Smt Shoukath Jahan Siddique

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE (FTSC),

MAHABUBNAGAR

Tuesday, the 17th day of March, 2020

Present:- Smt. Shoukath Jahan Siddique, II Addl.District Judge (FTSC), Mahabubnagar.

Spl.S.C.No.181 of 2017

Between :-

The State of Telangana through Police, Uppununthala Police Station.

...Complainant.

And

Desetti Srisailam S/o. Sanjaiah, aged 21 years, Caste: Uppari, Occ: Car driver & Tailor, R/o: Marripally (V) of Uppununthala (M), Nagarkurnool district.

...Accused.

Nature of offences:U/Secs.376(2)(i)(n) and 366-A of IPC and U/Sec.4 of the Protection of Children from Sexual Offences Act, 2012 Plea of the accused :Pleaded not guilty. Finding of the Court :Found not guilty. Sentence or order:Accused is found not guilty for the offences punishable U/Secs.376(2)(i)(n) and 366-A of

IPC and U/Sec.4 of the Protection of Children from Sexual Offences Act, 2012 accordingly, he is acquitted U/Sec.235(1) Cr.P.C for the said offences. The bail bonds of the accused shall stand cancelled after the appeal time is over.

* * *

This case coming up before me for final hearing on 04.03.2020 in the presence of Sri Puttapaga Raghupathi, Additional Public Prosecutor for the State and of Sri P. Laxma Reddy, Advocate for the accused and upon perusing the material on record, and having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

This case is filed for the offences U/Sec.366-A, 376(2)(i)(n) and 212 of IPC and U/Sec.3 and 4 of the Protection of Children from Sexual

Offences Act, 2012 against sole accused (herein after referred to 'POCSO

Act,' for brevity).

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2.Bereft of the unnecessary details, the factual matrix germane to the prosecution case is as follows:- 2.1.On 11.02.2017 at 12:00 hours LW-1 N. Kamalamma complainant and mother of victim (whose name is not disclosed in view of the bar U/Sec.228-A of I.P.C and also as guided by the Apex Court in 'State of Karnataka Vs. Puttaraja – (2004 (3) ALT (Crl.) S.C. Page 6)', went to

Uppununthala PS and stated that she had one son and one daughter i.e., victim left her home by telling that she was going to school and did not return to home. She searched for her daughter at neighboring places and at their relative house, she was not traced. She shown suspicion on accused for missing of her daughter. Hence, she lodged complaint and requested to take necessary action against the accused.

2.2.Basing on the contents of above complaint, LW-15 B. Mohan

Babu, S.I. of Police, Uppununthala P.S., has registered a case in

Cr.No.6/2017 U/H Girl Missing, issued FIR, dispatched to the Hon’ble JFCM

Court, Achampet, as well as sent to all officers concerned and took up investigation. During the course of investigation, he examined and recorded the statements of LW1 to LW-3 (N. Kamalamma, N. Chinna

Naraiah and N. Ramesh), who are the parents and elder brother of missing girl at PS Uppununthala. Further visited the scene of offence i.e., house of complainant, observed the scene, secured the presence of LW-9 N.

Narayana and LW-10 P. Saidulu, in their presence, drafted the rough sketch in crime detail form and collected the photographs of victim, prepared the look out notices, got pasted at all important and crowded places to have glimpse of the public, sent to all bordering Districts and police stations as well as sent to DCRB Nagarkurnool to publish in gazette, published the news in all news papers, collected the call dump located to trace out the missing Girl, but in vain.

3 2.3.While so, on 07.03.2017 at 11:30 hours the victim went to PS along with her parents and gave her statement voluntarily. As per the procedure of POCSO Act, 2012 LW-8 C. Indiramma, woman head constable, recorded the statement of victim, where in the victim stated that, she studied upto 4th class in Government School at Marripally and was studying 9th class at Z.P.H.S., Uppununthala. While she was studying 7th class in the month of January, 2014, she and her village students used to go to school at Uppununthala by walk, and accused also used to go along with them upto Uppununthala. During such period, they both got acquaintance with each other and fell in love. Then the accused by taking advantage of her minority and love, lured her by telling delusive words and doing false promises, in the month of September, 2016, first week one fine day he participated in sexual intercourse with her at her house in absence of her parents and frequently on subsequent days without her consent. On noticing their love affair, her parents scolded her and accused. Then the accused went to Bangalore city and eking livelihood as driver. Later, the parents of victim fixed her marriage with one Vishnu and got engagement on 08.12.2016. On knowing the same the accused went to Marripally and staying in Achampet by doing driver work. On 06.02.2017 at morning hours, at request of accused, she took an amount of Rs.20,000/- from her house and left to Uppununthala by telling that she was going to school, and from there to Kalwakurthy. There, the accused picked her up to Bangalore, took a rented room at Vittasandra Electronic

City, Bangalore Town. On 11.02.2017, he married her in a temple by putting Mettelu and mangalasuthram and led their conjugal life as wife and husband in the rented room by participating in sexual intercourse and eking livelihood by doing tailor work. Later, on knowing the registration of this case, due to fear and request of victim the accused left from

Bangalore, on 06.03.2017 along with her, brought her to Achampet bus stand on 07.03.2017 at 08:00 hours left away from there by telling her to 4 go to her native Marripally. Then she went to her house at Marripally village of Uppununthala mandal and on enquiry by her parents and elder brother she disclosed entire incident to her parents.

2.4.Basing on the statement of victim, LW-15 altered the section of law from U/H Girl Missing to 366-A and 376(2)(i)(n) IPC and Sec.3 and 4 of POCSO Act, 2012 and dispatched the express section alter memo to all concerned and sent the victim to District Hospital, Nagarkurnool for medical examination. Subsequently on 08.03.2017 after receipt of the express section alter memo, LW-16 S. Ramakrishna, C.I., of Police,

Achampet took up the further investigation from LW-15, visited the scene of offence i.e., house of complainant located at Marripally village of

Uppununthala mandal, secured the presence of LWs 1 to 3, and LW-5 N.

Lingamma and LW-6 N. Naraiah, examined and recorded their statements.

Later, he visited Z.P.H.S. Uppununthala, collected the bonafide certificate of victim from LW-7 S. Jagadeeshwar Reddy and examined and recorded the statement of LW-7. Further he examined and recorded the statement of LW-8 who recorded the statement of victim. On 09.03.2017, LW-16 arrested the accused, sent to Hospital, there LW-14 Dr. P. Shravan Kumar, issued potency certificate, where in he opined that “there is no suggest that male examined not capable of performing sex act”, later sent him to judicial custody. Later, LW-11 Smt. B. Bhavai Judicial Magistrate, recorded the statement of victim U/Sec.164 Cr.P.C. LW-12 Dr.S.Gautami issued

F.S.L. report opining that “Semen and Spermatozoa are not detected”.

After receipt of F.S.L., report LW-13 Dr. S. R. Prema Swaroopa, issued her final opinion stating that, “No recent evidence of any sexual assault”.

After collecting material documents and after completion of investigation

LW-16 filed charge sheet against the accused for the offence punishable

U/Sec.366-A, 376(2)(i)(n), 212 of IPC and Sec.3 and 4 of POCSO Act, 2012.

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3.The case was taken cognizance for the offences U/Sec.366 of

IPC and Sec.11 r/w 12 of POCSO Act, 2012 against accused and on the appearance of the accused, the copies of the charge sheet and all the annexures thereto were furnished to him in compliance of Sec.207 of

Cr.P.C.

4.On hearing the learned Additional Public Prosecutor and the learned defence counsel and upon the consideration of all the material placed by the prosecution, the charge for the offences U/Secs.366-A of IPC and U/Sec.11 r/w 12 of POCSO Act, 2012 against the accused were framed, read over and explained to him U/Sec.228(2) of Cr.P.C and he having understood the same, denied the offences, pleaded not guilty and claimed to be tried. The accused is defended by his advocate.

5.In order to bring home the guilt of the accused for the offences arraigned against the accused, the schedule for commencing the trial was issued. The prosecution examined PWs.1 to 12 and got marked

Ex-P1 to Ex-P14 on the prosecution side.

6. The status of the witnesses examined and exhibits marked are as under :-

PW-1 is mother of victim and complainant. PW-2 is elder brother of victim/PW-3. PW-4 is circumstantial witness. PWs.5 and 7 are panch witnesses for scene of offence panchanama. PW-6 is incharge headmaster who issued bonafide certificate of victim/PW-3. PW-8 is woman head constable who recorded the statement of victim. PW-9 is relative of victim. PWs.10 and 11 are medical officers who examined the victim and accused respectively. PW-12 is investigating officer who did investigation of this case.

Ex-P1 is complaint. Exs.P2, P4, P7 are 161 Cr.P.C statements of PWs.3, 4 and 9. Ex-P3 is 164 Cr.P.C statement of victim/PW-3. Ex-P5 is bonafide certificate of the victim. Ex- P6 is signature of PW-7 on scene of offence panchanama. Ex-P8 is preliminary report. Ex-P9 is F.S.L. Report. Ex-P10 is Final Opinion. Ex-P11 is potency certificate of the accused.

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Ex-P12 is First Information Report. Ex-P13 is Scene of Offence Panchanama. Ex-P14 is Section Alteration Memo.

7.After the conclusion of the prosecution evidence, the accused was examined as contemplated U/Sec.313(b) Cr.P.C., by putting the incriminating evidence of the prosecution in question form to the accused.

He denied the prosecution evidence and stated it as false and reported no defence evidence on his behalf.

8. After conclusion of trial, the arguments submitted by the learned Additional Public Prosecutor representing the State and the learned defence counsel appearing for the accused were heard.

9.Now, the following points arise for determination:

Whether the prosecution able to prove the charges leveled against accused for the offences punishable U/Secs.376(2)(i)

(n) and 366-A of IPC and U/Sec.4 of the Protection of Children from Sexual Offences Act, 2012 beyond reasonable doubt?

10.In this case the prosecution examined PWs.1 to 12 and got marked Exs.P1 to P14. The witnesses who supported the case of prosecution are PWs.1, 2, 6, 8, 10, 11 and 12.

10.1.PW-1 mother of victim stated that at about two or three years back, one day in the morning at about 9:00 a.m., her daughter/LW-4 boarded the bus to go to school at Uppununthala but did not return till late in the evening. She made enquiries from the neighbours and friends about her daughter. At that time her daughter was studying 9th class.

She had suspicion on the accused that the accused might have taken her daughter. Therefore, she went to Uppununthala P.S., and gave complaint.

After about one month police informed her that the accused and her daughter were in Bangalore. On her request police brought her daughter to P.S. On enquiry her daughter told that she has gone with accused and accused took her without her knowledge. Thereafter, PW-1 took her 7 daughter to her house and admonished her daughter for having gone with accused. Since then her daughter was staying with her.

