Smt. R. Sree Latha

1 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

IN THE COURT OF THE V ADDITIONAL DISTRICT JUDGE,

GUNTUR.

PRESENT: R. SREELATHA

V ADDITIONAL DISTRICT JUDGE, GUNTUR.

Tuesday, the 27th day of DECEMBER, 2022

APPEAL SUIT No.351/2016

Between:

1. Ms Cherukuri Padmaja Rani, W/o Rajendra Prasad, aged 40 yrs, Hindu, Lecturer, R/o New Zealand, represented by her Power of Attorney Agent, 2nd appellant, Inampudi Prasuna, W/o Srikanth, aged 34 yrs, Hindu, Housewife, R/o Chinagadelavarru Village, Tsundur Mandal, Tenali P.J.C.J.

2. Ms Inampudi Prasuna, W/o Srikanth, aged 34 yrs, Hindu, Housewife, R/o Chinagadelavarru Village, Tsundur Mandal, Tenali P.J.C.J.

...Appellants/Plaintiffs

- And -

1. Sri Talluri Ranga Rao, S/o Late Suraiah, aged 71 yrs, Hindu, Cultivation, R/o Salapadu Village, Chebrole Mandal, Guntur P.J.C.J.

2. Ms Chirumamilla Prasuna, W/o Ramesh, aged 30 yrs, Hindu, Housewife, R/o Salapadu Village, Chebrole Mandal, Guntur P.J.C.J.

...Respondents/Defendants

Appeal filed under Section 96 of C.P.C on behalf of the appellants/plaintiffs against the Judgment and decree dt.18.8.2016 in O.S.1040/2011 on the file of IV Addl. Senior Civil

Judge’s Court, Guntur.

Between:

1. Ms Cherukuri Padmaja Rani

2. Ms Inampudi Prasuna

...Plaintiffs

- And -

1. Sri Talluri Ranga Rao

2. Ms Chirumamilla Prasuna

...Defendants

* * *

This appeal is coming up before me on 23.12.2022 for final 2 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

hearing in the presence of Sri P. Ravindra Babu, Sri K. Srinivasa Rao and Sri N. Venkata Venu, Advocates for Appellants/Plaintiffs and of Sri K. Ankineedu Prasad, Advocate for the respondents/Defendants and after perusing the material available on record and having stood over till this day for consideration, this Court delivered the following: -

JUDGMENT

The appellants who are the plaintiffs of Original Suit

No.1040/2011 on the file of IV Addl. Senior Civil Judge’s Court,

Guntur have preferred the present appeal questioning the dismissal of the suit filed by them by the learned trial court Judge vide Judgment dt.18.8.2016. The suit was filed for the partition of the plaint schedule properties into four equal shares, to allot two such shares to the plaintiffs, to deliver the possession to the plaintiffs by metes and bounds, for future profits from the date of filing of the suit till the date of possession and for costs of the suit.

For the sake of convenience, the parties are referred to as they are arrayed before the learned IV Addl. Senior Civil Judge’s

Court, Guntur (Trial Court).

2.The case of the unsuccessful plaintiffs in brief is that the plaintiffs are the daughters of the 1st defendant through his first wife Prasuna who has died about 26 years back. Thereafter, the 1st defendant immediately underwent 2nd marriage with one

Padma and was blessed with the 2nd defendant. The plaint schedule items 1 to 3 are the ancestral properties in constructive possession of the parties to the suit. The defendants have been 3 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

postponing the partition on one ground or the other and having got issued legal notice, due to non co-operation of the defendants, this suit has been filed by the plaintiffs for partition of the plaint schedule properties into 4 equal shares and for allotment of two such shares to the plaintiffs 1 and 2 with future profits and costs.

3.The written statement is filed by the 1st defendant (adopted by the 2nd defendant) admitting the relationship between the parties as true and correct. It is put forth that the defendant

No.1 and his father Sri Suraiah have conveyed Ac.1-00 of land to the plaintiffs on 25.5.1985 through registered gift deed i.e., Ex.B2 when the plaintiffs were minors and they were represented by their maternal grandfather. Also, the defendant No.1 has presented gold and household articles to the plaintiffs. The maternal grandfather of the plaintiffs has sold away the properties without obtaining any permission from the District court. It is specifically put forth that this defendant do not have any ancestral properties and the plaint schedule properties are absolutely the self-acquired properties of the defendant No.1 and they belong to

Suraiah who is the father of this defendant. Sri Suraiah has executed the registered Will under Ex.B1 pertaining to his properties and bequeathed the plaint schedule properties shown as ‘B’ schedule in the said Will in favour of the 1st defendant and the Will came into force on the death of Suraiah. The defendant

No.1 who is in possession and enjoyment of the plaint schedule properties has executed Exs.B4 and B5 registered gift deeds in favour of his wife and the 2nd defendant respectively. Therefore, 4 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

the plaintiffs are not entitled to claim any share in the plaint schedule properties. The wife of the defendant No.1 and the 2nd defendant are in possession and enjoyment of their respective properties having accepted the gifts. The 2nd plaintiff who has deserted her husband came with her adulterer and sought permission to live in the village of the defendant No.1 which was refused by him and so, to take revenge, she has filed this chance litigation along with the 1st plaintiff residing at Hyderabad. There is no cause of action for this suit. The reply notice was got issued by the defendant No.1 and there is no constructive or joint possession of the suit schedule properties. The suit is bad for non- joinder of necessary parties and it is prayed to dismiss the suit.

4.Basing on these pleadings, the following issues were framed for trial by the learned trial court:

1.Whether the plaint schedule properties are the joint family properties or the self acquired properties of Talluri Suraiah?

2. Whether Talluri Suraiah executed registered Will dt.5.9.1988 bequeathing the plaint schedule properties to the 1st defendant?

3.Whether the plaintiffs are entitled to pay Court fee under Section 34(2) of A.P.C.F. and S.V. Act?

4.Whether the plaintiffs are entitled for partition of plaint schedule properties, if so to what share?

5.To what relief?

5.During the course of trial, the 1st plaintiff herself is examined as P.W.1 and two third parties are examined as P.Ws.2 and 3 besides marking Exs.A1 and A2. On the other hand, the 1st defendant himself is examined as D.W.1 and one K. Siva Rama

Krishna as D.W.2 besides marking Exs.B1 to B8.

5 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

5(a). The trial court has dismissed the suit after full fledged trial. Aggrieved by the judgment and decree of the trial court in dismissing the suit, the unsuccessful plaintiffs who are the appellants herein have preferred the present appeal on the following grounds :-

The Judgment and decree of the trial Court is contrary to law, weight of evidence and the probabilities of the case. The trial court ought to have decreed the suit by believing the cogent, credible and consistent evidence on record placed by the plaintiffs by disbelieving the interested, inconsistent evidence adduced on behalf of the defendants. The Judgment of the trial Court is inexperienced and the trial Court did not understand the reliefs claimed by the plaintiffs and never intended to do justice to the parties. The trial Court has relied on Ex.B1 Will and failed to observe that every property is ancestral unless established by the specific sale deed or gift deed or any other document. The recitals of Exs.B4 and B5 goes to show that the properties are ancestral properties and the defendants cannot contend that the properties are the self-acquired properties of Suraiah. Sri Suraiah had no right to execute any Will, thus the properties are ancestral properties only and the parties are in joint possession of the same.

The trial Court also failed to understand the case and the arguments submitted by the Advocate for the plaintiffs and it is prayed to allow the appeal by setting aside the Judgment of the trial Court dt.18.8.2016.

6 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

6.Arguments heard.

The learned counsel for the appellants/Plaintiffs has submitted that the suit is dismissed for wrong reasons and that the pattadar passbooks were issued even prior to the gift deeds in favour of the 2nd wife and the daughter of the 1st defendant in this case. He has submitted that the alleged gift deed executed in favour of the plaintiffs herein was towards their maintenance and they were completely neglected by the 1st defendant who is their father and that they were brought up by their maternal grandfather. According to him, this Ex.B2 property need not be included in the schedule of this suit filed for partition and separate possession of the share of the plaintiffs. Also, he contends that the second wife need not be made as party. In fact, he has contended that Sri Suraiah had no right to execute the Will and the filing of suit itself is a demand for partition. Also, the son of the attestor is examined, but not the attestor of the Will. He has prayed to allow the appeal by setting aside the Judgment and decree of the trial

Court.

Per contra, the learned counsel for the respondents/defendants has submitted that the grounds of appeal mentioned by the appellants would show the dis-respect of the appellants towards the Court and they have used abusive language towards the Court. Further, the second wife of the 1st defendant is not shown as party and the Ex.B1 Will of Sri Suraiah is proved and even if it is not proved also, the suit is not maintainable for the non-inclusion of the properties already given 7 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

to the plaintiffs under Ex.B2 when they were minors. He contends that there is no rejoinder to the written statement even though it is specifically put forth in the written statement that the properties shown in this suit schedule are exclusively acquired by the 1st defendant under Will and there is no evidence regarding the joint possession. The property i.e., Item No.1 is already sold away by the second wife of the 1st defendant.

7.Basing on the contentions of both the parties, now the points formulated for consideration in this appeal are:

1.Whether the plaintiffs are entitled for partition and separate possession of their share in plaint schedule property i.e., items 1 to 3 as prayed for?

2.Whether the Judgment passed by the trial Court is factually and legally sustainable?

3.To what relief?

Point No.1:

8.In a nut shell, the plaintiffs who are the daughters of the defendant No.1 through his 1st wife filed this suit for partition on the ground that the Items 1 to 3 of the plaint schedule are the ancestral properties of the defendants and plaintiffs and hence, they are co-parceners having equal share along with the defendants and so, the properties are be divided into four equal shares. This suit is filed for only 3 items of properties i.e., land in an extent of Ac.1-24 cents in D.No.824/D1, Ac.0-22 cents and

Ac.0-12 cents comprising of single plot i.e., Ac.0-34 cents of dry land and Ac.0-84 cents in D.No.820/C i.e., the Item No.3. All these properties are situated at Salapadu Gram Panchayat. Very 8 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

interestingly, the defendant No.1 specifically claims that these properties fell to his share under Ex.B1 registered Will executed by his father and these three items are in ‘B’ schedule of this

Ex.B1. Not only these 3 items shown in ‘B’ schedule, under this registered Will, there are several other items shown to be belonging to Suraiah i.e., 5 Items in ‘A’ schedule, 1 Item each in ‘C’ and ‘E’ schedule, 2 Items in ‘D’ schedule. Under Ex.B1, the properties are bequeathed to his one son out of two sons i.e., the 1stdefendant herein, three daughters and his wife

Vanajakshamma respectively by Sri Suraiah. It is mentioned in this

Will that most of these properties are his self-acquired properties and a small part of the land is his ancestral property. The plaintiffs deny the very Will and contend that since the 1st defendant has not received these plaint properties under Ex.B1, they are the ancestral properties and hence, the plaintiffs are entitled for share.

No doubt, even going by the recitals of the Will, it appears the entire properties are not the self-acquired properties of Suraiah. If that is so, the very execution of the Ex.B1 Will by Sri Suraiah pertaining to the ancestral properties cannot be accepted. But

Ex.B1 does not reflect which properties are the self acquired properties of Suraiah and which small part is his ancestral land.

Very interestingly, as if the plaintiffs knew about this Will and accepted the same, they have restricted their claim only to the extent of 3 items of properties that fell to the share of the defendant No.1 and not pertaining to all the items shown in Ex.B1.

