Sri. P. Prabhakar

11

IN THE COURT OF SPECIAL JUDGE FOR TRIAL OF CASES UNDER SCs AND STs (POA)

ACT-CUM-VIII ADDITIONAL DISTRICT JUDGE,

WEST GODAVARI, ELURU.

Present: SRI P.PRABHAKAR,

II Additional District Judge,

FAC Spl.Judge for Trial of Cases under S.Cs. and S.Ts. (POA) Act-cum- VIII Additional District Judge, West Godavari, Eluru.

Monday, this the 22nd day of February, 2021.

ORIGINAL SUIT No.86/2012

Between

Chinta Mangayamma, W/o K.Yesupadam, Door No.11-4-17, Nawabpeta, Eluru.

…… Plaintif

and

1. Sri Chinta Somaraju, S/o Raghupati, Retd. Hostel warden, H.No.8, Bapuji colony, Sullurpeta, Nellore District.

2. The Director General of Stamps & Registrations, Andhra Pradesh, Hyderabad.

3. The Deputy Inspector General of Stamps & Registrations, Powerpeta, Eluru.

4. The District Registrar, Stamps & Registrations, West Godavari, Eluru.

5. K.Jogananda Rao, Joint Sub Registrar-I, District Registrar’s officer, Eluru.

6. The District Collector, West Godavari District, Eluru.

7. Chinta Annapurna, W/o late Somaraju, Hindu, Female, aged 43 years, House wife, R/o H.No.8, Bapuji colony, Sullurpeta, Nellore District, Nellore.

8. Kumari Chinta Elilzabeth, D/o Late. Somaraju, Hindu, Female, aged 19 years, Student, R/o H.No.8, Bapuji colony, Sullurpeta, Nellore District, Nellore.

….Defendants

This suit coming on 25.1.2021 before me for hearing in the presence of Sri

G.Ronald Raju, Advocate for the Plaintif and of Sri N.V.Satyanarayana, Advocate for 1st defendant and of Sri Government Pleader for defendants 5 and 6 and of Sri

D.Uma Maheswara Rao, Advocate for defendants 7 and 8 and defendants 2 to 4 remained exparte and upon hearing counsels for both sides and the matter having stood over for consideration, till this day this court delivered the following:-

J U D G M E N T

1.This is a suit filed for declaration that registered revocation deed vide document no.1493/2012 dated 25.2.2012 executed by 1st defendant is null and void and to declare the title of plaintif that she is absolute owner of plaint schedule property, consequential permanent injunction restraining the 1st defendant and his men from ever interfering with the title and peaceful 22 possession of schedule property either by transferring or creating charge over schedule property, to direct the defendants to pay Rs.5,00,000/- towards damages to plaintif for subjecting her to mental agony by bringing into existence a registered revocation deed dated 25.2.2012, costs of the suit and all other reliefs as the Court deem fit and necessary.

2.Case of plaintif is as follows:- 1st defendant is her brother. Defendants 2 to 4 are officials of

Registration Department and 6th defendant is District Collector. Defendants 7 and 8 arrayed as parties to the suit as per the order in I.A.No.733/2012 dated 1.9.2015 are 2nd wife and daughter of 1st defendant.

3. She is absolute owner of plaint schedule property which is an extent of 440 Square yards covered by TS No.1452 with double storied building bearing

No.11-4-17 by virtue of registered settlement deed dated 30.1.2004 vide document No.707/2004 executed by 1st defendant in her favour. On same day she was also put in exclusive possession and enjoyment of schedule property.

4. 1st wife of defendant No.1 namely Smt.Elizabeth died issueless 20 years ago. On her demise 1st defendant married 7th defendant 16 years ago and they are blessed with a daughter namely Elilzabeth Rani shown as 8th defendant.

Diferences cropped up in between 1st defendant and his 2nd wife. During that period 1st defendant apprehending danger to his life in the hands of his 2nd wife 7th defendant taken asylum under plaintif and her husband as they gave moral support to him in view of afection. Out of love and afection 1st defendant executed a registered settlement deed in favour of plaintif on 30.1.2004 transferring the plaint schedule property in favour of plaintif on execution of the registered settlement deed. He also delivered link documents and it is an irrevocable settlement deed. Plaintif also developed the schedule property by investing huge amount of Rs.5,00,000/- as 1st defendant did not complete the wood work of the building by the date of execution of settlement deed.

Subsequently husband of plaintif took pains to settle the disputes in between 1st defendant and his wife /7th defendant. 1st defendant is residing in his own three storied building at Sullurpeta along with his 2nd wife and daughter since the time of settlement of their disputes. Originally the plaint schedule site belongs to ancestors of plaintif and 1st defendant. Mother of plaintif and 1st defendant namely Smt. Subhadramma is still alive is 2nd wife to the father of plaintif and 1st defendant. Only son born to their father Raghupathi through his 1st wife namely

Chinta Pothuraju executed registered relinquishment in favour of 1st defendant relinquishing his share in plaint schedule property on 5.6.1980 vide document

No.2510/1980. Mother of plaintif has been in the custody and guardianship of 33 plaintif and she is residing along with plaintif and her children in schedule property.

5. Diferences cropped up in between plaintif and 1st defendant and his 2nd wife as she did not agree for marriage proposal put forward by defendants 1 and 7 to give their daughter 8th defendant studying 8th class at Sullurpeta in those days to 3rd son of plaintif aged 26 years working as Administrative officer in

Mary Engineering College, Hyderabad. For that reason 7th defendant felt humiliated and abetted 1st defendant to cancel the registered settlement deed

dated 3.1.2004 executed in favour of plaintif. As 1st defendant also developed

grouse against plaintif for rejecting the marriage proposal he also agreed to cancel the settlement deed dated 30.1.2004. In furtherance of the same 1st defendant unilaterally executed the revocation deed on 25.2.2012 cancelling the settlement deed of plaintif by managing defendants 2 to 5 officials. Plaintif having learnt the unilateral revocation deed dated 25.2.2012 approached the

Hon’ble High Court and filed Writ petition No.19821 of 2012 challenging the

revocation deed. At the stage of admission the writ petition was disposed of as writ petition is not maintainable and the dispute should be adjudicated by competent Civil Court. 1st defendant has no right to execute revocation deed and to cancel settlement deed executed in favour of plaintif. Plaintif made representation to Sub Registrar, Eluru dated 15.6.2012 for which he gave clarification stating that he has no control over registration transactions and he cannot adjudicate the documents submitted for registration and expressed his inability giving justification for registration of revocation deed.

6. Plaintif is in uninterrupted possession of plaint schedule property till date. Municipal Corporation of Eluru also issued proceedings on 1.9.2005 vide

D.S.No.A3/3437/2005 granting house tax exemption to the schedule property under Assessment No.20423 from 1.10.2005 onwards on considering her representation as her husband karnikoti Yesupadam was served in Indian Army as CFN from 1965 to 1970 under Army Code No.7091610. Plaintif is paying electricity service connection charges to the department. She also got issued notice under section 80 of CPC including 1st defendant. But they did not choose to give any reply except 4th defendant stating that registration was made according to rules. 5th defendant intentionally and willfully allowed 1st defendant to execute the revocation deed by 1st defendant though he was incompetent to execute the same. As he misused his powers and abusing his powers to help 1st defendant and caused prejudice to plaintif. Defendants 2, 4 and 6 are jointly and vicariously liable along with 5th defendant for the mental agony caused.

They are liable to pay damages at Rs.50,00,000 to plaintif. As plaintif is in financial crisis she restricted her claim to Rs.5,00,000/-. She is ready to pay 44 deficit court fee if Rs.50,00,000/- damages is awarded after passing decree. It is reliably learnt that 1st defendant is vigorously trying to alienate and create charge over schedule property to cause further loss to plaintif. Hence she is constrained to file the suit before the expiry of statutory period though issued notice under section 80 CPC to avoid multiplicity of proceedings. Hence, the suit.

7. 1st Defendant filed written statement denying the claim of plaintif over schedule property. Averments in brief are ::

It is absolutely false to say that plaintif is absolute owner of schedule property and by virtue of registered settlement deed dated 30.1.2004 vide document No.707/2004. It is also false to say that she was also put in possession of plaint schedule property on even date. He had not executed any settlement deed out of his free will and so also he never delivered possession at any time much less on 30.1.2004. Entire plaint schedule property is in his exclusive possession and enjoyment. Schedule property consists of three portions each in ground and 1st floors. Out of which 5 portions were let out to five tenants by 1st defendant and he is in occupation of one portion. It is absolutely false to say that in collusion with 5th defendant he brought into existence the registered revocation deed dated 25.2.2012.

8. Plaintif filed suit suppressing the true facts to grab the schedule property. Plaintif and her husband played fraud by using undue influence against him in view of the diferences cropped up in between him and his 2nd wife/7th defendant. Husband of plaintif by telling that his daughter born to 2nd wife i.e., 7th defendant will file suit for partition for share to conceal the property in the name of his sister i.e., plaintif till the disputes resolved as he was in distress and facing confrontation with his 2nd wife and plaintif and her husband supported him and believing them he executed settlement deed in favour of plaintif on 30.1.2004 for schedule property. It is not executed by him voluntarily. It is sham and nominal document. Plaintif and her husband colluded together and incorporated recital in the settlement of settlement deed as if the property was delivered and it is irrevocable settlement deed. It is false to say that he also delivered link documents to plaintif immediately after execution of gift settlement deed and plaintif spent an amount of Rs.5,00,000/- for development of schedule property to complete the wood work of building.

Plaintif had stolen linked documents from him.

9. It is false to say that he is staying along with his 2nd wife and daughter at

Sullurpet in three storied building and plaintif is staying in schedule property as absolute owner. Schedule property is ancestral property acquired by his father 55

Chinta Peda Pothuraju and his younger brother Chintha China Raghupathi. His father had two sons namely Pothuraju and himself. Pothuraju only son born to his father through his 1st wife executed relinquishment deed for his share in his favour dated 5.6.1980. Chinta Raju son of his paternal uncle settled his share in favour of his brother Pothuraju and in turn he executed relinquishment deed

dated 5.6.1980 and since then he is in possession and enjoyment of schedule

property as absolute owner. It is false to say that the mother of plaintif has been in the custody and guardian of plaintif and residing with plaintif , her husband and children and out of that gratitude he executed registered settlement deed in favour of plaintif. His father namely Raghupathi died long back. His mother namely Subhadramma is under his care and he is looking after her. It is false to say that he bore grudge against plaintif for rejection marriage proposal put forward by him to give his daughter 8th defendant to the 3rd son of plaintif. Infact by the date of plaintif son’s marriage 8th defendant was hardly aged 12 years and studying 8th class. It is absurd to say that he proposed to give his 12 years old daughter to plaintif’s son aged about 26 years. He executed registered revocation deed without knowledge of plaintif and her husband. They did not raise any objection. It is not correct to say that he has no right to execute registered revocation deed unilaterally and it is not valid and binding on plaintif.

10. Settlement deed dated 30.1.2004 is not acted upon. It is sham and nominal document. No property was delivered to plaintif under settlement deed dated 30.1.2004. Giving and acceptance should be taken place simultaneously for any valid gift. But in the present case no such giving and acceptance of the property was taken place. Settlement deed dated 30.1.2004 will not confer any title to the plaintif over schedule property. It is false to say that Eluru Municipal Corporation issued proceedings granting exemption for payment of house tax to schedule property on application of plaintif’s husband as Ex-servicemen and it is manipulation. He is paying electricity charges. No collusion in between him and 5th defendant in execution of revocation deed

dated 25.2.2012. In fact on 21.5.2012 he executed registered settlement deed

for schedule property in favour of his wife and daughter i.e., defendants 7 and 8 reserving life interest in himself and his wife 7th defendant giving vested reminder to his daughter/8th defendant. Plaintif is no way concerned with schedule property. Suit is misconceived. Plaintif is not entitled for any of the rights over plaint schedule property and prayed for dismissal of suit.

11. 5th defendant filed separate written statement. 6th defendant filed memo adopting written statement of 5th defendant.

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Averments in brief are :: It is absolutely false to say that 1st defendant in collusion with him brought into existence the revocation deed dated 25.2.2012.

Registration of revocation gift settlement deed is not an illegal action and registration of revocation deed falling under Article 49 of Schedule IA of Indian

Registration Act, 1908. The Hon’ble High Court also declared that the registration of revocation of settlement deed is registerable as per law. As per standing order No.727 in Act No.XVI of 1908 “Registration cannot be refused merely on account of the objections of a person who is not a party of the document that his interest will thereby be afected prejudicially. A party who objects to registration on the ground should be informed in writing that he should seek redress in a court of law. As per Registration Act Rule 58 it forms no part of registering officer’s duty to enquire in to validity of document brought to him for registration or to attend any written or verbal protest against the registration of document based on the ground that the executing party had no right to execute the document. He has no other option except registration of revocation deed presented for registration. Allegations levelled against him are false and baseless. He has nothing to do with disputes in between plaintif and 7th defendant. Plaintif has no cause of action. She has no right to claim any damages. Suit is liable to be dismissed against him with exemplary costs.

12.8th defendant filed written statement and 7th defendant filed memo adopting written statement of 8th defendant.

Averments in brief are :: Registered settlement deed dated 30.1.2004 is sham and nominal document brought into existence by plaintif and her husband in collusion with 1st defendant when he was at loggerheads with her. It is not valid and binding. It is not acted upon. Schedule property was not delivered to plaintif under registered settlement deed. It is true there were some disputes in between her mother and 1st defendant. It is true that her mother also lodged complaint against 1st defendant. During those days 1st defendant believed plaintif and her husband and took their help to get over from the troubles arose on account of the harassment of her mother by 1st defendant on one pretext or other. 1st defendant suspecting the character of her mother/7th defendant harassed her and it was route cause for diferences among them. Taking advantage of those disputes 1st defendant with the active assistance of husband of plaintif brought into existence the sham and nominal settlement deed dated 30.1.2004 to defeat her valuable rights. It is absolutely false to say that her father/1st defendant is having very much afection towards plaintif and her husband and thereby he executed gift settlement deed.

13.Schedule property is ancestral property. 1st defendant has no exclusive right to execute settlement deed in favour of plaintif she being daughter of joint shareholder along with him in schedule property she is in 77 possession and enjoyment of schedule property along with 1st defendant. It is false to say that mother of plaintif has been in custody of plaintif and residing in plaint schedule property along with plaintif’s family and out of that gratitude 1st defendant executed registered settlement deed in her favour. It is false to say that diferences cropped up in between plaintif and 1st defendant on account of her refusal to perform marriage of her son with her. She was hardly 12 years by that time and school going. It is also false to say that her father 1st defendant executed clandestine gift settlement deed revoking the registered settlement deed dated 30.1.2004. It is false to say that property tax was also exempted by Municipal corporation on application of husband of plaintif. On 21.5.2012 1st defendant reserving life interest for himself and her mother /7th defendant settled the vested reminder in schedule property in her favour after execution of registered revocation deed. Revocation deed is valid and binding on plaintif. No collusion in between defendants 1 and 5 in execution of registered revocation deed. 1st defendant has got every authority to cancel settlement deed and to settle registered revocation deed as it is brought into existence fraudulently with the active assistance of her husband. Plaintif has no cause of action and prayed for dismissal of suit with costs.

14.On the above pleadings following Issues are framed:

1.Whether the registered settlement deed dated

30.1.2004 is sham and nominal and obtained by

playing fraud and undue influence against 1 st

defendant ?

2.Whether the revocation deed dated 25.2.2012 is

valid and binding on plaintiff ?

3. Whether the registered settlement deed dated

21.5.2012 executed by 1 st defendant in favour of

defendants 7 and 8 is valid and binding on plaintiff ?

4. Whether the plaintiff is entitled to declaration of

registered revocation deed dated 25.2.2012 as null

and void ?

5.Whether the plaintiff is entitled to consequential

relief of permanent injunction as prayed for ?

6. To what relief?

15.On behalf of plaintif, PWs.1 to 3 examined and Exs.A.1 to A.10 marked. On behalf of 1st defendant, DWs.1 to 4 examined and Exs. B1 to B5 marked. On behalf of defendants 5 and 6 DW.7 examined and on behalf of defendants 7 and 8 DWs.5 and 6 examined but no documents marked.

16.PWs.1 and 2 are plaintif and her husband. PW.3 is 3rd party.

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17.Ex.A1 is registered settlement deed executed by 1st defendant in favour of plaintif dated 30.1.2004. Ex.A2 is certified copy of registered revocation deed executed by 1st defendant cancelling Ex.A1. Ex.A3 is letter sent by Sub Registrar , Eluru to plaintif dated 25.6.2012. Ex.A4 is registered relinquishment deed executed by 1st defendant’s brother in favour of 1st defendant dated 5.6.1980. Ex.A5 is copy of orders of Hon’ble High Court in Writ petition no.19821/2012 dated 3.7.2012. Ex.A6 is office copy of legal notice got issued by plaintif to defendants 1 to 6. Ex.A7 is postal receipts. Ex.A8 is reply given by Joint Sub Registrar, Eluru to the protest petition submitted by plaintif’s counsel dated 23.7.2012. Ex.A9 is proceedings of Commissioner, Municipal

Corporation Eluru exempting property tax to the schedule property dated 1.9.2005. Ex.A10 is copy of registered settlement deed executed by 1st defendant in favour of defendants 7 and 8 dated 21.5.2012.

18.DW.1 is 1st defendant. DW.2 is tenant of one of the tenants in schedule premises. DW.3 is cousin of plaintif and 1st defendant. DW.4 is scribe of Ex.A1. DW.5 is 8th defendant. DW.6 is 7th defendant. DW.7 is Joint Registrar-II,

Eluru.

19.Ex.B1 is property tax receipts (3 in number) from 1.4.2016 to 30.9.2018. Exs.B2 and B3 are electricity demands and receipts for the years 2017 and 2018. Ex.B4 is LP Gas agency receipts dated 2.2.2015. Ex.B5 is BSNL receipts dated 6.9.2017.

20. Issue Nos.1, 2 and 4: It is the case of plaintif that 1st defendant none other than her brother out of love and afection executed registered settlement deed on 30.1.2004 in respect of plaint schedule property which consists of the site and residential two storied building and put her possession and enjoyment of the same on same day. Since then she is in uninterrupted possession to till date. Her brother 1st defendant who executed the registered settlement deed in her favour on 30.1.2004 has no right to cancel the said settlement deed that too unilaterally without the consent of plaintif and thereby the registered revocation deed dated 25.2.2012 executed by him unilaterally cancelling the registered settlement deed which stands in her name for schedule property is not valid and binding on her. 1st defendant/executant of both registered settlement deed and registered revocation deed dated 21.1.2004 and 25.2.2012 admitting execution of settlement deed in favour of his sister plaintif pleaded it is sham and nominal document and obtained by husband of plaintif in the name of plaintif misleading him that his daughter 8th defendant born through his 2nd wife/7th defendant may file suit for partition claiming share in schedule property as he was not cordial with his 2nd wife i.e. 7th defendant at relevant time in order to screen the property to defeat the claim that may be put 99 forward by 8th defendant as he took their help during that period by gaining confidence. He further pleaded as settlement deed dated 30.1.2004 is sham and nominal and he has got every right to get it cancelled and thereby he revoked the said settlement deed by executing registered revocation deed dated 25.2.2012 that too with the consent of plaintif and further pleaded the registered settlement deed executed in the name of plaintif is not acted upon and not accepted by plaintif and she was also not put in possession of plaint schedule property on the date of its execution and he is in possession and enjoyment of one of it is portions and other five portions were let out by him.

