Dr. Shaik Mohd. Fazulullah

1

ON THE FILE OF THE IX ADDITIONAL DISTRICT JUDGE’S COURT,

KRISHNA DISTRICT AT MACHILIPATNAM

Present: Dr. Shaik Mohd. Fazulullah,

Special Judge for Speedy Trial of Offence under Protection of Children from Sexual Offences Act,

2012, Krishna, Machilipatnam. FAC IX Additional District & Sessions Judge, Krishna, Machilipatnam. Friday, this the 11th day of August, 2023.

O.S.No.69/2016

Between:

Chekka Chennkesava Rao, S/o. Macharlu, Hindu, aged 66 years, Business having properties, resdient of Pedatummidi village, Bantumilli Mandal, Krishna District, Bantumilli J.C.J.C.

…. Plaintiff

A N D

1. Sogani Veera Pushpavathi, W/o. Pedaganapathi, Hindu, aged about 66 years, house wife, R/o. Lakshminarayanapuram village, Bantumilli Mandal.

2. Sogani Malleswari, W/o. Srinivasa Rao, Hindu, aged about 46 ears, house wife, R/o. Lakshminarayanapuram village, Bantumilli Mandal.

3. Sogani Yasaswi, D/o. Srinivasa Rao, Hindu, aged about 22 years, student, mothers protection, R/o. Lakshminarayanapuram village, Bantumilli Mandal.

4. Sogani Prathyusha, D/o. Srinivada Rao, Hindu, aged about 21 years, student, mother protection, R/o. Lakshminarayanapuram village, Bantumilli Mandal.

…. Defendants *****

This suit is presented before me on 07.08.2023 for final hearing in the presence of Sri K. Chandra Sekhara Rao, Bantumilli, Advocate for the plaintiff and of Sri S. Ramesh Kumar, Advocate for the defendant No.1 and of Sri K. Jaya Bhagya Raj, advocate for defendants No. 2 to 4 and after hearing the counsel for both the parties and upon perusing the material on record and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.This is a suit filed by the plaintiff against the estate of the deceased Sogani Srinivasa Rao in the hands of the defendants No. 1 to 4 for decree of suit amount of Rs.15,31,500/- together with the interest @18% p.a., and for cost of the suit.

2.Briefly stated, the contents of the plaintiff are that, the defendants Nos.1 to 4 are the legal heirs of the deceased Sogani Srinivasa Rao, S/o. Pedaganapathi of Lakshminarayanapuram village,

Bantumilli Mandal. The 1st defendant is mother, 2nd defendant is the wife, 3rd and 4th defendants are daughters of the deceased Sogani Srinivasa Rao and enjoying the estate of the deceased. During the life time of Sogani Srinivasa Rao, he borrowed a sum of Rs.10,00,000-00 (Rupees Ten lakhs only) from the plaintiff on 07.10.2013 for his old debts clearance purpose, agreeing to repay the said sum together with interest @18% per annum and executed a promissory note in favour of the plaintiff, 2 undertaking to repay the said sum together with interest to the plaintiff or his order, whenever demanded.

3.The plaintiff also averred in the plaint that, subsequently, in spite of repeated oral demands and requests made by the plaintiff, Sogani Srinivasa Rao did not choose to pay the debt due under the aforesaid promissory note and postpone the same on some pretext or other by giving false, vague and evasive replies. While matter stood thus, unfortunately Sogani Srinivasa Rao died in the month of

January 2016. Subsequently, the plaintiff informed the defendants about the debt due under the aforesaid promissory note and requested to pay the same. But the defendants did not choose to comply with the request of the plaintiff and postponing the same on some pretext or other by giving false, vague and evasive replies. As such, the plaintiff got issued a legal notice dated 29.6.2016 through his counsel to all the defendants demanding to pay the debt due under the aforesaid promissory note. The 1st defendant received the said notice on 15.7.2016. The notice sent to the defendant Nos. 2 to 4 are returned with below endorsement by the postal department, viz.

“This addressee not residing in this address. So return to the sender”

The defendants 2 to 4 are intentionally avoiding to take the notice, though they are residing in the same address. Subsequently, the 1st defendant got issued a reply legal notice dated 20.07.2016 through her counsel, while denying the debt, due under the aforesaid promissory note.

4.The plaintiff also averred in the plaint that, the plaintiff most reliably came to know through villagers that, the defendants are seriously trying to alienate the estate of the deceased Sogani Srinivasa

Rao to third parties, to delay and drag on the debt of the plaintiff. As such, as there is no other alternative, except knocking the doors of this temple of justice, the plaintiff obliged to file the present suit for recovery of the debt due under the aforesaid promissory note executed by the deceased Sogani

Srinivasa Rao in favour of the plaintiff, along with an Interlocutory application, under Order 38 Rule 5 of CPC for attachment of the immovable property, before judgment. Hence, this suit.

5.The defendant No.1 filed written statement denying the averments of the plaint however contended inter alia that at the outset the 1st Defendant has been in possession and enjoyment of any of the properties of late Sogani Srinivasa Rao. Sogani Srinivasa Rao did not own or possess any immovable Property any where and he died without having any properties in his name in any village or town. Therefore, he has absolutely no properties at all. Consequently no properties of Srinivasa Rao devolved on defendant No.1. The defendant No.1 is a stranger in so far as the suit liability is concerned, 3 she is nothing to do with the alleged debt if any claimed by the Plaintiff. The defendant No.1 got issued the reply notice at the earliest possible time and this reply notice got issued by the defendant No.1

dated 20-7-2016 vide document No.6 filed along with the plaint.

6.Further in written statement the defendant No.1 averred that, no liability can be fastened on her as legal representative of late Sogani Srinivasa Rao and in the other hand, the defendant No.1 made explicitly clear in her reply notice that, she has no even facial acquaintance with the Plaintiff at any material point of time and so far as the knowledge of her’s goes that, her son did not borrow and infact he has no necessity to borrow a huge amount of Rs.10,00,000/- from any person including the plaintiff on the date the alleged promissory note. The son of the 1st defendant used to raise prawn tanks in

Ramavarapu modi village of Bantumilli Mandal in respect of the prawn tanks taken on lease by him from one Pittala John. The deceased Sogani Srinivasa Rao used to raise the prawns in the prawn tanks of Pittala John on hire basis, and therefore, the deceased Sogani Srinivasa Rao has absolutely no necessity to borrow the whopping amount of Rs.10,00,000/- that too from the plaintiff who claims to be the resident of Pedatumidi. Therefore, the suit promissory note must necessarily be was not executed by deceased Sogani Srinivasa Rao and as a result, the suit promissory note must be devoid of consideration so far as the knowledge of this defendant goes.

7. Further in written statement, the defendant No.1 averred that, the deceased Sogani Srinivasa

Rao died on 13-1-2016. The plaintiff never demanded deceased Sogani Srinivaa Rao in his lifetime. He did not even demand the defendant No.1 at any material point of time. The defendant No.1 submits that the allegations in para 3(b) of the plaint that the plaintiff informed the Defendant No.1 about the debt due under the suit promissory note and requested to pay the same, but the defendants did not choose to comply with the request of the plaintiff and postponing the same on some pretext or other by giving false, vague and evasive replies, all these allegations are absolutely false and devoid of truth and are improvised only for the purpose of creating a cause of action.

8.Further in written statement, the defendant No.1 averred that, the Plaintiff never demanded the defendant No.1 about the suit claim and in fact, the defendant No.1 has been residing in Vijayawada, therefore, the plaintiff does not know even the whereabouts of the Defendant No.1. Therefore, the information by the plaintiff to defendant No.1 as pleaded in the plaint is absolutely false. The defendant

No.1 has been residing with her son in Vijayawada and she has not been residing in Lakshmi

Narayanapuram since some years and therefore, the Plaintiff did not even serve the notice on this 4

Defendant No.1. When the defendant No.1 happened to go to Lakshmi Narayanapuram, and in the intervening time, the Plaintiff got issued the registered notice and therefore, the Defendant No.1 gave a fitting reply to the registered notice of the plaintiff.

9.Further in written statement, the defendant No.1 averred that, the deceased Sogani Srinivasa

Rao has no necessity to borrow any amount because, he is nothing to do with any transaction with any person and the alleged suit transaction must have been pressed into service by the plaintiff by fabricating a false promissory note. The plaintiff out of revenge against deceased Sogani Srinivasa Rao must have fabricated the suit promissory, the deceased Srinivasa Rao used to buy prawn feed from other traders in Bantumilli and sometimes in Pedatummidi village, out of jealousy and to take vengeance against deceased Sogani Srinivasa Rao, since he is not buying the prawn feed from the

Plaintiff and in order to deceased Sogani Srinivasa Rao, the plaintiff got fabricated the suit promissory note after the death of deceased Sogani Srinivasa Rao and got filed the present suit against the legal representatives of deceased Sogani Srinivasa Rao.

10. Further in written statement, the defendant No.1 averred that, prior to the filing of the suit, the plaintiff never demanded deceased Sogani Srinivasa Rao ever since 2016 and on the other hand, suit promissory note also contains false particulars and this is proof positive, the plaintiff must have definitely got fabricated the suit promissory note. In this context, the name of the father of deceased

Sogani Srinivasa Rao is incorrectly mentioned in the suit promissory note. Therefore, the plaintiff do not know even the correct name of the father of deceased Sogani Srinivasa Rao. On the other hand, the

Plaint shows that the defendants 2 to 4 are the residents of Lakshmi Narayanapuram, Bantumili

Mandal. It is also false, the defendants 2 to 4 are residents of Machilipatnam, even during the life time of deceased Sogani Srinivasa Rao for the purpose of providing education to the children, and so they are not the residents of Lakshmi Narayanapuram So also, deceased Sogani Srinivasa Rao, is not a resident of Lakshmi Narayanapuram and he is the resident of Machilipatnam.

11. Further in written statement, the defendant No.1 averred that, the property described in the schedule appended to the petition is also not the property of deceased Sogani Srinivasa Rao, it is the property of the father of deceased Sogani Srinivasa Rao. The father of deceased Sogani Srinhasa Rao is alive. Therefore, the plaint schedule property did not devolve on deceased Sogani Srinivasarao and hence, no grain of property is devolved on defendant No.1 much less on the defendants 2 to 4 from deceased Sogani Srinivasas Rao and therefore, this defendant being the legal representative, the suit is 5 liable to be dismissed in limine, not only for want of cause of action but also for want of privity of contract is an instance, where the plaintiff appears to have fabricated a suit promissory note also brought to light and therefore, the plaintiff is put to strict proof of the due execution of the suit promissory note and the passing of the consideration thereunder. This defendant do not admit either the execution or the suit promissory note or passing of the consideration thereunder. Hence, the plaintiff is put to strict proof of due execution of the suit promissory note dated 7-10-2013 and also passing of the consideration thereunder. The Plaintiff is put to strict proof of the alleged attestation and the alleged scribe. The deceased Sogani Srinivasa Rao never executed any promissory note in favour of any person for any purpose.

12. Further in written statement, the defendant No.1 averred that, the falsity in the case of the plaintiff is axiomatic when he applied for attachment before Judgment of the property described in the schedule to the petition. The petition schedule property is not the property of deceased Sogani Srinivasa

Rao and therefore, the defendants 1 to 4 cannot be made liable in far as to the suit claim is concerned, and on the other hand, the petition schedule property is the absolute property of the father of deceased

Sogani Srinivasa Rao. Father of deceased Sogani Srinivasa Rao is alive and therefore, succession is not opened and deceased Sogani Srinivassa Rao is not entitled to claim a right leave alone the defendants 1 to 4. The defendant No.1 become too old to move and she is taking shelter under the protection of her son in Vijayawada, and as a result, the suit is liable to be dismissed not only for want of due execution and consideration but also the capacity of the plaintiff and hence, the ingredients of the Section 52 of

Code of Civil Procedure is not complied with in letter and spirit.