Thereby, the plaintiffs are impliedly admitting this Ex.B1 Will. But they are disputing the Ex.B1 Will and the relevant recitals are 9 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

pointed out by the learned counsel for the plaintiffs during the arguments. It is the stand of the plaintiffs that Suraiah has got no right to execute the Will when a small part of the properties are his ancestral properties. If that is so, these plaintiffs ought to have filed the suit by including all the properties shown in Ex.B1 as referred above by also including Ex.B2 properties. The non inclusion of all the properties for partition is fatal to the stand of the plaintiffs and the suit itself is not maintainable for the non- inclusion of all the joint family properties and all the sharers.

9.It is relevant to refer here the citation of the Hon’ble

Apex Court reported in1994 (4) SCC 294 between

Kenchegowda (Since Deceased) by…. Vs. Siddegowda

Alias Motegowda, decided on 11.5.1994, wherein it was categorically observed that the suit for partial partition in the absence of inclusion of other joint family properties and impleadment of other co-sharers is not warranted in law. In this case on hand, if at all, the plaintiffs accept that their father i.e., the defendant No.1 got the suit schedule properties under Ex.B1, for which they filed the suit, these properties derived under Ex.B1 Will become the absolute properties of the 1st defendant and during his life time, he is at liberty to execute any conveyance deed as permissible by law and the 1st defendant in this case has already executed Exs.B4 and B5 in favour of his 2nd wife and the daughter born through the 2nd wife. The pattadar passbooks are also issued to the defendants 1 and 2 and in favour of the 2nd wife of the defendant No.1. Also, the very stand of the defendant No.1 is 10 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

that when his father and himself have executed gift deed under the original of Ex.B2 in favour of the plaintiffs who were minors during the relevant point of time, if the plaintiffs contend that

Suraiah had no absolute right over the properties and that he cannot execute Ex.B1, this Ex.B2 property also has to be included in this suit. Even otherwise, the non inclusion of the properties covered under Ex.B2 in this partition suit is fatal.

10.Also in the citation between Eda Mary, Mogalatur,

Narsapur Vs. Y. Elzebeth, dt.5.10.2018, the Hon’ble High Court has clarified by relying on Kenchegowda’s case (referred above) that a suit for partial partition does not lie. Inclusion of all items will not only bring a quietus to the litigation, but also helps in equitable adjustments/distribution of assets. This rule is also meant to prevent the multiplicity of proceedings.

11.Even though the pattadar passbook in favour of the 2nd wife of the 1st defendant and the pattadar passbook in favour of the 2nd defendant reflects the date of issuance as 10.8.2011, whereas, the very gift deeds are dt.12.8.2011, this at the best shows the hastiness and the defendants managing the revenue authorities in obtaining such pattadar passbooks, but such facts would not have any impact as far as the claim for the partition of the properties by the plaintiffs is concerned.

12.Now moving on to the oral evidence on record, the 1st plaintiff as P.W.1 has reiterated the plaint averments and has denied the written statement contents. Here, it is relevant to 11 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

mention that even though the defendant No.1 has specifically denied the nature of the properties and has put forth the version of the plaint schedule properties being the exclusive properties of the 1st defendant, which he acquired under Ex.B1, no rejoinder is filed by the plaintiffs as rightly pointed out by the learned counsel for the defendants. The Hon’ble High Court in 2011 (0) SCJ

Online A.P Page 748 between Yadla Venkata Subbamma

and others Vs. Yadla Punnamma and others decided on

24.11.2011, has observed that when there is specific plea raised in the written statement, the plaintiffs are under obligation to file rejoinder if such plea is disputed. In the absence of rejoinder, the plea raised by the defendant or defendants virtually stands unrebutted. In this case, even though, the plaintiffs have claimed partition pertaining to the ‘B’ schedule properties of Ex.B1 alone, (which impliedly suggests that they knew about Ex.B1 by then) they filed the suit for partition as if there is no Will of Suraiah and it is contended during arguments that Sri Suraiah cannot execute any such Will. Even at the cost of repetition in such an event, the suit for partition ought to have filed by showing all the properties belonging to the joint family, particularly, the items referred in

Ex.B1, but not in respect of the ‘B’ schedule of Ex.B1 alone.

12(a). During the cross-examination, P.W.1 has categorically stated that prior to the issuance of Ex.A1 notice seeking for partition, they never proceeded against the defendant No.1 for partition or any other reliefs. No doubt, if the properties are ancestral and undivided, constructive possession can be implied.

12 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

But here in this case, the 1st defendant is claiming properties exclusively as his absolute properties acquired under Ex.B1 and so, the plaintiffs have to establish their possession and the nature of possession over the suit schedule properties. P.W.1 pleads ignorance as to who are in possession and enjoyment of the land at Chekuru Village and categorically asserts that the 1st defendant is not having any joint family properties apart from the suit schedule properties. In the light of Ex.B1 evidencing the properties of Suraiah (self-acquired and ancestral) and as the plaint schedule properties are part and parcel of the properties of

Suraiah covered under Ex.B1, this version of P.W.1 cuts the very root of the case of the plaintiffs. P.W.1 admits that she did not enquire with the revenue authorities regarding the suit schedule properties and in whose name they stand. No discussion is required in this suit regarding the marital status of the 2nd plaintiff and it has got no impact on the present case. Since out of the two plaintiffs, only the 1st plaintiff is examined as P.W.1, her admission that they never received any single pie from the earnings derived from the suit schedule properties belies the version of the alleged joint possession projected by the plaintiffs.

12(b). The son of the brother of the 1st defendant is examined as P.W.2 and he has also deposed about the items 1 to 3 of the plaint schedule being the ancestral properties of the parties to the suit and that the plaintiffs have got the share. He admits that his father is no more and he has died at Salapadu and that they were brought up at his maternal grandmother’s village, 13 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

also there is no cordial relationship between his father and the mother since his childhood. He has pleaded ignorance as to when there was partition in between his father and paternal grandfather. He pleads ignorance as to how the 1st defendant has acquired the properties and he does not know when Sri Suraiah has died. It is significant to mention here that the Will executed by

Suraiah discloses that the elder son of Suraiah i.e., the father of

P.W.2 wanted to stay separately and a separate partition deed was executed pertaining to the properties given to this Mohana Rao.

So, Mohana Rao did not acquire any properties under Ex.B1 and it is also seen that he is one of the attestors of Ex.B1. So, obviously for this reason, the son of Mohana Rao came up before this Court in support of the stand of the plaintiffs. He however, could not throw much light on the present litigation.

12(c). P.W.3 one Krishna Murthy is a third party to the litigation and he states that he came to know that the plaint schedule properties are the ancestral properties of the parties. He is resident of Vamanaguntapalem of Amarthaluru and is no way concerned with the suit schedule properties located at Salapadu.

In fact, he is at a distance of 25 Kms. from Salapadu and pleads ignorance as to how the 1st defendant got properties. The plaintiffs happen to be his grandchildren by courtesy. Very significantly, by the date of Ex.B1 Will, the properties were conveyed to the plaintiffs under Ex.B2 and of-course it is the contention of the plaintiffs that the properties under Ex.B2 were given for their maintenance as the 1st defendant underwent second marriage 14 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

after the death of his 1st wife and has ignored the children born through his 1st wife. Irrespective of the gift under Ex.B2, if the plaintiffs are able to establish their right and entitlement over the plaint schedule properties as coparceners, definitely, they are entitled for a share and hence, Ex.B2 does not require much more discussion.

13.Now moving on to the evidence placed by the defendants, the 1st defendant as D.W.1 has reiterated the written statement averments and got exhibited the Exs.B1 to B8. He admits that except Ex.B1, there is no other registered title deed pertaining to Items 1 to 3 and denies that the plaint schedule properties are the ancestral properties, though it is mentioned in

Ex.B1 that some of the properties are the ancestral properties of

Suraiah. It appears the 1st defendant has completely discarded his daughters after his second marriage and being a father, the 1st defendant not attending the marriage of the 1st plaintiff on the ground that he was not invited itself goes to show the strained relationship in between the parties. At the best, the conduct of the 1st defendant towards the plaintiffs suggests that he has not fulfilled his responsibilities towards his daughters born through his first wife. He does not even know the children of the plaintiffs and has suppressed the reply notice. Of-course, if any such reply is given by the defendants, nothing prevented the plaintiffs from filing the same.

13(a).D.W.2 happens to be the son of one Ranga Rao and he has deposed that his father has informed him that Suraiah 15 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

has executed registered Will in favour of his legal heirs while in sound state of mind and that his father has attested the Will as the 2nd attestor. His father is no more now and has died in the year 2004 itself. He has identified the signature of his father in Ex.B1 and he is a practicing Advocate. He has deposed that he has seen his father’s signatures in many registered documents and has pleaded ignorance about the family affairs of the parties to the suit when suggested to him.

14.The other attestor for this Ex.B1 is the father of P.W.2 (who is another son of Sri Suraiah) by name Talluri Mohan Rao. He is no more as seen from the evidence of P.W.2. So, in the light of the evidence of D.W.2, the requisites under Section 63(c) of Indian

Succession Act, 1925 pertaining to the Will are complied.

There is no other contrary material on record that the

Will was not executed by Suraiah in the manner put forth and there are no such suspicious circumstances relating to the Will brought on record by the plaintiffs. The very filing of this suit for ‘B’ schedule of Ex.B1 alone itself suggests that the plaintiffs are impliedly admitting Ex.B1 Will, but they contend that there is word used “ancestral nature” also pertaining to few of the properties of Suraiah in the Will and hence, the plaintiffs are the coparceners, even though no such ancestral properties are specified in the Will. As already pointed out, if such is the case, the partition suit should have been filed for all the items shown in

Ex.B1 and the other properties of the family. Sri Suraiah has died and by examining the son of the deceased attestor, the Will is 16 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

proved by the defendants and even if the Will is not proved or ignored for the reason of its recital that a small part of the items covered therein are the ancestral properties for which Sri Suraiah cannot execute any Will, for the non-inclusion of all the properties of the family of the defendant No.1, the suit itself fails. So, the plaintiffs cannot seek partition of the plaint schedule properties.

Hence, the point No.1 is answered against the plaintiffs.

Point No.2:

15.The Judgment and the findings of the learned trial Court does not suffer from any infirmities and the trial court has appreciated the oral and documentary evidence in right perspective. Hence, the appeal is liable to be dismissed and accordingly, dismissed.

Point No.3:

16.In the result, the Appeal is dismissed with costs by confirming the decree and Judgment in Original Suit

No.1040/2011 dt.18.8.2016 on the file of learned IV Addl. Senior

Civil Judge’s Court, Guntur.

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

corrected and pronounced by me in open Court on this the 27th day of DECEMBER, 2022.

Sd/- R. Sreelatha,

V Addl. District Judge, Guntur.

17 A.S.351/2016 of V A.D.J.C., Guntur, Dt.27.12.2022.

APPENDIX OF EVIDENCE

- Nil -

No oral or documentary evidence is adduced on either side.

Sd/- R. Sreelatha,

V Addl. District Judge, Guntur.

Copy to: The learned IV Addl. Senior Civil Judge, Guntur.

1 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

IN THE COURT OF THE V ADDITIONAL DISTRICT JUDGE,

GUNTUR.

PRESENT: R. SREELATHA

V ADDITIONAL DISTRICT JUDGE, GUNTUR.

Monday, the 26th day of DECEMBER, 2022

APPEAL SUIT No.280/2016

Between: Sri Mutakani Sambasiva Rao, S/o Sivaiah, aged 34 yrs, Hindu, Mason, R/o Bank Colony, Park Road, Mangalagiri Town & J.C.J.C, Guntur District.

