P.bala Venkata Kotesawara Rao

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IN THE COURT OF THE ASSISTANT SESSIONS JUDGE AT SOMPETA.

Present: Sri P. Balavenkata Koteswara Rao

Assistant Sessions Judge, Sompeta.

Tuesday, this the 23rd day of August, 2022. .

Sessions Case No. 32/2021

(P.R.C.No.05/2019 on the file of Judicial Magistrate of First

Class, Ichapuram in Cr.No.40/2016 of Ichapuram Town Police

station) for the offences under sections 447, 379 r/w 34 IPC

and Section 3 (2) P.D.P.P. Act, 1984 and Sections 3 & 5 of

Explosive Substance Act, 1908 .

Between:State, represented by the Inspector of Police, Ichapuram Circle.

COMPLAINANT

And : A-1: Gorrela Devaraju, S/o late Guoji, 49 years, Reddika by caste, Santhosi Street, Rattakanna, Ichapuram Municipality. A.15: Pyla Pandurangadu, S/o late Jogayya, 41 years, Kapu by caste, Birlangi road, Rattakanna, Ichapuram Municipality. A.26: Reddy Srinu @ Rapaka Srinu, S/o Adinarayana, 41 years, Kapu by caste, Rapaka village, Ponduru mandal, R/o Thutupuram village, Ganjam District, Odisha state. ACCUSED 01Date of Offence 17.08.2016 02Date of Commitment29.10.2020 03Date of Apprehension of Accused A.1: 17.08.2016 A.15: 18.8.2016 A.26: 14.12.2017 04Whether the accused are in jail or bail Bail 05Date of Commencement of trial 19.07.2022 06Date of closing trial 22.08.2022 07Date of Sentence or Order 23.08.2022

8. Explanation for delay:

a) In the committal court: Vide Separate docket extract is herewith enclosed.

b) In this court: Sri D. Jagannayakulu, advocate for the accused to defend on behalf of the accused; On 05.07.2022, accused were examined under

Section 227 Cr.P.C. and charges were framed against accused A.1, A.15 and A.26 for the offences under Section 447 read with 34 IPC, Section 3 (2) 2 of PDPP Act, 1984 and Sections 3 and 5 of Explosive Substance Act, 1908.

Due to COVID-19 pandemic witnesses could not be produced and there is no physical hearing and recording of evidence of witnesses and hence delay of commencement of trial. On 19.07.2022 trial commenced.

Judgment pronounced on 23.08.2022.

Sentence order :-

In the result, the accused A.1, A.15 and A.26 are found not guilty for the offences under Section 447 read with 34 IPC, Section 3 (2) of PDPP Act, 1984 and Sections 3 and 5 of Explosive Substance Act, 1908 and they are acquitted under section 232 of the Code of Criminal Procedure, 1973.

The Bail bonds of the accused A.1, A.15 and A.26 and that of the sureties shall stand in force for a period of six months as envisaged under

Section 437-A of the Code of Criminal Procedure, 1973.

The unmarked case property if any shall be destroyed after expiry of the appeal time.

ASSISTANT SESSIONS JUDGE

SOMPETA

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IN THE COURT OF ASSISTANT SESSIONS JUDGE, SOMPETA.

.Present :- P. Bala Venkata Koteswara Rao, Assistant Sessions Judge, Sompeta.

Tuesday, this the 23rd day of August, 2022. .

Sessions Case No. 32/2021

Between :

The State represented by the Inspector of Police, Itchapuram Circle. … Complainant. And:

A-1: Gorrela Devaraju, S/o late Guoji, 49 years, Reddika by caste, Santhosi Street, Rattakanna, Ichapuram Municipality. A.15: Pyla Pandurangadu, S/o late Jogayya, 41 years, Kapu by caste, Birlangi road, Rattakanna, Ichapuram Municipality. A.26: Reddy Srinu @ Rapaka Srinu, S/o Adinarayana, 41 years, Kapu by caste, Rapaka village, Ponduru mandal, R/o Thutupuram village, Ganjam District, Odisha state.

….. Accused.

This case coming on 22.08.2022 for final hearing before me in the presence Sri K. Venkateswara Rao, Incharge Additional Public Prosecutor for state-complainant and of Sri D. Jagannayakulu, learned Advocate for Accused and upon hearing of arguments of both sides and having stood over for consideration till this day, this court delivered the following

JUDGMENT:

The Inspector of police, Ichapuram Circle filed the charge sheet against the accused for the Offences Under Sections 447, 379 read with 34 of Indian Penal Code, 1860 (In precise IPC) and Section 3 (2) of

Prevention of Damage to Public Property Act, 1984 (in precise P.D.P.P. Act) and Sections 3 and 5 of Explosives Substance Act, 1908 in Crime

No.40/2016 of Ichapuram Town Police Station.

2.The facts of the case in precise are as follows:

The offence took place on 17.08.2016 around 11.00 a.m. and prior in the Survey No.197 at Peerlu Konda, Hillock Rattakanna village,

Ichapuram Municipality.

The accused A.1 got quarry lease vide proceedings

No.1087/Q/2006, dated 14.02.2008 issued by the Assistant Director of

Mines & Geology department to execute the quarry in an extent of 0.500 hectares in Survey No.197 at Peerlukonda of Rattakanna village for a 4 period of 10 years from 14.02.2008 to 13.02.2018 with a condition to obtain dispatch permit to sell the material for every month by paying charges through challans and quarry the stones by manual procedure. But, the Accused A.1 along with other accused quarrying the stones by procuring explosives i.e., gelatine sticks and wick, which supplied by

Accused A.26 and operated the quarry in other extent and violated the conditions of lease deeds. Further without dispatch permission from the concerned authorities, for the last three months A.1 and A.15 continued the quarry illegally by using explosives i.e., gelatin sticks and wick, supplied by

A.26, blasted the material damaged the public property and committed theft of public property, for which the accused committed the offence under Section 447 read with 34 IPC, Section 3 (2) of Prevention of Damage to Public Property Act, 1984 and Sections 3 and 5 of Explosives Substance

Act, 1908.

In order to establish the case of the prosecution, the prosecution cited all together 50 witnesses. The complainant by name

Dundangi Meghanadham is the Village Revenue officer of Rattakanna village. Gedela Krishna and Lenka Krishna are village Revenue Assistants to speak about the mining of the quarry in Survey No. 197. Uppada

Rajareddy, Konakalla Srinivasa Rao, Matha Govindarao, Uppada Paparao,

Nandika Kesav, Chidipotu Sankararao, Gorrela Viswanatham, Lenka

Narasimhulu, Bugatha Venkatarao, Gorle Polayya, Chidipothu Jogayya, manchala Dalu, Ladi Somayya, Bugata Jagan, Gorle Yerrayya, Gorle

Sankararao, Chidipothu Balaji, Chidipothu Somayya, Ginni Venkatarao,

Chidipothu Jagan, Reyyi Gopal, Chidipothu Tarinayya, Lenka Kurmarao,

Chidipothu Saradhi, Pyla Jaggarao, Ginni Mahalaxmi, Lenka Appalamma,

Chidipothu Parvathi, Chidipothu Bhimayya, Chidipothu Durgayya, Gorle

Jagannaikulu, Chidipothu Kurmarao, Munna Setti, M, Lokanadham and

Patna Vobbi Sahu are to speak about the commission of the offence.

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Krishnaprasad Roulo, Revenue Inspector and Mohd. Rehman Ali, Technical

Assistant Mines & Geology Department, Tekkali are the mediators for the seizure of the material at the place of incident. Uppada Rajareddy, Village

Revenue Officer is to speak about the arrest of the A.15 and to speak about the seizure of material objects. Dr. S.V. Ramanarao, Assistant Director of

Mines and Geology who leased out the property to A.1. Mamidipalli suresh,

Tahsildar, Ichapuram is to speak about the total extent of Peerlukonda with survey numbers. Sri TSS Valli is the Deputy Superintendent of Police. Sri

G. Dharneetha is the Assistant Director, FSL, Hyderabad. Kum. Rokkam

Varalaxmi is the Judicial Magistrate of I Class, Sompeta who gave the permission to defuse of the explosive material. Sri M. Chinnamnaidu, Sub

Inspector of Police, who registered the First Information Report. Sri Ch.

Surinaidu, Inspector of Police, who conducted the investigation. Sri M.

Avatharam is also Inspector of Police, who conducted investigation. Sri K.

Bhavani Prasad Rao is also Inspector of Police who completed the investigation and filed the police report against the accused.

3.The case was taken cognizance by the Judicial Magistrate Of

First Class, Ichapuram for the offence under Section 447 read with 34 IPC,

Section 3 (2) of PDPP Act, 1984 and Sections 3 and 5 of Explosive

Substance Act, 1908 against the accused A.1, A.15 and A.26 and made over the case to the Court of Sessions after numbering it as PRC No.5/2019 since the offence is triable by the Court of Sessions by complying the provisions under Sections 207 and 209 Cr.P.C.

4.Later the case was made over to this Court from the Hon’ble

Principal District and Sessions Court, Srikakulam for trial.

5.This Court issued summons to the accused for their appearance. After the appearance of the accused, the learned Additional

Public Prosecutor opened its case as envisaged under Section 226 Code of

Criminal Procedure, 1973 (in precise Cr.P.C.) by describing the charge 6 brought against the accused and stating by what evidence he proposes to prove the guilt of the accused

6.After hearing the learned Additional Public Prosecutor under

Section 226 Cr.P.C. and after considering of the record of the case and the documents submitted there with and after hearing the submissions of the accused and the prosecution, this court considers that there is no sufficient ground to discharge the accused and found that there is sufficient material to proceed against the material by framing charges against the accused and thereby this Court framed charges as envisaged under Section 228

Cr.P.C against the Accused A.1, A.15 and A.26 for the offences under

Section 447 read with 34 IPC, Section 3 (2) of PDPP Act, 1984 and Sections 3 and 5 of Explosive Substance Act, 1908.

7.The said charges were read over and explained to the Accused

A.1, A.15 and A.26 as envisaged under Section 228 of Cr.P.C. to which the accused denied the charge and claimed to be tried.

8.Therefore, this Court issued trial schedule to the witnesses to proceed for trial as follows: L.Ws.1 to 6 – 19.07.2022; L.Ws.7 to 12 – 20.07.2022; L.Ws.13 to 20 – 21.07.2022; L.Ws.21 to 29 – 22.07.2022;

L.Ws.30 to 40 – 25.07.2022; L.Ws. 41 to 45 – 26.07.2022; and L.Ws.47 to 50-27.07.2022.

9.In order to prove the case of the prosecution, the prosecution examined all together P.W.1 to P.W.38 and Exhibits P.1 to P.41 are marked.

P.W.1 to 32 are the eye witnesses to the case of prosecution. P.W.33 is the

Revenue Inspector, Itchapuram. P.W.34 is the Technical Assistant Mines and Geology Department. P.W.35 is the Sub Inspector of Police who registered the First Information Report. P.W.36 is the Inspector of Police who investigated the case. P.W.37 is also the Inspector of Police, who investigated the case. P.W.38 is another Inspector of Police, who 7 completed the investigation and laid charge sheet against the accused A.1,

A.15 and A.26.

