 NO.33/2012 may be dismissed confirming the Judgment in CC.No.114/2009 dated 27.01.2012.

14. a) The learned Additional Public Prosecutor for the respondent

No.8/State submits that the brief facts alleged in the charge sheet and the grounds of appeal referred supra.

b)The learned Additional Public Prosecutor for the respondent No.8 submits that the trial court on consideration of the evidence of P.Ws.1 to 9 and

Exs.P1 to P3 acquitted the accused Nos.1 to 7 and hence this appeal is filed by the defacto-complainant and after consideration of the evidence on record the

Judgment may be passed in this appeal.

15.Basing on the allegations in the charge-sheet and grounds of appeal and contentions, of the learned counsel for the appellant in Crl.A. No.33/2012, the following points emerge for consideration:

1. Whether the accused Nos.1 to 7 on 24.01.2008 at 10.30 p.m came to the house of defacto-complainant and abused him in filthy language?

2. Whether the accused Nos.5 and 6 sprinkled chilly powder in the eyes of defacto-complainant and A.3 and A.4 beat him with iron rods on his head and caused bleeding injuries?

3.Whether the accused Nos.1,2 and 7 beat the defacto-complainant with hands and caused injuries?

4.Whether the accused 1 to 7 committed an offence under Section 324 of IPC?

5.Whether the Judgment of acquittal of the accused Nos.1 to 7 for the offence under section 324 of IPC require, varying or reversal or modification or confirmation?

6. To what relief the parties are entitled?

16. POINT NOS.1 TO 5: These points Nos.1 to 5 are interrelated very closely to each other and hence, in order to avoid repetition of discussion of 9 evidence and for the sake of convenience, they are discussed in common.

17.The prosecution to prove the guilt of the accused examined in total 9 witnesses. P.W.1 is the defacto-complainant and he is examined to speak about the FIR, receiving injuries caused by the accused, admission into the Government

Hospital and giving of his statement to police. P.Ws.2,3,4,6 are eye witnesses of the incident and P.W.2 is examined to corroborate the evidence of P.W.1 and his informing to Mantri Ramarao, P.Ws.3,4 and 6 are examined to corroborate the evidence of P.W.1 and their rescuing P.W.1 from the hands of accused. P.W.5 is the mediator and he is examined to speak about the observation of scene of offence and the contents of scene observation report. P.W.9 is medical officer and he is examined to speak the treatment given to L.W.1 and issue of wound certificate and his opinion. P.W.7 is Asst.Sub-Inspector of police and he is examined to speak about his registration of FIR, scene observation and investigation. P.W.8 is the

Sub-Inspector of police, Etcherla police station and he is examined to speak about verification of investigation done by P.W.7, investigation and arrest of accused and filing of charge-sheet.

18.For the sake of brevity and convenience hereinafter Evidence Act, 1872 will be referred as E. Act.

19. The rules of evidence are, ingeneral, the same in civil and criminal proceedings. There are, however, some exceptions, as for instance, the doctrine of estoppel applies to civil proceedings only. On the other hand, the provisions relating to confession under sections 24 to 30 of the Indian Evidence Act which will be referred for the sake of brevity and convenience as E. Act hereinafter and character of persons under sections 53 and 54 of E. Act and incompetence of parties as witnesses under section 129 of E. Act are peculiar to criminal proceedings.

But, there is a marked difference as to the effect of evidence in civil and criminal proceedings. In civil proceedings, the proof required is sufficient if there is a mere preponderance of probability, but, in criminal proceedings, it must be such as to exclude, to a moral certainty, every reasonable doubt of the guilt of the accused. As far as criminal proceedings are concerned, in the words of the

Hon'ble Supreme Court in Garib Singh v. State of Punjab, (1972) 3 S.C.C. 418 “the

prosecution must prove its case beyond all reasonable doubt”. But, in civil cases, even though charges of criminal or fraudulent character are involved, it is wrong 10 to insist on proving charges clearly and beyond reasonable doubt as held by

Hon'ble Supreme Court in Gulabchand v. Kudilal, A.I.R. 1966 S.C.1734

The E. Act makes no distinction between the degree of proof or probability requisite for criminal as distinguished from civil cases. However, there is marked difference as to the effect, ie., probative force of evidence, in civil and criminal proceedings. In civil cases, mere preponderance of probabilities is sufficient; whereas, in criminal trials, the persuasion of guilt must amount to such a moral certainty as to convince the mind of the court beyond all reasonable doubt is based upon the maxim of English law laid that “it is better that ten guilty men should escape, rather than one innocent should suffer”.