...Appellant/Plaintif

- And - Sri Mutakani Adi Seshu, S/o Sankara Rao, aged 36 yrs, Hindu, Lorry Driver, R/o Ippatam Road, Mangalagiri Town & J.C.J.C, Guntur District.

...Respondent/Defendant

On Appeal filed against the Judgment and decree in O.S.163/2015 Dt.23.07.2016 on the file of the Senior Civil Judge, Mangalagiri.

Between: Sri Mutakani Sambasiva Rao ...Plaintif - And - Sri Mutakani Adi Seshu

...Defendant

* * *

This appeal is coming up before me on 3.11.2022 for final hearing in the presence of Sri K. Siva Reddy, Advocate for Appellant/Plaintif and of Sri L. Vijaya Kumar, Sri L. Vamsi Krishna, Advocates for the respondent/Defendant and after perusing the material available on record and having stood over till this day for consideration, this Court delivered the following: -

JUDGMENT

The appellant who is the plaintif of the Original Suit

No.163/2015 on the file of Senior Civil Judge’s Court, Mangalagiri has preferred the present appeal questioning the dismissal of the 2 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

suit filed by him by the learned trial court Judge vide Judgment dt.23.7.2016. The suit was filed for partition of the suit schedule property into 2 equal shares and for allotment of one such share to the plaintif by metes and bounds and for separate possession of the same to the plaintif free from the obstruction of the defendant and for costs of the suit.

For the sake of convenience, the parties are referred to as they are arrayed before the learned Senior Civil Judge’s Court,

Mangalagiri (Trial Court).

2.The case of the unsuccessful plaintif in brief is that one

Mutakani Kotaiah is the absolute owner of the plaint schedule property and he has purchased the same under the registered sale deed dt.21.11.1949. This Kotaiah has got four sons and one

Mutakani Sankara Rao is the grandson of Mutakani Kotaiah i.e., son of Mutakani Venkateswarlu. Mutakani Sivaiah is also the grand son i.e., the son of Sambaiah. The defendant is the son of Mutakani

Sankara Rao and this Kotaiah has died about 25 years back,

Venkateswarlu, S/o Kotaiah has died about 4 years back, Aadi

Seshu, S/o Kotaiah has died unmarried and issueless about 30 years back, Sambaiah, S/o Kotaiah has died about 35 years back.

The left over Mutakani Gandhi, S/o Kotaiah has also died unmarried and issueless. The plaintif is the son of Mutakani

Sivaiah and the grandson of Sambaiah. The Mutakani Kotaiah has executed a registered gift deed dt.21.2.1984 in respect of the plaint schedule property by keeping life interest in his favour, in 3 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

favour of Venkateswarlu, wife of Venkateswarlu, Aadi Seshu and

Sivaiah and the vested reminder in favour of the plaintif and defendant. The plaintif and the defendant are the absolute owners and are entitled for absolute rights over the suit schedule property on the death of these persons. Recently, there arose disputes in between the plaintif and the defendant. The defendant is not providing accounts with respect of the management of the plaint schedule property and as such, the plaintif has demanded for partition, for which the defendant did not co-operate. The defendant is trying to alienate the plaint schedule property in favour of the third parties and hence, this suit is filed for partition of the plaint schedule property i.e., the land in an extent of Ac.1-00 out of Ac.3-37 cents of land at

Chinakakani Revenue village with the given boundaries and for allotment of one such share to the plaintif by metes and bounds and for separate possession of the same.

3.The written statement is filed by the defendant denying the plaint averments and by specifically putting forth that

Mutakani Kotaiah is blessed with four sons and one daughter.

Mutakani Venkateswarlu, Aadi Seshu, Sambaiah and Guru Murthy are the sons of Kotaiah, there is also one daughter Smt

Rukminamma to this Kotaiah. It is also not in dispute that Aadi

Seshu and Guru Murthy have died intestate issueless and the Guru

Murthy was a bachelor. Instead of the name of Gandhi, in the written statement the name of the 4th son of Kotaiah is put forth as

Guru Murthy. As the only son of Sambaiah i.e., Sivaiah has died 4 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

unmarried (the plaintif claims himself as the son of Sivaiah), as the great grandfather of this defendant i.e., Mutakani Kotaiah has executed registered settlement deed transferring the property in favour of the paternal grandparents of this defendant as well as his third grand son i.e., Sivaiah with life interest only and vested reminder in favour of the defendant and male issues if any that may be born to Sivaiah, as Sivaiah remained unmarried, the defendant became the absolute owner of this property. According to the defendant, this Sivaiah began to live with one pregnant woman at Park road, Mangalagiri and had vices. After giving birth to a male child, the said lady has eloped with some other person and out of humanitarian reasons, the paternal grandparents of this defendant have brought up the child and he is the plaintif herein and thus, the plaintif is not the son of Mutakani Sivaiah and is no way concerned with the family of the Kotaiah. After the death of the paternal grandparents of the defendant and this Sivaiah, this defendant became the sole surviving vested reminder holder and he came into possession and is enjoying the property. The plaintif is not the son of Sivaiah and hence, not entitled for any share in the property and is not in joint construction and possession of the property and so, there are no bonafides. It is prayed to dismiss the suit.

4.Basing on these pleadings, the following issues were framed for trial by the learned trial court:

1.Whether the plaintif is the natural son of Mutakani Sambaiah?

2. Whether the suit schedule properties are joint 5 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

family properties of plaintif and defendant?

3.Whether the plaintif is entitled for partition of the suit schedule properties into two equal shares and for metes and bounds with separate possession?

4.To what relief?

5.During the course of trial, the plaintif was examined as

P.W.1. Besides himself, the plaintif has examined P.W.2 and got marked Ex.A1. On the other hand, the defendant was examined as

D.W.1. D.W.2 was also examined and the defendant got marked

Exs.B1 and B2 on his behalf.

5(a). The trial court has dismissed the suit after full fledged trial. Aggrieved by the judgment and decree of the trial court and the dismissal of the suit, the unsuccessful plaintif who is the appellant herein has preferred the present appeal on the following grounds :-

The Judgment and decree of the trial Court is contrary to law, weight of evidence and the probabilities of the case. The trial court has failed to consider the oral and documentary evidence placed on behalf of the plaintif in proper way. The trial

Court has wrongly held that there is no record to show that the plaintif is the son of Sivaiah and no record that Sivaiah got married. The trial Court has wrongly held that since the dispute is regarding the relationship, the burden lies heavily on the plaintif and that the plaintif filed no scrap of paper to the efect that he is the son of Sivaiah. The trial court has wrongly held that the plaintif is not entitled for partition as he has failed to prove the relationship between him and Sivaiah. The trial Court gave the 6 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

Judgment upon surmises and conjectures and the Judgment is liable to be set aside.

6.Arguments heard.

The learned counsel for the appellant/Plaintif has submitted that there is no denial regarding Ex.A1. It is only disputed by the defendant that the plaintif is not the son of

Sivaiah. The version that Sivaiah has died unmarried and issueless is false and it is prayed to verify the written statement averments and the evidence of D.W.2. It is also submitted that the plaintif as appellant has filed IA.266/2022 to receive the

additional documentary evidence which goes to establish that he

is the son of Sivaiah. It is prayed to allow the appeal.

Per contra, the learned counsel for the respondent/defendant has submitted that the cist receipts are in the name of the defendant and except Ex.A1, no other document is filed by the plaintif and this Sivaiah has died in the year 1992.

He has sought to verify the paragraphs 9 and 12 of the

Judgment and also he has submitted that Para 12 is the basis for the Judgment. On humanitarian grounds, the plaintif was brought up by the family of Mutakani Kotaiah and on this ground, the plaintif cannot seek any share in the family properties, particularly under Ex.A1. There is also submission by both the counsel regarding the door numbers of the residential house at Park road, Guntur and it is contended that the documents now sought to be filed in the appeal are fabricated and cannot be received as 7 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

the ingredients of Order 41, Rule 27 of C.P.C are not satisfied.

7.Basing on the contentions of both the parties, now the points formulated for consideration in this appeal are:

1.Whether the plaintif is the natural son of Mutakani Sivaiah and if so, entitled for partition and separate possession of share in the plaint schedule property as prayed for?

2.Whether the Judgment passed by the trial Court is factually and legally sustainable?

3.To what relief?

Point No.1:

8.This is a suit filed by one Mutakani Samba Siva Rao claiming to be the son of Mutakani Sivaiah seeking partition and for his separate 1/2 share in the plaint schedule property which is in an extent of Ac.1-00 cents. The relevant facts for deciding the present case are that originally one Mutakani Kotaiah through whom the parties to this litigation are claiming the suit schedule property has executed one registered gift settlement deed i.e.,

Ex.A1 dt.21.2.1984. It is not in dispute that this Mutakani Kotaiah has executed this document by creating life interest in his favour, in favour of his elder son Venkateswarlu, wife of Venkateswarlu by name Padmavathi and one Sivaiah who is his grandson i.e., son of

Sambaiah. This Kotaiah has got four sons and of-course according to the defendant, Sri Kotaiah has got one daughter also by name Smt Rukminamma. The sons of Kotaiah are

Venkateswarlu, Aadi Seshu, Sambaiah and Guru Murthy. The plaintif contends that this Guru Murthy is also called as Gandhi.

8 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

Since this Aadi Seshu and Gandhi have died intestate and issueless and further as Guru Murthy was a bachelor, the present litigation is concerned with the branches of Venkateswarlu and

Sambaiah only. The vested remainder rights were allotted in favour of the defendant herein who is the grandson of

Venkateswarlu and Padmavathi and also in favour of the male issues if any that may be born to Sivaiah (Sivaiah is the son of

Sambaiah and the grandson of Kotaiah). The stand of the defendant is that Sivaiah remained unmarried and had no male issues or any children. The plaintif is not the son of Sivaiah and hence as per this Ex.A1 gift deed, the entire property now devolves on him alone. It is the categorical stand of the defendant in the written statement that this Sivaiah began to live with one pregnant woman at Park road, Mangalagiri and after she gave birth to a male child, she has eloped with some other person by leaving the baby boy in the house of Sivaiah and out of humanitarian grounds, the Senior paternal uncle of Sivaiah (who is the grandfather of the defendant) and his wife Padmavathi have brought up the child i.e., the plaintif herein and he is not the son of Sivaiah and hence, not entitled for any share in the plaint schedule property.

9.The plaint discloses confusing pleadings that the plaintif is the son of Mutakani Sambaiah (which ought to be

Mutakani Sivaiah) and that there is life interest in favour of

Mutakani Aadi Seshu, S/o Sankara Rao which is nobody’s case.

Considering the Ex.A1 filed by the plaintif, the defendant is 9 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

actually having vested reminder. So, the pleadings are confusing and further, does not disclose the requisite details as to when the plaintif was born i.e., his exact date of birth. The plaint discloses that Sivaiah has died in the year 1992, this Venkateswarlu has died in the year 2011 i.e., 4 years prior to the filing of the suit itself (D.W.1 says that Venkateswarlu has died in the year 1992) and Padmavathi who is the wife of Venkateswarlu has died about 10 years prior to the plaint. So, all the 4 persons i.e., Kotaiah,

Venkateswarlu, Padmavathi and Sivaiah who had life interest have died by the date of the filing of the suit. To this extent, there is no dispute.