13. Further in written statement, the defendant No.1 averred that, the sole attestor on the suit promissory and the scribe of the suit promissory note are the henchmen of the plaintiff and consequently the suit claim is not supported by consideration and hence, the suit promissory note is liable to be dismissed with costs. Finally, it is averred in the written statement that, there is no cause of action for the plaintiff to file this suit and the one mentioned is not true and correct and sought for the dismissal of the suit.

14. The defendants 2 to 4 filed their written statement denying the averments of the plaint and contented that theplaintiff stated in the plaint that the defendants 1 to 4 are the legal heirs of the deceased Sogani Srinivasa Rao, S/o Pedagonpathi of Lakshminarayanapuram Village, Bantumilli 6

Mandal are true and correct and further averred that the 1st defendant is mother and 2nd defendant is the wife, and 3rd and 4th defendants are the daughters of the deceased Sogani Srinivasa Rao and enjoying the estate of the deceased is utterly false. It is further averred that, no estate of the deceased Sogani

Srinivasa Rao devolved on them and during the life time of deceased Sogani Srinivasa Rao, he borrowed a sum of Rs.10,00,000-00/- (Rupees Ten Lakhs only) from the plaintiff on 07.10.2013 for his old debts clearance purpose, agreeing to repay the said sum together with interest @ 18% per annum and executed a promissory note in favour of the plaintiff, undertaking to repay the said sum together with interest to the plaintiff or his order, whenever demanded are not true and correct and the plaintiff is put to strict proof of the same.

15. It is further averred in the written statement that, inspite of repeated oral demands and requests made by the plaintiff, deceased Sogani Srinivasa Rao did not choose to pay the debt due under the aforesaid promissory note and postpone the same on some pretext or other by giving false, vague and evasive replies and while mater stood thus, unfortunately deceased Sogani Srinivasa Rao died in the month of January, 2016 and subsequently, the plaintiff informed the defendants about the debt due under the aforesaid promissory note and requested to pay the same, but the defendants did not choose to comply with the request of the plaintiff and postponing the same on some pretext or other by giving false, vague and evasive replies and as such, the plaintiff got issued a legal notice dt. 29.6.2016, through his counsel to all the defendants demanding to pay the debt due under the aforesaid promissory note and the 1st defendant received the said notice on 15.7.2016 and the notices sent to the defendants 2 to 4 are returned with the endorsement by the postal department that" this address not residing in this address, so return to the sender and the defendant No. 2 to 4 are intentionally avoid to take the notice though they are residing in the same address, subsequently; The 1st defendant got issued a reply legal notice dt. 20.7.2016 though her counsel, while denying the debt due under the aforesaid promissory note are not true and correct.

16. It is further averred in the written statement that, the plaintiff reliably came to know through villagers that, the defendants are seriously trying to alienate the estate of the deceased Sogani Srinivasa

Rao to third parties, to delay and dragon the debt of the plaintiff and as such, as there is no other alternative, except knocking the doors of this temple of justice, the plaintiff obliged to file the present suit for recovery of the debt due under the aforesaid promissory note executed by the deceased Sogani

Srinivasa Rao in favour of the plaintiff, along with an interlocutory application, under Order 38, Rule 5 7 of CPC for attachment of the immovable property, before judgment are not true and correct. It is averred in the written statement that, during the life time of deceased Sogani Srinivasa Rao, he does not know the plaintiff in facial value and never borrowed an amount from the plaintiff and never executed any promissory note in favour of the plaintiff and never demanded deceased Sogani Srinivasa Rao to repay the promissory note amount at any point of time. There has been no necessity to deceased Sogani

Srinivasa Rao to borrow the huge amount of Rs. 10,00,000-00 (Rupees Ten Lakhs only) from the plaintiff for the said purpose of clearance of the debt. During the life time of deceased Sogani Srinivasa

Rao, he never stated to the defendants 2 to 4 that he borrowed an amount of Rs.10,00,000/- from the plaintiff and during the life time of the deceased Sogani Srinivasa Rao, the plaintiff never demanded to pay the alleged promissory note debt of Rs.10,00,000/-. It is further averred in the written statement that, there is no relationship between the plaintiff and deceased Sogani Srinivasa Rao as debtor and creditor, the suit promissory note may be fabricated with the forged signatures of deceased Sogani

Srinivasa Rao due to that, plaintiff filed this false suit against the defendants to get unlawful benefit and take a revenge against the deceased Sogani Srinivasa Rao and these defendants. After the death of deceased Sogani Srinivasa Rao, no estate of the deceased Sogani Srinivasa Rao devolved on defendants 1 to 4 and defendants 1 to 4 have no right to pay the huge amount of Rs.10,00,000/- under the above alleged promissory note.

17.It is further contended in the written statement that, after receiving summons,the defendants enquired locally, it was found that the plaintiff has no capacity to give such huge amount. The defendants have not received any legal notice from the plaintiff at any point of time. The plaintiff has not filed any proof of document that the plaintiff is having capacity to lend the huge amount to the deceased Sogani Srinivasa Rao and not filed income tax returns. Finally, it is averred in the written statement that, the suit has no cause of action and sought for the dismissal of the suit.

18. Basing the above pleadings, the then Court has settled the following issues for trial.

1) Whether the suit promissory note is true, valid, genuine and binding on he deceased Sogani Srinivasa Rao or not?

2) Whether the plaintiff is entitled to recover the suit amount from the defendants as prayed for?

3) To what relief?

19.During the course of trial, on behalf of the plaintiff, the PW1 and PW2 examined, Exs.A1 to A5 marked. No witness is examined and no document is marked on behalf of defendants.

20. Heard, the learned counsel for the plaintiff.

8 21. Originally, the suit is filed for recovery of money based on promissory note against the Legal

Representatives of the deceased borrower contending that in the life time of the deceased borrower he borrowed the promissory note amount and when the debt remained unpaid i.e., pending repayment, the original borrower died, hence the suit is filed against the legal representatives of the deceased borrower.

22. During the course of trial on behalf of the plaintiff, plaintiff himself examined as PW1, marked

Exs. A1 to A5. The plaintiff by examining himself as PW1 has given his evidence in chief, in tune with the plaint. The cross examination proceeded against him on the lines that, he had no capacity to lend such huge amount of promissory note. But in the cross examination, there was no probe as to the liability of the deceased borrower and the execution of suit promissory note by him.

23. The scribe examined as PW2, has espoused the case of the plaintiff in so for as his role in scribing the promissory note. The evidence-in-chief remained unchallenged, consequent to non-cross examination.

24. The defendants enmasse not chosen to let in evidence, despite grant of time.

25. In a suit for recovery of money based on promissory note, the evidence of the plaintiff together with scribe/PW2, when evaluated, there appears nothing to disbelieve their evidence amidst Exs.A1 to

A5. In other words not only the documentary evidence, but also through oral evidence, the plaintiff and his witness have succeeded in establishing the case against the defendants, in so far as the liability of the deceased borrower by execution of the suit promissory note and borrowal of amount thereunder. In a suit for money based on promissory note, there cannot be any roving enquiry as to theavailabilityof the estate or otherwise. It is a point to be pondered over, at the time of execution of the decree. In other words, it is not imminent on the part of the plaintiff to establish the estate of the deceased borrower, at the suit stage itself. In the suit only the liability of the borrower vis-a-viz, execution of the suit promissory note, passing of consideration are the criterion. When this Court evaluated the pleadings, evidence adduced by the plaintiff, the Court is of the view that, the deceased borrower has verily executed the suit promissory note, having received amount thereunder, and later the debt remained unpaid. Thus the plaintiff is entitled for the decree of the suit as prayed for, as the suit promissory note is true, valid, genuine and binding on the deceased, as such the plaintiff is entitled to receive the suit amount from the defendants.

26. Hence issue No.1 and 2 are answered in favour of the plaintiff.

9

To what relief?

27. Consequent to the answer of this Court to issue No.1 and 2, the plaintiff is entitled for decree of the suit, thus;

In the result, the suit of the plaintiff is decreed in favour of the plaintiff, against the estate of the deceased/borrower now in the hands of defendants No. 1 to 4/ Lrs of deceased borrower for a sum of Rs.15,31,500/- with cost, with interest @ 12% p.a. from the date of the suit till the date of decree and with subsequent interest @ 6% p.a. from the date of the decree till the date of realization.

Dictated to the Junior Assistant Cum Typist, transcribed by him corrected and pronounced by

me in the Open Court, this the 11th day of August, 2023.

Sd/- Dr. Shaik Mohd., Fazulullah,

Special Judge for Speedy Trial of

Offence under Protection of Children from Sexual Offences Act, 2012, Krishna, Machilipatnam. FAC IX Additional District & Sessions Judge, Krishna, Machilipatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

Plaintiff: Defendants:

P.W.1: Chekka Chennakeswarao None

P.W2: Padavala Parasu Ramudu

Documents marked on behalf of the plaintiff:

Ex.A1 – Promissory note, dt.07.10.2013

Ex.A2 – Office copy of the legal notice, dt.29.06.2016

Ex.A3 - Acknowledgment from D1, dt.15.07.2016

Ex.A4 - Return covers of D2 to D4, dt.15.07.2016

Ex.A5 - Reply legal notice got issued by D1, 20.07.2016.

Documents marked on behalf of the defendants: Nil

Sd/- Dr. Shaik Mohd., Fazulullah,

Special Judge for Speedy Trial of

Offence under Protection of Children from Sexual Offences Act, 2012, Krishna, Machilipatnam. FAC IX Additional District & Sessions Judge, Krishna, Machilipatnam.

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IX-ADJ COURT, MTM.

SC.No. 17-2020, Dt: 17.01.2023

IN THE COURT OF IX ADDITIONAL DISTRICT AND SESSIONS JUDGE,

KRISHNA DISTRICT AT MACHILIPATNAM

Present: Dr. Shaik Mohd. Fazulullah,

IX Additional District & Sessions Judge, Krishna, Machilipatnam.

Monday, this the 17 th day of January, 2023

SESSIONS CASE No. 17/2020

(PRC.No. 14/2018 on the file of the learned II Addl. Judicial Magistrate of

First Class, Nuzvid in Crime.No.189/2018 of Agiripalli Police Station)

Prosecution:Sri B. Venkanna Babu,

Additional Public Prosecutor

Defence Counsel:Sri M. Srinivasulu Advocate, Machilipatnam Name(s) of the Accused:Chittipothula Ranganna, S/o Nagesu, 29 Years, Erukala, Kalaturu (V), Agiripalli Mandal.

Charges under Section(s)u/Secs. 448, 376 r/w. 511 of IPC. :

Plea of the AccusedPleaded not guilty :

Finding of the Court:Found guilty for the offence’s punishable u/s 354 and 448 IPC

Result of the case:In the result, this Court found the accused guilty of the offence punishable under Sections 354, 448, of IPC, accordingly, he is convicted under Section 235 (2) of Cr.P.C., and sentenced to suffer simple imprisonment for a period of four (4) years and shall also pay a fine of Rs.3,000/- (Rupees Three thousand only) in default of payment of fine, shall suffer imprisonment for a period of three months for the offence punishable under Section 354 of IPC, and he further sentenced to pay fine of Rs.1000/- for the offence punishable under Section 448 of IPC, in default, to suffer Simple Imprisonment for a period of one month. Total fine amount is Rs.4000/-. The accused is entitled for set off under Section 428 of Cr.P.C., for the period of remand undergone viz., from 25.07.2018 to 08.08.2018. The accused is entitled for right to appeal before the Hon’ble Appellate

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SC.No. 17-2020, Dt: 17.01.2023

Court, and also about free legal aid if any. The office is directed to issue NBW to cause the accused produced

before this Court and to serve the

sentence. Order relating to the case property In this case the M.O.1 the motor bike bearing register No. AP05 BA 7992 (not working condition) received in CPR No. 21/2022 on the file of this Court shall be confiscated to the State after appeal time. The Court of II Judicial Magistrate of First Class, Nuzivid shall take action thereto after appeal time. The above numbered Sessions Case presented before me on 03.01.2023 for final hearing, the matter having stood over for consideration till this day, the court delivered the following:

J U D G M E N T

The State, represented by the Sub-Inspector of Police, Agiripalli P.S., has filed charge sheet against the accused for the offences punishable under

Sections 448, 376 r/w. 511 of Indian Penal Code (for short ‘IPC’).