20.The rules regulating the admissibility of evidence are also, in general, the same in civil as in criminal proceedings. But, with regard to the proof in criminal cases, the following general rules have to be observed:

1. The accused is always presumed to be innocent, until the prosecution proves him to be guilty.

2. The evidence must be such as to exclude every reasonable doubt of the guilt of the accused.

3. In case of any reasonable doubt as to the guilt of the accused, the benefit of doubt should always be given to the accused.

4. There must always be clear proof of corpus delicti, ie., the fact of commission of the crime.

5. The hypothesis of delinquency should be consistent with all the facts proved.

Basing on the above principles of law it has to be seen whether the prosecution proved the guilt of accused beyond reasonable doubt in order to punish for the commission of the offence with which he is charged. While doing so, the points framed has to be considered.

21.P.W.1 stated that after the incident, he fell down and became unconscious and regained consciousness at the Government Hospital, Srikakulam.

He also stated that his statement was recorded at the hospital and P.Ws.2 to 4 were present and witnessed the incident of A.1 to A.6 trespassing into his house and shouting at him and A.3 and A.4 beating him with iron rods on his head and neck on 21.04.2008 at Thotapalem village at his house at 10 p.m., P.Ws.2 to 4 corroborated the evidence of P.W.1 in their chief-examinations. In the cross- 11 examination P.W.3 stated that himself and his daughter did not sustain any injuries. P.W.4 also admitted that her father, herself and her mother never sustained injuries though the incident is occurred in the middle of the road.

22.P.W.6 turned hostile to the case of prosecution and he denied of his stating as in Ex.P3. He also stated that he cannot say the specific name of the street in which altercation took place at Thotapalem village. As such his evidence is not believable.

23.P.W.5 stated in his cross-examination that he signed in Ex.P2 scene observation report without reading it. He also stated that he does not know the location of the scene of offence. As such, his evidence and the contents of Ex.P2 is not helpful for the prosecution to prove the guilt of the accused. P.W.1 stated that

A.3 and A.4 beat him with iron rods on his head and neck and he fell down, but

P.W.2 stated A.5 and A.6 sprinkled chilly powder on her and P.W.1 and A.4 and A.5 beat her and P.W.1 with stones and later A.1 and A.7 beat with small sticks and

P.W.1 became unconscious. P.W.3 stated that A.5 and A.7 sprinkled chilly powder.

P.W.3 also stated that A.6 and A7 trespassed into her house and sprinkled chilly powder on the face of P.W.1. He also stated that A.3 and A.4 beat P.W.1 with iron rods on his back side of head. He also stated that A1, A.2 and A.5 also beat P.W.1 with sticks on his head and all over the body. P.W.4 stated that A.6 and A.7 sprinkled chilly powder on the face of P.W.1 and A.3 and A.4 beat P.W.1 with iron rods on his back side of head. She also stated that A.1, A.2 and A.5 threw stones on P.W.1 and also beat him with sticks. The evidence of P.W.3 shows that himself and P.W.4 were in the verandah and P.W.2 was serving dinner to P.W.1 in the middle room, whereas the evidence of P.W.4 is that at the time of incident herself and P.Ws.2 to 3 did not sustain any injuries in the incident. The evidence of P.W.2 shows that A.4 and A.5 beat her and P.W.1 with stones, whereas P.W.3 did not say that accused beat P.W.2. P.W.2 is neither examined by any doctor nor any wound 12 certificate is filed. The evidence of P.W.9 doctor and contents of Ex.P6 shows that there is no injuries on the head of P.W.1. There is only one lacerated injury on the neck of P.W.1. Thereby any of the accused beating P.W.1 on his head and backside of his head with sticks, stones and rods is not believable at all. The prosecution is not able to place evidence to prove that any iron rods, sticks and stones are seized. Merely because there is enmity between P.W.1 and accused, it cannot be held that the incident is occurred. In view of that as held by the trial court the evidence of P.Ws.1 to 4 are inconsistent and not corroborating with each other and the evidence of P.W.9 medical officer is not supporting and corroborating the evidence of P.W.1 in respect of the injuries sustained by him. In those circumstances, in the absence of evidence of any independent witnesses it is difficult to believe the version of the prosecution that the accused Nos.1 to 7 trespassed into the house of P.W.1 and beat him.