9(a). Adverting to the crux of the dispute i.e., whether

Sivaiah is the father of Sambasiva Rao or not i.e., the plaintif herein, the plaintif except filing the Ex.A1 i.e., copy of the registered gift deed did not choose to exhibit any document. Not even the documents relating to his relationship with Sivaiah are filed by the plaintif inspite of the only defence taken by the defendant in the written statement that the plaintif is not the son of Sivaiah and by putting forth the circumstances under which

Sivaiah is brought up by the paternal grandparents of the defendant. P.W.1 has deposed that there is vested reminder in favour of himself and the defendant and that they have been enjoying the property jointly all these days after himself and the defendant became the absolute owners of the plaint schedule property. According to him, Mutakani Sivaiah is his father who has died in the year 1992. Inspite of the specific denial of relationship 10 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

between Sivaiah and the plaintif by the defendant, no rejoinder is filed by the plaintif putting forth the details necessary for ascertaining his relationship with Sivaiah. It is observed by the

Hon’ble High Court in 2011 (0) SCJ Online A.P Page 748

between Yadla Venkata Subbamma and others Vs. Yadla

Punnamma and others decided on 24.11.2011 that when a specific plea is raised in the written statement, the plaintif is under an obligation to file rejoinder if he intends to dispute such plea. In the absence of rejoinder, the plea raised by the defendant virtually stands unrebutted. Admittedly, the plaintif in this case did not file any rejoinder. Furthermore, during the cross- examination, P.W.1 has stated that he has studied upto 7th class at

C.K. Junior College, Mangalagiri and that the father of the defendant got him admitted in the School and in the school records, his father’s name is got noted as Sankara Rao and that he was admitted in the year 1994 to 1995. May be obviously for this reason, the school records are suppressed by the plaintif during the trial and of course now in the appeal, some school documents are filed along with the petition under Order 41, Rule 27 C.P.C.

For the reasons discussed therein, the said application is dismissed by this Court.

9(b). Regarding the crucial details touching the crux of the dispute, P.W.1 has stated that he does not know where he was born. He has further stated that:- he does not know the name of his mother, he does not know with whom the marriage of his father was 11 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

celebrated, but while he was a child, she left, he does not know whether his mother was alive or not, he does not know his age by the time of execution of Ex.A1 and admittedly, the name of the plaintif is not seen in Ex.A1 dt.21.2.1984.

10.The defendant claims that the plaintif has not even put forth his specific date of birth. If really Sivaiah has married any one by then and was expecting child during that year i.e., 1984, there would had been mention of that fact in Ex.A1. According to the learned counsel for the plaintif, as seen from the subsequent documents filed by him vide petition under Order 41, Rule 27

C.P.C, the plaintif is also born in the year 1984. Without putting forth the date of birth by the plaintif, it cannot be presumed that he was born in a particular year or that he was born by the date of

Ex.A1 or subsequent to Ex.A1. Significantly, the name of the defendant is seen in Ex.A1. The plaintif claims that he is one year younger to the defendant. If that is so, as the defendant’s name is seen in Ex.A1, atleast, the marital status of Sivaiah would have been mentioned in Ex.A1. The non mentioning of the same is suspicious.

10(a). Furthermore, when the plaintif denies that Sivaiah was a bachelor and pleads ignorance if Sivaiah was addicted to alcohol, to falsify the version in the written statement, he should have atleast clarified who his mother is. P.W.1 states that Sivaiah is having ration card, if Sri Sivaiah has died in the year 1992, 12 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

nothing prevented the plaintif from filing the ration card of Sivaiah to know the family members of Sivaiah. Before this Court, P.W.1 has confusingly stated that limited rights are created in favour of

Sankara Rao and Krishnaveni for enjoying that property which is actually nobody’s case. They are the parents of the defendant.

P.W.1 further admits that Venkateswarlu took care of him and brought him up as he was an abandoned child by his mother and pleads ignorance about the version in the written statement that

Sivaiah began to live with the natural mother of the plaintif while she was pregnant by then carrying plaintif in her womb. He has not even denied this version. Though he states during the cross- examination that he was born in the year 1984, he does not know if he was born by the date of Ex.A1 or not as already stated above. So, the testimony of P.W.1 is of no use for establishing his own case.

11.Adverting to the testimony of P.W.2 (Smt Boda

Bhulaxmi), she claims that Mutakani Kotaiah and the father of one

Naga Bhushanam are own brothers and that she is the daughter of this Nagabhushanam. She speaks about the total sons of

Mutakani Kotaiah and that the plaintif is the son of Mutakani

Sivaiah. She has deposed about the execution of Ex.A1 by Kotaiah and that the plaintif and the defendant have become the absolute owners of the properties and in view of the raise in the land prices, when the plaintif has demanded for partition, the defendant did not co-operate. During the cross-examination, this illiterate witness claims that the extent of property is 1/2 acre (which is 13 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

actually Ac.1-00) and that one Sivaiah was married, but she does not know his wife’s name. So, she does not know the crucial details pertaining to this case.

12.On the other hand, when the defendant came into witness box as D.W.1, he has reiterated his written statement contents in his chief examination affidavit by contending that the plaintif who is having association with the family of the defendant being misguided by the villagers has filed this chance litigation.

He has stated in the cross-examination that Sambaiah has got one son by name Sivaiah, though there is another name to Guru

Murthy, it is not Gandhi, that Sivaiah has died unmarried in the year 1992, that after his marriage, he has shifted from park road,

Mangalagiri to Mylar Nagar, Mangalagiri, that the plaintif was residing at Door No. 1-10-19, Park road, Mangalagiri as per Aadhar i.e., Ex.B2 and resided there for another 3 years and denies that the plaintif is entitled for 1/2 share. Very significantly, the defendant has filed Ex.B2 acknowledgement which is a crucial document supporting the stand of the defendant. This Ex.B2 is the acknowledgement pertaining to the enrolment by the plaintif for

Aadhar. It is shown to be pertaining to Mutakani Sambaiah, care of

Venkateswara Rao, 1-1019 park road, old Mangalagiri, Mangalagiri and this was issued on 6.6.2011 i.e., much prior to the filing of the suit. So, this Ex.B1 not disclosing that the plaintif is son of

Sivaiah is fatal.

12(a). D.W.2 is one Boda Sivaiah who has migrated to 14 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

Boyapalem village from Mangalagiri about 10 years back.

Surprisingly, his chief examination affidavit discloses that the father of the plaintif is his maternal uncle by courtesy. Next, he proceeds to state that Sivaiah has remained unmarried. If that is so, who is the father of the plaintif to whom he was referring to in the first paragraph as his maternal uncle is confusing. He reiterates the version that Sivaiah was living with a pregnant woman who later has eloped with some one after giving birth to a male issue i.e., the plaintif herein. This witness furthermore confuses the case facts when he states that the father of Sivaiah is Sambasiva Rao. Actually, the father of Sivaiah is Sambaiah. He went on to add that Sivamma is the wife of Sivaiah and he knows that Sambasiva Rao is the son of Sivaiah. He could not state the number of children of Kotaiah nor about the children of Sankara

Rao. Much importance cannot be given to the oral testimonies of

P.W.2 and D.W.2 which are no way going to throw any light on the present litigation. However, the testimonies of P.W.1 and D.W.1 are significant in the context of this case. The plaintif has failed to elicit any material from D.W.1 nor could establish as to how he is claiming property and in what way he is related to the family of

Kotaiah. Since this is the crux of the issue, as the plaintif has failed to prove that he is the natural son of Sivaiah, he is not entitled for share in accordance with the recitals of Ex.A1. This

Court is of the considered opinion that the Point No.1 has to be held against the plaintif and accordingly decided.

15 A.S.280/2016 of V A.D.J.C., Guntur, Dt.26.12.2022.

Point No.2:

13.The Judgment and the findings of the learned trial Court does not sufer from any infirmities and the trial court has appreciated the oral and documentary evidence in right perspective. Hence, the appeal is liable to be dismissed and accordingly, dismissed.

Point No.3:

14.In the result, the Appeal is dismissed with costs by confirming the decree and Judgment in Original Suit No.163/2015 dt.23.7.2016 on the file of learned Senior Civil Judge’s Court,

Mangalagiri.

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

corrected and pronounced by me in open Court on this the 26th day of DECEMBER, 2022.

Sd/- R. Sreelatha,

V Addl. District Judge, Guntur.

APPENDIX OF EVIDENCE

No oral or documentary evidence is adduced on either side.

Sd/- R. Sreelatha,

V Addl. District Judge, Guntur.

Copy to: The learned Senior Civil Judge, Mangalagiri.

1 SC.314/2010 of V A.D.J.C., Guntur, Dt.27-12-2022

IN THE COURT OF V ADDL. DISTRICT & SESSIONS JUDGE, GUNTUR

-CUM-SPECIAL JUDGE FOR TRIAL OF OFFENCES AGAINST WOMEN,

GUNTUR

PRESENT: R. SREELATHA,

V ADDL. DISTRICT & SESSIONS JUDGE-CUM SPECIAL JUDGE

FOR TRIAL OF OFFENCES AGAINST WOMEN, GUNTUR

Tuesday, the 27th day of DECEMBER, 2022.

SESSIONS CASE No.314/2010

in Cr.No.79/2009 of Pattabhipuram L&O Police Station

Between: State: Represented by the Sub Inspector of Police, Pattabhipuram L&O Police Station.

...Complainant.

-V/s- Sri Mandalapu Srinivasarao, S/o Chowdeswararao, aged 32 yrs, Kamma, Saibaba road, Guntur.

...Accused

* * *

This case came up before me on 26-12-2022 for final hearing in the presence of Additional Public Prosecutor for the State/Complainant and of Sri Ch. Radha Krishna Murthy, Advocate for the accused and upon perusing the material evidence on record and the matter having stood over for determination till this day, this court delivered the following:

J U D G M E N T

The Sub Inspector of Police, Pattabhipuram L&O Police Station has filed the charge sheet against the accused for the offences under

Sections 448, 354 and 506 of Indian Penal Code in Crime No.79/2009 of

Pattabhipuram L&O Police Station.

2.The case of the prosecution in brief is that the victim i.e.,

P.W.1 is the sister of L.W.2 Sri Naga Pavan Kumar and she studied

B.Tech. As the accused was harassing the victim to marry him, a case was registered against the accused and his family members vide

Cr.No.46/2009, in which they were arrested and enlarged on bail. The accused has developed ire against the victim on this count and so, he 2 SC.314/2010 of V A.D.J.C., Guntur, Dt.27-12-2022 started contacting the victim on her cell phone besides giving messages. On 13.5.2009 at about 2-00 P.M., when the victim and her brother were in the house, in the absence of her mother, the accused has criminally trespassed into the house, attempted to push her forcibly out of the house to take her into a car stationed there. He has threatened her with dire consequences. When she raised cries and drew the attention of her brother and others and when they rushed to the spot, the accused has fled away by threatening her. In this regard, again the present case was registered vide Cr.No.79/2009.

The name of another accused by name Trivedi was deleted and this accused alone was charge sheeted who has later surrendered before the Court. Thus, the accused has criminally trespassed into the house of the victim, assaulted her in order to lift her from the house and threatened her with dire consequences and is liable for the offences under Sections 448, 354 and 506 of Indian Penal Code.

3.This case was taken on file under Sections 448, 354 and 506 of Indian Penal Code against the accused. On his appearance

before the learned committal court, the copies of the documents were

furnished to him as required under Section 207 of Cr.P.C. As the offence under Section 354 of Indian Penal Code is exclusively triable by the court of sessions, the case is committed to the Hon’ble Principal

Court of Sessions, Guntur and thereafter, it was made over to the

I Addl. Assistant Sessions Court, Guntur for disposal according to law.