2.Briefly stated, the contents of the charge sheet are that, the de facto complainant is a resident of Kalaturu Village of Agiripalli Mandal and that the accused also happened to be of same village and that he is the friend of her husband, while it is so, on 23.07.2018, at about 14.30 hours when she was present alone in the house, the accused came to her house on a motor cycle bearing register No. AP05 BA 7992, pulled her into the house, laid her on the cot, he fell down on her and that attempted to commit rape. When she raised cries, the accused pressed her neck with his left hand, however on hearing the cries the neighbors have come, on that, on noticing them, the accused went away from the house on the above bike. On the arrival of her husband in the evening she informed the same on that, then they approached the police. Thus, the case.

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SC.No. 17-2020, Dt: 17.01.2023

3.Adverting to the above, basing the report of the defacto complainant, a case in Crime.No. 189/2018 for the offences punishable under

Secs. 448, 376 r/w 511 IPC of Agiripalli Police Station registered, and on completion of investigation, charge sheet is filed.

Cognizance

4.The II Addl. Judicial Magistrate of First Class, Nuzividu had taken the matter onto file as PRC.No. 14/2018 against the accused for the offences punishable under Sections 448, 376 r/w. 511 of IPC, has committed the case under Section 209 of Cr.P.C., as the alleged offence under Section 376 r/w.

511 of IPC is exclusively trailable by this Special Court for Trial of Offences

Against Women, in turn, the Principal District and Sessions Judge, Krishna,

Machilipatnam registered the case as S.C.No.17/2020 and made over the same to this Court for disposal, according to law.

5.On the appearance of the accused, before this Court, examined him under section 228 of Cr.P.C., whereby he pleaded not guilty and claimed to be tried, thereby, having heard the Additional Public Prosecutor and the defence counsel, charges under Sections 448, 376 r/w. 511 of IPC, have been framed against the accused, read over to him, he denied the same and claimed to be tried.

6.The prosecution, in support of its case, examined the P.W.1 to

P.W.5 and got marked Ex.P1 to Ex.P5, so also M.O.1 marked.

7.On closure of the evidence of prosecution, the accused examined under Section 313 of Cr.P.C., he termed the evidence as false, and not chosen to examine the witnesses on his behalf.

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SC.No. 17-2020, Dt: 17.01.2023

8.Now the point for determination is:

Whether the prosecution has succeeded in establishing the guilt of

the accused for the offences charged beyond all reasonable doubt?

Arguments

9.The learned Additional Public Prosecutor argued that the evidence available on record is sufficient to proceed against the accused for the offences charged with, thereby requested this Court to proceed accordingly.

10.The defence counsel argued that in this case, the prosecution failed to establish the ingredients of the offences charged with. He elaborated that, though the victim woman said to have studied up to 9th class, the way in which she admitted in the cross examination that, she cannot write Telugu, shows her innocence and that taking advantage of the same, her husband has foisted this case against the accused, due to disputes in connection with gambling. He added that, though in the cross examination, it has come on record that, she received injuries on her neck and hand, but the police neither referred her to the hospital nor reason assigned as to why they failed to do so. Thus, he argued that, in this way of the matter also, the case is false one. While inviting the attention of this Court, to the cross examination of the victim woman whereby she claimed that because of the incident the belongings in the house disturbed but, in the cross examination of the mediator of the scene observation report, in the scene the things were not disturbed. The counsel argued that, this is how there is cleavage of opinion in between the victim woman and mediator of the scene observation report, and the same has to go in the benefit of the accused. The defence counsel further argued that, the investigating officer having taking the assistance of the people of the community of victim woman alone completed the investigation and this itself

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shows the falsity of the case and finally requested this Court to acquit the accused.

Witness and exhibits:

11. In this case, the de facto complainant has set the criminal law into motion, by preferring report marked under Ex.P1. She has supported her case through her evidence-in-chief as P.W.1. The husband of the de facto complainant examined as P.W.2. He is a circumstantial witness, espoused the case of his wife through his evidence. The P.W.3 is the neighbour of the defacto complainant, a circumstantial witness, deposed that he heard the shouting from the house of the defacto complaint, on that, went there, having noticed him, the accused pushed him aside and went away. The mediator for the scene observation report examined as P.W4, he supported the case of the prosecution to the extent of his standing as a mediator for the scene observation report. The investigating officer examined as P.W.5 has given his evidence-in-chief in tune with the records prepared by him during the course of investigation. Through him, Ex.P2 to Ex.P5 received in evidence together with M.O.1, the bike bearing register No. AP05 BA 7992. In the cross examination the Investigating officer deposed that, he has not seized any material objects from the scene, and that in the scene he observed a cot, so also clothes in disturbed position but, in the scene, observation report he has not incorporated the above. In respect of any gambling cases against husband of the victim woman, the investigating officer clarified that, in his notice no cases were registered either against P.W2 or

P.W3, under AP Gaming Act.

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Marshalling of facts and analysis of evidence

12.This Court has perused the material available on record, verified the depositions of the witnesses, exhibits marked on behalf of the prosecution and has given thoughtful consideration to the matter.

13. In this case, the criminal law is set into motion by the de facto complainant by preferring a report marked under Ex.P1. In the trial, the prosecution examined her as P.W1. In her evidence in chief she deposed that, on 23.07.2018, at about 2.30 PM, she was present in the house and that heard noise of a motor bike, then the accused came by the said motor bike/M.O.1, she opened the door of the house and reported that, her husband is not available in the house and that he is in the fields, on that, the accused came behind her, tried to catch her hand, tried to rape her and that the accused fallen on her and asked her to satisfy his desire and that when she raised cries the accused pressed her neck and closed the mouth and that she pushed him, and came out from the house, raised the cries, on that, one J. Murali and P.W3 came, then the accused escaped. In the cross examination she deposed that though she studied 9th class she cannot write Telugu and that in the incident she received injuries on her neck and hand, yet police not referred her to the hospital. She further deposed that, because of the incident the belongings in her house disturbed. She further deposed that, all the gents in the village go to the fields by 08.00 AM and return by 05.00 PM, and that P.W4 and yet another witness namely Murali are also the agriculturists.

14.The husband of the de facto complainant, examined as P.W2 as a circumstantial witness supported the case of his wife.

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Excursus

15.From the above evidence, what emerges clear is that, the de facto complainant by examining herself as P.W.1 has supported the case of prosecution in so far as the act of the accused in outraging her modesty, whereby the accused used the criminal force against the de facto complainant intending to outrage her modesty. The act of the accused in trying to catch her hand, falling on the victim woman, asking her to satisfy his desire, when she raised cries the act of the accused in pressing her neck, closing her mouth etc., tantamount to an act of outrage of her modesty. Though in the pristine complaint, and the evidence-in-chief of the de facto complainant, she recited and deposed, that the accused tried to commit rape on her, but in the evidence, she could not elaborate the aspects on the above score. Thus, with the evidence available on the record, the Court is of the view that, the prosecution hassucceeded in establishing the guilt of the accused for the offence punishable under Section 354 of IPC, instead of 376 r/w. 511 of IPC.

16.A perusal of the evidence goes to show that, the accused so as to perpetrate the offence punishable under Section 354 of IPC, has criminally trespassed into the house of the de facto complainant, having reached the house by M.O.1/bike, thus rendered himself liable to be punished under Section 448 of IPC.

17.The concrete case of the de facto complainant and her witnesses cannot be brushed aside on the premise that, though the victim woman studied up to 9th class, she could not write the report on her own in Telugu and that, the husband of the accused got foisted the case against the accused though he is a friend out of gambling disputes. The thrust of the defence counsel was in an angle to contend before this Court that, the victim woman is

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not an woman of worldly wisdom and that is the reason, by using her, the husband foisted the case. Here, it is to be noted that, the above suggestions were denied by the victim woman and, though the husband of the victim woman admitted that, the victim woman is of a childish nature. The childish nature cannot be taken in such a way that, the said nature will be used to foist cases. The people of this sort, will be impeccable in nature, seldom accepts any falsity, that too, to foist a false case against a person none other than the friend of her husband. When especially it has come on the record that, the accused is the friend of the husband of the victim woman. In this way of the matter the nature of the victim woman cannot be taken, in such a way, as contended by the defence counsel. The argument of the defence counsel that, though she is a 9th class studied student, she failed to write a report in Telugu and that, this itself shows the falsity cannot be accepted at all. The reason is, writing a report is not a habitual act of the victim woman. She hails from rural back ground. To write a report, especially to the police is not an easy task, that too, for a woman of the back ground of the victim woman. Though there is no standard proforma or pattern to write a report, nonetheless it requires a practice and expertise, usually find among the document writers sit around public offices or police stations as the case maybe. In other words, only because the victim woman though 9th class studied, failed to write her report, does not mean that, her case has to be looked down, as contended by the defence counsel. Thus, the argument advanced thereon by the counsel is set to naught.

18.The argument of the defence counsel that, the incriminating material not seized in the scene, what can be said is that, the alleged scene is situated in a domestic house. Even if at all, any disturbance occurred in the

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belongings of the house due to the incident, the same would be set to rest in a day-to-day living altogether it is the dwelling house of the victim woman, she cannot keep the things as it is, till the police visits her house and prepare scene observation report. So, the cleavage of evidence in between the victim woman and the mediator for the scene observation report, can shatter the well- considered case of the victim woman. Unlike crime scenes in grave offences like murder, attempt to murder etc., the preservation of the scene in the offences like the present one is not so important, so as to appreciate the evidence of victim woman. Thus, the argument on this score the argument advanced by the defence counsel is looked down.

19.The yet another argument raised by the defence counsel is, the prosecution has taken the assistance of witnesses of the community of the victim alone in the investigation and this itself shows the falsity. Anent to this argument, what can be said is that, the victim woman when raised cries amidst or soon after the offence, her neighbors reached the crime house. Among them,

P.W3 one of the neighbors of the house of the victim woman examined before the Court. He is a natural witness being a man of neighborhood.

Advantageously his (father’s) house is shown nearby the scene, vide rough sketch marked under Ex.P3. Added to this, he is not a relative to the victim woman. In the circumstances, there is no flaw or unusualness in examining the neighbor for the case, notwithstanding the same community. Hence, the argument of the defence counsel thereto is answered.

20. At no stretch a woman of the nature of P.W.1 amidst her rural back ground, impeccability and unaware of nuances of law, would venture to foist a false case against the accused anent to the alleged disputes in gambling etc., with her husband. In this case, it is so happened that, the investigating

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officer admitted in the cross examination that, no cases were registered against the husband of the victim woman and her neighbour/P.W3 under AP Gaming

Act. Hence, the argument of the defence counsel as to the above, cannot stand to the scrutiny of this Court. In this way of the matter, on this premise also, the case of the prosecution cannot be doubted.

21. On conglomeration of the above discussion, this Court is of the considered view, that the prosecution has succeeded in establishing the guilt of the accused for the offences punishable under Sections 448, and 354 of IPC.