24.As per the principles laid down in the decision reported in 2014

Crl.L.J 3975 between C.K.Dasegowda & Ors. v. State of Karnataka by the

Hon'ble Supreme Court that 'In view of trial court acquitting the accused there is

double presumption in favour of the accused that is to say firstly, the presumption of innocence and secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. In view of that the prosecution miserably failed to prove that the accused Nos.1 to 7 on 24.01.2008 at 10.30 p.m came to the house of defacto- complainant and abused him in filthy language, that the accused Nos.5 and 6 sprinkled chilly powder in the eyes of defacto-complainant and A.3 and A.4 beat him with iron rods on his head and caused bleeding injuries, that the accused

Nos.1,2 and 7 beat the defacto-complainant with hands and caused injuries, that the accused 1 to 7 committed an offence under Section 324 of IPC, that the

Judgment of acquittal of the accused Nos.1 to 7 for the offence under section 324 13 of IPC. Hence, the Judgment of acquittal of accused 1 to 7 in CC.No.114/2009 does not require any interference and there are no grounds to interfere and hence the same is confirmed. Accordingly, points 1 to 5 are answered. Basing on the answers to points 1 to 5, the point No.6 has to be answered.

25.Point No.6:- In the result, the Criminal Appeal No.33/12 is dismissed confirming the Judgment of acquittal passed against A.1 to A7 by the learned Spl.

Judicial Magistrate of First Class, Prohibition & Excise, Srikakulam in C.C.

No.114/2009, dated 27.01.2012.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open Court this the 20th day of March, 2015.

JUDGE,

FAMILY COURT – CUM – III ADDL.

DISTRICT & SESSIONS COURT,

SRIKAKULAM.

Appendix of Evidence

Witnesses Examined

No witnesses are examined and no documents are marked on either side.

Judge,

Family Court – cum – III Addl. District & Sessions Court,

SRIKAKULAM.

Copy to: The learned Spl.Judicial Magistrate of I Class,Prohibition & Excise, Srikakulam along with LC record by RP.

1

IN THE HONOURABLE COURT OF SPECIAL JUDGE FOR TRIAL OF CASES

UNDER SCs & STs (POA) ACT, 1989-CUM- ADDITIONAL DISTRICT AND

SESSIONS JUDGE, SRIKAKULAM

PRESENT: SRI V.Venkateswara Rao , M.A., LLM., SPL.JUDGE FOR TRIAL OF CASES UNDER SCs & STs (POA) ACT, 1989-CUM- ADDL.DISTRICT &

SESSIONS JUDGE, SRIKAKULAM

Tuesday, this the 2nd day of July, 2013

CRIMINAL APPEAL No.09/2012

(DVC.No.01/2011 on the file of Judicial Magistrate of 1st Class, Amadalavalasa )

Between:

Tammineni Harikrishna, S/o.Mallannaidu, Aged 32 years, Kalinga by caste, Teacher Employee, r/o. Thadivalasa village, Ponduru Mandalam, Srikakulam District.

…. Appellant And:

1. Tammineni Jhansi Laxmi, w/o.Harikrishna, Aged 24 years, Kalinga by caste, R/o.Pujaripeta, Gopinath Quarters, Amadalavalasa, Srikakulam District.

2. Tammineni Jyotsnam, D/o.Harikrishna, Aged 4 years, minor being represented by her Mother Tammineni Jhansi Laxmi, rest-do.

3. The State represented by its Public Prosecutor, Srikakulam.

…Respondents/

This Criminal Appeal coming on 20-06-2013 before me for final hearing in the presence of Sri.T.Radhakrishna, Y.Tirupati Rao, P.V.Giri and K.Bhaskara Rao, Advocates for the Appellant and of Sri.P.S.Gandhi, Advocate

for the Respondents 1 & 2 and the learned Public Prosecutor for the respondent

No.3 and having stood over for consideration, this Court makes the following:

J U D G M E N T

1) This Criminal appeal is preferred under section Domestic

Violence Act, challenging the order dated:15-12-2011 in

DVC 01/2011 on the file of Judicial Magistrate of 1st Class,

Amadalavalasa.

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2) The brief facts of the case of petition are as follows:- 1st petitioner is legally wedded wife of the 1st respondent and her marriage was performed on 23-06-005 at Tadivalasa village.