10.2.PW-2 brother of victim stated that on 06.02.2017, his sister

LW-4 boarded the bus to go to school at Uppununthala but did not return till late in the evening. They made enquiries from the neighbours and her friends. At that time she was studying 9th class. They had suspicion on accused that accused might have taken her. Therefore, they went to

Uppununthala P.S., and gave complaint on 11.02.2017. Within two days of giving complaint, police informed them that victim and accused were staying in Bangalore. On their request, police brought his sister to P.S. On enquiry, victim told him that the accused took her along with him to

Bangalore and there he married her in a temple at Bangalore. When she asked the accused to speak with her mother but he did not allow her.

Thereafter they took his sister along with them to their house.

10.3.PW-6 the then incharge headmaster stated that on 06.03.2017, on oral requisition he issued bonafide certificate of PW-3 (victim), after verifying their school records mentioning her date of birth

as 19.06.2002.

10.4.PW-8 woman head constable stated that on 07.03.2017, on oral instructions their C.I., she went to Uppununthala P.S., and there she recorded the statement of victim at P.S., later her statement was also recorded by their C.I., on the same date.

10.5.PW-10 doctor stated Civil Assistant Surgeon, District Hospital,

Nagarkurnool stated that on 07.03.2017, on receipt of requisition from police, she examined the victim/PW-3 and after conducting preliminary examination of victim, she stated that the victim was under fourth day of menstrual circle and collected vaginal swabs for FSL. After receipt of FSL 8 report, she opined that there was no recent sexual intercourse on the patient.

10.6.PW-11 Civil Assistant Surgeon, Government Civil Hospital,

Achampet stated that on 21.06.2017, on receipt of of written requisition by police, he conducted potency test on the accused and issued potency certificate of accused opining that there is nothing to suggest that the accused is incapable of performing sexual act and he is potent.

10.7.PW-12 IO stated C.I of police, Achampet stated that on 08.03.2017, he received CD file from LW-15 and took up further investigation, visited scene of offence i.e., house of PW-1, examined and recorded the statements of PW-1, PW-2 and LW-2, visited ZPHS

Uppununthala collected the bonafide certificate of the victim/PW-6 from

PW-8 and recorded the statement of PW-8. On 09.03.2017, he arrested the accused and produced before the concerned the Court for judicial remand.

After collecting entire material and after completing investigation and he filed the charge sheet.

10.8.PW-12 further stated as per record that on 11.02.2017, basing on the complaint given by PW-1, LW-15 registered in Cr.No.6/17 U/H of

Girl Missing, dispatched the F.I.R to all concerned took up investigation, examined and recorded the statements of LW-1 to LW-3, visited scene of offence, conducted scene of offence panchanama in the presence of PW-5 and PW-7. On 07.03.2017, PW-3 went along with her parents to PS, and on his instructions PW-8 recorded the statement of the victim. Basing on the statement of the victim he altered the section of law 366-A,376(2)(i)

(n) of IPC and Sec.3 and 4 of POCSO Act, 2012 and dispatched the section alteration memo to all concerned. He also send the victim for medical examination.

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11.The offence charged against the accused is U/Sec.366-A, 376(2)(i)(n) and 212 of IPC and Sec.3 and 4 of POCSO Act. The contested witnesses PW-1 the mother of the victim stated that she gave complaint of suspicion on the accused and after lodging the complaint when her daughter was traced out she made enquiry with her daughter and her daughter told her that the accused under deceit took her daughter along with him. These facts deposed by PW-1 clearly goes to show that she is a hearsay witness. Under such circumstances, the evidence of the victim plays a major role in proving the guilt against the accused. But surprisingly, victim/PW-3 completely shown her volte face to the prosecution. In fact she failed to identify the accused also. Therefore, the evidence of PW-1 is completely gone in drain. In the cross examination of

PW-1 she admitted that the police has taken her statement thrice and they recorded her statement after 5 or 6 days later. She also admitted the fact that she performed engagement of her daughter with one Vishnu prior to lodging the complaint. This fact elicited in the cross examination of PW-1 gives some support to the suggestion that the victim allegedly was not happy with the alliance with one Vishnu and therefore she probably might have run from the house. However, there is no proof that it was the accused along with whom PW-3 escaped, because, PW-3 categorically failed to even identify the accused. On the contrary PW-3 asserted in her chief examination that she was not happy with the said alliance of her marriage with one Vishnu and therefore she went away to her maternal aunt.

12.PW-2 is the brother of the victim who also deposed in the same track as that of his mother. He also stated that he learnt from the victim that the accused allegedly took her to Bangalore and other places, married her and left her. But the victim did not state any incriminating facts against the accused. Therefore, the evidence of PWs.1 and 2 is clear that they are the very very weak part of evidence i.e., hearsay evidence.

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There evidence cannot be believed unless supported by concrete evidence. PW-9 the aunt of the victim also turned hostile she stated that she do not know the accused. She do not know anything about the case.

Therefore, under such circumstances in the back drop of PW-3 deposing that she was not happy with her alliance with one Vishnu, she escaped from the house gains some weight. The other villagers examined by the prosecution are PW-4 who totally turned hostile. The scene panchas are examined as PWs.5 and 7 who also turned hostile. In the cross examination of these witnesses except marking their signatures and statements nothing was elicited by the prosecution to show that they are deposing false having won over by the accused.

13.As per his evidence of PW-6, after verifying the school records, he issued bonafide certificate of victim under Ex-P5. Ex-P5 shows the date of birth of victim is registered in the school records as 19.06.2002.

The date of offence, as per complaint, is 11.02.2017. Therefore, from Ex-

P5 it can be seen that as on 11.02.2017 the victim was aged about 15 years. Therefore, the prosecution succeeded to prove that the victim's age was 15 years as on the date of offence. But however, it is not the only criteria for the prosecution to prove the offence or guilt of the accused. Besides proving the age of the victim, the burden of the prosecution is also to prove that the accused committed the crime and that he is guilty of the offence. When the victim/PW-3 herself turned hostile Ex-P5 do not prove the guilt of the accused.

14.Now the evidence on record PW-8 who is woman head constable (WHC) who allegedly recorded the statement of the victim at police station. The fact that PW-8 is WHC and that she recorded the statement of the victim at PS is in total contravention of Sec.24 of POCSO

Act. PW-8's evidence shows that she contravenes all the above elements of Sec.24 of POCSO Act and recorded the statement of victim at police 11 station. Further it is seen that even it is not even counter signed by S.I. In view of the above contravention of law and the victim turning hostile it is doubtful that PW-8 recorded the statement of the victim under Ex-P2. Very interestingly she also taken the signature of the victim on the statement marked as Ex-P2 which is again contravention of Sec.162 Cr.P.C. In the backdrop of PW-3/victim categorically deposing that police never examined her, makes the evidence of PW-8 doubtful one because as it is contravened the Sec.24 of POCSO Act and Sec.162 Cr.P.C. Sec.162 Cr.P.C., categorically says that when a statement of a witness is recorded by police officer, the signature of the person who makes her statement should not be taken. The fact that Ex-P2 contains the signature of the victim, perse, shows that it is in total contravention to Sec.24 of POCSO

Act and Sec.162 Cr.P.C.

15.PW-10 doctor who gave her opinion that there was no recent sexual intercourse on the victim. She also stated that F.S.L. report also shows that no semen and spermatozoa detected on the slides. By the evidence of PW-10 and Exs.P8 to P10 i.e., preliminary report, F.S.L report and final report the Sec.376 is completely ruled out against the accused.

Moreover, as already stated above the victim/PW-3 has already turned hostile. PW-11 is the doctor who issued potency test certificate of the accused, however, Ex-P11 potency certificate is not disputed by the accused.

14.Now the evidence left on record is PW-12 who stated about the investigation done by LW-15 who is colleague, in recording the statements of witnesses, conducting scene of offence, got recording the statement of victim through woman head constable and and also about investigation done by him (PW-12) in collecting the material documents and filing charge sheet. In the cross examination of this witness it was suggested to him that neither victim nor witnesses stated before police as 12 in their statements. The said suggestion is denied by this witness.

However, the fact that PW-12 being the investigating officer, registered the case is unchallenged, visiting the scene of offence recording the scene panchanama and collecting bonafide certificate is unchallenged. But, then all such investigation and pains taken by PW-12, becomes formal one as it does not prove the offence against the accused in view of PWs.3 to 5 and 7 turning hostile. Therefore, the evidence of PW-12 becomes ritualistic one and do not help the prosecution in proving the guilt of the accused. However, it may only proved the efforts of PW-12 in investigating the case. When prime witnesses turned hostile, the evidence of PW-12 becomes a ritualistic one. Therefore, even if the evidence of PW-12 is believed to be true, the guilt of the accused is not proved, so the evidence of PW-12 lurked as uncorroborated testimony. Except the evidence of

PWs.1, 2, 6, 8, 10, 11 and 12 who are interested witnesses and official witnesses, there is no other oral evidence to corroborate their testimony.

As such, when the prime witnesses including the victim failed to support the evidence of PWs.1, 2, 6, 8, 10, 11 and 12, their evidence cannot become basis of conviction. A criminal case is built on the edifice of evidence. Witnesses are the key to the case. They are the eyes and ears of justice. If prime witnesses themselves are incapacitated from acting as eye and ears of justice, the case becomes paralyzed. Conviction cannot be based on unimplicating evidence by prime witnesses more specially victim. Therefore, by examining as many as 12 witnesses, the prosecution failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, point for determination is answered.

15.In the result, accused is found not guilty for the offences punishable U/Secs.376(2)(i)(n) and 366-A of IPC and U/Sec.4 of the

Protection of Children from Sexual Offences Act, 2012 accordingly, he is acquitted U/Sec.235(1) Cr.P.C for the said offences. The bail bonds of the accused shall stand cancelled after the appeal time is over.

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Dictated to the Stenographer Gr.II, transcribed by her, corrected

and pronounced by me in the open Court, on this the 17th day of March, 2020.

II Addl.District Judge (FTSC),

Corrections carried out. Mahabubnagar.

APPENDIX OF EVIDENCE:

WITNESSES EXAMINED FOR

PROSECUTION :

PW-1: N. Kamalamma PW-2: N. Ramesh

PW-3: Victim (the name is not disclosed as barred U/s 228-A of IPC and as observed by the Apex Court in State of Karnataka Vs. Puttaraj (2004 (2) ALT (SC) 6) as discussed in para 2 of the judgment)

PW-4: N. Naraiah PW-5: S. Saidulu PW-6: Jagadeeshwari Reddy PW-7: N.Narayana PW-8: Indiramma (WPC) PW-9: Lingamma PW-10: Dr. S. R. Prema Swaroopa PW-11: Dr. M. Sravan Kumar PW-12: S. Rama Krishna

DEFENCE : None

EXHIBITS MARKED FOR

PROSECUTION:

Ex-P1: Complaint. Ex-P2: 161 Cr.P.C statement of PW-3. Ex-P3: 164 Cr.P.C statement of victim/PW-3. Ex-P4: 161 Cr.P.C statement of PW-4. Ex-P5: Bonafide certificate of the victim. Ex-P6: Signature of PW-7 on scene of offence panchanama. Ex-P7: 161 Cr.P.C statement of PW-9. Ex-P8: Preliminary Report. Ex-P9: F.S.L. Report. Ex-P10: Final Opinion of PW-10. Ex-P11: Potency Certificate of the accused. Ex-P12: First Information Report. Ex-P13: Scene of Offence Panchanama. Ex-P14: Section Alteration Memo.