21. In the circumstances as 1st defendant duly admitted the execution of registered settlement deed in favour of plaintif none other than his sister it is for him to prove that it is sham and nominal and further it is not acted upon. In order to prove his contentions he got himself examined as DW.1. His 2nd wife and daughter born to him through his 2nd wife arrayed as defendants 7 and 8 in the suit also filed written statements reiterating the defence of 1st defendant and they got themselves examined DWs.5 and 6. All of them filed chief examination affidavits reiterating the averments made in their respective written statements and further in support of evidence of 1st defendant testified as DW.1 Exs.B1 to B5 marked. All the documents i.e., Exs.B1 to B5 which are only receipts in proof of payment of property tax, electricity bills, gas charges and telephone bills are of 2015 to 2018 and they came into existence pending suit. Disputed registered settlement deed was executed by 1st defendant in the year 2004, eight years prior to filing of present suit filed in the year 2005. Not even a single scrap of paper filed by 1st defendant who claimed to be in continuous possession and enjoyment of schedule property till date along with his mother who also died pending suit. In proof of his possession and enjoyment he also examined one of the tenants in the other five portions of schedule building as DW.2. Except oral testimony of DWs.1 and 2 no iota of evidence in proof of physical possession and enjoyment of schedule property by 1st defendant.

22.On the other hand the sole plaintif having claimed physical possession and enjoyment of schedule property since the date of registered settlement deed in her favour got examined herself as PW.1 and her husband as

PW.2 by filing chief examination affidavits reiterating the contentions and affirmed the same on oath. In her evidence she stated as her husband was Ex- service men an application is made to the Municipal Corporation authorities,

Eluru in whose limits the schedule property was situated claiming exemption of property tax in the year 2005 itself and considering the said application exemption was also granted by corporation authorities. In support of her contention plaintif also exhibited Ex.A9 proceedings of Municipal Commissioner, 101

Eluru dated 1.9.2005. It is manifest from Ex.A9 proceedings that on considering application of plaintif’s husband property tax was exempted on schedule property. Genuineness of Ex.A9 proceedings is not in dispute. Admittedly 1st defendant had not paid any property tax to the schedule property after execution of Ex.A1 till filing of suit in the year 2012. Hence, in the circumstances the contention of defendants 1, 7 and 8 that plaintif is not in possession and enjoyment of schedule property is not tenable.

23.Oral testimony of DW.2 is not convincing. In proof of either payment of rent or any other charges. He has not filed any documents in support of his evidence. During his cross examination it is elicited he has old house at a distance of 500 yards near by schedule property but in that house his parents and brother are residing. It is further elicited that he don’t know the door number of schedule property as he did not pay any attention towards door number. It is suggested that his voter ID card and ration card also contain his old house address. Having denied the suggestion he did not choose to file any document atleast to show his occupancy of schedule property. It is also elicited he has no documents in proof of payment of rent to 1st defendant. Though the room in occupation is having separate Electricity service connection of meter he is not having any electricity bill and the said bill is allegedly with 1st defendant. It is suggested that he is not at all tenant of schedule property and even if assuming for a moment that his possession is true it is not true.

24.It is manifest from the evidence of 1st defendant testified as DW.1 that he consciously executed Ex.A1 registered settlement deed in favour of plaintif. Relationship in between plaintif and 1st defendant is not in dispute.

Evidence spoken by him that in order to secret the property in anticipation of claim from 8th defendant his daughter born through his 2nd wife also arrayed as 7th defendant in the suit is though convincing as admittedly he was at loggerheads with 7th defendant at relevant time in order to secret the schedule property and to deprive her legitimate claim against him giving strength to his contention that Ex.A1 is nominally executed by him. But under no stretch of imagination it can be said that it is a sham and nominal document. Evidence spoken by him that under influence of plaintif’s husband unknowingly he executed Ex.A1 in favour of plaintif is not convincing. It is not his case that he is not worldly wise and innocent and taking advantage of his innocence he was mislead by plaintif and her husband. Infact neither 1st defendant nor defendants 7 and 8 even choose to place any evidence to show exactly when the disputes in between 1st defendant and 7th defendant arose and settled.

Admittedly by the date of filing of suit which was filed in the year 2005 he was cordial with his 2nd wife and daughter born to him arrayed as defendants 7 and 8 1111 and obviously for that reason only he executed gift settlement deed in their favour in the month of May-2012 after executing unilateral revocation deed in the month of February 2012.

25.The learned counsel for plaintif relying on a decision of Hon’ble Apex court rendered in the case ofKushalchand Swarup Chand Vs.

Sureshchandra Kanhiyala reported in 1 SCJ 119 which is also referred in a decision of Hon’ble High Court reported in 2007 (2) ALD843 wherein it is held “ Section 123 of Transfer of Property Act, 1882 postulates that for the purpose of making a gift of immovable property, the transfer must be effect by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. In section 3 of Act “attestation’ has been defined, - in relation to an instrument, it shall be deemed always to have meant attested by two or more witnesses each of whom has been the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. Acceptance of gift by donee by mentioning in the gift deed itself is an indication that the delivery of possession was given to the donee and when the deed is in possession of the donee, it is sufficient compliance of the provisions of Act and the recital was sufficient to establish the delivery of possession of property. The gift of immovable property should be followed by delivery of possession to complete the transaction. It is sufficient if a deed of this type is attested by two witnesses and registered. The gift is complete as soon as the gift deed is delivered to the donee. The donee has filed the gift deed in the court which is marked as exhibit. The production of the gift deed by the donee itself would show that it has been delivered to the donee by the donor. Therefore the question of delivery of possession of the property gifted would not assume importance for completion of the gift.”

26.Admittedly Ex.A1 registered settlement deed executed by 1st defendant in favour of plaintif is in her custody. Apart from the said gift deed its link document is also in the custody of plaintif. She duly exhibited the original registered settlement deed executed in her favour and also relinquishment deed executed by brother of 1st defendant in her favour and they are also marked as

Exs.A1 and A4. Contention of 1st defendant that Ex.A4 was stolen by plaintif is far from reality. No explanation for custody of Ex.A1 with plaintif. As pleaded by 1st defendant if Ex.A1 is sham and nominal no likelihood of custody of Exs.A1 and 121

A4 with the plaintif and any of probability they should only in custody of 1st defendant himself.

27.Learned counsel for plaintif also relied on recent judgment of

Hon’ble High court rendered in Writ petition No.15003 of 2014 dated

21.5.2020 for a proposition

that unilateral revocation deed is not valid and gift deed is also comes under

Rule 26(k) (i) of AP Rules under Registration Act. Rule 26(k) (i) reads as

follows: “ 26.(i) Every document shall, before acceptance for registration, be

examined by the Registering Officer to ensure that all the requirements

prescribed in the Act and in these rules have been compliled with, for instance:

(a) xxx

(b) xxx (c )xxx

(d) xxx

State or Central Government annulling the transaction conatained in the

previously registered deed of conveyance on sale; Provided that the registering

officer shall dispense with the execution of cancellation deeds by executant and claimant parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil judge or a Government officer competent to execute Government orders declaring the properties contained in the

previously registered conveyance on sale to be Government or Assigned or

Endowment lands or properties not registerable by any provision of law.

(ii) Save in the manner provided for above no cancellation deed of a previously

registered deed of conveyance on sale before him shall be accepted for

presentation for registration.”

(a) This Rule lays down that when at the time of presentation of cancellation deeds of previously registered deed of conveyance on sale, the registering officer shall ensure that such cancellation deeds are executed by all the executant and claimant parties to the previously registered conveyance on sale. He shall also ensure that such cancellation deed is accompanied by a declaration showing mutual consent or

orders of a competent Civil or High Court or State or Cental Government

annulling the transaction contained in the previously registered deed of

conveyance on sale. A perusal of the above said Rule discloses that it covers not

only the sale deeds, but also transactions of conveyance, which obviously would

take in its fold the transactions of gift also. It has already been mentioned that

whether it is a sale deed or gift deed, they are executed by the owners of the

property and the beneficiaries there under get the title by way of transfer. The only difference is that a sale is supported by consideration whereas in case of gift, 131

consideration in terms of money or other tangible asset is absent. Recently, a

learned single Judge of this Court took the view that the observation made by the

Hon’ble Supreme Court applies to unilateral cancellation of Gift deeds also. It was

observed thus :

“ Supreme Court, in Thota Ganga Laxmi Vs. Government of AP (1) Judgment in

Civil Appeal No.791 of 2007 and batch, held that if any sale deed is required to be

cancelled, the only remedy is by way of a civil suit for cancellation, but no

cancellation deed can be unilaterally executed or registered. The Supreme Court, after referring to Rule 26 (i) (k) of the Registration Rules, held that it is only when the earlier sale deed is cancelled by a competent court can a cancellation deed be registered that too after notice to the concerned parties; and unilateral cancellation

of the sale deed, as well as registration thereof, were wholly void, nonest and

meaningless transactions. The observations of the Supreme Court,

aforementioned, made in the context of sale deeds would equally apply to unilateral cancellation of gift deeds also. Unilateral cancellation of the gift deed in the present case must therefore be, and is , declared to be void. It is made clear that this

order will not preclude the respondent from invoking the jurisdiction of the

competent civil court for cancellation of the subject gift deed. The Writ petition is disposed of accordingly.

(j) Thus, on a conspectus of the jurisprudence, the judicial opinion consistently is that Rule 26(k) (i) though not specifically referred to other forms of conveyance other than Sale deed, still the said rule applies to such conveyances like gift deed,

agreement to Sale cum General Power of Attorney (GPA) etc. For this reason, the

contention of learned counsel for respondents that in conveyance of sale, the rights of the parties will be crystallized but in gift that is not the case and therefore, gift can be revoked at any time and further, Rule 26(k) (i) has no specific application to gift deeds cannot be accepted. In gift also the rights will be crystallized in favour of the donee. In this case, the cancellation was executed long after the gift deed was registered. Therefore, such unilateral cancellation is a procedural violation and against the tenets of law and revocation deed is liable to be set aside. It must be reiterated that the revocation or are at liberty to question the validity of Gift Deed on the ground of fraud etc. by resorting to common law court.

28.Refuting the applicability of above referred decision the learned counsel for 1st defendant relied on a decision of Apex court in 2019 SAR (Civil)

116 rendered in the case of S.Sarojini Amma Vs. Velayudhan Pillai

Sreekumar for a proposition that a conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime 141 of the donor when a gift is incomplete and title remains with the donor the deed of gift might be cancelled.

29.He also relied on a decision of Apex court reported in 2019 SAR

(Civil)765 rendered in the case of Jagdish Prasad Pate (Dead) Thr. Lrs.

& Another Vs. Shivnath & others for a proposition that Section 58 of

Evidence Act provides that things admitted need not be proved. However, proviso gives full discretion to the Court to require the admitted facts to be proved otherwise. Learned counsel for 1st defendant also relied on a Provisions

of Maintenance and Welfare of Parents and Senior Citizens Act, 2007

30.In support of his contention that 1st defendant has got every right to cancel the gift settlement deed unilaterally. But neither the authorities on which the defendants 1, 7 and 8 relied nor the provisions of maintenance and welfare of parents and senior citizens Act 2007 will come to the rescue of defendants in the facts and circumstances. Only Civil court is competent to cancel the gift deed if there exists undue influence. As in the circumstances 1st defendant unilaterally canceled the settlement deed executed by by him unilaterally executing the revocation deed without the consent of plaintif donee under settlement deed dated 30.1.2004 and she is not signatory to unilateral revocation deed dated 25.2.2012 the same is not valid and binding on plaintif.

31.The authorities on which the counsel for plaintif relied are aptly applicable to the facts of the case. It is patent from the recitals of Ex.A1 gift settlement deed executed in favour of plaintif by 1st defendant that it is irrevocable and possession was also delivered to the plaintif on execution of gift settlement deed parting custody of original gift settlement deed along with link documents. Defendants 1, 7 and 8 on whom the burden lies to prove that the registered revocation deed executed by 1st defendant cancelling the gift settlement deed is valid on plaintif have miserably failed. In the circumstances both these issues are decided in favour of plaintif against defendants.

32. Issue No.3: In view of answering issues 1, 2 and 4 against defendants as 1st defendant has no right to unilaterally cancel the registered settlement deed dated 30.1.2004 executed by him in favour of plaintif consequently the settlement deed executed by him reserving life interest in himself and his 2nd wife/7th defendant and vested reminder to 8th defendant consequent upon the execution of unilateral revocation deed dated 25.2.2012 is not valid and binding on plaintif. Contention of defendants that gift settlement deed dated 25.2.2012 executed by 1st defendant in favour of defendants 7 and 8 is valid and binding on plaintif is not tenable. This issue is decided accordingly in favour of plaintif and against defendants.

151

33. Issue No.5: As admittedly plaintif is in possession and enjoyment of schedule property by virtue of settlement deed dated 30.1.2004 being it’s exclusive owner as long as it is not cancelled on any score she has got every right to safeguard or possession and enjoyment. Either 1st defendant or defendants 7 and 8 have no right to disturb the physical possession and enjoyment of plaintif over schedule property under the guise of revocation deed

dated 25.2.2012 which is null and void and consequently the registered

settlement deed dated 21.5.2012 executed by him reserving life interest in himself and 7th defendant and vested reminder to 8th defendant. In the circumstances as a matter of right plaintif is entitled for consequential permanent injunction restraining the defendants 1, 7 and 8 from interfering with her peaceful possession and enjoyment of schedule property in any manner.

This point is decided accordingly in favour of plaintif and against defendants 1, 7 and 8.

34. Issue No.6:: Plaintif claimed damages of Rs.5,00,000/- alleging that 1st defendant in collusion with 5th defendant brought into existence the registered revocation deed causing mental agony to her and thereby she is entitled for damages. Absolutely there is no evidence to substantiate the collusion in between defendants 1 and 5. 5th defendant who categorically denied collusions attributed to him in registration of registered revocation deed unilaterally by 1st defendant cancelling the registered settlement deed dated 30.1.2004 got examined the present Joint Sub Registrar-II, Eluru as DW.7. She filed chief examination affidavit reiterating the averments made in the written statement and asserted as per standing order 727 of Act, No. XVI of 1908of

Registration Act “ registration cannot be refused merely on account of the objections of a person who is not a party of the document that this interest will thereby be afected prejudicially. A party who objects to registration on the ground should be informed in writing that he should seek redress in a Court of

Law. As per the Registration Act, Rule 58 it forms no part of registering officer’s duty to enquire into validity of document brought to him for registration or to attend any written or verbal protest against registration of document based on the ground that the executing party had no right to execute the document and registration of revocation of gift settlement deed is registerable. The donor is at liberty to revoke the registered Gift Settlement Deed.”

35. Though she is cross examined at length nothing is elicited to doubt her credence. Absolutely no material to establish the malafides on part of 5th defendant in registration of Ex.A2 revocation deed executed by 1st defendant. No prohibitory order from the Civil Court to 5th defendant directing him not to 161 register such documents in the case on hand. Letter addressed by plaintif objecting for registration. To which 5th defendant given suitable reply under

Ex.A3. Hence, it is also not out of place to mention that plaintif submitted so called objection only on 15.6.2012 and it is manifest from Ex.A3 by that date both Exs.A5 and A2 were presented for registration by 1st defendant and they were registered. Except the oral testimony of plaintif testified as PW.1 there is no iota of evidence of mental agony caused to plaintif on account of registration of revocation deed consequentially settlement deed in favour of defendants 7 and 8. No material to substantiate the claim of plaintif for damages in the facts and circumstances. Hence, this issue is decided against plaintif in favour of defendants.

36. In view of answering issues 1, 2 and 4 against defendant Nos.1,7 and 8 and issue Nos.3 and 5 in favour of plaintif and issue No.6 in favour of defendants the suit is decreed as follows:

37.In the result, suit is decreed declaring the revocation deed dated 25.2.2012 and also gift settlement deed dated 21.5.2012 executed by 1st defendant in favour of defendants 7 and 8 are null and void and gift settlement deed dated 21.5.2012 is ordered to be cancelled and consequential permanent injunction is granted restraining the defendants 1, 7 and 8 from interfering with plaintif’s peaceful possession and enjoyment of schedule property in any manner negativing the claim of plaintif for damages. In the circumstances both parties are directed to bear their own costs.

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

pronounced by me in the Open Court, this 22nd day of February, 2021.

II ADDL. DISTRICT JUDGE,

FAC VIII ADDL. DISTRICT

JUDGE,

W.G., ELURU.

Appendix of Evidence

Witnesses Examined

For Plaintiff: For 1 st Defendant:

P.W.1:Chinta Mangayamma D.W.1: Chinta Soma Raju P.W.2: Karnikoti Yesupadam D.W.2: Terapalli Kanaka Raju

P.W.3:Perikala Deena Babu D.W.3: Chinta Seshubabu

D.W.4:Samudrala Durga Rao

D.W.5: Chinta Elizabeth @ Korukonda Elizabeth

D.W.6: Chinta Annapurana

D.W.7:Attili Dhana Lakshmi 171

Documents Marked

For Plaintiff:-

Ex.A1/30.1.2004 : Registered settlement deed executed by 1st defendant in favour of plaintif dated 30.1.2004.

Ex.A2/25.2.2012: Certified copy of registered revocation deed executed by 1st defendant cancelling Ex.A1. Ex.A3/25.6.2012 : Letter sent by Sub Registrar , Eluru to plaintif dated 25.6.2012.

Ex.A4/5.6.1980 :Registered relinquishment deed executed by 1st defendant’s brother in favour of 1st defendant dated 5.6.1980.

Ex.A5/3.7.2012 : Copy of orders of Hon’ble High Court in Writ petition no.19821/2012 dated 3.7.2012.

Ex.A6/20.7.2012: Office copy of legal notice got issued by plaintif to defendants 1 to 6.

Ex.A7/ :Postal receipts.

Ex.A8/23.7.2012:Reply given by Joint Sub Registrar, Eluru to the protest petition submitted by plaintif’s counsel dated 23.7.2012.

Ex.A9/1.9.2005:Proceedings of Commissioner, Municipal Corporation Eluru exempting property tax to the schedule property dated 1.9.2005.

Ex.A10/ 21.5.2012:Copy of registered settlement deed executed by 1st defendant in favour of defendants 7 and 8 dated 21.5.2012.

For Defendants:

Ex.B.1/-: Property tax receipts (3 in number) from 1.4.2016 to 30.9.2018.

Ex.B2/- : Electricity demands and receipts for the years 2017 and 2018.

Ex.B3/-: Electricity demands and receipts for the years 2017 and 2018.

Ex.B4/-: LP Gas agency receipts dated 2.2.2015.

Ex.B5/-: BSNL receipts dated 6.9.2017.

II A.D.J.,

FAC VIII ADJ.,

W.G., ELURU.

1

IN THE COURT OF VIII ADDITIONAL DISTRICT JUDGE, WEST GODAVARI :: ELURU

Present: Sri P.Prabhakar,

II Addl. District Judge,

FAC VIII Addl.District Judge, West Godavari, Eluru.

Tuesday, this the 4 th day of May, 2021.

APPEAL SUIT No.25/2014.

Between:

1. Alapati Srinivasa Rao, S/o Laxminarayana, Hindu, Male, aged 83 years, Retired Teacher, R/o Tangellamudi, Eluru

2. Smt. Raparla Sri Kumari, W/o Late Vara Prasad, Hindu, Female, aged 57 years, Household and properties, R/o Tangellamudi, Eluru.

3. Smt.Mandava Ramadevi (Died)

4. Smt. Alapati Nagendramma (Died)

5. Alapati Babu Sudhakar, S/o Srinivasa Rao, Hindu, Male, aged 69 years, Cultivation, Vanaja Towers, Ashok Nagar, Eluru.

6. Alapati Krishna Kishore, S/o Srinivasa Rao, Hindu, Male, aged 63 years, cultivation, Sivagopala Puram, Tangellamudi, Eluru.

7. Mandava Hanumanthu Rao, S/o Subbaiah, Hindu, Male, aged 64 years, Cultivation, Gowda village, Amruthaluru Mandal, Guntur District.