After payment of dowry and following other formalities, they were blessed 2nd petitioner. After the marriage the 1st respondent and his brothers, the wife of 3rd respondent harassed her both physically and mentally. When 1st petitioner brought to the notice of the elders about the harassment, they held panchayat and they warned the respondents to take care of the petitioners and that few days the respondents did not harass her and later again the respondents harassed the 1st petitioner for the sake of additional dowry of

Rs.3,00,000/-. After birth of 2nd petitioner at the hospital, when the same was informed to the respondents, the respondent who came to hospital and made comments the she gave birth to a female child.

The 1st petitioner bear all the harassments for a period of 3 years and on 19-09-2010 at 9 am. 1st petitioner was relaxing, the respondents and his family members made an attempt to kill her by placing pillow on her face and that when the 2nd petitioner raised cries, she rescued herself and thereafter she lodged a report with Srikakulam Women

Police Station. Basing on which a case was registered in Cr

No.101/10 under section 498-A of IPC and section 307 o IPC and section 3 & 4 of Dowry Prohibition Act. The respondents are working as employees in Government organizations and they have landed properties and also they have a house along with Ac..150 cents of land given by the parents of the 1st petitioner and in all they get an amount of Rs.50,000/- to Rs.1,00,000/-.

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3) The brief facts of the Counter filed by the respondent are as follows:-

On 18-09-2010 the 1st respondent got issued a legal notice to the 1st petitioner to join his conjugal society but the 1st petitioner refused to receive such notice. The 1st petitioner leaving at her parents house at Poojaripeta of Amadalavalasa leaving the society of the 1st respondent and therefore there is no occasion for the respondents to commit such offences as alleged against them in the petition. They contended that 2nd and 3rd respondents are not staying at Thadivalasa village. 1st petitioner does not own any house. 1st petitioner is working as a teacher in Vignan school at

Amadalavalasa and she earns Rs.3000/- per month and thus she is not entitled for any relief of maintenance.

4) To prove the case of petitioner, Pw.1 to Pw.3 were examined, Ex.P.1 to Ex.P.3 marked. On behalf of the respondents

Rw.1 to Rw.4 were examined, Ex.R.1 to Ex.R.5 marked.

5) After assessing evidence adduced on both sides, the learned Judicial Magistrate of 1st Class, Amadalavalasa allowed the petition partly granting maintenance of Rs.2500/- to the 1st petitioner and Rs.2000/- to the 2nd petitioner from the date of the order and further directed the respondent pay Rs.1000/- towards shelter i.e house rent and rejected the claim of petitioner for compensation of

Rs.20,00,000/-.

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6) Aggrieved by the said order the present appeal is preferred by the respondent No.1 claiming the order of the Lower

Court is against law weight of evidence and probabilities of the case and Lower Court failed to assess the evidence adduced on both sides in a proper way. Lower Court failed to see that 1st petitioner initiated action only after seeing legal notice by respondent No.1 to join him to lead conjugal life and she was never subjected to any harassment by any of the family members. The evidence of Pw.1 to

Pw.3 is inconsistent and not corroborated. The lower Court failed to see that she is owner of Ac.01-14 cents, working as teacher in

Amadalavalasa, the maintenance awarded is excessive and Lower

Court failed to see that his wife is not entitled to claim any maintenance having deserted him.

7) Arguments of both sides heard

8) Point for determination :-

1. Whether wife and minor children are neglected by Respondent No.1 to claim maintenance by Respondent No.1 in the Lower Court ?

2. Whether maintenance awarded @ Rs.2500/- to the wife and Rs.2000/- to the minor children is excessive ?

3. Whether the wife and child entitled to separate claim towards shelter or house rent besides maintenance awarded ?

9) Point Nos.1 to 3 :-

Admittedly the marriage of Tammineni Jansilakshmi was performed with Harikrishna as per Hindu caste custom and rites and 5 they were blessed with 2nd petitioner minor daughter Jyothsnam, she is now living with her mother in her grand parents house due to differences between her parents. Respondent No.2 and Respondent

No.3 T.Neelannaidu and T.Jaganmohana Rao are elder brothers of

Respondent No.1, they are all working as teachers. Respondent No.1 said to have issued legal notice dated:18-09-2010 Ex.R.2 to his wife calling upon her to join him to lead conjugal life which was returned unserved, that cover is marked as Ex.R.3. Pw.1 T.Jansilaxmi sat in front of the house of her husband conducted Dharna protesting the harassment alleging that she was subjected to harassment due to birth of the girl child which was reported in Sakshi news paper marked as Ex.R.4. She also lodged police complaint against

Respondent No.1 and his people alleging ill-treatment in their hand.

