Sri. S. China Babu

O.S.No.264 OF 2012 1 A.S.C.J. Court, Kurnool.

IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE,

KURNOOL.

PRESENT: Sri S.China Babu,

Additional Senior Civil Judge, Kurnool.

Wednesday, the Twenty Fourth [24th] day of April, 2019.

ORIGINAL SUIT No.264 OF 2012

Between:

1. Sri N.Ramdas

2. Sri N.Naganna … Plaintiffs

vs

1. Smt.Maddamma

2. Sri Maddaiah

3. Sri Chinna Nagulu

4. Sri Boothanna … Defendants.

* * * *

This Suit, coming on 22.04.2019, for hearing before me, in the presence of Sri Challa Sudhakar Reddy, Advocate for the Plaintiffs, and of Sri T.Chandrasekhar, Advocate for the Defendants No.1, 3 & 4;

Defendant No.2 remained exparte; and upon hearing the arguments of

Plaintiff counsel; and upon perusing the entire material available on record, and having been stood over for consideration till this day, this

Court delivered the following:

JUDGMENT

1.This suit is filed seeking declaration of title of the plaintiffs and for consequential permanent injunction restraining the defendants from interfering with possession of plaintiffs over plaint schedule lands and for costs of the suit.

2.The averments of the Plaint, in brief, are as follows:

The plaint schedule lands are originally owned and possessed by

Konganapati Naganna of Uyyalawada village, who acquired schedule lands from his ancestors. Plaint schedule property is the co-parcenary property of the said Konganapati Naganna. During his life time he had two wives and the first wife is Venkatamma whereas the second wife is

Sunkulamma. During life time of the first wife Venkatamma, Konganapati

Naganna had his second marriage with Sunkulamma and thereby the marriage with Sunkulamma was void. Konganapati Naganna died in or about the year 1940 leaving behind his first wife Venkatamma, one son

Subbanna and two daughters namely Venkatamma and Lingamma and the plaint schedule property in the hands of his only co-parcener

Subbamma. He also left his second wife Sunkulamma and his four sons

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through Sunkulamma namely (1) Dubba Linganna (2) Number Linganna (3) Nadipi Linganna and (4) Chinna Linganna and Boothanna (Defendant

No.4). Dubba Linganna died leaving behind one daughter Maddamma who is the first defendant. Number Linganna died leaving a son who is the second defendant. Chinna Linganna died leaving his son Chinna

Nagulu who is the third defendant in the suit. As the marriage of

Konganapati Naganna with second wife Sunkulamma was void, the 4th defendant and fathers of defendants No.1 to 3 have no manner of right to the plaint schedule lands as they are illegitimate children of

Konganapati Naganna. Subbanna who is the father of the plaintiffs alone inherited the entire plaint schedule property as the sole co-parcener and as an absolute owner.

Subbanna died in the year 1983 leaving the plaintiffs as his co- parceners and as his legal representatives and the plaint schedule property in the hands of the plaintiffs. Since 1983 the plaintiffs are in peaceful possession and enjoyment of plaint schedule lands as absolute owners and the defendants have no manner of right to suit lands. In the month of November, 2011 the defendants demanded the plaintiffs to divide the plaint schedule lands and to give half share, for which the plaintiffs have refused. The father of plaintiffs and the plaintiffs have cultivated the plaint schedule lands every year without any objection from any one including from the defendants since the date of death of

Konganapati Naganna. In view of frequent attempt of defendants to interfere with the possession and enjoyment of plaintiffs over plaint schedule lands, the plaintiffs got issued a registered legal notice dt.23.11.2011 to the defendants and the same was received and got issued reply notice dt.29.11.2011 by defendants denying the title of the plaintiffs. In all the revenue records referred to in the reply notice, the name of Konganapati Naganna is mentioned but the names of defendants were not mentioned. The documents referred to in the reply notice are forged one and thereby not binding upon the plaintiffs. In the registered reply notice the defendants have admitted the possession of plaintiffs over plaint schedule lands. A certified copy of the certificate dt.20.04.2012 issued by the Sub-Registrar, Orvakal shows that Naganna executed a registered mortgage deed dt.04.06.1934 in favour of one

Vemula Ramaiah in respect of plaint schedule lands. The second plaintiff also has obtained a pattadar passbook dt.11.12.1985 from the MRO,

Orvakal in respect of item No.1 of plaint schedule lands. While so, on

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27.05.2012 at about 11.00 AM when the plaintiffs are getting removal of thorny bushes from plaint schedule lands with the help of four coolies, the defendants attempted to stop the work by entering into the said lands. The defendants left the place by threatening the plaintiffs to interfere into the possession of plaint schedule lands. Hence, the suit for declaration and consequential permanent injunction.

3.The Defendant No.2 had remained exparte.

4. Defendants No.1, 3 & 4 filed written statement denying material contentions laid down in the plaint. The averments of written statement of Defendants No.1, 3 & 4 are as follows:

Konganapati Naganna and father of the plaintiffs had sold out the lands to extent of Ac.5.20 cents situated at Uyyalawada village, other than the plaint schedule lands during their life time. The sons of

Sunkulamma had earned the plaint schedule properties with their own efforts and given said properties to their respective sons and hence the plaint schedule properties do not belong to the plaintiffs. The defendants filed genealogical tree with correct particulars and facts. In reply notice of defendants, by oversight it was mentioned as Konganapati Naganna (second wife son). In fact the plaint schedule properties belong to sons of the first wife of Konganapati Naganna. Venkatamma is the second wife and Sunkulamma is the first wife of Konganapati Naganna. The first wife Sunkulamma is the mother of defendant No.4 and grandmother of defendants No.1 to 3. The averments with regard to the name of 4th son of Sunkulamma as whether Chinna Linganna or Boothanna, are not clear. Further, in plaint it is averred that Chinna Linganna i.e., 4th son of

Sunkulamma had died leaving his son Chinna Nagulu (D3). In fact

Chinna Nagulu is alive and one Boothanna, who was referred to in the plaint, is not known to defendants.

The fathers of defendants No.1 to 3 have given their self-earned properties to defendants No.1 to 3. The property earned by Konganapati

Naganna had devolved upon Chinna Linganna (D4). The plaint schedule properties are the properties earned by fathers of defendants No.1 to 3 and the father of defendant No.4. Hence, the claim of plaintiffs to declare their title over plaint schedule properties is wrong and they have no right and title over said properties. In fact, defendants are actually in possession of the plaint schedule properties which they derived from their fathers. Plaintiffs are nothing to do with said properties. The

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defendants have sowed the crop in plaint schedule lands and in possession and enjoyment of the same. The third son of Sunkulamma by name Nadipi Linganna had two sons by name Pedda Nagaseshulu and

Chinna Nagaseshulu (D3). However, the plaintiffs shown Chinna

Nagaseshulu (D3) alone in the plaint and left Pedda Nagaseshulu without showing in the plaint. The plaintiffs intentionally omitted said person and the information furnished by them in the plaint is not sufficient and the suit is bad for non-joinder of necessary parties.

5. Basing on the pleadings, the following issues are settled by the then Presiding Officer, for trial:

1. Whether the Plaintiffs are having absolute title and possession over the Plaint Schedule Properties as on the date of filing of the suit?

2. Whether the suit is bad for non-joinder of necessary parties, as pleaded by the Defendants No.1, 3 and 4?

3. Whether all the sons of late Konganapati Naganna, begot through his wives Venkatamma and Sunkulamma, have got equal shares and rights in the properties left by him?

4. Whether the Plaintiffs are entitled for the relief of declaration and consequential permanent injunction as prayed for?

5. To what relief?

6. During trial, the plaintiffs No.1 & 2 were examined as PW.1 and

PW.2 respectively and got marked Exs.A1 to A10. The chief affidavit filed for PW.3 was eschewed. On behalf of the defendants, the defendant No.1 was examined as DW.1 and got marked as Exs.B1 to B3 and Defendant

No.4 was examined as DW.2 and got marked as Exs.B4 to B6. Third parties were examined as DWs.4 to 6. The Chief affidavit filed for DW.3 was eschewed.

7.Heard the learned Counsel for Plaintiffs and Defendants.

They filed written arguments.

8. POINT:-

Plaintiffs have sought to declare their title and consequential permanent injunction over plaint schedule lands against the defendants.

Hence, burden of proof lies upon the plaintiffs. It is the settled law that the parties i.e., plaintiffs who sought for declaration of their title over suit properties themselves shall prove their title, right and interest over said properties notwithstanding the inability or lacunae on part of the defendants.

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9. In order to establish the case of the plaintiffs, the first plaintiff was examined herself as PW.1 by filing affidavit in lieu of his examination in chief mostly reiterating the averments of the plaint. Plaintiff No.1 is none other than the own younger brother of plaintiff No.2. In addition to oral evidence the plaintiff No.1 produced a pattadar passbook in the name of second plaintiff Naganna and got marked as Ex.A1. When the suit schedule property consists of two survey numbers i.e., Sy.No.727 to an extent of Ac.3.68 cents and Sy.No.821 to extent of Ac.4.04 cents, the

Ex.A1 passbook in the name of second plaintiff shows an extent of

Ac.1.84 cents only in Sy.No.727. It has not shown any land inSy.No.821 i.e., item No.2 of suit property. Another Sy.No.673 was shown in Ex.A1 which is not concerned with suit property. Thus Ex.A1 shows only some extent of item No.1 of suit property in the name of second plaintiff.

10. PW.1 also produced a certified copy of RH page, issued by the

Sub-Registrar of Orvakal, as Ex.A2. A perusal of Ex.A2 shows that one

Sankalapuram Naganna mortgaged plaint schedule property in favour of one Vemula Rachaiah in the year 1934. Name of paternal grandfather of plaintiffs is Konganapati Naganna but not Sankalapuram Naganna. It is no where mentioned in Ex.A2 or plaint that Sankalapuram Naganna @

Nagadu is having another name Konganapati Naganna. Ex.A3 is the office copy of legal notice dt.23.11.2011 got issued by the plaintiffs to the defendants. Ex.A3 does not show the item No.2 of plaint schedule property. The schedule property shown in Ex.A3 notice is Ac.8.02 cents in Sy.No.727 of Uyyalawada village, whereas item No.1 of suit property is only Ac.3.68 cents in the same survey number. Moreover, the boundaries of the item No.1 of suit property and the schedule property of Ex.A3 are altogether different. Ex.A4 is the reply notice dt.29.11.2011, under which the contentions levelled in Ex.A3 were denied.

11. PW.1 further produced office copy of legal notice dt.5.9.2012 issued to Sub-Registrar, Orvakal. This notice is meant to request the

Sub-Registrar, Orvakal not to register the transactions relating to plaint schedule survey numbers, by referring to pendency of present suit. The office copy of legal notice dt.12.08.2014 got issued by the plaintiffs to the Superintendent of Police, Kurnool, was marked as Ex.A6. Under

Ex.A6, the Superintendent of Police, Kurnool was requested to register criminal cases against the defendants alleging that they outraged the modesty of a woman member of family of plaintiffs. Thus, Ex.A5 and

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Ex.A6 legal notices are apparently for limited purpose not helpful to establish the version of the plaintiffs with regard to the title over the plaint schedule property. PW.1 also produced non-availability certificate regarding death of Sunkulamma as Ex.A7 and non-availability certificate regarding death of Venkatamma, as Ex.A8. Under Exs.A7 & A8, concerned authorities stated that the death certificates of concerned persons are not available. These Exs.A7 & A8 are also no way helpful to the plaintiffs to establish their case. A postal acknowledgement dt.06.09.2012 from Sub-Registrar, Orvakal with respect to Ex.A5 legal notice was got marked as Ex.A9. A postal acknowledgement dt.13.08.2014 from Superintendent of Police, Kurnool, with respect to

Ex.A6 legal notice was marked as Ex.A10. These Exs.A9 & A10 are also no way helpful to establish the case of plaintiffs as Exs.A5 & A6 themselves are not useful for said purpose.

12. When the plaintiffs are claiming to declare their title over the plaint schedule property, the plaintiff No.1/PW.1 answered in his cross- examination that he cannot say the boundaries of item No.1 i.e., Ac.3.64 cents in Sy.No.727. He also answered that another land claimed by them is Ac.4.64 cents in Sy.No.768. In fact, the survey number of item No.2 of plaint schedule property is 821, but not 768. Moreover, he deposed that he has no idea of the boundaries of the said land also. Thus on one hand the plaintiffs claim their right, interest and continuous possession and enjoyment over plaint schedule property and on other hand PW.1 could not depose atleast boundaries of the said suit lands. He further answered that he does not have any document to show that the plaint schedule properties belong to Konganapati Naganna.

13. PW.1 further deposed in his cross-examination that he did not file any document to show that there are properties in the name of his father Subbanna. PW.1 also deposed that he did not file any document in his name as the suit properties are not in his name. PW.1 answered that the total extent of Sy.No.727 (item No.1) is Ac.7.72 cents. Ex.A1 pattadar passbook in the name of plaintiff No.2 is only to extent of Ac.1.84 cents.

The item No.1 of suit property is Ac.3.68 cents in Sy.No.727 out of above said total extent of Ac.7.72 cents in said survey number. Hence, the land covered under Ex.A1 passbook of plaintiff No.2 need not be covered under item No.1 of schedule property, unless it is established by plaintiffs that the land covered under Ex.A1 is a part of item No.1 of schedule property.

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14. The aforementioned evidence deposed by plaintiff No.1/PW.1 shows that he does not know the boundaries of plaint schedule lands and that even as per his version, there are no records or documents in the name of father or paternal grandfather of the plaintiffs. On the other hand, the plaintiffs claimed that since the year 1940 their father

Subbanna had been in possession and enjoyment of plaint schedule properties until his death in the year 1983 and before the year 1940, their grandfather Konganapati Naganna had been in possession and enjoyment of the said property. When the continuous possession and enjoyment over said property was claimed for more than 40 years the plaintiffs must be in a position to produce revenue record or other title documents in the name of Konganapati Naganna or their father

Subbanna, but they have totally failed to produce the same, even as per the evidence of PW.1.

15. For establishing the case of plaintiff, the second plaintiff was also examined as PW.2 almost reiterating the averments of chief affidavit of PW.1 and the contents of their plaint. In cross-examination PW.2 answered that he does not have any proof, except his oral testimony, to say that Venkatamma is the first wife and Sunkulamma is the second wife of Konganapati Naganna. With regard to the extents of suit property, PW.2 deposed that item No.1 is Ac.3.60 cents and item No.2 is

Ac.4.40 cents whereas the correct extents are Ac.3.68 cents in item No.1 and Ac.4.04 cents in item No.2 of plaint schedule property. He also deposed that he cannot say the boundaries of the land of item No.2, as he is an illiterate. It is not tenable to say that due to lack of education he could not say at least boundaries of said property. He also answered that he has not filed any revenue record to show that suit schedule lands were in possession and enjoyment of his father.

16. In order to prove the case of defendants and to disprove the case of plaintiffs, the defendant No.1 was herself examined as DW.1 by filing affidavit in lieu of her examination-in-chief mostly reiterating the averments of her written statement. She produced the pattadar passbook issued in her name, as Ex.B1. It shows that she is the pattadar for Ac.1.00 cents in Sy.No.727 and for Ac.1.00 cents in Sy.No.821.