DEFENCE : NIL

MATERIAL OBJECTS MARKED: Nil.

II Addl.District Judge (FTSC), Mahabubnagar.

Corrections carried out.

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IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE (FTSC),

MAHABUBNAGAR

1. Case.No. Spl.SC.No.181 of 2017

2. Name of the station P.S., Uppununthala.

3. Name of the accused.

Desetti Srisailam S/o. Sanjaiah, aged 21 years, Caste: Uppari, Occ: Car driver & Tailor, R/o: Marripally (V) of Uppununthala (M), Nagarkurnool district.

4.Date of:

1Occurrence06.02.2017 2Complaint11.02.2017 3Apprehension09.03.2017 4Released on bail07.04.2017 5Commitment- 6Commencement of trial28.11.2019 7Close of trial02.03.2020 8Sentence or order/judgment.17.03.2020

Sentence or order/judgment.

In the result, accused is found not guilty for the offences punishable

U/Secs.376(2)(i)(n) and 366-A of IPC and U/Sec.4 of the Protection of

Children from Sexual Offences Act, 2012 accordingly, he is acquitted

U/Sec.235(1) Cr.P.C for the said offences. The bail bonds of the accused shall stand cancelled after the appeal time is over.

Explanation for delay : --

II Addl.District Judge (FTSC), Mahabubnagar.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE (FTSC),

MAHABUBNAGAR

Thursday, the 19th day of March, 2020

Present:- Smt. Shoukath Jahan Siddique, II Addl.District Judge (FTSC), Mahabubnagar.

Spl.S.C.No.88 of 2017

Between :-

The State of Telangana through Police, Nawabpet Police Station.

...Complainant.

And

Peddakurva Ravikrishna S/o. Ramulu, age 22 years, Caste: Kurva, Occ:Student, R/o: Malkapur village of Nawabpet Mandal.

...Accused.

Nature of offences:U/Sec.354-D and 506 of IPC and U/Sec.12 of the Protection of Children from Sexual Offences Act, 2012 Plea of the accused :Pleaded not guilty. Finding of the Court :Found not guilty. Sentence or order:Accused is found not guilty for the offences punishable U/Sec.354-D and 506 of IPC and U/Sec.12 of the Protection of Children from Sexual Offences Act, 2012, accordingly, he is acquitted U/Sec.235(1) Cr.P.C for the said offences. The bail bonds of the accused shall stand cancelled after the appeal time is over.

* * *

This case coming up before me for final hearing on 05.03.2020 in the presence of Sri Puttapaga Raghupathi, Additional Public Prosecutor for the State and of Sri G. Gopal, Advocate for the accused and upon perusing the material on record, and having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

This case is filed for the offences U/Sec.354-D and 506 of IPC and U/Sec.11 r/w 12 of the Protection of Children from Sexual Offences

Act, 2012 against sole accused (herein after referred to 'POCSO Act,' for brevity).

2.Bereft of the unnecessary details, the factual matrix germane to the prosecution case is as follows:- 2 2.1On 26.01.2017 at 17:00 hours LW-1 G. Ramulu came to P.S.

Nawabpet and lodged complaint stating that since four months, while his daughter i.e., victim (whose name is not disclosed in view of the bar

U/Sec.228-A of I.P.C and also as guided by the Apex Court in 'State of

Karnataka Vs. Puttaraja – (2004 (3) ALT (Crl.) S.C. Page 6)', was attending the school, the accused used to follow her daughter by telling gullible words in the name of love and marriage and also threatened her to marry him. On 26.01.2017, at night the complainant went to his agricultural field, her wife and daughter was at their home at about midnight 1:00 hour the accused went to the house of LW-1, pushed the door, meantime his wife tried to catch him, the accused escaped from there. Hence, the complainant requested to take legal action against the accused.

2.2.Basing on the contents of above complaint, LW-13 A. Praveen

Kumar, S.I. of Police, Nawabpet P.S. registered a case in Cr.No.10/2017

U/s.354-D, 506 IPC and Sec.11 r/w 12 of POCSO Act-2012 and took up the investigation. During the course of investigation, he examined and recorded the statements of LW-1 and LW-2 G. Lalitha. Later, he along with

LW-8 Y. Shilpa, woman police constable, visited scene of offence conducted scene of offence panchanama in presence of LW-10 S. Anjaiah and and LW-11 K. Shiva Shankar, drew rough sketch in crime detail form.

During the investigation he examined recorded statement of LW-4

G.Srishailam, LW-5 G. Bharat, LW-6 G. Mallaiah, LW-7 C. Venkataiah and on his instruction LW-8 examined and recorded statement of victim. On requisition made by LW-13, LW-9 K. Mohan issued bonafide certificate of victim and the statement of LW-9 was also recorded by LW-13.

2.3.On 16.03.2017 at 09:00 hours, on credible information, LW-13 along with staff rushed to Malkapur village and apprehended the accused.

On interrogation, the accused admitted the commission of offence, then

LW-13 effected the arrest of accused and brought to P.S. Nawabpet and 3 after completion of legal formalities, he sent the accused for judicial remand. LW-12, Judicial Magistrate recorded the statement of victim

U/Sec.164 Cr.P.C. After collecting material documents and after completion of entire investigation, LW-13 filed charge sheet for the offences U/Sec.354-D and 506 of IPC and Sec.11 r/w 12 of POCSO Act, 2012 against the accused.

3.The case was taken cognizance for the offences U/Sec.354-D and 506 of IPC and Sec.11 r/w 12 of POCSO Act, 2012 against accused and on the appearance of the accused, the copies of the charge sheet and all the annexures thereto were furnished to him in compliance of Sec.207 of Cr.P.C.

4.On hearing the learned Additional Public Prosecutor and the learned defence counsel and upon the consideration of all the material placed by the prosecution, the charge for the offences U/Sec.354-D and 506 of IPC and Sec.12 of POCSO Act, 2012 against the accused were framed, read over and explained to him U/Sec.228(2) of Cr.P.C and he having understood the same, denied the offences, pleaded not guilty and claimed to be tried. The accused is defended by his advocate.

5.In order to bring home the guilt of the accused for the offences arraigned against the accused, the schedule for commencing the trial was issued. The prosecution examined PWs.1 to 11 and got marked

Ex-P1 to Ex-P9 on the prosecution side.

6. The status of the witnesses examined and exhibits marked are as under :-

PW-1 is complainant and father, PW-2 is mother, PWs.3 and 10 is brothers, PW-4 is relative of victim/PW-7. PWs.5 and 6 are panch witness for scene of offence panchanama. PW-8 is headmaster who issued bonafide certificate of victim. PW-9 is the woman police constable who recorded the 4 statement of victim/PW-7. PW-11 is investigating officer who did entire investigation of this case.

Ex-P1 is complaint. Exs.P2 and P3 are signatures of PWs.5 and 6 on Crime Details Form. Exs.P4 and P7 are 161 Cr.P.C. statements of PWs.7 and 10. Ex-P5 is 164 Cr.P.C. statement of PW-7. Ex-P6 is Bonafide Certificate of victim/PW-7. Ex-P8 is First Information Report. Ex-P9 is scene of offence panchanama.

7.After the conclusion of the prosecution evidence, the accused was examined as contemplated U/Sec.313(b) Cr.P.C., by putting the incriminating evidence of the prosecution in question form to the accused.

He denied the prosecution evidence and stated it as false and reported no defence evidence on his behalf.

8. After conclusion of trial, the arguments submitted by the learned Additional Public Prosecutor representing the State and the learned defence counsel appearing for the accused were heard.

9.Now, the following points arise for determination:

Whether the prosecution able to prove the charges leveled against accused for the offences punishable U/Secs.354-D and 506 of IPC and U/Sec.11 r/w 12 of the Protection of Children from Sexual Offences Act, 2012 beyond reasonable doubt?

10.In this case, prosecution examined as many as 11 witness and got marked Exs.P1 to P9. Among the witnesses examined by the prosecution the contested witnesses, who supported the prosecution case, are PWs.1 to 4, 8, 9 and 11.

10.1.PW-1 stated that in the year 2014 or 2015, when his daughter/LW-3 was studying 9th class in Government School Marikal he learnt that she complained to her mother about the stalking by the accused. On knowing his behaviour he called Srisailam to warn the accused that the accused should not follow his daughter and be in his 5 limits. After few days when he met Srisailam, he learnt through Srisailam that the accused never stop following his daughter and he may do what ever he likes. In the year 2017, one day, when he was sleeping at his fields, LW-2 went to him and told that the accused went to their house to meet his daughter when they were alone. That on enquiry by LW-2, he did not tell anything and when LW-2 tried to caught hold him, he pushed them and ran away. On the next day he went to PS and gave complaint. He also got admonished the accused through his brother to not to stalk his daughter but the accused did not change his attitude. On enquiry,

LW-3 told him that the accused was following, harassing her and also instigating her to elope with him.

10.2.PW-2 stated that about three years back from this day of evidence, when LW-3 was studying in 9th class in Government School

Marikal, she used to complain to her about the following of accused and also told that the accused was instigating her to elope with him and to marry. One day, he went to her house, when she along with her daughter/LW-3 were alone at home. On her enquiry the accused did not tell anything, pushed them and escaped. She told the incident to her husband/PW-1. On the next day PW-1 went to PS and gave complaint.

10.3.PW-3 stated that he along with his sister used to go to

Z.P.H.S., Marikal in the year 2017. The accused used to follow her on her way to the school. One day he along with his father/PW-1 went to agricultural fields, at that time, PW-1 and LW-3 were alone. After some time his mother/PW-2 went to their fields and told that the accused went to their house, knocked the door and that when the accused saw his mother opened the door, then he escaped from there. Thereafter PW-3 along with his father went to LW-4 and LW-6 and informed them about the visit of accused to their house.

6 10.4.PW-4 stated that about three years back on 26.01.2017,

PWs.1 and 2 went to his house and told that he went to their house in absences of PW-1 and PW-3 and that PW-2 was present and opened the door and that when PW-2 caught hold his hand, he pushed her and escaped from there.

10.5.PW-8 the then incharge head master of Z.P.H.S., Marikal, stated that on 02.02.2017, on request of police, he issued bonafide certificate of PW-7/victim after verifying their school records mentioning her date of birth as 22.06.2002.

10.6.PW-9 woman police constable stated that on 27.01.2017, on oral instructions of their S.I., she recorded the statement of victim/PW-7 at

Nawabpet P.S., later her statement was also recorded.