10.After the closure of the evidence of the prosecution, the accused were examined under Section 313 (5) Cr.P.C., the accused denied the incriminating evidence and reported no defence evidence.

11.Heard the arguments of the learned Additional Public

Prosecutor and the counsel for the accused.

12.Now, the point for determination is whether the prosecution

proved the guilt of the accused beyond the shadow of the

reasonable doubt for the offence under Section 447 read with 34

IPC, Section 3 (2) of PDPP Act, 1984 and Sections 3 and 5 of

Explosive Substance Act, 1908?

13.Admittedly the charges framed against the accused under Section 447 read with 34 IPC, under Section 3 (2) of P.D.P.P. Act and under Sections 3 & 5 of the Explosive Substance Act. Admittedly, it is the case of the prosecution is that the accused has got license to quarry as seen from the evidence of P.Ws.24, 33 and 34. P.W.24 is the Technical

Assistant, Mines & Geology. P.W.33 is the Senior Assistant, Tahsildar,

Ichapuram. P.W.34 is the Tahsildar of Itchapuram. P.W.23 is the Surveyor,

Mines & Geology who accompanied with the P.W.22 to the place of incident on 17.08.2016. Ex.P.32 is the report lodged by the Village Revenue Officer,

Rattakanna who is no more by the time of trial and the same is marked through P.W.33 i.e., Senior Assistant, Mines & Geology, Ichapuram.

14.According to the evidence of P.W.22, P.W.23 and P.W.24, the accused blasted quarry without permission from the Government and confessional report was drafted given by the accused A.1 under Ex.P.23.

And Ex.P.22 is the scene observation report in the presence of P.W.24. From the whole evidence of the P.W.1 to P.W.38 and Exhibits P.1 to P.41, the entire case of the prosecution is that the accused A.1 has license for 8 excavations in Survey No.197 on the grant given by the Government in

Survey No.197 from 14.02.2008 to 13.02.2018. The present First

Information Report was registered on 17.08.2016 on the report of the village Revenue Officer under Ex.P.22 marked through P.W.33. The department officials of Mines & Geology were examined by the prosecution as P.W.24 and the Surveyor of the Mines and Geology was examined as

P.W.23. P.W.23 being the Surveyor in the cross examination categorically deposed that he did not conduct any Survey to the Survey No.197 and he cannot say the encroachment of A.1 in excavations beyond the grant i.e., given to the A.1 for quarrying which cuts the root of the case of the prosecution. For the sole reason that the accused A.1 is the lease holder to the quarry in Survey No.197 to an extent of 0.500 hectares from 14.02.2008 to 13.02.2018 vide proceedings No.1087/Q/2006 dated 14.02.2008 under Ex.P.40 in the letter addressed by the Assistant Director,

Mines & Geology i.e., P.W.18 is clearly revealing that the accused mentioned in Serial No. 2 in column 4 has 0.500 hector in his favour for quarry lease from 14.02.2008 to 13.02.2018. Therefore, when the cancellation of lease proceedings were not filed before this Court relating to the lease of the A.1, the culpability cannot be attributed to the accused.

15.On the other hand, there is no any piece of evidence

before this Court from the evidence of P.W.1 to P.W.38 and Exhibits P.1 to

P.41 to say that they witnessed the excavation of quarry stone by the A.1 with the help of A.15 and A.26 by getting the explosive material. The entire case of the prosecution is built up on premieres, surmises and conjunctures. Even the Ex.P.32 report is revealing the names of the six accused and some others. But, the prosecution fixed the liability by telling that A.1, A.15 and A.26 which by itself revealing that there are more than 26 accused according to the prosecution. The case diary of the prosecution is revealing that there are 29 accused and 6 witnesses and 9 most of the accused who were deleted from the charge sheet were cited as prosecution witnesses and most of the deleted accused were examined as prosecution witnesses except the official witnesses i.e., P.W.1, P.W.2,

P.W.23, P.W.24, P.W.33 and P.W.34. When the prosecution cited 29 accused in the investigation the deletion of names were also made one sidedly without application of mind and also the names of the accused during the investigation how brought into existence was also not deposed by any of the police officials who registered the case i.e., P.W.35 and who investigated the case P.W.36, P.W.37 and P.W.38.

16.On the other hand, the very Ex.P.32 basing on which the

Ex.P.33 was issued by P.W.35 Sub Inspector of Police reveals that the explosive material was used in the quarrying in Survey No.197 on information to the Village Revenue Officer who is no more by the time when the matter reached to the trial and therefore, the Ex.P.32 marked through the Sub Inspector of Police and examined as P.W.35. The prosecution did not produce any material objects before this Court to say that the explosive material or the explosive substance material were seized by the police. On the other hand, the explosive material even according to the case of the prosecution was destroyed by the Deputy Superintend of

Police Bomb Defusing squad, Hyderabad after taking permission from the

Additional Junior Civil Judge – cum – Judicial Magistrate of I Class, Sompeta

who is incharge of Judicial Magistrate of I Class, Itchapuram.

17.It is pertinent to mention that according to Rule 129 of the Explosive Rules 2008 it is the duty of the police to bring the attention of the Controller of the Explosives for any kind of defussal or destruction of explosive material and the prosecution got destruction orders from the

Judicial Magistrate of I Class, Ichapuram and when no such authorization

was given to the Magistrate the Judicial Magistrate is not empowered to protrude in to powers of the explosive as envisaged under Rule 129 of 10

Explosive Rules, 2008. it is also not the duty to get such orders i.e., Ex.P.34 through P.W.36 and therefore, contra to the explosive rules the very defussal of the explosive material is contra to Law and even it is not brought to the notice of the controller of the explosive who is the authority to decide whether the explosive material has to be destroyed or preserved for further action. Even if the explosive material is destroyed that property must be produced before the Court and therefore, when the controller of explosive has to give his opinion and sending of explosive material to the

Forensic Laboratory is not prescribed in the explosive rules. The explosives definition was given in the Explosive Rules as to what is authorized explosive.

18. In this case whether the seized material is authorized explosive or not is also covered with cloud and not viewed to the Court by the investigating officers for the reasons best known to them and a short cut method of getting orders from the Magistrate and defusing the material by the Deputy Superintend of Police is of a shortcut self serving procedure coined by the police for their own convenience not established by Law.

When the offence is in grave in nature, the liability of the police officer is so extensive and the burden is heavy to prove the guilt of the accused. By the non-production of the explosive residuals even after destruction and non-production of the proceedings of cancellation of lease to A.1, the very prosecution of accused by the prosecution for the offences under Section 447 read with 34 IPC and under Section 3 (2) of PDPP Act and under

Sections 3 and 5 of Explosive Substance Act was not established by the prosecution or from any of the witnesses i.e., P.W.1 to P.W.38 and Exhibits

P.1 to P.41 and therefore in the considered view of this court, the prosecution failed to discharge its duty in making journey from “may” to “must” to prove the guilt beyond the shadow of reasonable doubt.

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19.For the above circumstances and reasons, I mentioned above the accused A.1, A.15 and A.26 are entitled to be accuittal for the offences under Section 447 read with 34 IPC, Section 3 (2) of PDPP Act, 1984 and Sections 3 and 5 of Explosive Substance Act, 1908.

20. In the result, the accused A.1, A.15 and A.26 are found not guilty for the offences under Section 447 read with 34 IPC, Section 3 (2) of

PDPP Act, 1984 and Sections 3 and 5 of Explosive Substance Act, 1908 and they are acquitted under section 232 of the Code of Criminal Procedure, 1973. The Bail bonds of the accused A.1, A.15 and A.26 and that of the sureties shall stand in force for a period of six months as envisaged under Section 437-A of the Code of Criminal Procedure, 1973. The unmarked case property if any shall be destroyed after expiry of the appeal time.

Dictated to the Stenographer Grade-II, transcribed by her,

corrected and pronounced by me, in open court this the 23rd day of August, 2022. Assistant Sessions Judge, Sompeta.

Appendix of evidence

Witnesses examined

For prosecution: For defence:

P.W.1: Gedela Krishna- None - P.W.2: Lenka Krishna P.W.3: Uppada Rajareddy P.W.4: Uppada paparao P.W.5: Nandika Kesav P.W.6: Chidipotu Sankararao P.W.7: Gorrela Viswanatham P.W.8: Lenka Narasimhulu P.W.9: Bugatha Venkatarao P.W.10: Gorle Polayya P.W.11: Manchala Dalu P.W.12: Ladi Somayya, P.W.13: Bugata Jagan P.W.14: Gorle Sankararao P.W.15: Chidipothu Balaji P.W.16: Chidipothu Somayya 12

P.W.17: Ginni Venkatarao, P.W.18: Chidipothu Jagan P.W.19: Chidipothu Tarinayya P.W.20: Lenka Kurmarao P.W.21: Chidipothu Saradhi P.W.22: Konakalla Srinivasarao P.W.23: Matha Govindarao P.W.24: Mohd. Rehman Ali, Technical Assistant Mines & Geology Department, Tekkali P.W.25: Lenka Appalamma P.W.26: Chidipothu Parvathi P.W.27: Chidipothu Bhimayya P.W.28: Chidipothu Durgayya P.W.29: Chidipothu Kurmarao P.W.30: Munna Setti P.W.31: M. Lokanadham P.W.32: Patna Vobbi Sahu P.W.33: Krishnaprasad Roulo P.W.34: Mamidipalli Suresh, Tahsildar P.W.35: M. Chinnamnaidu, Sub Inspector of Police P.W.36: M. Avatharam, Inspector of Police P.W.37: Ch. Surinaidu P.W.38: K. Bhavani Prasad Rao, Inspector of Police

Documents marked

For prosecution:

Ex.P.1:Statement of P.W.1 U/Section 161 of Cr.P.C. dt. 17.08.2016 Ex.P.2:Statement of P.W.2 U/Section 161 of Cr.P.C., dt.17.08.2016 Ex.P.3:Statement of P.W.3 U/Section 164 of Cr.P.C., dt. 17.08.2016 Ex.P.4:Statement of P.W.4 U/Section 161 of Cr.P.C., dt.20.08.2016 Ex.P.5:Statement of P.W.5 U/Section 161 of Cr.P.C., dt.20.08.2016 Ex.P.6:Statement of P.W.6 U/Section 161 of Cr.P.C., dt.10.02.2017 Ex.P.7:Statement of P.W.7 U/Section 161 of Cr.P.C., dt.10.02.2017 Ex.P.8:Statement of P.W.8 U/Section 161 of Cr.P.C., dt.10.02.2017 Ex.P.9:Statement of P.W.9 U/Section 161 of Cr.P.C., dt.10.02.2017 Ex.P.10:Statement of P.W.10 U/Section 161 of Cr.P.C., dt. 30.07.2017 Ex.P.11:Statement of P.W.11 U/Section 161 of Cr.P.C., dt.30.07.2017 Ex.P.12:Statement of P.W.12 U/Section 161 of Cr.P.C., dt.30.07.2017 Ex.P.13:Statement of P.W.13 U/Section 161 of Cr.P.C., dt.30.07.2017 Ex.P.14:Statement of P.W.14 U/Section 161 of Cr.P.C., dt.30.07.2017 Ex.P.15:Statement of P.W.15 U/Section 161 of Cr.P.C., dt.30.07.2017 13