The offence under Section 354 of IPC is a lesser one than that of an offence punishable under Section 376 r/w. Section 511 of IPC, as such, notwithstanding the charge for the offence punishable under Section 376 r/w 511 of IPC, the Court can very well proceed against the accused for the offence punishable under Section 354 of IPC. In other words, the offence under Section 354 of IPC is a minor, when compared to the offence punishable under Section 376 r/w. 511 of IPC, as such, the Court can very well proceed against the accused under Section 354 of IPC sans charge thereto. See for the advantage the provision under Section 222 of Cr.P.C.

22. Thus, on conspectus of the above discussion, this Court is of the considered view that, the prosecution has succeeded in establishing the guilt of the accused for the offence punishable under Sections 354 and 448 of IPC.

Thus, he shall be punished accordingly. Hence, the accused is convicted under section 235 (2) of the Criminal Procedure Code, 1973 for the aforesaid offences.

The accused need to be questioned on the quantum of sentence.

Typed to Dictation by the Junior Assistant cum Typist, corrected and

pronounced by me in Open Court, this the 17 th day of January 2023.

Sd/- Dr. Shaik Mohd. Fazulullah

IX Additional District & Sessions Judge, Krishna, Machilipatnam.

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The Court afforded the accused an opportunity to hear him, on the quantum of the sentence. The accused absent. By absenting himself, he failed to avail the hearing on the quantum of the sentence.

23. In the circumstances projected in the case and the occurrence of the offence of moral turpitude, it is not a fit case to take a lenient view and at the same time, the accused is not entitled for the provisions of Probation of

Offenders Act, 1958. Expediency warrants this Court to deal with the accused under the normal law.

24. In the result, this Court found the accused guilty of the offence punishable under Sections 354, 448, of IPC, accordingly, he is convicted under

Section 235 (2) of Cr.P.C., and sentenced to suffer simple imprisonment for a period of four (4) years and shall also pay a fine of Rs.3,000/- (Rupees Three thousand only) in default of payment of fine, shall suffer imprisonment for a period of three months for the offence punishable under Section 354 of IPC, and he further sentenced to pay fine of Rs.1000/- for the offence punishable under Section 448 of IPC, in default, to suffer Simple Imprisonment for a period of one month. Total fine amount is Rs.4000/-.

The accused is entitled for set off under Section 428 of Cr.P.C., for the period of remand undergone viz., from 25.07.2018 to 08.08.2018.

The accused is entitled for right to appeal before the Hon’ble Appellate

Court, and also about free legal aid if any.

The office is directed to issue NBW to cause the accused produced before this Court and to serve the sentence.

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Order relating to the case property

In this case the M.O.1 the motor bike bearing register No. AP05 BA 7992 (not working condition) received in CPR No. 21/2022 on the file of this Court shall be confiscated to the State after appeal time.

The Court of II Judicial Magistrate of First Class, Nuzivid shall take action thereto after appeal time.

Typed to Dictation by the Junior Assistant cum Typist, corrected and

pronounced by me in Open Court, this the 17 th day of January 2023.

Sd/- Dr. Shaik Mohd. Fazulullah

IX Addl., District & Sessions Judge, Krishna, Machilipatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Prosecution For the Accused P.W.1: Victim woman - None – P.W.2: M. Rambabu P.W.3: J. Suresh P.W.4: T. Ravi Sekhar P.W.5: V. Yesebu

DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:

Ex.P1: Typed report of the P.W.1, dated nil. Ex.P2: FIR in Crime No.189/2018, u/s 448, 376 r/w 511 IPC of Agiripalli P.S, dt.23.07.2018. Ex.P3: The rough sketch, dt.24.07.2018.

Ex.P4: The scene observation report, dt.24.07.2018. Ex.P5: The Form-60 (property) of A.P Police Manual.

On behalf of Defence -NIL-

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MATERIAL OBJECTS

M.O.1- is the bike bearing registration No. AP05 BA 7992 (not working condition)

Sd/- Dr. Shaik Mohd. Fazulullah

IX Additional District & Sessions Judge, Krishna, Machilipatnam.

Copy to: The Honourable Registrar (Judicial), Honourable High Court of Andhra Pradesh, Nelapadu, Guntur District. To:

1)The Additional Public Prosecutor, IX-Additional District and Sessions

Judge’s Court, Krishna, Machilipatnam.

2)The Counsel for the accused.

3) The Superintendent of Police, Krishna, Machilipatnam.

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SC.No. 10-2019, Dt: 31.01.2023 IX-ADJ COURT, MTM.

IN THE COURT OF IX ADDITIONAL DISTRICT AND SESSIONS JUDGE,

KRISHNA DISTRICT AT MACHILIPATNAM

Present: Dr. Shaik Mohd. Fazulullah,

IX Additional District & Sessions Judge, Krishna, Machilipatnam.

Tuesday, this the 31 th day of January, 2023

SESSIONS CASE No. 10/2019

(PRC.No. 10/2017 on the file of the learned II Addl. Judicial Magistrate of

First Class, Machilipatnam in Crime.No.131/2016 of R.Peta Police

Station)

Prosecution:Sri B. Venkanna Babu,

Additional Public Prosecutor

Defence Counsel:Sri S. Shanti Prasad Advocate, Machilipatnam

Name(s) of the Accused: Madivada Siva Sankar @ Sankar, S/o Seetaramaiah, age 42 years, Kapu, Edepalli, Machilipatnam

Charges under Section(s): 307 IPC and sec 27 of Arms Act.

Plea of the Accused:Pleaded not guilty

Finding of the CourtFound guilty for the offence punishable :u/s 324 IPC

Result of the case:In the result, this Court found the accused guilty of the offence punishable under Sections 324 of IPC, accordingly, he is convicted under Section 235 (2) of Cr.P.C., and sentenced to suffer simple imprisonment for a period of three (3) years. And this Court found the accused not guilty of the offences punishable u/s 307 and sec. 27 of Arms Act, thereby acquitted him u/s 235(1)Cr.P.C. The accused is entitled for set off under Section 428 of Cr.P.C., for the period of remand undergone viz., from 01.10.2016 to 14.12.2016 and from 07.02.2018 to till datei.e., 31.01.2023 The accused is entitled for right to appeal before the Hon’ble Appellate Court, and also about free legal aid if any. He represented that, has means to engage a counsel. Order relating to the case property (I) In this case the M.O.1-is the Patta Katti, M.O.-4 Knife with light sky-blue wooden handle, M.O.5 -Knife received in CPR No. 11/2019 on the file of this

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Court shall be destroyed after appeal time.

(ii)The case property viz., M.O.2 is an Air Pistol, M.O.3 Pellets (16 in number) received in above CPR shall be sent to the nearest Arsenal viz., O/o District Police, Krishna at Machilipatnam for necessary action.

(iii)The case property viz., M.O.6 White colour Honda Activa bearing register No. AP16 DE 3114 in the above CPR, shall be confiscated to the State.

(iv)The Court of II Judicial Magistrate of First Class, Machilipatnam shall take action as to the disposal of case property thereto after appeal time.

The above numbered Sessions Case presented before me on 17.01.2023 for final hearing, the matter having stood over for consideration till this day, the court delivered the following:

J U D G M E N T

The State, represented by the Sub-Inspector of Police, Robertson Peta

P.S., has filed charge sheet against the accused for the offences punishable under Sections 307, 323 of Indian Penal Code (for short ‘IPC’) and Sec. 27 of

Arms Act 1959.

2.Briefly stated, the contents of the charge sheet are that, on 28.09.2016 at about 21.00 hours the accused went to the house of the defacto complainant with a “Patta Katti” with an intention to kill his sister and his niece and that sighting the accused the defacto complainant closed the door of the house, then the accused with the intention to kill his family members hacked the doors with knife, as a result the door broken and that in an attempt to avoid the strikes of the accused the defacto complainant, his sister and the mother caught hold the door, yet the accused hacked the door so as to make an entry in to the house and kill his family members and that, as a result the knife hit the hands of the sister of the defacto complainant through the door and that she received injury and that on the raise of cries the neighbours

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came, on that the accused went away by threatening that he will kill the family members of the defacto complainant and also will take away the niece of the defacto complainant. And this is due to previous incident vide case in

Cr.No.98/2016 u/s 506, 354D and 509 IPC of R.Peta P.S, wherein the accused used to follow the niece of the defacto complainant, harass her and also used to make signs and used to threaten that he would kidnap his niece as he is a rowdy. Thus, the case.

3.Adverting to the above, basing the report of the defacto complainant, a case in Crime.No. 131/2016 for the offences punishable under

Secs. 307, 323 IPC and Sec. 27 Arms Act 1959 of R.Peta Police Station registered. During course of investigation, the Investigating Officer has seized

Knife, Pistol, Pellets, Pen Knife and other knife from the possession of the accused, so also Honda Activa of the accused used in the commission of the offence from his possession under the cover of mediators report and that thereby the accused was arrested, and on completion of investigation, charge sheet is filed.

Cognizance

4.The II Addl. Judicial Magistrate of First Class, Machilipatnam had taken the matter onto file as PRC.No. 10/2015 against the accused for the offences punishable under Sections 307, 323 of IPC and Sec.27 of Arms Act, has committed the case under Section 209 of Cr.P.C., as the alleged offence under Section 307 of IPC is exclusively trailable by the Court of Sessions and in turn, the PrincipalDistrict and SessionsJudge,Krishna, Machilipatnam registered the case as S.C.No.10/2019 and made over the same to this Court for disposal, according to law.

5.On the appearance of the accused, before this Court, examined him under section 228 of Cr.P.C., whereby he pleaded not guilty and claimed to

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be tried, thereby, having heard the Additional Public Prosecutor and the defence counsel, charges under Sections 307 of IPC and section 27 of Arms

Act, have been framed against the accused, read over to him, he denied the same and claimed to be tried.

6.The prosecution, in support of its case, examined the P.W.1 to

P.W.10 and got marked Ex.P1 to Ex.P14, so also M.O.1 to M.O.6.

7.On closure of the evidence of prosecution, the accused examined under Section 313 of Cr.P.C., he termed the evidence as false, and not chosen to examine the witnesses on his behalf.

8.Now the point for determination is:

Whether the prosecution has succeeded in establishing the guilt of

the accused for the offences charged beyond all reasonable doubt?

Arguments

9.The learned Additional Public Prosecutor argued that, the evidence available on record is sufficient to proceed against the accused for the offences charged with, thereby requested this Court to proceed accordingly.

10.The defence counsel argued that, the brother in law of the defacto complainant and the accused were close friends and that the accused used to visit the house of brother in law of the defacto complainant/husband of sister of the defacto complainant/P.W2 and that at no time he had any bad intention against the daughter/P.W3, but due to differences in between the defacto complainant and the accused whereby the defacto complainant used to avail the service of the accused in pressurizing the debtors of the defacto complainant in collecting amount and that the defacto complainant was a money lender. The counsel further contended that, as a matter of fact, it is the defacto complainant along with one N. Venkateswara rao and Ch. Pavan beat the accused on 28.09.2016 at about 09.00 PM and that, in the incident the accused sustained injuries and he went to Govt. Hospital, Machilipatnam for

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treatment and that, to come over from that case, the present case is foisted.

The defence counsel further elaborated that, at no stretch the prosecution succeeded in establishing the guilt of the accused for the offence punishable u/s 307 IPC and that the prosecution failed to establish any intention on the part of the accused in murdering the defacto complainant or his family members, in the circumstances he argued that the prosecution failed to establish the guilt of the accused for the offence punishable u/s 307 IPC.

11.The defence counsel further contended that, admittedly the prosecution has not obtained sanction proceedings from the District Magistrate to prosecute the accused under Arms Act, in the circumstances there cannot be any case for the prosecution u/s 27 of Arms Act. The defence counsel by inviting the attention of this Court to various omissions in the depositions of the material witnesses, requested this Court to acquit the accused.