8. Mandava Ravi Teja, S/o Hanumanthu Rao, Hindu, Male aged 30 years, Cultivation, R/o Tangellamudi village, Eluru.

9. Smt.Kuchipudi Durga Bhavani, W/o Srinivas, Hindu, Male, aged 32 years, Employee in SBI, R/o Tangellamudi village, Eluru.

(Appellants 5 and 6 added as LR’s of deceased 4th appellant as per orders in I.A.No.486/2019 dated 12.7.2019) (Appellants 7 to 9 added as LR’s of deceased 3rd appellant as per orders I.A.No.1076/2019 dated 20.12.2019) . . . Appellants/Plaintiffs.

And

1. Kodali Ganesh Babu, S/o Late Chakravarthy, Hindu, Male, aged 54 years, cultivation, R/o Santhinagar, Eluru.

2. Uppe Rajendra, S/o Prakasa Rao, Christian, Male, aged 58 years, Gannapaneni varigudem, Lingapalem Mandal. . . . Respondents/defendants.

On appeal filed on behalf of the appellants/plaintiffs against the decree and judgment dated 30.7.2013 in OS.No.458/2008 on the file of Principal Junior

Civil Judge, Eluru and made in:

Between:- 2

1. Alapati Srinivasa Rao, S/o Laxminarayana, Hindu, Male, aged 83 years, Retired Teacher, R/o Tangellamudi, Eluru.

2. Smt. Raparla Sri Kumari, W/o Late Vara Prasad, Hindu, Female, aged 57 years, Household and properties, R/o Tangellamudi, Eluru.

3. Smt.Mandava Ramadevi (Died)

4. Smt. Alapati Nagendramma (Died) . . . Plaintiffs.

And

1. Kodali Ganesh Babu, S/o Late Chakravarthy, Hindu, Male, aged 54 years, cultivation, R/o Santhinagar, Eluru.

2. Uppe Rajendra, S/o Prakasa Rao, Christian, Male, aged 58 years, Gannapaneni varigudem, Lingapalem Mandal.

3. The Assistant Engineer, AP TRANSCO, Pedavegi, Pedavegi Mandal.

. . . Defendants.

This appeal is coming on 16.4.2021 for final hearing before me through

Electronic Media in the presence of Sri M.P.Acharya, Advocate for the

Plaintiffs/Appellants and of Sri P.P.C.Joshi, Advocate for 1st respondent and of Sri

CH.Venkaiah, Advocate for 2nd respondent/defendant and having stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

This appeal is preferred against the decree and judgment passed by the court of Principal Junior Civil Judge, Eluru in O.S.No.458/2008,

dated 30.7.2013 dismissing the suit of plaintiffs filed for declaration to declare

that plaint plan ABCD passage is the easement of the necessity for ingress and egress to the plaint schedule property from the village road on it’s Eastern

Side; restraining the defendants 1 and 2 their men from ever interfering with the plaintiff’s right of passage through ABCD and from shifting the joint service connection No.58 situated in the plaint schedule property with costs.

1.Case of the plaintiffs/appellants is as follows: 1st plaintiff is father of plaintiffs 2 and 3 and 4th plaintiff is the wife of 1st plaintiff. They got agriculture land at Pedavegi in the limits of Garlamadugu Gram panchayath in old RS No.793/4 and New RS No.827/9-A, B and C admeasuring Ac.15-43 cents with a borewell, motor pump set and electricity service connection No.58.

Originally it belonged to Mallampati Raghavaiah and Smt.Jammula Krishna

Kumari. They sold away the same to the 1st plaintiff and his two brothers namely Alapati Venkatappayya and Alapati Venkata Krishna Rao each five acres under 3 separate registered sale deeds dated 9.1.1959 creating 1/3 rd joint right to each in the bore well, motor pump set and electricity service connection No.58. Though on record it is 15 Acres but on land it is more than

Ac.15.43 cents. Since the date of purchase 1st plaintiff and his two brothers 3 have been enjoying their respective shares with all easementary rights and cultivating their lands with joint borewell and service connection without any hindrance.

2.Alapati Venkatappayya brother of 1st plaintiff sold away an extent of Ac.2.61 cents out of his Ac.5.43 cents and the remaining extent to two others under registered sale deed dated 5.7.1965. His another brother Alapati

Venkata Krishna Rao also sold away an extent of Ac.4.73 cents to the father of 1st defendant namely Kodali Chakravarthy and Ac.0.27 cents to one Yadlapalli

Sarojini under separate registered sale deeds. 1st plaintiff from out of his extent of Ac.5.00 cents settled Ac.2.40 cents to each of plaintiffs 2 and 3 by executing registered settlement deed dated 6.8.2005 keeping the remaining extent with him. In the plan annexed to the plaint topographical features of the above referred property is shown. On Eastern side of the entire extent of

Ac.15.43 cents there is road running from south to north connecting the said road and the extent of plaintiffs there is a passage of 7 yards width and 140 yards length with coconut trees on both sides exclusively belong to plaintiffs for ingress and egress. Plaintiffs, their carts, cattle and men have been exercising right of ingress and egress through the said passage and enjoying the coconut trees since 1959 with absolute rights without any hindrance. The said passage is separating the 1st defendant’s Ac.4.73 cents into two plots shown in the plaint plan with red marked portion described as ABCD. It is exclusively belonged to them. It is covered with red gravel and the same is in existence since time immemorial, the plaintiffs and their predecessors in title have been exercising their right of way through ABCD and except the said passage there is no other way to reach their plaint schedule property from

Eastern side village road. It is also an easement of necessity to the plaintiffs to enjoy the plaint schedule property in all aspects.

3.Service connection no.58 situated in plaint schedule is in the name of Mallampati Raghavaiah vendor original owner of entire extent. Plaintiffs approximately got 2/3 joint share in the said bore well and service connection

No.58. 1st defendant has got only joint share. Since 1959 1st plaintiff and his two brothers jointly enjoyed the said bore well and service connection. For the last 5 years the said borewell is not being used by them. Three months ago 1st defendant proposed to sell away his Ac.4-73 cents to 2nd defendant. In that connection 2nd defendant also made a paper publication on 27.5.2008 in

Andhra Jyothi News paper to the public for objections and disputes if any.

Having gone through the said paper publication the plaintiffs 1 to 3 herein got issued a registered legal notice on 16.6.2008 to 2nd defendant stating that the 4 said Ac.4.73 cents land belonged to 1st defendant is not a continuous plot and it is in two plots separated by a passage “ABCD” width of 7x140 yards and the same exclusively belong to plaintiffs. Having received the notice 2nd defendant gave reply on 30.6.2008 denying the existence of plaint plan ABCD passage. Defendants 1 and 2 colluded together and trying to shift the joint electricity service connection No.58 to the said Ac.4.73 cents. On 25.7.2008 they highhandedly removed the old iron electricity pole situated in the plaint schedule property and installed the same in the land of 1st defendant inspite of strong resistance and objections of the plaintiffs. On 26.7.2008 against the 1st defendant lodged complaint with the police about the illegal removal of the said iron pole from the plaint schedule property he also issued legal notice to 3rd defendant authorities on 28.7.2008. In spite of all this, defendants 1 and 2 are making hectic efforts to shift the joint service connection no.58 into their

Ac.4.73 cents of land. Either the police or the 3rd defendant herein did not take any action against the defendants 1 and 2. The 3rd defendant with the intervention and influence of the local persons, may shift the joint service connection no.58 to 1st defendant’s property ignoring the 2/3rd joint rights of the plaintiffs. In the last week of July, 2008 defendants 1 and 2 tried to interfere with the peaceful possession and enjoyment of ABCD plaint plan coconut trees situated on either side of the said passage. They openly proclaimed in the village that they would remove the said passage and merge the same into their property along with the coconut trees therein. They have no respect towards law and order and they are always threatening the plaintiffs with dire consequences. Plaintiffs are apprehending danger from them. They are not in a position to resist the highhandedness and their men. Hence suit.

4.Case of defendants are : All the allegations levelled against them are false. Suit is not at all maintainable. Suit is bared by resjudicata. 1st petitioner earlier filed suit in OS 148/1987 on the file of Principal District

Munisiff, Eluru against 1st defendant’s brother and mother for recovery of amount of Rs.17,195/- for damages and for permanent injunction restraining them from interfering with his user of D2, D3, D4, D5 pathway shown in plan annexed to plaint of OS 148/1987. After elaborate trial this suit is decreed partly awarding an amount of Rs.3,120/- as damages with proportionate costs negativing relief of permanent injunction. The said judgment became final and conclusive. D2, D3, D4, D5 passage of the suit 148/1987 is the present ABCD shown in the plain annexed to plaint. Relief claimed over pathway in both suits is one and the same. Conduct of 1st plaintiff and other plaintiffs in vexing this defendant twice on similar cause of action by claiming one and the same passage rights in both the suit is against the principles of res-judicata and 5 against the maxim “NEMO DEBUT HIS VEXARI PRO UNANET EADEM CAUSA” 1st plaintiff is the brain behind this litigation. He filed the suit in OS 148/87.

Plaintiffs 2 to 4 being his children and wife are well aware of suit OS 148/87 which was decreed partly on merits. Plaintiffs have no cause of action. The allegation in the plaint that the defendants 1 and 2 colluded together and they are trying to shift the joint electricity service connection no.58 to the said

Ac.4.73 cents and in that process on 25.7.2008 they have high handedly removed the old iron pole situated in the plaint schedule property and installed the same in the land of 1st defendant is totally false and baseless. To the notice got issued by plaintiffs suitable reply was given.

5.As far as the title to the property concerned there is no dispute. As the old well is not being used by plaintiffs and 1st defendant they dug bore wells in their respective lands and cultivating their lands with the help of bore wells situated in their respective lands with the help of separate electrical service connections. 1st plaintiff having developed ill will towards 1st defendant’s family since the time of his predecessors in title onwards. As a result there were several legal proceedings one after other. Suit in OS 660/78 on the file of this court was also filed by 1st defendant’s mother for water disputes. As far as passage rights are concerned, the judgment in OS

No.148/1987 which was also confirmed in AS 67/1996 preferred against decree and Judgment are good and became final. Plaintiffs have no right over ABCD exclusively belong to 1st defendant purchased by 2nd defendant for valuable consideration. Service connection no.58 is not in the name of plaintiffs or defendants. Service connection no.58 cannot be shifted against law. 3rd defendant is not necessary party to the suit.

6.On above pleadings before trial court following issues are framed.

1.Whether the suit is hit by Resjudicata ?

2.Whether the plaintiffs are entitled to declaration as prayed for ?

3.Whether the plaintiffs entitled to permanent injunction as prayed for ?

4.To what relief?

7. Before the trial court on behalf of the plaintiffs, PWs.1 to 9 examined and Exs.A.1 and A11 marked. On behalf of defendants, DWs.1 to 4 examined and Exs.B1 to B6 marked. On behalf of court, Ex.C1 marked.

8.On appreciation of oral and documentary evidence the trial court 6 partly decreed the suit without costs negativing the reliefs of declaration of passage rights of plaintiffs by way of easement of necessity and consequential permanent injunction in respect of the disputed passage rights.

9.Having aggrieved against the decree and judgment passed by the trial court in decreeing the suit partly in respect of electricity service connection in their favour negativing the reliefs of declaration and consequential permanent injunction in respect of ABCD passage rights, unsuccessful plaintiffs preferred this appeal with the following grounds.

i) The decree and judgment passed by trial court is contrary to law, weight of evidence and probabilities of the case.

ii) The trial court miserably failed to see and observe that the case of plaintiffs come under provisions of QUASI EASEMENTS (i.e., section 13 of

Easements Act ) . But the same was not taken into consideration while delivering the judgment.

iii) The trial court failed to see that the principle of resjudicata is not applicable to the present case and on erroneous assumptions dismissed the plaintiffs right of easement of necessity in respect of plaint plan ABCD passage.

iv) The trial court ought to have seen that the suit for permanent injunction is not a barred for subsequent suit filed for declaration.

v) The trial court misread the judgment of Hon’ble High court reported in 2013 (2) Law summary, page 83 and erred in giving findings that the suit is barred by resjudicata.

vi) The trial court failed to utilize the oral testimony of PWs.2 and 9 and erred in making observation that except the evidence of advocate commissionerPW.6 there is no cogent evidence as to existence of ABCD passage and its usage by plaintiffs since 1956 and totally ignored the evidence of PWs.2 and 9 who are independent witnesses.

vii) The trial court failed to see that the easement of necessity arises from out of ailments need not supported by any documentary evidence and it is statutory right arises when a single tenement or a common tenement divided into several parts.

viii) The trial court failed to see that there is no limitation to claim the right of easement in respect of immovable property, and the said right is a 7 perpectual one and as long as the immovable property is in existence.

ix) The trial court failed to see that the plaintiffs are not claiming any ownership or proprietary right over the ABCD plaint plan passage and their claim is only right of passage across the land of defendants 1 and 2.

x) The trial court erred in observing that the plaintiffs are claiming possession over ABCD without any documentary proof.

xi) The trial court erred in observing that the commissioner repot under Ex.C1 is incorrect and it ought to have believed the evidence of PW.6 and Ex.C1 report.

For these and other grounds that may be urged at the time of hearing the appeal, appellants pray to set aside the decree and judgment passed by trial court and to decree the suit of plaintiffs with costs throughout.

10. The parties are hereafter referred as per their ranking

before the Trial Court as plaintiff and defendants.

11. Now the points for consideration are:

1. Whether the suit is barred by resjudicata ?

2. Whether the plaintiffs/appellants have exercised their right of passage through ABCD as an easement of necessity as pleaded ?

3. Whether the plaintiffs/appellants are entitled for the reliefs of declaration and consequential permanent injunction as prayed for ?

4.Whether the decree and Judgment passed by the trial court is

sustainable?

12. POINT No.1:-Defendants/respondents mainly contended that the suit is hit by section 11 of CPC and barred by resjudicata in view of decree and judgment passed by the court of Prl. District and Sessions Judge, Eluru

dated 15.3.1996 which became final and conclusive.

As observed by the trial court under section 11 of CPC no court shall try

any suit or issue in which the matter directly and substantially in issue in

a former suit between the same parties, or between parties under whom

they or any of them claim, litigating under the same title, in a court

8

competent to try such subsequent suit or the suit in which such issue has

been subsequently raised and has been heard and finally decided by such

court.

13.Admittedly sole plaintiff in OS 148/1987 and the present plaintiff

NO.1 is one and same. Plaintiffs 2 to 4 in the present suit are none other than the daughters and wife of 1st plaintiff. 3rd defendant in OS 148/1987 and 1st defendant in the present suit is one and same. Defendants 1 and 2 in earlier suit OS 148/1987 are none other than mother and brother of 3rd defendant therein. Defendants 4 to 6 in earlier suit OS No.148/1987 are not parties to the present suit. 2nd defendant in the present suit not party to the suit OS

No.148/1987. He is claiming right over the property in dispute through 1st defendant i.e., 3rd defendant in OS No.148/1987 his vendor.

14.Defendants substantiating their contention that the suit is barred by resjudicata also exhibited the certified copies of decree and judgment passed in OS 148/1987 admittedly became final and conclusive on dismissal of

AS 67/1996 preferred by 1st defendant therein none other than mother of 1st

defendant herein i.e., 3rd defendant in OS 148/1987 challenging the decree and judgment dated 15.3.1996 partly decreeing the suit of plaintiff therein negativing the relief of permanent injunction sought in respect of usage of D2,

D3, D4, D5 pathway by him as an easement of necessity. D2, D3, D4 , D5 passage for which permanent injunction is sought in OS 148/1987 is corresponding to ABCD passage in the present plaint schedule. Thus it is manifest from the above facts that the parties to the both suits are one and same and the subject matter of dispute is also covered partly in OS 148/1987.

15.The suit OS 148/1987 was filed for two reliefs. Firstly for damages of Rs.17,195/- against defendants therein for enjoying the usufruct of coconut trees adjacent to Bodhe and for usage of 6 inches bore for irrigating their land and plants under the guise of injunction wrongly obtained in IA No.3028/1978 and 36/1979 in OS 660/1978. Secondly for permanent injunction restraining the defendants therein from interfering with plaintiffs usage of pathway D2,

D3, D4, D5 corresponding to ABCD pathway of plaint schedule. In the case on hand as the point to be determined in the present suit is only with regard to the right of passage through ABCD to the plaintiffs as an easement of necessity the first relief sought in the earlier suit OS 148/1987 is not relevant for determination of the rights of the parties in respect of ABCD in the present suit.

It is totally linked with the 2nd relief of permanent injunction covered by earlier suit in OS 148/1987.

9

16.It is manifest from the decree and judgment passed by trial court an issue is framed with regard to the relief of permanent injunction sought by plaintiff in OS 148/1987 as follows:

As issue no.2 in view of specific denial of the right of passage through D2, D3, D4, D5 corresponding to

ABCD herein much less by way of easement of necessity by defendant therein as follows:

Whether the plaintiff is entitled for injunction as

prayed for ?

17.In the earlier suit in OS 148/1987 defendants through whom the present defendants are claiming exclusive right over ABCD denying any kind of right to the plaintiffs and exercising of right of passage by them much less by way of easement of necessity pleaded that plaintiff therein has absolute right over the pathway. Their predecessor in title formed pathway for himself later sold the same to Chakravarthy, husband of 1st defendant therein none other than father of 1st defendant in the present suit. Plaintiff has no right on pathway.

18.Para 36 of Judgment in OS 148/1987 is relevant in the facts and circumstances relating to answering issue No.2 framed in that suit as to whether the present suit is hit by section 11 of CPC. In the said para it is observed that on perusal of Ex.A1 therein i.e., plaint plan in OS 148/1987 did not reveal the exact Puntha and its directions. Coming to the pleadings there is no specific plea regarding the right over the pathway. Plaintiff is not clear whether it is a right created by virtue of mutual understanding between himself and his brothers Venkata Krishna Rao. At one stage the plaintiff pleaded that it is the easement of necessity and if any right is existing without any documentary evidence the plaintiff ought to have approached the court seeking declaration of right of easement and seek for an injunction whereas the plaintiff filed a simple suit for injunction. Plea with regard to the pathway is vague.

19.Coming to the oral evidence of plaintiff testified as PW.1 therein it is manifest he formed high level channel PQQ1P1 and with his direction his brother Venkata Krishna Ro i.e., predecessor in title of defendants used the same for some time. Reciprocally his brother i.e., Venkata Krishna Rao formed passage D2, D3, D4, D5 i.e, ABCD herein in his land to Eastern puntha and the said pathway was formed by himself and his brother and he was using pathway since then. Defendants being vendees of his brother have no right to interfere 10 with his right of passage.

20.He was cross examined in that suit and it is suggested that he had not disclosed the pathway in his earlier suit and he has no such right. Having denied the suggestions it is admitted by him that in his title deed right of passage is not shown. In support of his claim plaintiff also examined two more witnesses in the earlier suit as PWs.2 and 3. PW.2 stated that she was not personally aware of the properties, her husband used to look after the matters.

PW.3 categorically stated that to the east of the properties of the plaintiff there is a puntha and it is from the land of defendant’s predecessors in the title with five yards width. 1st defendant therein testified as DW.1. In her evidence stated that the plaintiff had got the passage from puntha to his land from the southern side denying existence of passage through her land. Categorically denying the suggestion put to her as to formation of pathway jointly by plaintiff and his brother Venkata Krishna Rao from whom her husband purchased the properties in their possession deposed the plaintiff never passed though her land purchased from plaintiff’s brother Venkata Krishna Rao. She further stated that the plaintiff has no right of passage and he never passed though the land of 1st defendant.

21. On careful scrutiny of above referred part of oral evidence let in by both parties the trial court observed that the plaintiff ought to have filed suit for declaration of his right of passage by way of easement of necessity and not for bare injunction as there is no documentary proof and he has no clear right over it and thereby simple suit for injunction in respect of D2, D3, D4, D5 passage is not maintainable. Further it is also observed that there were disputes between plaintiff and 1st defendant right from the year 1968 since 19 years prior to the filing of earlier suit in OS 148/1987 and those disputes were also prompted for appointment the surveyor to measure lands. If really such pathway was in existence it would have been clearly noted in documents.