10.7.PW-11 the then S.I. of police, at Nawabpet police station stated that on 27.01.2017 on receipt of complaint from PW-1, he registered the case in Cr.No.10/2017, U/Sec.506 of IPC and Sec.11 r/w 12 of POCSO Act, and took up the investigation, dispatched the FIR to all concerned, examined and recorded the statements of PWs.1 and 2 at PS., visited the scene of offence, conducted scene of offence panchanama and rough sketch in crime detail form in the presence of PW-8 and LW-5.

Later, he examined and recorded the statements of LWs.4 to 7. On his instructions, LW-8 recorded the statement of victim. Later her statement was also recorded. Thereafter, he visited Z.P.H.S., Marikal and collected bonafide certificate of victim from LW-9 and later recorded the statement of LW-9. On 16.03.2017, on credible information, PW-11 apprehended the accused, and on interrogation he confessed the offence. PW-11 effected the arrest of accused and produced before concerned Court for judicial remand. After collecting entire material record and after completing investigation he filed charge sheet.

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11.Surprisingly, the victim who is examined as PW-7 completely turned hostile to the case of prosecution. Here, the offence charged against the accused are U/Sec.354-D and 506 of IPC an Sec.11 r/w 12 of

POCSO Act. Since the offence U/Sec.506 and 354-D of IPC necessarily requires that the victim should come out with the alleged harassment meted out by her in the hands of the accused. If the victim herself turned hostile then any volume of witness cannot replace her testimony. If we see the evidence of PW-1 father, he stated that he learnt from his wife that the accused is stalking her daughter. This statement clearly goes to show that he is hearsay evidence. He further stated that on knowing the same he called one Srisailam and asked him to warn the accused and later made enquiries from the said Srisailam whether he warned the accused and what was the accused reply. These facts deposed by PW-1 in the chief examination shows that he is not only a hearsay witness but used a third person as a mediator to allegedly warn the accused. He directly did not see the accused nor warned him. So, not only is he a hearsay witness but also may be we can call as heartell witness. In his further chief examination he stated that he learnt from his wife that the accused came to their house and he admonished the accused through his brother and learnt from his brother about the reply of the accused. These facts also suggest that there is no participation of PW-1 in directly seeing the accused, hearing the accused, warning the accused, admonishing the accused but very very surprisingly in the chief examination he stated that the accused is the same person who was following his daughter. Having said all the above facts in his chief examination without any direct participation and contact with the accused he has, surprisingly, identified the accused in the Court hall which makes the picture clear that he is identifying the accused only at the instance of police. However, he stated that he gave complaint to the police under Ex-P1 may be true that he 8 might have given the complaint to the police but the identity reveal in

Ex-P1 may have been at the instance of others.

12.PW-2 mother is also a hearsay evidence because she stated that she learnt from LW-3/victim about the accused following her daughter. She further learnt from the victim that the accused was instigating her to elope with him and marry him. These all things deposed by PWs.2 clear cut gives the picture that she is also a hearsay witness.

She further stated that on one fine day the accused came to their house and on enquiry by PW-2, the accused pushed them away and ran. This act of the accused by pushing PW-2 and running away neither proves

Sec.354-D of IPC nor 506 of IPC. Surprisingly, she identified the accused

in the Court hall stating that the accused is the same person who was

following her daughter. This evidence of PW-2 gives the picture that those who learnt from LW-3/victim about the accused following the victim but she identified the accused stating that he is the same person who was following her. She ever never whispered in her evidence that she knows the accused previously as he was their villager. Similar is the evidence of of PW-3 who is the brother of the victim. He stated that he along with victim/LW-3 used to go to Z.P.H.S., Marikal in the year 2017 and the accused used to follow the victim. There is no clear picture from the evidence of PW-3 about the accused following LW-3, whether he was misbehaving with LW-3, whether he was harassing her or he was causing any type of inconvenience to LW-3 when the accused was allegedly following LW-3. He gave a simple statement that the accused was following her. When any details of the word used by PW-3 i.e., follow.

Inference cannot be drawn that the accused was stalking LW-3 with any malafide intention. He further stated that one day when he along with

PW-1 went to agricultural fields, PW-2 his mother came to them and told that the accused came to their house and on enquiry pushed them and ran away. This part of the evidence of PW-3 is a hearsay evidence.

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Therefore from the discussion made above it is clear that the evidence of

PWs.1 to 3 is completely hearsay evidence which very very weak evidence and cannot be believed unless supported by concrete evidence.

Similar, is the evidence of PW-4 who is uncle of the victim. He stated that he learnt from his sister/PW-2 about the accused coming to their house and on opening the door the accused pushed her and ran away. This is the similar type of hearsay evidence as that of PWs.1 to 3. Another uncle of the victim is examined as PW-10 who completely turned hostile and in the cross examination noting much was elicited by the person to show that he is deposing false having won over by the accused.

13.PWs.5 and 6 are the scene panchas who turned hostile. In the cross examination of these witnesses except marking their signatures no such important facts were brought on record to brand them with an intention to save the accused. PW-7 is the important witness who is the victim. If we see chief examination of PW-7 she categorically stated that she know the accused only because he is their neighbour. This important fact that the accused is the neighbour of PW-7 who also have been deposed by PWs.1 to 3 but being the parents they never whispered in their chief examination that the accused was their neighbour. PW-7 further went on to state that she do not have any complaint with the accused and she never gave any complaint against the accused and at any time and that the case might have been filed against the accused by her parents only because of the land dispute between them and the accused. This statement of PW-7 is very much important because not only did she turn hostile but categorically stated that the case is filed because of the land dispute against the accused. Under such circumstances keeping the above discussion in mind we hold that prosecution failed to prove the guilt of the accused beyond all reasonable doubt.

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14.The evidence left on record is PW-8. She stated that the victim studied in their school and as per school register the date of birth of the victim is recorded as 22.06.2002. Probably the victim might be around 15 years as on the date of alleged offence. But however, proving the age is not the only criteria on the shoulders of the prosecution to secure the conviction. Besides proving the age it is also burden of the prosecution to prove that the offence has been committed by the accused. In view of PW-7 turning hostile Ex-P6 bonafide certificate except proving the age of the victim will not prove the guilt of the accused.

15.From the evidence of PW-9, it is seen that she is woman police constable who said to have recorded the statement of victim. The fact that PW-9 being the constable recorded the statement of victim itself contravenes Sec.24 of POCSO Act. As per the Sec.24 of POCSO Act it is mandated that the police officer not below the rank of S.I. has to record the statement of the victim. Further the statement of victim “SHALL” be recorded at the house of victim, further they shall not be in uniform while recording the statement of the victim. PW-9's evidence shows that she contravenes all the above elements of Sec.24 of POCSO Act and recorded the statement of victim at police station. Further it is seen that even it is not even counter signed by S.I. In view of the above contravention of law and the victim turning hostile it is doubtful that PW-9 recorded the statement of the victim under Ex-P4.

16.Now the evidence left on record is PW-11 who said to have registered the case, recorded the statements of witnesses, conducted scene of offence, collected material documents. In the cross examination of this witness it was suggested to him that neither victim nor witnesses stated before police as in their statements. The said suggestion is denied by this witness. However, the fact that PW-11 being the investigating officer, registered the case is unchallenged, visiting the scene of offence 11 recording the scene panchanama and collecting bonafide certificate is unchallenged. But, then all such investigation and pains taken by PW-11, becomes formal one as it does not prove the offence against the accused in view of PWs.5 to 7 and 10 turning hostile. Therefore, the evidence of

PW-11 becomes ritualistic one and do not help the prosecution in proving the guilt of the accused. However, it may only proved the efforts of PW-11 in investigating the case. When prime witnesses turned hostile, the evidence of PW-11 becomes a ritualistic one. Therefore, even if the evidence of PW-11 is believed to be true, the guilt of the accused is not proved, so the evidence of PW-11 lurked as uncorroborated testimony.

Except the evidence of Pws.1 to 4, 8, 9 and 11 including parents, brothers, relative of victim and official witnesses, there is no other oral evidence to corroborate their testimony. As such, when the prime witnesses including the victim failed to support the evidence of Pws.1 to 4, 8, 9 and 11, their evidence cannot become basis of conviction. A criminal case is built on the edifice of evidence. Witnesses are the key to the case. They are the eyes and ears of justice. If prime witnesses themselves are incapacitated from acting as eye and ears of justice, the case becomes paralyzed.

Conviction cannot be based on unimplicating evidence by prime witnesses more specially victim. Therefore, by examining as many as 11 witnesses, the prosecution failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, point for determination is answered.

17.In the result, accused is found not guilty for the offences punishable U/Sec.354-D and 506 of IPC and U/Sec.12 of the Protection of

Children from Sexual Offences Act, 2012, accordingly, he is acquitted

U/Sec.235(1) Cr.P.C for the said offences. The bail bonds of the accused shall stand cancelled after the appeal time is over.

Dictated to the Stenographer Gr.II, transcribed by her, corrected

and pronounced by me in the open Court, on this the 19th day of March, 2020.

II Addl.District Judge (FTSC),

Corrections carried out. Mahabubnagar.

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APPENDIX OF EVIDENCE:

WITNESSES EXAMINED FOR

PROSECUTION:

PW-1: G. Ramulu

PW-2: G. Lalitha

PW-3: G. Bharath

PW-4: G. Mallaiah

PW-5: S. Anjaaiah

PW-6: Shiva Kumar

PW-7: Victim (the name is not disclosed as barred U/s 228-A of IPC and as observed by the Apex Court in State of Karnataka Vs. Puttaraj (2004 (2) ALT (SC) 6) as discussed in para 2 of the judgment)

PW-8: K. Mohan (GHM)

PW-9: Shilpa (WPC)

PW-10: G. Srisailam

PW-11: A. Praveen Kumar (IO)

DEFENCE : None

EXHIBITS MARKED FOR

PROSECUTION:

Ex-P1: Complaint.

Ex-P2: Signature of PW-5 on Crime Details Form.

Ex-P3: Signature of PW-6 on Crime Details Form.

Ex-P4: 161 Cr.P.C. statement of PW-7.

Ex-P5: 164 Cr.P.C. statement of PW-7.

Ex-P6: Bonafide Certificate of victim/PW-7.

Ex-P7: 161 Cr.P.C. statement of PW-10.

Ex-P8: First Information Report.

Ex-P9: Scene of offence panchanama.

DEFENCE: - Nil -

MATERIAL OBJECTS MARKED: Nil.

II Addl.District Judge (FTSC), Mahabubnagar.

Corrections carried out.

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IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE (FTSC),

MAHABUBNAGAR

31. Case.No. Spl.SC.No.88 of 2017

2. Name of the station P.S., Nawabpet.

3. Name of the accused.

Peddakurva Ravikrishna S/o. Ramulu, age 22 years, Caste: Kurva, Occ:Student, R/o: Malkapur village of Nawabpet Mandal.

