T.Anand

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IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES UNDER SCS. &

STs POA Act 1989 cum V ADDITIONAL DISTRICT AND SESSIONS JUDGE ::

NELLORE

Wednesday this the 13th day of May 2015

Present: Sri T.ANAND,

Special Judge for trail of offences

Under the SCs and STs (POA) Act, 1989 -Cum-V Addl. District & Sessions Judge,

Nellore.

SESSIONS CASE NO. 76 of 2010

(P.R.C.NO.73/2009 of Addl. Judicial. Magistrate of I Class, Kovur connected to Crime No.15/2009 of Dagadarthi Police Station)

Name of the Complaint:Sub Inspector of PLolice, Buchireddypalem Name of the Accused:1) Machala Narayana, s/o Venkaiah, 35 years, SC Mala by caste, Ulavapalla village, Dagadarthi Mandal, SPSR Nellore District

2) Machala Lakshmamma, w/o Venkaiah, 50 years, SC Mala by caste, Ulavapalla village, Dagadarthi Mandal, SPSR Nellore District

Offences:Under Sections 498-A, 302 r/w 109 IPC Nature of Offence:Under Sections 498-A, 302 r/w 109 IPC Plea of the Accused:Not found guilty Finding of the Judge:Not found guilty Sentence of Order: In the result, accused are found not guilty and acquitted under Section 235(1) Cr.P.C. of the charge U/Sec. 498-A IPC against A1 and A2, and 302 IPC against A1. The bail bonds of accused shall stand cancelled. Sureties are discharged. MO1 shall be destroyed after lapse of appeal time. Send MO1 to Addl. Judicial. Magistrate of I Class, Kovur to carrying out property order. Prosecution conducted Addl.Public Prosecutor, byNellore Name of the Defence Sri S. Yesudass, counsel:Advocate

This case was committed to this court by Smt K. Uma Devi, Addl.Judicial

Magistrate of I class, Kovur as per orders in P.R.C.No.73/2009, dated 07.01.2010 in

Crime No. 15/2009 of Dagadarthi Police Station.

This Sessions case coming up before this Court on 05-05-2015 for final hearing in the presence of Additional Public Prosecutor for Complainant and of Sri S. Yesudass, Advocate for accused and this matter having stood over consideration till this day, this court passed the following:

J U D G M E N T

The Inspector of Police, Buchireddypalem filed charge sheet against the accused U/Secs. 498-A, 302 r/w 109 IPC in Crime NO. 15/2009 of Dagadarthi PS,

SPSR Nellore District alleging as follows:-

2. The accused are residents of Vulavapalla village of Dagadarthi

Mandal. The deceased Lakshmamma is the wife of A1, A2 is mother of A1. Kalicheti 2

Danaiah @ Danam, Kalicheti Balaji/LWs1 and 2 are the brothers and Kalicheti

Ramaiah, Kalicheti Kotamma/LWs4 and 5 are parents of the deceased

Lakshmamma. The marriage of deceased Lakshmamma with A1 took place about 12 years back and they got two children. A1 used to pick up quarrel with the deceased

Lakshmamma and used to beat her suspecting her fidelity. A2, who is mother of A1, also used to beat the deceased and instigated A1 to kill the deceased. The deceased

Lakshmamma used to inform about the harassment of A1 and A2 to her parents and brothers. Some times, the deceased Lakshmamma could not bear the harassment of

A1 and A2, returned to her parent's house. But her parents used to send her back to the house of the accused. Kovuru Ravikumar, Yerramsetty Polaiah, Golla

Venkaiah, Dasari Audinarayana/LWs 8 to 11 also mediated and effected compromise between them earlier.

Two days prior to 02-02-2009, A1 picked up quarrel with deceased

Lakshmamma and beat her with a stick and caused bleeding injury over her head.

Kalicheti Danaiah @ Danam/LW1, who came to know the incident, went to

Ulavapalla village pacified the matter between A1 and deceased Lakshmamma, convinced her in view of her matrimonial life. On 02-02-2009 A1 returned from

Mannangidinne village after consulting with his mother A2 who instigated A1 to kill the deceased Lakshmamma. Then A1 picked up quarrel with the deceased

Lakshmamma suspecting her fidelity and beat her indiscriminately with hands. At about 10.00 p.m. on 02-02-2009 Kalicheti Balaji, Vattikala Srinivasulu/LWs2 and 3 went to the house of the deceased Lakshmamma to see her. On seeing them, A1 raised his voice abusing the deceased Lakshmamma in filthy language and beat her over her face and body. Then the deceased fell down. Then L Kalicheti Balaji,

Vattikala Srinivasulu/LWs2 and 3 out of fear returned to their village at 11.00 p.m.

and informed the incident to Kalicheti Danaiah @ Danam/LW1 and Kalicheti

Ramaiah, Kalicheti Kotamma/LWs4 and 5. Then A1, with an intention to kill deceased Lakshmamma, waited for an opportunity. During the night while the deceased Lakshmamma was sleeping on a cot, in pursuance of his intention, sat on her chest, covered her face with a lungi pressed her face forcibly , due to which the deceased Lakshmamma died of asphyxia due to smothering. Then the accused left 3 the scene of offence and went away. On 03-02-2009 at about 8.00 a.m. Kalicheti

Danaiah@ Danam/LW1 along with Kalicheti Ramaiah, Kalicheti Kotamma/LWs4 and 5 went to the house of the deceased Lakshmamma at Ulavapalla village and found the dead body of the deceased Lakshmamma. Kalicheti Danaiah @ Danam/LW1 went to Dagadarthi PS and gave report to police. P. Prakasa Rao, LW18 registered the same in Crime No. 15/2009. LW19 took up investigation and visited the scene of offence, and in the presence of mediators LWs13 and 14 got the scene of offence photographed through LW112 and drafted observation report. LW19 held inquest over the dead body of the deceased Lakshmamma in the presence of

Panchayatdars and sent the dead body for PM examination. On 6.2.2009 at about 5.00 p.m. A1 appeared before LWs13 and 14 at Vulavapalla village and admitted the offence, and they produced A1 before LW19 the Inspector of Police,

Buchireddypalem and LW19 interrogated A1 before the mediators and A1 gave confession admitting the offence and then arrested him. On confession of A1, LW19 and his staff and mediators went to his house at Vulavapalla village produced the lungi which was used by him for pressing the face of the deceased Lakshmamma .

LW19 seized the said lungi under cover of mahazar and sent A1 for remand. A2 was granted anticipatory bail on 17-03-2009 by the Special Judge for ACB Cases, Nellore in CrlMP 178/2009. LW16 conducted PM examination over the dead body of the deceased, issued PM certificate and opined that the deceased would have been died of asphyxia due to smothering. Hence the charge.

3. On appearance of the accused charge U/Sec. 498-A IPC against A1 and A2, and 302 IPC against A1 are framed, read over and explained to them in

Telugu for which they pleaded not guilty and claimed for trial.

4. During the trial on prosecution side PWs1 to PW12 are examined and

Exs.P1 to P18 are marked. On behalf of defence, DW1 examined Exs.D1 to D3 are marked and also MO1 marked.

5. After closure of evidence by the prosecution, the accused were examined under section 313 Cr.P.C. to explain away the incriminating circumstances appearing in the evidence of witnesses.

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6. Now the point for determination is -

Whether the prosecution proved the guilt of the accused for the charge U/Sec. 498-A IPC against A1 and A2, and 302 IPC against A1 beyond all reasonable doubt?