Witness and exhibits:

12. In this case, the de facto complainant examined as P.W1, through him Ex.P1 received in evidence. He is the injured witness. His sister is examined as P.W2. She is also an injured witness. The daughter of P.W2 examined as P.W3. They are the material witnesses. They tried to espouse the case of prosecution through their evidence in chief. The eye witness namely

P.W4 and P.W5 not supported the case of prosecution. The medical officer who issued the wound certificate in respect of P.W1 and P.W2 examined as P.W6, through him the wound certificates received in evidence under Ex.P4 and

Ex.P5. The witness for the scene observation report examined as P.W.7 he too supported the case of prosecution, in so far as conducting observation report at the scene. The P.W8 and P.W9 the mediators for the mediator report dt.

01.10.2016 have not supported the case of prosecution. The Investigating

Officer examined as P.W10, has given his evidence in chief, in tune with the

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records prepared by him in the investigation. Through him the remaining records of the prosecution received in evidence together with M.O1 to M.O.6. In the cross examination the investigating officer admitted that he has not obtained sanction proceedings from the District Magistrate to file charge sheet against the accused under Arms Act.

Excursus

13.This Court has perused the material available on record, verified the depositions of the witnesses, exhibits marked on behalf of the prosecution and has given thoughtful consideration to the matter.

14.In this case the criminal law is set into motion by the defacto complainant. In the trial examined as P.W1. He deposed his evidence in chief that; “On 28.09.2016, at about 09.00 PM I was present at my house in varanda. The accused all of the sudden came by jumping the wall, then I entered into the house and closed the doors. The accused has given various strikes on the door with the knife, meanwhile the door opened, however before that, myself, my mother were trying not to open the door by pushing the same. In the incident, in the gap of doors the knife hit the hand of my sister, thereby she sustained an injury on her left hand in between thumb and index finger, in the incident I too sustained injury on my left thumb due to the strike of knife by the accused. Thereafter the accused damaged the doors situated on the western side of our house with the knife. We raised cries. Meanwhile the accused threatened that somehow he will kill us and that would take away my niece. Later, the accused went away. Later, I put case against the accused by preferring report”.

15. His sister P.W2 through her evidence in chief deposed that, in the above incident, she received injury on her left hand. In the cross examination she deposed that her husband and accused were good friends and that her daughter/P.W3 is like a daughter to the accused.

The P.W3 also deposed in her evidence in chief that, on 28.09.2016 the accused came with knife on their house and that, then P.W1 and P.W2 and her aunt were raising cries and that, by then she was in room and further that, the accused saw her and began striking the door and that, in incident P.W1 and P.W2 received injuries. In the cross examination she too admitted that, the accused is like a father to him, because he is, her father’s friend and that P.W1 is still the friend

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of the accused.

Case made out u/s 324 IPC and not u/s 307 IPC 16. Shorn out the unnecessary aspects, the case of the prosecution revolved around the evidence of P.W1 to P.W3, wherein the P.W1 and P.W2 deposed in an unequivocal words that accused caused injury on the left thumb of the P.W1 and also caused injury on the left hand in between thumb and index finger of P.W2 by a knife. This incident was witnessed by an immediate eye witness namely P.W3. Anent to the claim of P.W1 and P.W2 as to the causation of injuries on them, the medical officer has found simple injury on P.W1 and P.W2 vide Ex.P4 and

Ex.P5. In this way of the matter, the ocular evidence adduced by the injured witnesses found corroborated with the testimony of medical expert viz., P.W6. The evidence of Investigating

Officer as to seizure of M.O.4 from the possession of the accused under mediators report marked under Ex.P10, with which accused voluntarily caused hurt, is meant to stab or cut, as such a weapon of the offence within the meaning of Sec.324 IPC. Thus, the prosecution succeeded in establishing the guilt of the offence punishable u/s 324 IPC, alone against the accused.

17. On thorough reading of the evidence of P.W1 to P.W3 together with the investigating officer, the prosecution failed to establish the intention on the part of the accused in perpetrating the offence punishable u/s 307 IPC. Thus, the prosecution succeeded in establishing the guilt of the accused only for the offence punishable u/s 324 IPC, but failed to make out a case u/s 307 IPC against the accused.

18.Admittedly the prosecution failed to obtain sanction proceedings from the

District Magistrate to prosecute the accused for the offence punishable u/s 27 of Arms Act. In the circumstances, there cannot be a case against the accused for the offence punishable u/s 27 of Arms Act, notwithstanding, the seizure of M.O2 and M.O3 from his possession as deposed by the investigating officer/P.W.10, and mustered support under Ex.P10. Thus, the Court found the accused not guilty of the offence punishable u/s 27 of Arms Act.

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19.The concrete evidence of P.W1 to P.W3 as to the offence punishable u/s 324 IPC against the accused cannot be doubted on the premise that, there were differences in between the defacto complainant and the accused, in connection with the money lending business of the defacto complainant, whereby the accused used to collect amount from the debtors of the defacto complainant etc., The evidence of P.W1 to P.W3 cannot be brushed aside for the offence punishable u/s 324 IPC on the score that the eye witness namely P.W4 and P.W5 have not supported the case of prosecution. The solid evidence of the defacto complainant together with

P.W2 and P.W3 cannot looked down basing the suggestion that on 28.09.2016 at 9.00 PM the defacto complainant along with N. Venkateswara Rao and Ch. Pavan beat the accused on the road and that he sustained injury, thereby went to Govt. Hospital, Machilipatnam, sans the record as to the above injury and treatment. Added to this, the case edifice by P.W1 to P.W3 for the offence punishable u/s 324 IPC cannot be doubted on any of the above defence theories propounded by the defence counsel. Thus, the arguments of the defence counsel on the above score delve into and answered to.

20In as much as the prosecution succeeded in establishing the guilt of the accused for the offence punishable u/s 324 IPC, the Court can well proceed against the accused bereft of charge thereto. In other words, the offence under Section 324 of IPC is a minor, one when compared to the offence punishable under Section 307 of IPC, as such, the Court can proceed against the accused under Section 324 of IPC sans charge thereto. See for the advantage the provision under Section 222 of

Cr.P.C.

21. On conspectus of the above discussion, this Court is of the considered view that, the prosecution has succeeded in establishing the guilt of the accused for the offence punishable under Sections 324 of IPC. Thus, he shall be punished accordingly. Hence, the accused is convicted under section 235 (2) of the Criminal Procedure Code, 1973 for the aforesaid offence. The

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accused need to be questioned on the quantum of sentence.

Dictated to the Junior Assistant Cum Typist, transcribed by him, corrected and

pronounced by me in Open court, this the 31 st day of January 2023.

Dr. Shaik Mohd. Fazulullah, IX Additional District & Sessions Judge, Krishna, Machilipatnam.

22. The accused heard about the quantum of sentence. He represented that, he has been in jail since long, suffering life imprisonment in another case thereby, requested this Court to take a lenient view. In the circumstances projected in the case and the occurrence of the offence of causation of hurt against known persons with whose family members he had a friendship, it is not a fit case to take a lenient view and at the same time, the accused is not entitled for the provisions of Probation of Offenders Act, 1958.

Expediency warrants this Court to deal with the accused under the normal law.

23. In the result, this Court found the accused guilty of the offence punishable under Sections 324 of IPC, accordingly, he is convicted under

Section 235 (2) of Cr.P.C., and sentenced to suffer simple imprisonment for a period of three (3) years.

And this Court found the accused not guilty of the offences punishable u/s 307 and sec. 27 of Arms Act, thereby acquitted him u/s 235(1)Cr.P.C.

The accused is entitled for set off under Section 428 of Cr.P.C., for the period of remand undergone viz., from 01.10.2016 to 14.12.2016 and from 07.02.2018 to till datei.e., 31.01.2023

The accused is entitled for right to appeal before the Hon’ble Appellate

Court, and also about free legal aid if any. He represented that, has means to

Page 10 of 11

SC.No. 10-2019, Dt: 31.01.2023 IX-ADJ COURT, MTM.

engage a counsel.

Order relating to the case property

(i) In this case the M.O.1-is the Patta Katti, M.O.-4 Knife with light sky-blue wooden handle, M.O.5 -Knife received in CPR No. 11/2019 on the file of this

Court shall be destroyed after appeal time.

(ii)The case property viz., M.O.2 is an Air Pistol, M.O.3 Pellets (16 in number) received in above CPR shall be sent to the nearest Arsenal viz., O/o

District Police, Krishna at Machilipatnam for necessary action.

(iii)The case property viz., M.O.6 White colour Honda Activa bearing register

No. AP16 DE 3114 in the above CPR, shall be confiscated to the State.

(iv)The Court of II Judicial Magistrate of First Class, Machilipatnam shall take action as to the disposal of case property thereto after appeal time.

Dictated to the Junior Assistant Cum Typist, transcribed by him, corrected

and pronounced by me in Open court, this the 31 th day of January 2023.

Sd- Dr. Shaik Mohd. Fazulullah,

IX Addl., District & Sessions Judge, Krishna, Machilipatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Prosecution For the Accused P.W.1: Namana Srinivasa Rao - None – P.W.2: Chodagam Radha P.W.3: Chodagam Sneha P.W.4: S. Rajesh P.W.5: D.V.V.S Prasad P.W.6: Dr. D.V.S.N. Satyanarayana P.W.7: K. Anjaneya Kumar P.W.8: T. Ramana

Page 11 of 11

SC.No. 10-2019, Dt: 31.01.2023 IX-ADJ COURT, MTM.

P.W.9: B. Durga Prasad P.W.10: Md. Habeeb Basha

DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:

Ex.P1: is the report of P.W1, dt.28.09.2016. Ex.P2: 161 statement of P.W4 Ex.P3: 161 statement of P.W5 Ex.P4: is the wound certificate of P.W1, dt.18.11.2016. Ex.P5: is the wound certificate of P.W2, dt.18.11.2016. Ex.P6: is the 161 statement of P.W8. Ex.P7: is the mediators report. Ex.P8 is the 161 statement of P.W9. Ex.P9 is the FIR in Cr.No.131/2016, u/s 307 IPC of R.Peta Police station, dt.28.09.2016. Ex.P10 is the mediators report, dt.01.10.2016 Ex.P11 is the rough sketch, dt.29.09.2016. Ex.P12 is the section addition memo, dt.01.10.2016. Ex.P13 is the RFSL report, dt.20.07.2017. Ex.P14 is the scene observation report, dt.29.09.2016. On behalf of Defence -NIL-

MATERIAL OBJECTS

M.O.1 is the Patta Katti M.O.2 is an Air Pistol M.O.3 Pellets (16 in number) M.O.4 Knife with light sky-blue wooden handle M.O.5 Knife M.O.6 White colour Honda Activa bearing register No. AP16 DE 3114

Sd/- Dr. Shaik Mohd. Fazulullah,

IX Additional District & Sessions Judge, Krishna, Machilipatnam.

Copy to: The Honourable Registrar (Judicial), Honourable High Court of Andhra Pradesh, Nelapadu, Guntur District. To:

1)The Additional Public Prosecutor, IX-Additional District and Sessions

Judge’s Court, Krishna, Machilipatnam.

2)The Counsel for the accused.

3) The Superintendent of Police, Krishna, Machilipatnam.

IX ADJ, MTM

S.C.166/2019, Dt.30.01.2023. 1

IN THE COURT OF IX ADDITIONAL DISTRICT AND SESSIONS JUDGE,

KRISHNA DISTRICT AT MACHILIPATNAM

Present: Dr. Shaik Mohd. Fazulullah,

IX Additional District & Sessions Judge, Krishna, Machilipatnam.