Further when the parties are fighting with each other right from the year 1968 it is unbelievable that the plaintiffs are using pathway till the date of filing earlier suit in OS No.148/1987. Even assuming for a movement the plaintiff is enjoyed the pathway during life time of her brother Venkata Krishna Rao from whom defendants purchased the property in view of disputes there will not be any possibility or probability for the plaintiff to use the disputed pathway. No arrangements are reduced into writing and thereby no documentary evidence regarding formation of pathway for joint purpose by him and his brother. In the absence of any documentary evidence it is for him to prove his interrupted continuous enjoyment of right but no such evidence before the court.

11

Therefore the claim of injunction in respect of D2, D3, D4, D5 cannot be accepted and thereby this issue is answered against the plaintiff in respect of

D2, D3, D4, D5.

22.Thus in the circumstances it is manifest the trial court in its judgment of OS 148/1987 substantially dealt with the issue of D2, D3, D4, D5 pathway corresponding to ABCD in the present plaint and decided the same against the plaintiff therein. It is also not out of place to mention that it is not the case of plaintiff in OS 148/1987 that he had disputes with his brother

Venkata Krishna Rao who sold the property to the defendants and he is not even aware of the alienation made by him to defendants. It is apparent from the plan annexed to plaint in both suits that the disputed passage is passing across the land in occupation of defendants making the land of defendants into two plots. No ryot will agree for formation of the passage for others in the middle of the land making his compact plot as two plots. Likelihood of forming such pathway abutting to boundary line either on southern side or northern side. It is manifest from the oral evidence placed by both plaintiffs and defendants in the earlier suit and also in the present suit that even in the document executed by his brother in the presence of defendants there is no whisper about the pathway claimed by plaintiff herein described as D2, D3, D4,

D5 as in earlier suit ABCD in the present suit. Admittedly defendants are not close to plaintiff’s family but the vendor of the defendants is none other than brother of plaintiff. In such case every likelihood of referring the passage and rights of passage if any created conferred to the plaintiff through the land of his brother Venkata Krishna Rao who sold the same to defendants will be there.

Absence of such recitals in the sale deed of defendants and also one Yadlapalli

Sarojini who purchased Ac.0.27 cents out of Ac.5.00 Cents from plaintiff’s brother Venkata Krishna Rao is another strong circumstances to disbelieve the case of plaintiffs. Obviously for that reason he did not venture to file the sale deeds executed by his brother Venkata Krishna Rao in favour of Chakravarthy husband of 1st defendant in OS 148/1987 and Yadlapalli Sarojini. For not filing the sale deeds though they are relevant to resolve the dispute arose between the parties adverse inference is also to be drawn against plaintiffs. In the aforesaid circumstances contention of plaintiffs that principles of resjudicata are not applicable to the facts of the case as earlier suit was filed for injunction and the present suit is filed for injunction apart from seeking for relief of declaration is not tenable.

23.Learned counsel for defendants relied on a decision of Apex court reported in AIR 1994 SC 152 rendered in the case of Sulochanan Amma, 12

Vs. Narayanan Nair for a proposition “In a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as resjudicata. Contention of counsel for appellant that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a court of limited pecuniary jurisdiction is not tenable. In earlier suit in OS 148/1987 the right of plaintiff in respect of disputed passage is completely adjudicated. The above decision is aptly applicable to the facts of the case.

24.He also relied on another decision of Apex court reported in 2008

SAR (Civil) 468 rendered in the case of Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas and another for a proposition that “ the

Court while passing a judgment can not take away the right of the successful party indirectly which it cannot do directly. Principles of estoppel and res judicata are based on public policy and justice. Doctrine of resjudicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier issue.”

25.It is also not out of place to mention that though the suit OS 148/1987 is dismissed on the ground that suit for injunction without declaration is not maintainable. In spite of plaintiffs filed present suit initially for bare injunction in the year 2008 and got it amended adding the relief of declaration by virtue of orders passed in IA No.2658/2009 dated 14.11.2011. Seven years after disposal of appeal preferred against Judgment of OS 148/87.

26.Under Article 58 of Limitation Act any suit for declaration is to be filed within three years from the date of cause of action. This suit is also barred by limitation. Contention of appellants that they have no alternative way and exercising the right of passage ABCD by way of easement of necessity has no basis. Contention of the counsel for appellants that the trial court misread the legal authorities referred in the judgment of trial court and erred in observing that the facts of those cases are not identical and not applicable to 13 the facts of case on hand is not tenable. Plaintiff filed the present suit. In the circumstances it is apparent from the case facts that issue involved in both suits OS 148/1987 and the present suit are one and same and parties to the both suits one and same. The principles of resjudicata are applicable to the facts of the case. The decision of Apex court on which the counsel for defendants/respondents relied are aptly applicable to the facts of the case.

This point is answered accordingly in favour of defendants/respondents and against plaintiffs/appellants.

27.Point No.2:: Except the oral testimony of 1st plaintiff and his associates testified as PWs.2 to 9 and the evidence of advocate commissioner testified as PW.6 there is no cogent evidence. As submitted by the counsel for respondents/defendants the report of advocate commissioner marked as Ex.C1 is not substantial piece of evidence. It is manifest from the evidence spoken by advocate commissioner that he did not serve notice to 2nd defendant in the suit who purchased the property from 1st defendant prior to filing of this suit.

Though allegedly the commissioner tried to serve notice on 2nd defendant there is no cogent proof. In fact in between the lands of plaintiffs and defendants there is panta Bode. Even the report of advocate commissioner shows there is another way on Northern side of plaintiffs land.

28.It is manifest from the evidence of PW.2 that his father was testified as DW.3 in OS 148/1987 and he duly admitted that his father might have deposed that the plaintiff has no way through lands of defendants and further stated that the plaintiffs having pathway on southern side of road for ingress and aggress and he categorically admitted that his father knows more about the schedule land and the rights of the parties than him.

29.PW.3 is same witness examined in OS 148/1987 also deposed no documents to show that he owns land near schedule property . PW.4 is utter stranger. He had no knowledge about the previous litigation between the parties. Similarly PW.5 is utter stranger. He has no lands in the vicinity of plaint schedule. PW.9 is only vegetable vendor. Though he claimed that he is having lands near by schedule lands no cogent proof is there. He was congress supporter and upasarpanch of village. He does not know the family of plaintiffs and 1st defendant affiliated to TDP party who is aware of court litigations between the parties for the last 20 years.

30.On plain reading of evidence spoken by him it can be safely said that he is close relative to the plaintiffs. Except the oral evidence of PWs.2 to 9 and self serving testimony of PW.1 there is no cogent evidence either in proof 14 of usage of ABCD. Admittedly passing though the land of defendants 1 and 2 that the plaintiffs exercised the right of passage through ABCD since the time of its purchase and its formation by him and his brother. In fact the evidence let in the present suit and in the earlier suit are quiet contrary. Plaintiffs have no consistent case at one breadth they are claiming absolute right over ABCD path and on the other hand they are claiming it is a simple right of passage by way of necessity. In proof of exercising right of passage by them either as easement of necessity or on their own there is no cogent evidence. In fact the suit in OS 148/1987 in which the relief of permanent injunction negatively in respect of passage rights was disposed of in the year 1996. Appellant preferred against the said judgment in As No.67/1996 was disposed of in the month of March, 2001 confirming the decree and judgment passed in OS

No.148/1987. Plaintiffs having kept quite for seven years rushed and filed present suit in the year 2008 initially for injunction and late on converted the suit for relief of declaration apart from the injunction. In the circumstances it can be safely inferred that the plaintiffs are never allowed to use ABCD passage either by way of necessity by virtue of easement of necessity or any other manner right from 1987- till 2008. Under article 58 of Limitation Act in suit for relief of declaration is to be filed within a period of three years.

Conduct of plaintiffs in filing the present suit seven years after confirming the decree and judgment passed in OS 148/1987 by the 1st appellate court speaks volumes and throws out on his bonafides for filing present suit initially for injunction and then for declaratory relief. It is also apparent from the plaintiffs pleadings and sketch that plaintiffs 1 to 4 who are same family members became owners of the entire western part of Ac.15.00 cents land. They can have their passage to eastern side puntha through the bunds. It appears under the guise of present suit the plaintiffs intends to create trouble to the defendants in enjoying their property obviously developing grouse against them for purchasing property by them from his brother Venkata Krishnan Rao long back.

31.As submitted by counsel for defendants/respondents likelihood of plaintiffs trying to knock away the properties of the defendants at throw away place also and ought to dictate terms resorted to file suits one after other right from the year 1968 for the last 50 years and giving trouble also cannot be ruled out. Plaintiffs/appellants did not approach the court with clean hands.

They don’t have any cause of action. Plaintiffs filed the suit suppressing earliest litigations with oblique motive. The reliefs of declaration and injunction are equitable reliefs one who seeks equity must come to court with clean hands. Plaintiffs filed the present suit suppressing the true facts without any 15 right. They don’t have any cause of action much less any right over ABCD claimed as passage which exclusively belong to defendants. In the circumstances this point is answered in favour of defendants against appellants.

32.Point No.3 :: In view of answering Point Nos.1 and 2 in the facts and circumstances the plaintiffs/appellants are not entitled for any of the reliefs much less for declaration and right of passage by way of easement of necessity or for consequential injunction. The trial court on careful scrutiny of evidence let in by both parties and taking into consideration of earlier litigation suppressed by appellants rightly dismissed the suit of plaintiffs. This point is answered accordingly in favour of defendants.

33.Point No.4 :: The contention of appellants/plaintiffs that the trial court erred in appreciating the evidence of oral and documentary evidence let in by both parties and misread the authorities on which the plaintiffs/appellants are relied is not tenable. It is apparent from the Judgment of trial court that on careful scrutiny of evidence the trial court negatived the relief of declaration and injunction as contended by defendants /respondents. No infirmities and anomalies in any part of the judgment of trial court. In the circumstances I see no reason to interfere with decree and judgment passed by trial court.

34. In the result, appeal is dismissed with costs confirming the decree and judgment passed by the court of Principal Junior Civil Judge, Eluru in OS No.458/2008 dated 30.7.2013.

Directed to the Stenographer, transcribed by her, corrected and pronounced by me in Open Court, this the 4th day of April, 2021.

II Addl. District

Judge, FAC

VIII Addl. District Judge, West Godavari, Eluru.

No oral and documentary evidence is adduced on either side.

II A.D.J.,

FAC VIII ADJ

W.G., Eluru.

II Additional Sessions Court,

Sessions Case No.133 of 2018

THE COURT OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE ::

WEST GODAVARI :: ELURU.

Present: Sri P.Prabakar,

II Additional Sessions Judge, West Godavari, Eluru

Friday, this the 19th day of February, 2021

SESSIONS CASE No.133 of 2018

Name of complainant : The State, Represented by Inspector of Police, Chintalapudi Circle, West Godavari District.

Name of the Accused and :1.Kondapalli Veera Raghavulu, S/o. Raju, particulars 24 yrs., SC Madiga, SC Colony, Tadikalapudi Village, Kamavarapukota Mandal (A1).

2.Bhimadolu Rattamma, W/o. late Srinivasu @ Srinu, 35 yrs., SC Madiga, Originally native of Bhimadole village, Now at Tadikalapudi Village, Kamavarapukota Mandal (A2).

Charges :Under Section 302 and 201 r/w.34 I.P.C.

Plea of the accused :Pleaded not guilty

Finding of the judge :Found not guilty.

Sentence or Order : In the result, the accused 1 and 2 are found not guilty for the offences Under Sections 302 and 201 r/w.34 of I.P.C. They are acquitted Under Section 235(1) Cr.P.C. The bail bonds of A1 and A2 shall remain in force for a period of six months and thereafter shall stands cancelled as contemplated u/s.437-A Cr.P.C.

M.Os.1 to 4, i.e., old Tavern empty whisky bottle, Physect Permethrin insecticide empty bottle, Towel and Carbon Cell phone in damaged condition are ordered to be destroyed and MO.5 Bajaj Discovery 100 CC bearing No.AP16 BV 4382 is ordered to be returned to its registered owner on expiry of appeal time.

Counsel for the :Additional Public Prosecutor, West Godavari prosecution District, Eluru.

Counsel for defence :Sri P. Prasada Rao, Advocate for A1.

Sri B.V.D.L. Narayana, Advocate for A2.

This case is coming on 09.02.2021 for final hearing before me in the presence ofAdditional Public Prosecutor appearing for the

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Sessions Case No.133 of 2018

Complainant/State and of Sri P. Prasada Rao, Advocate for A1 and of Sri

B.V.D.L. Narayana, Advocate for A2 and after hearing both sides and after perusing the material on record, having stood over for consideration till this day, the Court delivered the following :-

J U D G M E N T

1.Inspector of police, Chintalapudi Circle filed charge sheet against the accused 1 and 2 for the offences under Sections 302, 201 read with 34 and 109 I.P.C.

2.Case of prosecution is :-

(i) On 06.01.2015 at 8.00 A.M., defacto complainant in the case namely Bhimadole Venkayamma/P.W.1, mother of the deceased

Bhimadole Srinivasu @ Srinu lodged complaint in writing stating that she has four daughters and a son. All are married. Bhimadole Srinivasu @ Srinu deceased in the case along with his wife Rattamma and children

Sesharatnam and Satyanarayana, six months ago migrated to

Tadikalapudi village to his in-laws place and put up family in S.C.

Colony. He was eking out his livelihood by working as a farm servant.

On 06-01-2015 while she was selling leafy vegetables in Eluru at Birla

Bhavan Centre, at about 08.00 A.M., her sister Devathala

Gangamma/LW21 rushed to her and informed that her son Srinivasu on account of the altercation ensued with his wife Rattamma died by consuming insecticide poison. Then, she along with her relative rushed to palm oil garden of Edpuganti Venkata Srinivas/P.W.6 at Tadikalapudi where the dead body of her deceased son was found. On observation, she noticed a liquor bottle, insecticide tin, glass beside the dead body seeking investigation into.

(ii) Basing on the above complaint, case in Cr.No.4/2015 was registered u/s.174 Cr.P.C. by P. Guravayya/PW12 the then SI of Police of Tadikalapudi P.S. Having taken up investigation of the case, he visited scene of offence at 09.00 A.M., in the presence of Mulaparthi Arun

Kumar and Kothapalli Venkateswara Rao (PW13 and LW23), got prepared scene observation report taking photographs to the scene of crime with the help of one Peravali Ramesh Kumar/LW13 and seized an empty old Tavern whiskey bottle, Physect Permethrin insecticide poison tin and also prepared a rough sketch. Later, he also held inquest over

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Sessions Case No.133 of 2018

the dead body of deceased in the presence of blood relatives and witnesses P.Ws.1 to 6 and L.Ws.2, 5 and 10 namely Bhimadole

Sesharatnam, Potta Lakshmi and Mulakala Peddi Raju and in the presence of same mediators. Later, dead body was forwarded to autopsy with escort to know the exact cause of death.

(iii) On 12.01.2015 at 05.30 A.M., A1 and A2 suspects in the case none other than cousin of wife of deceased and wife of deceased, as per the statements given by the witnesses examined were apprehended near check post, Tadikalapudi on credible information in the presence of

PW13 and Kothapalli Venkateswara Rao/LW23 and interrogated them.

During interrogation, they made confession voluntarily admitting their guilt. In pursuance of the confession made by A1, his motorcycle and a towel secreted by him used for throttling the deceased were also seized under a cover of scene observation report in the presence of same mediators. Basing on the mediators report prepared incorporating the confessions of A1 and A2, Section of law is altered to 302 and 201 r/w.34 and 109 IPC and submitted copies of the altered FIR to the

Hon’ble Court and further investigation was taken place by the then

Inspector of Police, Chintalapudi Circle/PW14. On completion of formalities, both the accused were arrested and sent for judicial remand.

(iv) In course of further investigation, Sri G. Srinivas/PW14 secured P.Ws.1 to 6 and other L.Ws., examined by PW12 and cross checked the statements given by them earlier before the SHO,

Tadikalapudi P.S., and then visited the scene of crime. Later, he also secured the presence of neighbours to the house of deceased namely

Jetti Bhagyam, Korukonda Somayya, Kondapalli Vimala @ Bujjamma,

Maddula Ratnam (P.Ws.7 to 10) and one Jetti Nageswara Rao, Sakiri

Bulliyya (L.Ws.15 and 19), examined and recorded their statements in part-II CD.

(v) Medical Officer, District Headquarters Hospital, Eluru namely Dr. P. Rajendra Prasad/PW11 having conducted autopsy over the dead body of the deceased, preserved viscera and reserved his opinion pending chemical analysis report from RFSL. On 25.06.2015 having received report from RFSL, Vijayawada, he gave final opinion stating that deceased would appear to have died of asphyxia due to throttling.

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(vi) Further investigation was taken up by Sri G. Dasu/LW30, successor of Pw14 in office. He filed charge sheet verifying the investigation done by him as the evidence collected during investigation established that wife of deceased namely Rattamma/A2 in the case developed illicit intimacy with her cousin Kondapalli Veera

Raghavulu/A1 in the case. Deceased suspecting illicit intimacy used to pick up quarrel with A2 frequently. Having vexed with deceased and in order to remove his obstacle for her intimacy with A1 as he is coming in their way, she conspired with A1 and in furtherance of their conspiracy on the night of occurrence as the deceased caught them red-handedly together at the palm oil garden of P.W.6 in whose garden, deceased was working picked up quarrel with him and throttled him to death. To project it as suicide, they have placed liquor bottle, poison tin and a glass in order to screen themselves from the offence committed by them.

Thus, A1 and A2 have committed the offence u/s.302 and 201 r/w.34 of

IPC.

3.On appearance of Accused Nos.1 and 2 having heard them and learned Additional Public Prosecutor, charges U/Sec.302 and Section 201 read with 34 I.P.C. against A1 to A3 are framed, read over and explained to them in

Telugu under Section 228 (2) of Cr.P.C. Accused Nos.1 and 2 pleaded not guilty and claimed to be tried.

4.On behalf of the prosecution P.Ws.1 to 14 examined and Exs.P.1 to

P.16 and M.Os.1 to 5 marked.

5.On closure of prosecution evidence, Accused Nos.1 and 2 are examined under Section 313 of Cr.P.C. explaining the incriminating evidence/circumstances spoken against them. They simply denied the incriminating evidence spoken against them and pleaded not guilty. On their behalf no defence evidence was adduced, but contradictions elicited during cross-examination of P.Ws.2 and 3 are marked as Exs.D1 and D2.

6.P.W.1 is the defacto complainant and mother of the victim. P.Ws.2 and 3 are sister and brother-in-law of the victim. P.Ws.4 and 5 are the neighbours of deceased at Bhimadole. P.W.6 is the owner of palm oil garden.

P.Ws.7 to 10 are circumstantial witnesses. P.W.11 is Medical Officer, District

Head Quarters, hospital, Eluru. P.W.12 is the then SHO, Tadikalapudi P.S., who registered FIR and partly investigated the case. P.W.13 is mediator for

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Sessions Case No.133 of 2018

scene of offence panchanama, inquest and also apprehension of accused.

P.W.14 is the then Inspector of Police, Chintalapudi Circle who investigated the case.

7.Ex.P1 is the report given by P.W.1. Exs.P2 and P3 are relevant portions of 161 Cr.P.C. statements of P.Ws.8 and 10. Ex.P4 is RFSL report.

Exs.P.5 and P6 are postmortem examination report and final opinion given by

PW11. Ex.P7 is FIR. Ex.P8 is scene observation report. Ex.P9 is inquest report. Ex.P10 is rough sketch of scene of crime. Ex.P11 is altered FIR.

Ex.P12 is relevant portion of confessions of accused. Exs.P.13 and P.14 are seizures panchanamas. Ex.P15 is bunch of digital photos along with CD.