Later, it was transferred to this court on the point of jurisdiction as this

Court is established for trial of offences against women.

4.After the examination of the accused under Sec.228 Cr.P.C, the charge under Sections 354, 448 and 506 (i) of Indian Penal Code is 3 SC.314/2010 of V A.D.J.C., Guntur, Dt.27-12-2022 framed against the accused, read over and explained to him in Telugu, for which, he has pleaded not guilty and claimed to be tried.

5.During the course of trial, the prosecution has examined

P.W.1, P.W.1A, P.W.2 and P.W.3, got marked Exs.P1 to P4 and no material objects are marked. After the completion of the prosecution side evidence, the accused was examined under Sec.313 Cr.P.C. as to the incriminating material appearing in the evidence of the prosecution witnesses, for which, he has denied the same and reported no defence evidence.

6.Arguments heard.

The learned Addl. Public Prosecutor has submitted that due to long lapse of time, the victim/P.W.1 could not be secured for cross- examination and that the prosecution has placed all the available material on record. He has prayed to convict the accused basing on the available material.

6(a). Per contra, the learned counsel for the accused has submitted that the testimony of P.W.1 is incomplete and cannot be looked into. The neighbour who is the proposed eyewitness i.e., P.W.1A has not supported the prosecution case and absolutely, there is no material to decide the guilt of the accused and sought to extend the benefit of doubt to the accused.

7.Now the Point that arises for determination is

“Whether the prosecution could bring home the guilt of the

accused for the alleged offences under Sections 354, 448 and

506 (1) of Indian Penal Code beyond reasonable doubt ?”

4 SC.314/2010 of V A.D.J.C., Guntur, Dt.27-12-2022 7(a).To prove the offence under section 354 of Indian Penal

Code, the prosecution has to establish that the accused has assaulted or used criminal force on the victim, intending to outrage or knowing it to be likely that he will there by outrage her modesty. This offence is punishable with imprisonment of either description for a term which shall not be less than one year, but which may extend to five years and shall also be liable to fine.

7(b). To prove the offence under section 448 of Indian Penal

Code, the prosecution has to establish that the accused has committed the offence of house trespass by entering into the house of the victim.

This offence is punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

7(c). To prove the offence under section 506(i) of Indian Penal

Code, the prosecution has to establish that the accused has committed the offence of criminal intimidation by threatening the victim with injury to her person or reputation or of any one in whom that person is interested with an intent to cause alarm to her. This offence is punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

8.The perusal of the Ex.P2 report marked through P.W.2 (which was also marked earlier as Ex.P1 through P.W.1 before the I

Addl. Assistant Sessions Judge’s Court, Guntur) goes to show that the victim who has studied upto B.Tech., has earlier filed case against the accused at Pattabhipuram Police Station in Cr.No.46/2009 and in that case, the accused, his family members were enlarged on bail. Since 5 SC.314/2010 of V A.D.J.C., Guntur, Dt.27-12-2022 about 5 days prior to this report, the accused was sending messages from the given cell number to the victim. On 13.5.2009, at about 2-00

P.M. while the victim and her brother were at the house and while she was watching T.V., the accused came into the house and forcibly dragged her out of the house. By then, the back door of the blue colour car was kept open. Apart from the driver, another person was sitting in that car. She raised cries and the accused asked Trivedi to catch her and also threatened the victim that he would kill her. When the victim raised cries, her brother came to her rescue and on seeing the passers by, the car was taken away at high speed from the spot.

The accused shouted that she could escape today, but he would catch her again. By threatening, he left from there and after going from her house, he started again giving threatening messages and as there was life threat, this report was lodged on 14.5.2009 at about 9-00

P.M.

8(a). In this case, the prosecution has examined one Suneetha as P.W.1A who is the owner of the house in which the victim was residing during the relevant time, P.W.2 who has registered the F.I.R and the present S.H.O. i.e., P.W.3 in place of the then Investigating officer Sri Sesha Rao who is no more now. Also, there is incomplete evidence of P.W.1 i.e., the victim herself which is not subjected to cross-examination.

As seen from the records, on 29.7.2010, P.W.1 was examined in chief and Ex.P1 was marked and some witnesses were binded over. Thereafter, from the next adjournment onwards, the stay was granted by the Hon’ble High Court and later, the case was made 6 SC.314/2010 of V A.D.J.C., Guntur, Dt.27-12-2022 over to this Court on point of jurisdiction.

9.Before discussing the evidence of the victim which is incomplete and not subjected to the cross-examination at all, if the evidence of P.W.1A i.e., Suneetha is perused, though she has stated that the victim was earlier their tenant and that the victim was residing with her family members, she states that they stayed at her house for one month only. She has pleaded ignorance about the avocation of the victim and the reasons as to why they have vacated the house within one month. She has even pleaded ignorance about this case and about the accused committing any offence against the victim. She has denied to have stated to the Police that on account of the behaviour of the accused, the victim and her family members who were residing at

Sai Baba road vacated that house and came to her house and that the victim also left her Assistant Professor job on account of the harassment of the accused and that the victim earlier has lodged the report at Pattabhipuram Police Station. She is the proposed eyewitness to the incident, but she has denied that on 13.5.2009, they heard the cries and saw the accused dragging the victim towards a car and that on hearing her cries, they came out and at that time, the accused has left the victim by threatening the victim. She has denied her Section 161 Cr.P.C. statement as in Ex.P1A (Suo motu corrected as

Ex.P1A from Ex.P1)

10. P.W.2 has registered this case basing on the report of the victim given at 9-00 P.M. to the effect that the accused has tried to take her forcibly into the car and that he is sending threatening messages to her and so, there is life threat from the accused. He has registered

Ex.P3 F.I.R and when cross-examined by the counsel for the accused, 7 SC.314/2010 of V A.D.J.C., Guntur, Dt.27-12-2022 he has stated that the written report was brought to him, that he did not obtain the signature of the informant in the F.I.R and also that the victim came with her mother to the Police Station. The testimony of

P.W.3 who is the present C.I. of Pattabhipuram Police Station goes to show that Sri K. Sesha Rao, Sub Inspector of Police who was the S.H.O.

of Pattabhipuram Police Station during the period 1.10.2008 till 29.11.2009 is no more and while he was in service as Inspector of

Police, this Sesha Rao has died on 8.3.2021. Basing on the records,

P.W.3 has given evidence to the effect that P.W.2 has registered the case and Sri Sesha Rao took up further investigation from the A.S.I., examined the victim and her brother and recorded their statements. At the scene of offence, Sri Sesha Rao has observed the scene and prepared rough sketch under Ex.P4 and also examined the witnesses namely Rajya Lakshmi, P.W.1A, Suseela and recorded their statements.

The accused has surrendered at the Police Station and the charge sheet was filed. He admits during the cross-examination that he did not work with Sri Sesha Rao earlier together and only basing on records, he is giving evidence. He denies that Sri Sesha Rao has not conducted the investigation as deposed and that the accused is falsely implicated even though no such incident took place.

11.In the present case on hand, the prosecution has miserably failed to examine the crucial witnesses i.e., L.W.2 Pawan Kumar who is the brother of the victim, proposed eyewitnesses L.Ws.3 and 5 namely

Rajya Lakshmi and Suseela and the whereabouts of these witnesses are not known. The evidence of these witnesses is closed on the request of the prosecution. As already stated, the Investigating officer is also not available as he has died and in his place, the present S.H.O of that Police Station is examined.

8 SC.314/2010 of V A.D.J.C., Guntur, Dt.27-12-2022

It is seen that while the case was pending before the I Addl.

Assistant Sessions Judge’s Court, Guntur, the victim was produced for her evidence and she was examined in chief as P.W.1 and on that day, her cross-examination was deferred. Before this court, it is reported that the whereabouts of this witness are not known now. P.W.1 before the I Addl. Assistant Sessions Court during her chief examination has spoken the prosecution case, the contents of her report, the allegations against the accused and particularly, the incident that occurred on 13.5.2009. In view of the continuous harassment of the accused, afraid of the same, her family has shifted to Maruthi Nagar 2nd line and she worked as Assistant Professor in V.V.I.T. Engineering College, Namburu after completion of B.Tech. She has quit that job and on 8.3.2009, 16.3.2009, the family members of the accused and the accused came to Maruthi Nagar, Guntur and regarding that incident, they gave report at Pattabhipuram Police Station on 16.3.2009. Significantly, even the prosecution did not choose to file that material relating to the crime registered on 16.3.2009 at Pattabhipuram Police Station which is the genesis for the present case. After the accused and his family members were released on bail, the accused started threatening her and on 13.5.2009 at 2-00 P.M., while she along with her brother were in the house, the accused has intruded into her house, caught hold of her and dragged her and she screamed to save her self. She found a blue colour Indica Car stationed and the back door of the car was kept open. The accused has threatened her and addressed the person sitting in the car as Trivedi, come out and hold me (her) tightly and pulled her. Significantly, only this accused is charge sheeted, but not the other persons including the Trivedi whose name is seen in the F.I.R.

Meanwhile, her brother intervened and the car left. The accused has 9 SC.314/2010 of V A.D.J.C., Guntur, Dt.27-12-2022 fled away uttering that though not this time, he would catch hold of her next time and sent threatening messages to her. Hence, she lodged the present report under Ex.P1. The cross-examination is simply recorded as deferred. No reasons are recorded as to why the cross- examination was deferred at that time. But the fact remains that the testimony of P.W.1 is not subjected to cross-examination and so, it is an incomplete evidence.

11(a).Even otherwise, this testimony of P.W.1 does not find support from any other evidence on record and the Investigating officer has also not chosen to exhibit the relevant material of the earlier crime. Not even the call data is collected even though the specific mobile numbers are given by P.W.1 in her evidence. The threats were given by way of cell phone messages as seen from the testimony of P.W.1, but inspite of it, the investigating agency has not collected the relevant details. In fact, there is no evidence regarding the seizure of the cell phone of the accused, so also the victim and no such material is exhibited. The crucial witness i.e., P.W.1A has not supported the prosecution case and due to the non-examination of the

Investigating officer who conducted the investigation in this case (on account of his death), this Court is bereft of the important material to connect the accused with the present offence. So, the prosecution has failed to place convincing material regarding the charges against the accused and since the testimony of P.W.1 is not subjected to cross- examination, the same cannot be used against the accused and it causes prejudice to him. Furthermore, it is uncorroborated and cannot be the sole basis for conviction for the reasons stated above.

Therefore, in the facts and circumstances of the case, the accused is entitled for the benefit of doubt and accordingly acquitted under 10 SC.314/2010 of V A.D.J.C., Guntur, Dt.27-12-2022

Section 235(1) Cr.P.C.

12.In the result, the accused is found not guilty for the offences punishable under Sections 354, 448 and 506(1) of Indian

Penal Code and is acquitted under section 235(1) of Criminal Procedure

Code. The bail bonds of the accused shall remain in force for 6 months from the date of this Judgment Under Section 437-A of Criminal

Procedure Code. No material objects are exhibited in this case.

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

corrected and pronounced by me on this the 27th day of DECEMBER, 2022.

Sd/- R. Sreelatha,

V ADDL. SESSIONS JUDGE,

-Cum-Special Judge for Trial of offences against Women, Guntur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For prosecution :-For Defence:- P.W.1 : Victim - None - P.W.1A : Ms Chandragiri Suneetha P.W.2 : Sri Y. Prasada Rao (Investigating officer) P.W.3 : Sri S.V. Rajasekhara Reddy (Investigating officer)

DOCUMENTS MARKED

For prosecution :- Ex.P1 and Ex.P2/-- :Report given by P.W.1 to the Police. Ex.P1A/--:Section 161 Cr.P.C. statement of P.W.1A. Ex.P3/--:First Information Report. Ex.P4/--:Rough sketch.