Ex.P.16:Statement of P.W.16 U/Section 161 of Cr.P.C., dt.30.07.2017 Ex.P.17:Statement of P.W.17 U/Section 161 of Cr.P.C., dt.30.07.2017 Ex.P.18:Statement of P.W.18 U/Section 161 of Cr.P.C., dt.30.07.2017 Ex.P. 19:Statement of P.W.19 U/Section 161 of Cr.P.C., dt.30.07.2017 Ex.P. 20:Statement of P.W.20 U/Section 161 of Cr.P.C., dt.30.07.2017 Ex.P. 21:Statement of P.W.21 U/Section 161 of Cr.P.C., dt.30.07.2017 Ex.P. 22:Scene observation report, dt.17.08.2016 Ex.P. 23:Confession statement, dt.18.08.2016 Ex.P. 24:Statement of P.W.25 U/Section 161 of Cr.P.C., dt. 30.07.2017 Ex.P. 25:Statement of P.W.26 U/Section 161 of Cr.P.C., dt. 30.07.2017 Ex.P. 26:Statement of P.W.27 U/Section 161 of Cr.P.C., dt. 30.07.2017 Ex.P. 27:Statement of P.W.28 U/Section 161 of Cr.P.C., dt. 30.07.2017 Ex.P. 28:Statement of P.W.29 U/Section 161 of Cr.P.C., dt. 30.07.2017 Ex.P. 29:Statement of P.W.30 U/Section 161 of Cr.P.C., dt.30.07.2017 Ex.P. 30:Statement of P.W.31 U/Section 161 of Cr.P.C., dt.30.07.2017 Ex.P. 31:Statement of P.W.32 U/Section 161 of Cr.P.C., dt.30.07.2017 Ex.P. 32:V.R.O. Report, dt.17.08.2016 Ex.P. 33:First Information Report, dt. 17.08.2016 Ex.P.34:Memo filed before Judl. Magistrate of I Class, Ichapuram, dt.01.05.2017 Ex.P. 35:Letter from the Judl. Magistrate of I Class, Ichapuram to the Forensic Laboratory, Hyderabad, dt.24.04.2017 Ex.P. 36:Speciman signatures of Police constable-278, dt.24.04.2017 Ex.P. 37:Letter of advice, dt.30.03.2017 Ex.P. 38:Opinion of Forensic Laboratory, Hyderabad, dt.19.05.2017 Ex.P. 39:Rough sketch, dt.17.08.2016 Ex.P. 40:Assistant Director of Mines & Geology, Tekkali, dt.04.01.2019 Ex.P. 41:Sanction orders issued by the District Collector, Srikakulam, dt. 11.11.2018

For defence: Nil. Material objects: Nil

Assistant Sessions Judge Sompeta

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IN THE COURT OF ASSISTANT SESSIONS JUDGE, SOMPETA.

.Present :- P. Bala Venkata Koteswara Rao, Assistant Sessions Judge, Sompeta.

Wednesday, this the 21st day of September, 2022. .

Sessions Case No.31/2019

. . Between :

The State represented by the Sub Inspector of Police, Mandasa Police Station. … Complainant. And:

Padmanabham Roulo, S/o Harinath Roulo, aged 36 years, Roulo by caste, BC Colony, Siripuram (v), Mandasa (M).

….. Accused.

This case coming on 20.09.2022 for final hearing before me in the presence Sri K. Venkateswara Rao, Additional Public Prosecutor for state- complainant and of Sri S. Nagabhushana Rao, learned Advocate for Accused and upon hearing of arguments of both sides and having stood over for consideration till this day, this court delivered the following

JUDGMENT:

The Sub Inspector of Police, Mandasa Police Station filed the charge sheet against the accused for the Offence Under Sections 498-A and 306 of Indian Penal Code, 1860 (In precise IPC) in Crime No.72/2017 of

Mandasa Police Station.

2.The facts of the police report in precise are as follows:

The accused is the resident of Siripuram village of Mandasa mandal. The offence took place on 21.11.2017 at 10.00 p.m. and on 22.11.2017 at 00.15 hours at the house of the accused. The father of the deceased by name Surendra Roulo is the informant ( in precise “complainant”). The accused is the husband of the deceased by name

Jagyasini Roulo. The marriage of the accused with the deceased was held in the year 2003. They lead conjugal life till the demise of the deceased.

During the matrimonial life of the accused with the deceased the deceased blessed with a son aged about 12 years and a daughter aged about 7 years. The accused is working as Priest in Uttareswaraswamy temple.

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Later, the accused addicted to drinking liquor and harassed the deceased physically and mentally. The deceased bore the harassment with a fond hope that there would be a change in his attitude on one day or other. But, the accused did not change his attitude. Then the deceased brought the attention of her parents about the harassment that was caused by the accused to the deceased and the deceased also left the company of the accused for a considerable period of 1 ½ years and stayed at her parents house. The accused along with the elders went there and brought the deceased during her life time to lead the matrimonial life from there four months after, the accused started harassing the deceased and thereby the deceased vexed with the accused and decided to put end to her life by way of committing suicide. On 21.11.2017, prior to midnight, the deceased committed suicide by hanging herself to ceiling fan of the kitchen with a rope. It was witnessed by Tenka Roulo, Gulabi roulo and

Manu Roulo. On phone information from the accused, the father i.e., complainant along with the villagers came to Siripuram in an auto that belongs to Karri Tarinireddy. The complainant lodged the report before the

Mandasa Police station on 22.11.2017 at 10.00 a.m. The Sub Inspector of

Police registered the case as First Information Report No.72/2017 under

Sections 498-A and 306 of IPC. During the course of investigation, the Sub

Inspector of Police recorded the statement of the complainant and rushed to the scene of offence in the presence of the mediators Basava Anandarao and Palaka Abhimanyu on 22.11.2017 at 11.00 a.m. and got photographed the scene, seized the Nylon rope and plastic chair under the cover of scene observation report and conducted the inquest over the dead body of the deceased and recorded the statements of the witnesses Tenka Byragi,

Gulabi Roulo, Manu Roulo, Pakeer Roulo, Priyanka Roulo and Karri

Tarinireddy and sent the dead body of the deceased to conduct autopsy to the Government hospital, Baruva. The Sub Inspector of Police arrested the accused on 25.11.2017 and sent him to Court for Judicial Custody. The Sub 3

Inspector of Police also sent viscera to the R.F.S.L. Visakhapatnam i.e., seized by the Medical Officer at the time of the autopsy. After receipt of the analysis report from the R.F.S.L, the medical officer issued postmortem certificate opining that the death is due to Asphyxia due to hanging.

The investigation reveals that the accused married deceased in the year 2003 and lead happy married life with the deceased and he was blessed with one son and daughter through the deceased. Later, the accused started harassment physically and mentally by consuming alcohol despite the warnings of the relatives he could not change his attitude.

Then the deceased left to her parents house for 1 ½ years and came back to the accused after the deliberation and consolidations by the mediators.

Even after she joined with the accused, the accused did not change his attitude and thereby the deceased finally decided to get ride of herself by committing suicide by hanging herself to a ceiling fan hook in the kitchen with the Nylon rope and died thereby. Therefore, the accused is liable to be punished for the offence under Sections 498-A and 306 IPC. Hence, this case.

3.After filing of the Police Report before the Judicial Magistrate of

First Class, Sompeta had taken cognizance and committed the case to the

Court of the Sessions for the offences under Sections 498-A and 306 IPC against the accused and registered as PRC No.7/2018. On appearance of the accused, copies of documents were furnished to the accused under

Section 207 of Cr.P.C. The case was made over to this Court from the

Hon’ble Principal District and Sessions Court, Srikakulam for trial vide SC

No.31/2019.

4.After the case is made over to this Court from the Hon’ble

Principal District and Sessions Court, Srikakulam, this court issued

summons to the accused and the accused appeared before this Court.

5.After appearance of the accused, the learned Additional Public

Prosecutor opened the case and stated by what means of evidence he 4 proposes to prove the guilt of the accused. Thereafter this Court after considering the record of the case and of the documents submitted herewith and after hearing the case of the accused and prosecution, this court considers that there is no sufficient ground to discharge the accused and on the other hand, this Court found that there is a prima-facie case against the accused to proceed for trial.

6.Therefore, this Court framed the charges against the accused as envisaged under Section 228 of Cr.P.C. for the offence under Section 498-A and under Section 306 IPC and read over to the accused. The accused denied the charges, pleaded not guilty and claimed to be tried.

7.Therefore, this Court issued trial schedule as follows: L.Ws.1 to 6:13.06.2022; L.Ws.7 to 10: 14.06.2022; L.Ws.11 to 14: 15.06.2022 and posted to 13.06.2022 for trial.

8.In order to prove the the case of the prosecution for the charges under Sections 498-A and 306 of IPC, the prosecution examined

P.W.1 to P.W.10. Exhibits P.1 to P.11 and M.Os.1 and 2 are marked. P.W.1is the brother of the deceased. P.W.2, P.W.3, P.W.4 and P.W.5 are the witnesses to the case of the prosecution. P.W.6 is the witness to speak about the taking the P.W.1 and his family members to the house of the accused on 22.11.2017. P.W.7 is the mediator to the scene observation report. P.W.8 is the mediator to the inquest. P.W.9 is the medical officer who conducted the autopsy. P.W.10 is the investigation officer, who registered the case and investigated into. Ex.P.1 is the report of the father of the P.W.1. Ex.P.2, Ex.P.3 and Ex.P.4 are the Section 161 Cr.P.C.

statements of P.W.2, P.W.3 and P.W.4. Ex.P.5 is the scene observation report. Ex.P.6 is the inquest report. Ex.P.7 is the autopsy report. Ex.P.8 is the final opinion of the cause of death. Ex.P.9 is the First Information

Report. Ex.P.10 is the rough sketch. Ex.P.11 is the R.F.S.L. Report.

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9.After the closure of the prosecution evidence, the accused was examined under Section 313 of Cr.P.C. The accused denied the incriminating evidence and reported no defence evidence.

10.Heard the arguments of Additional Public Prosecutor Sri K.

Venkateswara Rao and the counsel for the accused Sri S. Nagabhushana

Rao.

11.Now, the point for determination is whether the prosecution

could able to prove the guilt of the accused beyond the shadow of

the reasonable doubt for the offences under Sections 498-A and

306 of IPC ?