However, the plaint schedule property is Ac.3.68 cents in Sy.No.727 and

Ac.4.04 cents in Sy.No.821. She also produced V.A.No.3 adangal for fasali 1422 i.e., for the year 2012-2013 in her name for the same property as shown in Ex.B1. Therefore, it is the burden of DW.1 to show

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that her Ac.1.00 cents land in each of Sy.No.727 and 821 are part of the plaint schedule items No.1 & 2 properties. However, the evidence produced by her does not show anything that she had proved the said fact. During her cross-examination she admitted that original owner of suit schedule property was Konganapati Naganna of Uyyalawada. She denied the suggestion that Sunkulamma is the second wife of said

Konganapati Naganna and Venkatamma is his first wife. She admitted that suit property got by Konganapati Naganna from his ancestors. This evidence of DW.1 goes against the pleadings in the written statement which say that the suit property was self-acquired by fathers of defendants No.1 to 3 and some portion by Konganapati Naganna.

Moreover, said testimony of DW.1 is supporting the version of the plaintiffs that the suit schedule property was originally owned by

Konganapati Naganna and it is co-parcenary property.

17. Defendant No.4 who is the 4th son of Konganapati Naganna through Sunkulamma was examined as DW.2 who also filed chief affidavit in the similar lines of the averments of chief affidavit of PW.1.

Through DW.2 a pattadar passbook in his name with regard to Ac.1.00 cents in each of Sy.No.727 and 821 was marked as Ex.B4. Concerned title deed was marked as Ex.B5. He also produced an attested copy of

VA.No.3 adangal for fasali 1422 i.e., for the year 2012-2013 in his name for same property as shown in Exs.B4 & B5. However, when the suit property is Ac.3.68 cents in Sy.No.727 i.e., item No.1 and Ac.4.04 cents in Sy.No.821 i.e., item No.2, the burden also lies upon the DW.2 to establish that his property shown under Exs.B4 to B6 is part of plaint schedule property. However, he did not adduce any material to establish the same. During cross-examination DW.2 also admitted that the suit schedule property originally belonged to his father Konganapati

Naganna. However, his version is that the said property belonged to

Government poramboke and it was occupied in the period of his father.

18. One S.Rathnam was examined as DW.4. He is said to be a previous owner of some extent of land in the locality of the plaint schedule property. He averred in his chief affidavit that the defendants are in possession and enjoyment of plaint schedule lands and the plaintiffs are no way concerned with the said lands. However, in his cross-examination he answered that he sold his land around 25 years ago and since then he never visited the said locality and also the suit schedule property. He also answered that he does not know as to which

O.S.No.264 OF 2012 9 A.S.C.J. Court, Kurnool.

crops were raised by the defendant No.1 within the said period of 25 years and that as the suit lands are amicable to grow redgram he is saying that the defendant No.1 is raising redgram in said land. This evidence of DW.4 clearly goes to show that he has no personal knowledge about the possession and enjoyment over the plaint schedule lands for last 25 years and also does not know about the possession of defendants over said lands. Thus his evidence in cross-examination contravenes the averments of his chief affidavit. Hence, his evidence cannot be relied upon with regard to the contended possession and enjoyment of defendants over suit property.

19. One Gudise Nagaraju i.e., DW.5 was said to be a neighbour in the locality of suit property. He also averred in his chief affidavit in the similar lines of the averments of chief affidavit of DW.4 contending that the defendants are in possession and enjoyment over suit lands and that the plaintiffs are no way concerned with the same. In cross-examination

DW.5 answered that he has not given information with regard to the averments of his chief affidavit. He also testified that there is a rastha adjacent to the land of defendant No.1. However, as seen from the answers of defendant No.1/DW.1 in her cross-examination, there was no rastha on any sides of lands in Sy.No.727 and 821 also. Hence, above said answers of DW.5 clearly show that he does not have knowledge about the plaint schedule lands and that the averments made in his chief affidavit were not out of his own version. Hence, his evidence cannot be relied upon in support of the case of the defendants.

20. The defendants had lastly examined one L.Pedda Swamulu as

DW.6 who is said to be a relative and also a previous owner of land in the locality of the suit schedule property. He also mainly averred in his chief affidavit in the similar lines of the averments of chief affidavits of DW.4 and DW.5. His evidence in the cross-examination was not shaken with regard to the material aspects. He emphasizes that both defendants

No.1 and 4 are having lands in Sy.No.727.

21. ISSUE No.1 :

Whether the Plaintiffs are having absolute title and possession over the Plaint Schedule Properties as on the date of filing of the suit?

In order to prove the title of the plaintiffs the evidence produced by them is the oral testimony of both the plaintiffs and Exs.A1 & A2.

Exs.A3 to A10 are not useful. As discussed earlier, the pattadar

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passbook/Ex.A1 in the name of Plaintiff No.2 is concerned with only

Ac.1.84 cents in Sy.N.727 alone. It does not cover item No.2 land and other extent of Sy.No.727. Moreover, Ex.A1 pattadar passbook being a revenue record would not establish the title of the plaintiffs as it is the settled legal position that the revenue record would not confer any title.

Therefore, Ex.A1 is not helpful in establishing the title of plaintiffs over suit lands.

22. Ex.A2, which is a certified copy of record of holding, is in the name of one Sankalapuram Naganna. As discussed above, even as per the case of the plaintiffs, the original owner of suit lands is one

Konganapati Naganna. Name of father of said Konganapati Naganna was said to be Sankalapuram Linganna. Therefore, there is no person in the name of Sankalapuram Naganna. Even the plaintiff No.1 answered in his cross-examination that name of his paternal grandfather is Konganapati

Naganna. PW.2 also clearly deposed in his cross-examination that his paternal grandfather is Konganapati Naganna and said Naganna does not have any other names. The plaintiffs have not explained anything by way of evidence to show that how said Sankalapuram Naganna @

Nagadu, as referred to in Ex.A2, is related with their paternal grandfather Konganapati Naganna. However, Ex.A2 shows only that said

Sankalapuram Naganna mortgaged the plaint schedule property in favour of one Rachaiah. Therefore, both the parties shown in Ex.A2 are not concerned with the parties to the suit or their predecessors in title.

Moreover, even if said Sankalapuram Naganna is assumed to be related to ancestors of plaintiffs, by Ex.A2 itself does not confer any title over the plaintiffs or their predecessors in title. If at all the plaintiffs or their ancestors are having right and interest by way of title over the suit lands, the plaintiffs must have produced the reliable record such as resettlement register or 1B register or adangals and passbooks to show their contended continuous possession and enjoyment as owners from the year 1940 till the death of Subbanna, who is the father of plaintiffs, in the year 1983. When the plaintiffs have such long period of possession and enjoyment being owners it is minimum expectation that they would have reliable record in their name or in the name of their father

Subbanna or in the name of their paternal grandfather Konganapati

Naganna. However, the plaintiffs did not produce any reliable material in that regard and on the other hand they are claiming to declare them as

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owners of the suit property by declaring their title. Hence, the contentions of the plaintiffs appear to be unestablished.

23. DW.1 and DW.2 admitted that the suit property was originally owned by Konganapati Naganna. DW.1 admitted that it is ancestral property. Plaintiffs contended that Venkatamma is the first wife and

Sunkulamma is the second wife and hence the defendants being the successors of said Sunkulamma are not entitled for any property as the marriage of Sunkulamma is null and void. When the plaintiffs contended the same, the burden lies upon them to establish that Venkatamma is the first wife and Sunkulamma is the second wife of Konganapati Naganna.

However, they did not adduce any positive evidence to establish the same. They are relying upon an averment of the reply notice Ex.A4. The relevant portion of Ex.A4 is that “my clients state that the property which is shown in your legal notice purely belongs to Naganna (second wife sons), Dubba Linganna @ Pedda Linganna who is none other than the eldest son of late Naganna”. This portion of averments of Ex.A4 does not give clear meaning. However, in the written statement of

Defendants No.1, 3 and 4 and in the chief affidavit of DW.1 it is clearly pleaded and averred that the said portion of averments were mistakenly mentioned.

24. When the defendants clearly pleaded about the mistake in mentioning the said averments, the plaintiffs have not filed any rejoinder and not confronted with either Defendant No.1/DW.1 or Defendant

No.4/DW.2 with regard to the said averments of reply notice Ex.A4.

Without confronting with said averments to the reply notice Ex.A4, the plaintiffs, appear to be taking advantage of said averments. At this juncture, it is also to note here that the averment “second wife sons” was mentioned by referring to the name Naganna. In fact, said Naganna is not a son of Sunkulamma. On perusal of said averments by itself shows that the averment “second wife sons” was mentioned in wrong place by referring to a wrong person. On the other hand it was pleaded from the beginning by defendants that said averment was mistakenly mentioned. Moreover, this aspect was not confronted to the defendants throughout their cross-examinations by the plaintiffs. Therefore, this

Court is of the considered view that the said averments in the reply notice in Ex.A4 were nothing but stray admissions and does not bear against the case of the defendants in favour of the case of plaintiffs to

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show that Venkatamma is the first wife and Sunkulamma is the second wife of K.Naganna.

25. The plaintiffs have not examined any relatives of the parties to suit or any independent witnesses to show that Venkatamma is the first wife and Sunkulamma is the second wife. When it is not proved that

Sunkulamma is the second wife and thereby her marriage with

Konganapati Naganna was null and void, the defendants automatically get right to claim share in the property of said Konganapati Naganna on par with the plaintiffs who are the successors of Venkatamma. As the plaintiffs have failed to establish that the defendants are the illegitimate successors of Sunkulamma and her marriage with Konganapati Naganna is null and void, the contention of plaintiffs that the defendants do not have any right and interest in the property of Konganapati Naganna i.e., the suit property, is found untenable. Plaintiffs further contended that as per evidence of DW.1 and DW.2 that Venkatamma was around 65 or 75 years old by the time of her death and Sunkulamma was not more than 50 years old by the time of her death, it shows that Venkatamma is the first wife and Sunkulamma is the second wife of Konganapati Naganna.

Though DW.1 and DW.2 have deposed the said ages, as rightly pointed out by the learned counsel for plaintiffs, the mere ages of concerned persons by the time of their deaths would not give a presumption or would not prove as to who is the first wife and who is the second wife. It is well known fact that irrespective of ones ages, one may die earlier or later. Hence, basing on the age of Venkatamma and Sunkulamma by the time of their deaths, it cannot be stated as to who is the first wife and who is the second wife of Konganapati Naganna. Therefore, on this aspect also the contention of plaintiffs is found untenable.

26. The defendants/DW.1 & DW.2 produced the revenue record

Exs.B1, B2 in the name of DW.1 and Exs.B4 to B6 in the name of

Defendant No.4 with regard to the considerable portion of plaint schedule property. Though the said documents do not prove that said lands are part and parcel of suit property, at the same time, it cannot be ruled out totally that the said lands of DW.1 and DW.2 is a part of suit property. Though such revenue record by itself does not confer any title, it shows the possession of said defendants over their corresponding lands. Though Exs.B1, B2 and B6 were undisputedly got in the year 2016 itself, they were related to fasali 1422 i.e., for the year 2012-2013 i.e., by the time of filing of the suit. Therefore, on sole reason that the said

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record was obtained during pendency of the suit, it cannot be left without consideration. More particularly both PW.1 and PW.2 admitted that the suit schedule property is in the possession and enjoyment of the defendants No.1 and 4. On one hand, the plaintiffs failed to adduce reliable evidence to show their possession and enjoyment over suit property and on the other hand they admitted the possession of defendants No.1 & 4 over said lands. Therefore, the Court is of the considered view that the plaintiffs are not in the possession of suit schedule lands and that the defendants No.1 & 4 are in possession of the same.

27. On considering all these circumstances basing on the evidence brought on record the Court is of the considered view that issue No.1 is answered against the plaintiffs.

28. ISSUE No.2 :

Whether the suit is bad for non-joinder of necessary parties, as pleaded by the Defendants No.1, 3 and 4?

In the written statement of Defendants, it is pleaded that one

Pedda Nagaseshulu who is elder son of Nadipi Linganna who is third son of Sunkulamma is alive, but he was not added as a party to the suit and thereby the suit is bad for non-joinder of necessary parties. However, the defendants have failed to adduce any evidence to prove the said fact. On the other hand, though the defendants have not pleaded about a living daughter by name Yellamma of Sunkulamma, both plaintiffs No.1 & 2 admitted that Sunkulamma had four sons and two daughters and out of them Yellamma is the daughter and she is alive.

29. When the plaintiffs are seeking for declaration of their title over the plaint schedule property contending that the said property was originally owned by their paternal grandfather K.Naganna, above said

Yellamma who is admittedly a daughter of Sunkulamma who is admittedly a wife of Konganapati Naganna is a necessary party to the suit for title. Even after the learned counsel for defendants had elicited about the said living daughter of Sunkulamma, the plaintiffs have not taken any steps to add her as a party to the suit. As the plaintiffs have failed to establish that the children of Sunkulamma are the illegitimate children of Konganapati Naganna, said Yellamma is a necessary party to the suit. Hence, on account of non-adding a living daughter of

Sunkulamma the suit is bad for non-joinder of necessary party.

O.S.No.264 OF 2012 14 A.S.C.J. Court, Kurnool.

30. ISSUE No. 3 :

Whether all the sons of late Konganapati Naganna, begot through his wives Venkatamma and Sunkulamma, have got equal shares and rights in the properties left by him?

In the discussion under issue No.1, it is shown that the plaintiffs have failed to establish that the marriage of Sunkulamma with

Konganapati Naganna is null and void. Therefore, all the sons and daughters of said Konganapati Naganna born through Venkatamma and

Sunkulamma have equal shares in the property left over by him i.e., the suit schedule lands.

31. ISSUE No. 4 :

Whether the Plaintiffs are entitled for the relief of declaration and consequential permanent injunction as prayed for?

The evidence produced on record by the plaintiffs, both oral and documentary, has totally failed to prove the sole ownership of plaintiffs over the plaint schedule property. Further more, admittedly the suit property is in the possession of defendants No.1 & 4. The plaintiffs have not sought for delivery of possession from said defendants. These aspects clearly show that the plaintiffs are not entitled for relief of declaration and consequential permanent injunction as prayed for.

Accordingly, issue No.4 is answered against the plaintiffs.

32. The defendants filed a Judgment of Hon’ble High Court of

Madras in R.Appadurai Vs. T.K.Samikkannu, S.A.No.2007/2003 dt.22.07.2015 to contend that the plaintiffs are not entitled for declaration of title. However, in the said judgment the plaintiffs sought for only perpetual injunction inspite of existing dispute for title. By considering said aspect as one of the material grounds, that suit was dismissed. However, in the case on record the plaintiffs sought for declaration of their title also along with consequential relief of injunction. Therefore, said decision is not applicable to the case on hand.

33. The defendants filed another Judgment of Hon’ble High Court of A.P. inP.Veerabhadrappa Setty and another v. Polliki

Chandrahas, 2014(2) ALD 724 to contend that the plaintiffs are not entitled for declaration of title and for injunction. However, said

Judgment is relating to Order 39 Rules 1 & 2 C.P.C. for grant of temporary injunction. In said Judgment the main point for consideration was only with regard to the prima-facie case of the petitioners. The facts

O.S.No.264 OF 2012 15 A.S.C.J. Court, Kurnool.

and circumstances of the case on record are altogether different from that of the judgment cited.

34. Another judgment cited by the learned counsel for defendants is T.Pedda Swamy Reddy v. P.Parvathamma & another, 2011(4)

ALD 670 of Hon’ble High Court of Andhra Pradesh. This Judgment is also relating to suit for perpetual injunction basing on revenue records.