7. Heard both sides.

8. P O I N T:

The prosecution case can be summoned up as follows:

PW1 is brother of the deceased and he stated that A1 is his sister's husband and A2 is mother of A1 and his sister Lakshmamma died on 3-2-2009. 12 years prior to her death she was married to A1 who is resident of Ulavapalla and they had two children one son and one daughter. After his sister's death the daughter of A1 has been staying with PW1. According to him A1 and deceased lived happily for 1 1/2 years, but later A1 started harassing the deceased by suspected her fidelity and the deceased used to tell PW1 about the harassment by A1. They used to advise the deceased to adjust with A1. The deceased lived with A1 bearing all the harassment. In 2006 the deceased came to the house of PW1. But A1 took her back to his house due to intervention of mediators. In 2007 A1 and A2 and the deceased started a hotel in Thettu village, Prakasam District and at that place some disputes arose, as A1 suspected the character of deceased. In 2007 again the deceased returned to the house of PW1, due to harassment by A1 and A2. Then A1 brought elders from his village and after mediation they sent deceased along with

A1. On 26-1-2008 A1 and A2 came back to Ulavapalla after closing the hotel at

Thettu. The deceased again came to the house of PW1 when A1 shifted to

Ulavapalla from Thettu. Later A1 came to the house of PW1 along with one Polaiah,

Meda Srinivasulu Reddy on 26-12-2008. The elders from both sides mediated the matter and sent the deceased along with A1 on the assurance given by A1 that he would not harass the deceased. PW1 further stated that on 31-1-2009, A1 beat deceased and caused injury on her fore head and he came to know about the incident through Polaiah. Later the deceased also informed him about the incident.

On that PW1 and his parents went to A1's house and chastised A1 for beating the deceased. PWs2 and 3 went to A1's house on 2.2.2009 to see the deceased as she sustained injury. On that day A1 in a drunken state beat the deceased and she fell 5 down. A2 was also present at that time. PWs2 and 3 returned to their village on the assurance given by A2 that she would pacify the matter. The said incident was informed by PWs2 and 3 to PW1 on the same day night. On the next day morning i.e. on 3-2-2009 at 8.00 a.m. PW1 along with his parents went to the house of A1.

The door of the house was closed. Then they pushed the door and went into the house and found the dead body of the deceased lying on the cot. They observed injury on the left side of temple, swelling on the nose and injury on the person of the dead body. According to PW1, at the instigation of A2, A1 committed murder of deceased. Ex.P1 is the complaint given by PW1 to the police.

9. PW2 is younger brother of PW1 and deceased is his sister. According to him after the marriage A1 and deceased lived happily for some time and thereafter A1 started suspected the character of deceased and used to beat her and due to harassment, the deceased used to return to their house frequently and they used to settle the matter and used to send her back with A1, on the assurance given by A1 that he would look after the deceased well. In 2006-2007, the deceased came to their house due to harassment by A1 and they settled the matter with the help of elders and sent the deceased along with A1. Finally on 26-12-2008 they sent the deceased with A1 by mediating the dispute with the help of elders. He further stated that A1 gave assurance in writing in the presence of elders that he would look after his wife well in future. Thereafter for 15 days A1 looked after the deceased well. But again he continued harassment. On 31-1-2009 A1 beat his sister on the left side of fore head and caused bleeding injury. PW1 and his parents went to A1's house, questioned him, and thereafter returned to Rayapeta on 2-2-2009.

During night time at 9.00 p.m. PWs2 and 3 went to A1's house and at that time A1 was quarreling with deceased and he was armed with stick. On seeing them A1 became angry and beat the deceased with stick and also abused her in filthy language. The deceased fell down on receiving the blow. PW2 wanted to bring her to their house on the same day after the incident, but A2 told him that it is their family affair and that they would adjust the matter. Then PWs2 and 3 returned to Rayapeta and informed the incident to PW1 and his parents. On the next day morning all of them went to A1's house at about 8.00 a.m. and then found the dead body of the 6 deceased lying on the cot in the house of A1 with blanket covered on the deceased.

They observed the injuries on fore head and swelling on the nose of the deceased.

PW2 stated that he strongly suspected A1's hand in the murder of the deceased with the active support of A2. A1 and A2 are not in the house at that time.

10. According to PW3 who is mother of deceased, A1 harassed her deceased daughter by suspecting her fidelity and by beating her. She also stated about PW2 and LW3 visiting the house of A1 to question A1 and informing them that

A1 beat the deceased on her nose and caused injury and further A2 told PW2 that it is their family affair and they would adjust the matter some how and asked PW2 to leave their house. She further deposed that herself, PW1 and her husband went to the house of A1 on the next day morning and found the door of the house was closed and then the lock was broke open. When they entered the house, they found the dead body of the deceased lying on the cot with a blanket covering the dead body. They observed injuries on the head and nose and swelling all over the body and at that time they found A1 and A2 not in the house.

11. PW4 did not support the version of the prosecution and was treated as hostile witness. She does not know about the family affairs of A1 and A2.

12. PW5 stated that he took photographs of the dead body of the deceased at the scene of offence i.e. the house of A1 vide Ex.P3 to P8. But he did not file any document like receipt to show that photos were taken by him and fee was paid to him.

13. PW6 did not support the version of the prosecution and was treated as hostile witness. He stated that he does not know whether there are any disputes between deceased and A1 as his house is very far away from the house of A1. He does not know the reason for the death of the deceased. The villagers thought that

A1 killed the deceased.

14. PW7 is a retired Teacher and deposed that about 12 years prior to the incident A1 married the deceased and were blessed with two children. He does not know the family affair of A1 and deceased as his house is far away from A1's house. A1 told him that his wife went to her parent's house and that he intended to bring her back. PW7 accompanied A1 to Alluru. Mediation was conducted by the 7 elders from both sides in which A1 assured before the elders that he would look after the deceased well. Then the deceased went along with A1 to Ulavapalla and that mediation took place in December 2008. PW7 stated that the deceased complained before the elders that A1 harassed by coming in drunken state and beat her. Further villagers thought that A1 killed the deceased in February 2009.

15. PW8 who is resident of Rayapeta deposed that the deceased used to go to her parent's house due to petty quarrels between her and accused and thereafter accused used to bring her back. She used to complain that A1 used to beat her by coming in drunken state. PW8 and others pacified the issue and advised the deceased to live with A1. One month 10 days prior to her death they held mediation and sent her along with A1 on the assurance given by A1 in writing that he would look after her well. PWs2, 3 and LW4 approached PW8 at about 11.00 p.m. one day before the death of the deceased and informed that A1 was beating the deceased. On the next day morning he along with PWs2, 3 and LW4 went to the house of A1 and saw the door of the house locked and then police broke open the lock and found the dead body of the deceased lying on the cot in the house.

According to him, the villagers gathered there were talking that A1 killed the deceased.