12.The entire evidence of the prosecution is that the accused is the husband of the deceased /Jagyasini Roulo, who is resident of Panchuma village, Golanthra Police Station, Ganjam District, Odisha state. The father of the deceased Surendra Roulo went to the Mandasa Police Station and lodged the Ex.P.1 report on information to him that his daughter Jagyasini

Roulo died by committing suicide in the house of the accused on the previous night. The police registered the case in First Information Report

No.72/2017 for the offences under Sections 498-A and 306 IPC. During the investigation it was found that the accused addicted to the vices and used to harass the victim girl (deceased) and having vexed with the attitude of the accused and the harassment towards her, she went to her parents house and stayed at her parents house for 1 ½ years and later returned the matrimonial life with the accused along with two children son and daughter who are 12 and 7 years respectively and thereafter the harassment went on against the deceased by the accused and with that unbearable attitude of the accused towards the deceased, the deceased hanged herself to a hook of the fan in the kitchen in the house of the accused and lost her last breathing by suicide.

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13.When the matter came for trial the father of the victim girl by name Surendra Roulo, who lodged the Ex.P.1 report is no more and thereby the report given by the Surendra Roulo is marked through his son who was examined as P.W.1 as Ex.P.1. The neibouring witnesses were examined as

P.W.2, P.W.3 and P.W.4. The wife of the P.W.1, who is no other than the sister-in-law of the deceased was examined as P.W.5. The auto driver who brought the P.W.1, P.W.2 and P.W.5 and the deceased Surendra Roulo to the house of the accused in auto was examined as P.W.6. The other witnesses were examined from P.W.7 to P.W.10 as already mentioned supra. The careful marshalling of the evidence of P.W.1 to P.W.10, there is no single eye witness to the prosecution to say that the deceased committed suicide by hanging by herself.

14.The fact what happened is at best in the knowledge of the accused even according to the case of the prosecution. Therefore, the accused cannot be a witness against himself. It is the duty of the prosecution to bring the guilt to the home of the accused beyond all reasonable doubt. Therefore, in the light of no direct evidence to the case of the prosecution by way of eye witnesses the remaining evidence that the prosecution has to stand on the circumstantial evidence which is nothing but a direct piece of evidence by indirect means from linking the each fact to fact as chain of evidence without any failure of the link to avoid any other probability to believe that the deceased died due to hanging by herself to establish for the offence under Section 306 IPC.

15.Coming to the charge under Section 498-A IPC also the circumstantial evidence is the only piece of evidence available to the prosecution to prove the guilt of the accused prior to the death of the deceased in the house of the accused. In order to prove the case of the prosecution by circumstantial evidence which is also a direct piece of evidence by indirect means is the best source to the prosecution to prove the guilt of the accused beyond the shadow of the reasonable doubt. In 7 the present case the time did not allow to the father of the deceased to come to the witness box to depose about the Ex.P.1 report to speak about the contents of the Ex.P.1 report. Therefore, the Ex.P.1 report cannot be used for corroboration for the cause of the death of the deceased. Since, he was not examined as witness by the prosecution and his 161 Cr.P.C.

statement is also of no use to the case of the prosecution. So, the other witness i.e., P.W.1 is no other than the brother of the deceased who spoke about the cause of the death of the deceased and his deposition is revealing that he does not know the contents of the Ex.P.1 report and he categorically deposed in further cross examination that the accused did not harass the deceased sister at any point of time after the marriage prior to the incident at his house during his wedlock and he further deposed that the accused executed a registered document to the property which was the

Pasupukumkuma of the deceased to the benefit of the minors on 22.08.2022 and the accused further promised to return all the movable and immovable properties to the benefit of the children and these facts are admitted by the P.W.1 in the cross examination. The accused returned the immovable property and also promised to return movable property which were given as pasupukumkuma to the benefit of the children of the deceased now under the care of the P.W.1. On the other hand, the accused also agreed to pay yearly maintenance for the children to a tune of

Rs.50,000/- in the month of March of every year. The accused also returned the Pasupukumkama amount of Rs.25,000/- to the benefit of the children by which fact it is clearly establishing that the P.W.1 is interested to take care of the children of the deceased who were under the care and protection of the P.W.1 and therefore, the P.W.1 did not speak about the culpability of the accused as alleged by the prosecution in his further cross examination.

16.The wife of the P.W.1 examined as P.W.5 and she deposed that the deceased died due to hanging in the year 2017 and then she went to 8

Siripuram village on information over phone and she deposed that the deceased Jagyasini Roulo died due to disputes with the accused by hanging to the roof with a rope subsequent to the disputes with the accused. Therefore, the evidence of the P.W.5 revealing that she is not the eye witness to the incident. P.W.2, P.W.3 and P.W.4 did not support to the case of the prosecution and their statements were marked as Ex.P.2 to P.4.

The learned Additional Public Prosecutor did not extract any incriminating evidence to strengthen the case of the prosecution. P.W.6 is the auto driver who brought the P.W.1 and P.W.5 to Siripuram village and Mandasa

Police station along with the father of the P.W.1 who is no other than the father of the deceased and the father-in-law of the P.W.5. P.W.7 is the mediator to the scene observation report. He deposed that the police seized the plastic rope and plastic stool which were marked as M.O.1 and

M.O.2. Even this P.W.7 is not the eye witness to the offence.

17.P.W.8 is the mediator to the inquest i.e., Ex.P.6 and he turned hostile to the case of the prosecution and nothing is extracted from P.W.8 evidence to support the case of the prosecution, except to speak about the signature of the P.W.8. P.W.9 is the Medical officer, who conducted the autopsy and issued the Ex.P.8 basing on the R.F.S.L Report and Ex.P.9 is the postmortem report. The evidence of the P.W.9 is the crucial piece of evidence to the case of the prosecution. P.W.9 gave the opinion that the death is due to Asphyxia due to hanging. He spoke about the ligature mark present in front of the neck in the length of 20 X 2 Cms and also found Saliva in the mouth of the deceased is seen along with the other injuries. Even the P.W.9 evidence though established that the deceased died due to hanging. The prosecution did not establish the height of the roof to the floor in the kitchen and the probabilities of the suicide by hanging to the hook of the fan. It is the case of the prosecution that the deceased committed suicide by hanging to the hook of the fan with the aid of a plastic rope i.e., M.O.1 and the plastic chair i.e., M.O.2. But, the 9 evidence of the P.W.10 is not inspiring confidence in the mind of the Court to say that the deceased died due to hanging to the rope by the aid of the

M.O.1 and M.O.2 and therefore when the medical evidence i.e., the evidence of the P.W.9 is not inspiring the confidence in the mind of the

Court that the deceased died due to hanging herself and the evidence of

P.W.1 and on careful reading of the evidence of P.W.9 he deposed that the ligature mark may also be possible by falling on a wooden gate on the floor portion depending upon heaviness of the ground portion. Therefore, when the two views are possible even according to the medical officer P.W.9, the view in favour of the accused must be taken as a matter of right ofthe accused to get that benefit of doubt. Therefore, considering the evidence of the P.W.9. There is no any other direct eye witness to the case of the prosecution and when the P.W.2 to P.W.4 turned hostile to the case of the prosecution and when the P.W.1 also in the cross examination categorically admitted contra to himself that the accused did not harass the deceased during the stay of the deceased with the accused. The prosecution when couldn’t get any sufficient material from any of the witnesses P.W.1 to

P.W.10 to the causing of the death of the deceased due to the abetment of the accused and harassment of the accused and no motives were attributed to the accused to cause the death of the deceased by establishing the character of the accused during the matrimonial life of the accused with the deceased except the mere disputes as deposed by the

P.W.6 who is no other than the sister-in-law of the deceased that the mere disputes between the accused and the deceased is not suffice to draw inference that the accused harassed the deceased and thereby caused abetment to the death of the deceased by hanging and therefore considering that the prosecution failed to make its journey in proving the guilt of the accused from “may” to “must”. The only option therefore

before the Court as I already discussed above is to give the benefit of

doubt basing on the evidence of the P.W.1 and P.W.5 to the accused, the 10 accused is entitled to be acquitted by holding that the prosecution failed to bring the guilt of accused to the home of the accused. As such the accused is entitled to be acquitted.

18. In the result, the accused is found not guilty for the offences punishable under Sections 498-A and 306 IPC and he is acquitted under section 232 of Cr.P.C.

The bail bonds of the accused and the sureties shall stand in force for a period of six months as envisaged under Section 437-A of Cr.P.C.

The M.O.1 and M.O.2 are ordered to be destroyed after the expiry of the appeal time.

Dictated to the Stenographer Grade-II, transcribed by her, corrected

and pronounced by me, in open court this the 21st day of September, 2022.

Assistant Sessions Judge, Sompeta.

Appendix of evidence

Witnesses examined

For prosecution: For defence:

PW.1/ Pakeer Roulo -None- PW.2/ Tenka Byragi PW.3/ Gulabi Roulo PW.4/ Manu Roulo PW.5/ Priyanka Roulo PW.6/ Karri Tarinireddy PW.7/ Basava Anandarao PW.8/ Kollana Someswararao PW.9/ Dr. B. Soujanya, CAS., Community Health Centre, Baruva. PW.10/ Y. Ravikiran, Sub Inspector of Police, Mandasa Police Station.

Documents marked

For prosecution: Ex.P.1: Report, dated 22.11.2017 Ex.P.2: Section 161 of Cr.P.C. statement of P.W.2, dated 22.11.2017 Ex.P.3: Section 161 of Cr.P.C. statement of P.W.3, dated 22.11.2017 Ex.P.4: Section 161 of Cr.P.C. statement of P.W.4, dated 22.11.2017 Ex.P.5: Scene observation report, dated 22.11.2017 Ex.P.6: Inquest report, dated 22.11.2017 Ex.P.7: Postmortem report, dated 01.12.2017 Ex.P.8: Death cause final opinion, dated 01.02.2018 Ex.P.9: First Information Report, dated 22.11.2017 Ex.P.10: Rough sketch, dated 22.11.2017 11

Ex.P.11: R.F.S.L. Report, dated 26.01.2018

For defence: Nil. Material objects : M.O.1: Plastic rope M.O.2: Plastic stool

Assistant Sessions Judge Sompeta 12

IN THE COURT OF THE ASSISTANT SESSIONS JUDGE AT SOMPETA.

Present: Sri P. Balavenkata Koteswara Rao

Assistant Sessions Judge, Sompeta.

Wednesday, this the 21st day of September, 2022.

SESSIONS CASE No.31/2019

(P.R.C.No.07/2018 on the file of Judicial Magistrate of First

Class, Sompeta in Cr.No.72/2017 of MandasaPolice station)

for the offences under sections 498-A and 306 IPC

Between:The State represented by the Sub Inspector of Police, Mandasa Police Station.

COMPLAINANT

And : Padmanabham Roulo, S/o Harinath Roulo, aged 36 years, Roulo by caste, BC Colony, Siripuram (v), Mandasa (M).

ACCUSED

01Date of Offence 21.11.2017 02Date of Commitment29.05.2018 03Date of Apprehension of Accused 25.11.2017 04Whether the accused are in jail or bail Bail 05Date of Commencement of trial 13.06.2022 06Date of closing trial 20.09.2022 07Date of Sentence or Order 21.09.2022

8. Explanation for delay:

a) In the committal court: Vide Separate docket extract is herewith enclosed.

b) In this court: Sri S. Nagabhushana Rao, Advocate for the accused to defend on behalf of the accused; On 31.12.2019 the accused was examined under Section 226 Cr.P.C. and charges were framed against accused for the offences under Sections 498-A and 306 of IPC. Due to

COVID-19 pandemic witnesses could not be produced and there is no physical hearing and recording of evidence of witnesses and hence delay of commencement of trial. On 13.06.2022 trial commenced. Judgment

pronounced on 21.09.2022.