Ex.P16 is letter of advice. M.O.1 is Old Tavern whiskey bottle. M.O.2 is Physect

Permethrin insecticide tin. M.O.3 is towel. M.O.4 is Karbon Company cell phone of deceased. M.O.5 isBajaj Discovery 100 CC bearing No.AP16 BV 4382.

8.Now, the points for consideration are:-

i) Whether the death of deceased is homicidal?

ii) Whether A1 and A2 have nexus with death of deceased?

iii) Whether the prosecution has made out its case against A1 and

A2 for the offences under Sections 302 and 201 read with

Section 34 I.P.C.?

9. P O I N T No.1 :

In order to prove the homicidal death of deceased, prosecution examined medical officer as PW11 and inquest mediator as P.W.12 besides

Investigation Officer. It is the case of prosecution that on complaint given by the defacto complainant suspecting the death of deceased having initially registered a case u/s.174 Cr.P.C., conducted inquest over the dead body to know the apparent cause of death and then referred to autopsy to know the exact cause of death as pesticide bottle, liquor bottle and glass were found in the vicinity of scene of crime.

10.Ex.P9 is the inquest report. In Ex.P9 inquest report prepared by

PW12 first Investigation Officer in the presence of blood relatives of deceased, the apparent cause of death of deceased was noted as suicide by consuming poison having disturbed with the conduct of his wife suspecting illicit intimacy to her with somebody or for any other reason not disclosed by any of the blood relatives and witnesses present during the inquest. No external injuries over

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the dead body of deceased as per column No.7 of Ex.P.9 report. In column

No.15, it is averred that on 05.01.2015 evening at about 07.30 P.M., deceased having left the house did not return home on that night and his dead body was found in the palm oil garden of P.W.6. It is further averred that one day prior to that, i.e., on 04.01.2015, deceased having noticed his wife/A2 chatting with another in a phone and picked up quarrel with her and in-laws and threatening to commit suicide, he brought an insecticide tin to the house and on seeing the same, his neighbours admonished and snatched the poison tin from him. Later, the same was also informed to his sister and brother-in-law testified as P.Ws.2 and 3 who in turn came and subsided the dispute arose in between deceased and his wife and in-laws and left. Thus, in the circumstances, Ex.P9 inquest report is not very much helpful to conclude that the death of deceased is homicidal.

11.PW11 medical officer who conducted postmortem examination over the dead body of deceased and gave final opinion on the exact cause of death on receipt of RFSL report analyzing the material objects preserved during postmortem examination deposed that he conducted postmortem examination at 02.00 P.M., on 06.01.2015 within 6 to 8 hours after tracing dead body in the fields of P.W.6. During postmortem examination, he did not notice any kind of external injuries over the dead body. Even on cut section also, he did not notice any kind of injuries. He preserved viscera for analysis by RFSL to know the exact cause of death and on receipt of report from RFSL, he gave final opinion as to cause of death opining that the deceased died due to consumption of Physect Permethrin insecticide poison basing on Ex.P4 RFSL report, dated 24.04.2015. Evidence spoken by him is supported by Exs.P.5 and P.6 preliminary and final report given by him. His evidence as to the exact cause of death given basing on the RFSL report remained unchallenged and unshattered.

12.PW13 who filed charge sheet even without going through the postmortem examination final report by mentioning that the death of deceased is asphyxial though the cause of death as per the final report given by PW11 is otherwise. It seems successor in office to PW13 filed charge sheet mentioning the cause of death as asphyxial basing on the confessions allegedly made by A1 and A2 on their apprehension which has no evidentiary value. Thus, in the circumstances it can be safely said there is no cogent evidence to establish the homicidal death of the deceased as submitted by the counsel for the accused.

Prosecution on whom the burden lies to prove the homicidal death of deceased

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Sessions Case No.133 of 2018

has miserably failed. Admittedly no eyewitnesses to the death of deceased and case of prosecution is totally rested on circumstantial evidence. Hence, in the circumstances this point is answered against the prosecution.

13. POINT No.2:-

In order to prove the nexus of accused with the death of deceased, prosecution relied on the evidence of mother, brother and sister of deceased who are admittedly circumstantial witnesses besides on the confession allegedly made by A1 and A2 on their apprehension. P.W.1 mother of deceased is resident of Bhimadole. Admittedly by the time of death of deceased; he was residing at Tadikalapudi at his in-laws place along with A2 and his children.

P.W.1 in her evidence stated having observed brandy bottle, insecticide tin and biryani packet near the dead body she suspected foul play in the death of her deceased son. He might have killed at home by A2 in conspiracy with her paramour known as Bujji resident of Tadikalapudi. She further stated A2 developed illicit intimacy with her cousin and for that reason, she got killed her son through Tadikalapudi villagers.

14.She is cross-examined. During her cross-examination, it is elicited she does not know A1. She vaguely stated she might have seen cousin of A2 namely Bujji, but she does not remember his face and she cannot say whether

A1 herein is said Bujji or not. It is elicited that in Ex.P1 report, she stated that her son committed suicide by taking poison in view of the disputes with his wife A2 and did not state about A2’s illicit intimacy as the reason for death of her son and about her son’s killing at the instance of A2. Evidence spoken by her is only hearsay. It has no evidentiary value.

15.P.W.2 none other than the sister of the victim deposed 3 days prior to death, her deceased brother telephoned her and complained against his wife stating that she developed illicit intimacy with her cousin Veera Raghavulu/A1 and informed that he lost the hope of his life and he may not be seen thereafter. Immediately, herself and her husband P.W.3 rushed to

Tadikalapudi and subsided the issue on the assurance given by the wife of deceased/A2 expressing her repentance for her conduct confessing her guilt.

On the next day morning, they left the place of deceased. She further stated on the date of death of deceased in the early hours at 05.00 A.M., daughter of deceased telephoned and enquired her about the whereabouts of deceased. As her deceased brother having decided to commit suicide by consuming poison also shown the pesticide bottle during her visit to the house of deceased three

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Sessions Case No.133 of 2018

days prior to the death, she took it from him and handed over to one Bhagyam requesting her to keep a watch on deceased and A2. Later, she telephoned to her relatives to find out the whereabouts of deceased but in vain. On same day at about 07.00 A.M., villagers of Tadikalapudi telephoned and informed about the death of deceased in the fields of P.W.6. Then, they rushed and seen the dead body. She suspected the death of deceased in the hands of A1 and A2 as he became obstacle for their illicit intimacy.

16.It is manifest from the evidence spoken by her and the inquest report prepared immediately after the death of deceased that there is no whisper about A1 either in the statement made by her before the first

Investigation Officer or during inquest enquiry. During inquest enquiry, vaguely she stated that A2 had developed some illicit intimacy with another without disclosing those particulars. It is also manifest that she had not seen

A1 alleged paramour of A2 at any point of time. Evidence spoken by her is also on suspicion and not very much helpful to the prosecution to establish the nexus of accused with death of deceased.

17.P.W.3 none other than husband of P.W.2 also deposed in same lines. In the statements given by him before the Investigation Officer during his examination or during the inquest enquiry, he did not speak anything against A1. Evidence spoken by him that the deceased complained to him about illicit intimacy of A2 with A1 and her failure to repent in spite of her admonition time and again is conspicuously absent in the statement made by him before the Investigation Officer or during the inquest enquiry made by the first Investigation Officer. It seems he had spoken for the first time against A1

before this court basing on the information gathered from unknown sources.

Evidence spoken by him that he had seen A1 and A2 together and admonished

A2 also by him is an invention and it appears in order to give colour of reality to the identification of A1 by him for the first time during trial deposed falsehood. Evidence spoken by him is not inspiring any confidence. During his cross-examination, the omissions are pointed out were also elicited but he simply denied. P.Ws.12 and 14 Investigation Officers who examined and recorded the statements of P.W.3 also categorically admitted the omissions during the cross-examination of P.W.3.

18.Evidence spoken by P.Ws.4 and 5 who are circumstantial witnesses is also hearsay. Both of them do not know even the identity of A1 as both are residents of Bhimavadole, native place of deceased. P.W.6 is the

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owner of palm oil garden in which the dead body of deceased was traced. He deposed in his evidence that he learned about the altercation ensued in between A2 and deceased three days prior to his death on account of her illicit intimacy with A1. On that day, A2 left to her parents place. On the intervention of himself and other elders, A2 returned to the house of deceased.

During the altercation ensued deceased also threatened to commit suicide by consuming poison but he was consoled by the elders. One day prior to the date of noticing the dead body of deceased he left the house during night time at about 08.00 P.M., and his dead body was found in the fields. His enquiries revealed that A1 and A2 conspired and killed the deceased in view of their illicit intimacy as he became obstacle.

19.Evidence spoken by him as to the role of accused in killing deceased and their conspiracy is also hearsay. He did not disclose through whom he came to know that A1 and A2 are instrumental in death of deceased.

Evidence spoken by him is also not very much helpful to the prosecution in the circumstances to establish the nexus of accused with death of deceased.

20.P.W.7 neighbour of deceased at Tadikalapudi did not speak anything against A1 and A2. His evidence is not at all incriminatory against the accused. P.W.8 another neighbour and running a kirana shop also did not speak anything against the accused. Though he is declared as hostile and cross-examined, nothing is elicited except marking the relevant portion of his 161 Cr.P.C. statement as Ex.P2.

21.P.W.9 another circumstantial witness is testified to prove the illicit intimacy in between A1 and A2. She stated that A1 is cousin of her husband and brother by courtesy to her. A1 and A2 used to attend coolie works with her during maize candles plucking season before death of deceased. Having learnt the illicit intimacy in between A1 and A2, she admonished and asked them not to come to coolie works along with her three months prior to the death of deceased. Having learnt about the death of deceased in the fields, she rushed and seen the dead body of deceased.

22.She is cross-examined and during her cross-examination, it is elicited that she had not seen the illicit intimacy red-handedly and she had no personal knowledge about it. She learnt about it through others only. She is not immediate neighbour either to deceased or the accused. Evidence spoken by her as to the alleged illicit intimacy in between A1 and A2 has no evidentiary

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value as it is only hearsay. Even assuming for a moment that the illicit intimacy between A1 and A2 is gospel truth as spoken by her, it cannot be said that they are responsible for death of deceased more particularly in view of the threat given by deceased three days prior to the death to commit suicide by taking poison and also came prepared to the house with pesticide tin as narrated by his sister and brother-in-law at his house. Evidence of P.W.9 is also not very much helpful in the circumstances to establish the nexus of accused with death of deceased.

23.PW10 is a star witness. She is examined by the prosecution to prove that A1 and A2 were seen together proceeding towards the palm oil garden and deceased following them within no time. But she did not support the case of prosecution. She simply stated on enquiry made by police about the death of deceased, she pleaded ignorance and police collecting her particulars left. She is declared hostile and cross-examined. During her cross- examination, nothing is elicited to doubt her credence except marking the relevant of her 161 Cr.P.C. statement as Ex.P3. Evidence spoken by her is also not very much helpful. Thus in the circumstances, the only evidence that is incriminatory against the accused is confession allegedly made by A1 and A2 admitting their guilt on their apprehension one week after the occurrence.

24.In order to prove the confession and recovery, mediator is testified as PW13 and the Investigation Officers who recorded the confession and recovered M.Os.1 to 5 as P.Ws.12 and 14. All of them categorically stated in their evidence that A1 and A2 made confession admitting that they killed deceased by throttling him to death as they were caught red-handedly in the palm oil garden of P.W.6 when he tried to attack on A2 in angry mood for her togetherness with A1. As per the confession, a scuffle ensued in between A1 and deceased and in that scuffle having pushed the deceased to the ground, he sat on him. Then himself and A2/wife of deceased with a towel carried by him throttled him to death and then, securing the pesticide bottle placed it nearby the dead body pouring some part of the pesticide in brandy bottle and glass and also on his mouth to project it as suicide.

25.Confession allegedly made by the accused spoken by P.Ws.12 to 14 is not corroborating with medical evidence. As per the medical evidence deceased died due to consuming poison. If the confession allegedly made by the accused is true, the cause of death mentioned in postmortem examination report would be otherwise. PW11 in final report given by him on exact cause of

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death and also in his evidence categorically stated that the deceased died by consuming poison. If confession of the accused is voluntary and it is genuine, no likelihood of causing death of deceased on account of consuming poison and his death would be with asphyxia due to throttling with a towel allegedly seized at the instance of A1 under a cover of mediators report from the scene of crime spoken by both P.Ws.12 to 14. Thus, in the circumstances the veracity of the confession allegedly made by the accused before P.Ws.12 to 14 and recovery of towel at the instance of accused from the scene of crime are to be doubted.

26.It is apparent from the charge sheet filed that the death of deceased was asphyxial. If really, deceased was throttled to death and scuffle ensued in between deceased and A1 before he was throttled to death, every likelihood of causing some kind of visible injury to the dead body of deceased, but the inquest and postmortem examination report are otherwise. PW11 medical officer in his evidence categorically stated that he did not notice any kind of external injuries over the dead body and further even on cut section, he did not notice any internal injuries. If really, the deceased is throttled to death, likelihood of causing some damage to hyoid bone. Absence of any kind of injuries on the dead body of the deceased ruled out the confession said to have been made by A1 and A2 on their alleged apprehension. It seems basing on the oral evidence and illicit intimacy allegedly developed in between A1 and A2, the accused are charge-sheeted. There is no legal evidence in proof of the accusation made against the accused that they throttled the deceased to death to get rid of him as he became obstacle for their illicit intimacy.

27.It is well settled principle that suspicion however strong is not a substitute to legal evidence. Though the case of prosecution is totally rested on circumstantial evidence and the prosecution is bound to place cogent evidence to establish the chain of circumstances. The prosecution failed to prove the same by establishing each and every link on which it relied. Absolutely, no legal evidence to establish the nexus of accused 1 and 2 with the death of deceased. Hence, in the circumstances, this point is answered in favour of the accused 1 and 2 and against the prosecution.

28. POINT No.3:

Accused 1 and 2 are charged u/s.302 and 201 r/w.34 of IPC. In order to prove the offence u/s.302 of IPC, the prosecution has to prove that:

(i) the death of a human being has actually taken place;

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(ii) such death has been caused by or in consequence of the act of the accused;

(iii) such act was done with the intention of causing death; or it was done with the intention of causing such bodily injury as (a) the accused knew to be likely to cause death, or (b) was sufficient in the ordinary course of nature to cause death; or the accused caused death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.

In cases in which death causes from violence used, and there is no evidence of intention other than what is to be inferred from the accused’s act, it is necessary to consider whether the accused must have known, when committing the act, that –

(a) It might possibly, but was unlikely to cause death or injury sufficient in the ordinary course of nature to cause death;

(b) It was likely to cause death or injury sufficient in the ordinary course of nature to cause death;

(c) It probably would cause death or injury sufficient in the ordinary course of nature to cause death;

If the act falls within the first category, it would not amount to more than hurt or grievous hurt; if under the second category, it would be culpable homicide not amounting to murder; if under the third category, it would amount to murder.

29. In order to prove the offence u/s.201 of IPC, the prosecution has to prove

(i) that an offence has been committed. Mere rumour or suspicion is not sufficient. Strong suspicion cannot take the place of proof.

(ii) that the accused knew, or had reason to believe, that such offence had been committed.

(iii) that the accused caused evidence thereof to disappear or gave false information respective such offence, knowing or having reason to believe the same to be false.

(iv) that the accused did the act with intent to screen the offender from legal punishment. The following must be proved as an aggravating circumstance.

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(v) that the offence in question was punishable with death, or imprisonment for life or with imprisonment extending to ten years.

30. It is manifest from the evidence let in by the prosecution that except the hearsay evidence of blood relatives of deceased and confession of accused inconsistent with medical evidence on exact cause of death which prevails there is no legal evidence to establish that the accused are perpetrators of the crime. Suspicion however strong, it may be is not substitution for legal evidence. Prosecution failed to make out case against accused by establishing the chain of circumstances on which it relied as admittedly no direct evidence.

31. In the facts and circumstances, from the evidence let in by the prosecution, it can be safely said that the prosecution miserably failed to make out the case against the accused for the offences u/ss.302 and 201 r/w.34 of

IPC. No grounds to invoke either Section 302 IPC or 201 IPC against any of the accused.

32. In the result, the accused 1 and 2 are found not guilty for the offences Under Sections 302 and 201 r/w.34 of I.P.C. They are acquitted

Under Section 235(1) Cr.P.C. Bail bonds of A1 and A2 shall remain in force for a period of six months and thereafter shall stands cancelled as contemplated u/s.437-A Cr.P.C.

M.Os.1 to 4, i.e., old Tavern empty whisky bottle, Physect Permethrin insecticide empty bottle, Towel and Carbon Cell phone in damaged condition are ordered to be destroyed and MO.5 Bajaj Discovery 100 CC bearing No.AP16

BV 4382 is ordered to be returned to its registered owner on expiry of appeal time.

Dictated to the Stenographer Grade – I, transcribed by him, corrected and

pronounced by me in open Court, this the 19 th day of February, 2021.

Sd/- P.Prabhakar.

II Additional Sessions Judge, West Godavari, Eluru

APPENDIX OF EVIDENCE:

WITNESSES EXAMINED:

FOR PROSECUTION

P.W.1 - Bhimadole Venkayamma.

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Sessions Case No.133 of 2018

P.W.2 - Srikallu Nirmala.

P.W.3 - Srikallu Chiranjeevi.

P.W.4 - Bhimadole China Durgayya.

P.W.5 - Bhimadole Veera Prathap.

P.W.6 - E. Venkata Srinivas.

P.W.7 - J. Bhagyam.

P.W.8 - Korukonda Somaiah.

P.W.9 - Kondapalli Vimala @ Bujjimma.

P.W.10 - Maddula Ratthamma.

P.W.11 - Dr. N. Rajendra Prasad.

P.W.12 - K. Guravayya.

P.W.13 - Mulaparthi Arun Kumar.

P.W.14 - G. Srinivas.

FOR DEFENCE :- N O N E.

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P.1/06.01.2015 : Report given by P.W.1.

Ex.P.2/ - : 161 Cr.P.C. statement of P.W.8.

Ex.P.3/ - : 161 Cr.P.C. statement of P.W.10.

Ex.P.4/24-04-2015 : RFSL report.

Ex.P.5/06-01-2015 : Preliminary postmortem examination report.

Ex.P.6/-- : Final report.

Ex.P.7/06.01.2015 : F.I.R.

Ex.P.8/06-01-2015 : Scene observation report.

Ex.P.9/06-01-2015 : Inquest report.

Ex.P.10/06-01-2015 : Rough sketch.

Ex.P.11/-- : Altered report with confession panchanama of A1 and A2

Ex.P.12/12.01.2015 : Disclosure statement of A1 about MO3 Towel.

Ex.P.13/-- : Seizure panchanama.

Ex.P.14/-- : Seizure panchanama.

Ex.P.15/-- : Digital photos with CD.

Ex.P.16/ - : Letter of advice.

FOR DEFENCE:

Ex.D.1/-- : Relevant portion of 161 Cr.P.C. statement of P.W.2.

Ex.D.2/-- : Relevant portion of 161 Cr.P.C. statement of P.W.3.

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Sessions Case No.133 of 2018

MATERIAL OBJECTS MARKED

M.O.1 - Old Tavern Empty whisky bottle. M.O.2 - Physect Permethrin insecticide empty bottle M.O.3 - Towel. M.O.4 - Damaged Karbon cell phone. M.O.5 - Bajaj Discovery 100 CC bearing No.AP16 BV 4382. Id/- P.Prabhakr.

II Additional Sessions Judge, West Godavari, Eluru.

II Additional Sessions Court,

Sessions Case No.133 of 2018

TABULAR FORM ANNEXED TO THE JUDGMENT IN S.C.No.133/2018 ON THE

FILE OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, WEST GODAVARI,

ELURU UNDER RULE 354 OF THE CRIMINAL RULES OF PRACTICE.