In the said judgment the plaintiffs have not sought for declaration of the title and not given explanation as to nature of acquisition of property by the father of the plaintiff. In those circumstances besides the fact that ;the defendant proved her title therein, the suit for injunction was dismissed. These circumstances are also altogether different from that of available in the case on record.

35. Lastly, the defendants have relied upon a Judgment of Hon’ble

Supreme Court in L.C.Hanumanthappa (Since dead) represented by

his LRs. vs. H.B.Shiva Kumar, in Civil Appeal No.6595 of 2015

dt.26.082015 (arising out of SLP (Civil) No.15513 of 2015). In the said Judgment also the relief sought for is only permanent injunction and the dispute therein was materially with regard to the identity of the two properties and to declare the title over the properties. However, in the case on record the suit is for declaration of title and there is no dispute with regard to the identity of the suit schedule property. Hence, the facts and circumstances and observations made in the said judgment are also found to be not applicable to the case on record.

36. ISSUE No.5 : To what relief?

In view of the afore-discussed facts and circumstances on the evidence placed on record and on the ground of determinations made under various issues, this Court came to the conclusion that the reliefs claimed by the plaintiffs shall not be granted.

In the result, the Suit is dismissed. In view of the circumstances of the case, no order as to costs.

Dictated to Stenographer, transcribed and typed by him, corrected

and pronounced by me in the open Court, on this the 24 th day of April, 2019.

ADDITIONAL SENIOR CIVIL JUDGE,

KURNOOL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFFS

P.W.1 : N.Ramdas P.W.2 : N.Naganna P.W.3 : B.Gorantla (eschewed)

O.S.No.264 OF 2012 16 A.S.C.J. Court, Kurnool.

EXHIBITS MARKED ON BEHALF OF THE PLAINTIFFS

Ex.A1: Pattadar Pass Book, issued in favour of K.Naganna. Ex.A2: Certified copy of R.H.Page, issued by the Sub-Registrar of Orvakal.

Ex.A3: Office copy of legal notice, dt.23.11.2011, issued by the Plaintiffs to the Defendants. Ex.A4: Reply notice, dt.29.11.2011 issued by the Defendants. Ex.A5: Office copy of legal notice, dt.5.9.2012, issued to the Sub-Registrar, Orvakal.

Ex.A6: Office copy of legal notice, dt.12.08.2014, issued to the Superintendent of Police, Kurnool. Ex.A7:Non-availability certificate regarding the death of N.Sunkulamma. Ex.A8:Non-availability certificate regarding the death of Venkatamma. Ex.A9: Postal acknowledgment, dt.6.9.2012 from Sub-Registrar, Orvakal. Ex.A10: Postal acknowledgment, dt.13.8.2014, from S.P., Kurnool.

WITNESSES EXAMINED ON BEHALF OF THE DEFENDANTS

No.1,3 & 4

DW.1: Smt.Maddamma DW.2: Linganna (Boothanna) DW.3: Bathula Sreeramulu (eschewed) DW.4: Sayagari Rathnam DW.5: Gudise Nagaraju DW.6: Lachigari Peddaswamulu

EXHIBITS MARKED ON BEHALF OF THE DEFENDANTS No.1,3&4

Ex.B1: Pattadar passbook in the name of Defendant No.1. Ex.B2: Attested copy of V.A.No.3 adangal for fasli 1422 issued by Tahsildar, Orvakal, relating to plaint schedule property in the name of Harijana Maddamma (Defendant No.1). Ex.B3 : Rough sketch (genealogical tree). Ex.B4: Pattadar passbook of DW.2 (Defendant No.4) with regard to Ac.1.00 cents in Sy.No.727 and Ac.1.00 cents in Sy.No.821. Ex.B5: Title deed of DW.2 (Defendant No.4) with regard to Ac.1.00 cents in Sy.No.727 and Ac.1.00 cents in Sy.No.821. Ex.B6: Attested copy of V.A.No.3 Adangal for fasli 1422 in the name of Defendant No.4 to extent of Ac.1.00 cents in Sy.No.727 and Ac.1.00 cents in Sy.No.821.

ADDITIONAL SENIOR CIVIL JUDGE,

KURNOOL.

FAIR JUDGMENT

O.S.No.264 OF 2012

DT.24.04.2019.

S.C.No.31/2021 VII ADJC, KNL.

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF

OFFENCES AGAINST WOMEN-CUM-VII ADDITIONAL DISTRICT AND

SESSIONS JUDGE, KURNOOL.

Present: Sri.S.China Babu, Special Sessions Judge for trial of offences against Women-Cum-VII Additional District and Sessions Judge, Kurnool.

Tuesday, the 12th day of April, 2022.

S.C.No.31 of 2021

State: Represented by The Inspector of Police, Atmakur Circle. … Complainant

Versus

Nimmakayala Vali Ahmmad @ Shaik Vali Ahmmad, S/o N.Chinna Murthuja, age 35 years, Muslim, R/o Iskala Village, Pamulapadu Mandal, Kurnool District. … Accused.

* * *

This case coming up before me on 11-04-2022 for final hearing in the presence of Sri.S.Narendranatha Reddy, Special Public Prosecutor for the State and of Sri.M.Venkoba Rao and Sri.C.Ravi Kumar, Advocates for the accused, upon hearing both sides, after perusing the material available on record, and after having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1.Thischarge sheet is filed by the Inspector of Police, Atmakur Circle in Cr.No.57/2019 of Pamulapadu Police Station for the offences punishable under Sections 417, 420, 376 and 506 of Indian Penal Code (hereinafter referred to as “IPC”, for brevity) against the accused.

2.In this case the defacto complainant is said to be the victim of rape and thereby her name and identity particulars are not to be disclosed.

Hence, she is to be referred to as “Victim” or “Prosecutrix”.

3.Case of the prosecution, in brief, is as follows:

(a)The accused and the defacto complainant belong to Iskala

Village and their houses also are nearby. The complainant is physically challenged as her right hand was affected with Polio. For the last five years, prior to the starting of the offence, she has acquaintance with the accused. He used to talk to her regularly about her future. While so, on 2 S.C.No.31/2021VII ADJC, KNL.

17-9-2017 at evening time he took her into his house by saying deceitful words and forcibly committed rape on her. He threatened her to kill her parents, had she revealed the matter to anyone. By putting her into such fear, the accused continued sexual intercourse with her for two years, in his house and also in the house of the complainant. However, he did not marry her. Subsequently, the parents of the complainant fixed her marriage with one Althaf of Atmakur town and performed engagement also. When her marriage is to be held in 3 or 4 months, the accused prepared pamphlets by making bad propaganda against her and threw them in the house of her would be parents-in-law, due to which her marriage was cancelled by them. Her would be father-in-law got called her father and handed over the bad propaganda letters and declared cancellation of the marriage. On that, father of the complainant asked her about the issue. Due to acts of the accused she was vexed and attempted to commit suicide, by consuming poison, on 9-3-2019, in her house. Her parents admitted her in Government General Hospital,

Kurnool and after treatment she was discharged. Later, she narrated all the things committed by the accused against her, to her father and lodged report on 27-3-2019.

(b)Basing on the report of the complainant, the Sub-Inspector of

Police, Pamulapadu Police Station Mr.U.V.Vara Prasad registered the case against the accused for offences punishable under Secs.420, 506 IPC. On the same day of registration of the case, the Sub-Inspector of Police examined the complainant, her parents Ahmmad Hussain and Hussain

Bee and recorded their detailed statements. On the next day, he examined one K.Pullaiah of Iskala village and also visited the scene of offence i.e., house of the accused and drawn rough sketch of the same.

Later, he examined the proposed parents-in-law of the complainant at

Atmakur. Later, the Sub-Inspector of Police altered the section of law to

Sec.417, 376, 420 and 506 IPC on 16-5-2019. Subsequent investigation is taken up by Inspector of Police, Atmakur Circle Mr.B.Krishnaiah. On 17-5-2019 he again examined the complainant, her parents and also one

Jareena Begum of Iskala village and recorded their detailed statements and forwarded the complainant to the Superintendent, Government

General Hospital, Kurnool for medical examination. The complainant was examined by the medical officer Dr.M.Umadevi, who collected the swabs and issued sexual assault certificate. Later, the Inspector of Police visited 3 S.C.No.31/2021VII ADJC, KNL.

both the scenes of offences i.e., in the houses of accused and the complainant in the village, observed and drafted the rough sketches of the same. He also examined one Dudyala Moulali and Abdul Saleem of

Iskala village. On 18-5-2019 the Inspector of Police arrested the accused in the presence of mediators by recording his confession under panchanama. After receiving the RFSL report, the medical officer issued her final opinion that the act of sexual intercourse on the defacto complainant cannot be ruled out. Dr.Y.K.C.Rangaiah, Department of

Forensic Medicine, Kurnool conducted potency test over the accused and opined that there is nothing to suggest that the accused is in capable of performing sexual act. The learned Judicial Magistrate of First Class,

Nandikotkur recorded Sec.164 Cr.P.C. statement of the complainant i.e., the victim on 15-6-2019. Subsequently after completion of investigation the then Inspector of Police, Atmakur Circle, Mr.K.Kala Venkata Ramana filed charge sheet.

4.The learned Judicial Magistrate of First Class, Atmakur took cognizance of the offences punishable under Sections 417, 376, 506 IPC against the accused. As the offence under Section 376 IPC is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Division, Kurnool under Section 209(a) Cr.P.C. The

Hon’ble District Court on perusal of the record made over this case to

this Court to conduct trial according to law.

5. On appearance of accused, he was examined and charges under the offences punishable under Sections 376 (1), 376(2)(n), 417, 420 and 506

IPC against the accused were framed, the contents of charge were read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

6.During trial, the prosecution examined PW.1 to PW.11 and got marked Ex.P1 to Ex.P19. No material objects are marked. The accused did not adduce either oral or documentary evidence.

7.On the closure of the evidence on the prosecution side, the accused was examined under Section 313 Cr.P.C. in respect of the incriminating material against him available in the prosecution evidence, for which he denied the incriminating material and reported no defence.

4 S.C.No.31/2021VII ADJC, KNL.

8.Heard the learned Special Public Prosecutor and learned Counsel

for the accused.

9.Now the Points for determination are

1. Whether the accused committed rape on the defacto complainant?

2. Whether the accused committed rape repeatedly on the defacto complainant?

3. Whether the accused committed cheating on the defacto complainant?

4. Whether the accused committed cheating on the complainant and had sexual intercourse with her by deceitful words?

5. Whether the accused criminally intimidated the complainant by threatening her with dire consequences?

6. Whether the prosecution proved the guilt of the accused for the offences punishable under Sec.376 (1), 376(2)(n), 417, 420 and 506 IPC against the accused, beyond reasonable doubt?

POINTS:

10.In view of the nature of the points to be determined, to avoid overlapping of the evidence and repetition of discussion, all these charges are going to be discussed simultaneously.

11.At the outset, it is pertinent to go through the following material averments of the Ex.P1 report presented by the defacto complainant, which led for lodging the F.I.R. The complainant had acquaintance with the accused for five years and he used to discuss with her about her future. While so, on 17-9-2017 he told her the deceitful words and called her to his house at evening and forcibly committed sexual intercourse on her. Then he frightened her by threatening that if she revealed that matter to her elders, he would kill her parents. Likewise, he was committing sexual intercourse with her for two years. Finally she told him that she would not join him for that purpose. It is further contended in Ex.P1 that fortunately her elders fixed her marriage and also held betrothal ceremony with one Althaf, S/o Mohammad Shafi of Atmakur village for performing her marriage within 3 or 4 months. Meanwhile, the accused got typed letters of bad propaganda against her and thrown in the house of her proposed parents-in-law, for which her proposed father- in-law Mohammad Shafi got called her father to his house and declared cancellation of the proposed marriage by referring to character of the complainant and handed over the propaganda letters to her father. Upon 5 S.C.No.31/2021VII ADJC, KNL.

that, she could not sustain the mental agony and thereby consumed rat poison on 9-3-2019 to commit suicide. Then her parents admitted in hospital and got treatment. When they asked her as to the matter, she narrated the incidents committed by the accused. After the complainant was recouped she went to police station along with her elders and complained against the accused by filing the present report.

12.In this case, the prosecution examined the victim woman who is the defacto complainant, as PW.1 and through her Ex.P1 report, dt.27-3-2019 and her signature present in the Sec.164 Cr.P.C. statement, dt.15-6-2019 was marked as Ex.P2. Her father Mr.M.Ahmmad Hussain was examined as PW.2. He supported the prosecution case. One Shaik

Dudyala Moulali and Shaik Abdul Saleem were examined as PW.3 and

PW.4 respectively as circumstantial witnesses. One Kuruva Pullaiah was examined as PW.5 to speak about cancellation of the proposed marriage of the complainant. The proposed father-in-law of the complainant by name Mohammad Shafi was examined as PW.6. All the PW.3 to PW.6 have turned hostile to the prosecution case. One B.Gousani was examined as mediator for confession and arrest of the accused. He also did not support the prosecution case. Dr.M.Umadevi who treated the victim woman and Dr.Y.K.C.Rangaiah who conducted potency test on the accused were examined as PW.8 and PW.9 respectively. The Sub-

Inspector of Police, Pamulapadu police station Mr.U.V.Vara Prasad, who registered the case and held initial investigation up to altering the sections of law was examined as PW.10. The then Inspector of Police,

Atmakur Circle Mr.B.Krishnaiah, who took up further investigation and held material portion of the investigation, was examined as PW.11.

13.The defacto complainant PW.1 attended the Court and testified that for five years prior to lodging the case, she and the accused had acquaintance and in that course he used to discussed with her about her future and used to call to her house and also used to tell her deceitful words and asked her to have physical contact i.e., sexual intercourse with him for about one month prior to the case incident. PW.1 further deposed that on 17-9-2017 the accused usually called her to his house and asked her to satisfy his sexual desires, for which she refused. For that, he used to threaten her to see her end, to threw Acid on her and also to end her future by making bad propaganda against her in the 6 S.C.No.31/2021VII ADJC, KNL.

village. She further testified that on that day the accused also beat and scold her and despite her request to leave her, he forcibly committed her rape. She also deposed that the accused continued such activities of committing rape on her by threatening her, for two years.

14.PW.1 further testified in her examination in chief that in the year 2018 when she was getting D.Sc., coaching at Rayachoti, the accused went there and threatened her to come with him to a lodge or else to make bad propaganda against her in the village and also in coaching centre and thereby he induced her to accompany him to a lodge and committed rape on her. PW.1 further testified that the accused promised to marry her and also to look after her future by setting up a separate family out side from the village. She added that by the time of starting of commission of rape on her, the accused was already married. She further deposed that when she asked the accused to marry her, he postponed the same and finally did not marry her.

15.PW.1 i.e., the victim further deposed that subsequently her marriage was fixed and betrothal ceremony was held with one Althaf of

Atmakur on 27-1-2019, but the accused prepared bad propaganda papers against her and thrown the same in the house of her proposed-in- laws, for which her proposed father-in-law by name Mohammad Shafi got called her father and declared cancellation of the marriage, in view of the said propaganda against her and on that her father questioned her about these issues and then she could not tolerate the pressure and tried to commit suicide by consuming rat poison on 9-3-2019 and then she was taken to Government Hospital, Atmakur and there from to

Government General Hospital, Kurnool and there she was treated for 4 days and later on 27-3-2019 she narrated all the incidents committed by the accused against her, to her father and on the same day lodged the report Ex.P1 in Pamulapadu police station and subsequently she also gave the statement before the learned Judicial Magistrate of First Class,

Nandikotkur and made Ex.P2 signature therein.