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Sentence order :-

In the result, the accused is found not guilty for the offences punishable under Sections 498-A and 306 IPC and he is acquitted under section 232 of Cr.P.C.

The bail bonds of the accused and the sureties shall stand in force for a period of six months as envisaged under Section 437-A of Cr.P.C.

The M.O.1 and M.O.2 are ordered to be destroyed after the expiry of the appeal time.

ASSISTANT SESSIONS JUDGE

SOMPETA

1

IN THE COURT OF THE SENIOR CIVIL JUDGE, SOMPETA.

Present:- Sri P. Bala Venkata Koteswararao,

Senior Civil Judge,

Sompeta.

Thursday, this the 8th Day of September, 2022.

O.S. No. 59/2018

Between:

Dr. S. Shankara Rao, S/o Polayya, aged 55 years, Hindu, Doctor by profession, permanent resident of Door No.15-15-116, B.R. Complex, Beach Road, Maharanipeta, Visakhapatnam, Presently residing at Star Hospital, K.T. Road, Palasa, Palasa mandal, Srikakulam District.

... Plaintiff.

And: Malla Ramjee, S/o late Nookaraju, aged 35 years, Hindu, Business, R/o Door No.12-1-174, Komati Veedi, Palasa, Palasa Mandalam, Srikakulam District.

.... Defendant.

This suit is coming on this day i.e., on 06.09.2022 for final hearing

before me in the presence of Sri G.S. Sailendra, learned advocate for Plaintif

and Sri K.S. Prasad Babu, learned advocate for defendant and upon hearing on both sides and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

This suit is filed by the plaintif against the defendant for recovery of Rs.13,84,350/- being the principal and interest due under the both “A” and “B” suit promissory notes with subsequent interest and for costs of the suit.

2.The averments of the plaint in precise are as follows:

The defendant borrowed a sum of Rs.7,25,000/- from the plaintif on 14.01.2016 at Palasa and agreeing to repay the same together with interest at 24% per annum either to the plaintif on demand or any person authorized by him and executed promissory note (“A” marked) in favour of the plaintif in the presence of the attestors and the scribe after receiving the cash consideration of Rs.7,25,000/- on the same day i.e., on 14.01.2016. The defendant again borrowed a sum of Rs.1,00,000/- towards his business from the plaintif at Palasa with a promise to pay the same together with interest at 2 24% per annum on demand to him or any person authorized and executed the promissory note i.e., “B” Marked in favour of the plaintif in the presence of the attestors and the scribe on the same day i.e., on 14.01.2016. The plaintif paid amount of Rs.1,00,000/- to the defendant by way of two cheques bearing

No.906694 and 906695 for Rs.50,000/- each on 14.01.2016 of Andhra Bank,

K.G.H. Branch, Visakhapatnam. Subsequent to the execution of the “A” and “B” promissory notes dated 14.01.2016, the defendant gave a cheque for

Rs.9,21,000/- bearing No.296570 dated 15.07.2016 of State Bank of

Hyderabad, Palasa towards part payment of the amount due under the “A” and “B” marked promissory notes. The plaintif presented the said cheque before

H.D.F.C. Bank, Palasa for encashment, but the cheque was dishonoured as there is no sufficient funds in the account of the defendant. The plaintif informed the same to the defendant and the defendant requested the plaintif not to take steps under Negotiable Instrument Act. Therefore, the plaintif did not take any criminal action against the defendant. The defendant did not pay any amount either principal amount or towards the interest accrued thereon in spite of repeated demands made by the plaintif in person on several occasions. Finally, the plaintif got issued a registered notice dated 30.01.2018 through his advocate, demanding the defendant to pay the amount due under the suit “A” and “B” marked promissory notes with interest.

The defendant having received the same, did not choose to give any reply nor paid the amount. The defendant is liable to pay the amount due under the suit “A” and “B” marked promissory notes.

This suit is filed for recovery of Rs.7,25,000/- being the principal and a sum of Rs.4,91,550/- towards interest at 24% per annum till 11.11.2018 to the “A” marked promissory note, a sum of Rs.1,00,000/- being the principal and a sum of Rs.67,800/- towards interest at the rate of 24% per annum till 11.11.2018 under the suit “B” marked promissory note, in all a total sum of

Rs.13,84,350/- both towards the principal and interest due under the suit “A” and “B” marked promissory notes dated 14.01.2016. The plaintif prays the 3

Court to pass a decree in favour of the plaintif against the defendant to the suit claim of Rs.13,84,350/- towards the principal and the interest due till 11.11.2018.

3.The defendant filed written statement. The averments of the written statement in precise are as follows:

All the allegations made in the plaint are not true, valid or binding on the defendant. All such allegations which are not specifically admitted hereunder shall be deemed to have been denied by the defendant. The averments of plaint that the defendant has borrowed an amount of

Rs.7,25,000/- from the plaintif on 14.01.2016 agreeing to repay the same together with interest at 24 % per annum eithe to the plaintif or his order on demand and executed “A” marked promissory note in favour of the plaintif on the same day in presence of the attesters and scribe after receiving the cash consideration of Rs.7,25,000/- and that on the same day the defendant again borrowed a sum of Rs.1,00,000/- from the plaintif agreeing to repay the same together with interest @ 24% per annum either to the plaintif or his order on demand and executed “B” marked promissory note in favour of the plaintif on the same day in the presence of the attesters and scribe, and that the plaintif paid the amount of Rs.100,000/- by way of two cheques, are all false and they are invented by the plaintif for the purpose of the suit. The averments of the plaint that later defendant gave a cheque for Rs.9,21,000/- to the plaintif towards part payment of the debt under the two promissory notes, and that on the dishonour of the chequest the plaintif informed the same to the defendant and the defendant requested the plaintif not to take steps under

Negotiable Instrument Act and therefore the plaintif did not take any criminal action against the defendant and he demanded the payment through elders and the defendant received legal notice sent by the plaintif are all false and are invented by the plaintif for the purpose of the suit. The defendant did not borrow an amount of Rs.7,25,000/- from the plaintif on 14.01.2016 or another sum of Rs.1,00,000/- from the plaintif on the same day.

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The defendant further submitted that he has leased out his building known as “Raja Lodge Building” within the Kasibugga Municipality, Palasa mandal to M/s Star Hospital a registered Firm represented by its Managing

Partner Surapathi Sanjay Vyas of Gnanapuram, Visakhapatnam under two separate registered lease deeds dated 19.03.2015 bearing document

No.488/2015 of Sub Registrar Office, Kasibugga and 18.06.2015 bearing document No.2273/2015 of Sub Registrar Office, Kasibugga and a

Supplementary Agreement of Lease executed by them in July, 2016 and the said Surapathi Sanjay Vyas is the son of the plaintif herein, and the plaintif who is an Orthopedic Doctor has been running the Star Hospital in the leasehold premises, since April, 2015. The defendant further submits that some additional constructions made by him in the premisis were to be regularized by the Palasa-Kasibugga Municipality under BPS scheme of the

Municipality in the year 2015. In that connection, fee and penalty under BPS scheme and tax dues were to be paid to the Palasa – Kasibugga Municipality.

After the plaintif occupied the building as lessee, as per the mutual understanding between the plaintif and defendant, the plaintif told the defendant that he will pay the fee, penalty and tax dues to the Palasa -Kasibugga municipality, and in that regard as required and insisted by the plaintif, the defendant has executed three promissory notes and gave three cheques in favour of the plaintif, as a measure of security for reimbursement of the amount of fee, penalty and tax dues on payment by the plaintif. The plaintif, however, has not paid the fee, penalty or tax dues in respect of the leasehold premises to the Palasa-Kasibugga Municipality. As such the defendant requested the plaintif for the return of the promissory notes and the cheques, the plaintif told him that the documents were misplaced and could not be traced out in spite of through search by him, and assured the defendant that he will return the same as and when traced out.

The defendant further submits that due to some mis- understandings and disputes between the plaintif and the defendant, the 5 plaintif bore grudge against the defendant, and on that he made the false suit claim taking undue advantage of the availability of the promissory notes and the cheques with him, and by mis-utilizing the said documents. Later, on 18.11.2018, the plaintif and the defendant have arrived at a settlement of all the transactions between them, and it is agreed by them that the defendant shall pay a sum of Rs.33,00,000/- towards full and final settlement of all the dues payable to the plaintif and for termination of the lease. Three post dated cheques for a total value of Rs.33,00,000/- were given by the defendant to the plaintif. The details i.e., for Rs.14,00,000/-, Rs.14,00,000/- and

Rs.5,00,000/- dated 01.12.2018, 02.12.2018 and 04.12.2018 respectively and letter 18.11.2018 executed by the plaintif was given to the defendant and a declaration/ letter dated 18.11.2018 executed by the defendant was given to the plaintif. As per the understanding between the parties, the plaintif shall present the three cheques for collection by the end of February, 2019 by which time the defendant has agreed to keep sufficient balance in his account to honour the cheques. As per the further understanding between the parties, the plaintif agreed to withdraw all the litigation filed by him against the defendant, at his own cost, and to return one promissory note and two cheques earlier given by the defendant and available with the plaintif. The defendant submits that he is not liable to pay the suit claim to the plaintif.

There is no cause of action for the suit. Hence, this suit is liable to be dismissed.

4.Basing on the above pleadings of the respective parties the following issues were settled for consideration:

1) Whether the defendant borrowed Rs.7,25,000/- from the plaintif on 14.01.2016 and executed promissory note in favour of the plaintif ?

2) Whether the defendant borrowed Rs.1,00,000/- again on 14.01.2016 from the plaintif and executed another promissory note in favour of the plaintif ?

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3) Whether the suit promissory notes were not supported by consideration and they were given to plaintif for payment of BPS amount fee penalty and taxes Raja Lodge building ?

4) Whether the plaintif is entitled for suit claim as prayed for ?

5) If so, to what relief ?

5.Issue No.1 :

Whether the defendant borrowed Rs.7,25,000/- from the plaintif on 14.01.2016 and executed promissory note in favour of the plaintif ?

In order to prove the case of the plaintif, the plaintif filed his chief affidavit as P.W.1 and got marked Exhibits A.1 to A.5. Ex.A.1 is the promissory note, dated 14.01.2016. Ex.A.2 is the Promissory note, dated 14.01.2016.

Ex.A.3 is the cheque dated 15.07.2016 issued by the defendant to a sum of

Rs.9,21,000/- towards part satisfaction of the debt due under Exhibits A.1 and

A.2 and it was dishonourd. Ex.A.4 is the legal notice and Ex.A.5 is the postal acknowledgment. P.W.1 was cross examined threadbare by the counsel for the defendant. The suit claim is according to the plaintif is of Rs.13,84,350/-.