1. Sessions Case No. and : S.C.No.133/2018 and P.R.C. P.R.C.No. with name of No.8/2016 on the file of Judicial the committal Court Magistrate of I Class, Chintalapudi.

2. Name of the Police : The State, Inspector of Police, Station and Crime No. Chintalapudi Circle.

3. Description of the : 1.Kondapalli Veera Raghavulu, Accused: S/o. Raju, 24 yrs., SC Madiga, SC Colony, Tadikalapudi Village, Kamavarapukota Mandal (A1).

2.Bhimadolu Rattamma, W/o. late Srinivasu @ Srinu, 35 yrs., SC Madiga, Originally native of Bhimadole village, Now at Tadikalapudi Village, Kamavarapukota Mandal (A2).

4. Date of

Offence : 06-01-2015 Complaint : 06-01-2015 Apprehension : 12-01-2015 Release on bail : 17-04-2015 Committal : 10-04-2018 Commencement of trial : 29-07-2019 Closure of Trial : 09-02-2021 Sentence or Order : 19-02-2021

In the result, the accused 1 and 2 are found not guilty for the offences

Under Sections 302 and 201 r/w.34 of I.P.C. They are acquitted Under

Section 235(1) Cr.P.C. Bail bonds of A1 and A2 shall remain in force for a period of six months and thereafter shall stands cancelled as contemplated u/s.437-A Cr.P.C.

M.Os.1 to 4, i.e., old Tavern empty whisky bottle, Physect Permethrin insecticide empty bottle, Towel and Carbon Cell phone in damaged condition are ordered to be destroyed and MO.5 Bajaj Discovery 100 CC bearing No.AP16

BV 4382 is ordered to be returned to its registered owner on expiry of appeal time.

5. Explanation for the delay. : No avoidable delay

II Additional Sessions Judge, West Godavari, Eluru. II Additional District Court, West Godavari, Eluru,

Dated : 19-02-2021.

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Copies to:

1.The Registrar (Judicial) High Court of Andhra Pradesh, Amaravathi (through C.D).

2.The District Collector, West Godavari District, Eluru.

3.The Judicial Magistrate of I Class Court, Chintalapudi.

4.The Superintendent of Police, West Godavari, Eluru.

5.The Director of Prosecution, Vijayawada.

6.The Additional Public Prosecutor, West Godavari, Eluru.

1

IN THE COURT OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE –CUM

SPECIAL COURT FOR TRIAL OF OFFENCES AGAINST WOMEN,

WEST GODAVARI AT ELURU.

Present: Sri P.Prabhakar, II Addl. District & Sessions Judge, Eluru FAC/ V Addl. District Judge-cum – Spl. Court for trial of offences against women, Eluru.

Thursday, the 14thday of November, 2019.

SESSIONS CASE No.124 of 2014

1.Name of the Accused and :1.TummalapalliSatyanarayana,S/o Particulars Satyam, Aged 80 years, Rajaka, Purushottapalli.

2.Tummalapalli Annavaram, S/o Satyam, Aged 48 years, Rajaka, Purushottapalli.

3.TummalapalliSreenu,S/o Satyanarayana, Aged 32 years, Rajaka, Purushottapalli.

4.Tummalapalli Venkatarao @ Musalaiah, S/o.Satyam, Aged 63 years, Rajaka, Purushottapalli.

5.SamarthapattapuManikanta,S/o Laxmanarao, aged 18 years, Rajaka, Purushottapalli.

6.SamarthapattapuPullaiah,S/o Butchaiah, Aged 47 years, Sampatnagar, Rajanagaram Mandal, East Godavari District.

7.SamarthapattapuSreenu,S/o Butchaiah, Aged 40 years, Rajaka, Purushottapalli.

8.Samarthapattapu Suresh Kumar, S/o Satyanarayana, Aged 35 years, Rajaka, Purushotapalli.

2.Charge:U/Sec. 448 against A1 to A8, Sec.323 of IPC against A2 and A3, Sec.354 against A3 and A4 and Sec.506 r/w 34 of IPC against A1 to A8.

3.Plea of accused:Pleaded not guilty

4.Finding of the Judge and :Found not guilty order Sentence

5.Theprosecutionis :Additional Public Prosecutor conducted by 2

6.The accused is defended :Sri M.Vasudevudu and Sri byN.V.Satyanarayana

7.The case committed by :Additional Judicial Magistrate of First Class, Nidadavole.

8.Date of Sentence or Order :In the result, A1 to A8 are found not guilty for the offences U/Sec. 448 of IPC against A1 to A8, Sec.323 of IPC against A2 and A3, Sec.354 of IPC against A3 and A4 and Sec.506 r/w 34 of IPC against A1 to A8. They are acquitted under Sec.235(1) of Cr.P.C. Bail bonds of accused 1 to 8 shall remain in force for a period of six months and thereafter shall stand cancelled as contemplatedU/Sec.437-ACr.P.C. Unmarked property if any is ordered to be destroyed after expiry of appeal time.

This case is coming on 1-11-2019 for final hearing before me in the presence of Additional Public Prosecutor for the State and of Sri

M.Vasudevudu and Sri N.V.Satyanarayana, Advocates for Accused 1 to

8 and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

SHO, Samisragudem PS filed charge sheet against Accused 1 to 8 for the offences punishable U/Secs.447, 323, 324 354, 506(2), 109 r/w 34 of IPC in Crime No.123/2012 and the case of the prosecution is as follows:

2.On 28.12.2012 at about 1.30 PM PW.1 rushed to police station and gave statement stating that A1 and A4 are his brothers. A2 and A3 are sons of

A1. A5 and other accused are grandsons of A1. He purchased a land from his sister about 10 years ago and cultivating the said land and in possession of it.

There is dispute in between him and accused 1 and 4 with regard to drawing the joint bore well water. He further stated that on that day he along with his wife PW.2 Tummalapalli Satyavathi along with coolies were ploughing land. At that time all the accused with common intention to assault them and to necked out them from the land at 11.00 AM trespassed into his land and disputed their right over the land being ploughed by them. They also beat

PWs.1 and 2 with hands and kicked them indiscriminately. A2 and A3 hacked

PW.1 with a knife on head and also right hand wrist, right leg and caused bleeding injuries. On intervention of PW.2 she was also attacked by them by hacking her and caused injuries on right hand wrist and A3 beat her with stick.

A4 pulled the sarre of PW.2 and pressed her breast outraging her modesty. On hearing her cries Mindala Ganesh, Samarthapattapu Suraiah, Ballabattula 3

Ganapathi PWs.3 to 5 rushed and shifted them to Samisragudem PS in an auto of Tummalapalli Baburao/PW.6.

3.Basing on the above complaint LW.8/Head Constable of

Samisragudem PS who is no more registered the same in crime No.123/2012

U/Secs. 447, 323, 324, 354, 506 (2), 109 r/w 34 of IPC and took up investigation.

4.During course of investigation he visited scene of offence examined and prepared report and rough sketch. Later securing the presence of PWs.1 to 6 examined and recorded their statements in part-II CD. On registering the case PWs.1 and 2 are referred to Government Hospital, Nidadavole for treatment. Medical officer, Government hospital, Nidadavole/PW.7 having examined PWs.1 and 2 issued wound certificate stating that the injuries sustained by them are simple in nature with blunt object. Accused were granted Anticipatory bail in Crl.MP.No.205/2012 by Addl. District and Sessions

Judge, Kovvur on 27.2.2013 and they surrendered before Judicial Magistrate of

I Class, Nidadavole.

5.Evidence collected during investigation established that due to land and water disputes accused 1 to 8 in furtherance of their common intention trespassed into the land of PWs.1 and 2 and attacked them besides outraging the modesty of PW.2 causing criminal intimidation to them at the behest of A1 and committed offences under sections 447, 323,324, 354, 506(2), 109 r/w 34

IPC with which they are charged. Hence, charge sheet.

6. On appearance of accused 1 to 8 having heard them and learned

Addl.PP this court framed charges U/Sec.448 against A1 to A8, Sec.323 of IPC against A2 and A3, Sec.354 against A3 and A4 and Sec.506 r/w 34 of IPC against A1 to A8 read over and explained to them in Telugu U/Sec.228 Cr.P.C., for which the accused 1 to 8 pleaded not guilty and claimed to be tried.

7.During course of trial, prosecution examined PW.1 to PW.8 and Exs.P1 to P6 marked. On closure of prosecution evidence accused 1 to 8 are examined U/Sec. 313 Cr.P.C., explaining the incriminating circumstances against them. Accused 1 to 8 pleaded not guilty denying the incriminating evidence spoken against them.

4

8.On behalf of accused no defence witnesses were examined but a contradiction elicited during cross examination of PW.1 is marked as Ex.D1.

9.PWs.1 and 2 are victims. PWs.3 to 5 are eye witnesses to the occurrence. PW.6 is driver of auto in which victims were shifted to hospital.

PW.7 is medical officer. PW.8 is the then SI of police who filed charge sheet on verifying the investigation done by LW.8 who is no more.

10.Ex.P1 is statement of PW1 recorded by LW.8 being SHO.

Samisragudem PS. Ex.P2 is relevant portion of 161 Cr.P.C. statement of PW.3 recorded by SHO, Samisragudem PS. Exs.P3 and P4 are wound certificates of

PW.2 and PW.1 . Ex.P5 is FIR in crime no.123/12 of Samisragudem PS. Ex.P6 is rough sketch. Ex.D1 is contradiction marked during cross examination of

PW.1.

11. Heard the learned Additional Public prosecutor and the counsel for the accused.

12.Now the point for consideration is :

Whether the prosecution has made out the case against accused 1 to 8 for the offences U/Sec. 448 of IPC against A1 to A8, Sec.323 of IPC against A2 and A3, Sec.354 of IPC against A3 and A4 and Sec.506 r/w 34 of IPC

against A1 to A8 beyond reasonable doubt?

13.Point : PW.1 defacto complainant/Victim in the case deposed in the month of December 2012 at about 11.00 AM himself and his wife were attending work in Ac.0.60 cents of land purchased by him from his sister about more than 10 years ago, A1 to A5 came to the fields claiming right in that land. At that time A2 was armed with knife. A3 was armed with sickle. A1 to

A5 attacked on him as he denied their right in the land purchased by him. In that attack A2 hacked him with knife on his head, A3 hacked him with sickle on his both hands. On seeing the same, his wife/PW.2 rushed and came to his rescue. She was also attacked by accused with knife and sickle on her hands.

A1 to A5 pulled the saree of his wife/PW.2 and they outraged her modesty in different ways by touching private parts. He further deposed A6 to A8 along with A1 to A5 instigated A1 to A5 to kill them. Then escaping from the clutches of accused they rushed to police station. Police referred them to 5

Government hospital for treatment after taking his statement and they obtained his signature on complaint. Himself and his wife were in hospital for two days for treatment. After discharge, saree and clothes of his wife were also handed over to police. Ex.P1 is statement given by him before police.

14.PW.2 none other than wife of defacto complainant/victim deposed on 28.12.2012 at about 11.00 AM herself and PW.1 were attending work in the fields. A1 to A5 came to the fields claiming right over the land. Among them

A2 and A3 attacked PW.1 with knife and crowbar. On seeing them immediately, she rushed to his rescue and obstructing her intervention A2 sat on her stomach. A5 hacked on her left hand with knife. A3 torn her saree and blouse. All of them abused them claiming right over the land. LWs.3 and 4 testified as PWs.3 and 4 on seeing the same rushed to their rescue. PW.4 was threatened by A2 with dire consequences. She sustained bleeding injuries on her hand. PW.1 sustained injuries on head, hands and also on his legs. From there she rushed to police station in an auto of PW.6. On the way to village from fields A6 to A8 were seen instigating the other accused to kill them. Then they reported the matter to police and they were referred to hospital. They took treatment as inpatient for two days. Police also seized her saree and blouse.

15.PW.7 is medical officer who treated PWs.1 and 2. As per the evidence spoken by him on examination of PW.1 he found a nail scratch on middle of the head 1 ½ x ¼ vertically placed red in colour. A bruise on right arm ½ x ½ inch with red in colour. A bruise on right thigh 1/1 x 1/1 inch with red in colour.

Age of the injuries is approximately 3 to 6 hours prior to his examination.

16.On examination of PW.2 he noticed a scratch on the middle of head 1 ½ x ¼ inches vertically placed with red colour. Abrasion on right arm ½ x ½ inch with red colour. A nail scratch on left side of neck ½ x ½ inch with red colour and horizontally placed.

17.He examined them on 28.12.2012 at 2.30 PM. The injuries mentioned above might have been caused with blunt object. Exs. P4 and P3 are the respective wound certificates of PWs.1 and 2.

18.During his cross examination it is elicited both did not reveal the names of the persons who caused the injuries. They did not even say whether they are known or unknown persons. It is further elicited that the injuries 6 mentioned in Ex.P4 and P3 are one and the same. Suggestion put to him that the injuries mentioned in Exs.P3 and P4 are caused by self infliction and they are issued at the instance of PWs.1 and 2 without noticing any injuries and their examination by him is simply denied.

19.It is manifest from the evidence spoken by PWs.1 and 2 that their ocular evidence is not corroborated with the medical evidence. As per the evidence of PW.1, A2 and A3 attacked on him with knife and sickle, whereas

PW.2 stated that they attacked PW.1 with knife and crowbar and she was hacked with knife by A5 on her left hand. No corresponding injury on left hand of PW.2 as per Ex.P3 wound certificate issued by PW.7. As per the evidence of

PW.2, PW.1 sustained injuries on hand and on his legs. Whereas Ex.P4 wound certificate of PW.1, PW.1 sustained simple nail scratch on the head and bruise on right arm and right thigh. As spoken by PWs.1 and 2 if they were attacked by accused with knife, sickle and crowbar every likelihood of receiving incised wounds and abrasions by them but not the injuries that are noted in Exs.P3 and P4.

20.It is also manifest from Exs.P3 and P4 that injuries of Pws.1 and 2 in

Exs.P3 and P4 are one and the same. It is humanly impossible to any culprits to cause same kind of injuries to the two victims in the occurrence. It is one of the strong circumstances to doubt the genuineness of Exs.P3 and P4 and its authentication. As per the evidence of PW.1 A5 had not inflicted any injury to

PW.2 and according to him A5 pulled the saree of PW.2 outraging her modesty in different ways. A6 and A8 who came along with A1 to A5 instigated them to kill PWs.1 and 2. Whereas as per the evidence of PW.2 A6 did not accompany

A1 to A5 to the fields and they were seen after the occurrence while leaving the fields on their way and observed their instigation to the other accused to kill them and further she was hacked by A5 on her left hand with a knife but no such injury to PW.2 on her left hand and it is manifest from Ex.P3 wound certificate.

21.Both Pws.1 and 2 are cross examined at length on behalf of accused.

During cross examination of PW.1 it is elicited disputed Ac.0.60 cents of land originally belonged to her mother Tummalapalli Gangamma who died intestate, leaving behind her husband and children. They are 3 brothers and 5 sisters. Partitioned the land of their father equally. The property of his mother was not partitioned. Having stated so he volunteered and added that his 7 mother’s land was given to his sisters on oral instructions of his mother by his father who died four or five years after death of his mother. Denying the suggestion put to her that the disputed Ac.0.60 cents of land is still in the name of his mother as per revenue records. He asserted it is in his name but he did not handover any records to police to show that the land is mutated in his name or in proof of giving that land by her mother to other sisters. She pleaded ignorance of the suit filed by his brother-in-laws A.6 and A.7 against him for deliver of possession of the land. It is further elicited disputed Ac.0.60 cents is adjoining to the other Ac.0.40 cents of land near the land of

Samarthapattapu Anjiliyya. Lands of one Ganapathi are also in the vicinity of disputed Ac.0.60 cents. He knew Jagatham Seshayya of their village who used to lead the villagers to police stations and Courts to lodge cases. He also knew Kothuri Prasad of the village, who is rice mill owner. Having denied the suggestion put to him about the settlement of land disputes along with them by Kothuri Prasad and others he admitted that during the panchayat documents were prepared on stamp papers and stamp papers are with Kothuri

Prasad. Suggestion put to him that during Panchayat accused expressed their readiness to purchase their Ac.0.40 cents of lands adjacent to the disputed

Ac.0.60 cents, but he did not agree for it is denied. It is suggested after the death of his father himself and his brothers A.1 and A.4 divisioned the land equally in oral partition and he was allowed by A.1 and A.4 to cultivate their share of Ac.0.40 cents on lease, as it was adjacent to his lands and as he committed default, in payment of lease amount, disputes arose among them.

It is also suggested that A.1 to A.8 had not entered into the disputed land in the month of December 2012 and nothing had happened to him in their hands, much less A.1 to A.5 at the instigation of A.6 to A.8. It is further suggested A1 and A4 are having equal right in disputed land along with him and in order to avoid, their share, he lodged false complaint and brought into existence the Sale Deed for the disputed extent. He simply denied the suggestions put to him volunteered and he can produce the same, if advised.

He also denied the suggestion that his sale deed said to have been executed by his sisters is not binding on A.1 and A.4 and it is invalid document.

22.As per the statement made by him during examination by investigation officer no specific overt acts as to possession of knife and sickle by A2 and A3 is mentioned and also the specific overt acts attributed during his evidence to each of the accused. It is suggested he did not tell before police about possession of knife and sickle by A2 and A3. Having denied the 8 suggestion he duly admitted his failure in attributing the specific overt acts against each of the accused. As he stated before investigation officer during his examination that A6 to A8 were noticed by them on the way to police station but denied during his cross examination relevant portion of statement is confronted and it is also marked as Ex.D1. It is further elicited PW.6 in whose auto they allegedly rushed to PS with injuries is son to him by courtesy.

It is suggested to grab the share of land of accused to threaten them he lodged false case is imply denied. It is suggested A.6 and A.7 belong to

Sampath Nagar of East Godavari District and he had also land disputes with

A.6 and A.7. It is suggested at the behest of Seshayya litigant of village, case is foisted with self inflicted injuries. Suggestions put to him are simply denied.

23.During cross examination of PW.2 it is elicited houses of A.1 to A.5 and

A.8 are in same street in the village. Her husband used to cultivate the lands of her brothers and on that score disputes arose and those disputes were also settled long back. They don’t have any disputes with A.1 and A.4, except with regard to the disputed Ac.0.60 cents. They are claiming equal share in Ac.0.60 cents of land purchased by his husband. It is also elicited Panchayat was held for the disputed Ac.0.60 cents of land. Suggestion put to her that during panchayat land dispute was not settled as A.1 and A.4 refused to part their

Ac.0.40 cents for the price offered by PW.1 and foisting false case to grab the land of A1 and A4 is simply denied. It is also suggested that they did not receive any kind of injuries in the hands of any of accused and case is foisted is simply denied.

24.PW.3 testified as circumstantial witness who allegedly assisted PWs.1 and 2 along with others in shifting them to the village and then to police station turned hostile. He did not support the case of prosecution. Though he is declared hostile nothing could be elicited to doubt his credence except marking relevant portion of 161 Cr.P.C., statement as Ex.P2.

25.PW.4 is a worker allegedly engaged by PWs.1 and 2 to do labour work on the date of occurrence. He simply deposed that on the date of alleged occurrence PW.1 alone was working with him in the fields. At about 10.00 AM

A1 to A4 came to the fields. On seeing them PW.1 approached A1 to A4 and altercation and scuffle was ensued in between them. On direction given by A1 to A4, he left the fields for lunch. He did not intervene. He did not observe whether A1 to A4 carried any objects with them as he became panic. He did 9 not return to fields after lunch apprehending danger. Pleading ignorance of the incidents happened later disowning his examination by investigation officer.