16.In the cross examination PW.1 deposed that there are religious elders, VRO and Talari in their village and generally in case of problem it will be complained to them. However, as per the material on record, either in the Ex.P1 report or in her statements to police or to Judicial

Magistrate of First Class, Nandikotkur, she did not reveal anything that

7 S.C.No.31/2021VII ADJC, KNL.

they have raised the matter before religious or other elders of their village against the accused. But, she deposed that she complained to them but did not get justice, for which there is no proof. When the offence committed first time on 17-9-2017, the matter was complained to police on 27-3-2019, which is after about 1 ½ year. This is an inordinate delay, which must be explained properly. PW.1 admitted that from her village, the police station at Pamulapadu is about 6 K.M.

distance and it can be reached within half an hour and there is frequent conveyance by autos. When it is so, she must have complained the matter soon or within short or reasonable period after the alleged commission of rape. She did not do anything in that manner. On this aspect, she mentioned in Ex.P1 that the accused threatened her to kill her parents if she disclosed the incident to elders but, this fact of threatening to kill her parents was not deposed by PW.1. However, her evidence was changed and she deposed that accused threatened to see her end, to pour Acid on her and also to end her future by making bad propaganda against her. In cross examination, PW.1 herself admitted that she did not mention said fact in Ex.P1 or in her Sec.161 Cr.P.C. and

Sec.164 Cr.P.C. statements. Thus, the alleged manner of threat quite contradicting between her testimony and her report and statements.

Moreover, if at all the accused had really threatened her not to reveal the incident, the influence of such threat would be for a short time only.

If at all there was such rape against her and she was not willing to have the alleged sexual intercourse with the accused, she had an ample opportunity to complain the matter to police on the same day or on the next day or subsequent days, within reasonable time. However, apparently there was no attempt from her side. Therefore, it indicates clearly that the version of PW.1 that the accused threatened her to see her end or to kill her parents in case of revealing the incident to others, is most unbelievable and against the probabilities on record.

17.With regard to delay in lodging the complaint, PW.2 deposed that in spite of their version, the police did not register the case soon after the attempt of PW.1 to commit suicide i.e., on 9-3-2019. But, the Sub-

Inspector of Police PW.10 gave his version that PW.1 came to police station only on 27-3-2019 and complained the matter. Even from the date of alleged attempt to commit suicide, there is a delay of around 18 days in not reporting the matter, this delay was also not explained 8 S.C.No.31/2021VII ADJC, KNL.

properly. Regarding said delay the evidence of PW.2 and PW.1 is quite contradictory. Even the complainant PW.1 testified that on 27-3-2019 only she narrated the incidents, to her father and on the same day lodged the complaint. Thus, the version of PW.2 was found uncorroborated and contradicting about the delay in lodging the complaint. Therefore, the inordinate delay of 1 ½ year from the starting day of alleged rape and around 18 days delay from the alleged last date i.e., the attempt to commit suicide by PW.1, were apparently not explained and it is extraordinarily and unacceptable delay and the reasons put forth by the witnesses for such delay, are totally unacceptable and unreliable. Therefore, this Court is of the considered view that there is abnormal and unexplained delay in lodging the F.I.R.

and it is fatal circumstances against the prosecution case.

18.As per the testimony of PW.1, the alleged rape was occurred in the house of the accused on 17-9-2017. However, PW.1 herself admitted in her cross examination that she stated in her Sec.164 Cr.P.C. statement that said rape was occurred in her house. This is the material contradiction regarding vital points of place of alleged incident. The material on record shows that the house of PW.1 and accused are not one and the same and not side by side, had a considerable distance. On this aspect PW.1 explained that she mistakenly mentioned as her house and her mistake was not corrected by concerned Magistrate in spite of her stating in her Sec.164 Cr.P.C. statement. This explanation of PW.1 is apparently untenable, because in the Sec.164 Cr.P.C. statement she herself written at the end that the aforementioned facts recorded were read by her and they are correctly recorded. PW.1 is not an illiterate but completed Teacher training course and was preparing for D.Sc., examination. Hence, her explanation is most unreliable. Thus, the fore point of place of alleged rape on PW.1 was itself contradicted by her under statements.

19.In the cross examination, PW.1 admitted that she did not mention in Ex.P1 or in Sec.161 Cr.P.C. statement and Sec.164 Cr.P.C. statement that the accused used to threat her to see her end, to threw Acid on her and to make bad propaganda against her, if she did not surrender for sexual lust of the accused. For this, PW.1 added that out of the fear of the accused, she did not reveal the same. When she herself presented 9 S.C.No.31/2021VII ADJC, KNL.

Ex.P1 report and made subsequent statement against the accused, what made her to be frightened on these aspects only, or not explained.

Moreover, such explanation is most unreliable and untenable.

20.PW.1 further admitted that she did not mention in Ex.P1 and in her

Sec.161 Cr.P.C. statement that in the year 2018 the accused committed rape on her at a lodge in Rayachoti town by threatening her to make bad propaganda against her if she does not accompany him. Therefore, this allegation is apparently a material improvement from the testimony of the PW.1 and it is not corroborated by any witnesses muchless her father

PW.2.

21.Even as per the evidence of PW.1, there was no false promise to her either to marry her or to provide job as consideration for the sexual intercourse with her. Her evidence clearly shows that there was no such promise or inducement prior to the alleged rape or sexual intercourse.

She simply deposed that he had promised her to marry and to look after her future, but not disclosed the time period whether prior or subsequent to the alleged rape. However, as admitted by the investigating officer, the PW.1 did not aver and state the said facts in

Ex.P1 and in her Sec.161 Cr.P.C. statement. PW.1 also admitted that in

Ex.P1 or in her statements to police and the learned Magistrate that when she asked the accused to marry her, he used to postpone the same and finally did not marry her. Thus, it is shown clearly that such promise and subsequent alleged cheating, are not proved and her version deposed before the Court was totally an improvement from her report and the statements.

22.With regard to the alleged attempt of PW.1 to commit suicide due to humiliation caused by the acts of the accused, PW.1 and PW.2 deposed the same date but the prosecution could not produce any medical record and not cited any medical witness to prove the same.

Regarding the alleged bad propaganda letters prepared by the accused, they were also not produced before the Court. PW.2 stated that there was a suicide note prepared by PW.1 and he handed over the same to police. However, it was denied by the investigating officer PW.10.

Moreover, as per version of PW.1 and PW.2, the Pw.1 was brought to

Government Hospital, Atmakur and there from Government General

Hospital, Kurnool for better treatment, on her attempt to commit suicide.

10 S.C.No.31/2021VII ADJC, KNL.

However, in the Sec.161 Cr.P.C. statement of PW.1 recorded by the

Inspector of Police i.e., PW.11, it was mentioned that she was shifted to private hospital. Thus this hospital was also found contradicting, which was also not explained properly.

23.On careful consideration of the aforediscussed evidence of PW.1 in her chief examination to that of in her cross examination and by comparing with her report and previous statements, it is apparently and unambiguously revealed that her evidence is with material contradictions and similar improvements from her own version laid down in Ex.P1 and in her statements, besides total failure in explaining the inordinate delay in lodging report against the accused.

24.PW.2 being father of the victim started to depose from the contended betrothal ceremony of PW.1 said to have been held on 27-1-2019. But, the crucial witness i.e., PW.6-Mohammad Shafi, with whose son the ceremony was said to be held, did not support the prosecution case. With regard to alleged commission of rape on PW.1, the PW.2 is a hearsay witness. Even as per the version of PW.2, he came to know about the affairs of PW.1 and PW.2, only after attempt of PW.1 to commit suicide. However, his evidence was not supported by any other witnesses PW.3 to PW.6 who are said to be circumstantial witnesses.

Thus, his evidence was lost weightage in support of the prosecution case.

25.PW.3 to PW.6 were examined as circumstantial witnesses to support the prosecution case regarding the alleged commission of offence by accused and about the subsequent betrothal ceremony and cancellation of marriage of PW.1. However, all of them did not support the prosecution version in any manner, even during the cross examination conducted by the learned Special Public Prosecutor.

26.PW.7-B.Gousani is VRO of Atmakur village. He was examined to prove the alleged confession of the accused and his arrest. However, he also did not support the prosecution case in any manner.

27.PW.8-Dr.M.Umadevi is medical witness who examined PW.1 on the requisition from the police. She deposed that on 17-5-2019 i.e., after about 3 months of the contended attempt to commit suicide of PW.1, 11 S.C.No.31/2021VII ADJC, KNL.

she examined her and found that her hymen was not intact and vagina admitting two fingers easily. She mentioned the same in her final opinion

Ex.P10. In cross examination, PW.8 answered that basing on her clinical examination and finding in two finger test, she came to opinion that the sexual intercourse cannot be ruled out. She also admitted that as per the

RFSL report Ex.P9, there are no symptoms of sexual assault or rape or sexual intercourse with PW.1.

28.The aforementioned testimony of the medical witness PW.8 clearly indicates that only basing on the 2 finger test and as hymen was not intact, she could opined about possibility of sexual intercourse. However, it is apparently shown that the basis for such opinion is very weak and only because of two finger test or as the hymen was not intact, it cannot be held that any sexual assault or rape was committed on the victim.

Thus, I am of the considered view that the evidence of medical witness is also not supporting the prosecution case to prove the guilt of the accused.

29.PW.9-Dr.Y.K.C.Rangaiah deposed only about capacity of the accused to do sexual act. However, merely because of having such capacity, one cannot be presumed that he committed rape or sexual assault. Thus, the testimony of PW.9 is also not helpful in proving the prosecution case.

30.The first investigating officer i.e., the then Sub-Inspector of Police,

Pamulapadu police station PW.10 deposed about receiving the Ex.P1 report from PW.1 and lodging the F.I.R. Ex.P12 on the same day and also examined PW.1, PW.2 and mother of PW.1. He also deposed about visiting the house of accused and examined PW.5-K.Pullaiah and also two other witnesses including PW.6 at Atmakur. He also deposed about alteration of sections of law from Sec.420, 506 IPC to Sec.417, 420, 506 and 376 IPC and preparing the altered F.I.R. Though he also deposed that he received typed Telugu paper from PW.6, he did not produce the same

before the Court, without offering any explanation. When he was

confronted, in his cross examination, about the PW.1 not stating regarding the alleged threat of accused, he admitted the same. He admitted another fact that PW.1 did not state that the accused used to beat and scold her. Thus, he admitted the material omissions and improvements out of the testimony of the defacto complainant.

12 S.C.No.31/2021VII ADJC, KNL.

31.The another investigating officer i.e., the then Inspector of Police,

Atmakur circle i.e., PW.11 Mr.B.Krishnaiah deposed about further examined the witnesses and recording their detailed statements, observing the house of accused and the defacto complainant and preparing two separate rough sketches of the same. He further testified about PW.1 gave him a typed letter of Telugu which contained bad propaganda against her. However, it was not produced before the Court, for which there was no explanation. Whether or not the said typed letter is helpful to prove the charges, it was not produced for the reasons best known to the witness. He further deposed about arrest of the accused, made requisition for recording Sec.164 Cr.P.C. statement and sending the preservatives for medical examination. He finally deposed about filing of charge sheet by the subsequent Inspector of Police.

32.In the cross examination, PW.11 admitted about the material improvement from the testimony of PW.1 about sexual intercourse against her at Rayachoti in the year 2018. He also admitted about PW.1 statements that she was joined in a private hospital. He denied the version of PW.2 that he handed over the suicide note, as per his Sec.161

Cr.P.C. statement, to PW.10. The learned counsel for defence suggested him about the motive behind the alleged false case against the accused, that under the influence of former President of Iskala village by name one Ranganna, the accused was implicated.

33.The aforementioned testimony of both the investigating officers

PW.10 and PW.11 go to show clearly that the evidence of PW.1 is with material improvements from her own report and statements and it is also with several material inconsistencies and contradictions. In cases of rape even the sole testimony of the victim woman can be relied upon for convicting the accused, proved her evidence shall be trustworthy, cogent and shall draw the confidence of the Court. In this regard, the learned counsel for accused placed his reliance on the Judgment of

Hon’ble Supreme Court in Dola @ Dolagovinda Pradhan and

another Vs. State of Odisha; 2018 SAR (Criminal) 1123, wherein the Hon’ble Apex Court discussed various facts and properties available in that case, by referring to its previous Judgments and found that the uncorroborated testimony of the victim woman, which is found to be not reliable, shall not be taken as a ground for convicting the appellants. In 13 S.C.No.31/2021VII ADJC, KNL.

that Judgments the Hon’ble Supreme Court referred to a Judgment in

Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat; 1983 (3)

SCC 217, wherein at Para-11 it was observed that “Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation or when the ‘probabilities factor’ is found to be out of tune” .

34.In the case on record also, the facts and circumstances and the evidence placed on record go to show clearly that the probabilities found on record or in such manner that the version of the prosecution and

PW.1 that the accused forcibly committed rape on her and also cheated her by not marrying her, is far reaching to the truth and found unbelievable. On the other hand, the material on record, raises strong and reasonable doubt that she was in compromising position at the time of contended sexual intercourse on her. Further, her testimony was not corroborated by any independent witnesses. Thus, the aforementioned observations of the Hon’ble Supreme Court are applicable to the facts of the case on hand.

35.In the light of the aforediscussed facts and on careful study of the entire evidence on record, this Court found that the testimony of the victim woman is with material inconsistencies, contradictions and improvements from her original version. Moreover, inordinate delay in lodging the case raises a further and strong doubt against the veracity of the prosecution story. In these circumstances, the sole testimony of PW.1 and PW.2, which is found to be unreliable regarding the charges against the accused, cannot be taken as a basis for believing the prosecution case. The benefit of doubt shall be extended to the accused. Hence, I hold that the prosecution has failed to prove the guilt of the accused, for the charged offences, beyond reasonable doubt.

36.Compensation to the victim woman:

Sec.357 Cr.P.C. deals with the provisions for awarding compensation to the victim. The Hon’ble Apex Court also mandated for application of mind of the Court regarding said provisions, in its

Judgment in Ankush Shivaji Gaikwad Vs. State of Maharashtra delivered on 3-5-2013 arising out of SLP (Crl.) 6287 of 2011, at Para- 14 S.C.No.31/2021VII ADJC, KNL.

62 that “While the award or refusal of compensation in a particular case may be within the courts discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case.

Application of mind to the question is best disclosed by recording reasons for awarding/ refusing the compensation”.

37.The testimony of PW.1 is with vigor and consistent regarding the fact that the sexual intercourse was held on her due to the accused. To that extent her father also supported her version. Without such sexual intercourse, an unmarried woman generally would not come up with the version that she was subjected with such intercourse. The prosecution has failed to establish its case that the accused forcibly committed rape and also cheated the complainant besides criminally intimidated her.

38.Merely because, the prosecution has failed to prove its case against the accused, beyond reasonable doubt, the victim woman shall not be denied for her entitlement for compensation. It is shown on record that the victim i.e., the defacto complainant is a physically challenged person as her hand was affected with Polio and was unemployed. Hence, she is entitled for having re-habitation by way of providing such compensation to her. Hence, the defacto complainant shall be rehabitated. Therefore, this Court recommends the Hon’ble

District Legal Service Authority, Kurnool to provide sufficient compensation to the victim, as per provisions of Sec.357(A)(3) Cr.P.C.