16. PW9 deposed that he attested scene observation mahazar at the house of A1 on 3-2-2009 vide Ex.P10. The CI and one Sreenivasulu, husband of village sarpanch also signed the same. Inquest report was scribed by Sreenivasulu in their presence at about 1.00 p.m. at the house of A1 vide Ex.P11. The husband of village sarpanch, one Meda Sreenivasulu Reddy, himself and mediators attested the inquest report. At the time of inquest, statement of blood relatives of the deceased were recorded and they observed injuries on the left side of the fore head of the deceased and swelling on the nose. They resolved that the deceased was killed by

A1. The deceased was sent to hospital for PM examination. On 6-2-2009 at about 5.00 p.m. while he was in the house of Sarpanch of the village, A1 came there and confessed before him and husband of Sarpanch that, quarrel took place between him and his wife on 2-2-2009 at 10.00 p.m. that PW2 and another person came to their house and witnessed the quarrel and left the house out of fear, that A1 and A2 8 decided to kill the deceased and with that intention they killed the deceased on the same day night by smoothering her neck with lungi. A1 further confessed before them, that out of fear form relatives of the deceased and due to some old criminal cases pending against him, he is disclosing the facts to them, so that they will protect him. PW9 scribed the confession statement of A1 vide Ex.P12. The husband of Sarplanch also signed in Ex.P12. Thereafter they took A1 to Dagadarthi Police

Station and handed over A1 along with Ex.P12 to CI. On interrogation by CI, A1 disclosed the same facts which are disclosed to them vide Ex.P12. One constable

Sreenivasulu Reddy recorded the confession statement of A1 in their presence and the same was attested by husband of Sarpanch along with CI. According to PW9, A1 stated before them that he would show the incriminating objects used in the commission of offence, if they follow him and accordingly A1 led them to the house of A1 at Ulavapalla and then A1 went inside the house and brought one lungi of black colour with blue spots with edges of the lungi joined by stitching. The said lungi is marked as MO1 through PW1 and the said confession statement is marked as Ex.P13. The relevant portion in confession statement with regard to recover of

MO1 marked as Ex.P13 through PW9. Ex.P14 is seizure mahazar containing the signature of himself and husband of Sarpanch, CI and A1.

17. PW10 the Civil Assistant Surgeon, Area Hospital, Kavali deposed about conducting PM examination over the dead body of the deceased on 3-2-20009 and noting down the internal and external injuries. The cause of death as per the opinion of PW10 is asphyxia. Ex.P5 is PM certificate issued by PW10.

18. PW11 the then SI of Police, Dagadarthi deposed that on 3-2-2009 at about 11.00 hours while he was in the police station, PW1 submitted written report and the same was registered by him as Crime NO. 15/2009 against the accused U/Sec. 302 IPC vide Ex.P16.

19. PW12 the then Inspector of Police, Buchireddypalem deposed that on 3-2-2009 at about 11.20 hours on receipt of FIR from PW11 he rushed to the scene of offence, observed the scene and prepared observation report Ex.P10 and rough sketch marked as Ex.P17 and got the scene of offence photographed. Further he conducted inquest over the dead body of the deceased in the presence of 9 panchayatdars. He recorded the statements of PWs2toi 7, LWs3, 4, and 6 on the same day and further recorded the statements of LW3, PW8, LW11 on 4-2-2009. On 6.2.2009 A1 surrendered before PW12 and his arrest was affected and the confession statement is marked as Ex.P18. On 7-2-2009 he filed memo in the Court to add Sec. 109 IPC against A2.

20. The contention of APP is that there is ample evidence on record to connect the accused to the death of the deceased and that the accused failed to give any explanation as to their absence in the house on the date of death of the deceased. She contended that A1 himself confessed before PW9 about the commission of offence and the same was reduced in writing by PW9 which go to show that A1 had killed deceased. She argued that the evidence of prosecution witnesses are consistent and corroborating with each other and as such the prosecution evidence can be placed reliance to convict the accused. On the other hand the defence counsel argued that there are several contradictions in the evidence of PWs1 to 3 and that their evidence is not trust worthy. It is further argued that the statements of witnesses and so called confession statements are fabricated documents to implicated the accused falsely in this case.Thereofre prayed for acquittal of accused.

21. No doubt PWs1 to 3 have in their evidence deposed consistently that A1 harassed the deceased by suspecting her character and further harassed to beat her often by coming in drunken state. Their evidence show that A1 married the deceased 12 years prior to the incident. PWs1 to 3 in their evidence referred about some incidents happened in 2006 and in 2007 she returned to her parent's house and thereafter she was sent back with A1 on the assurance given by A1 that he would look after her well in future, but they did not give any complaint with regard to the alleged incidents that took place in 2006 and 2007. PWs1 and 2 spoke about the incident that took place on 31-01-2009. It is their evidence that A1 beat the deceased on 3-2-2009 and caused injury on her forehead. But no complaint was preferred with regard to the said incident. Another incident referred by PWs1 to 3 is that A1 beat the deceased on 2-2-2009 during night time and the same was witnessed by PW2 and LW3. On the next day i.e. on 3-2-2009 at 8.00 a.m. PW1 and 10 others visited the house of A1 and found the dead body of the deceased lying on the cot in the house of A1. He admitted that Ex.P1 is the complaint given by police by him. However in the cross examination PW1 deposed that one constable by name

Syam of Dagadarthi scribed Ex.P1 contents to his dictation, there is no mention in

Ex.P1 that the contents were scribed by whose dictation. The constables arrived at the scene of offence at about 8.30 a.m. PW1 was not provide copy of FIR. He does not remember who recorded his statement. Admittedly he did not mention in Ex.P1 that he did not prefer police complaint against A1 and A2 earlier as it may spoil the marital relationship between deceased and A1. He did not state in his statement or in Ex.P1 about deceased coming back to their house in 2006 and also in 2007 and that he used to send her back to A1's house.

22. PW11 in his evidence stated that PW1 came to the police station at about 11.00 hours on 3-2-2009 and submitted written complaint. Whereas the evidence of PW1 is quite contrary to what PW11 stated. According to PW1, one constable scribed Ex.A1 at the house of A1. If what PW1 stated is true, the evidence of PW11 that PW1 came to the police station personally and lodged complaint cannot be believed. The statement was recorded by the constable at about 8.30 a.m. as per the version of PW1. But according to PW11, Ex.P1 was given at about 11.00 hours. This is material contradiction which go to the root of the case. PW11 in the cross examination deposed that there is no signature of PW1 in Col. No.14 of

Ex.P16. There is no evidence to show that copy of FIR was given to accused. There is no mention in Col. No. 15 when copy of FIR was dispatched to the Court. Thus genuine doubt is created as to the lodging of FIR with regard to the alleged incident.

PW7 in the cross examination deposed that mediation took place at the house of

MLA K. Vishnu Vardhan Reddy who belongs to Congress party. PW7 also congress party sympathizer. He spoke about mediation conducted in the MLA's house. The prosecution rests on the circumstantial evidence in this case. There are no direct witnesses to speak about the incident. No doubt PW2 in his evidence stated that on 31-1-2009, A1 beat the deceased on left side of fore head and caused swelling injury. PW1 and her parents went to the house of A1 and questioned him. On 2-2- 2009 in night at 9.00 p.m. LW3 and Pw2 went to the house of A1 and found A1 11 quarreling with the deceased and at that time A1 was armed with big stick. In the cross examination PW2 categorically stated that he has not witnessed the incident that occurred on 31-1-2009. Neither PW1 nor his parents gave complaint to the police regarding the incident that occurred on 31-1-2009. He did not state before CI that A1 was armed with stick in drunken state. He does not know whether he stated

before police that A2 told them that she will adjust the matter. PW2 did not state

before CI that out of fear from attack by A1, they left the house of A1. PW1 did not

state before CI that A1 was armed with stick and was in drunken state. PW2 did not state before CI that he strongly suspected the hand of A1 with the active instigation of A2 in killing the deceased. PW3 did not state before the police that for the sake of dowry her daughter was harassed. She did not tell the police that her daughter informed her through telephone that she was beaten by the accused. PW1 admitted that he did not prefer any police complaint against the accused for harassing her sister prior to her death with regard to the incident occurred in 2006, 2007 and 2008. PW1 further deposed that they did not complained to police on 2-2-2009 about the incident after information given by PW2. The prosecution mainly relies upon the evidence of PW9. Ex.P12 is the confession statement of A1 recorded by