26.Evidence spoken by PW.4 as to report allegedly presented along with

PW.1 on the date of occurrence is throwing very much doubt on the very presence of PW.2 in the fields. He categorically stated PW.1 was alone in the fields at that time. His evidence is not corroborated with the evidence spoken by PW.1. He is cross examined on behalf of accused. During his cross examination it is elicited A.6 and A.7 are brothers by courtesy to him but he did not know the land disputes in between A.6 and A.7 with PW.1 with regard to cultivation of their lands on lease. It is elicited land in dispute is said to be of the mother of A.1, A.4 and PW.1. He did not know the family affairs of PW.1,

A.1 and A.4. It is suggested he is close to PW.1 and to help him he deposed false and supported the case of prosecution in part. It is further suggested as the advice given by him to A6 and A7 in the disputes arose among A6, A7 with

PW.1 with regard to land disputes is not heeded by them he bore grudge against them is simply denied.

27.Evidence spoken by PW.4 is not very much helpful in the facts and circumstances as it is not corroborated with the evidence of PWs.1 and 2 and on the other hand it is quite inconsistent with their evidence throwing very much doubt on the genesis of the case of prosecution.

28.PW.5 is tractor driver. He deposed on 28.12.2012 at about 11 AM, while he was ploughing the fields of PW.1 with his tractor on the instructions of his owner at Purushothapalli village of Nidadavole Mandal. By that time,

PWs.1 and 4 were attending bodhe work in the fields and PW.2 was also with

PW.1 at that time. At that time, all the accused along with some children came to the fields and they directed him to stop ploughing. One of them, placed a crowbar in the land in front of his tractor, directing him not to proceed. Then, Pws.1 and 2 came and questioned the right of accused to stop ploughing work. Apprehending damage to his tractor, he moved his tractor and stationed at a distance by moving in reverse direction. After he reversed his tractor he observed head injury to PW.1 and clothes of PW.2 were found torn, and they were in lying position on ground. Owner of the tractor came with lunch carrier. Having observed the situation, they left the fields with 10 tractor. Later he came to know that Pws.1 and 2 were shifted in auto from the fields.

29.It is manifest from the evidence spoken by PW.5 that his evidence is also not corroborated with the evidence of PWs.1 and 2. He also did not support the case of prosecution as to the overt acts attributed to any of the accused. Infact his very presence with tractor in the fields of PW.1 is to be doubted as no whisper about his presence in the fields with tractor either in complaint or in the statements made by PWs.1 and 2 before investigation officer during their examination. Evidence spoken by PW.5 is inconsistent with the evidence of PWs.1 and 2. Admittedly it is manifest from the evidence of

PW.5 that he did not notice any of the accused inflicting injuries to PWs.1 and

2. His evidence is also throwing very much doubt about the very presence of

PW.2 in the fields at the time of occurrence. His evidence is most unnatural.

Thus in the circumstances his evidence is not very much helpful to the prosecution. His evidence is with full of omissions. Suggestion put to him that he is planted witness is giving very much strength to the evidence spoken by him as his tractor owner is friend of PW.1 in the circumstances.

30.PW.6 in whose auto allegedly PWs.1 and 2 were shifted to hospital deposed about 7 years ago at about 11 AM, by the time he returned home with auto, after distributing papers, he noticed PWs.1 and 2 in his house in confused state. On inquiry, he was told about the galata taken place in between them and accused and he was asked to take them in his auto to

Samisrigudem PS. Immediately he took them in his auto to police station and returned after dropping them. Pleading ignorance as to his examination by police. During his cross examination it is elicited apart from him several others also maintained autos in the village. Admittedly he is not eye witness to the occurrence. He is only hearsay witness and it has no evidentiary value and not helpful to the prosecution.

31.PW.8 who registered and investigated the case neither seized the weapons allegedly used by accused in commission of offence nor the torn clothes of PW.2 during investigation. It is manifest from the evidence spoken by him that no explanation for non seizure of weapons allegedly used by accused and clothes worn by PW.2 allegedly molested by accused in the incident. It is manifest from the scene observation report and sketch that no incriminatory material is found. If really as spoken by PWs.1 and 2 incident 11 had taken place in the fields on PW.1 in disputed land as report is lodged within few hours of the occurrence every likelihood of a valid ability some kind of incriminatory material at scene of offence. Non seizure of any incriminatory material at scene of offence is also creating doubt on the very genesis of the case of prosecution. During cross examination of PW.8 he is confronted with the omissions elicited. During cross examination of prosecution witnesses

PWs.1, 2 and 6 and also disowned statement of PW.3 duly asserted the correctness of omissions. His evidence is not very much helpful in the facts and circumstances as he did not seize the weapons allegedly used by accused or clothes of victim.

32.It is manifest from the evidence of PWs.1 and 2 that the route cause for disputed land is the share claimed by A1 and A4 in Ac.0.60 cents of land being enjoyed allegedly in exclusive possession of PW.1 left by the mother of

PW.1 who admittedly died intestate being mother of PW.1. As per the evidence of PW.1 disputed Ac.0.60 cents was given to his sisters by the father who died after four or five years after the death of his mother as per wish of his mother but in proof of the same there is no documentary evidence. Even in proof of mutation of the land in the name of PW.1 who allegedly purchased the same from his sisters also no evidence. It is also suggested that sale deed was brought into existence by PW.1 to knock away the disputed Ac.0.60 cents depriving the shares of A1 to A4 in it. Though PW.1 denied absence of documents in proof of giving disputed extent by his father to his sisters as his mother who predeceased him is giving very much strength to the claim of A1 to A4 for their share in the disputed extent throwing doubt on the bonafides of

PW.1. In the aforesaid circumstances more particularly in the light of land dispute in between PW.1 and A1, A4 and coupled with inconsistent evidence of

PWs.1 and 2 which is not corroborated with the medical evidence is throwing doubt on the very genesis of the case of prosecution as to the attack on

PWs.1 and 2 by A1 to A5 at the instigation of A6 to A8. Admittedly A2, A3, A5 and A8 are not claiming any right in disputed land. It appears as they are supporting A1 and A4 in claiming right over the disputed land and fighting for their share they are also roped in as contended by the counsel for accused.

Evidence let in by prosecution is not consistent and cogent.

33.In the facts and circumstances it can be safely said that prosecution has failed to place cogent evidence in proof of accusations levelled against A1 12 to A8 that all of them entered with crowbars and outraged her modesty by pulling her saree.

In order to invoke U/Sec.354 IPC the prosecution must prove

(i)That the person assaulted, etc. was a female

(ii)That the accused assaulted or used criminal force to her

(iii)That he intended thereby to outrage her modesty ; or that he knew it to be likely that he would thereby outrage her modesty.

In order to invoke Sec.323 of IPC the prosecution must prove

(i) that the accused by his act caused bodily pain, disease or infirmity to the complainant;

(ii) that he did such act intentionally or with knowledge that it would cause the hurt, etc.

In order to invoke U/Sec.448 IPC the prosecution must prove

i)that the accused committed criminal trespass ii) that such criminal trespass was committed by entering into, or remaining in a building, tent, or vessel; iii)that such building, tent, or vessel, was used as a human dwelling or as a place of worship, or as a place for the custody of property;

In the aforesaid circumstances as the evidence let in by prosecution is not consistent and convincing it is a fit case to extend benefit of doubt to accused 1 to 8. Prosecution has failed to make out the case against accused 1 to 8 for the offences U/Sec. 448 against A1 to A8, Sec.323 of IPC against A2 and A3, Sec.354 against A3 and A4 and Sec.506 r/w 34 of IPC against A1 to A8 beyond reasonable doubt. Absolutely no grounds to invoke any of the penal sections with which accused are charged much less for the offences U/Secs.

448, 323, 354, 506 r/w 34of IPC.

In the result, A1 to A8 are found not guilty for the offences U/Sec. 448 of

IPC against A1 to A8, Sec.323 of IPC against A2 and A3, Sec.354 of IPC against

A3 and A4 and Sec.506 r/w 34 of IPC against A1 to A8. They are acquitted under Sec.235(1) of Cr.P.C. Bail bonds of accused 1 to 8 shall remain in force for a period of six months and thereafter shall stand cancelled as contemplated 13

U/Sec.437-A Cr.P.C. Unmarked property if any is ordered to be destroyed after expiry of appeal time.

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

me in open Court, on this the 14 th day of November, 2019.

II Addl. District & Sessions Judge, FAC V Addl. District & Sessions Judge-cum-

Special Court for trial of offences against women

West Godavari, Eluru

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: For Defence :: None

PW.1- Tummalapalli Suryanarayana

PW.2- Tummalapalli Satyavathi

PW.3- Mindala Ganesh

PW4- Samarthapattapu Suryanarayana

PW5- Ballabattula Ganapathi

PW6- Tummalapalli Rama Krishna @ Babu Rao

PW7- Dr.A.V.R.S. Tata Rao

PW8-A.Sreenu

EXHIBITS MARKED

For Prosecution::

Ex.P1/28.12.2012 - Statement of PW1 recorded by LW.8 being SHO.

Samisragudem PS

Ex.P2/28.12.2012 - Relevant portion of 161 Cr.P.C. statement of PW.3 recorded by SHO, Samisragudem PS

Ex.P3/28.12.2012 - Wound certificate of PW.2

Ex.P4 /28.12.2012- Wound certificate of PW.1

Ex.P5/28.12.2012- FIR in crime no.123/2012

Ex.P6/28.12.2012-Rough sketch prepared by Lw.8.

14

For Defence::

Ex.D1: contradictions marked during cross examination of PW.1 .

MATERIAL OBJECTS MARKED

Nil

II AD & SJ, ELURU.

FAC V AD & SJ, Eluru Copies to:

1. The Registrar (Judicial), High Court of Andhra Pradesh.

2. The District Collector, W.G., Eluru.

3. The Judicial I Class Magistrate, Nidadavole.

4. The Superintendent of Police, W.G., Eluru.

5. Additional Public Prosecutor, V Addl.District and Sessions Court – cum-Special Court for trial of offences against women, W.G., Eluru 15

TABULAR FORM ANNEXED TO THE JUDGMENT IN

SESSIONS CASE NO. 124 of 2014.

IN THE COURT OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE-CUM-

SPECIAL COURT FOR TRIAL OF OFFENCES AGAINST WOMEN,

WEST GODAVARI, ELURU.

UNDER RULE 318 OF THE CRIMINAL RULES OF PRACTICE.

1.Sessions Case No. and P.R.C.No: :S.C.124/2014 and P.R.C.No.16 of with name of the committal 2013 of Addl. Judicial Magistrate of I courtClass, Nidadavole.

2.Name of the Police station:CrimeNo.123/2012of Samisragudem Police Station.

3.Name of the Accused and :1.Tummalapalli Satyanarayana, S/o Satyam, Aged 80 years, Rajaka, particularsPurushottapalli.

2.Tummalapalli Annavaram, S/o Satyam, Aged 48 years, Rajaka, Purushottapalli.

3.TummalapalliSreenu,S/o Satyanarayana, Aged 32 years, Rajaka, Purushottapalli.

4.TummalapalliVenkatarao@ Musalaiah, S/o Satyam, Aged 63 years, Rajaka, Purushottapalli.

5.Samarthapattapu Manikanta, S/o Laxmanarao, Aged 18 years, Rajaka, Purushottapalli.

6.Samarthapattapu Pullaiah, S/o Butchaiah,Aged47years, Sampatnagar, Rajanagaram Mandal, East Godavari District.

7.Samarthapattapu Sreenu, S/o Butchaiah, Aged 40 years, Rajaka, Purushottapalli.

8.Samarthapattapu Suresh Kumar, S/o Satyanarayana, Aged 35 years, Rajaka, Purushotapalli.

4.Date of offence:28.12.2012

5.Date of complaint:28.12.2012

6.Date of apprehension: Accused obtained anticipatory bail

7.Date of release on bail:5.3.2013

8.Date of committal order:28.11.2013

9.Date of commencement of trial:17.6.2019 10Date of close of Trial:23.7.2019 11Date of Sentence of Order: 14.11.2019 16 12Sentence:In the result, A1 to A8 are found not guilty for the offences U/Sec. 448 of IPC against A1 to A8, Sec.323 of IPC against A2 and A3, Sec.354 of IPC against A3 and A4 and Sec.506 r/w 34 of IPC against A1 to A8. They are acquitted under Sec.235(1) of Cr.P.C. Bail bonds of accused 1 to 8 shall remain in force for a period of six months and thereafter shall stand cancelledascontemplated U/Sec.437-A Cr.P.C. Unmarked property if any is ordered to be destroyed after expiry of appeal time. 13Explanation for the delay:No avoidable Delay 14Appeals as prescribed under rule : -- 319 of Crl.Rules of Practice with regard to the diary extract submitted by the Committing Court.

V Addl.District & Sessions court II Addl. District & Sessions Judge,

-cum-Special Court for trial of FAC V Addl.District & Sessions Judge-cum,

offences against Women, Special Court for trial of offences

West Godavari, Eluru against Women, West Godavari,

Eluru.

Dated :: 14-11-2019

1

THE COURT OF II ADDITIONAL DISTRICT AND SESSIONS

JUDGE, WEST GODAVARI:: ELURU.

Present: Sri P.Prabakar,

II Additional District and Sessions Judge, West Godavari, Eluru.

Thursday, this the 14th day of November, 2019.

SESSIONS CASE No. 213/2018

Name of the Accused and :Pappoppula Pandurangadu @ Ranga, particulars S/o. Chintha Raju, 26 yrs., Kapu, Mason, L. Agraharam Village, Tadepalligudem Mandal.

Charges :Under Section 302 of IPC.

Plea of the accused :Pleaded not guilty

Finding of the judge :Accused found not guilty for the offence u/s.302 IPC. Sentence or Order : In the result, accused is found not guilty for the offence under Section 302 I.P.C. He is acquitted under Section 235(1) Cr.P.C. His bail bonds shall remain in force for a period of six months and thereafter shall stands cancelled as contemplated u/s.437-A Cr.P.C.

MO.1 Motor Cycle is ordered to be returned to the registered owner and MOs.2 and 3 are ordered to be destroyed on expiry of appeal time.

Counsel for the :Additional Public Prosecutor, West prosecution Godavari District, Eluru.

Counsel for defence :Sri Eluru Venkateswara Rao, Counsel

for Accused.

This case is coming on 30-10-2019 for final hearing before me in the presence of Additional Public Prosecutor appearing for the

Complainant/State and of Sri Eluru Venkateswara Rao, Counsel

for Accused after hearing both sides and after perusing the material

on record, having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

Inspector of Police, Tadepalligudem Rural Circle, filed charge sheet against the accused for the offence punishable under section 302 of IPC in Cr.No.104/2017 of Tadepalligudem Rural Police

Station.

2

2. The case of the prosecution is as follows:-

On 29-07-2017 at 11.30 A.M., Chitikina Srinu, brother of victim in the case gave a report stating that deceased namely

Chitikina Prasanthi @ Naidu Prasanthi is his younger sister. Her marriage was performed about 5 years ago with one Naidu Kondayya of Telikicharla Village, Nallajerla Mandal. During their wedlock, she is blessed with a male child namely Kiran Kumar aged 7 years.

About 3 years ago, due to the disputes among them deceased and her husband got separated and living individually. Deceased was living with her father and her son at Mettuvarigudem village of

Tadepalligudem Mandal in a rented house. In course of time, she developed illicit intimacy with the accused. Elders of the village having noticed the same held a panchayat one year prior to the occurrence. During that panchayat, elders admonished the accused directing him not to visit the house of deceased. On 29.07.2017 at about 10.30 A.M., accused having visited the house of deceased, demanded her to come with him to satisfy his lust, but she refused.

On that score, altercation ensued among them and accused having picked up a sickle available there, hacked the deceased on her neck, nose and right hand little finger indiscriminately causing her instant death. Having learnt about the incident, he rushed to the house of deceased and found her in pool of blood.

3. Basing on the above complaint, case in Crime

No.104/2017 under Section 302 IPC was registered and investigation is taken up by the Inspector of Police (PW10).

4.In course of investigation, he visited the scene of offence, secured the presence of mediators Racharla Chellaiah (PW7) and

Kamanchi Abbulu (LW13), prepared scene observation report, taking photos of the scene of offence and also rough sketch of scene. Later he also conducted inquest over the dead body in the presence of panchayatdars and blood relatives of the deceased to know the apparent cause of death and then, securing the defacto complainant

Chitikina Srinu and the blood relatives namely Chitikina Surya Kala,

Yeliganti Rajeswari, Chitikina Lakshmayya (P.Ws.1, 2, L.Ws.2 and 4) and circumstantial witnesses to the occurrence namely Kalinki

Manga, Chitikina Murali Krishna, Katakam Satyanarayana (P.Ws.3 to

5) and Shaik Masthan Beebee, Velagala Anjali (L.Ws.5 and 8), examined and recorded their statements in part II C.D. On 3 completion of inquest, dead body is sent for postmortem examination with requisition. Later, secured the village elders namely Kamanchi

Abbulu, Yadala Mosheen (L.Ws.13 and 10) and also husband of deceased Naidu Kondayya (PW6) examined and recorded their statement in part II C.D.

5. On 29.07.2017 at about 5 P.M., on credible information about the accused, he rushed to electrical substation,

Mettaupparagudem village of Tadepalligudem Mandal and apprehended the accused in the presence of PW7 and Kamanchi

Abbulu (LW13) and in their presence, interrogated the accused.

During interrogation, he confessed his guilt and handed over the motorcycle on which he proceeded to the house of deceased on the date of incident and also handed over the sickle secreted in the motorcycle cover used to kill deceased, his shirt on which blood of deceased spilled. In the presence of mediators, he got prepared report incorporating the confession and seizure and taken him into custody. On completion of formalities, he is sent for judicial remand.

6. Medical Officer PW8 Dr. V. Sujatha having conducted postmortem examination over dead body of deceased, gave report opining that the deceased died due to shock and hemorrhage more particularly on account of slit injury inflicted on neck of deceased.

Evidence collected during investigation established that the accused bore grudge against deceased as she discontinued her illicit intimacy with him on intervention of the elders and failed to cooperate with him in coming out of village to live with him leaving her son and father and committed the offence u/s.302 of IPC.

7.On appearance of accused, having heard him and learned Addl. Public Prosecutor, charge under Section 302 of IPC against accused is framed, read over and explained to him in Telugu under Section 228 (2) Cr.P.C. Accused pleaded not guilty and claimed to be tried.

8.On behalf of the prosecution PWs1 to 11 examined and

Ex.P1 to P16 and MOs 1 to 3 marked.

9.On closure of prosecution evidence, accused is examined under Section 313 Cr.P.C., explaining the incriminating evidence against him. He simply denied the incriminating evidence spoken against him and pleaded not guilty. On behalf of accused, no defence witnesses examined and no documents marked.

4

10. PW1 is defacto complainant and brother of the deceased.

PW2 is sister-in-law of deceased. P.Ws.3 to 5 are neighbours and testified as circumstantial witnesses. PW6 is deserted husband of deceased. PW7 is one of the mediators for scene observation report and confession of accused. PW8 is medical officer, Area Hospital,

Tadepalligudem. PW9 is the then S.H.O., Tadepalligudem Rural P.S., who registered FIR. P.Ws.10 and 11 are the investigation officers.

11. Exs.P.1 to P.6 are relevant portions of 161 Cr.P.C.

statements of P.Ws.1 to 6. Ex.P7 is scene observation report dated 29.07.2011. Ex.P8 is inquest report dated 29.07.2011. Ex.P9 is signature of PW7 on confession and seizure panchanama. Ex.P10 is postmortem examination report. Ex.P11 is questionnaire given by

PW9 to the medical officer. Ex.P12 is complaint given by PW1.

Ex.P13 is FIR. Ex.P14 is rough sketch of scene of offence. Ex.P15 is digital photos with C.D. Ex.P15 is RFSL report. MO1 is motorcycle,

MO2 is sickle and MO3 is bloodstained shirt.

12.Now, the points for consideration are:

1. Whether the accused has nexed with the death of deceased?

2. Whether the prosecution is able to prove the guilt of the accused for the offence under Section 302 of IPC beyond reasonable doubt?