39. In the result, the accused is found not guilty for the offences punishable U/Secs.376 (1), 376(2)(n), 417, 420 and 506 IPC and hence, he is acquitted as per the provisions of Sec.235(1) Cr.P.C. The bail bonds of the accused and his sureties shall continue for further six months as per the provisions of Sec.437-A of Cr.P.C., from the date of this Judgment.

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

Dictated to Stenographer, transcribed and typed by her,

corrected, signed and pronounced by me in the open Court, this the 12th day of April, 2022.

Special Sessions Judge for trial of offences against Women-cum-VII Addl.District and Sessions Judge, Kurnool.

15 S.C.No.31/2021VII ADJC, KNL.

Appendix of Evidence Witnesses examined

For Prosecution: For Defence:

P.W.1: The victim (Name is not being disclosed). -None-

P.W.2: M.Ahmmad Hussain.

P.W.3: Shaik Dudyala Moulali.

P.W.4: Shaik Abdul Saleem.

P.W.5: K.Pullaiah.

P.W.6: Shaik Mahammad Shafi.

P.W.7: B.Gousani.

P.W.8: Dr.M.Umadevi.

P.W.9: Dr.Y.K.C.Rangaiah.

P.W.10: U.V.Varaprasad, Sub-Inspector of Police.

P.W.11: B.Krishnaiah, Inspector of Police.

Exhibits marked

For Prosecution:

Ex.P.1: Report of PW.1, dt.27-3-2019 given to Police.

Ex.P.2: Signature of PW.1 on the Sec.164 Cr.P.C. statement, dt.15-6-2019.

Ex.P.3: Sec.161 Cr.P.C. statement of PW.3.

Ex.P.4: Sec.161 Cr.P.C. statement of PW.4.

Ex.P.5: Sec.161 Cr.P.C. statement of PW.5.

Ex.P.6: Sec.161 Cr.P.C. statement of PW.6.

Ex.P.7: Signature of PW.7 on the Confession and Arrest Panchanama, dt.18-5-2019.

Ex.P.8: Certificate of Sexual offence, dt.17-5-2019.

Ex.P.9: RFSL Report, dt.30-8-2019.

Ex.P.10: Final opinion of PW.8.

Ex.P.11: Potency certificate.

Ex.P.12: Original F.I.R. in Cr.No.57/2019.

Ex.P.13: Rough sketch of the scene of offence drawn by PW.10.

Ex.P.14: Alteration memo, dt.16-5-2019.

Ex.P.15: Original altered F.I.R. in Cr.No.57/2019.

Ex.P.16: 1st scene of offence i.e., the house of accused.

Ex.P.17: 2nd scene of offence i.e., the house of defacto complainant.

16 S.C.No.31/2021VII ADJC, KNL.

Ex.P.18: Signature of PW.11 on the Arrest and Confession Panchanama, dt.18-5-2019.

Ex.P.19: Sec.164 Cr.P.C. statement of PW.1 recorded by the learned

Judicial Magistrate of First Class, Nandikotkur.

For Defence:-Nil-

Material Objects Marked -Nil-

Special Sessions Judge for trial of offences against Women-cum-VII Addl.District and Sessions Judge, Kurnool.

S.C.No.390/2019 VII ADJC, KNL.

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF

OFFENCES AGAINST WOMEN-CUM-VII ADDITIONAL DISTRICT AND

SESSIONS JUDGE, KURNOOL.

Present: Sri.S.China Babu, Special Sessions Judge for trial of offences against Women-Cum-VII Additional District and Sessions Judge, Kurnool.

Friday, the 1st day of April, 2022.

S.C.No.390 of 2019

State: Represented by The Sub-Inspector of Police, Nandavaram Police Station. … Complainant

Versus

1. Vadde Raju, aged 24 years, S/o V.Venkataramudu.

2. Golla Lakshmikanth, aged 32 years, S/o G.Venkataramudu.

3. Golla Kondanna, aged 23 years, S/o G.Kistappa.

4. Vadde Srinivasulu, aged 28 years, S/o V.Venkataramudu.

All are residents of Ponakaladinne Village, Nandavaram Mandal. … Accused No.1 to 4.

* * *

This case coming up before me on 29-03-2022 for final hearing in the presence of Sri.S.Narendranatha Reddy, Special Public Prosecutor for the State and of Sri.Syed Shahabuddin, Advocate for the accused No.1 to 4, upon hearing both sides, after perusing the material available on record, and after having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1.Thischarge sheet is filed by the Sub-Inspector of Police,

Nandavaram Police Station in Cr.No.62/2019 for the offences punishable under Sections 376 r/w 511, 323, 324, 509, 506 r/w 34 of Indian Penal

Code (hereinafter referred to as “IPC”, for brevity) against the accused

No.1 to 4.

2.In this case the defacto complainant is said to be the victim of attempt to commit rape and thereby her name and identity particulars are not to be disclosed. Hence, she is to be referred to as “Victim” or “Prosecutrix”.

2 S.C.No.390/2019VII ADJC, KNL.

3.Case of the prosecution, in brief, is as follows:

(a)The accused No.1 is the younger brother of accused No.4.

The accused No.2 and 3 are their supporters. The defacto complainant and one Golla Sireesha are own sisters. The marriage of the complainant was performed with one Golla Suri of Ponakaladinne village, about 4 years ago. The accused No.1 is having malicious intention to grab the sex of the complainant and waiting for an opportunity. While so, on 23-2-2019 at early morning 5.00 a.m., while the complainant was returning after attending calls of nature from outskirts of their village and reached nearby Chowdeswari temple which is situated in the limits of Kanakaveedu, the accused No.1 came suddenly and pulled her forcibly by caught hold of her hand by demanding her to fulfill his desire for lust and thereby he attempted to commit rape on her. Due to fear, she screamed loudly. On hearing the same her sister Golla Sireesha who was also returning from calls of nature behind the complainant, rushed to spot and found the accused No.1 was pulling the complainant. On seeing the said Golla Sireesha, the accused No.1 ran away from the spot by leaving the complainant. Thereafter they returned the house and the complainant informed the incident to her husband Golla Suri and to husband of her sister Sireesha by name Golla Ramu. However, they did not lodge any complaint against the accused No.1 thinking that their respect in the village would be lost if the matter reached the police station, and instead of that, they thought to raise the matter before their elders and relatives.

(b)On 2-3-2019 at about 8.00 p.m., when the complainant, her sister and their husband Golla Suri and Golla Ramu were present infront of house of Golla Sireesha discussing about preferring complaint against the the accused No.1, the accused No.2 to 4 went upon them and attacked and beat Golla Suri and Golla Raju with hands and legs and caused painful injuries. The accused No.3 beat Golla Ramu with a stone on his back and caused swelling injury. Said accused abused the complainant, her sister and others in filthy language and thereby insulted their modesty. Meanwhile, on arrival of one Golla Anjaneyulu,

Golla Ranganna, Golla Thimmanna, they left the place by threatening the complainant and her persons with dire consequences, if they prefer complaint against them in police station. On the same day night, the 3 S.C.No.390/2019VII ADJC, KNL.

injured Golla Ramu got medical examination in Community Health

Centre, Yemmiganur and the doctor treated him.

(c)On the same day the complainant and her persons went to police station and complained the matter, but as the police not responded, they filed complaint before the Hon’ble Judicial Magistrate of

First Class, Yemmiganur. On 6-5-2019, the Sub-Inspector of Police,

Nandavaram Police Station Mr.N.C.Mallikarjuna received the endorsed complaint from the Judicial Magistrate of First Class, Yemmiganur and registered the case in Cr.No.62/2019 of Nandavaram Police Station and examined the witnesses. He visited the scene of offence at house of the complainant and her sister Sireesha. The Medical Officer Dr.K.Hemanth

Kumar of Community Health Centre, Yemmiganur, who examined the injured Golla Ramu, issued wound certificate opining that said Golla

Ramu sustained a simple injury. Subsequently, the subsequent Sub-

Inspector of Police Mr.U.Venu Gopal Raju arrested the accused persons and sent them for remand.

4.The learned Judicial Magistrate of First Class, Yemmiganur took cognizance of the offences punishable under Sections 376 r/w 511 against the accused No.1 and under Secs.323, 324, 506, 509 r/w 34 IPC against the accused No.2 to 4. As the offence under Section 376 IPC is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Division, Kurnool under Section 209(a) Cr.P.C. The Hon’ble District Court on perusal of the record made over this case to this Court to conduct trial according to law.

5. On appearance of accused No.1 to 4, they were examined and charges the offences punishable under Sections 376 r/w 511, 354 IPC against the accused No.1, the offence under Secs.323, 506, 509 r/w 34

IPC against accused No.2 to 4 and the offence under Sec.324 IPC against accused No.3 were framed, the contents of charge were read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

6.During trial, the prosecution examined PW.1 to PW.10 and got marked Ex.P1 to Ex.P7. The defence has got marked relevant portions of

Sec.161 Cr.P.C. statements of PW.3, as Ex.D1 and Ex.D2. No material objects were produced.

4 S.C.No.390/2019VII ADJC, KNL.

7.On the closure of the evidence on the prosecution side, the accused No.1 to 4 were examined under Section 313 Cr.P.C. in respect of the incriminating material against them available in the prosecution evidence, for which they denied the incriminating material and reported no defence.

8.Heard the learned Special Public Prosecutor and learned Counsel

for the accused No.1 to 4.

9.Now the Points for determination are

1. Whether the accused No.1 attempted to commit rape on the defacto complainant?

2. Whether the accused No.1 assaulted the complainant and thereby outraged her modesty?

3. Whether the accused No.2 to 4 caused simple hurt to Golla Suri and Golla Ramu with their hands and legs?

4. Whether the accused No.3 caused simple hurt to Golla Ramu by beating him with a dangerous weapon i.e., stone?

5. Whether the accused No.2 to 4 caused criminal intimidation by threatening the defacto complainant and her persons with dire consequences?

6. Whether the accused No.2 to 4 insulted the modesty of complainant and her sister Golla Sireesha?

7. Whether the prosecution proved the guilt of the accused No.1 for the offences punishable under Sec.376 r/w 511 IPC and 354 IPC and against the accused No.2 to 4 for the offences punishable under Secs.324 r/w 34, 506 r/w 34, 509 r/w 34 and against accused No.3 for offence under Sec.324 IPC, beyond reasonable doubt?

10. PW.1 is the defacto complainant and the victim of alleged attempt of rape and outraged her modesty, whereas PW.2 – Sireesha is her own younger sister. PW.3-Golla Suri is the husband of PW.1 where as PW.4-

Golla Ramu is the husband of PW.2-Golla Sireesha. It is to note here that accused No.3- Golla Kondanna is own brother of PW.4-Golla Ramu. The accused No.1 is said to be the younger brother of accused No.4.

11. This total case consists of two different incidents on two different dates. First one is on 23-2-2019 happened at Chowdeswari temple relating to alleged attempt to commit rape and assault to outraged modesty of PW.1 by the accused No.1. Second one is on 2-3-2019 at the houses of PW.1 to PW.4 relating to alleged attack of accused No.2 to 4 5 S.C.No.390/2019VII ADJC, KNL.

against PW.1 to PW.4. In the first incident except PW.1 and PW.2 who are the own sisters, no independent person was cited as a witness. For the second incident, though the independent persons PW.5 to PW.7 were examined, they turned hostile totally. PW.1 to PW.4 are the members of a family. Therefore this case mainly rests upon the testimony of interested and partisan witnesses. However, merely because of relationship among the witnesses being partisan in nature, their evidence cannot be brushed aside, but shall be considered carefully and be scrutinized thoroughly. On the aspect of nature of the evidence of interested witnesses and its reliability, it is apt to remind the ruling of Hon’ble Apex Court made in

Mahesh, S/o Janardhan Gonnade Vs. State of Maharasta; 2008

(1) ALD (Crl.) 975 (SC). At Para 38 and 39 of said Judgment, it is held as follows:

“Merely because witnesses examined by the prosecution are relatives of victim, no ground to discard and to discredit their evidence, it otherwise found to be trustworthy Rule of caution is that evidence of relative witnesses has to be reliable evidence which has to be accepted after deep and thorough scrutiny”.

In view of the aforementioned clear observations of the Hon’ble

Supreme Court, the testimony of PW.1 to PW.4, who are the interested witnesses being members of same family, shall be thoroughly scrutinized and the Court has to adopt carefully approach and analyze the evidence to find out whether it is cogent and credible.

12.Charge No.1 and 2: Offences under Sec.376 r/w 511 and 354 IPC:-

In view of the nature of the charges, to avoid overlapping of the evidence and repetition of discussion, all these charges are going to be discussed and decided together.

13.In the Ex.P1 complaint, dt.3-3-2019 which was filed by PW.1 before the learned Judicial Magistrate of First Class, Yemmiganur and was led to registration of the case by the Sub-Inspector of Police-PW.9, it is averred that when PW.1 was returning from attending the calls of nature and reached nearby Chowdeswari temple, the accused No.1 pulled her by holding her hand asking her to satisfy his lust and trying to commit rape on her, she raised cries and then PW.2 who was also returning from 6 S.C.No.390/2019VII ADJC, KNL.

attending calls of nature, rushed to spot and then accused No.1 escaped and it was happened on 23-2-2019 at about 5.00 a.m.

14.When coming to the testimony of the witnesses, the defacto complainant i.e., the victim woman deposed before the Court that when she was returning from attending calls of nature and after crossing

Chowdeswari temple, the accused No.1-V.Raju went upon her from her back side, caught hold her hand and pulled and attempted to commit rape on her by holding her. On this contention, PW.2 who is said to be the sole direct witness to the occurrence, deposed that when her sister

PW.1 reached near the temple, the accused No.1 caught hold her hand to a side and dragged her. As per her version, he dragged like that might be to commit rape on PW.1. Thus, PW.2 is not specific to say that the accused No.1 attempted to commit rape on PW.1. Her specific evidence is only with respect to caught hold of hand and dragging her.

15.PW.3-Golla Suri testified on this allegation that he was informed that the accused No.1 caught hold the hand of his wife and pulled her and also attempted to commit rape on her. PW.4 deposed that he was informed that accused No.1 caught hold of hand of PW.1 and attempted to commit rape on her. This evidence of PW.4 does not say that accused

No.1 pulled PW.1.

16. On going through the aforementioned testimony of PW.1 to PW.4 it goes to show clearly that it commonly covered the aspect that the accused No.1 caught hold the hand of PW.1 and pulled her. Though they have testified that the accused No.1 attempted to commit rape on her, they have not testified anything regarding the overt-acts or the manner in which he attempted to commit rape. Merely because he caught hold the hand and pulled PW.1, it shall not be presumed or assumed that the accused attempted to commit rape. In the complaint Ex.P1 it is contended that the accused No.1 caught hold the hand of PW.1 and pulled her asking to satisfy his lust. However, such asking to satisfy his lust, was never testified by any of the prosecution witnesses muchless the defacto complainant. Therefore, if at all the aforementioned versions of PW.1 to PW.4 are believed, the ingredients may constitute the assault on PW.1 to outrage her modesty, but shall never constitute an attempt to commit rape on her. Therefore, it is apparently shown, basing on the 7 S.C.No.390/2019VII ADJC, KNL.

evidence on record, that the charge of attempt to commit rape on PW.1 by accused No.1 is not made out.