For Defence :- - Nil - M.Os. MARKED

- Nil -

Sd/- R. Sreelatha,

V ADDL. SESSIONS JUDGE,

-Cum-Special Judge for Trial of offences against 11 SC.314/2010 of V A.D.J.C., Guntur, Dt.27-12-2022

Women, Guntur. 12 SC.314/2010 of V ADJ Court, Guntur. Dt.27-12-2022

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

SPECIAL JUDGE FOR TRIAL OF OFFENCES AGAINST WOMEN, GUNTUR

PRESENT: R. SREELATHA

V ADDL. DISTRICT & SESSIONS JUDGE-CUM SPECIAL JUDGE FOR TRIAL

OF OFFENCES AGAINST WOMEN, GUNTUR

Tuesday, the 27th day of DECEMBER, 2022.

Calendar in Sessions Case No.314/2010

in Cr.No.79/2009 of Pattabhipuram L&O Police Station 1.Name of the CaseSessions Case No.314/2010

2. Name of the committing Spl. Judicial Magistrate of First Class for Prohibition and Excise, Guntur.

Magistrate

3. Name of the complainant State: Represented by the Sub Inspector of Police, Pattabhipuram L&O Police Station.

4. Name of the Accused Sri Mandalapu Srinivasarao, S/o Chowdeswararao, aged 32 yrs, Kamma, Saibaba road, Guntur.

5.Date of

i) Offence13-05-2009 ii)Committal08-04-2010 iii)Apprehension of Accused14-07-2010 iv)Commencement of trial 29-07-2010

v)Closure of trial21-12-2022 vi)Pronouncement of 27-12-2022 Judgment 6.Nature of Offence(s)Under Sections 354, 448 and 506(1) of Indian Penal Code.

7.Plea of Accused Not Guilty 8.Finding of the CourtFound Not Guilty

9. Sentence or order

In the result, the accused is found not guilty for the offences punishable under Sections 354, 448 and 506(1) of Indian Penal Code and is acquitted under section 235(1) of Criminal Procedure Code. The bail bonds of the accused shall remain in force for 6 months from the date of this Judgment Under Section 437-A of Criminal Procedure 13 SC.314/2010 of V ADJ Court, Guntur. Dt.27-12-2022

Code. No material objects are exhibited in this case.

Explanation for Delay:- Originally, this case was received from the learned Spl. Judicial Magistrate for Prohibition and Excise, Guntur vide P.R.C.No.2/2010 against the accused by the Hon'ble Court of

Sessions and the Hon’ble Prl. Sessions Judge, Guntur has made over to

the I Addl. Assistant Sessions Court, Guntur for disposal according to law. Later, it was transferred to this court on the point of jurisdiction as this Court is established for trial of offences against women.

On 8.7.2010, the accused was examined and the charge under Sections 354, 448 and 506(i) of Indian Penal Code are framed, read over and explained to him in Telugu, for which he has pleaded not guilty and claimed to be tried. On 29.7.2010, the prosecution has commenced its trial and closed its evidence on 13.12.2022 by examining P.Ws.1, 1A, 2 and 3 and by marking Exs.P1, P1A, P2 to P4 and no material objects are marked. On 21.12.2022, the accused was examined under section 313 Cr.P.C. as to the incriminating material found in the evidence of prosecution witnesses, for which the accused has denied the same and reported no defence evidence. Heard final arguments of both sides on 26.12.2022 and the Judgment is pronounced on 27.12.2022. Hence, there is no delay.

Sd/- R. Sreelatha,

V ADDL. SESSIONS JUDGE,

-Cum-Special Judge for Trial of offences against Women, Guntur.

Copies to:

1. The Hon'ble Registrar (Judl.) High court of A.P., through the District & Sessions Judge, Guntur.

2. The Hon'ble District & Sessions Judge, Guntur

3. The Director of Prosecution, Hyderabad.

4. The Superintendent of Police, Guntur.

5. The Spl. Judicial Magistrate of First Class for Prohibition and Excise, Guntur.

6. The Addl. Public Prosecutor.

1 MVOP.1089/2017 Dt.27.12.2022.

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

V ADDITIONAL DISTRICT JUDGE’S COURT, GUNTUR.

PRESENT: R. SREELATHA Chairman, Motor Accidents Claims Tribunal-cum- V Addl. District Judge, Guntur,

Tuesday, the 27th day of DECEMBER, 2022

M.V.O.P.No.1089/2017

Between:

1. Ms. Nathani Vijayalakshmi, W/o Late Rama Rao, aged 42 yrs, Coolie,

2. Ms. Karumanchi Madhuri, W/o Kiran Kumar, aged 26 yrs, Unemployee.

3. Ms. Nathani Nagasri, D/o Late Rama Rao, aged 22 yrs, Unemployee.

4. Ms. Nathani Annapurnamma, W/o Late Bapanaiah, aged 68 yrs,

All are residents of Chinakondrupadu Village, Prattipadu (M), Guntur District, A.P.

....Petitioners.

-AND-

1. Sri Mogili Sambaiah, S/o Venkata Swamy, Hindu, aged not known, 3-7, Main Road, Kanaparru Village, Nadendla Mandalam, Guntur District, A.P. (Owner of Goods carriage, Bearing No.AP 07TL 0016)

2. M/s. ICICI Lombard General Insurance Company Ltd., Rep. by its Branch Manager, I.C.I.C.I Lombard House, 414 Veer Sankar Marg. Near Siddivinayaka Temple, Prabhadevi, Mumbai – 400 025, MH (State)

3. Sri M. Sivannarayana (Died) S/o Venkateswarlu, 6-143 M, Vipparla (V), Rompicherla Mandal, Guntur District, A.P. Driver of Mini Goods carriage, Bearing No.AP 07TL 0016.

4. Sri Mogili Veeranjaneyulu, S/o late Sivannarayana, R/o Gokul Flats, Hindu, aged 22 yrs, Near JNTU, Hyderabad, Telangana State. (Amended as per orders in IA.1194/2019, Dt.27.2.2020) …Respondents.

2 MVOP.1089/2017 Dt.27.12.2022. This Petition came on 23.12.2022 before me for hearing in the presence of Sri M. Nageswara Rao, Advocate for the Petitioners and of Sri G. Srinivasu, Advocate for the 2nd respondent and the respondents 1 and 4 having remained exparte and the 3rd respondent having died, upon perusing the material available on record and having stood over for consideration till this day, this Tribunal made the following: -

AWARD

This is a petition filed on behalf of the petitioners under sections 140 and 166 of Motor Vehicles Act (Herein after referred as M.V. Act) and Rules 455 and 476 of A.P.M.V. Rules for compensation of

Rs.9,25,000/- on account of the death of the deceased Nathani Rama

Rao.

2.The case of petitioners in brief is that on 22.8.2017 at about 1-45 P.M., the deceased (Sri Nathani Rama Rao) was coming on his bike along with cattle fodder on his back side i.e., on bike bearing

No.AP 31CN 0274. He reached Bukkapuram Colony (ST) near

Anjaneya Swamy temple on the State High Way and was talking to his villager by stopping the bike on the road margin. In the meanwhile, the goods carriage bearing No.AP 07TL 0016 i.e., the offending vehicle came in a rash/negligent manner without blowing horn and dashed the motorcycle from his back side. Consequently, the deceased fell in the side canal and the vehicle ran over him. Though he was shifted to Narasaraopet Government Hospital, the doctors have declared him as dead and in this regard, the case in

Cr.No.78/2017 of Nadendla Police Station was registered. The deceased was aged about 45 years, he was hale and healthy and getting Rs.10,000/- per month. The petitioners are his legal heirs and 3 MVOP.1089/2017 Dt.27.12.2022. since the accident has occurred due to the negligence of the driver of the lorry i.e., goods carriage bearing No.AP 07TL 0016, the petitioners are entitled for compensation. It is prayed to grant compensation in an amount of Rs.9,25,000/- with costs and interest.

3.The written statement is filed by the 2nd respondent (the sole contesting respondent) who is the insurer of the goods carriage

Lorry bearing No.AP 07TL 0016 to the effect that the factum and manner of the accident are not admitted, the age, avocation, income and the death of the deceased namely Nathani Rama Rao to be strictly proved, that there was no rash or negligent driving on the part of the driver of goods carriage bearing No.AP 07TL 0016, that the driver had no valid driving licence and the vehicle had no R.C. Hence, the insurance company is not liable to pay any compensation. It is put forth that the accident has occurred due to fault of the deceased himself who has not observed the traffic rules and the vehicle was not insured with the respondent No.2 company. The alleged income of the deceased is also disputed and it is put forth that there is contributory negligence and the deceased was not wearing the

Helmet. The respondent is not liable to pay any compensation for the non compliance of statutory demand under Section 134 (c) of M.V. Act and that these respondents would seek protection under Section 170 of the M.V. Act. It is prayed to dismiss the petition with costs.

4 MVOP.1089/2017 Dt.27.12.2022.

4.The respondent No.1 who is the owner and the respondent

No.4 who is the legal heir of the 3rd respondent (Driver) have remained exparte.

5.On perusal of the pleadings of both sides, the following issues were framed for trial:-

1. Whether the deceased Nathani Rama Rao died in an accident due to rash and negligent driving of the driver (3 rd respondent) of the lorry bearing No.AP 07TL 0016 on 22.8.2017 at Bukkapuram S.T. Colony?

2. Whether the petitioners are entitled for compensation and if so, to what amount and

from which of the respondents?

3. To what relief?

6.In support of the claim of the petitioners, P.Ws.1 and 2 are examined, Exs.A1 to A5 are marked. On behalf of the 2nd respondent, no evidence is adduced and no documents are marked.

7.Heard the arguments on both sides.

The learned counsel for the petitioners has submitted that the respondent No.2 has not let in any evidence and that the petitioners have proved their entitlement for the claim.

Per contra, the learned counsel for the respondent No.2 has submitted the citation to the effect that the dependency factor has to be considered for applying the rate of deduction of personal expenditure of the deceased and that 1/3rd has to be deducted from the income of the deceased towards his personal and living expenses, 5 MVOP.1089/2017 Dt.27.12.2022. but not 1/4th even though 4 petitioners are shown. He has also submitted that the claim is excessive.

Issue No.1:

8.The evidence of P.W.1 who is the wife of the deceased i.e., the 1st petitioner herein is to the effect that her husband on 22.8.2017 at about 1-45 P.M., was coming on his bike bearing No.AP 31CN 0274 along with cattle fodder. When he reached Bukkapuram Village, he has stopped his bike on the road margin to talk with his villager and at that time, the offending vehicle bearing No.AP 07TL 0016 i.e., goods carriage driven by it’s driver i.e., the 3rd respondent in a rash/negligent manner has dashed the deceased Rama Rao from the back side. Consequently, his vehicle fell on the canal and Sri Rama

Rao has died. He was however shifted to Narasaraopet Government hospital and there, declared as brought dead. It is seen from the certified copies of the F.I.R and the charge sheet that the case is registered against one Mogili Sivannarayana, S/o Venkateswarlu i.e., the 3rd respondent herein. The details of the offending vehicle are given as AP 07TL 0016 which tallies with the details given in the present petition. The report is given by the son of the brother of the deceased putting forth the manner of the accident which is reflected in the present petition also. The charge sheet is also filed against the respondent No.3 herein. Furthermore, P.W.2 who is examined by the petitioners is L.W.7 as per the charge sheet. P.W.1 however is not a witness to the accident.