The P.W.1 in the cross examination by the counsel for the defendant categorically admitted that the defendant gave three cheques to discharge the Rs.33,00,000/- and the Ex.A.1 and A.2 and other promissory notes executed by the defendant in favour of his family members are of the same transaction to the Rs.33,00,000/-. The very admission of the P.W.1 in the cross examination by the counsel for the defendant that the two promissory notes executed by the defendant are subjected to the same transaction that is due of Rs.33,00,000/- towards full and final settlement of the suit claim and executed by the defendant in favour of his family members.

6.On behalf of the defendant no evidence was adduced and the defendant did not appear before the court and did not come to the witness box to rebut the evidence of the plaintif. He simply kept quite by filing his chief affidavit which carries no value. Considering the admissions made by the defendant in his written statement and the admitted facts need not be proved under Section 58 of Indian Evidence Act. As such the Exhibits A.1 and 7

A.2 executed by the defendant in favour of the plaintif, it is the presumption that every promissory note is supported by the valid consideration. On the other hand, the defendant admitted that cheques were given for

Rs.33,00,000/- given by the defendant and that the plaintif has to return one promissory note and including the Exhibits A.1 and A.2. Therefore, considering the admission of the defendant in his written statement and admission of the plaintif in the cross examination by the counsel for the defendant, it is proved that Ex.A.1 was executed by the defendant in favour of the plaintif and therefore, it is supported by the consideration of Rs.7,25,000/- from the plaintif on 14.01.2016. As such this issue No.1 is answered in favour of the plaintif and negative to the defendant by holding that the

Ex.A.1 was executed by the defendant in favour of the plaintif.

7. Issue No.2:

Whether the defendant borrowed Rs.1,00,000/- again on 14.01.2016 from the plaintif and executed another promissory note in favour of the plaintif ?

Considering the admissions made by the plaintif in his evidence at the time of cross examination by the counsel for the defendant, the Ex.A.2 was executed by the defendant. The said promissory note was settled along with other matters unconnected to this case to a sum of Rs.33,00,000/- and considering that the admission of defendant in his written statement and the admission in the cross examination of the plaintif by the counsel for the defendant, it is clearly established that the Ex.A.2 was executed by the defendant in favour of the plaintif on 14.01.2016 for a sum of Rs.1,00,000/- and therefore, the presumption under Section 138 of Negotiable Instrument Act will come to the aid of the plaintif. As such the Ex.A.2 was executed by the defendant in the eye of Law. As such the issue No.2 is answered in 8 favour of the plaintif and negative to the defendant by holding that the

Ex.A.2 was executed by the defendant in favour of the plaintif.

8.Issue No.3:

Whether the suit promissory notes were not supported by consideration and they were given to plaintif for payment of BPS amount fee penalty and taxes Raja Lodge building ?

Considering the issue Nos.1 and 2 answered in favour of the plaintif and negative to the defendant and this issue No.3 is also answered in favour of the plaintif and negative to the defendant.

9.Issue No.4:

Considering the admissions made by the defendant that

Exhibits A.1 and A.2 were executed by the defendant and considering that Issue Nos.1 to 3 are answered in favour of the plaintif and negative to the defendant and considering the admission of the plaintif in the cross examination by the counsel for the defendant that an amount of

Rs.33,00,000/- by the defendant including the suit promissory notes and therefore when the plaintif admitted the suit claim is included the settlement of Rs.33,00,000/-, the plaintif is entitled to recover the

Rs.33,00,000/- by the defendant. But, in view of the suit claim is sum of

Rs.13,84,350, the plaintif is entitled to decree to a sum of Rs.13,84,350 with interest @ 6% per annum from the date of filing of the suit till the date of realization with costs and the defendant in view of the admission made by the plaintif in cross examination is entitled to reduce the amount of the principal sum of Rs.13,84,350/- to the date of filing of the suit and the defendant is bound to pay the Rs.13,84,350/- with interest @ 6% per annum by excluding this interest amount from the settlement amount of Rs.33,00,000/- by the defendant with the plaintif. The defendant is not entitled to set of the interest portion since the 9 settlement is for Rs.33,00,000/- is prior to the filing of the suit and there is no overriding agreement between the plaintif and the defendant and the plaintif did not deny to receive the Rs.33,00,000/- towards all the claims. As such the plaintif is entitled to recover the suit amount of

Rs.13,84,350/- with interest @ 6% per annum from the date of filing of the suit till the date of realization as described above with costs.

Accordingly the issue No.4 is answered.

10.Issue No.5:

To what relief ?

In the result, the suit is decreed in favour of the plaintif and against the defendant on the suit amount of Rs.13,84,350/- (Rupees thirteen lakh eighty four thousand three hundred and fifty only) with interest @ 6% per annum from the date of filing of the suit i.e., from 13.11.2018 till the date of realization excluding the interest, the remaining amount will be set of to Rs.33,00,000/- (Rupees thirty three lakhs only)

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open court this the 8th day of September, 2022.

Senior Civil Judge,

Sompeta.

Appendix of evidence

Witnesses examined.

For plaintiff: For Defendant:

PW.1: Dr. S. Sankara RaoD.W.1: Malla Ramjee

Documents marked.

For Plaintiff: Ex.A-1: Promissory note, dated 14.01.2016 Ex.A-2: Promissory note, dated 14.01.2016 Ex.A-3: Dishonoured Cheque, dated 15.07.2016 Ex.A-4: Legal notice. Ex.A-5: Postal acknowledgment.

For Defendant:-Nil-

Senior Civil Judge,

Sompeta.

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IN THE COURT OF ASSISTANT SESSIONS JUDGE, SOMPETA.

.Present :- P. Bala Venkata Koteswara Rao, Assistant Sessions Judge, Sompeta.

Tuesday, this the 27th day of September, 2022. .

Sessions Case No. 80/2019

Between :

The State represented by the Sub Inspector of Police, Mandasa Police Station. … Complainant. And:

Rokkam Purushotham @ Vykuntarao, S/o Mohanarao, 31 years, Telaga by caste, Vasudevupuram (V), Mandasa (M).

….. Accused.

This case coming on 26.09.2022 for final hearing before me in the presence Sri K. Venkateswara Rao, Incharge Additional Public Prosecutor for state-complainant and of Sri V.C. Patnaik, learned Advocate for Accused and upon hearing of arguments of both sides and having stood over for consideration till this day, this court delivered the following

JUDGMENT:

The Sub Inspector of police, Mandasa Police Station filed the charge sheet against the accused for the offences Under Sections 307, 324 and 323 IPC of Indian Penal Code, 1860 (In precise IPC) in Crime No.54/2015 of

Mandasa Police Station.

2.The facts of the case in precise are as follows:

The accused is the resident of Vasudevupuram village, which is within the Mandasa mandal limits. The complainant by name Mallareddy

Gangarao (in precise “complainant”) on injuries got admitted in the hospital and on the medical intimation of the Medical Officer, the Sub

Inspector of Police rushed to the Government Hospital, Palasa and recorded the statement of the complainant. Then he registered the case vide First

Information Report No.54/2015 under Sections 307, 324, 323 IPC on 07.09.2015 at 3 p.m against the accused A.1 and the father of the accused and took up investigation. During his investigation, he examined the witnesses i.e., the complainant and his two daughters Mallareddy

Bhagyalaxmi and Mallareddy Meena and one Mallareddy Venkatarao,

Mallareddy Danayya, Narthu Latchayya, K. Ganapathi, K. Damodhara, 2

Gujjula Jayamma and he also inspected the scene in the presence of one

Gudena Nagaratnam and another. The Medical Officer Dr. R. Kiranmai gave her report basing on the X-ray and opined that there are no bony injuries.

The Medical Officer of Community Health Center, Palasa who treated the complainant gave wound certificate opining that the injuries are simple in nature. The investigation of the Sub Inspector of Police reveals that on 06.09.2015, the father of the accused disputed with the complainant at the paddy field in relation to the diversion of the water from the paddy field of the complainant and the father of the accused opened the bund and diverted. As the matter stood on 07.09.2015 around 6.00 a.m., the complainant brought the matter into the notice of the elders and questioned the father of the accused about causing of disturbance in that verbal altercation between them, the father of the accused challenged the complainant to open the bund and diverted water. The complainant and the accused pushed each other and the complainant beat the father of the accused with a bamboo stick on the left wrist. The accused armed with a long wooden haft iron knife and then the two daughters of the complainant rushed there. The accused reacted on the attack of his father and with an intention to get rid of the complainant beat the complainant on the head and caused laceration of size 15 CM X 1 CM diameter and also beat the daughters with hands. The accused is liable for punishment for the offences under sections 307, 324 and 323 IPC. Hence, the police filed the police report against the accused.

3.The report of the police filed under Section 173 (2) Cr.P.C. is taken cognizance by the Judicial Magistrate Of First Class, Sompeta for the offences under Sections 307, 324 and 323 IPC and made over the case to the Court of Sessions after numbering it as PRC No.11/2015 since the offences are triable by the Court of Sessions by complying the provisions under Sections 207 and 209 Cr.P.C.

3

4.Later the case was made over to this Court from the Hon’ble

Principal District and Sessions Court, Srikakulam for trial.

5.The learned Assistant Public Prosecutor opened the case in pursuance of commitment of the case under Section 209 Cr.P.C. and described the charge brought against the accused by stating that what evidence the prosecution proposes to prove the guilt of the accused.

6.After hearing the learned Assistant Public Prosecutor and upon considering the record of the case and the documents submitted there with and after hearing the submissions of the accused and prosecution in this behalf, this Court did not find any ground to discharge the Accused as envisaged under Section 227 Cr.P.C. and therefore this Court proceeded under Section 228 Cr.P.C. and framed charges against the Accused for the offences under Sections 307, 324 and 323 IPC.

7.The said charges were read over and explained to the Accused as envisaged under Section 228 of Cr.P.C. to which the accused denied the charges and claimed to be tried.

8.Therefore, this Court issued trial schedule to the witnesses to proceed for trial as follows: L.Ws.1 to 3 – 19.09.2022; L.Ws.4 to 8 – 20.09.2022; L.Ws.9 to 13 – 21.09.2022.

9.In order to prove the case of the prosecution, the prosecution examined P.W.1 to P.W.9 and Exhibits P.1 to P.15 are marked. P.W. is the complainant. P.W.2 and P.W.3 are the daughters of the P.W.1. P.W.4 and

P.W.5 are the witnesses to the prosecution near to the field. P.W.6 is the medical officer, who gave opinion about the any bony injury to the victim / complainant. P.W.7 is the Medical Officer, who issued the medical certificate. P.W.8 is the mediator to the scene observation report. P.W.9 is the investigation officer who registered the case and investigated into.

Ex.P.1 is the signature on the report of P.W.1 on the statement of the P.W.1.

Exhibits P.2, P.3, P.4, P.5 and P.7 are the 161 Cr.P.C. statements of P.W.1 to 4

P.W.4 and P.W.7. Ex.P.6 is the signature on the scene observation report.