17. With respect to allegation of assault and outraging modesty of

PW.1, admittedly PW.3 and PW.4 are not direct witnesses, but even as per the prosecution case and as per their evidence, PW.1 has informed them about the occurrence. If at all the incident was occurred and PW.1 informed the same to them, they would have approached the police and complained the matter soon after or within proximate and reasonable time of occurrence. Even as per their version, they did not go to police station and not complained the matter on the same day i.e., on 23-2-2019 or later upto alleged occurrence of second incident on 2-3-2019. Only in Ex.P1 report, the reason for non complaining the matter was mentioned that they thought that if the complaint is preferred their prestige may be damaged and they thought to put the matter before the elders. This version averred in Ex.P1 was not deposed by PW.1 and PW.2 in their evidence. Even in the original F.I.R. Ex.P6, such reasons were not shown in column No.8 of the same. PW.3 deposed that after about 2 days of the said incident they thought to raise the matter

before the elders. He has not stated anything as to why they kept quiet

up to the said two days also. PW.4 deposed about the delay that they did not approach the police with intention to raise the matter before the elders and to prevent loss to their prestige. However, it is not the case of any of the witnesses that they have approached any such elders and if at all they have approached, names of such elders.

18. The aforementioned circumstances on record go to show clearly that the attitude of the witnesses is most doubtful as per their behaviour after occurrence of alleged incident and the reasons put forth by PW.3 and PW.4 for non complaining the matter to police, is also apparently appears to be untenable. Therefore, it raises a strong doubt against the veracity in the version of the witnesses regarding the alleged highhanded act of the accused No.1 against PW.1. Thus, this Court is of the considered view that the prosecution has failed to give the genuine and satisfactory explanation as to non complaining the matter for one week of the alleged incident.

19.As per the testimony of PW.1 to PW.4, the incident occurred while

PW.1 and PW.2 were returning from attending the calls of nature at 8 S.C.No.390/2019VII ADJC, KNL.

outskirts of the village. As per the rough sketch of the scene of offence of the second incident, where the house of PW.1 and PW.3 was shown, a bath room for their house was conspicuously indicated infront of their house. PW.2-Sireesha categorically testified in her cross examination that the house of herself and PW.1 are side by side separated by a vacant site. She further clearly deposed that there is a lavatory to the house of PW.1. She further answered that to her house also there is bath room and lavatory. She added that they prefer to go outside to attend calls of nature. But, PW.4 who is the husband of PW.2 gave contrary testimony by saying that there are no lavatory and bath room to the house of PW.1 and to his house. Thus, on material aspects of existence of the lavatory, both the material witnesses gave contradictory versions.

When two different versions are possible, the version which is favourable to the accused, shall be taken, as per the established legal position.

When the version of PW.2 is considered that she and PW.1 are having lavatories to their houses, it is unbelievable to say that both of them went to attend calls of nature to outside the village. This is a material doubt which was not explained and thereby raises a strong cloud against the prosecution version that the incident occurred at Chowdeswari temple when the PW.1 and PW.2 were returning from attending the calls of nature.

20.The investigating officer-PW.9 did not draw the rough sketch of the scene of offence at Chowdeswari temple regarding these charges. In cross examination he answered that he went to the place of attempt of committing rape on PW.1 and observed the same. At another instance, he again answered that he does not know about Chowdeswari temple in

Ponakaladinne village. These answers may indicate that the alleged scene of offence may not be present at Chowdeswari temple. This is also a strong discrepancy arose out of evidence of investigating officer, which was also left unexplained.

21. On hearing the testimony of PW.1 and PW.2, from their answers in the cross examination, it is shown clearly that Chowdeswari temple is surrounded by around 20 to 40 houses and there is a school nearby that temple and people move infront that temple. It is also shown that there is a hostel nearby the said school. PW.2 deposed that people will get up at 4.00 a.m., and go to attend calls of nature. She categorically 9 S.C.No.390/2019VII ADJC, KNL.

answered that on hearing the shoutings of the PW.1, some 3 or 4 female persons who came to attend calls of nature, have come to the spot. She also deposed that she has stated the said facts to police also. However, she did not depose names of said female persons and PW.1 also not stated the same. The investigating officer PW.9 did not examine either the said 3 or 4 female persons or any other independent persons regarding the occurrence of that incident. The aforementioned evidence on record clearly shows that, the place of occurrence at about 5.00 a.m., is not the place moving no persons, as it is surrounded by residential locality. In spite of these existing facts, non examination of any independent persons and at least non citing them as witnesses, raises strong doubt against the genuineness of the prosecution case regarding occurrence of offence. Moreover, when PW.1 added in her evidence that the A1 caught hold her, besides holding her hand, it was not averred by her in Ex.P1 report and not deposed by PW.2. Therefore, that version of holding her by A1 is apparently a material improvement from the prosecution case.

22.On careful scrutiny of the aforediscussed evidence, facts and circumstances of the case on record, the Court observed that the sole evidence of PW.1 and PW.2 is hit by material doubts, discrepancies coupled with inordinate delay in lodging the complaint and non examination of any of the independent witnesses despite having scope for their examination. When considered all these latches and doubtful circumstances in the background of existing strong ill feelings between the families of PW.1 to PW.4 and the accused No.3, it is not safe to rely upon the evidence on record to hold that the accused No.1 has committed the charged offences. The evidence of prosecution is with material doubts, contradictions and latches. Hence, I hold that the prosecution failed to prove the guilt of the accused No.1 for the offences punishable under Sec.376 r/w 511 and Sec.354 IPC, beyond reasonable doubt.

23.Charges 3 to 6:-

In view of the nature of the charges, to avoid overlapping of the evidence and repetition of discussion, all these charges are going to be discussed and decided together.

10 S.C.No.390/2019VII ADJC, KNL.

24.The relevant contents in Ex.P1 report are that when PW.1 to PW.4 present at their house on 2-3-2019 at about 8.00 p.m., accused No.2-

Lakshmi Kanth, accused No.3-Kondanna and accused No.4-Srinivasulu went upon them by abusing PW.1 in filthy language as “Lanja” and one

Kanthanna beat PW.4 with a stone on left of his back side and caused a swelling and then the accused No.2 and 4 also abused and beat PW.3 and PW.4 with their hands and legs and caused invisible injuries and then PW.5 to PW.7 came and rescued them and while said accused left the spot, threatened PW.1 to PW.4 with dire consequences, had they file the case against them.

25. When coming to the evidence portion, PW.1 deposed that when

PW.1 to PW.4 were present at their house at about 8.00 p.m., the accused No.2 to 4 came to spot and raised galata and went upon PW.4-

Golla Ramu to beat him and then accused No.3 beat PW.4-Golla Ramu with a stone on his forehead and then PW.5 to PW.7 rushed to spot and rescued them. On going through the evidence of PW.1, it is clearly shown that except accused No.3 beating PW.4 with a stone, she did not depose anything about the alleged beating by the accused with hands and legs, abusing in filthy language and threatening them with dire consequences.

26.PW.2-Golla Sireesha deposed that when they were present at her house the accused No.2 to 4 went there, made galata and then accused

No.3 beat PW.4 with a stone on his head. She also did not depose anything about the alleged other offences. PW.3-Golla Suri testified that accused No.2 to 4 came to spot and beat PW.4-Golla Ramu and caused injury on right side of his head and also on his back side. He also did not depose anything about the alleged other offences. PW.4-Golla Ramu testified that when they were present at his house, accused No.2 to 4 went upon them by using abusive words against PW.1 and then accused

No.3 beat him with a stone on his forehead i.e., over his left eye and accused No.2 and 4 beat him with their hands and legs on his back side.

Thus, only PW.4 deposed about the alleged abusing PW.1 and the accused No.2 and 4 beat him.

27.PW.4 did not depose as to the manner or the words of abuse used against PW.1. Without referring to the words or manner of abusing, the prosecution cannot prove the charge of insulting the modesty of PW.1, as 11 S.C.No.390/2019VII ADJC, KNL.

alleged. Further, though PW.3 and PW.4 deposed that the accused No.2 and 4 beat PW.4 with their hands and legs on his back side, any injury or pain was not complained by PW.4 and the medical witness PW.8 also not found any such marks or pain on his back side. Contradicting to that,

PW.3 deposed that PW.4 sustained an injury on his back side when he was beaten. Thus, his evidence is with material contradiction with the evidence of PW.4 and the medical witness.

28. When Ex.P1 report averred that both PW.3 and PW.4 were beaten by the accused No.2 and 4 with their hands and legs, PW.3 categorically deposed in his examination in chief itself that any of the accused did not beat him. Thus, there is material contradiction between his evidence and the averments of Ex.P1 report, which was remained unexplained.

29. The aforementioned evidence on record has clinchingly shown that the testimony of PW.1 to PW.4 is contradicting and uncorroborated regarding the alleged charges of causing simple hurt to PW.3 and PW.4 by beating with hands and legs by the accused No.2 to 4 and also about the alleged insulting the modesty of PW.1 and causing criminal intimidation.

30.The only common aspect of the evidence of PW.1 to PW.4 is that accused No.3 beat PW.4 with a stone and caused an injury. Now, this point has to be scrutinized. As per Ex.P1, PW.4 was beaten and caused injury on left of his back side. But, PW.1 deposed that PW.4 was beaten on his forehead, whereas PW.2 testified that he was beaten on his head with a stone. On this aspect, the version of PW.3 is that on right side of head of PW.4, accused No.3 beat with stone. PW.4 testified that A3 beat him with a stone on his forehead i.e., over his left eye. On considering all these versions, this apparently shown that they are contradicting as to the place of beating and injury to PW.4. When perused the evidence of medical witness PW.8, he deposed that he found a contusion on right side of forehead of PW.4. Thus, the medical witness contradicted the injured witness who deposed that the injury was over his left eye. Thus, the testimony of both the material witnesses i.e., injured witness and medical witness is also contradicting.

31.In Ex.P1 report, it is averred that one Kanthanna beat with stone on PW.4. Both the defacto complainant/PW.1 and the investigating officer 12 S.C.No.390/2019VII ADJC, KNL.

PW.9 deposed that said Kanthanna, whom was referred to in Ex.P1 as beaten PW.4 with stone, is another name of A2-Lakshmikanth.

Undisputedly, the name of accused No.3 is Kondanna. As per PW.3 and

PW.4, it was the accused No.3 beat PW.4 with stone, but not accused

No.2. Thus, there is a material and strong doubt as to who beat PW.4 with stone and caused injury.

32.On careful consideration of the aforediscussed evidence, it is found that there are material contradictions as to place of injury and also as to who caused the injury with the stone on PW.4. Unexplainedly, said stone was also not produced before the Court. There is no attempt to explain the said contradictions brought on record.

33.When coming to the scene of offence, the averments of Ex.P1 and the testimony of PW.1 to PW.3 say that the incident occurred at their houses. They have not specified as to exact place of occurrence whether infront of house of PW.1 or house of PW.2 or in between them. However,

PW.2 and PW.4 categorically deposed that the incident occurred infront of their house i.e., house of PW.2 and PW.4. PW.2 further deposed clearly that her house and house of PW.1 are different and separated by a vacant site. When coming to the version of the investigating officer/PW.9, the scene of offence is situated in the house of PW.1. In the rough sketch of scene of offence Ex.P7, the scene of occurrence was shown just infront of house of PW.3 who is the husband of PW.1. The house of PW.2 and PW.4 was no where shown in the rough sketch. Thus, the evidence on record is contradicting and projected two versions about the place of offence. Therefore, the prosecution evidence has failed to bring home the place of offence also.

34.PW.3 admitted in his cross examination that there are houses of one Veeresh, Seshadri, Padmamma, Nazeeruddin, Vali Basha and

Abduallah nearby Ramalingeswara Swamy temple. As per the rough sketch of the scene of offence, said temple is located adjacent to house of PW.1 and after house of one Veeresh. When there are houses of several persons nearby the scene of offence, none of them were examined and shown as witnesses by the investigating officer. On the other hand, the contended independent witnesses PW.5 to PW.7 those who were said to have rescued PW.1 to PW.4, have not supported the prosecution case in any manner. The testimony of PW.10 is limited to the 13 S.C.No.390/2019VII ADJC, KNL.

facts of arrest of accused No.1 to 4 and filing the charge sheet.

Therefore, his evidence is no way helpful to establish the prosecution case.

35.On careful scrutiny of the aforediscussed evidence, facts and circumstances of the case on record, it is apparently shown that the evidence is with material contradictions, latches and with strong doubts, as discussed above. In these circumstances, the sole testimony of the uncorroborated interested witnesses shall not be relied upon. Moreover, in the background of admitted strong ill feelings between the families of

PW.1 to PW.4 and the family of accused No.3, even from prior to occurrence of the offence, their evidence shall not be considered mechanically. On the test of scrutiny and genuineness, the evidence of

PW.1 to PW.4 has failed to draw the confidence of the Court. Hence, the benefit of doubt shall be extended to the accused. Therefore, I hold that the prosecution failed to prove the guilt of the accused for the charged offences, beyond reasonable doubt.

36.Compensation to the victim woman:

Sec.357 Cr.P.C. deals with the provisions for awarding compensation to the victim. The Hon’ble Apex Court also mandated for application of mind of the Court regarding said provisions, in its

Judgment in Ankush Shivaji Gaikwad Vs. State of Maharasta delivered on 3-5-2013 arising out of SLP (Crl.) 6287 of 2011, at Para- 62 that “While the award or refusal of compensation in a particular case may be within the courts discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case.

Application of mind to the question is best disclosed by recording reasons for awarding/ refusing the compensation”.

37.In the case on record, the alleged offences against PW.1 were found not proved. Similarly, the offences alleged against the accused

No.2 to 4 were also not proved. The evidence of interested witnesses

PW.1 to PW.4 is found most doubtful and unreliable. Hence, either the contended victim woman PW.1 or the injured witness PW.4 are not entitled for compensation.

14 S.C.No.390/2019VII ADJC, KNL.

38. In the result, the accused No.1 is found not guilty for the offences punishable U/Secs.376 r/w 511 and 354 IPC. The accused No.2 to 4 are found not guilty for the offences punishable under Secs.323 r/w 34, 509 r/w 34 and 506 r/w 34 IPC. The accused No.3 is found not guilty for the offence punishable under Sec.324 IPC and hence, they are acquitted as per the provisions of Sec.235(1) Cr.P.C. The bail bonds of the accused No.1 to 4 and their sureties shall continue for further six months as per the provisions of Sec.437-A of Cr.P.C., from the date of this Judgment. The unmarked case property, if any, shall be destroyed, after expiry of appeal time.

Dictated to Stenographer, transcribed and typed by her,

corrected, signed and pronounced by me in the open Court, this the 1st day of April, 2022.

Special Sessions Judge for trial of offences against Women-cum-VII Addl.District and Sessions Judge, Kurnool.

Appendix of Evidence Witnesses examined

For Prosecution: For Defence:

P.W.1: The victim (Name is not being disclosed). -None-

P.W.2: G.Sireesha.

P.W.3: G.Suri.

P.W.4: G.Ramu.

P.W.5: G.Anjaneyulu.

P.W.6: G.Ranganna.

P.W.7: G.Thimmanna.

P.W.8: Dr.K.Hemanth Kumar.

P.W.9: N.C.Mallikarjuna, Sub-Inspector of Police.

P.W.10: U.Venugopal Raju, Sub-Inspector of Police.

Exhibits marked

For Prosecution:

Ex.P.1: Complaint of PW.1 presented to the Judicial Magistrate of First Class, Yemmiganur.