4.Date of:

1Occurrence27.01.2017 2Complaint27.01.2017 3Apprehension16.03.2017 4Released on bail06.04.2017 5Commitment- 6Commencement of trial04.02.2020 7Close of trial03.03.2020 8Sentence or order/judgment.19.03.2020

Sentence or order/judgment.

In the result, accused is found not guilty for the offences punishable

U/Sec.354-D and 506 of IPC and U/Sec.12 of the Protection of Children from

Sexual Offences Act, 2012, accordingly, he is acquitted U/Sec.235(1) Cr.P.C for the said offences. The bail bonds of the accused shall stand cancelled after the appeal time is over.

Explanation for delay : --

II Addl.District Judge (FTSC), Mahabubnagar.

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IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE

(FTC), MAHABUBNAGAR

Friday, the 27th day of September, 2019

Present:- Smt. Shoukath Jahan Siddique, II Addl.District Judge (FTC), Mahabubnagar.

A.S.No.10 of 2016

Between:

Koppu Vijay Kumar S/o. Late K. Venkat Bhagwan, age 61 years, Occ: Government Employee (now retd.), R/o: Kalwakurthy at present at H.No.3-16-108/3/1, Street No.2, Vasavinagar Colony, Ramanthapur Ranga Reddy District. … Appellant.

And

1. Koppu Sheshamma W/o. Late Venkata Bhagawan, age 80 years, Occ: Housewife, R/o: Jhansi Laxmi Bai Road, Kalwakurthy village and mandal, Mahabubnagar district.

2. Koppu Karunakar S/o. Late Venkata Bhagwan, age 50 years, Occ: Agriculture, R/o: Jhansi Laxmi Bai Road, Kalwakurthy village and mandal, Mahabubnagar district.

3. Koppu Krishna Kumar S/o. Late Venkata Bhagawan, age 45 years, Occ: Government Teacher, R/o:Bekkari Balakista Reddy Apartments, Shashab Gutta, Mahabubnagar.

4. N. Shailaja W/o. Venugopal, age 55 years, Occ: Housewife, R/o:JulepallyvillageTalakondapallymandal, Mahabubnagar district. … Respondents.

Sub:- Appeal under Order XLI Rule C.P.C., against the judgment and decree of the Junior Civil Judge, Kalwakurthy passed in

O.S.No.63 of 2006

Between:

Koppu Vijay Kumar S/o. Late K. Venkat Bhagwan, age 51 years, Occ: Government Employee (now retd.), R/o: Kalwakurthy at present at H.No.3-16-108/3/1, Street No.2, Vasavinagar Colony, Ramanthapur Ranga Reddy District. … Plaintiff.

And

1. Koppu Sheshamma W/o. Late Venkata Bhagawan, age 70 years, Occ: Housewife, R/o: Jhansi Laxmi Bai Road, Kalwakurthy village and mandal, Mahabubnagar district.

2

2. Koppu Karunakar S/o. Late Venkata Bhagwan, age 40 years, Occ: Agriculture, R/o: Jhansi Laxmi Bai Road, Kalwakurthy village and mandal, Mahabubnagar district.

3. Koppu Krishna Kumar S/o. Late Venkata Bhagawan, age 35 years, Occ: Government Teacher, R/o:Bekkari Balakista Reddy Apartments, Shashab Gutta, Mahabubnagar.

4. N. Shailaja W/o. Venugopal, age 45 years, Occ: Housewife, R/o: Julepally village Talakondapally mandal, Mahabubnagar district. … Defendants.

Sub: Suit for partition and separate possession.

* * * This appeal suit is coming on before me for disposal on 27.09.2019 in the presence of Sri C. Rajeev Kumar, Advocate for appellant and Sri Doddi Shiva Kumar, Advocate for respondents No.3 and No.4 and respondents No.1 and No.2 remained exparte and upon perusing the material on record and having stood over for consideration, the Court delivered the following:-

J U D G M E N T

This is the appeal against judgment of Lower Court in O.S.No.63/2006 which was suit for partition and separate possession.

2.The grounds of appeal are :-

1. The Trial Court failed to appreciate that the defendants No.1 and No.4 are not coparceners of the family and their entitlement for their respective shares.

2. The Trial Court was erroneous in invoking the Provisions of Sec.8 of Hindu Succession Act and Sec.6 of Hindu Succession Act has to be invoked.

3. The Trial Court failed to consider the performance of marriage of defendant No.4 prior to 1986, as such she is not entitled for any share and also failed to consider the demise of father of plaintiff prior to the Central Amendment to Hindu Succession Act.

4. The Trial Court failed to discuss the voluminous documentary and oral evidence and erroneously allotted the shares to defendants No.1 and No.4.

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5. The Trial Court failed to discuss the specific points raised by the plaintiff and answered against the plaintiff inspite of having sufficient and trustworthy evidence on record.

3.When the matter was posted for arguments, both sides counsels submitted their arguments.

4.The parties are, hereinafter, arrayed as referred in the

Lower Court for the sake of convenience and to avoid confusion.

5.Now the point for determination is :-

Whether the judgment passed by the Lower Court is on the facts as well as on the proper appreciation of law and facts?

6.The brief facts of the plaint in Lower Court is the defendants

No.2 to No.4 are children of defendant No.1. Late Venkata Bhagawan is the husband of defendant No.1. All of them belong to joint Hindu family having shares in the suit schedule properties bearing Sy.No.308 to an extent of Ac.5-13 gts, Sy.No.314 to an extent of Ac.3-29 gts,

Sy.No.15 to an extent of Ac.3-08 gts dry lands situated in Kotra village of Veldanda mandal and the land in Sy.No.174 to an extent of Ac.1-00 gts situated at Kalwakurthy village are the ancestral properties of the plaintiff and defendants. The said properties are acquired by father of the plaintiff through partition among his brothers i.e., late Venkata

Bhagawan, Parvathaiah and Mallaiah for which Revenue Authorities issued passbooks in favour of plaintiff and defendants No.1 to 3 and also recorded in revenue records without metes and bounds. The plaintiff is doing Government Job in Hyderabad and he came to know about the alienation of the lands to third party on 23.02.2006 and 4 04.03.2006 he demanded for partition of the suit schedule lands by metes and bounds.

7.Common written statement filed by defendants, inter-alia, contending that the relationship between the parties are not disputed and with regard to suit schedule lands they are ancestral lands. Plaintiff was never in joint possession with defendants No.1 to No.4 and he is doing Government job at Hyderabad, hence the plaintiff is not entitled for 5/16th share and entitled for only 1/5th share.

8.As per the record it is seen that Trial Court has framed three issues i.e.,

1.Whether the plaintiff is entitled for partition and separate possession of suit property?

2.Whether the suit is valued U/Sec.34(2) of A.P.C.F. and S.V Act?

3. To what relief?

9.Plaintiff let in the oral evidence by examining himself as

PW-1 as well as PWs.2 and 3 and got marked Exs.A1 to A4 which are certified copies of pahanies from 1984-1991 under Exs.A1 to A3 and certified copy of ROR under Ex-A4. While on the other hand, defendants

No.2 and No.4 examined themselves as DW-1 and DW-2 and no documents were got marked on their behalf. After conclusion of the trial, the Trial Court decreed the suit dividing the suit schedule property into 5 shares. It was further held that defendant No.1 is entitled to one share and defendants 2 to 4 are entitled for one share each.

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10.In the present appeal the main argument of the appellant is that 1st and 4th defendants are not co-parceners of the family and therefore they are not entitled for any share in it and they would get the share allotted to Sri K.Venkata Bagawan. It was further urged that the

Trial Court failed to appreciate that the plaintiff is entitled only for 5/16th share in the suit properties.

11.Before proceedings ahead, it is important to mention here the definition of ancestral property. An ancestral property is a property inherited upto 4 generations of male linage and should have been remained undivided through out this period. After the amendment in 2005 even the daughter by birth has a share in ancestral property. If we look into the evidence of PW-1, he categorically stated that the plaintiffs and defendants 1 to 4 are Hindu Joint Family having their shares in the suit schedule property. He further categorically stated that the suit properties are ancestral properties and the lands in

Sy.No.308, 314, 315 were partitioned among father of plaintiffs and his brothers and sisters in family partition. He further stated that the suit schedule lands fell to the share of Sri late Bhagawan. Once the appellant admitted that the property is partitioned among family properties it looses its character as ancestral property. This evidence of

PW-1 was never challenged in the cross examination of PW-1 by defendants 1 to 3. On the contrary in the cross examination by counsel for defendant No.4 he elicited that father of PW-1 got the suit schedule properties fell to his share in family partition. These facts goes to show that the suit schedule properties lost its characteristic as ancestral property because an ancestral property is a property which has not 6 been a divided, sold, gifted for 4 generations in the male lineage. Such a property can only be claimed by the plaintiffs as ancestral property.

12.Any ancestral property is to be divided by stripes and not per capita. In between such period if the property is divided or sold or gifted then it looses its characteristic of ancestral property and becomes self acquired property. Therefore, there is no force in the contention of appellant that defendants 1 and 4 are not coparceners of the family and that therefore they do not get any share in it. Once the defendants admitted that suit properties fell to the share of father of plaintiff who is also husband of defendant No.1 and father of defendants 2 to 4, they cannot claim that 1st and 4th defendants are not coparceners of a family, because the properties itself does not hold the character as ancestral property. As soon as the suit properties fell to the share of father of plaintiff in the family partition which is not disputed by the defendants, it changes into the nature of self acquired property by father of plaintiff and therefore plaintiffs and all the defendants are entitled for equal share in the suit properties. As such, the contention of the appellant stands at zilch to hold that the plaintiff is entitled to 5/16th share in the suit property.

13. In fact the appellant himself stated that the case of the plaintiff and defendants is that the suit lands are ancestral properties and that therefore Section 6 of Hindu Succession Act has to be worked.

The appellant failed to appreciate the fact that when the property is admittedly divided among the siblings of father of plaintiff and the suit properties already fell to the share of father of plaintiff then as per

Section 6 of Hindu Succession Act the daughter has the same interest in 7 the property as that of other legal heirs. As stated earlier one of the grounds of appeal is that the 1st and 4th defendants are not coparceners of the family and therefore they are not entitled for the share. When a male Hindu dies, having interest in Mithakshara coparcenery property at the time of his death, his interest in the property shall devolved by survivorship upon the surviving members of the coparcenery property.

When the deceased had left back surviving female relatives as in Class-I of schedule or relief specified in the class who claims through such female relative the interest of the deceased in the Mithakshara coparcenery property shall devolved by testamentary or intestate succession as a case may be under 6 of the Act. The Lower Court has rightly decided that after the suit properties fell to the share of father of plaintiff it has to be partitioned between plaintiff and all the defendants and not as claimed by the appellants i.e., 5/16th share.

14.As per Section 8 of Hindu Succession Act “The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter.