PW9. PW9 stated that the husband of Sarpanch also signed in Ex.P12 and the husband of Sarpanch took A1 to Dagadarthi police station and handed over him along with Ex.P12 in police station. One constable Sreenivasulu said to have recorded the confession statement of A1. In the cross examination PW9 admitted that as per Ex.P12 in para No.7 it is mentioned that the contents of Ex.P12 are scribed by him. Ex.P12 does not contain the signature of A1. He denied that signature of himself and LW14 were taken on blank paper and later the same was fabricated as Ex.P12 by the police. The date and place of Ex.P12 is not mentioned on the top of Ex.P12. He does not remember who scribed the contents of confession statement. But there is no mention in confession statement that while A1 was giving statement CI dictated the same to police constable. PW9 denied that he was not present at the time of recording confession statement of A1 before the police. PW9 did not state before the police that accused signed in the confession statement

Ex.P13. As seen from Ex,.P12 it is clear that A1 did not sign in it.

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23. The husband of Sarpach of the village has been examined on defence side as DW1. In his evidence he deposed that in the year 2009 his wife was

Sarpanch of Ulavapalla village. He admitted his signature in Ex.P11, P12, P18, P14, but he stated that he signed on those documents at the house of A1 at about 8.30 or 9.00 a.m. without going through the contents in those documents. He categorically stated that even the contents were not read over to him. Further he deposed that VRO never visited his house three days after the inquest along with A1 and A1 never confessed about the commission of offence before him and VRO at his house at 6.00 p.m and that a report was drafted under Ex.P12. At the request of police he signed in Ex.P11, P12, P18, P14. The presence of DW1 is spoken by PW9 in his evidence. But the evidence of DW1 is quite contrary to what PW9 stated in his evidence. A doubt is created in the mind of the court as to whether A1 gave confession statement before PW9 and DW1 as per Ex.P12. I am of the opinion that it is not safe to rely upon Ex.P12, in view of the contradictory versions of DW1 and

PW9. In the cross examination of PW12 for each question he stated that police constable Sreenivasulu Reddy scribed the documents and scribed mahazars and also prepared rough sketch. The said Sreenivasulu Reddy has not been examined in this case. It is elicited from PW12 in the cross examination that confession statement of

A1 was recorded on 6-2-2009 by the same constable Sreenivasulu Reddy at

Dagadarthi Police Station. It is admitted that there is no signature of A1 in the confession statement copy shown to PW2. He denied that he himself scribed the statement, and all the documents during the investigation. He cannot say whether as per police manual he can delegate power to police constable to scribe the documents during the investigation. PW12 in the cross examination stated that PW1 did not state before him that A1 and A2 ran a hotel at Thettu, that PW1 did not state before him that he came to know through Polaiah about the incident occurred on 31-1-2009, that PW2 did not state before him on 2-2-2009 that he went to her sister's house between 9.00 and 10.00 p.m., that PW9 did not state before him that accused told him that Criminal cases are filed against him, PW1 did not state before him that A2 was also present on 2-2-2009 during night and that she assured PW2 and LW3 that she would adjust the matter, that PW2 did not state before PW12 that 13

A1 beat deceased on 2-2-2009 with stick at about 9.00 p.m., that PW2 did not state

before him that A2 was present on 2-2-2009 and told that it is their family matter

and they will adjust , that PW2 did not state before him that with malafide intention to kill the deceased, A1 kept children at Mannangidinne and that A1 armed with stick in drunken state, that PW2 did not state before him that out of fear of attack from A1 he left A1's house and that he suspected strongly that A1 killed the deceased. Thus there are several improvements in the evidence of PWs1 to 3 which they have not stated before the Investigating Officer at the time of recording their statements. It is well settled principle of law that suspicion however high is not substitute for legal proof. Though there are suspicion circumstances pointing towards the accused, there is no fool proof evidence to show that A1 and A2 and none other killed the deceased. Admittedly there are no direct evidence in this case.

The prosecution reliance on circumstantial evidence.

24. The Law in the case of circumstantial evidence is well settled that it should unmistakably point to one and one conclusion only that the accused person and none other perpetrated the alleged crime and in the circumstances proved in a particular case were not inconsistent with the innocence of the accused and if they were susceptible of any rational explanation no connection could lie. (Hukam Singh

Vs. State of Rajasthan in AIR 1977 SC 1063).

25. The absence of accused in the house of A1 on 3-2-2009 may be a strong circumstances to presume that A1 and A2 might have played role in the death of the deceased but all the links forming chain of evidence pointing towards guilt of the accused has not been proved by the prosecution. Hence I am of the view that accused are entitled to benefit of doubt. Accordingly this point is answered holding that prosecution failed to prove the guilt of the accused of the charge

U/Sec. 498-A IPC against A1 and A2, and 302 IPC against A1 beyond all reasonable doubt.

26. In the result, accused are found not guilty and acquitted under

Section 235(1) Cr.P.C. of the charge U/Sec. 498-A IPC against A1 and A2, and 302 14

IPC against A1. The bail bonds of accused shall stand cancelled. Sureties are discharged. MO1 shall be destroyed after lapse of appeal time. Send MO1 to Addl.

Judicial. Magistrate of I Class, Kovur to carrying out property order.

Dictated to Personal Assistant transcribed by her corrected and pronounced

by me in open court this the 13th day of May 2015.

Special Judge for trial of offences under

the SCs & STs (POA) Act-Cum – V Addl.

Sessions Judge, Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION

PW1: Kalicheti Danaiah PW2: Kalicheti Balaji PW3: K.Kotamma PW4: M. Audemma PW5: Pidugu Vemaiah PW6: K. Ravikumar PW7: G. Polaiah PW8: Golla Venkaiah PW9: P. Satya Siva Prasad PW10: Dr. P.C. Koteswara Rao PW11: P. Prakash Rao PW12: K. Ravikumar

FOR DEFENCE; DW1: P. Srinivasulu

DOCUMENTS MARKED

FOR PROSECUTION: Ex.P1: Report given by PW1 Ex.P2: 161 Cr.P.C. Statement of PW4 Ex.P3 to P8: Photos with negatives Ex.P9: Statement of PW6 Ex.P10:Scene observation mahazar Ex.P11: Inquest report Ex.P12: Statement given by VRO Ex.P13:Confession statement Ex.P14: Seizure mahazarnama Ex.P15: PM report Ex.P16: Original FIR Ex.P17: Rough sketch Ex.P18: Confession statement of accused

FOR DEFENCE; Ex.D1: 161 Cr.P.C. statement of PW8 Ex.D2: 161 Cr.P.C. statement of PW8 Ex.D3: 161 Cr.P.C. statement of PW9

MATERIAL OBJECTS MARKED

MO1: Black colour lungi with blue spots

Special Judge for trial of offences under

the SCs & STs (POA) Act-Cum – V Addl.

Sessions Judge, Nellore.