Ex.P.2: Sec.161 Cr.P.C. statement of PW.5.

15 S.C.No.390/2019VII ADJC, KNL.

Ex.P.3: Sec.161 Cr.P.C. statement of PW.6.

Ex.P.4: Sec.161 Cr.P.C. statement of PW.7.

Ex.P.5: Wound Certificate of PW.4-G.Ramu.

Ex.P.6: Original F.I.R. in Cr.No.62/2019.

Ex.P.7: Rough sketch of the scene of offence.

For Defence:

Ex.D1: Some portion in Sec.161 Cr.P.C. statement of PW.3.

Ex.D2: Some portion in Sec.161 Cr.P.C. statement of PW.3.

Material Objects Marked -Nil-

Special Sessions Judge for trial of offences against Women-cum-VII Addl.District and Sessions Judge, Kurnool.

S.C.No.203/2020 VII ADJC, KNL.

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF

OFFENCES AGAINST WOMEN-CUM-VII ADDITIONAL DISTRICT AND

SESSIONS JUDGE, KURNOOL.

Present: Sri.S.China Babu, Special Sessions Judge for trial of offences against Women-Cum-VII Additional District and Sessions Judge, Kurnool.

Wednesday, the 6th day of April, 2022.

S.C.No.203 of 2020

State: Represented by The Inspector of Police, Atmakur Police Station. … Complainant

Versus

Syed Jeelani @ Jailan, S/o Mabu Miah, aged 35 years, R/o H.No.28-10, Islampet, Atmakur Town. … Accused

* * *

This case coming up before me on 01-04-2022 for final hearing in the presence of Sri.S.Narendranatha Reddy, Special Public Prosecutor for the State and of Sri.K.Uma Hanumantha Rao, Advocate for the accused, upon hearing both sides, after perusing the material available on record, and after having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1.Thischarge sheet is filed by the Inspector of Police, Atmakur Circle in Cr.No.141/2018 of Atmakur Police Station for the offences under

Sections 448, 506, 363, 365, 376, 342 of Indian Penal Code (hereinafter referred to as “IPC”, for brevity) against the accused.

2.In this case the defacto complainant is said to be the victim of the rape and thereby her name and identity particulars are not to be disclosed. Hence, she is to be referred to as “Victim” or “Prosecutrix”.

3.Case of the prosecution, in brief, is as follows:

(a)The defacto complainant, who is the victim woman, is residing in Neelithotla Street, Atmakur Town whereas the accused is residing in Islampet of the same town. Said complainant is doing tailoring work and training the others in that profession. The accused secured mobile phone number of the complainant through the mobile phone of his younger sister who was visiting the house of complainant 2 S.C.No.203/2020VII ADJC, KNL.

for tailoring work. The accused acquaintance with the complainant on pretext of handing over tailoring material given to him by his sister to the complainant. Likewise, he used to visit the house of complainant and started to lured her by making deceitful words. One day, he visited the house of the complainant to hand over a plastic cover, in the absence of her husband and children and asked her for water and when she went into the kitchen, he went there from back side and hugged her trying to kiss on her cheek, expressing his lust over her, for which she pushed him aside and warned him to quit from her house outside else to complain to her husband. However, she did not inform the same to her husband anticipating commotion. While so, taking advantage of the same the accused started to threaten her with dire consequences to kill herself and her children if she does not satisfy his lust. On 3-7-2018 at about 6.00 a.m., when the complainant was in her house, the accused trespassed and threatened her to kill her two children then and there if she does not accompany him on his motor bike. Under such life threat she was forced to get on the bike. On seeing the incident, one Shaik

Habeebullah who is brother-in-law of the complainant rushed to the spot and tried stop the motor bike, but the accused went upon him to dash and escaped from the spot. The accused abducted the complainant to

Santhosh Nagar, Kurnool and confined her in a room for about 17 days and committed rape on her repeatedly, despite her begging him to leave her as she is having husband and children. However, the accused did not show any mercy and committed rape on her. After some days, Shaik

Mohammad Juneed who is another brother-in-law of the complainant warned the accused to bring back the complainant or else he will lodge complaint in the police station. On that the accused left her and she reached Atmakur and narrated the entire incident to her husband and relatives. In view of the incident, her husband left her company and she also lost the shelter at her parents. Then her brothers took her to

Atmakur police station where she lodged the complaint against the accused.

(b)Basing on the complaint of the defacto complainant, the Sub-

Inspector of Police Mr.V.Ramesh Babu of Atmakur Police Station registered the case against the accused. The complainant was referred for medical examination. Dr.B.Varalakshmi, Gynecologist, Government

General Hospital, Kurnool examined her and finally opinion that the 3 S.C.No.203/2020VII ADJC, KNL.

sexual intercourse on the victim woman cannot be ruled out.

Dr.V.Rajasekhar, Department of Forensic Medicine, Kurnool Medical

College, Kurnool examined the accused and gave potency certificate to show that the accused is not incapable of commit sexual intercourse.

The Inspector of Police Mr.B.Krishnaiah of Atmakur Circle taken up the investigation from the Sub-Inspector of Police, examined the witnesses and also observed the two scene of offences, one is at house of the complainant and another at Santhosh Nagar, Kurnool where she was confined and committed rape. The learned Judicial Magistrate of First

Class, Nandikotkur recorded Sec.164 Cr.P.C. statement of the defacto complainant. Subsequently, the Inspector of Police arrested the accused and recorded his confession statement in the presence of mediators and sent him for remand on 21-8-2018. Subsequently, the crime vehicle i.e., motor bike of accused was also seized on 24-1-2019. He also collected the clothes of the victim woman which were worn by her at the time of commission of offence and sent them for examination to the Forensic expert. Finally after completion of investigation, the Inspector of Police filed charge sheet against the accused.

4.The learned Judicial Magistrate of First Class, Atmakur took cognizance of the offences punishable under Sections 506, 448, 363, 365, 376, 342 IPC. As the offence under Section 376 IPC is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Division, Kurnool under Section 209(a) Cr.P.C. The

Hon’ble District Court on perusal of the record made over this case to

this Court to conduct trial according to law.

5. On appearance of accused, he was examined and charges under

Sections 448, 506, 363, 365, 376 (1), 342 IPC were framed, the contents of charge were read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

6.During trial, the prosecution examined PW.1 to PW.7 and got marked Ex.P1 to Ex.P18 and M.O.1. The accused did not adduce either oral or documentary evidence.

7.On the closure of the evidence on the prosecution side, the accused was examined under Section 313 Cr.P.C. in respect of the 4 S.C.No.203/2020VII ADJC, KNL.

incriminating material against him available in the prosecution evidence, for which he denied the incriminating material and reported no defence.

8.Heard the learned Special Public Prosecutor and learned Counsel

for the accused.

9.Now the Points for determination are

1. Whether the accused criminally trespassed into the house of the defacto complainant?

2. Whether the accused criminally intimidated the complainant to kill herself and her children?

3. Whether the accused abducted the complainant for purpose of committing rape on her?

4. Whether the accused committed rape on the victim against her will and without her consent?

5. Whether the accused wrongfully confined the defacto complainant in a room at Kurnool Town?

6. Whether the prosecution proved the guilt of the accused for the offences punishable under Secs.448, 506, 363, 365, 376 (1), 342 of IPC beyond all reasonable doubt?

POINTS:-

10. The defacto complainant being the victim woman was examined as PW.1. She deposed before the Court that the accused never committed any offence against her, but she subscribed her signatures on the report and statements at the instance of her husband and she does not know the averments of the report presented to the police. Even during the cross examination conducted by the learned Special Public

Prosecutor, she did not depose any incriminating material against the accused and she reiterated her original version deposed in her examination in chief. Hence, her signatures present in the report, in the statement recorded by Woman Police Constable and learned Judicial

Magistrate of First Class, Nandikotkur were marked as Ex.P1 to Ex.P3

respectively. Her Sec.161 Cr.P.C. statement recorded by the Inspector of

Police, Atmakur Circle was marked as Ex.P4.

11.The aforementioned evidence of the victim woman clearly goes to show that she deposed nothing against the accused and thereby totally turned hostile to the prosecution version and she does not strengthen the averments of report said to have been lodged by herself. On the other hand she categorically deposed that only at the instance of her 5 S.C.No.203/2020VII ADJC, KNL.

husband she lodged the complaint and gave statement against the accused.

12.PW.2-Asar Asif Baig who is younger brother of the defacto complainant, was examined as a circumstantial witness. However, he did not depose anything incriminating against the accused. He simply deposed that he does not know any facts of the case, but came to know about ill feelings between the accused and the husband of the PW.1.

Even in the cross examination, he did not depose any evidence against the accused. Hence, his Sec.161 Cr.P.C. statement is marked as Ex.P5.

13.PW.3-Shaik Mohammad Juned was also examined as a circumstantial witness. He deposed that he does not know the accused and any facts of the case. Thus, he also completely turned hostile to prosecution version and hence his Sec.161 Cr.P.C. statement was marked as Ex.P6.

14. PW.4-Bandela Gowsani is the then VRO of Atmakur town. He testified that on 21-8-2018, at request of police, he went nearby Forest check post, Atmakur and in their presence the accused confessed his offence. He further deposed about his putting signature Ex.P7 in the confession and arrest panchanama, dt.21-8-2018. He clearly deposed that by the time he went to the spot, the panchanama was already prepared. He further deposed that on 24-1-2019 the police seized a motor bike as it was shown by the accused as it was used by him in abducting the victim woman. Through him the seizure panchanama, dt.24-1-2019, was marked as Ex.P8. In cross examination, PW.4 answered that the accused was present and arrested at the entrance of

Charaka colony road, on side of the check post. However, in the confession and arrest panchanama, it is no where mentioned that he was caught at entrance of Charaka colony road. Further, the witness could not say about the direction of entrance of the house, at which the

M.O.1 motor bike was said to had been seized. He further answered that an acknowledgment of receiving the property was given to the accused.

However, any such acknowledgment or copy of the same were not produced before the Court.

15. The aforementioned evidence of PW.4, who is Government servant being the VRO, go to show clearly that presence of said witness at the 6 S.C.No.203/2020VII ADJC, KNL.

time of alleged arrest of accused and seizure of M.O.1 became most doubtful. The remaining portion of his evidence mostly covers to the alleged confession of the accused, which is inadmissible in the eye of law, as it is said to have been made before the police officials.

16. PW.5-Dr.V.Rajasekhar deposed about the probability of sexual competency of the accused, by issuing a certificate Ex.P9.

17. PW.6-Dr.B.Varalakshmi, the then Assistant Professor, Government

General Hospital, Kurnool deposed about she examined the victim woman, collected swabs under sexual offence certificate Ex.P10 and also about sending the same for examination. She further deposed about receiving RFSL report Ex.P11. She finally deposed that the sexual intercourse cannot be ruled out on the defacto complainant. However, the medical witness did not produce any proof to substantial her opinion as to possibility for sexual intercourse on PW.1.

18. Last witness PW.7 is the investigating officer Mr.B.Krishnaiah, the then Inspector of Police, Atmakur Circle. He deposed about receiving the report Ex.P13 from the Sub-Inspector of Police Mr.V.Ramesh Babu and lodging the FIR Ex.P14. He further deposed about the examination of the witnesses, sending the victim woman for medical examination, observed and drawing the rough sketch of the scene Ex.P16. PW.7 also deposed that on 13-8-2018 he visited the second scene of offence which is in

Santhosh Nagar, Kurnool and recorded the statements of witnesses. He further deposed about the arrest of accused at Forest check post,

Atmakur and recorded his confession. He further testified about got recording the Sec.164 Cr.P.C. statement of the defacto complainant through the learned Judicial Magistrate of First Class, Nandikotkur. He finally deposed about seizure of motor bike i.e., M.O.1 bearing No.AP 21

L 6485, Hero Honda Splendor Blue and Black colour. He finally deposed about receiving the medical records from the concerned and filing charge sheet against the accused.

19.During the cross examination, the learned counsel for accused has taken plea that PW.7 got called the M.O.1 motor bike from the house of accused and shown the same in present case. PW.7 admitted that he has not issued any acknowledgment to the accused regarding seizure of

M.O.1. However, the testimony of the mediator PW.4 is quiet contra to 7 S.C.No.203/2020VII ADJC, KNL.

his version. Thus, the evidence of investigating officer and the mediator is not corroborating on material aspect of acknowledging the seizure of the case property. As discussed earlier, the mediator PW.4 has already deposed a contrary about the place of arrest of the accused. All these aspects clearly go to show that the testimony of the investigating officer is not fully supported by the contended mediator.

20. In the light of the aforediscussed evidence, facts and circumstances of the case on record, it is found that the victim woman herself did not support the prosecution case and moreover her close relatives also did not depose anything in favour of the prosecution. The testimony of the medical witness PW.6 is very limited in its scope. Mere possibility or probability of sexual intercourse on the PW.1, shall never substitute the proof of rape. Therefore, the uncorroborated testimony of the investigating officer cannot be relied upon to hold that the accused committed the charged offences. The evidence of PW.1 and her persons says that nothing was happened against PW.1. On considering all these aspects, I hold that the prosecution failed to prove the guilt of the accused beyond reasonable doubt.

21.As the victim woman herself categorically deposed that nothing was happened against her, from the accused, relating to this case, she is not entitled for any compensation, as laid down in Sec.357 Cr.P.C.

22.In the result, the accused is found not guilty for the offences punishable U/Secs.448, 506 363, 365, 376 (1), 342 IPC and hence, he is acquitted as per the provisions of Sec.235(1) Cr.P.C. The bail bonds of the accused and his sureties shall continue for further six months as per the provisions of Sec.437-A of Cr.P.C., from the date of this Judgment.

The M.O.1 i.e., Hero Honda Splendor motor bike bearing No.AP 21 L 6485 shall be returned to the accused after expiry of appeal time.

Dictated to Stenographer, transcribed and typed by her,

corrected, signed and pronounced by me in the open Court, this the 6th day of April, 2022.

Special Sessions Judge for trial of offences against Women-cum-VII Addl.District and Sessions Judge, Kurnool.

8 S.C.No.203/2020VII ADJC, KNL.

Appendix of Evidence Witnesses examined

For Prosecution: For Defence:

P.W.1: The victim (Name is not being disclosed). -None-

P.W.2: Asar Asif Baig.

P.W.3: Shaik Mohammad Juned.

P.W.4: B.Gowsani.

P.W.5: Dr.V.Rajasekhar.

P.W.6: Dr.B.Varalakshmi.

P.W.7: B.Krishnaiah, Inspector of Police.

Exhibits marked

For Prosecution:

Ex.P.1: Signature of PW.1 on the report, dt.12-8-2018.

Ex.P.2: Signature of PW.1 on the Statement, dt.12-8-2018.

Ex.P.3: Signature of PW.1 on the Sec.164 Cr.P.C. statement.

Ex.P.4: Sec.161 Cr.P.C. statement of PW.1.

Ex.P.5: Sec.161 Cr.P.C. statement of PW.2.

Ex.P.6: Sec.161 Cr.P.C. statement of PW.3.

Ex.P.7: Signature of PW.4 on the confession and arrest panchanama, dt.21-8-2018.

Ex.P.8: Seizure Panchanama, dt.24-1-2019.

Ex.P.9: Potency Certificate, dt.29-8-2018.

Ex.P10: Sexual offence certificate, dt.13-8-2018 issued by PW.6.