(a) firstly, upon the heirs being the relatives specified in Class I of the Schedule;

(b) secondly, if there is no heir of Class I, then upon the heirs being the relatives specified in Class II of the Schedule;

(c) thirdly, if there is no heir of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

15.Therefore, the property was rightly divided between plaintiff and defendants 1 to 4 with equal shares. In fact, Section 10 of Hindu 8

Succession Act is very clear which says “The property of an intestate shall be divided among the heirs in Class I of the Schedule in accordance with the following Rules:

Rule 1 :- The intestate's widow, or if there are more widows than one, all the widows together, shall take one share. Rule 2 :- The surviving sons and daughters and the mother of the intestate shall each take one share.

Rule 3 :- The heirs in the branch of each pre-deceased son or each predeceased daughter of the intestate shall take between them one share.

Rule 4 :- The distribution of the share referred to in Rule 3 –

(i)among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions, and the branch of his pre-deceased son gets the same portion;

(ii)among the heirs in the branch of the pre-deceased daughter shall be to made that surviving sons and daughters get equal portions.

16.There is no scope of argument when the law is clear on the aspect. Since the suit properties admittedly fell to the share of late Sri

V.Bhagvan and his share needs to be divided among his legal heirs who are plaintiff and defendants 1 to 4 equally. The suit property seized its character as ancestral property as soon as it fall to the share of father of plaintiff in family partition. Hence suit property needs to be divided among legal heirs of Sri Bhagwan.

17.One of the grounds of appeal was that marriage of 4th defendant took place prior 1986 and therefore she is not a coparcernery and hence she not entitled for any share. The Court is unable to 9 understand from where this point is searched by the appellant holding that the daughters whose marriages took place before 1986 are not entitled for any share. Section 6 is very clear on this aspect that a daughter of a coparcenery shall by birth become coparcenery in her own right same as that of the son, same rights in the coparcenery property as she would have had if had been a son, also same liabilities in respect of coparcenery property. Provided nothing in the Section 6 shall invalidated any dispossession or alienation including any partition or testamentary dispossession of property which had taken place before 20.12.2004. The proviso is very clear on this aspect that if any partition took place before 20.12.2004 Section 6 does not invalidated such partition. Here is a case where partition suit itself is filed in the year 2006. Partition of the suit properties are now being sought by the plaintiffs in the year 2006 after amending of Hindu Succession Act in the year 2005. Therefore, the arguments of the appellant that the 4th defendant was married prior to 1986 does not have any weight.

18.It was further argued that father of plaintiff died prior to central amendment to the Hindu Succession Act and therefore she is not entitled for any share in the ancestral joint family properties. First of all suit property does not remain as ancestral property as soon as family partition took place. Ancestral property means property which has not been divided for four generations. It is already admitted that the suit properties fell to the share of father of plaintiff which means there was partition of ancestral properties and the suit property is the share allotted to the plaintiff's father. Hence it is no more ancestral property and assumes the character of self acquired property by father of 10 plaintiff and therefore the daughter who is the 4th defendant gets equal right in her father's property along with sons. As per Section 10 and schedule under the Act, the son, daughter, widow and the mother all gets equal share because they are the Class-I heirs of the deceased.

The father fall in Class-II share as per the schedule in the Act.

Therefore, as per Section 10 and schedule of the Act the widow who is defendant No.1 herein gets an equal share along with plaintiff and defendants 2 to 4 who are children of the deceased. There is absolutely no scope of discussion when the Act is clear about the division of shares among Class-I heirs and Class-II heirs since all the parties who are mother and children of the deceased fall in Class-I heirs all are entitled for equal share in the suit properties. As such we hold that the Trial

Court properly applied the proposition of law and allotted the shares to each party.

19.Though the issue was framed whether the suit is properly valued U/Sec.34(4) APCF and SV Act but there was no answer given by the Trial Court with respect to said issue. From the grounds of appeal it is seen that the said issue is not raised on the contrary admitted that the suit was valued at Rs.55,035/-in the Lower Court and Court Fee of

Rs.200/- was paid and in the present appeal also the same Court Fee is paid U/Sec.49 of the same Act. As such, it needs no further discussion.

20.Accordingly, we hold that the Trial Court has properly appreciated the share and allotted to each of the parties by applying correct proposition of law and the judgment of the Lower Court do not require any interference of this Court. Accordingly, point for determination answered.

11

21.In the result, appeal is dismissed confirming the judgment passed by Principal Junior Civil Judge, Kalwakurthy in O.S.No.63 of 2006 on 29.03.2016.

Dictated to the Stenographer Gr.II, transcribed by her, corrected and

pronounced by me in the open Court, on this the 27th day of September,

2019.

II Addl.District Judge (FTC), Mahabubnagar.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED)

(EXHIBITS MARKED)

– Nil –

II Addl.District Judge (FTC), Mahabubnagar.

Corrections carried out.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE (FTSC),

MAHABUBNAGAR

Friday, the 20th day of March, 2020

Present:- Smt. Shoukath Jahan Siddique, II Addl.District Judge (FTSC), Mahabubnagar.

Spl.S.C.No.106 of 2017

Between :-

The State of Telangana through Police, Kadthal (Amangal) Police Station.

...Complainant.

And

Nenavath Sanjeeva S/o. Dolya, 23 years, Caste: ST (Lambada), Occ:Business (Cool Drink), at RTC Bus stand, Amangal, R/o: Nuchukunta tanda, H/o: Amangal village.

...Accused.

Nature of offences:U/Sec.354-D and 506 of IPC and U/Sec.11 r/w 12 of the Protection of Children from Sexual Offences Act, 2012 Plea of the accused :Pleaded not guilty. Finding of the Court :Found not guilty. Sentence or order:Accused is found not guilty for the offences punishable U/Sec.354-D and 506 of IPC and U/Sec.11 r/w 12 of the Protection of Children from Sexual Offences Act, 2012, accordingly, he is acquitted U/Sec.235(1) Cr.P.C for the said offences. The bail bonds of the accused shall stand cancelled after the appeal time is over.

* * *

This case is coming up before me for final hearing on 06.03.2020 in the presence of Sri Puttapaga Raghupathi, Additional Public Prosecutor for the State and of Sri U. Sathyasheel, Advocate for the accused and upon perusing the material on record, and having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

This case is filed for the offences U/Sec.354-D and 506 of IPC and

U/Sec.11 r/w 12 of the Protection of Children from Sexual Offences Act, 2012 against sole accused (herein after referred to 'POCSO Act,' for brevity).

2.Bereft of the unnecessary details, the factual matrix germane to the prosecution case is as follows:- 2 2.1On 25.04.2017, at 18:00 hours the victim (whose name is not disclosed in view of the bar U/Sec.228-A of I.P.C and also as guided by the

Apex Court in 'State of Karnataka Vs. Puttaraja – (2004 (3) ALT (Crl.) S.C.

Page 6)', went to police station and lodged a complaint stating that when she was studying 10th class, the accused used to follow her on pretext of love and marriage. Now she is studying in Polytechnic college at

Mahabubnagar, and told to accused that she wants to continue her further studies. Even though she refused to marry the accused, he continued following her and on pretext of love and marriage. Earlier when she was studying 10th class, she did not tolerate his harassment and attempted to commit suicide by consuming insecticide poison, but he threatened her with death through letters and phone, by saying to marry him. With help of another person he get her photograph and uploaded in face book and harassing her. That when she was studying in 9th class he came to her by the way of cheating and demanded her father to perform his daughter’s marriage with him but her father refused to do so and told him he wants to continue her higher studies and the same day at about 9:00 p.m., when she was at primary school along with her sister, the accused went to near her and demanded her to perform marriage with him, other wise he will kill her or both will be died together, and he told with her did not leave her in at any circumstances and also enticed her parents with a false marriage proposal. Now he searching other marriage proposals to him and refused to marry her. Earlier, he outraged her modesty in several ways and now refused to marry her and also threatening her father after performing marriage with other woman he will kill his daughter and for that act he will afford all expenditure. About 5 months ago he told with her to elope somewhere else, then the brother of accused assured her that he will perform their marriage. Hence, she sought for legal action against the accused.

3 2.2.As per the contents of above complaint, LW-10 Y.Ramalinga

Reddy, S.I. of Police, Amangal P.S. registered a case in Cr.No.121/2017

U/Sec.354-D, 506 of IPC and Sec.11 r/w 12 of the POCSO Act, 2012 and took up the investigation. As per the provision of the POCSO Act, 2012,

LW-10 produced the victim before LW-6 Dr. B. Anuratha, Assistant

Commissioner of Police, Shamsabad, then she recorded the statement of victim, later, LW-10 examined and recorded the statement of LW-6.

Further, he visited the scene of offence, drafted panchanama for scene of crime including rough sketch in crime detail form in the presence of LW-8

P. Dasarath Naik and LW-9 J. Balya, seized a love letter written by the accused, examined and recorded the statements of the LW-2 B. Hemla,

LW-3 B. Geetha, LW-4 N. Pakeera, LW-5 V. Sailu. Subsequently, LW-10 visited the Pragna High School, Amangal, collected bonafide certificate of victim from LW-7 G. Ravi Kumar, and his statement was also recorded. On 04.05.2017, LW-10 served notices to accused under 41-A Cr.P.C with an instruction to appear before LW-10. On 07.05.2017 the accused failed to comply with the notice U/Sec.41-A Cr.P.C and found absconded. On 09.05.2017, the accused was apprehended at his house at Nuchukiunta tanda, brought him to Amangal P.S., effected his arrest and after completion of legal formalities he sent the accused for judicial remand.

Thus, after collecting material documents and after completion of investigation, LW-10 filed charge sheet for the offences U/Sec.354-A, 504 and 506 of IPC and Sec.11 r/w 12 of Protection of Children from Sexual

Offences Act, 2012.

3.The case was taken cognizance for the offences U/Sec.354-D and 506 of IPC and Sec.11 r/w 12 of POCSO Act, 2012 against accused and on the appearance of the accused, the copies of the charge sheet and all the annexures thereto were furnished to him in compliance of Sec.207 of Cr.P.C.

4

4.On hearing the learned Additional Public Prosecutor and the learned defence counsel and upon the consideration of all the material placed by the prosecution, the charge for the offences U/Sec.354-D and 506 of IPC and Sec.11 r/w 12 of POCSO Act, 2012 against the accused were framed, read over and explained to him U/Sec.228(2) of Cr.P.C and he having understood the same, denied the offences, pleaded not guilty and claimed to be tried. The accused is defended by his advocate.

5.In order to bring home the guilt of the accused for the offences arraigned against the accused, the schedule for commencing the trial was issued. The prosecution examined PWs.1 to 6 and got marked

Ex-P1 to Ex-P10 on the prosecution side.

6. The status of the witnesses examined and exhibits marked are as under :-

PW-1 is complainant and victim. PWs.2 and 3 are father and sister of victim/PW-1. PW-4 is headmaster who issued bonafide certificate of victim/PW-1. PW-5 is the panch witness for scene of offence panchanama. PW-6 is investigating officers who did entire investigation of this case.