6 MVOP.1089/2017 Dt.27.12.2022.

9.P.W.2 has testified before this Court that on that day, the deceased stood on the road margin and he was talking to him at the time of the accident when the offending vehicle came from the backside and dashed the two wheeler of Ramarao. When the deceased Ramarao fell into the canal, the goods vehicle ran over him, due to which the vehicle also tilted to the side canal. P.W.2 himself gave information to Veeranjanyulu who is the informant of this crime and related to the deceased. They shifted Ramarao to Narasaraopet hospital where he was declared as brought dead. It is categorically stated by P.W.2 that the driver of the offending vehicle is responsible for this accident and that he has witnessed the entire accident. During the cross-examination, he has clarified that himself and the deceased were talking with each other by standing at the road margin when the lorry has hit from back side. As P.W.2 is at a distance of one hand away from the deceased, P.W.2 did not sustain any injuries and he has deposed the lorry number as 16. He states that he did not lodge the report and the accused himself has surrendered before the Police

Station. P.W.2 has denied that he has not witnessed the accident at all.

Nothing could be elicited from P.W.2 regarding the manner of the accident nor that there was any contributory negligence on the part of the deceased. Only on account of the offending vehicle i.e., Goods

Carriage bearing No.AP 07TL 0016 which was driven by the respondent

No.3, this accident occurred. So, in this accident involving the goods vehicle bearing No.AP 07TL 0016, the driver i.e., respondent No.3 has driven the lorry negligently from behind and dashed Sri Rama Rao who was standing at the road margin by stopping his two wheeler and in the result, Sri Rama Rao has died due to the multiple injuries sustained 7 MVOP.1089/2017 Dt.27.12.2022. by him in that accident. Very importantly, even though several pleas are taken by the respondent No.2 in the written statement that there is no valid insurance coverage, no fitness certificate etc. for the vehicle, no such evidence is placed on the record. There is no contributory negligence on the part of the deceased in this accident.

As it is reported no evidence on behalf of the respondent No.2, for the reason of the absence of contrary material also, this tribunal can come to the conclusion that the case set up in the written statement of the respondent No.2 is false. (Reliance is placed on the citation of the

Hon’ble Apex Court in Vidhyadhar Vs. Manik Rao reported in 1999

(3) ALT Page 1). Thus, the Issue No.1 is held in favour of the petitioners.

Issue No.2:

10.The Insurance company has filed Section 170 petition and obtained permission to take the defences available to the owner of the vehicle i.e., the insured. But absolutely, not even the insurance policy is filed and the learned counsel for the insurance company i.e., the 2nd respondent during the arguments has fairly submitted that there is no dispute regarding the policy coverage for the present claim.

The petitioners also have filed the certified copy of the Postmortem certificate and the inquest report of the deceased as Exs.A3 and A4 which discloses the age of the deceased as 53 years. Even though the petitioners claimed that he was aged 45 years at the time of the accident, they did not file any age proof and so, considering the age shown in the inquest and the Postmortem examination, the age of the deceased has to be considered as 53 years only. No evidence is let in 8 MVOP.1089/2017 Dt.27.12.2022. by the insurance company and it is requested by the learned counsel

for the respondent No.2 to consider the notional income since there is

no documentary evidence filed. It is seen that though the deceased is shown to be an agriculturist, no documents relating to his lands are filed and no material is placed to consider that he was earning a particular income from agriculture. However, the fact remains that he was coming with cattle fodder at that time and so, he was hale and healthy, attending his regular works and was maintaining his family.

11. The compensation is payable by the respondents jointly and severally. The deceased was aged 53 years at the time of accident and this Court relies upon the guidelines of the Hon’ble Apex

Court in Sarla Verma and others Vs. Delhi Transport Corporation

and another reported in 2009 ACJ 1298 (SC) and National

Insurance Company Ltd., Vs. Pranay Sethi and others in

SLP.25590/2014, for the determination of the compensation. There is

no evidence except the interested testimony of P.W.1 before this Court regarding the earnings of the deceased i.e., the income of the deceased who was cultivating the lands on lease as per the case of the petitioners. In the absence of any such positive documentary material, this tribunal has to fix the income by way of notional fixation. The monthly income of the deceased can safely be fixed at Rs.6,000/- per month as he was doing cultivation by the time of accident as can be ascertained from the evidence of P.W.1 also. His annual income comes to Rs.72,000/-.

9 MVOP.1089/2017 Dt.27.12.2022.

12.The learned counsel for the respondent No.2 during the arguments has submitted the citation of the Hon’ble High Court reported in 2022 (5) ALD Page 185 (A.P.) (Division Bench)

between Reliance General Insurance Company, Krishna District

Vs. Borra Gowri Ratna Kumari and others pertaining to the legal representatives of the deceased and their dependency on the deceased. It was held that the legal representatives of the deceased are entitled to institute an application for compensation. The dependency of the claimants is a relevant factor for applying the rate of deduction of certain portion of income of the deceased towards personal and living expenditure only.

Taking into account the age of the deceased as 53 years, as he is not the permanent job holder, towards future prospects 10% of the income has to be added. The same comes to Rs.7,200/- (Rs.72,000/- X 10%). Therefore, the total income of the deceased can be fixed at Rs.79,200/- (Rs.72,000/- + Rs.7,200/-).

12(a).Considering the dependency factor, the petitioner No.2 is a married daughter and hence only there are 3 dependents i.e., petitioners 1, 3 and 4. There is no material elicited from P.W.1 about the 3rd petitioner and if she was married or not. By the date of the death of the deceased, she is shown to be an unmarried daughter and no contrary material is elicited by the respondent No.2 to the effect that the 3rd petitioner was also a married daughter. So, considering that there were 3 dependents, as per the guidelines of the Hon’ble

Apex Court, the deduction towards personal and living expenses should 10 MVOP.1089/2017 Dt.27.12.2022. be at 1/3rd of the income of the deceased who was married and having 3 dependents i.e., wife, unmarried daughter and mother. If this 1/3rd deduction i.e., Rs.26,400/- is deducted in the total annual income, it comes to Rs.52,800/- (Rs.79,200 – 26,400/-). So, the contribution of the deceased towards his family would have been Rs.52,800/-. So, the multiplier to be applied is ‘11’ considering the age of the deceased.

Then, it comes to Rs.5,80,800/- (Rs.52,800 X 11).

13.Further, the amounts to be awarded under conventional heads are to be added to the above amount i.e., towards consortium (1st petitioner is the wife of deceased), loss of estate and funeral expenses. Considering the guidelines given in Pranay Sethi’s case, towards loss of estate, loss of consortium and funeral expenses,

Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively are fixed. The said amounts are to be enhanced at the rate 10% in every 3 years.

The accident occurred on 27.8.2017 and since there is lapse of more than 3 years from the date of the accident, the said amounts under conventional heads comes to Rs.16,500/- (Rs.15,000 + 15,000 X 10%) under loss of estate, Rs.44,000/- (Rs.40,000 + 40,000 X 10%) under loss of consortium and another Rs.16,500/- (Rs.15,000 + 15,000 X 10%) under funeral expenses. By addition of the above amounts under conventional heads, the total comes to Rs.6,57,800/- (Rs.5,80,800 + 16,500 + 44,000 + 16,500). Therefore, by way of the above calculation, the petitioners are entitled for the total compensation of

Rs.6,57,800/- under all the heads.

11 MVOP.1089/2017 Dt.27.12.2022. In this case on hand, the respondents 1 and 2 as the owner and insurer are jointly and severally liable to pay the above compensation amount to the petitioners. The liability of the respondent No.4 who is the son of the respondent No.3 has to be restricted to the extent of the estate derived by him from his father.

14. Now adverting to the compensation to be apportioned to the petitioners from out of the compensation amount of

Rs.6,57,800/-, the 1st petitioner is the wife, the petitioners 2 and 3 are the daughters, while the 4th petitioner is the mother of the deceased. The 1st petitioner/wife is entitled for Rs.3,50,000/-, the 2nd petitioner/married daughter is entitled for Rs.82,800/-, the 3rd petitioner/daughter is entitled for Rs.1,25,000/- and the 4th petitioner/mother is entitled for Rs.1,00,000/- towards their shares of compensation.

Issue No.3:

15.In the result, the petition is allowed in part and the respondents are liable to pay the compensation amount of

Rs.6,57,800/- (Rupees Six Lakhs Fifty Seven Thousand and Eight

Hundred Only) along with proportionate costs and interest to the petitioners and the said compensation amount shall be deposited along with proportionate costs and interest at 7.5% P.A. from the date of petition, till the date of deposit within 30 days from today. However, 12 MVOP.1089/2017 Dt.27.12.2022. the liability of the respondent No.4 is restricted to the extent of estate of the deceased 3rd respondent lying in his hands.

On such deposit, the 1st petitioner being the widow of the deceased is entitled for her share of compensation amount i.e.,

Rs.3,50,000/- (Rupees Three Lakhs and Fifty Thousand Only), the 2nd petitioner being the married daughter of the deceased is entitled to a sum of Rs.82,800/- (Rupees Eighty Two Thousand and Eight Hundred

Only) towards her share, the 3rd petitioner being the 2nd daughter of the deceased is entitled to a sum of Rs.1,25,000/- (Rupees One Lakh and Twenty Five Thousand Only) and the 4th petitioner being the mother of the deceased is entitled for a sum of Rs.1,00,000/- (Rupees

One Lakh Only) towards her share. The petitioners 1 to 4 are are permitted to withdraw their respective shares of compensation amounts immediately along with proportionate costs and accrued interest. The Advocate fee is fixed at Rs.5,000/- (Rupees Five

Thousands Only).

Decree follows after verification by office as to payment of court fee and exemption if any sought at the time of filing of case and clearance of court fee dues if any.

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

pronounced by me in the Open Court, on this the 27th day of DECEMBER, 2022.

Sd/- R. Sreelatha,

CHAIRMAN,MOTOR ACCIDENTS CLAIMS

TRIBUNAL-CUM- V ADDITIONAL DISTRICT

JUDGE, GUNTUR.

13 MVOP.1089/2017 Dt.27.12.2022.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioners:For Respondents:

P.W.1: Nathani Vijayalakshmi. - None - P.W.2: V. Ankamma Rao @ Ankamma.

DOCUMENTS MARKED

For Petitioners:

Ex.A1/--:Certified copy of First Information Report. Ex.A2/--:Certified copy of Charge sheet. Ex.A3/--:Certified copy of Postmortem report. Ex.A4/--:Certified copy of Inquest report. Ex.A5/--:Certified copy of Motor Vehicle Inspector report.

For Respondents:

- Nil - X- series: - Nil -

Sd/- R. Sreelatha,

CHAIRMAN,MOTOR ACCIDENTS CLAIMS

TRIBUNAL-CUM- V ADDITIONAL DISTRICT

JUDGE, GUNTUR.

1

SC.243/2021

Dt. 27.12.2022

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

SPECIAL JUDGE FOR TRIAL OF OFFENCES AGAINST WOMEN, GUNTUR

PRESENT: R. SREELATHA

V ADDL. DISTRICT & SESSIONS JUDGE-CUM SPECIAL JUDGE FOR TRIAL

OF OFFENCES AGAINST WOMEN, GUNTUR

Tuesday, the 27th day of December, 2022.