1

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES UNDER SCS. & STs

POA Act 1989 cum V ADDITIONAL DISTRICT AND SESSIONS JUDGE :: NELLORE Thursday this the 30th day of April 2015

Present: Sri T.ANAND,

Special Judge for trail of offences

Under the SCs and STs (POA) Act, 1989 -Cum-V Addl. District & Sessions Judge,

Nellore.

SESSIONS CASE NO. 39 of 2010

(P.R.C.NO.35/2009 of IV Addl. Judicial. Magistrate of I Class, Nellore connected to Crime No.168/2009 of Nellore Rural Police Station)

Name of the Complaint:Sub Divisional Police Officer, Nellore Rural Sub Division Name of the Accused:Sk. Khadar Basha @ Maabasha, s/o late Chand Basha, 42 years, r/o Jakeer Hussain Nagar, Nellore Offences:Under Section 323, 506 IPC and Sec. 3(1)(x) of SCs. and STs (POA) Act 1989 Nature of Offence:Under Section 323, 506 IPC and Sec. 3(1)(x) of SCs. and STs (POA) Act 1989 Plea of the Accused:Not found guilty Finding of the Judge:Not found guilty Sentence of Order: In the result, the accused is found not guilty and acquitted under section 235(1) Cr.P.C. of charge U/Sec. 323, 506 IPC and Sec. 3(1)(x) of SCs. and STs (POA) Act 1989 The bail bonds of accused shall stand cancelled. Sureties are discharged. Prosecution conducted Addl.Public Prosecutor, byNellore Name of the Defence Sri S. Sriram, counsel:Advocate

This case was committed to this court by Sri M. Yesurathnam, IV Addl.

Judicial Magistrate of I class, Nellore as per orders in P.R.C.No.35/2009, dated

22.02.2010 in Crime No. 168/2009 of Nellore Rural PS. This Sessions case coming up before this Court on 28-04-2015 for final hearing in the presence of Additional Public Prosecutor for Complainant and of Sri S. Sriram, Advocate for accused and this matter having stood over consideration till this day, this court passed the following:

J U D G M E N T

The SDPO, Nellore Rural PS filed charge sheet against the accused

U/Secs. 323, 506 IPC and Sec. 3(1)(x) of SCs. and STs (POA) Act 1989 in Crime

NO. 168/2009 of Nellore Rural PS, alleging as follows:-

2. The accused does not belong to Scheduled caste or Scheduled Tribe, whereas the defacto complainant belong to ST community and is running welding shop at Prasanthi Nagar, Mypadu road, Nellore. The accused is running a furnace shop adjacent to the welding shop of Kodamala Subramanyam @ Mani/LW1. Both shops belong to Agnigothram Ramanamma/LW5. On 18-4-2009 at about 3.30 p.m.

Sk. Anwar Basha/LW6 who is son of accused went to Kodamala Subramanyam @ 2

Mani/LW1 to make a request for providing work to him stating that his father is not providing money for his needs. For that Kodamala Subramanyam @ Mani/LW1 replied that there was no work for him in his shop. But LW6 remained in the shop of

Kodamala Subramanyam @ Mani/LW1. In the mean time accused went to the shop of LW1, and on seeing Sk. Anwar Basha/LW6 in the shop he thought that Kodamala

Subramanyam @ Mani/ LW1 had engaged his son in the welding shop. The accused became angry towards Kodamala Subramanyam @ Mani/LW1 , abused him in filthy language by raising his caste name as "Neeyamma Yanadi naa kodaka naa koduku cheta pani cheyisthava, nee yamma yanadi naa kodakallara champestha" within public view. The accused took a sledge hammer and tried to beat LW1 on chest. But

Kodamala Subramanyam @ Mani/LW1 pulled out the same from the hands of the accused and threw it away. Again accused took a cutting rod and tried to beat

Kodamala Subramanyam @ Mani/LW1. Then Kodamala Subramanyam @ Mani/LW1 took out the rod from his hands and threw it away. The accused pushed Kodamala

Subramanyam @ Mani/LW1 on the ground, beat him with hands and legs indiscriminately. Kodamala Subramanyam @ Mani/LW1 lost consciousness and

Kammukuti Bujjamma/LW3 sprinkled water on his face and after some time he recovered. Thus the accused insulted and humiliated Kodamala Subramanyam @

Mani/LW1 in public view and the same was witnessed by LWs3, 4 and 6. The neighbours of Kodamala Subramanyam @ Mani/LW1 assured that they would do justice to him. Having waited till 25.4.2009. Kodamala Subramanyam @ Mani/LW1 approached the police as no justice was done to him. The Nellore Rural PS registered the crime against the accused on the basis of the complaint given by

Kodamala Subramanyam @ Mani/LW1 on 26-4-2009. The SDPO, Nellore Rural PS on receipt of authorization proceedings from SP, Nellore conducted investigation in this case. Thus the accused was charge sheeted for the offence punishable U/Secs. 323, 506 IPC and Sec. 3(1)(x) of SCs. and STs (POA) Act 1989.

3. The IV Addl. Judicial Magistrate of I Class, Nellore Rural PS after complying legal formalities, committed the case to this court as the offence U/Sec.

3(i)(x) of SCs and STs (POA) Act 1989 is exclusively triable by the Special Judge for trial of cases Under S.Cs. and S.Ts. (POA) Act 1989.

3

4. On appearance of accused charge U/Secs. 323, 506 IPC and Sec.

3(1)(x) of SCs. and STs (POA) Act 1989 are framed, read over and explained to him in Telugu for which he pleaded not guilty and claimed for trial.

5. During the trial on prosecution side PW1 to PW7 are examined

Exs.P1 to P7 are marked.

6. After closure of evidence by the prosecution, the accused was examined under section 313 Cr.P.C. to explain away the incriminating circumstances appearing in the evidence of prosecution witnesses. The accused branded the evidence of prosecution witnesses as false and stated that he was falsely implicated in this case. However he did not choose to examine any witnesses on his behalf.

7. Now the point for determination is -

Whether the prosecution proved the guilt of the accused for the charge U/Secs. 323, 506 IPC and Sec. 3(1)(x) of SCs. and STs (POA) Act 1989 beyond all reasonable doubt?

8. Heard both sides.

9. P O I N T:

The prosecution case can be summoned up as per the evidence on record as follows:

On 18-04-2009 at about 3.00 p.m. accused went to the shop of

PW1 on suspicion that PW1 getting work done through the son of accused without his knowledge. The accused tried to beat PW1 and further abused him in his caste name as "Nee Amma yanadi naa kodaka naa koduku cheta pani cheyinchukuntava ninnu champestanu nenu". While abusing PW1 accused snatched cutting hammer and tried to beat him, which was pulled out from his hands by PW1 and thrown out. Again the accused pushed him down and beat him with hands and legs, due to which PW1 fell unconsciously. PW3 came and sprinkled water on the face of PW1 and after some time he regained consciousness. PW1 did not give police complaint immediately, as some elders assured him that they would do justice to him. But they did not do any justice to him. On 25-4-2009 at about 1.30 p.m. the accused met PW1 on the road and again abused him and heckled him saying that what could he do. On 26-4-2009 at 11.00 a.m PW1 lodged complaint with police vide Ex.P1 against the accused.

4

10. PW2 is wife of PW1. She used to go to PW1 shop now and then.

She went to the shop of PW1 after the incident was over. She came to know from neighbours that the incident occurred at about 3.30 p.m. PW3 told her that accused abused PW1 by referring his caste name and beat him and went away. According to her, the accused requested PW1 to allow his son to work in his welding shop for which PW1 told him that it is not possible and as such accused became angry with

PW1.