Ex.P.8 is the report issued by the P.W.6 Medical officer. Ex.P.9 is the medical intimation by the P.W.7. Ex.P.10 is the wound certificate issued by the P.W.7. Ex.P.11 is the scene observation report. Ex.P.12 is the mediators report. Ex.P.13 is the statement of the P.W.1 recorded by the P.W.13.

Ex.P.14 is the First Information Report. Ex.P.15 is the rough sketch.

10.After the closure of the evidence of the prosecution, the accused was examined under Section 313 (5) Cr.P.C., the accused denied the incriminating evidence and reported no defence evidence.

11.Heard the arguments of the learned Additional Public

Prosecutor and the counsel for the accused.

12.Now, the point for determination is whether the prosecution

proved the guilt of the accused beyond the shadow of the

reasonable doubt for the offences under Sections 307, 324 and

323 IPC ?

13.The very evidence from P.W.1 to P.W.9 and exhibits P.1 to P.15, it is clearly establishing that the P.W.1 didn’t sustain any grievous injury., which is clearly establishing the evidence of the Medical officer who took the X-Ray to the P.W.1 examined as P.W.6 and the medical officer who gave the medical certificate under Ex.P.10 are the injuries are simple in nature. It is also admitted fact that even according to the case of the prosecution there is a counter case against the father of the P.W.1 on the report lorged by the accused and that case vide CC No.01/2020 was transferred to this

Court from the Judicial Magistrate of I Class, Sompeta for common trial and that case was settled before the Lok Adalat by the father of the complainant, who is accused in that case and in the present case the accused who is the victim in that case and in that case the father of the complainant was acquitted under Section 320 (8) Cr.P.C.

14.In the present case, the P.W.1 admitted the same and he also turned hostile to the case of the prosecution. The daughters, who were examined as P.W.2 and P.W.3 are also turned hostile to the case of the 5 prosecution. P.W.4 and P.W.5 are also turned hostile to the case of the prosecution. The P.W.6 is no other than the medical officer, who gave information as there is no bony injury to the P.W.1 and her report was marked as Ex.P.8, which reveals that the injuries sustained to the P.W.1 were simple in nature even according to the case of the prosecution. P.W.7 issued wound certificate opined that the injuries are simple in nature.

Therefore, even according to the case of the prosecution if any is under

Section 325 IPC. The offence under section 325 IPC is compoundable as envisaged under Section 320 Cr.P.C. Therefore, on careful reading of the entire evidence of the prosecution P.W.1 to P.W.9 and exhibits P.1 to P.15, the prosecution has no case for the offence under Section 307 IPC.

15.Coming to the charges under Section 324, 323 IPC, the P.W.1 to

P.W.5 turned hostile to the case of the prosecution and they did not speak anything against the accused even for any of the charges much less under

Section 307, 324 and 323 IPC and the evidence of the medical officers, who were examined as P.W.6 & P.W.7 and the evidence of the investigation officer who was examined as P.W.9 is also of no use to the case of the prosecution, for the simple reason that the investigation officer didn’t produce the material object said to have been used in the commission of the offence and the property forwarded by the Judicial Magistrate of I Class,

Sompeta is not tallied with the mediator report i.e., Ex.P.12 and therefore, the property was not received and therefore, even the prosecution did not make any effort to resubmit the property and did not make any attempt to show the property to the investigation officer and when the material object was not produced by the prosecution by marking it as Material Object (M.O) which is form part of the evidence to weigh the evidence of the medical officers P.W.6 and P.W.7. The evidence of the P.W.9, who is the investigation officer is of no use to the case of the prosecution for the sole reason that when the material object was not established by the 6 prosecution or when the prosecution did not take any steps to cross examine the P.W.9 either to corroborate the evidence of the P.W.9 with the material object or to contradict it through medical officer to establish that whether the material object merely seized by the P.W.9 or planted for the purpose of the case has to be established to believe the evidence of the

P.W.9. Therefore, when the evidence of the P.W.9 is not inspiring confidence in the mind of the Court any relevance on the testimony of the

P.W.9, unless corroborated on the material particulars evenly the indirect means of circumstantial evidence by getting the material object marked on behalf of the prosecution. This Court in its considered opinion that the accused is entitled to be acquitted for the offence under sections 307, 324 and 323 IPC. The prosecution failed to bring the guilt to the home of the accused for the offences under Sections 307, 324 and 323 IPC beyond the shadow of the reasonable doubt.

16.For the above reasons, this Court holds that the prosecution failed to bring the guilt to the home of the accused for the offences under

Sections 307, 324 and 323 IPC. As such the accused is entitled to acquittal.

17. In the result, the accused is found not guilty for the offences under Sections 307, 324 and 323 IPC and he is acquitted under section 232 of the Code of Criminal Procedure, 1973.

The Bail bonds of the accused and that of the sureties shall stand in force for a period of six months as envisaged under Section 437-A of the Code of Criminal Procedure, 1973.

Dictated to the Stenographer Grade-II, transcribed by her, corrected

and pronounced by me, in open court this the 27th day of September, 2022.

Sd/- P. Balavenkata Koteswara Rao

Assistant Sessions Judge, Sompeta.

7

Appendix of evidence

Witnesses examined

For prosecution: For defence:

P.W.1: Mallareddy Gangarao- None - P.W.2: Mallareddy Bhagyalaxmi P.W.3: Mallareddy Meena P.W.4: Mallareddy Venkatarao P.W.5: Narthu Latchayya P.W.6: Dr. R. Kiranmai, Radiologist, RIMS General Hospital, Srikakulam. P.W.7: Dr. U. Kodandaramu, CAS, Community Health Center, Palasa P.W.8: Gudena nagaratnam P.W.9: V. Ravi Varma

Documents marked

For prosecution: Ex.P.1:Signature of the P.W.1 on the report of P.W.1, dt.07.09.2015 Ex.P.2:Statement of P.W.1 U/Section 161 of Cr.P.C., dt. 07.09.2015 Ex.P.3:Statement of P.W.2 U/Section 161 of Cr.P.C., dt. 07.09.2015 Ex.P.4:Statement of P.W.3 U/Section 161 of Cr.P.C., dt. 07.09.2015 Ex.P.5:Statement of P.W.4 U/Section 161 of Cr.P.C., dt. 07.09.2015 Ex.P.6:Signature of the P.W.4 on Scene observation report, dt.07.09.2015 Ex.P.7:Statement of P.W.5 U/Section 161 of Cr.P.C., dt. 07.09.2015 Ex.P.8:X-Ray report issued by P.W.6, dt. 07.09.2015 Ex.P.9:Medical intimation, dt.07.09.2015 Ex.P.10:Wound certificate, dt. 29.10.2015 Ex.P.11:Scene observation report, dt. 07.09.2015 Ex.P.12:Mediators report, dt.18.09.2015 Ex.P.13:Report of P.W.1, dt.07.09.2015 Ex.P.14:First Information Report, dt. 07.09.2015 Ex.P.15:Rough sketch, dt. 07.09.2015

For defence: Nil. Material objects: Nil

Sd/- P. Balavenkata Koteswara Rao

Assistant Sessions Judge Sompeta 8

IN THE COURT OF THE ASSISTANT SESSIONS JUDGE AT SOMPETA.

Present: Sri P. Balavenkata Koteswara Rao

Assistant Sessions Judge, Sompeta.

Tuesday, this the 27th day of September, 2022. .

Sessions Case No. 80/2019

(P.R.C.No.11/2015 on the file of Judicial Magistrate of First

Class, Sompeta in Cr.No.54/2015 of Mandasa Police station)

for the offences under sections 307, 324 and 323IPC .

Between:State, represented by the Sub Inspector of Police, Mandasa Police Station.

COMPLAINANT

And : Rokkam Purushotham @ Vykuntarao, S/o Mohanarao, 31 years, Telaga by caste, Vasudevupuram (V), Mandasa (M).

ACCUSED

01Date of Offence 07.09.2015 02Date of Commitment29.10.2015 03Date of Apprehension of Accused 18.09.2015 04Whether the accused are in jail or bail Bail 05Date of Commencement of trial 19.09.2022 06Date of closing trial 26.09.2022 07Date of Sentence or Order 27.09.2022

8. Explanation for delay:

a) In the committal court: Vide Separate docket extract is herewith enclosed.

b) In this court: Sri V.C. Patnaik, advocate for the accused to defend on behalf of the accused; On 16.09.2022, accused was examined under

Section 226 Cr.P.C. and charges were framed against accused for the offences under Sections 307, 324 and 323 IPC. Due to COVID-19 pandemic witnesses could not be produced and there is no physical hearing and recording of evidence of witnesses and hence delay of commencement of trial. On 19.09.2022 trial commenced. Judgment pronounced on 27.09.2022.

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Sentence order :-

In the result, the accused is found not guilty for the offences under Sections 307, 324 and 323 IPC and he is acquitted under section 232 of the Code of Criminal Procedure, 1973.

The Bail bonds of the accused and that of the sureties shall stand in force for a period of six months as envisaged under Section 437-A of the Code of Criminal Procedure, 1973.

ASSISTANT SESSIONS JUDGE

SOMPETA

1

IN THE COURT OF THE SENIOR CIVIL JUDGE, SOMPETA.

Present:- Sri P. Bala Venkata Koteswararao,

Senior Civil Judge,

Sompeta.

Thursday, this the 18th day of August, 2022.

O.S. No. 01/2020

Between:

1) Bonala Pushpalata, W/o Sreenivasa Rao, aged 47 years, Household duties, Door No.3-2-30, Ambusoli village, Palasa mandal, Srikakulam District.

2) Pilaka Venkatamma, D/o late Yerakayya, aged 45 years, Household duties, Door No.3-2-30, Ambusoli village, Palasa Mandalam, Srikakulam District.

3) Matta Jyoti, W/o Joga Rao, aged 43 years, Household duties, R/o Nandigam village, Nandigam mandalam, Srikakulam District.

... Plaintiffs.

And:

Pilaka Kumara Swamy, S/o late Yerakayya, aged 37 years, Roof ceiling worker, Door No.3-2-30, Ambusoli village, Palasa mandalam, Srikakulam District.

.... Defendant.

This suit is coming on this day ie., on 12.08.2022 for final hearing

before me in the presence of Sri V.C. Patnaik, learned advocate for Plaintiffs

and Sri G.S. Sailendra, learned advocate for defendant, and having stood over till this day for consideration, this Court delivered the following

J U D G M E N T :-

01.This suit is filed by the plaintiffs against the defendant for division of the plaint schedule properties into four equal shares by metes and bounds and to put the plaintiffs in separate possession of three such shares after converting the joint possession into separate possession and subsequent mesne profits and costs of the suit.

02.The averments of the plaint in precise are as follows :-

The plaint schedule properties are the ancestral properties of the defendant. The mother of the plaintiffs and defendant died in the year 2000.

Their father died on 30.06.2012 at Ambusoli village in undivided status leaving behind him the defendant and the plaintiffs as his legal heirs. The defendant 2 is addicted to vices and he is trying to sell away the plaint schedule properties. Therefore, the plaintiffs demanded for division of plaint schedule properties and to allot their legitimate shares in the last week of July, 2019.