Ex-P1 is signature of PW-1 on complaint. Exs.P2 to P4 are 161 Cr.P.C. statements of PWs.1 to 3. Ex-P5 is Bonafide Certificate of PW-1. Ex-P6 is signature of PW-5 on Crime Details Form. Ex-P7 is Complaint. Ex-P8 is First Information Report. Ex-P9 is Crime Details Form. Ex-P10 is Letter (2 pages).

7.After the conclusion of the prosecution evidence, the accused was examined as contemplated U/Sec.313(b) Cr.P.C., by putting the incriminating evidence of the prosecution in question form to the accused.

He denied the prosecution evidence and stated it as false and reported no defence evidence on his behalf.

5

8. After conclusion of trial, the arguments submitted by the learned Additional Public Prosecutor representing the State and the learned defence counsel appearing for the accused were heard.

9.Now, the following points arise for determination:

Whether the prosecution able to prove the charges leveled against accused for the offences punishable U/Secs.354-D and 506 of IPC and U/Sec.11 r/w 12 of the Protection of Children from Sexual Offences Act, 2012 beyond reasonable doubt?

10.In this case, prosecution examined PWs.1 to 6 witnesses and got marked Exs.P1 to P10. Among the witnesses examined by the prosecution the contested witnesses, who supported the prosecution case, are PW-4 and PW-6.

10.1.PW-4 headmaster stated that on 13.06.2011, on request of police, he issued bonafide certificate of PW-1/victim after verifying their school records mentioning her date of birth as 21.08.2001.

10.2.PW-6, investigating officer, stated that on 25.04.2017, basing on complaint lodged by PW-1 he registered a case in Cr.No.121/2016,

U/Sec.354-D, 506 IPC and Sec.11 r/w 12 of POCSO Act, 2012 and took up investigation, dispatched FIR to all concerned. On his requisition, LW-6 recorded the statement of victim, later he recorded the statement of

LW-6. The complainant also handed over to him a letter and the same was attached to the complaint. He visited the scene of offence, conducted scene of offence panchanama and rough sketch in crime detail form in the presence of PW-5 and LW-9, he also examined and recorded the statements of PWs.2, 3, LWs.4 and 5, he visited Pragna High School, collected the bonafide certificate of PW-1 from PW-4 and recorded the statement of PW-4. On 09.05.2017 he arrested the accused and produced

before the concerned Court for judicial remand. After collecting the entire

6 material record and after completing the investigation he filed the charge sheet.

11.With reference to the victim, PW-2 is father, PW-3 is sister,

PW-1 is victim herself. If we see their evidence, the witnesses including the victim turned hostile and even failed to identify the accused. All the said witnesses stated that they do not know anything about the case and also do not know the accused. In the cross examination of PWs.1 to 3 no such facts and circumstances were brought on record by the prosecution to believe the suggestion of the prosecution and they are deposing false having won over by the accused. PW-5 is the scene pancha and also turned hostile and in his cross examination except marking his signature nothing much was elicited to believe that he is deposing false at the instance of the accused.

12.As per his evidence of PW-4, after verifying the school records, he issued bonafide certificate of victim under Ex-P5. Ex-P5 shows the date of birth of victim is registered in the school records as 21.08.2001.

The date of offence, as per complaint, is 25.04.2017. Therefore, from Ex-

P5 it can be seen that as on 25.04.2017 the victim was aged about 16 years. Therefore, the prosecution succeeded to prove that the victim's age was 16 years as on the date of offence. But however, it is not the only criteria for the prosecution to prove the offence or guilt of the accused. Besides proving the age of the victim, the burden of the prosecution is also to prove that the accused committed the crime and that he is guilty of the offence. When the victim/PW-1 herself turned hostile Ex-P5 do not prove the guilt of the accused.

13.In fact as per the evidence of PW-6, LW-6 recorded the statement of the victim is not at all examined by the prosecution. When

PW-1 victim stated before this Court that she was never examined by the police at any point of time and LW-6 is also given up by the prosecution 7 who recorded the statement of the victim creates doubt in the prosecution story that the victim's statement might never have been recorded and that this is the first time the victim is deposing before the Court. Further,

PW-6 who said to have registered the case, recorded the statements of witnesses, conducted scene of offence panchanama, collected bonafide certificate of victim. In the cross examination of this witness it was suggested to him that neither victim nor witnesses stated before police as in their statements. The said suggestion is denied by this witness.

However, the fact that PW-6 being the investigating officer, registered the case is unchallenged, visiting the scene of offence recording the scene panchanama and collecting bonafide certificate is unchallenged. But, then all such investigation and pains taken by PW-6, becomes formal one as it does not prove the offence against the accused in view of PWs.1 to 3 and 5 turning hostile. Therefore, the evidence of PW-6 becomes ritualistic one and do not help the prosecution in proving the guilt of the accused.

However, it may only proved the efforts of PW-6 in investigating the case.

When prime witnesses turned hostile, the evidence of PW-6 becomes a ritualistic one. Therefore, even if the evidence of PW-6 is believed to be true, the guilt of the accused is not proved, so the evidence of PW-6 lurked as uncorroborated testimony. Except the evidence of PW-6 investigating officer PW-4 who is the school headmaster who issued bonafide certificate of victim/PW-1 there is no other oral evidence to corroborate their testimony. As such, when the prime witnesses including thevictimfailedtosupporttheevidenceof

PW-4 school headmaster and PW-6 investigating officer, their evidence cannot become basis of conviction. A criminal case is built on the edifice of evidence. Witnesses are the key to the case. They are the eyes and ears of justice. If prime witnesses themselves are incapacitated from acting as eye and ears of justice, the case becomes paralyzed. Conviction cannot be based on unimplicating evidence by prime witnesses more 8 specially victim. Therefore, by examining as many as 6 witnesses, the prosecution failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, point for determination is answered.

14.In the result, accused is found not guilty for the offences punishable U/Sec.354-D and 506 of IPC and U/Sec.11 r/w 12 of the

Protection of Children from Sexual Offences Act, 2012, accordingly, he is acquitted U/Sec.235(1) Cr.P.C for the said offences. The bail bonds of the accused shall stand cancelled after the appeal time is over.

Dictated to the Stenographer Gr.II, transcribed by her, corrected and

pronounced by me in the open Court, on this the 20th day of March, 2020.

II Addl.District Judge (FTSC),

corrections carried out. Mahabubnagar.

APPENDIX OF EVIDENCE:

WITNESSES EXAMINED FOR

PROSECUTION:

PW-1: Victim (the name is not disclosed as barred U/s 228-A of IPC and as observed by the Apex Court in State of Karnataka Vs. Puttaraj (2004 (2) ALT (SC) 6) as discussed in para 2 of the judgment).

PW-2: B. Hemla PW-3: B. Geetha PW-4: Ravi Kumar (HM) PW-5: P. Dasarath Naik PW-6: Y.Rama Linga Reddy (IO)

DEFENCE : None

EXHIBITS MARKED FOR

PROSECUTION:

Ex-P1: Signature of PW-1 on complaint. Ex-P2: 161 Cr.P.C. statement of PW-1. Ex-P3: 161 Cr.P.C. statement of PW-2. Ex-P4: 161 Cr.P.C. statement of PW-3. Ex-P5: Bonafide Certificate of PW-1. Ex-P6: Signature of PW-5 on Crime Details Form. Ex-P7: Complaint. Ex-P8: First Information Report. Ex-P9: Crime Details Form. Ex-P10: Letter (2 pages)

DEFENCE: - Nil -

MATERIAL OBJECTS MARKED: Nil.

II Addl.District Judge (FTSC),

corrections carried out. Mahabubnagar.

9

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE (FTSC),

MAHABUBNAGAR

31. Case.No. Spl.SC.No.106 of 2017

2. Name of the station P.S., Kadthal (Amangal).

3. Name of the accused.

Nenavath Sanjeeva S/o. Dolya, 23 years, Caste: ST (Lambada), Occ:Business (Cool Drink), at RTC Bus stand, Amangal, R/o: Nuchukunta tanda, H/o: Amangal village.

4.Date of:

1OccurrencePrior to 25.04.2017 2Complaint25.04.2017 3Apprehension04.05.2017 4Released on bail04.05.2017 5Commitment- 6Commencement of trial11.02.2020 7Close of trial03.03.2020 8Sentence or order/judgment.20.03.2020

Sentence or order/judgment.

In the result, accused is found not guilty for the offences punishable

U/Sec.354-D and 506 of IPC and U/Sec.11 r/w 12 of the Protection of Children from Sexual Offences Act, 2012, accordingly, he is acquitted U/Sec.235(1)

Cr.P.C for the said offences. The bail bonds of the accused shall stand cancelled after the appeal time is over.

Explanation for delay : --

II Addl.District Judge (FTSC), Mahabubnagar.

10

1

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE (FTC),

MAHABUBNAGAR

Friday, the 27th day of September, 2019

Present:- Smt. Shoukath Jahan Siddique, II Addl.District Judge (FTC), Mahabubnagar.

C.M.A.No.1 of 2018

Between:

1. Siramoni Mallaiah S/o. Chandraiah, age 68 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

2. Siramoni Sathyamma W/o. Mallaiah, age 62 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

3. Siramoni Venkataiah S/o. Mallaiah, age 37 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

4. Siramoni Sathyamaiah S/o. Mallaiah, age 32 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

5. Siramoni Jangaiah S/o. Mallaiah, age 30 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

6. Siramoni Yadama W/o. Venkataiah, age 32 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

7. Siramoni Alivela W/o. Sathyamaiah, age 27 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

… Appellants.

And

1. Reddymoni Venkataiah S/o. Reddymoni Naraiah, age 37 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

2. Reddymoni Srinivas S/o. Reddymoni Naraiah, age 34 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

2

3. Reddymoni Pentaiah S/o. Reddymoni Naraiah, age 32 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

… Respondents.

Sub:- Appeal under Order 43 Rule 1 CPC against the order passed by the Hon'ble Prl. Junior Civil Judge, Kalwakurthy.

I.A.No.201 of 2016

in

O.S.No.80 of 2016

Between:

1. Reddymoni Venkataiah S/o. Reddymoni Naraiah, age 35 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

2. Reddymoni Srinivas S/o. Reddymoni Naraiah, age 32 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

3. Reddymoni Pentaiah S/o. Reddymoni Naraiah, age 30 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

… Petitioners/Plaintiffs.

And

1. Siramoni Mallaiah S/o. Chandraiah, age 66 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

2. Siramoni Sathyamma W/o. Mallaiah, age 60 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

3. Siramoni Venkataiah S/o. Mallaiah, age 35 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

4. Siramoni Sathyamaiah S/o. Mallaiah, age 30 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

5. Siramoni Jangaiah S/o. Mallaiah, age 28 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

6. Siramoni Yadama W/o. Venkataiah, age 30 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal.

3

7. Siramoni Alivela W/o. Sathyamaiah, age 25 years, Occ: Agriculture, R/o: Brahmanapally village, Madgul mandal. … Respondents/Defendants.

Claim :- Petition under Order XXXIX Rule 1 & 2 r/w Sec/151 CPC.