11. According to PW3, about 5 years ago at about 3.30 p.m. the accused came to the shop of PW1 and abused him by raising his caste name for the reason that PW1 employed the son of accused in his welding shop without the knowledge of accused. The accused tried to beat PW1 with hammer and cutting rod.

PW1 pulled lout the same from the hands of accused and threw them away and then accused beat PW1 with hands and legs. due to which PW1 fell unconsciously and regained consciousness after some time only, when PW3 sprinkled water on PW1.

12. According to PW4, about 5 years ago on one day at about 3.00 p.m. he went to the shop of PW1 to bring window grills . The accused came to the shop of PW1 at that time and abused PW1 by referring his caste name as PW1 employed the son of accused in his shop without the knowledge of the accused. The accused tried to beat PW1 with hammer and cutting rod. PW1 pulled out the hammer and cutting rod from his hands and threw it away. Then the accused beat him with hands and legs, due to which he fell down unconsciously and regained consciousness after PW3 sprinkled water on his face.

13. PW5 is one of the attestors of scene observation report which is marked as Ex.P2. According to him on 27-4-2009 at about 9.30 a.m. in his presence police staff and LW8 observed the scene of offence and prepared Ex.P2 wherein he signed as attestor.

14. PW6, the then SI of police, Nellore deposed that on 26-4-2009 at about 14.00 hours PW1 presented written complaint to him basing on which he registered Crime NO. 168/2009 against the accused U/Secs. 323, 506 IPC and Sec.

3(1)(x) of SCs. and STs (POA) Act 1989 and issued FIR vide Ex.P3.

5

15. The Investigating Officer, who conducted investigation was examined as PW7. He deposed that on 20-6-2004 at 17.00 hours the SHO, Nellore

Rural PS registered case in Crime NO. 168/2009 against the accused. On 20.07.2004 he received proceedings from SP, Nellore vide Ex.P4 to conduct investigation in this case. Accordingly he visited the scene of offence which is situated at Prasanthi Nagar,m secured the presence of witnesses PWs1to 4, LWs5 and 6 and recorded their statements and inspected the scene of offence and got prepared Exs.P2 and P5. On receipt of Ex.P6 caste certificate of PW1 and Ex.P7 caste certificate of accused, he laid charge sheet in this case. On 27-7-2009 he arrested the accused and sent him to remand.

16. The defence counsel contended that the evidence of PWs1 to 4 are not consistent with each other and that their evidence is not trust worthy and not reliable to place conviction against the accused. It is further submitted that there is inordinate delay in lodging FIR which was not explained by the prosecution. He argued that if really the said incident had happened as stated by PW1, he would have preferred a complaint immediately but admittedly the complaint was given one week after the incident. It is therefore contended that the evidence of PWs1 to 4 do not inspire the confidence of the Court and benefit of doubt shall be extended to accused.

17. APP argued that the evidence of PWs1 to 4 corroborate with each other with regard to the alleged incident and that their evidence can be safely relied to base conviction against the accused.

18. It is elicited from PW1 in the cross examination that PW1 lodged complaint belatedly on 26-4-2009, though the incident had occurred on 18-4-2009.

He denied the suggestion that taking advantage of his caste, he gave false complaint against the accused to see that he goes to jail. It is elicited from PW2 in the cross examination that she did not state before the police that PW1 told the accused that it is not possible to take his son to work in his welding shop, when accused requested PW1 for job to his son. Admittedly PW2 went to the shop of PW1 at about 3.30 p.m. after the incident. Hence he cannot be treated as eye witness to the occurrence of the incident. His evidence is only hear say evidence. PW3, in the 6 cross examination, stated that there is a road in between her shop and PW1 shop and except herself and her daughter, none witnessed the incident. She denied that the accused son never worked in the shop ofPW1 and accused never bore grudge against PW1. She gave evidence to the effect that she went to the welding shop of

PW1 and found PW1 in unconscious state and then she sprinkled water on him , thereafter he regained consciousness. PW1 in his evidence in chief examination deposed that PW3 came and sprinkled water on his face after he fell down unconsciously. So PW3 must have come to the shop of PW1 after the alleged incident. Further he could not have witnessed what had happened at the shop of

PW1, as her shop is opposite to the shop of PW1 and road is running between the shop of PW1 and PW3.

19. PW4 though stated that he witnessed the incident , his presence at the alleged scene of offence has become doubtful. PW3 deposed that except herself and her daughter, none witnessed the incident. If really PW4 was present at the alleged scene of offence, PW3 would have referred his name also as the person who witnessed the incident. The evidence of witnesses therefore are not consistent and corroborate with each other,as the presence of witnesses at the time of incident has become doubtful,in view of the contradictions crept in the evidence of PWs1 to 4.

20. PW1 spoke about the incident that took place on 25-4-2009 at 1.30 p.m. in his chief examination. According to him accused met him on the road and hacked him. Immediately on the next day he preferred Ex.P1. It shows that till 25.4.2009, PW1 did not think of giving any complaint against the accused with regard to the alleged incident that took place on 18-4-2009. If really the incident as stated by PW1 had occurred in his shop on 18-04-2009, he would have preferred police complaint immediately without waiting for week days. In his complaint marked as Ex.P1, there is no reference about the incident that took place on 25.4.2009. In the cross examination of PW7, it was elicited that the Investigating

Officer has examined village elders whom the complainant approached for justice.

But they did not tell anything in their statements that complainant approached them for justice. No MOs were seized during the investigation. Though prosecution proved that PW1 belongs to SC community vide Ex,P6 and accused belongs to community 7 other than SC or ST. As per Ex.P7, there is no sufficient evidence to show that accused beat PW1 and abused him by referring his caste name. Though independent witnesses are cited and examined in this case, their presence had become doubtful, inview of the reasons mentioned above. The sole testimony of

PW1 cannot be placed reliance to convict the accused. In cases where accused are charged with offences arising out of SC and ST (POA) Act 1989.

21. As per the decision reported in 2006 (1) ALD(Crl.) 324 (AP) it is held that when the alleged offence took place in public view. Conviction cannot be sustained based on solitary testimony of PW1 in respect of offence U/Sec. 3 (i)(x) of

SCs. and STs (POA) Act 1989.

22. Above all the prosecution failed to explain the inordinate delay of one week in lodging complaint by PW1. Though in Ex.P1, there is n reference about the alleged incident that took place on 25-4-2009, PW1 in his evidence stated that the accused beat him on 25-4-2009, while he met him on the road. It appears that

PW1 introduced the alleged incident dated 25-4-2009 only to cover up the delay in lodging the police complaint. None of the witnesses spoke abut the alleged incident that took place on 25-4-2009. The Investigating Officer has not stated anything about the delay occurred in lodging complaint. Hence I am of the opinion that the evidence of PW1 does not inspire the confidence of the Court inorder to come to the conclusion that accused committed the offence alleged against him. I am of the view that accused is entitled to be given benefit of doubt. Hence this point is answered against the prosecution holding that the prosecution failed to prove the charges against the accused beyond all reasonable doubt.

23. In the result, accused is found not guilty and acquitted under

Section 235(1) Cr.P.C. of the charge U/Secs. 323, 506 IPC and Sec. 3(1)(x) of SCs.

and STs (POA) Act 1989. The bail bonds of accused shall stand cancelled. Sureties are discharged.