Calendar in Sessions Case No.243/2021

in Cr.No. 125/2020 of Nagaram Police Station 1.Name of the CaseSessions Case No.243/2021

2. Name of the committing Addl. Junior civil Judge, Repalle

Magistrate

3. Name of the complainant State: Rep. by the Inspector of Police, Repalle Rural Circle.

4. Name of the Accused Sri Yemineni Prasad, S/o Koteswara Rao, aged 46 yrs, Gowda by caste, N/o Mrutyunjayapalem Village, Repalle Mandal, Now at Chirakalavaripalem Village of Nagaram Mandal. 5.Date of

i) Offence27.9.2020 ii) Committal25.3.2021

Iii) Apprehension of Accused3.10.2020 iv) Commencement of trial 26.12.2022

v) Closure of trial26.12.2022 vi) Pronouncement of 27.12.2022 Judgment

6. Nature of Offence(s)Under Sections 376(2)(l) of Indian Penal Code.

7. Plea of AccusedNot Guilty

8. Finding of the CourtFound Not Guilty

9. Sentence or order

In the result, the accused is found not guilty for the offence under Section.376(2)(l) of Indian Penal Code and accordingly, he is acquitted under section 232 of Criminal Procedure Code. The bail bonds of the accused shall remain in force for 6 months from the date of this Judgment Under Section 437-A of Criminal Procedure Code. The unmarked clothes deposited vide C.P.R.419/20 on the file of A.J.C.J, Repalle shall be destroyed after the appeal time is over.

2

SC.243/2021

Dt. 27.12.2022

Explanation for Delay:- Originally, this case was received from the learned Addl. Junior Civil Judge, Repalle vide PRC.No.12/2020 against the accused by the Hon'ble Court of Sessions and the Hon’ble Prl.

Sessions Judge, Guntur has made over the same to this Court for trial

and disposal according to law as this court is established for trial of offences against Women.

On 6.10.2022, the accused is examined and the charge under Sections 376 (2)(l) of Indian Penal Code against the accused was framed and read over and explained to him, for which he has pleaded not guilty and claimed to be tried. On 26.12.2022, the prosecution has commenced its trial and closed its trial on the same day i.e., on 26.12.2022 by examining P.Ws.1 and 2 and by marking Exs.P1 to P5. After the closure of prosecution side evidence, as there is no incriminating material available on record, the examination of the accused under Sec.313 Cr.P.C. was dispensed with. Heard both sides on 26.12.2022 and on 27.12.2022, the Judgment is pronounced. Hence, there is no delay.

Sd/- R. Sreelatha

V ADDL. SESSIONS JUDGE,

-Cum-Special Judge for Trial of offences against Women, Guntur.

Copies to:

1. The Hon'ble Registrar (Judl.) High court of A.P., through the District & Sessions Judge, Guntur.

2. The Hon'ble District & Sessions Judge, Guntur

3. The Director of Prosecution, Hyderabad.

4. The Superintendent of Police, Guntur.

5. The learned Addl. Junior Civil Judge, Repalle

6. The Addl. Public Prosecutor, V Addl. District court, Guntur.

3

SC.243/2021

Dt. 27.12.2022

IN THE COURT OF V ADDL. DISTRICT & SESSIONS JUDGE,GUNTUR

-CUM-SPECIAL JUDGE FOR TRIAL OF OFFENCES AGAINST

WOMEN, GUNTUR

PRESENT: R. SREELATHA,

V ADDL. DISTRICT & SESSIONS JUDGE-CUM SPECIAL JUDGE

FOR TRIAL OF OFFENCES AGAINST WOMEN, GUNTUR

Tuesday, the 27th day of DECEMBER, 2022.

SESSIONS CASE No.243/2021

in Cr.No. 125/2020 of Nagaram Police Station

Between: State: Rep. by the Inspector of Police,

Repalle Rural Circle. ...Complainant.

-V/s- Sri Yemineni Prasad, S/o Koteswara Rao, aged 46 yrs, Gowda by caste, N/o Mrutyunjayapalem Village, Repalle Mandal, Now at Chirakalavaripalem Village of Nagaram Mandal.

...Accused.

* * *

This case came up before me on 26.12.2022 for final hearing, in the presence of Additional Public Prosecutor for the

State/Complainant and of Sri G. Vijaya Raj Kumar, Advocate for the accused and upon perusing the material evidence on record and the matter having stood over for determination till this day, this court delivered the following:

J U D G M E N T

The Inspector of Police, Repalle Rural Circle has filed the charge sheet against the accused for the offence under Section 376 (2)(l) of Indian Penal Code in Crime No.125/2020 of Nagaram

Police Station.

2.The case of the prosecution in brief is that the victim was married to LW.6 Raja and has got no kids. While her parents were away for cooly works, on 27.9.2020 at about 7.30 P.M., the 4

SC.243/2021

Dt. 27.12.2022

victim went to Milk booth for sake of milk and the accused who resides near her house was waiting for this opportunity. Finding the victim alone, he caught hold her hand , dragged her towards vacant site nearby the milk shop and pushed her on to the ground. By causing bleeding injury to her lower lip, biting her cheeks and lip, he committed rape on her. When her grand mother who is also her mother in law noticed the mud on the clothes of the victim and injuries. She questioned her and the victim revealed these details. Further, the victim was not an intelligent person. Thus, the accused has committed the offence

U/s.376 (2)(l) I.P.C.

3.After the appearance of the accused before the concerned Court, the learned Addl. Junior Civil Judge, Repalle has taken the cognizance of the case for the offence under Section 376 (2)(l) of Indian Penal Code against the accused and furnished the copies of the case papers. The learned committal court

Magistrate has committed the said case to the Hon'ble Court of

Sessions, Guntur District as the offence under Section 376 of

Indian Penal Code is exclusively triable by the Court of Sessions.

4.Thereafter, the said case which was numbered as

PRC.12/2020 after the allotment of Sessions Case number was made over to this court for trial and disposal according to law as this court is established for the trial of offences against women.

The accused was examined under section 228 Cr.P.C and the

Charge under Sections 376 (2)(l) of Indian Penal Code 5

SC.243/2021

Dt. 27.12.2022

against the accused is framed, read over and explained to him in his vernacular language, for which he has pleaded not guilty and claimed to be tried.

5.During the course of the trial, the prosecution has examined P.Ws.1 and 2 and got marked Exs.P1 to P5. The rest of the witnesses are given up by the learned Additional Public

Prosecutor.

6.After the closure of the prosecution side evidence, the examination of the accused under section 313 Criminal Procedure

Code was dispensed with as there is no incriminating material found against him in the evidence of P.Ws.1 and 2. No material objects are marked.

7.Heard the arguments.

The learned Additional Public Prosecutor and the learned counsel for the accused have fairly submitted to deliver the judgment basing on the material available on record.

8.Now the Point that arises for determination is “Whether the prosecution could bring home the guilt of the accused for the offence under Sections 376 (2)

(l) of Indian Penal Code beyond reasonable doubt ?” 8(a). To prove the offence under section 376 (2)(l) of

Indian Penal Code, the prosecution has to establish that the accused has committed rape on a woman suffering from mental disability.

6

SC.243/2021

Dt. 27.12.2022

9. The perusal of the Ex.P2 report lodged by P.W.1 i.e., the mother of the victim on 30.9.2020 at about 11.30 P.M., discloses that the mental health of the victim is not that good and so, she was married to the own brother of PW.1 about 6 years back and the husband of the victim is also an innocent person.

When, PW.1 and her husband went to attend cooly works to another village, on 29.9.2020 at about 10.30 P.M. the younger son of PW.1 has called her informed that about 2 days back i.e., on 27.9.2020 at about 7.30 P.M., the accused has committed rape on the victim while she was going to get the milk and that the mother of PW.1 inturn informed the same to the son of PW.1.

Then , they returned back and lodged report under Ex.P2.

9(a). P.W.1 is the victim herself and PW.2 is the mother of the victim.

10. PW.1 who is the informant and the mother of the victim has deposed that her victim daughter at times responds to them , other wise remains quite and for this reason of her mental problem, the victim was married to the younger brother of PW.1.

According to PW.1, though the accused is resident of her village, she does not know him. Her version is that she is an uneducated person and when they returned from Kunkalagunta Village from agriculture works, for the sake of house site, her signature was obtained on some white paper by one Malleswari of their village.

PW.1 has pleaded ignorance about the contents of Ex.P2 report 7

SC.243/2021

Dt. 27.12.2022

and has only admitted her signature under Ex.P1. She has pleaded ignorance about the accused committing rape on her daughter. She has denied to have lodged Ex.P2 report and denied the version put forth in Ex.P3 regarding the accused committing rape on her mentally retarded daughter on 27.9.2020 at about 7.30 P.M., When the victim went to bring milk and that this entire incident was informed to her by her younger son on phone.

12. In this context, if the evidence of PW.2 is perused, she is the victim herself. She has understood all the questions put to her by the learned A.P.P properly and gave rational answers

before this court and the same is recorded by this court during

the evidence of PW.2. PW.2 has stated that nothing has happened pertaining to this case. The accused has never misbehaved with her, nor committed any offence against her and that the police did not examine her pertaining to this case.

Further, according to her, at Tenali court, she gave the statement at the instance of the police that the accused has committed offence against her. She has categorically denied about the accused committing rape on her on 27.9.2020 at about 7.30 P.M., and about not disclosing the incident to Nageswara Rao and his wife even though they questioned her and that later she disclosed the incident to her grand mother and stated before the police as in Ex.P4. PW.2 has also denied that she gave Sec.164

Cr.P.C statement as in Ex.P5 voluntarily. She has stated that she does not want to prosecute this case against the accused.

8

SC.243/2021

Dt. 27.12.2022

13. Absolutely, there is no material on record regarding the accused committing the alleged offence against the victim.

The victim and her mother have deposed in unison as if no offence is committed by the accused herein against the victim.

Hence, the material placed on record does not ameliorate the prosecution case in any manner. In the facts and circumstances discussed above, the accused is entitled for the benefit of doubt for the charged offences and accordingly, acquitted under Section 232 of Criminal Procedure Code.

14. In the result, the accused is found not guilty for the offence under Section 376 (2)(l) of Indian Penal Code accordingly, he is acquitted under section 232 of Criminal Procedure Code. The bail bonds of the accused shall remain in force for 6 months from the date of this Judgment Under Section 437-A of Criminal

Procedure Code. The unmarked clothes deposited vide

C.P.R.419/20 on the file of A.J.C.J, Repalle shall be destroyed after the appeal time is over.

Typed by the Typist on bench to the dictation of the Presiding officer, corrected and pronounced by me in the open court on this the 27th day of December, 2022.

Sd/- R. Sreelatha

V ADDL. SESSIONS JUDGE,

-Cum-Special Judge for Trial of offences against Women, Guntur.

9

SC.243/2021

Dt. 27.12.2022

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :-For Defence:- P.W.1 : Suragani Sujatha - None - P.W.2 : Victim (L.W.2)

DOCUMENTS MARKED

For Prosecution :- Ex.P1/--:Signature of PW.1 in the report. Ex.P2/--:Report given by P.W.1 to the Police. Ex.P3/--:Sec.161 Cr.P.C statement of P.W.1. Ex.P4/--:Sec.161 Cr.P.C statement of P.W.2. Ex.P5 /-: Sec.164 Cr.P.C statement of PW.2

For Defence :-- Nil -

M.O. MARKED

- Nil -

Sd/- R. Sreelatha

V ADDL. SESSIONS JUDGE,

-Cum-Special Judge for Trial of offences against Women, Guntur.