* * *

This Civil Miscellaneous Appeal is coming on before me for disposal on 27.09.2019 in the presence of Sri C. Rajeev Kumar, Advocate for appellants and Sri M. Yogeshwar Raj Yadav and Y. Ravi Kumar Yadav, Advocates for respondents and upon perusing the material on record and having stood over for consideration, the Court delivered the following:-

J U D G M E N T

This is a Civil Miscellaneous Appeal presented by respondents against the decreetal orders in I.A.No.201/2016 in

O.S.No.80/2016 seeking the relief of temporary injunction with respect

to petition schedule property i.e., land in Sy.No.227 extent Ac.2-00 gts situated at Brahmanpally village, Madgul Mandal.

2.The brief contents of the petition in I.A.No.201/2016 are that respondents herein are own brothers and sons of Reddymoni

Naraiah. Reddymoni Naraiah was the original owner of the suit schedule property and donated the same to the respondents herein through a registered gift deed and delivered the possession of the same. The respondents herein mutated their names in the revenue records and obtained pattadar pass books and title deeds. The appellants herein are no way concerned either with the suit lands or with the family of the respondents herein, but at the instance of village officers they are trying to occupy the same forcibly that on 05.09.2016 the respondents came to the suit schedule property and tried to dispossess the petitioner, from the suit schedule property.

4

3.Counter filed by appellant No.1/respondent No.1, inter-alia, contending that he purchased the suit land from father of respondents/petitioners through an unregistered sale deed dt.24.04.1988 by paying valid consideration of Rs.30,000/- @

Rs.15,000/- per acre and the same was received by father of respondents/petitioners and delivered the physical possession of the suit lands before the elders to appellant No.1/respondent No.1, since then he is in actual possession and enjoyment of the suit land and cultivating the same. The pahanies filed by appellant No.1/respondent

No.1 shows his actual possession and enjoyment, he was also given sub-division No.227/A2 for the purchased land, the simple sale deed was misplaced in his house. The revenue inspector also enquired about the same and reported the matter to Tahsildar, Madgul stating that the suit land was purchased by the appellant No.1/respondent No.1 from

Reddamoni Naraiah and since the date of purchase from 1988-2006 the appellant No.1/respondent No.1 is in actual possession and enjoyment of the suit land. Basing on that he recommended to issue possession certificate to the appellant No.1/respondent No.1 and the same was issued. Appellant No.1/respondent No.1 several times requested the father of petitioners to execute the registered sale deed but he avoided the same and the alleged gift deed is created by petitioners in collusion with the each other to grab the suit land. It is further contended that due to computerization mistake crept in revenue record and the pahanis reveals the name of original pattadar, which has been wrongly entered in the pahanis. As such, on the said application spot inspection was done and panchanama was conducted on 09.08.2016 by MRI and recorded the possession of the appellant No.1/respondent No.1 was 5 recorded and Tahsildar, Madgul issued cultivation certificate dt.02.09.2016 in favour of appellants and they are in possession of the suit land. Since more than 28 years appellants/respondents are in continuous possession and enjoyment of the suit lands.

4.After having conducted the enquiry the Lower Court passed contested order in I.A.No.201/2016 granting temporary injunction in favour of petitioners until disposal of the suit. The appellants challenged the said order of the Lower Court on the grounds of appeal as follows.

1. The Trial Court passed order and decree basing on presumption,s surmised, conjectures which are not relevant to the facts and circumstances of the case.

2. The Trial Court did not appreciate the documents marked on behalf of the respondents i.e., Exs.B1 to B6 believing Exs.P2 to P8 though they are not showing true and correct ground position and gave an erroneous conclusion.

3. The Trial Court failed to appreciate that the suit property the purchased by appellant No.1/respondent No.1 under an unregistered sale deed dt.24.04.1988 from the father of petitioners/respondents.

4. The Trial Court wrongly discarded Ex-B5 possession certificate issued by competent authority without assigning any valid reason. The Trial Court did not appreciate Ex-B4 though it proved the physical possession of appellants/respondents over the suit lands from 1989 till filing of the suit.

5. The Trial Court has not considered Ex-B6 panchanama issued by competent Revenue Authority though it proves the dispossession of petitioners since 1989 and respondents are in possession.

6. The Trial Court did not appreciate that the respondents are seriously disputing the title of petitioners and filed counter 6 claim in respect of suit property and denied the correct recording of the name of the actual possessors in the pahanies subsequent to the year 2010.

7. The Trial Court erroneously passed order without appreciating the preposition of law that in a suit for injunction, person who is in possession of the property and has proved his rightful title is entitled to protect his possession.

8. The Trial Court failed to see prima facie and balance of convenience is in favour of petitioners.

5.Now the point for determination :

Whether the petitioner is entitled for the relief as sought for?

6.The parties shall be arrayed as referred in the Lower Court for the sake of convenience and to avoid confusion.

7.It is seen from the record that petitioners got marked Ex-P1 is registered gift deed, Ex-P2 is ROR, Ex-P3 to Ex-P8 are pahanies of different years, Ex-P9 to Ex-P11 are pattedar pass books. The respondents got marked Exs.B1 to B6 among them Ex-B1 to B3 are pahanies of different years, Ex-B4 is original endorsement issued by

Tahsildar, 24.04.2016, Ex-B5 is possession certificate, dt.02.09.2016 and Ex-B6 is attested copy of panchanama, dt.09.08.2016.

8.In a petition under Order XXXIX Rule 1 and 2 the basic ingredients to be proved by the petitioner are (1) Prima facie case, (2)

Balance of convenience, (3) Irreparable loss caused to him if injunction is not granted. To prove prima facie case possession on part of the petitioner is to be proved Prima facie he has to prove that he is in lawful possession of petition schedule property as on the suit date. From the record it is seen that petitioner filed Ex-P1 registered gift deed and Ex- 7

P2 ROR but latest pahanies from Exs.P3 to P8 which reflects the petitioners' name as possessors and also they are the documents which are latest documents reflecting possession of the petition schedule property with petitioners. It is a different thing that the petitioner is claiming possession based on a title, however, it is not requirement in this petition to be discussed regarding the title of the parties.

9.Only thing to be seen here is whether the petitioner is in possession of petition schedule property as on petition date. Here in the counter the respondent also claiming title based on unregistered sale deed. However, it is not issue of title here to be discussed since it is the appeal passed simply on possession. The respondents relied on their documents of pahanies from 1990-2010. The suit is filed in the year 2016. Had the respondents were in possession as on the date of filing the suit they would not filed revenue record in the form of latest pahanies to show that they are in possession of petition schedule property. Respondents failed to file latest documents showing possession In the grounds of appeal the respondents argued that the

Lower Court has ignored Ex-B4 which is endorsement issued by

Tahasildar and Ex-B5 possession certificate issued by Tahasildar. The

Court has perused Ex-B4 and found that it is only endorsement issued by Tahsildar stating that the pahanies of particular years cannot be issued since there is no record available with them. As such, Ex-B4 do not support the contention of respondents with respect to possession or with respect to alleged execution of unregistered sale deed as pleaded by the respondents before the Lower Court.

8

10.Now coming to Ex-B5 which is possession certificate issued by Tahsildar, from the contents of the document it can be observed that an application was made by respondents praying for issuance of possession certificate claiming that he is in possession and merely basing on the application of respondents, the Tahsildar, Madgul issued the said certificate under Ex-B5. There is no other document supporting Ex-B5 to show that the issuance of Ex-B5 is based on some authenticate revenue record. It is simple, as if the respondents made a claim before the Tahsildar that he is in possession and Tahsildar,

Madgul issued Ex-B5 mentioning in it on what documents he relied on and came to conclusion for issuance of Ex-B5.

11.On the contrary the petitioners have filed registered gift deed of the year 2011. Even if it is considered that Ex-P1 is inter-se document between the plaintiffs and their father, the petitioners have filed Ex-P2 which is ROR. These are issued on 18.07.2016, 22.07.2016 which are latest revenue record showing that the petitioners are the possessors as on the date of suit. That apart these documents under

Ex-P2 which are ROR also reflects that petitioners are pattedars of the respective pieces of suit survey numbers. However, it is the title dispute and can be determined only in the suit after full-fledged trial.

That apart the petitioners also filed Exs.P1 to P11 which are pattedar pass books reflecting petition schedule property as well as names of the petitioners. The prima facie evidence produced by the petitioners have some preponderance of probabilities in their favour. On the contrary except relying on Exs.B4 and B5 which are endorsement of the

Tahsildar that they cannot issue pahanies of respective years as stated 9 in Ex-B5 and possession certificate as discussed above under Ex-B5 there is no single piece of document in the form of revenue record to support the contention of the respondents that they are in possession of petition schedule property. Ex-B6 is simply attested copy of panchanama. When the petitioners have already filed Ex-P2 which are

ROR and Exs.P9 to P11 which are pattedar passbooks, the documents of the petitioners out weights the documents of respondents under Ex-B6.

12.The revenue authorities have already prepared the record under the above exhibits of the petitioners i.e., Exs.P9 to P11 and also pahanies from Exs.P3 to P8. The panchanama at this stage cannot be looked into to prove the possession. However, if the respondents claimed possession based on Ex-B6 they have to challenge Ex-B6 before the concerned authorities for having issued Exs.P3 to P8 though Ex-B6 was existing. Even the pahanies filed by the respondents before the

Lower Court under Ex-B1 suddenly shows the name of respondent No.1 in respective year. But there is no mention how he came into possession. Moreover, it is pahani of the year 1991. Similar is a case with Ex-B2. On the contrary the document filed by the petitioner prima facie supports his case about the possession of petition schedule property by the petitioners.

13.In the grounds of appeal the respondents stated that they are seriously disputing the title of the petitioners and filed counter claim in respect of the suit property. However, since allegedly counter claim is filed by the respondents claiming the title it is to be determine before the Lower Court. But based on the documents got marked in this petition which prima facie supports the petitioners case with respect to 10 possession, it was necessary to grant temporary injunction. If the injunction was refused by the Lower Court there would have been chaos as title is being disputed by both the parties. Since the petition is for temporary injunction and the documents got marked by the petitioners prima facie supports the petitioners case and balance of convenience also favours the petitioners granting of temporary injunction in favour of the petitioners was the appropriate order in the present case. The

Court do not find any reason to interfere with the orders of the Lower

Court at this juncture. However, if the parties are disputing the title, they are at liberty to contest the suit and prove their respective claims but until then it was necessary to grant temporary injunction till the disposal of the suit. Accordingly, point for determination is answered.

14.In the result, Civil Miscellaneous Appeal is dismissed.

Dictated to the Stenographer Gr.II, transcribed by her, corrected

and pronounced by me in the open Court, on this the 27th day of September, 2019.

II Addl.District Judge (FTC), Mahabubnagar.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED)

(EXHIBITS MARKED)

– Nil –

II Addl.District Judge (FTC), Mahabubnagar.

Corrections carried out.