Dictated to Personal Assistant transcribed by her corrected and pronounced

by me in open court this the 30th day of April 2015.

Special Judge for trial of offences under

the SCs & STs (POA) Act-Cum – V Addl.

Sessions Judge, Nellore.

8

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE;

PW1: V. Subrahmanyam PW2: K. Padmavathi PW3: K. Bujjamma - NONE - PW4: Yeluru Bujjaiah PW5: Yanamala Srihari PW6: T.V. Subba Rao PW7: PV Ravi Kumar

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE;

Ex.P1: Report given by PW1 Ex.P2: Scene observation report Ex.P3: Original FIR Ex.P4: Aurhorization proceedings of SP, Nellore Ex.P5: Rough sketch

Ex.P6: Caste certificate of complainant Ex.P7: Caste certificate of accused

MATERIAL OBJECTS MARKED

- NIL -

Special Judge for trial of offences under

the SCs & STs (POA) Act-Cum – V Addl.

Sessions Judge, Nellore.

1

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES UNDER SCS. & STs

POA Act 1989 cum V ADDITIONAL DISTRICT AND SESSIONS JUDGE :: NELLORE

Thursday this the 30th day of April 2015

Present: Sri T.ANAND,

Special Judge for trail of offences

Under the SCs and STs (POA) Act, 1989 -Cum-V Addl. District & Sessions Judge,

Nellore.

SESSIONS CASE NO. 23 of 2011

(P.R.C.NO.32/2010 of Addl. Judicial. Magistrate of I Class, Kavali connected to Crime No. 22/2009 of Bitragunta Police Station)

Name of the Complaint:State: Sub Divisional Police Officer, Kavali Name of the Accused:1) Peetla Moshe (Abated), s/o Priyanandam, 45 years, r/o Kapparalla Thippa, Bogole Mandal

2) Peetla Sampath Kumar @ Franklin, 40 years s/o Priyanandam, r/o Kapparalla Thippa, Bogole Mandal Offences:Under Sections 341, 324, 506, 376(2)(g) IPC and Sec. 3(1)(x)(2)(v) of SCs and STs (POA) Act 1989 Nature of Offence:Under Sections 341, 324, 506, 376(2)(g) IPC and Sec. 3(1)(x)(2)(v) of SCs and STs (POA) Act 1989 Plea of the Accused:Not found guilty Finding of the Judge:Not found guilty Sentence of Order: In the result, the accused No.2 is found not guilty and acquitted under Section 235(1) Cr.P.C. of the charge U/Secs.341, 324, 506, 376(2)(g) IPC and Sec. 3(1)(x)(2)(v) of SCs and STs (POA) Act 1989. The bail bonds of accused shall stand cancelled. Sureties are discharged. MOs 2 to 5 and 7 shall be destroyed after lapse of appeal time and send the material objects to Trial Court for carrying out the order regarding disposal of the property after lapse of appeal time. MO1 and MO6 are motor cycles sent back to Addl. Judicial Magistrate of I Class, Kavali and the same order holds good. Case against A1 abated, as he died. Prosecution conducted Addl.Public Prosecutor, byNellore Name of the Defence Sri D. Prabhakar Rao, counsel:Advocate

This case was committed to this court by Sri S. Srirama Krishna, Addl.

Judicial Magistrate of I class, Kavali as per orders in P.R.C.No. 32/2010, dated 29-

11-2010 in Crime No. 22/2009 of Bitragunta PS. This Sessions case coming up before this Court on 24-04-2015 for final hearing in the presence of Additional Public Prosecutor for Complainant and of Sri D. Prabhakar Rao, Advocate for accused and this matter having stood over consideration till this day, this court passed the following:

J U D G M E N T

The SDPO. Kavali filed charge sheet against the accused 1 and 2

U/Secs.341, 324, 506, 376(2)(g) IPC and Sec. 3(1)(x)(2)(v) of SCs and STs (POA)

Act 1989 in Crime NO. 22/2009 of Bitragunta PS with the following allegations:- 2

2. The defacto complainant i.e. victim girl by name Gandalla Nagamani is resident of Ramaswamypalem and was aged about 16 years belonging to Yanadi caste. On the night of 10-03-2009 she along with Gandalla Polaiah, Gandalla

Lakshmamma/LWs2 and 3 went to Kondabitraguynta Venkateswara Swamy

Tirunallu and in the said Tirunallu she missed her family members and searched for them, but could not traced them in the heavy crowd. Then she met her villagers and relatives Chowturi Sudhakar, Chevuri Venkateswarlu, Chalamcherla Venkateswarlu and Manikala Vinayakarao/LWs4 to 7 and all of them searched for GandallaPolaiah,

Gandalla Lakshmamma/LWs2 and 3 but invain. After the festival they reached

Kothur village in an auto to go to their village at about 3.00 hours on 11-03-2009.

From there they were proceeding to their village by walk. At that time A1 and A2 who belong to Vaddera caste and residents of Kapparalla Thippa village came behind them on motor cycles and restrained them under threat of coercion and A1 forcibly took the victim girl to nearby tunnel of railway track and committed rape on her by threatening her at the point of knife. A2 restrained Chowturi Sudhakar, Chevuri

Venkateswarlu, Chalamcherla Venkateswarlu and Manikala Vinayakarao/LWs4 to 7 who were present along with victim girl, beat Chevuri Venkateswarlu and Manikala

Vinayakarao/LWs5 and 7 with sugarcane sticks and aided A1 to commit rape on victim girl. Chowturi Sudhakar and Chalamcherla Venkateswarlu/LWs4 and 6 escaped from the clutches of A2 and ran towards village. A2 also attempted to commit rape on the victim girl. But the victim girl escaped from his clutches.

Chowturi Sudhakar, Chevuri Venkateswarlu, Chalamcherla Venkateswarlu/LWs4 to 6 went to the village and brought Potluri Subbaiah, Manikala Polaiah, Potluri Seshaiah and Chevuri Chenchaiah/LWs8 to 11 and some others to the spot. On seeing them

A1 and A2 fled away in one motor cycle leaving the other one at the scene of offence. Gandalla Polaiah/LW2 gave report to the police and the same was registered as Crime No. 22/2009 of Bitragunta PS. After obtaining authorization from SP, Nellore vide C.NO. 89/C3-AL/2009 he conducted investigation in this case.

LW17 the Medical Officer examined Gandalla Nagamani/LW1 and issued certificate that the victim girl was subjected to sexual intercourse. Dr. K. Anuradha, Dental

Assistant Surgeon/LW20 who examined Gandalla Nagamani/LW1 issued certificate 3 opined that the age of the victim girl is about 16 years. A1 subjected to medical examination by Dr. G. Parthasarathi Raju, Medical Officer/LW18 to ascertain his potency. Thus the accused were charge sheeted for the offence punishable

U/Secs.341, 324, 506, 376(2)(g) IPC and Sec. 3(1)(x)(2)(v) of SCs and STs (POA)

Act 1989.

4. On appearance of A1 and A2, charges U/Secs.341, 324, 506, 376(2)(g) IPC and Sec. 3(1)(x)(2)(v) of SCs and STs (POA) Act 1989 are framed, read over and explained to them in Telugu for which they pleaded not guilty and claimed for trial.

5. During the trial on prosecution side PW1 to PW13 are examined

Exs.P1 and P22 besides MOs1 to 7 are marked.