Ex.P.11: RFSL Report, dt.8-11-2018.

Ex.P.12: Final opinion, dt.9-2-2019 issued by PW.6.

Ex.P.13: Report given by PW.1 to the Police, dt.12-8-2018.

Ex.P.14: Original F.I.R.in Cr.No.141/2018.

Ex.P.15: Rough sketch of the scene of offence at house of PW.1, dt.12-8-2018.

Ex.P.16: Rough sketch of the scene of offence, dt.13-8-2018 in Kurnool.

Ex.P.17: Sec.164 Cr.P.C. statement of PW.1 recorded by JMFC, Nandikotkur.

Ex.P.18: Letter of advice, dt.22-8-2018.

For Defence:-Nil- 9 S.C.No.203/2020VII ADJC, KNL.

Material Objects Marked

M.O.1: Hero Honda Splendor motor bike bearing No.AP 21 L 6485.

Special Sessions Judge for trial of offences against Women-cum-VII Addl.District and Sessions Judge, Kurnool.

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, KURNOOL.

Present: Sri S.China Babu,

Additional Senior Civil Judge,

FAC. Principal Senior Civil Judge, Kurnool

Tuesday, the Fifth [5th] day of November, 2019.

Original Suit No.469/2014 S.Kullai Reddy… Plaintiff

Versus

B.Aslam Basha ... Defendant

This suit coming up before me for final hearing on 22.10.2019 in the presence of Sri S.Hanumantha Reddy and Sri S.V.Sathya Reddy, Advocates for the Plaintiff and of Sri P.Ramanjaneyulu and Sri M.Maha Vishnu, Advocates for Defendant, upon hearing material available on record, and after having stood over for consideration till today, this Court delivered the following:-

JUDGEMENT

This suit is filed for recovery of Rs.1,37,600/- with costs and interest on the foot of a promissory note dt.4-8-2011.

2.The factual matrix of the case of plaintiff is as follows:

3.On 4-8-2011 the defendant borrowed a sum of Rs.80,000/- from plaintiff for his family necessities, agreeing to repay the same with interest at 24% p.a., and executed a promissory note on the same day in favour of the plaintiff. Later inspite of repeated demands of the plaintiff, the defendant did not repay the debt amount. Suit pronote is dt.4-8-2011 and as 3-8-2014 was happened to be a sunday, a public holiday, the suit is filed on next working day i.e on 4-8-2014 and thus the suit is within time.

4.Defendant filed written statement denying the contentions of the plaint.

5.Material averments of plaint as follows:

Earlier the defendant had borrowed a sum of Rs.20,000/- from plaintiff and repaid the entire amount with interest upto date and demanded the plaintiff to return the promissory note, but the plaintiff with evil intention not returned the same saying that it was misplaced in his house and he will return after tracing out the same. The defendant kept quite believing the words of the plaintiff and later the disputes arose between them regarding this issue. Due to that the plaintiff bore grudge and altered the earlier promissory note in the amount column of the pronote as ‘8’ in place of ‘2’ and the digit ‘2’ in the amount column which is in the 3rd line of the body of the pronote, was also altered as ‘8’. There is not consideration for suit pronote between plaintiff and defendant. Thus this suit is filed for wrongful gain. The defendant has no knowledge about the scribe of the promissory note.

6. Basing on the pleading the following issues are settled for trial:

1. Whether the suit pronote is true, valid and binding on the defendant?

2. Whether the suit pronote is not supported by consideration?

3. Whether the suit pronote is materially altered?

4. Whether the plaintiff is entitled to the decree as prayed for?

5. To what relief?

7. Heard both sides. Plaintiff and defendant filed written arguments also.

8.During trial the plaintiff himself was examined as PW1 and got marked Ex.A1. An attestor of the suit pronote was examined as Pw2. On behalf of the defendant, the defendant was examined as DW1. No documentary evidence adduced on his behalf.

9.POINT: Issue No.1 & 2, in view of the nature of these issues and to avoid repetition of discussion both the issues are going to be discussed simultaneously.

10.In order to prove the case of plaintiff and to discharge the initial burden of proof, the plaintiff himself was examined as PW1 by filing affidavit in lieu of his examination in chief mostly reiterating the contentions of his plaint. He deposed that the defendant borrowed Rs.80,000/- from him on 4-8-2011 and executed the Ex.A1 promissory note in his favour undertaking to repay the debt with interest, but later inspite of demands, the defendant did not repay the debt amount.

11.Besides oral evidence, the plaintiff got marked the original suit promissory note dt.4-8-2011 for Rs.80,000/- said to had been executed by defendant in favour of the plaintiff.

12.During cross examination, the plaintiff/PW1 answered that the defendant himself scribed the suit pronote Ex.A1 and that the defendant borrowed Rs.80,000/- from him under the suit pronote. He denied to the suggestion put to him that the defendant borrowed Rs.20,000/- only and PW1 altered it Rs.80,000/-. PW1 also answered that in Rs.100/- denomination he paid the amount and that one C.H.Lakshmi Narasahaiah and P.Gopal are the attestors of the suit pronote.

13.Thus, the testimony of the plaintiff was stood unshaken upto his original version and he answered aptly and suitable to his case. With regard to the suit transaction and passing of the consideration under Ex.A1, PW1 testified without any deviation from his case.

14.In further support of the case of the plaintiff, an attestor of the suit pronote by name C.H.Lakshmi Narasaiah was examined as PW2. He filed chief affidavit supporting the case of the plaintiff regarding suit transaction. He contended that in his presence the suit pronote was executed by defendant after borrowing the amount Rs.80,000/- and he attested the same.

15.During cross examination PW2 answered properly that the suit transaction took place on 4-8-2011 in house of the plaintiff and that he/PW2 and Gopal were present at the time of executing the suit pronote and after reading the contents of the same he attested the same. He also answered that she present when the amount of Rs.80,000/- was paid to the defendant by way of Rs.100/- denomination. These answers given by PW2 clearly show that his evidence is in consonance with the evidence of PW1 confirming the suit transaction including passing of consideration under the Ex.A1. Thus, the testimony PW2 was also remained unshaken through out his cross examination.

16.The afore-mentioned evidence of PWs.1 and 2 has established the case of plaintiff about execution of suit pronote by defendant in favour of plaintiff after obtaining consideration there under. The plaintiff has successfully discharged his initial burden of proof to the defendant. Therefore, the duty casts upon the defendant to disprove the case of the plaintiff. In written statement the defendant admitted the execution of the suit pronote by him in favour of plaintiff, but denied the passing of consideration there under. Except the portion of amount mentioned in Ex.A1, the defendant has admitted the rest of the Ex.A1.

17.In view of the afore-mentioned material on record, a legal presumption laid down u/sec.118(a) of the N.I Act shall be drawn in favour of the plaintiff regarding passing of consideration under Ex.A1. Therefore the burden lies upon the defendant to rebut the aforementioned legal presumption also.

18.In order to disprove the case of plaintiff and to rebut the presumption of law, as mentioned above, the defendant was examined himself as DW1 by filing affidavit in lieu of his examination in chief mostly reiterating the pleadings of the written statement. Both in the written statement and in the chief affidavit of the defendant, he contended that he has no knowledge about the scribe of the suit pronote Ex.A1. He contended that in another transaction of borrowing of Rs.20,000/- the Ex.A1 promissory note was executed by him in favour of the plaintiff.

19.In the cross examination the defendant has categorically admitted that he has not issued any legal notice to the plaintiff demanding return of the pronote after he repaid the amount borrowed by him. He also admitted that he has not obtained any receipt from PW1 in token of receipt of Rs.20,000/- and interest thereon. More importantly DW1 has admitted that he was the scribe and executant of Ex.A1. Even in the written arguments he conceded that he scribed the pronote Ex.A1. Therefore, when the defendant himself scribed Ex.A1 which includes the recitals that he borrowed Rs.80,000/- from the plaintiff for his family expenses on 4-8-2011, he cannot deny the said recitals. It clearly shows that his contention that he executed said promissory note to plaintiff in an earlier transaction for Rs.20,000/-, is falsified.

20.The defendant did not deny the date portion of Ex.A1. Further, when he admitted that he scribed the suit pronote, the date and the amount mentioned therein is presumed to be true and correct. Moreover as per the legal presumption laid down u/sec.118(b) of the N.I.Act the date 4-8-2011 mentioned in Ex.A1 is considered as the date of execution of the same. Hence, when the defendant executed the Ex.A1 on 4-8-2011 by himself scribing about passing of consideration of Rs.80,000/-, his contention that the suit pronote was relating to another transaction and no consideration was passed thereunder, is found totally untenable and unbelievable.

21.If at all the plaintiff had not returned the earlier pronote and used the same for creating Ex.A1 in view of the disputes with the defendant, the defendant should have issued a legal notice and should have initiated any legal action against the plaintiff for return of the said pronote and for such remedy. However, admittedly he did not take any such steps, for which he did not offer any explanation even during his cross examination on putting a relevant question to him by the learned counsel for plaintiff. Therefore, it further shows that the plea taken by the defendant denying the suit transaction including passing of consideration, is found baseless and untrustworthy. Thus, he failed to rebut the presumption laid down u/sec. 118(a) of the N.I Act about passing of the consideration and failed to disprove the case of the plaintiff.

22.In the light of the afore-discussed evidence, facts and circumstances of the case and in view of the unrebutted legal presumption in favour of the plaintiff, this court found that the plaintiff has successfully established his case relating to the suit transaction and passing of the consideration. Accordingly issue No.1 is answered in favour the plaintiff and issue No.2 is answered against the defendant.

23.Issue No.3: A main contention of the defendant is that the suit pronote is materially altered by inserting ‘8’ in the amount portion in beginning of the pronote and in 3rd line of the body of the pronote. Both Pws.1 and 2 have denied said contention of material alteration and asserted that the sum of Rs.80,000/- itself was borrowed by defendant under Ex.A1.

24.On careful consideration of the aforesaid alleged alterations in the amount of portion of Ex.A1, the court observed that there is a re-writing in the amount portion in the place of ‘8’ in the amount of Rs.80,000/-. However, any such re-writings or interpolations are apparently not present in the amount portion at 3rd line of the body of the pronote. Even in the words also the amount was clearly mentioned as ‘eighty thousand only’. When the contention of the defendant about the alteration in the amount portion at starting of the pronote is considered, at the same time no such re-writing or alteration is not present in the 3rd line of the body of the pronote and also in words of the amount.

25.When the defendant admitted that himself scribed Ex.A1, he would be the responsible for the above said over-writing. If at all the plaintiff himself made such over-writing or alteration, he would have made the same in 3rd line of body of pronote and in the words also. However, there is no such alteration in the later portion of the suit pronote. On the otherhand, PW2 has clearly answered in the cross examination on this aspect that the said over-writing is due to breakdown of the pen. His evidence on this portion was remained unshaken in his cross examination. Moreover, as mentioned above, the defendant did not issue any legal notice and not initiated any action against the plaintiff regarding the alleged material alteration in the suit pronote. Further, the defendant could not adduce any material to show that previously he borrowed and repaid Rs.20,000/- from plaintiff and in that course the Ex.A1 was executed by him.

26.On considering the above discussed evidence, facts and circumstances placed on record, this court observed that the evidence of the plaintiff and attestor of the suit pronote was found reliable supported by the suit pronote Ex.A1 and on the other hand the pleas and contentions raised by the defendant were remained unestablished. Thus, the defendant has failed to prove the alleged material alteration in the suit pronote. Accordingly the issue No.3 is answered against the defendant.

27.Issue No.4: As seen from the record this suit filed on the last date of the limitation i.e on 4-8-2018 and there by the plaintiff would naturally have inconvenience to issue prior legal notice to the defendant. Hence, non issue of such legal notice to the defendant shall not be considered seriously.

It is not the case of the defendant that repaid the suit pronote amount to the plaintiff. As the plaintiff has proved his case, the defendant bound to suffer the decree and the plaintiff is entitled for decree, as prayed for.

28.Issue No.5: As issue Nos.1 and 4 are answered in favour of the plaintiff and issue Nos.2 and 3 are answered against the defendant, consequently the suit shall be decreed with costs and subsequent interest.

In the result, the suit is decreed with costs for Rs.1,37,600/- with subsequent interest @ 12% p.a., from the date of filing of the suit till the date of decree and thereafter @ 6% p.a., till the realization on the principal amount of Rs.80,000/-.

Typed to my dictation by the Typist, pronounced by me in open court on this the 5th day of November, 2019.

Additional Senior Civil Judge,

FAC. Principal Senior Civil Judge, Kurnool.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For plaintiffs: For defendant: PW.1: S.Kullai Reddy DW.1: B.Aslam Basha PW.2: Ch. Lakshmi Narasaiah

EXHIBITS MARKED

For plaintiffs: For defendant: Ex.A1: Promissory note dt.04-08-2011 Nil

ASCJ, FAC. PSCJ, Knl.

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, KURNOOL.

Present: Sri S.China Babu,

Additional Senior Civil Judge,

FAC. Principal Senior Civil Judge, Kurnool Tuesday, the Fifth [5th] day of November, 2019.

Original Suit No.469/2014 S.Kullai Reddy, S/o S.Chinna Gangi Reddy, aged about 50 years, Hindu, Business, R/o H.No.13/75, Kamala Nagar, Kurnool. … Plaintiff

Versus

B.Aslam Basha, S/o B.Mohammad Miah, aged about 45 years, Muslim, Employee, R/o H.No.1/36, Peddapadu village, Kalluru Mandal, Kurnool District. Now working as Record Assistant, Z.P.High School for Girls, Nandyal road, Nandikotkur post, Kurnool district.

... Defendant

This suit is filed for recovery of Rs.1,37,600/- with costs and interest on the foot of a promissory note dt.4-8-2011.

Plaint presented on 4.08.2014 and filed on 06.08.2014.

J.V of Rs.1,37,600/- and Court Fee of Rs.3,826/- is paid under Sec.20 of A.P.C.F & S.V. Act, 1956.

Cause of action for the suit arose at Kurnool, on 4.8.2011 the date of execution of pronote, and this Court has got jurisdiction to entertain the suit.

This suit coming up before me for final hearing on 22.10.2019 in the presence of Sri S.Hanumantha Reddy and Sri S.V.Sathya Reddy, Advocates for the Plaintiff and of Sri P.Ramanjaneyulu and Sri M.Maha Vishnu, Advocates for Defendant, upon hearing material available on record, and after having stood over for consideration till today, this Court doth Order and passed the following decree:-

1) that the suit be and the same is hereby decreed;

2) that the defendant do pay to the plaintiff a sum of Rs.1,37,000/- with future interest @ 12% p.a., from the date of suit till the date of decree and thereafter @ 6% p.a., till the date of realization on the principal amount of Rs.80,000/-;

3) that the defendant do pay to the plaintiff a sum of Rs.9756/- being costs of the suit.

Given under my hand and seal of the Court, this the 5th day of November, 2019.

Additional Senior Civil Judge,

FAC. Principal Senior Civil Judge, Kurnool.

Memo of Costs

For PlaintiffFor Defendant

Stamp on vakalatRs. 2-00Rs. 2-00

Stamp on plaintRs.3826-00--

Stamp on processRs. 50-00--

Advocate’s FeeRs. 5810-00--

Typing chargesRs. 50-00Rs. 50-00

Writing chargesRs. 18-00Rs. 20-00

Total Rs.9756-00Rs. 72-00

ASCJ, FAC. PSCJ, Knl.