Basing on that complaint police conducted investigation and filed charge sheet against the respondents and wife of 3rd respondent

Rajee Kumari W/o.Jaganmohana Rao and B.Padmavathi sister of respondents, they were all arrested and charge sheet was filed against them that is pending.

10) It is the case of respondents that they are harassed by the Pw.1 by giving false complaint against them and they were suspended from their services due to her complaint and they were in jail till they secure bail and thus she subjected them to harassment.

She deserted Respondent No.1 without any justification though they never harassed her. She did Hindi Pandit course. Ex.R.1 is the copy of settlement deed dated:21-07-2007 in favour of Pw.1 Jansilaxmi.

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Her grand father N.Vaikunta Rao examined as Pw.3. She also marked encumbrance certificate in the name of Visalakshi and Mallu

Naidu as per Ex.P.2 and Ex.P.3.

11) The burden of proof on the Pw.1 T.Jansilakshmi that she was subjected to ill-treatment by the respondents and was neglected by her husband after birth of the female child. She deposed in the similar lines of petition averments and marked Ex.P.1 to Ex.P.3.

Ex.P.1 Salary certificate of her husband.

12) 2nd petitioner being minor daughter of the Respondent is entitled to claim maintenance from her father as of right though she is staying with her mother because she has no volition of her own to stay with her mother, wherever she resides she is entitled to claim maintenance from her father.

13) The claim of respondent that Pw.1 is working as teacher and earning monthly salary is not proved by any cogent evidence. In the absence of such proof his claim can not be accepted. All the respondents working as teachers is admitted by Pw.1 and they are not living with their parents. Pw.1 also admitted in her cross examination that wife of respondent No.2 is also working as teacher and they are living at Ponduru village from the date of her marriage and respondent No.3 is working at Bhamini at the time of her marriage and now working at Hiramandalam which is at a distance of 150 km from Tadivalasa. These admissions of Pw.1 clearly go to 7 establish that Respondent No.2 and 3 are working as teachers living separately at their working places and they are not living with respondent No.1 even by the time of her marriage and therefore she is not entitled to claim any maintenance against them or any amount towards shelter from respondent No.2 and respondent NO.3 that she can only claim maintenance or shelter against her husband. The learned magistrate erred in awarding shelter amount against the other respondents. There is no material to direct respondent Nos.2 & 3 also to pay shelter amount to the petitioners, as they are living separately with their respective families.

14) Coming to the claim of Pw.1 that she was subjected to ill- treatment after marriage by her husband and his people demanding

additional dowry and also on the ground that she delivered female

child and they attempted to kill her is subject mater of trial in the criminal case filed by police in Cr No.101/10. Those disputed aspects can not be discussed in this case for deciding maintenance claim of Pw.1. She is legally wedded wife and claims to have no means to herself and living with her grand father along with her child.

No amounts being contributed by Respondent No.1 towards her maintenance though she is living with her grand father due to differences. He ought to have filed a petition for restitution of conjugal rights against her, calling upon her to join him to lead conjugal life. The evidence of Pw.1 reveals that several mediations took place between parties in the presence of elders and they advised the parties Pw.1 and Rw.1 to live amicably. When she went to house of Respondent as per advise of elders, she found the doors 8 were locked and there is no proper explanation by Respondent No.1 for locking of the house doors when she went to join him as per the advice of the elders. The evidence of Rw.2 to Rw.4 do not disprove the claim of the petitioner as their evidence is self serving and interested in nature. Their evidence reveals that there were differences between Pw.1 and Rw.1 after marriage and they were not settled in spite of mediations by elders thereby Pw.1 forced to live with her grand father. Whether she lodged false complaint against respondent to harass them can not be decided in this petition as the same is subject matter of criminal case in which charge sheet filed against accused including respondents. Since Respondent No.1 is not wiling to take back her to lead conjugal life, she is presently justified to stay with her grand father and also to claim maintenance by living separately. Because Rw.1 neglected to take back her to the matrimonial house as per the advice of elders by locking the house when she visited their house.