13. POINT No.1:

In order to establish the nexus of accused with death of deceased, prosecution examined the neighbours of deceased who allegedly seen the accused entering into the house portion of deceased and his exit on motorcycle on which he reached the house of deceased before and after the occurrence as P.Ws.3 to 5. All of them turned hostile and did not support the case of prosecution.

Learned Addl. P.P., having declared them hostile, cross-examined but nothing could be elicited during their cross-examination to discard the evidence spoken by them as to their witnessing the entry and exit of the accused into the house portion of deceased. Relevant portions of their 161 Cr.P.C. statements are marked as Exs.P.3 tio P.5.

14. Admittedly, accused was not residing with deceased permanently in which the deceased was staying along with her son and father on her desertion by her husband in view of the differences among them who is also testified as PW6. Prosecution also examined the brother and sister-in-law of deceased who rushed to the house 5 portion of deceased having learnt about the occurrence as P.Ws.1 and 2. It is the case of prosecution that PW1 having learnt about the occurrence through the immediate neighbours of deceased about the death of deceased in the hands of accused, rushed to the house of deceased and then lodged report against the accused alleging that he killed deceased by brutally inflicting injuries on vital parts with deadly weapons. PW2 wife of PW1 also followed him to the house of deceased having learnt about the occurrence.

15. PW1, none other than the brother of deceased pleading ignorance of the identity of the accused deposed deceased was staying in a rented house owned by one Jagannatham as she was deserted by her husband within one year after marriage which took place 4 years prior to her death. On the date of death of his sister, he was at Kondrupolu on coolie work. Having learnt about the death of deceased, he rushed and seen the dead body with a slit injury in a pool of blood. On information police came and taken his thumb impression on a written paper. As he was in grief, he did not insist for explaining the contents of the report prepared by them. He is an illiterate and disowned his examination by the police after taking his thumb impression on written paper. Thus, he disowned the very report given by him with his thumb impression against the accused for the death of deceased allegedly on account of her refusal to accompany him leaving her son and father with whom she was living by that time in live in relationship in view of his illicit intimacy with her. He is also declared as hostile and cross-examined. During his cross-examination he categorically denied the veracity of the report basing on which FIR is registered and criminal law is put into motion and also disowned his examination by the investigation officer.

Except marking his disowned 161 Cr.P.C. statement as Ex.P1, nothing could be elicited during his cross-examination substantiating his knowledge as to death of deceased in the hands of accused.

16. PW2, wife of PW1 also deposed in same lines. She was also declared hostile and cross-examined, but nothing could be elicited except marking her disowned 161 Cr.P.C. statement as

Ex.P2. Thus, in the facts and circumstances it is manifest that

P.Ws.3 to 5 being material witnesses and P.Ws.1 and 2 being blood relatives of deceased did not support the case of prosecution and their evidence is not at all incriminatory against the accused. None of them even stated in their evidence as to the development of illicit 6 intimacy in between deceased and accused on deserting her husband and about the panchayat held in the village admonishing the accused directing him not to visit the house in which deceased was staying on rent for one reason or other.

17. PW6, husband of deceased admittedly not resident of

Mettuupparagudem where the incident had taken place deposed about deceased deserting him in view of the strained relationship among them three years prior to the occurrence and her stay along with her father at Mettuupparagudem pleading ignorance of the reason for death of deceased. He also disowned his examination by the investigation officer. He also did not speak about the illicit intimacy in between the accused and deceased as the reason for deserting deceased by him nor gave the reason for strained relationship in between him and deceased. He is also declared hostile and cross-examined by the learned Addl. P.P., but nothing could be elicited. Admittedly neither he is eyewitness nor circumstantial witness to the occurrence which is also not incriminatory against the accused.

18. In the aforesaid circumstances prosecution in order to establish the nexus of accused with death of deceased relied on confession and seizure allegedly made by accused on his apprehension on same day in the outskirts of Mettuupparagudem and in order to prove the confession and seizure examined one of the mediators for confession as PW7 and the 1st investigation officer who apprehended the accused as PW9. PW7 also happened to be one of the mediators for scene of offence and inquest proceedings of deceased held at the house of deceased.

19. PW7 working as VRO, Mettuupparagudem deposed on the instructions of Tadepalligudem Rural police, he along with his village sarpanch visited the house of Mutha Jagannadham, in which deceased was found killed by unknown person. In their presence, police conducted panchanama of scene of offence and inquest over the dead body of deceased and noticed the cut injuries on neck and hand. On preparation of reports, himself and Sarpanch attested the same. During scene of offence observation proceedings, police also seized bloodstained and controlled soil with cotton swabs. On examining the blood relatives and others present and on enquiries made during inquest, it is concluded that the deceased was killed by the accused with whom she had illicit intimacy and the same was 7 noted in column No.15 of inquest proceedings. Evidence spoken by him is supported by Exs.P7 and P8 scene observation report and inquest proceedings. He further deposed he scribed both the documents on the instructions of inspector of police and S.I. of police testified as P.Ws.9 and 10.

20. He further deposed on the same day evening at 5 p.m., on instructions of police, himself and LW13 rushed to the village electrical sub-station which is in the outskirts and having noticed the presence of accused there, he was enquired by the Inspector of Police.

During that enquiry, accused confessed his guilt in death of deceased and handed over the motor bike and sickle used by him for visiting the house of deceased and in commission of offence and also his blood stained shirt which he wore at the time of occurrence. Then, a report was prepared incorporating the confession and seizure and it was also attested by him and LW13 as identifying witnesses and confession panchanama is also marked as Ex.P.9. He duly admitted the correctness of panchanama contents and further deposed that it was also attested by the accused.

21. PW10 investigation officer also deposed in same lines as to the visit of the house of deceased to conduct scene of offence observation panchanama and inquest proceedings in the morning hours having rushed to the scene on receipt of copy of FIR registered by PW9, SHO, Tadepalligudem Rural P.S., under Ex.P.13 and about the apprehension of accused on same day evening in the presence of

PW7 and another mediator reiterating the confession and seizure incorporated in the confession and seizure panchanama. He further deposed that the bloodstained shirt and sickle seized from the possession of accused on his apprehension were also sent to RFSL for analysis through SDPO with letter of advice and received report under Ex.P16 by his successor in office who filed charge sheet, given on analyzing material objects opining human blood is detected on all items except on controlled earth collected during scene observation report but could not determine the blood group.

22. Both P.Ws.7 and 10 are cross-examined. During cross- examination, it is elicited by the time of his visit to the house of deceased, there was about gathering of 30 persons outside the house.

To the house of deceased, there is compound wall with gate and the house portion of deceased consists of two rooms with tinned sheets.

Sarpanch of the village/LW3 and the other mediator did not 8 accompany him to the house of deceased. Later, he joined.

Suggestion put to him that he being revenue official is close to police and at their instance, Ex.P7 report is prepared is simply denied. It is further suggested both Exs.P.7 and P.8 proceedings are prepared in police station and he signed on those reports at police station is also denied. It is further elicited he did not take any written permission from his MRO to act as mediator in the case and the other mediator

LW13 did not sign on Exs.P.7 and P.8 in his presence and he was not present then is categorically denied.

23. He further deposed at about 5 p.m., police telephoned and summoned him to electrical sub-station. He alone rushed.

Distance in between sub-station and his office is about 6 to 7 K.M.

He was not served any written requisition. By the time he rushed, accused was in the police custody. Suggestions put to him that accused had not made any confession admitting his guilt in the case nor M.Os.1 to 3 were seized in his presence in pursuance of the confession made by the accused are simply denied. It is further elicited M.Os.2 and 3 are available in open market. During cross- examination of PW10 investigation officer also same was suggested but he categorically denied.

24. PW10 during his evidence asserted the correctness of

Exs.P.1 to P.6 disowned 161 Cr.P.C. statements of P.Ws.1 to 6. PW9 being SHO, Tadepalligudem Rural P.S., during his evidence asserted the correctness of the report presented by PW1 with his thumb impression denying the evidence of PW1 as to its correctness and taking of his thumb impression on written paper while he was in grief. Through him, disowned report allegedly lodged by PW1 is marked as Ex.P12.

25. From Ex.P.16 RFSL report, it is manifest that RFSL authorities having analyzed the material objects collected at scene of offence and allegedly seized at the behest of accused on his apprehension which are also marked as M.Os.2 and 3 though opined human blood is detected on all the items except on controlled soil, they could not determine blood group of either deceased or accused.

In the aforesaid circumstances as none of the eyewitnesses testified to prove the case of prosecution and more particularly nexus of the accused with the deceased, it is not safe to conclude that human blood stains that were found on M.Os.2 and 3 is of deceased.

26. From the perusal of Ex.P16 RFSL report, it is also 9 manifest that PW10 having allegedly seized M.Os.2 and 3 and other material objects at scene of offence on same day within few hours after the occurrence had forwarded the same to RFSL for analysis on 16.08.2017 with abnormal delay of more than 10 days. No explanation from him in forwarding the material objections though allegedly seized on 29.07.2017 itself. Confession allegedly made by the accused is hit by Section 25 of Indian Evidence Act. It has no evidentiary value. In support of the confession, no corroborative evidence is collected by the investigation officer. For one reason or other, the blood relatives testified as P.Ws.1 and 2 and other neighbours who allegedly witnessed the entry and exit of accused to and from the house portion of deceased at relevant time did not support the case of prosecution. In the aforesaid circumstances even scientific evidence is also not helpful to the prosecution.

27. Chance prints of the accused are not collected by the investigation officer/PW10 nor he made any efforts to collect the chance prints by summoning the clues team though there are no eyewitnesses to the occurrence in which deceased was admittedly brutally hacked to death with deadly weapon. Thus, in the circumstances, as there is no other evidence except the inadmissible confession and the evidence of VRO and investigation officer examined in proof of inadmissible confession it is not safe to place very much reliance on their evidence to fix the accused as the culprit for death of deceased, more particularly in the light of failure of

P.Ws.3 to 5 cited as eyewitnesses to support the case of prosecution.

Admittedly, burden is on the prosecution to prove the nexus of accused with death of deceased by placing cogent evidence, but the evidence let in to substantiate the nexus of accused with death of deceased is not enough in the facts and circumstances. It is well settled principle that mere suspicion is not substitute to legal evidence. Hence, in the circumstances this point is answered accordingly in favour of the accused and against the prosecution.

28. POINT No.2:-

In order to prove the offence u/s.302 of IPC, the prosecution has to prove that

(i) the death of a human being has actually taken place;

(ii) such death has been caused by or in consequence of the act of the accused; 10

(iii) such act was done with the intention of causing death; or it was done with the intention of causing such bodily injury as (a) the accused knew to be likely to cause death, or (b) was sufficient in the ordinary course of nature to cause death; or the accused caused death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.

The mere fact that bodily injury caused resulted in death in the ordinary course of nature does not necessarily mean that the accused intended to cause such bodily injury. There must always be a finding that the act which caused the death was done with the intention either of causing death or of causing bodily injury sufficient in the ordinary course of nature to cause death. A finding of inflicting an injury that was merely likely to cause death would not of necessity amount to murder. The intention or knowledge with which the act which caused death was committed is not constructive or a presumption of law but a matter of fact to be judged of in each case, and proof of collateral facts to explain the motives and designs of the accused is admissible.

In cases in which death causes from violence used, and there is no evidence of intention other than what is to be inferred from the accused’s act, it is necessary to consider whether the accused must have known, when committing the act, that –

(a) It might possibly, but was unlikely to cause death or injury sufficient in the ordinary course of nature to cause death;

(b) It was likely to cause death or injury sufficient in the ordinary course of nature to cause death;

(c) It probably would cause death or injury sufficient in the ordinary course of nature to cause death;

If the act falls within the first category, it would not amount to more than hurt or grievous hurt; if under the second category, it would be culpable homicide not amounting to murder; if under the third category, it would amount to murder.

29. Accused is admittedly charged u/s.302 IPC. In the aforesaid circumstances from the evidence let in by the prosecution, it is manifest that the eyewitnesses who allegedly seen the accused entering into the house of deceased before the occurrence, in which 11 the deceased was brutally killed and his exit from the house and fleeing away on his motor bike testified as P.Ws.3 to 5 did not support the case of prosecution. Their evidence is not incriminatory as P.Ws.3 to 5 being material witnesses as eyewitnesses to the occurrence and also circumstantial witnesses.

30. The only evidence that remained in order to prove that the accused is instrumental for death of deceased and he is the perpetrator of crime in which the deceased was brutally killed by inflicting multiple injuries on vital parts is the confession and recovery of sickle and blood stained shirt of accused in pursuance of the confession made by accused on his apprehension allegedly on same day. Except the confession of accused, hit by Section 25 of

Evidence Act, there is no independent corroborative evidence in support of the confession allegedly made by the accused as to death of deceased in his hands.

31. Motive attributed to the accused to commit the crime is refusal of deceased to accompany him leaving the house in which she was staying with her father and son on her desertion by her husband who is also testified as PW6 in view of his admonition by the village elders for his visit to the house of deceased with whom he had illicit intimacy for their comfortable stay elsewhere. Elders who allegedly admonished the accused protesting the visit of accused to the house of deceased testified as PW7 did not speak anything about the panchayat and admonition of accused or the illicit intimacy in between the accused and deceased.

32. P.Ws.1 and 2 none other than brother and sister-in-law who also stayed in same village and gave statement before the investigation officer as to development of illicit intimacy in between accused and deceased also did not support the case of prosecution and they even pleaded ignorance of the identity of accused apart from disowning illicit intimacy in between accused and deceased. Even

P.Ws.3 to 5 neighbours also did not speak about the illicit intimacy in between the accused and deceased. In view of the aforesaid circumstances, it can be safely stated that the motive attributed to accused for commission of crime is also failed.

33. Even shirt and sickle allegedly seized with blood stains sent for analysis and other material objects that were seized at the scene of offence during scene observation report by the investigation officer PW10 is also not helpful to fix the accused as the perpetrator 12 of crime. FSL authorities having observed human blood on the material objects failed to determine blood group of deceased and the blood stains on M.Os.2 and 3 sickle and shirt allegedly seized from accused. Absolutely there is no material to show that the human blood stains that were found on M.Os.2 and 3 and the blood stains that were found at scene of offence are one and the same.

34. In the facts and circumstances as the prosecution failed to prove even the circumstances on which it relied in view of the failure of eyewitnesses to support the case of prosecution there is no other go except to extend benefit of doubt to the accused as admittedly there is no legal evidence to show that the accused is perpetrator of the crime in which the deceased was killed by causing multiple injuries on vital parts. Mere suspicion is not substitute to the legal evidence. Prosecution on whom the burden lies to make out the case against the accused beyond reasonable doubt has miserably failed. In the circumstances as the prosecution failed to make out the case against the accused for the offence u/s.302 IPC by placing cogent evidence, it is a fit case to absolve him from the charge.

35. In the result, accused is found not guilty for the offence under Section 302 I.P.C. He is acquitted under Section 235(1)

Cr.P.C. His bail bonds shall remain in force for a period of six months and thereafter shall stands cancelled as contemplated u/s.437-A

Cr.P.C.

MO.1 Motor Cycle is ordered to be returned to the registered owner and MOs.2 and 3 are ordered to be destroyed on expiry of appeal time.

Dictated to Stenographer Grade 1, transcribed by him, corrected

and pronounced by me in open Court, this the 14 th day of November, 2019.

Sd/- P.Prabhakar

II ADDITIONAL SESSIONS JUDGE,

WEST GODAVARI, ELURU.

APPENDIX OF EVIDENCE:

WITNESSES EXAMINED:

FOR PROSECUTION:

P.W.1 - Ch. Srinu. P.W.2 - Ch. Suryakala. P.W.3 - Kalinki Manga. P.W.4 - Ch. Muralikrishna. P.W.5 - K. Satyanarayana. P.W.6 - Naidu Kondaiah. P.W.7 - Racherla Chellayya. P.W.8 - Dr. V. Sujatha.

13

P.W.9 - B. Srinivas. P.W.10 - MRLSS Murthy. P.W.11 - N. Rajasekhar.

FOR DEFENCE :- N O N E.

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P.1/29-7-2017 : Relevant portion of 161 Cr.P.C. statement of P.W.1. Ex.P.2/29-7-2017 : Relevant portion of 161 Cr.P.C. statement of P.W.2. Ex.P.3/29-7-2017 : Relevant portion of 161 Cr.P.C. statement of P.W.3. Ex.P.4/29-7-2017 : Relevant portion of 161 Cr.P.C. statement of P.W.4. Ex.P.5/29-7-2017 : Relevant portion of 161 Cr.P.C. statement of P.W.5. Ex.P.6/29-7-2017 : Relevant portion of 161 Cr.P.C. statement of P.W.6. Ex.P.7/29-7-2017 : Scene observation report. Ex.P.8/29-7-2017 : Inquest Report. Ex.P.9/29-7-2017 : Signature of witness on confession-cum-seizure panchanama. Ex.P.10/29-7-2017 : Postmortem report. Ex.P.11/12-12-2017 : Questionnaire. Ex.P.13/29-7-2017 : FIR. Ex.P.14/29-7-2017 : Rough sketch. Ex.P.15/29-7-2017 : Digital Photographs with CD. Ex.P.16/27-11-2017 : RFSL Report.

FOR DEFENCE: NIL.

MATERIAL OBJECTS MARKED

MO.1 is Motorcycle. MO.2 is bloodstained sickle. MO.3 is bloodstained shirt of accused.

Sd/- P.Prabhakar

II ADDITIONAL SESSIONS JUDGE,

WEST GODAVARI, ELURU.

Copies to:

1.The Registrar (Judicial) High Court of Andhra Pradesh, Amaravathi. (through C.D).

2.The District Collector, West Godavari District, Eluru.

3.The I Addl. Judicial Magistrate of I Class Court, Tadepalligudem.

4.The Superintendent of Police, West Godavari, Eluru.

5.The Director of Prosecution, Vijayawada.

6.The Addl. Public Prosecutor, West Godavari, Eluru.

// True Copy //

II Additional District & Sessions Judge, West Godavari, Eluru.

14

TABULAR FORM ANNEXED TO THE JUDGMENT IN

S.C.No.213/2018 ON THE FILE OF II ADDITIONAL DISTRICT

AND SESSIONS JUDGE, WEST GODAVARI, ELURU UNDER RULE

354 OF THE CRIMINAL RULES OF PRACTICE.

1. Sessions Case No. and :S.C.No.213/2018 and P.R.C. No. P.R.C.No. with name of 1/2018 on the file of I Addl. Judicial the committal Court Magistrate of I Class, Tadepalligudem.

2. Name of the Police :Tadepalligudem Rural Police Station Station and Crime No. and Cr.No.104/2017.

3. Description of the :Pappoppula Pandurangadu @ Ranga, Accused: S/o. Chintha Raju, 26 yrs., Kapu, Mason, L. Agraharam Village, Tadepalligudem Mandal.

4. Date of Offence :29-07-2017

Complaint :29-07-2017

Apprehension :29-07-2017

Release on bail :24-10-2017

Committal :05-06-2018

Commencement of trial :22-07-2019

Close of Trial :06-11-2019

Sentence or Order :14-11-2019

In the result, accused is found not guilty for the offence under Section 302 I.P.C. He is acquitted under Section 235(1) Cr.P.C. His bail bonds shall remain in force for a period of six months and thereafter shall stands cancelled as contemplated u/s.437-A Cr.P.C.

MO.1 Motor Cycle is ordered to be returned to the registered owner and MOs.2 and 3 are ordered to be destroyed on expiry of appeal time.

5. Explanation for the delay. : No avoidable delay

Sd/- P.Prabhakar

II Additional Sessions Judge,

II Additional District Court, West Godavari, Eluru.

West Godavari, Eluru,

Dated:14-11-2019.

// True Copy //

II Additional District & Sessions Judge, West Godavari, Eluru.