Monday, this the 30 th day of January, 2023

SESSIONS CASE No.166/2019

(PRC.No.06/2019 on the file of the learned I Additional Junior Civil Judge

cum I Additional Judicial Magistrate of First Class cum XIV Additional

Metropolitan Magistrate, Nandigama in Crime.No.146/2018 of

Chandarlapadu Town Police Station)

Prosecution:Sri B. Venkanna Babu,

Additional Public Prosecutor

Defence Counsel:Sri P. V. Venkateswara Rao Advocate Name(s) of the Accused: Paridala Gopi, S/o Srinivasa Rao, aged 20 Years, Chandarlapadu Village and Mandal. Charges under section(s): 376(2)(n), 417 of IPC

Plea of the Accused:Pleaded not guilty Finding of the Court:Found not guilty Result of the case:In the result, this Court found the accused not guilty of the offences punishable under section 376(2)(n), 417 of IPC, thereby acquitted him under section 235 (1) of Cr.P.C., He be set at liberty. His bail bonds shall be cancelled after six months under section 437-A of Cr.P.C., Order relating to case property: The M.O.1-Two clothes of victim, M.O.2- Three clothes of accused received in C.P.R.No.18/2022, on the file of this Court, shall be destroyed after appeal time.

The above numbered Sessions Case presented before me on 20.01.2023 for final hearing, the matter having stood over for consideration till this day, the court delivered the following:

J U D G M E N T

1.The State, represented by the Inspector of Police, Nandigama Rural

Circle, has filed charge sheet against the accused for the offences punishable under section 376(2)(n), 418, 420 of Indian Penal Code, 1860 (for short ‘IPC’).

2.Briefly stated the contents of the charge sheet are that, the defacto complaint and the accused are the residents of the Chandarlapadu Village and

Mandal. She has discontinued her studies after intermediate. The brother of the defacto complainant, and the accused are friends. Out of said intimacy, the accused

IX ADJ, MTM

S.C.166/2019, Dt.30.01.2023. 2 used to come to the house of defacto complainant, to take his brother to work in painting etc., On one day the accused induced the defacto complainant that he is in love with her and that would marry, and on that, premise used to follow her. The defacto complainant having believed the words of the accused fell in love with him.

Whenever the parents of the defacto complainant searching alliance for her, the accused used to break the same. When she questioned him for the same, he used to say that, if he marries anyone other than her, he will consume pesticide and commit suicide. While it is so, on 15.07.2018 at 20.30 hours while she was coming from bazar, the accused stopped her in the midway, took her forcibly behind

Anganwadi School on the pretext that, he wants to talk her etc., and had forcibly had sexual intercourse with her, without her consent. Similarly, on 06.08.2018 at about 19.00 hours while she was coming from church, he took her to cotton fields situated in outskirts of the village, and had sexual intercourse against her consent.

When she asked him about the above sexual act before marriage, the accused said that, he would marry her soon. As the days passed, the defacto complainant contacted the accused to his mobile on two numbers, the accused began ignoring her calls, on the other hand, informed that, his marriage settled with the daughter of her maternal uncle and that it is not possible to him to marry her. Thus, the same prompted her to prefer complaint. Hence the case.

3.Adverting to the above, basing the complaint of the defacto complaint, a case in Cr.No.146/2018, u/s 376(2)(n), 418, 420 IPC of Chandarlapadu Police

Station, registered and on completion of investigation, the charge sheet is filed to proceed against the accused accordingly.

Cognizance

4.The learned I Additional Judicial Magistrate of First Class cum XIV

Additional Metropolitan Magistrate, Nandigama, had taken the matter onto file as

PRC.No.06/2019 against the accused for the offences punishable under section 376(2)(n), 418, 420 of IPC, and has committed the case under section 209(a) of

Cr.P.C., as the alleged offence under section 376(2)(n), 418, 420 of IPC is exclusively trailable by this Special Court for Trial of Offences Against Women, in

IX ADJ, MTM

S.C.166/2019, Dt.30.01.2023. 3 turn, the Principal District and Sessions Judge, Krishna, Machilipatnam registered the case as SC.No.166/2019 and made over the same, to this Court for disposal, according to law.

5.On the appearance of the accused, before this Court, examined him under section 228 of Cr.P.C., whereby he pleaded not guilty and claimed to be tried, thereby having heard the Additional Public Prosecutor and the defence counsel, charges under section 376(2)(n), 417 of IPC have been framed against the accused, read over to him, he denied the same and claimed to be tried.

6.The prosecution, in support of its case, examined the PW-1 to PW- 10, marked Ex.P1 to Ex.P15 and M.O.1 and MO.2.

7.On closure of the evidence of prosecution, the accused examined under section 313 of Cr.P.C., he termed the evidence as false, but not chosen to examine the witnesses on his behalf.

8. Now the point for determination is:

Whether the prosecution has succeeded in establishing the guilt of the accused for the offense charged beyond all reasonable doubt?

Arguments 9. The learned Additional Public Prosecutor argued that, the evidence available on record is sufficient to proceed against the accused for the offences charged. Thereby, he requested this Court to proceed accordingly.

10. The defence counsel argued that, admittedly the defacto complainant and the accused were in love, for a considerable time. They belong to same community. On that premise so as to see that the accused marries her invariably and to pressurize him, the case has been foisted. The defence counsel also analyzed that, the alleged place of scene at first instance, is situated behind the

Anganwadi school, in and around the Anganwadi school, there are houses, there is a water tank and all along the public use the said area for ingress and egress, in the circumstances the accused forcibly involving in sexual intercourse against the victim girl does not arise, and if at all there was any force by the accused against the victim girl, on the fateful time and place, there should have been commotion by

IX ADJ, MTM

S.C.166/2019, Dt.30.01.2023. 4 the victim girl and on that, all people should have assembled there, but in this case nothing happened as above, and this itself shows that, this is a false case foisted by the victim woman, even if at all there was no any consensus. In respect of the second scene at cotton fields, the defence counsel contended that, all along the victim woman traveled with the accused on a bike, in the circumstance accused taking the victim girl to the cotton fields and committing rape, does not arise, when especially the victim woman admitted, that on her body no injuries caused particularly private parts. The defence counsel elaborated that, though the incidents occurred, on 15.07.2018 and 06.08.2018 the verifiable days, the victim woman has not preferred complaint, on the above alleged dates, and on the contrary, after long lapse i.e., on 15.10.2018, she approached the police, and preferred complaint, and this itself shows the falsity in the case setup by the prosecution, thereby requested this Court to acquit the accused. In his arguments, the defence counsel invited the attention of this Court to various contradictions, omissions and improvements, in the case of the prosecution, and requested this Court to look down the case of prosecution and acquit the accused. In support of his arguments he relied upon the analogy laid down in Uday vs. State of Karnataka 1 , Deepak Gulati v. State of

Haryana 2 , Pramod Suryabhan Pawar v. State of Maharashtra & Anr. 3, Sonu @

Subhask Kumar v. State of Uttar Pradesh @ Anr) 4 , and Kagitha Narendra @ Sunny v. State of A.P. 5 , State of Andhra Pradesh v. Chindurala Ramesh 6 , Madhira Sathish

Vs State of Andhra Pradesh 7 , Sekhar vs. State by Inspector of Police,

Thiruvannamalia Rural 8 , Varghese John vs. State of Kerala 9 , Vinod Mangilal v. State of Madhya Pradesh 10 , Kabi alias Akshaya Kumar Mohanty v. State of Orissa 11 , Tilak

Raj vs. State of Himachal Pradesh 12 , Rajiv Singh vs. State of Bihar & Another 13 ,

Marcel Kuyo v. State of Karnataka and other 14

The Court understood the placitum in the above cited decisions, anent to the factual matrix emerged in the case in the hand.

_____________________________ 1. (2003) 4 SCC 46

2.(2013) 7 SCC 675 3 (2019) 9 SCC 608 4 2021 SCC OnLine SC 181 5 2021 (2) ALD (Crl.) 407 (AP)

IX ADJ, MTM

S.C.166/2019, Dt.30.01.2023. 5 6 2021 (1) ALD (Crl.) 72 (TS) 7 2021 (2) ALD (Crl.) 952 (AP) 8 1995(2) ALT (Crl.) 552 (Mad.) 9 1995(2) ALT (Crl.) 555 (D.B.) (Ker.) 10 2009 CRI.L.J.1204 11 2009 Cri. L. J. 1207 12 2016 SAR (Criminal) 468 13 2016 SAR (Criminal) 474 14 2021 Cri. L. J. 3852

Witnesses and Exhibits:

11. In this case, the victim woman examined as P.W1. Through her Ex.P1 the report, received in evidence. Naturally she being a victim supported her case through her evidence in chief. The mother of the victim girl examined as P.W2. She too supported the case of her daughter. A circumstantial witness examined as P.W3, has supported the case of the victim woman, that the accused raped her and she was passing through the road by weeping. Same is the case with P.W4, yet another circumstantial witness. The witness for scene observation report for the both the scenes examined as P.W5, he supported the case of prosecution to the extent of his role. In the cross examination he admitted that, the police have not seized any incriminating material at the scene. The medical officer who examined the victim woman surfaced as P.W6, through her, the reports of the victim woman marked under Ex.P3 and Ex.P4; in the cross examination the medical officer deposed that, she has not found any injuries on the body of the victim woman. She deposed that, the victim woman has also given the history that, she has participated in sexual intercourse with her consent for four times, one month ago prior to her examination. The medical officer, who examined the accused and issued potency certificate surfaced as P.W7, through him the reports of the accused received in evidence. The main Investigating officer examined as P.W8, through him the other records of prosecution received in evidence. The Investigating officer who issued

FIR examined as P.W9, through the same received in evidence. The Investigating officer who filed charge sheet examined as P.W10, through him the material objects the M.O1 and M.O2 received in evidence.

Excursus:

12. This Court has perused the material available on record, verified the depositions of the witnesses and has given thoughtful consideration to the matter,

IX ADJ, MTM

S.C.166/2019, Dt.30.01.2023. 6 amidst the arguments advanced.

In this matter the defacto complainant is a prime witness. She has set the criminal law into motion. She happened to be the alleged victim in the case. As on the date of alleged incident she was 22 years. She admitted in cross examination in categorical terms, that she knows the consequence of sexual course; while it is so, admittedly she was in love with the accused. In her evidence in chief, she deposed that, on 15.07.2022 at 8.30 PM the accused took her by bike and reached

Anganwadi School, near Govt. Hospital, Chandarlapadu and forcibly had a sex with her, though she was resisting, and again on 06.08.2018 at 07.00 PM while she was coming from church, the accused took her by his bike, to the cotton filed situated at the outskirts i.e., 2KM away to the village, and there he raped her, by saying that eventually he would marry her. From the above two pieces of evidence as to the alleged sex or rape, as the case maybe, in the cross examination she admitted that, on that day (Anganwadi School rape incident) on her body no injuries caused particularly private parts, in respect of the above scene, she deposed that, on one side there is vacant site, and all the three sides there are houses, and further that,

Anganwadi School is on the main road and from the said main road, one has to go to temple etc., and further that from the above road, pubic moves from 6AM to 9PM.

13.Amidst the above topography of the scene, whether at any stretch of imagination, can it be said that, whether there was such forcible sex or rape as the case maybe? Admittedly the alleged scene is surrounded by the houses of various people, and that the said scene is on the main road, whereby there is a movement of public all along from 6AM to 9PM. Added to this, the victim woman admitted that, on that day there were no injuries on her body, particularly private parts.

14.In respect of second incident alleged to have been occurred in the cotton fields, on 06.08.2018, what can be said is that, here also the victim woman deposed that, there were no injuries on her body particularly private parts. Added to this, the victim woman in the cross examination admitted that, after 15.07.2018 (first incident) and 06.08.2018 (second incident) she has not given police report,

IX ADJ, MTM

S.C.166/2019, Dt.30.01.2023. 7 that the rape occurred against her etc.,

15.Thus, from the above aspects, the Court is of the opinion that, there was no any incident of rape at all. If at all, there was any sexual intercourse, it was out of love and consent. That is the reason, on occurrence of both the incidents, the victim woman has neither raised cries nor commotion at the respective scenes. On the other hand, she traveled on the bike of the accused to the above places. Had there been any incident of malice in the mind of the accused that he would rape her, it is a natural trait that at least for the second instance, once she should have desisted from following him. Thus, in this way of the matter, the way in which, the victim woman followed the accused on his bike to go to the above respective scenes, goes to show that, unless there is a consent, she would not have ventured to travel with him, to go to above places and had copulation thereon.