15) Admittedly parents of Pw.1 executed settlement deed infavour of Pw.1 and marked Ex.R.1 to an extent of Ac.1-14 cents and that land is given on lease and she is receiving rents as seen from the evidence of Pw.2. But it is not disclosed by her but this aspect was not considered by the learned magistrate while awarding maintenance to the petitioners. That fact also be kept in mind while granting maintenance against husband. Maintenance has to be granted taking into consideration, the social and financial status of both parties. Taking into consideration the social financial status of both parties and Respondent No.1 is also working as teacher earning 9 gross salary of Rs.24,204/-, net salary of Rs.6094/-. Therefore granting of Rs.2500/- to the wife and Rs.2000/- to the minor daughter is quiet reasonable in this case as awarded by the lower

Court. However granting of Rs.1000/- per month towards house rent is excessive in this case considering rents received by Pw.1 under

Ex.R.1. Only to that extent, the order of the lower Court is to be set aside. The costs awarded by the Lower Court also reasonable in this case. Appeal is allowed confirming the maintenance granted to the wife and minor daughter setting aside Rs.1000/- per month towards rent. Points answered accordingly.

16) In the result, appeal partly allowed confirming the maintenance awarded to the respondents i.e wife and minor child by the Lower Court however setting aside house rent allowance awarded by the Lower Court to the respondents of Rs.1000/- per month against Respondents.

Dictated to the Personal Assistant, Spl.Judge Court for trial of

cases under SCs & STs (POA) Act-cum-Addl.Dist.Judge, Srikakulam, transcribed by her, corrected and pronounced by me in open Court, this the 2nd day of July,2013.

Sd/-V.Venkateswara Rao,

Special Judge for trial of cases under

SCs & STs (POA) Act-cum-Addl. Dist. and Sessions Judge, Srikakulam.

Copy to the Judl. Magistrate of Ist Class, Amadalavalasa along with LCR.

10

IN THE HONOURABLE COURT OF SPECIAL JUDGE FOR TRIAL OF CASES

UNDER SCs & STs (POA) ACT, 1989-CUM- ADDITIONAL DISTRICT AND

SESSIONS JUDGE, SRIKAKULAM

PRESENT: SRI V.Venkateswara Rao , M.A., LLM., SPL.JUDGE FOR TRIAL OF CASES UNDER SCs & STs (POA) ACT, 1989-CUM- ADDL.DISTRICT &

SESSIONS JUDGE, SRIKAKULAM

Tuesday, this the 2nd day of July, 2013

CRIMINAL APPEAL No.09/2012

(DVC.No.01/2011 on the file of Judicial Magistrate of 1st Class, Amadalavalasa ) 1)From what Court the appeal is preferred: Judicial Magistrate of Ist Class, Amadalavalasa 2)Number of the case in lower Court: DVC.No.01/2011 3)Number of appeal: : Crl. Appeal No.09/2012 4)Name and description of the : appellant/accused Tammineni Harikrishna, S/o.Mallannaidu, Aged 32 years, Kalinga by caste, Teacher Employee, r/o. Thadivalasa village, Ponduru Mandalam, Srikakulam District.

5)The Order under which : The petition is allowed and the 1st it was imposed : respondent is directed to pay monthly in lower Court : maintenance of Rs.2500/- to the 1st petitioner and Rs.2000/- to the 2nd petitioner from the date of this order. Further the respondents shall allow the 1st petitioner either to stay with the 1st respondent at his house at Tadivalasa village or alternatively the 1st respondent shall pay an amount of Rs.1000/- to the 1st petitioner towards shelter i.e to take house on rent, at a place of her choice. Further the respondents shall pay costs of Rs.3000/- to the petitioners as costs of this petition.

)Whether confirmed, modified or : Confirmed. reversed, if modified or : modification: :In the result, appeal partly allowed confirming the maintenance awarded to the respondents i.e wife and minor child by the Lower Court however setting aside house rent allowance awarded by the Lower Court to the 11 respondents of Rs.1000/- per month against Respondents. Contd..2 : 2 :

7)Date of presentation: : 27-01-2012 8)Date of filing: : 27-01-2012 9)Notice issued by the Court to : 03-02-2012 Appellant/accused 10)Bail bond if the appellant has : - been let out on bail :

11)Date of order to appear : 05-06-2012 12)Date of hearing : 10-12-2012 13)Date of Judgment : 02-07-2013

Sd/-V.Venkateswara Rao,

Special Judge for trial of cases under

SCs & STs (POA) Act-cum-Addl. Dist. and Sessions Judge, Srikakulam.