But, the defendant is evading for the same. The plaintiffs are entitled to claim equal shares in the plaint schedule properties after passing of the Hindu

Succession Act, 2005. Hence, this suit is filed for division of the properties into four equal shares and to allot three such shares to the plaintiffs after dividing the joint possession into separate possession.

The suit is not barred by limitation. The plaintiffs therefore, prayed the

Court to pass preliminary decree in favour of the plaintiffs and for division of plaint schedule properties into four equal shares by metes and bounds and to put the plaintiffs in separate possession of three such shares after dividing the joint possession into separate possession and grant mesne profits and grant such other relief including costs of the suit as the Court deems fit and proper in the circumstances of the case.

03.The defendant filed written statement. The averments in the written statement in precise as follows:

The material averments in the plaint are all neither true, nor valid, nor binding on the defendant. The averments which are not specifically admitted here under shall not be deemed to have been admitted by the defendant and plaintiffs are put to strict proof of them. The genealogy and relationship of the parties as set out by the plaintiffs is true but the other allegations are false. The allegation of the plaintiffs that the defendant addicted to the vices is false. The allegation of the plaintiffs that demanded the division of the plaint schedule properties in the month of July, 2019 and the defendant is evading same is also false. The allegations that the plaintiffs are entitled to equal share in the plaint schedule properties by dividing the plaint schedule properties into four equal parts and three such parts are to be allotted to the plaintiffs after converting the joint possession into separate 3 possession are all false and they are invented by the plaintiffs for the purpose of the suit to gain wrongfully. The defendant being the only son to the parents, he used to assist his father all though his life struggled for the uplift of the family and spent all his income for the benefit of the family. He along with his father performed the marriages of the plaintiffs long ago that is prior to 1985 by spending huge amount of money and by giving dowry and other valuables to the plaintiffs. In view of such expenditure, the father and this defendant became indebted to various persons in the village. Still there are debts to be paid by the defendant which he borrowed for the benefit of the joint family since his father is no more. The 2nd plaintiff after marriage had disputes with husband and took divorce from her husband and living in the village and this defendant used to assist the 2nd plaintiff in her livelihood. In view of the demand by the plaintiffs for partition of the properties, the matter was placed before the village elders namely Pootika Someswara Rao, Pyla

Ekasi and others. The elders conducted meeting at the efforts of the defendant and the elders decided that the sisters be given land extending about Ac.0.20 cents each in S. No.209/2 and the remaining properties to be given to the defendant and this defendant has to discharge all the debts. The plaintiffs and the defendant agreed for the same and accordingly the 1st plaintiff was allotted Ac.0.20 cents towards the east of the S. No.209/2, the 2nd plaintiff was allotted Ac.0.20 cents to the West of the land of the 1st plaintiff in

S. No.209/2, similarly the 3rd plaintiff was allotted Ac.0.20 cents to the west of the land of the 2nd plaintiff in S. No.209/2 and the remaining properties were allotted to the defendant. All the plaintiffs and the defendant agreed so and an unregistered partition deed was executed on 17.07.2019 by the plaintiffs and the defendant and as per the document the shares were delivered to each of them. As such a valid partition of the properties was affected between the parties and it was a complete partition and nothing is left for seeking partition of the properties. Since, then the plaintiffs were enjoying their shares 4 independently. The properties of the plaint schedule are not in joint possession as pleaded by the plaintiffs. The Item No.4 of the suit schedule property has been developed by this defendant with his hard earned money and it is only residential house for the family and as such the plaintiffs, being sisters, have no right in the said house nor do they have any right to seek partition to said residential house. The plaintiffs suppressed the material facts and brought to suit with an intention to grab the properties of the defendant to gain wrongfully. There is no cause of action to file this suit as alleged by the plaintiffs. The cause of action mentioned in the plaint is false. The allegations are vague, ambiguous. The suit is liable to be dismissed.

4.Basing on the above pleadings of the respective parties the following issues were settled for consideration:

1) Whether there is a partition on 17.07.2019 by way of partition deed among the parties (unregistered partition deed) as asserted by the Defendant in the written statement ?

2) Whether the suit schedule property is liable for partition and the plaintiffs are entitled to equal share each acquire from the defendant ?

3) To what relief ?

5.Issue No.1

1) Whether there is a partition on 17.07.2019 by way of partition deed among the parties (unregistered partition deed) as asserted by the Defendant in the written statement ?

The 3rd plaintiff was examined as P.W.1. The 1st plaintiff was examined as P.W.1. The defendant was examined as D.W.1. No documents were marked on either side.

6.As seen from the evidence of the plaintiffs P.W.1 and P.W.2 and defendants evidence D.W.1, the P.W.1 did not come to the witness box to face the cross examination and therefore, the evidence of the P.W.1 does not serve any purpose of the case of the plaintiffs. Coming to the evidence of the P.W.2, in her cross examination deposed that she claimed Ac.0.50 cents in the suit and she agreed to take Ac.0.35 cents if the defendant is ready to give Ac.0.35 5 cents towards her full share and agreed to forego the remaining plaint schedule property on her behalf. She further deposed that her sisters agreed to take Ac.0.20 cents each i.e., plaintiff Nos.2 and 3. Coming to the evidence of the defendant who was examined as D.W.1, the D.W.1 categorically admitted that he is ready to give Ac.0.35 cents to the 1st plaintiff and Ac.0.20 cents to the 2nd plaintiff and Ac.0.20 cents to the 3rd plaintiff. The plaintiffs agreed to receive i.e., the 1st plaintiff agreed to receive Ac.0.35 cents and the 2nd and 3rd plaintiff did not come to the witness box to claim their shares and the defendant agreed to give Ac.0.35 cents to the 1st plaintiff and Ac.0.20 cents each to the plaintiff Nos.2 and 3 and the 1st plaintiff also deposed that her sisters also agreed to receive Ac.0.20 cents each to which the defendant agreed. Therefore, considering the evidence of the P.W.1 and P.W.2 and the

D.W.1 and considering that no documents are marked on behalf of the plaintiffs and the defendant, it is to be presumed that there is no partition as pleaded by the plaintiffs in their plaint. On the other hand, the evidence of the D.W.1 is categorically revealing that he wants to give Ac.0.35 cents as agreed by the P.W.1 to her share and Ac.0.20 cents each to plaintiffs 2 and 3.

The issue is answered by holding that there is no partition prior to the filing of the suit. The issue is answered accordingly.

7.Issue No.2:

2) Whether the suit schedule property is liable for partition and the plaintiffs are entitled to equal share each acquire from the defendant ?

Considering the evidence of the P.W.2 and the D.W.1 and considering that P.W.1 did not come to the witness box to face the cross examination and considering the admissions made by the P.W.2 and D.W.1, this Court holds that the plaintiff No.1 is entitled to Ac.0.35 cents in the plaint schedule property and the 2nd plaintiff is entitled to Ac.0.20 cents and the 3rd plaintiff is entitled to Ac.0.20 cents and the remaining plaint schedule property will go to the defendant. Accordingly this issue No.2 is answered.

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8.Issue No.3

3) To what relief ?

In the result, the suit is preliminarily decreed in favour of the plaintiffs and against the defendants by holding that the 1st plaintiff is entitled to

Ac.0.35 cents, the 2nd plaintiff is entitled to Ac.0.20 cents and the 3rd plaintiff is entitled to Ac.0.20 cents and the remaining plaint schedule property is entitled by the defendant and the suit is accordingly decreed, leaving the parties to bear their own costs.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open court this the 18th day of August, 2022.

Senior Civil Judge,

Sompeta.

Appendix of evidence

Witnesses examined .

For plaintiff: For Defendant:

PW.1: Matta JyothiD.W.1: Pilaka Kumara Swamy. P.W.2: B. Pushpalatha

Documents marked.

No documents were marked on either side.

Senior Civil Judge,

Sompeta.

7

Date of presentation: 22.08.2019 Date of filing: 10.01.2020

IN THE COURT OF THE SENIOR CIVIL JUDGE, SOMPETA.

Present:- Sri P. Bala Venkata Koteswararao,

Senior Civil Judge,

Sompeta.

Thursday, this the 18th day of August, 2022.

O.S. No. 01/2020

Between:

1) Bonala Pushpalata, W/o Sreenivasa Rao, aged 47 years, Household duties, Door No.3-2-30, Ambusoli village, Palasa mandal, Srikakulam District.

2) Pilaka Venkatamma, D/o late Yerakayya, aged 45 years, Household duties, Door No.3-2-30, Ambusoli village, Palasa Mandalam, Srikakulam District.

3) Matta Jyoti, W/o Joga Rao, aged 43 years, Household duties, R/o Nandigam village, Nandigam mandalam, Srikakulam District.

... Plaintiffs.

And:

Pilaka Kumara Swamy, S/o late Yerakayya, aged 37 years, Roof ceiling worker, Door No.3-2-30, Ambusoli village, Palasa mandalam, Srikakulam District.

.... Defendant.

This suit is filed by the plaintiffs against the defendant for division of the plaint schedule properties into four equal shares by metes and bounds and to put the plaintiffs in separate possession of three such shares after converting the joint possession into separate possession and subsequent mesne profits and costs of the suit.

Total value of the plaint schedule properties:

(a) Value of items 1 to 3 of the plaint schedule properties which is Ac.2-06 cents as per Valuation Certifiacte issued by the Sub-Registrar, Kasibugga.. Rs.24,92,400-00

(b) Value of Item No.4 of the plaint schedule house property as per Valuation Certificate issued by the Sub Registrar, Kasibugga .. Rs.14,88,884-00

Value of plaintiffs’ 3/4th share in the plaint schedule properties is …………. Rs.30,60,963-00 8 3/4th market value of the plaintiffs’ 3/4th share……Rs.22,95,722-25

The value of the suit for payment of Court fee is Rs.22,95,722/-, on which a

Court fee of Rs.25,426/- is payable, but a fixed Court fee of Rs.200/- is paid

under Section 34 (2) of Andhra Pradesh Court Fee and Suits Valuation Act

1956.

This suit is coming on this day ie., on 12.08.2022 for final hearing

before me in the presence of Sri V.C. Patnaik, learned advocate for Plaintiffs

and Sri G.S. Sailendra, learned advocate for defendant, and having stood over till this day for consideration, this Court doth order and PRELIMINRY DECRE E:-

1. that the suit be and the same is hereby preliminarily decreed allotting Ac.0.35 cents to the 1st plaintiff , Ac.0.20 cents to the 2nd plaintiff, and Ac.0.20 cents to the 3rd plaintiff in the plaint schedule property and the remaining property in the plaint schedule property is allotted to the defendant; and

2. that the parties do bear their own costs. (Plaint Schedule is here with annexed)

Given under my hand and the seal of this Court, this the 18th day of August, 2022.

Senior Civil Judge

Sompeta

Memorandum of Costs

No cost memo filed on either side.

Certified that the decree is drafted properly,

Senior Superintendent. Senior Civil Judge,

Sompeta.