Belated launch of prosecution

16.As there was no any incident of rape or similar aggrandizement, though the alleged incident of rape occurred on 15.07.2018 and 06.08.2018, the victim woman has not chosen to prefer report at all, on the contrary the moment the accused intent to go for marriage, leaving aside his love, romance etc., against the victim woman, the victim woman belatedly approached the police on 15.10.2018 and preferred complainant. Had there been any incident of rape on 15.07.2018, she should have proceeded to the police station post haste and reported the matter. Again, had there been any incident on 06.08.2018, at least for the second time, she should have rushed to the police station, and preferred complaint, she failed to do so, on the other hand with abnormal delay on 15.10.2018, she approached police and preferred complaint. In this way of the matter, the case of the defacto complainant and her evidence, thereto that the accused raped her, is found to be false.

Improved version hitherto unknown

17.In this case, it is so happened that, hitherto unknown to the case of prosecution, the victim woman in her evidence in chief deposed that;

On 28.08.2021, the accused married me in a vacant site in Munaganapalli Village. After marriage, we went to Chandarlapadu

IX ADJ, MTM

S.C.166/2019, Dt.30.01.2023. 8 Police Station. One Police Constable phoned up the parents of the accused, on that, they replied that they no longer wants to accept the accused, but my parents accepted the marriage. From police station, we went to the house of my maternal aunt in Gowravaram Village of Jaggaiahpet Mandal. For four days, we lived together. Meanwhile, the accused asked me to see that, this case is ended in acquittal, however, I said that it is pending, on that, without informing me, he left the house and failed to respond my calls. In this way, I am put to loss and inconvenience.

This is an improved version invented by the victim woman unknown to the prosecution. The way in which, the victim woman improved the case, goes to show that, she will go to any extent to fudge the case unknown to the prosecution, and as a surprise to the accused. Admittedly there is neither a foundation nor a basis to the above innovated and improved version. In this way of the matter, the case of the prosecution is at doubt, consequent to the above unknown episode brought to light by the victim woman.

18. On conspectus of above peroration, the Court is of the considered view that the allegations of the defacto complainant against the accused are found to be false.

19. On conglomeration of above discourse, the Court is of the considered view that, in the core case of the prosecution, there is doubt as adumbrated supra, as such, the Court is of the considered view that the prosecution has failed to establish the guilt of the accused for the offences charged with, beyond all reasonable doubt, hence the accused is acquitted.

In the result, this Court found the accused not guilty of the offences punishable under section 376(2)(n), 417 of IPC, thereby acquitted him under section 235 (1) of Cr.P.C., He be set at liberty. His bail bonds shall be cancelled after six months under section 437-A of Cr.P.C.,

Order relating to case property:

The M.O.1- Two clothes of victim, M.O.2- Three clothes of accused received in

C.P.R.No.18/2022, on the file of this Court, shall be destroyed after appeal time.

Dictated to the Junior Assistant Cum Typist, transcribed by him, corrected and

pronounced by me in Open court, this the 30 th day of January 2023.

Sd/- Dr. Shaik Mohd. Fazulullah,

IX Addl. District & Sessions Judge,

Krishna, Machilipatnam.

IX ADJ, MTM

S.C.166/2019, Dt.30.01.2023. 9

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Prosecution For the Accused

PW-1: Victim Woman Nil PW-2: Ch. Mariyamma PW-3: Gunturi Janaki Ramaiah PW-4: B.Ravi PW-5: K. Lakshmi PW-6: Dr. J. Seetharavamma PW-7: Dr. Gowtham Babu PW-8: P. Venkata Ramana PW-9: P.S.V. Subrahmanyam PW-10: K. Satish

DOCUMENTS MARKED

On behalf of the Prosecution: Ex.P1: is the report of P.W1, dt.Nil Ex.P2: is the 164 Cr.P.C statement of the victim, dt.19.01.2019 Ex.P3: is the sexual offence report, dt.Nil Ex.P4: is the final opinion, dt. Nil Ex.P5: is the sexual offence report of the accused, dt.27.10.2018 Ex.P6: is the certificate of the potency of the accused, dt.24.10.2018. Ex.P7: is the final opinion of the accused, dt.06.06.2018. Ex.P8: is the rough sketch of the scene of offence, dt.17.08.2018 Ex.P9: is the rough sketch of the scene of offence, dt.17.10.2018 Ex.P10: is the scene observation report at 09.00 hours, dt.17.10.2018 Ex.P11: is the scene observation report at 10.15 hours, dt.17.10.2018 Ex.P12: is the FIR in Cr.No.146/2018, u/s 376(2)(n), 418, 420 IPC of Chandarlapadu P.S, dt.15.10.2018 Ex.P13: is the mediators report, dt.23.10.2018 Ex.P14: is the RFSL report, dt.20.05.2019 Ex.P15: is the letter of advice, dt.30.10.2018

On behalf of Defence:

Nil

MATERIAL OBJECTS: M.O.1 is the Two clothes of victim. M.O.2 is the Three clothes of accused.

Sd/- Dr. Shaik Mohd. Fazulullah,

IX Addl. District & Sessions Judge,

Krishna, Machilipatnam.

Copy to:

The Honourable Registrar (Judicial), Honourable High Court of Andhra Pradesh, Nelapadu, Guntur District To:

1)The Additional Public Prosecutor, IX Additional District and Sessions Judge’s Court, Krishna, Machilipatnam

2)The Superintendent of Police, Krishna, Machilipatnam.

S.C.No.16-2014, Dt.31.01.2023 1 IX ADJ, MTM

IN THE COURT OF IX ADDITIONAL DISTRICT AND SESSIONS JUDGE,

KRISHNA DISTRICT AT MACHILIPATNAM

Present: Dr. Shaik Mohd. Fazulullah,

IX Additional District & Sessions Judge, Krishna, Machilipatnam.

Tuesday, this the 31 th day of January, 2023

SESSIONS CASE No.16/2014

(PRC.No.21/2013 on the file of the learned Judicial Magistrate of First

Class, Mylavaram in Crime.No.79/2010 of Reddigudem Police Station)

Prosecution:Sri B. Venkanna Babu,

Additional Public Prosecutor

Defence Counsel:Sri K. Venu Gopala Rao Advocate

Name(s) of the Accused:Turlapati Srinu, S/o Tirupathi Rao, 30 years, yadava, Raghavapuram Village, Reddigudem Mandal

Charges under section(s):376(1) of IPC

Plea of the Accused:Pleaded not guilty

Finding of the Court:Found not guilty

Result of the case:In the result, this Court found the accused not guilty of the offence punishable under section 376(1) of IPC, thereby acquitted him under section 235 (1) of Cr.P.C., He be set at liberty. His bail bonds shall be cancelled after six months under section 437-A of Cr.P.C., Order relating to case property: No property, hence no orders.

The above numbered Sessions Case presented before me on 25-01-2023 for final hearing, the matter having stood over for consideration till this day, the court delivered the following:

J U D G M E N T

1.The State, represented by the Inspector of Police, Mylavaram has filed a charge sheet against the accused for the offences punishable under section 376 (2) (f) of Indian Penal Code, 1860 (for short ‘IPC’).

2.Briefly stated, the contents of the charge sheet are that, the defacto complainant is the father of the victim minor girl. And that the victim girl said to be

S.C.No.16-2014, Dt.31.01.2023 2 IX ADJ, MTM mentally retorted. The accused is the nephew of the defacto complainant. The accused out of his close relationship with the family of the defacto complainant used to visit his house. The accused is already a married one and blessed with child. Because of his frequent visits he developed an evil eye against the above innocent minor girl. The parents of the victim girl used to go to agricultural work leaving the victim girl alone in the house. Taking advantage of this the victim girl and her loneliness the accused forcible committed rape on her under the false promise of love. The accused threatened the victim girl not to inform anyone as he is going to marry her and, on that premise, continue to satisfy his lust. As a result, the victim girl conceived. When the victim girl found sick her parents took her to hospital, there the doctor informed that the victim girl carrying fourth month pregnancy, when enquired victim she disclosed that, the accused is responsible for pregnancy. When the parents of the victim girl questioned the accused, he admitted his guilt and promise to marry. The parents of the victim girl, as the accused agreed, they kept quite, as the months advanced, the accused refuse to marry her, in the panchayat also, the accused confessed his guilt but refuse to marry, on that, on the advice of the elderly people the defacto complainant presented a report on 11.10.2010, a case in Cr.No.79/2010 u/s 376(2)(f) registered. During the course of investigation, the accused was arrested and he confessed the commission of the offence, in the investigation, the age determination test of the victim girl conducted, whereby it was opined that, the victim was aged 17 years. In the medical examination conducted on girl, the medical officer opined that the victim was carrying 32 to 34 weeks pregnancy and in the process of delivery. As on the date of filing of preliminary charge sheet dt.29.07.2011, the victim girl gave birth to child; to establish the paternity of the child, the victim girl, a new born child and the accused were sent to DNA test and the report is awaited, hence the preliminary charge sheet as on 29.07.2011. Further regular charge sheet filed dt.28.08.2013 contending that the DNA profile received and the final result came with the opinion that the accused is not the biological father of the male child of the victim girl but the victim girl is the biological mother of the above new born male child. Thus, the

S.C.No.16-2014, Dt.31.01.2023 3 IX ADJ, MTM regular charge sheet, hence the case.

3.Adverting to the above, basing the complaint of the father of the victim girl, a case in Cr.No.79/2010, u/s 376 (2) (f) IPC of Reddigudem Police Station registered and on completion of investigation, the charge sheet is filed to proceed against the accused accordingly.

Cognizance

4.The learned Judicial Magistrate of First Class, Mylavaram, had taken the matter onto file as PRC.No.21/2013 against the accused for the offences punishable under section 376(2)(f) of IPC, has committed the case under section 209(a) of Cr.P.C., as the alleged offence under section 376(2)(f) of IPC, in turn, the

Prl. District and Sessions Judge, Krishna, Machilipatnam has made over the case to the Prl. Senior Civil Judge, Vijayawada, and the case registered as SC.No.16/2014.

On 29.08.2017, the same is made over to this Court with the same number through online for disposal, according to law, as this Court re designated for trial of Offences against Women.

5.On the appearance of the accused, before this Court, examined him under section 228 of Cr.P.C., whereby he pleaded not guilty andclaimed to be tried, thereby having heard the Additional Public Prosecutor and the defence counsel, charges under section 376 (1) of IPC have beenframed against the accused, read over to him, he denied the same and claimed to be tried.

6. The prosecution, in support of its case, examined the PW-1 to PW-13, marked Ex.P1 to Ex.P17.

7. On closure of the evidence of prosecution, the accused examined under section 313 of Cr.P.C., he termed the evidence as false, and not chosen to examine the witnesses on his behalf.

8.Now the point for determination is:

Whether the prosecution has succeeded in establishing the guilt of the accused for the offense charged beyond all reasonable doubt?

S.C.No.16-2014, Dt.31.01.2023 4 IX ADJ, MTM Arguments

9.The learned Additional Public Prosecutor argued that, the evidence available on record is sufficient to proceed against the accused for the offences charged. Thereby, he requested this Court to proceed accordingly.

10.The defence counsel argued that, the alleged victim girl in the passage of time has become woman and infact she is not an innocent or mentally retorted woman. He further elaborated that, when the victim woman in her early age has become pregnant without marriage, on the ill advice of some advocate the defacto complainant got this case foisted against the accused without taking actual opinion from his daughter, and that is the reason in the first DNA profile conducted as early as on the delivery of the child, it was concluded in the profile that, the accused is not the biological father of the disputed child vide report dt.18.03.2013 marked under Ex.P13. The defence counsel further added that, for all along these 12 years the defacto complainant a veteran litigant chased the accused, approached the

Hon’ble High Court for stay of proceedings of this session’s case and made the

accused to wander this Court for 12 years and eventually got the stay vacated in

Crl.MP.No.16305/2014, dt.28.09.2021 before the Hon’ble High Court and in the

second round of litigation, again sought the indulgence of this Court in seeking the

DNA profile afresh, and on that, yet again the alleged victim woman, the disputed son and accused sent to the DNA profile vide Crl.Mp.No.110/2022, dt.12.12.2022.

And on conduct of test, yet again the FSL, Government of Andhra Pradesh,

Mangalagiri, through its opinion dt.21.12.2022 marked under Ex.P14, opined that the accused is not the biological father of the disputed son of the victim woman.

The defence counsel further contended that for no fault of the accused, the defacto complainant and the victim woman put him in trauma for 12 years amidst this false case, there by requested this Court to acquit the accused.

Witnesses and Exhibits

11.In this case, the victim woman examined as P.W1. Her father examined as P.W2.

The mother of the victim woman examined as P.W3. Through their evidence in chief, they tried

S.C.No.16-2014, Dt.31.01.2023 5 IX ADJ, MTM to support the case of prosecution. The members of family counseling center examined as P.W4 and P.W5 they are circumstantial in nature, whereby through their evidence-in-chief, it has come on record that, the P.W1 to P.W3 reported to their center that, the accused raped the victim girl, on that they called the accused, then the accused reported that he has not committed the offence and he has not married her.

12.The circumstantial witness namely P.W6, P.W7 have not supported the case of prosecution. The mediator for the scene observation report and the arrest of the accused namely P.W8 has also not supported the case of the prosecution. The P.W9 mediator for the scene observation and the arrest of the accused has supported the case of prosecution to the extent of his role thereto. The professor who has issued the age determination certificate of the victim girl, examined as P.W10, the medical officer who examined the victim girl surfaced as

P.W11 through her the report of the victim woman received in evidence. The first investigating officer examined as P.W12 and through him the report and FIR received in evidence under Ex.P7 and Ex.P8. The second main investigation officer (The yet another investigating officer N.

Kishore died in pending trial) is examined as P.W13 through him the remaining records of the prosecution received in evidence.

Excursus:

13.This Court has perused the material available on record, verified the depositions of the witnesses and has given thoughtful consideration to the matter, amidst the arguments advanced.

14. In this matter the criminal law set into motion by an unletted defacto complainant by a typed report marked under Ex.P7 alleging that prior to four months of preferring to same, on suspicion that, the victim has become pregnant, when consulted doctor he confirmed the same, on that, when they enquired the victim girl by then, she said to have stated to him that, about four months ago on one day at 10.00 hours while there are none in the house, the accused raped the victim girl by shutting her mouth with clothes, and further that, the accused is none

S.C.No.16-2014, Dt.31.01.2023 6 IX ADJ, MTM other than his nephew, on that, the parents of the accused who happened to be his sister and brother in law, respectively stopped him( defacto complainant) to approach the police and assured him that they would perform his (accused) marriage with the victim girl. However, though the months passed, they kept quiet and further refused to perform the marriage.

Further it is recited in the report that, before delivery, the parents of the accused tried to conduct forced delivery the un mature baby and offer to pay Rs.1,00,000/- as compensation, on that the defacto complainant failed to accept the proposal, then he approached the police with the above typed report.

15.As adumbrated supra, the defacto complainant is the father of the victim woman. He is examined as P.W2. The victim girl examined as P.W1. the mother of the victim girl examined as

P.W3. They tried to support the case through their evidence-in-chief, the fact remains that, the case is of the year 2010. The typed report presented to the police on 11.10.2010. The victim girl sent to lady doctor/P.W11 whereby she found that, the victim woman was carrying 32 to 34 weeks pregnancy. As seen from the medical report of the victim girl furnished by the lady doctor, nowhere there is a mention that the victim woman was a mentally retorted or suffering from epileptic disorders etc., on the contrary the victim woman found to be normal.

16.The age of the victim woman determined by the Professor, department of Forensic

Medicine, Government of Andhra Pradesh/P.W10 that by then she was 17 years old. In his report also nowhere, there are observations as to the mental health or similar condition of the victim girl, to say that she is an innocent girl and suffering from mental unsoundness etc., By the time, the victim girl took before the Gynecology Professor, the victim woman was carrying her 8th month pregnancy. Amidst the same, what can be deduced is that, there is nothing on record to say that, the victim woman was suffering from any unsoundness of mind. Thus, the claim of the parents and the victim girl that she is innocent and suffering from epileptic disorder is false.

In the trial the victim woman examined as P.W1. she has given her answers rationally and narrated the incident in support of the version given her father/defacto complainant. In the efflux of time (she has become a woman of 29 years old). She deposed randomly that during

S.C.No.16-2014, Dt.31.01.2023 7 IX ADJ, MTM 2010 the accused used to come to his house being relative and on one day raped her. The accused threatened her, not to reveal the same to anyone, on that she kept quiet, later on one day she complained stomach pain, and the doctor confirmed that, she was carrying fourth month pregnancy, eventually she delivered a baby, firstly she along with disputed boy and the accused were sent to Hyderabad, later Mangalagiri to check the fatherhood of the boy. Except the above random evidence given by the victim girl, there is nothing on record to trace out the alleged offence leveled by the complainant party against the accused. Admittedly none saw the accused perpetrating the offence. Even by the time the defacto complainant presented the report before the police, the victim girl was carrying her 8th month pregnancy. With this what emerges clear is that, even after the aggrandizement of the offence for 8 months, the defacto complainant dodged to launch of prosecution. His explanation is that, the matter was kept

before the village elders, leaders and the parents of the accused for marriage etc., and they

refused the same, and the proposal of the parents of the accused is that they offer Rs.1,00,000/- for termination of pregnancy is not substantiated by any circumstantial witnesses. On the contrary, the circumstantial witness namely P.W6, P.W7 have not support the case of prosecution. Added to this, the Family Counseling Center members examined as P.W4 and P.W5 not supported the claim of defacto complainant, as to the above explanation. In the cross examination, it has come on record that, there is nothing to show that P.W4 and P.W5 are the member of Family Counsel Center. With this the futile explanation given by the defacto complainant for belated launch of prosecution despite aggrandizement of the accused goes to show that the allegation thereto is false.

17.The defacto complainant has chased the accused for a period of 13 years in making him to circumambate the Court of Magistrate, Assistant Session Judge, Special Court for trial of offence against woman and the Hon’ble High Court of A.P and also got the matter stayed and ultimately got the stay vacated and finally withdrew criminal petition (Crl.MP.No.16305/2014, dt.28.09.2021). In the interregnum the accused put to DNA profile twice vide Ex.P13 and Ex.P14. whereby it has come on record that accused is not the

S.C.No.16-2014, Dt.31.01.2023 8 IX ADJ, MTM biological father of the disputed child of the victim woman. The defacto complainant went to an extent of suspecting the sample drawal procedure for the first DNA profile, and alleged conspiracy in drawing the samples. Later, he approached the Hon’ble High Court alleging that some conspiracy took place in drawing the sample etc., and disputed the first report, and finally he withdrew the criminal petition from the file of Hon’ble High Court to work out remedy

before this Court, and got the samples sent to FSL, Mangalagiri for DNA finger print, and yet

again it has come that, the accused is not the biological father of the disputed child.

18.Amidst the above, especially the random evidence of the complainant party and the roving enquiry on the paternity of the accused viz or viz the disputed child of the victim woman, amidst two concurring DNA profiles, recusing the accused from his parenthood, the Court is of the view that the prosecution has failed to establish the guilt of the accused for the charged offence.

19.On conglomeration of above discourse, the Court is of the considered view that, in the core case of the prosecution, there is doubt as adumbrated supra, as such, the Court is of the considered view that the prosecution has failed to establish the guilt of the accused for the offences charged with, beyond all reasonable doubt, hence the accused is acquitted.

In the result, this Court found the accused not guilty of the offence punishable under section 376(1) of IPC, thereby acquitted him under section 235 (1) of Cr.P.C., He be set at liberty. His bail bonds shall be cancelled after six months under section 437-A of Cr.P.C.,

Order relating to case property:

No property, hence no orders.

Dictated to the Junior Assistant Cum Typist, transcribed by him, corrected and pronounced by me

in Open court, this the 31th day of January 2023.

Sd/- Dr. Shaik Mohd. Fazulullah,

IX Addl. District & Sessions Judge, Krishna, Machilipatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Prosecution For the Accused PW-1: Victim woman PW-2: K. Venkateswara Rao

S.C.No.16-2014, Dt.31.01.2023 9 IX ADJ, MTM PW-3: K. Varalakshmi PW-4: T. Anjali Devi PW-5: V. Padma PW-6: A. Rosaiah PW-7: K. Venkateswara Rao PW-8: Ch. Lurdumatha PW-9: M. Suresh Kumar PW-10: Dr. G. Sivaramireddy P.W-11: Dr. G.L. Sobitha P.W-12: P. Venkateswarlu P.W-13: V. Vijaya Rao

DOCUMENTS MARKED

On behalf of the Prosecution: Ex.P1: 161 statement of P.W6 Ex.P2: 161 statement of P.W7 Ex.P3: is the signature of the P.W8 on scene observation report, dt.12.10.2010 Ex.P4: is the signature of the P.W8 on mediator report, dt.12.10.2010. Ex.P5: is the age determination form of victim girl/P.W1, dt.13.10.2010 Ex.P6: is the medical report of the victim woman, dt. Nil Ex.P7: is the typed report of the defacto complainant Ex.P8: is the FIR in Cr.No.79/2010 u/s 376(2)(f) IPC of Reddygudem P.S, dt.11.10.2010 Ex.P9: is the scene observation report, dt.12.10.2010. Ex.P10: is the rough sketch, dt.12.10.2010 Ex.P11: is the mediators report, dt.12.10.2010 Ex.P12: is the letter addressed by the Director APFSL, Hyderabad to JMFC, Mylavaram, dt.06.11.2012 Ex.P13: is the DNA profile, concluding that T.Srinu/accused (source of item No.3) is not the biological father of male child of Katta Venkata Lakshmi/P.W1 (source of item No.2) but whose biological mother is Katta Venkata Lakshmi/P.W1 (source of item No.1), dt.18.03.2013. Ex.P14: is the DNA profile, concluding that T. Srinu/accused (source of item No.3) is not the biological father of Katta siva Rama Krishna/son of the victim woman (source of item No.2) but whose biological mother is katta venkata lakshmi/P.W.1(source of item No.1), dt.21.12.2022. Ex.P15: is the requisitioin of the victim woman filed by the Inspector of Police, Mylavaram Circle, dt.22.09.2022 to conduct DNA test afresh in respect of same parties Ex.P16: is the letter addressed by this Court, to the Director FSL, Mangalgiri, Guntur District along with identity particulars of the parties, dt.13.12.2022. Ex.P17: is the potency certificate of the accused, dt.19.11.2010. On behalf of Defence

MATERIAL OBJECTS

Nil

Sd/- Dr. Shaik Mohd. Fazulullah,

IX Addl. District & Sessions Judge,

Krishna, Machilipatnam.

Copy to:

The Honourable Registrar (Judicial), Honourable High Court of Andhra Pradesh, Nelapadu, Guntur District To:

1)The Additional Public Prosecutor, IX Additional District and Sessions Judge’s Court, Krishna, Machilipatnam

2)The Superintendent of Police, Krishna, Machilipatnam