6. After closure of evidence by the prosecution, the accused were examined under section 313 Cr.P.C. to explain away the incriminating evidence appearing in the evidence of prosecution witnesses. They branded the evidence of prosecution witnesses as false and they stated that they were falsely implicated in this case . They did not choose to examine any witnesses on their behalf.

7. Now the point for determination is -

Whether the prosecution proved the charge U/Secs.341, 324, 506, 376(2)(g) IPC and Sec. 3(1)(x)(2)(v) of SCs and STs (POA) Act 1989 against the accused beyond all reasonable doubt?

8. Heard both sides.

9. P O I N T No.1:

On the basis of the evidence on record the prosecution case can be summoned up as follows:

PW1 who is the victim girl approached PW13 and lodged complaint against the accused and the same was registered as Crime No. 22/2009

U/Secs.341, 324, 506, 376(2)(g) IPC and Sec. 3(1)(x)(2)(v) of SCs and STs (POA)

Act 1989 against the accused vide Ex.P1. The victim girl was referred to

Government hospital for medical examination to ascertain her age.

10. PW13 deposed that he visited the scene of offence and observed the scene in the presence of PW10. Ex.P11 is the scene observation panchanama 4 and Ex.P17 is rough sketch. On 19-3-2009 the CI filed alteration memo to add Sec.

3(2)(v) of SC and ST (POA) Act in the Court vide Ex.P18 and accordingly that section was added and as such LW22 handed over the CD file to LW23 as the offence is triable by Spl. Judge for SC and ST (POA) Act 1989. PW13 accompanied

SDPO during the investigation to assist him. Ex.P19 is the authorization proceedings issued by SP, Nellore infavour of SDPO to conduct investigation. Prior to that PW13 examined PWs1 and 9, LWs9 and 11 and recorded their statements. According to

PW13 the SDPO arrested A1 and A2 at RK Dhaba, Kavali on 21-3-2009 in the presence of PW11 and LW16under cover of Ex.P12 and then sent the accused to the

Court for judicial remand and thereafter the accused was sent for medical examination for potency test along with PWs5 and 7. MOs were sent to RFSL,

Guntur for opinion. Ex.P22 is potency certificate of A1, Ex.P23 is RFSL report.

Ex.P24 is caste certificate of PW1. Ex.P25 is caste certificate of A1.

11. PW12 who is Deputy Dental surgeon , Government hospital,

Chittoor deposed that she examined PW1 on 17-3-2009 and issued age certificate basing on examination of teeth vide Ex.A14. As per Ex.A1 she opined that PW1 is aged about 16 years.

12. PW10, the then VRO of SV Palem who attested Ex.P11 scene observation panchanama on 11-3-2009 at 12.00 noon at railway track,

Kondabitragunta along with LW14. At that time MO1 motor cycle of Bajaj Caliber

Red and yellow colour, MO2 six glass pieces, MO3 two used condoms, MO4 two unused condoms, MO5 one comb were seized at the scene of offence.

13. PW11 deposed that he attested arrest cum confession mahazar marked as Ex.P13 along with LW16 at trunk road, Kavali near RK Dhaba and police arrested A1 and A2. Ex.P12 is arrest cum confession mahazar attested by PW11 and

LW16. MO6 is the black colour TVS motor cycle seized in their presence by the police under Ex.P12. PW1 further stated that in pursuance of confession statement of A1 and A2 police recovered MO7 knife from the bushes near railway quarters,

Bogole in their presence under a cover of Ex.P13.

14. The object of making a provision U/Sec. 27 was to permit a certain portion of the statement made by accused to a police officer admissible in evidence 5 whether or not such statement is confessional or non confessional. Needless to say ban against admissibility would stand lifted, if the statement distinctly related to a discovery of fact. The statement which is admissible U/sec. 27 is the one which is the information leading to discovery. Thus what is admissible being information, the same has to be proved and not the opinion formed on it by the police officer. In other words the exact information given by the accused while in custody are leading to recovery of articles has to be proved. In the instant case on hand some MOs were recovered in pursuance of the confession statement of A1 and A2. The inculpatory statement of A1 and A2 other than the information leading to the recovery of MOs are not admissible in evidence as per Sec. 27 of Indian evidence Act. The alleged confession statement is not corroborated by independent witnesses and the signature of the accused are not found in Ex.P12 or in Ex.P13.

15. Coming to the evidence of victim girl and independent witness, none of them supported the version of the prosecution that A1 and A2 forcibly restrain victim girl and others, while they were returning to their village after visiting Kondabitragunta temple and that A1 forcibly committed rape on the victim girl and further A2 attempted to commit rape on victim girl.

16. According to victim girl though she admitted her signature in the complaint shown to her, she deposed that she cannot say in what connection she signed in the complaint. She further stated that police never examined and recorded her statement and she did not give any police complaint against A1 and A2. Further she deposed that she does not know A1 and A2 at all. According to her, she is married woman and having two daughters and living with her husband happily. She denied to have stated before police as in Ex.P2 dated 11-03-2009. PW2 who is father of PW1 deposed that he does not know LWs4 to 11 and accused and also deceased A1. He does not know anything about case facts and denied to have stated before police as in Ex.P3 . PWs3 to 9 in one voice deposed that they do not know anything about the case facts and further they do not know PWs1 to 3 as well as accused and they also denied to have stated before police as in Exs.P4 to

P10.Thus all the material witnesses including victim girl resiled from their earlier statements given to the police and were promptly treated as hostile witnesses by 6 the prosecution. Though prosecution is able to show that the victim girl belongs to

SC community and accused belongs to Vaddera caste, they failed to prove that A1 and A2 committed rape on victim girl, as the victim girl herself stated that she never gave police complaint against A1 and A2 and further she does not know them.

Hence there is no evidence on record to convict the accused for the offence with which they are charged. The point is therefore answered against the prosecution holding that prosecution failed to prove the guilt of the accused for the charges levelled against him beyond all reasonable doubt.

17. In the result, the accused No.2 is found not guilty and acquitted under Section 235(1) Cr.P.C. of the charge U/Secs.341, 324, 506, 376(2)(g) IPC and

Sec. 3(1)(x)(2)(v) of SCs and STs (POA) Act 1989. The bail bonds of accused shall stand cancelled. Sureties are discharged. MOs 2 to 5 and 7 shall be destroyed after lapse of appeal time and MO1 and MO6 are confiscated to state and sent back to

Addl. Judicial Magistrate of I Class, Kavali to carrying out property order pertaining

MOs1 to 7. Case against A1 abated, as he died.

Dictated to Personal Assistant transcribed by her corrected and pronounced

by me in open court this the 30th day of April 2015.

Special Judge for trial of offences under

the SCs & STs (POA) Act-Cum – V Addl.

Sessions Judge, Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE;

PW1: G. Nagamani PW2: G. Polaiah PW3: G. Lakshmamma PW4: Ch. Sudhakar - NONE - PW5: C. Venkateswarlu PW6: Ch. Venkateswarlu PW7: M. Vinayaka Rao PW8: P. Subbaiah PW9: P. Seshaiah PW10: P. Venkata Ramanaiah PW11: J. Mahendra PW12: Dr. K. Anuradha PW13: Sk. Bhajijan Syda 7

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE;

Ex.P1: Signature of PW1 on the complaint Ex.P2: 161 Cr.P.C. statement of PW1 Ex.P3: 161 Cr.P.C. statement of PW2 - NIL - Ex.P4: 161 Cr.P.C. statement of PW3 Ex.P5: 161 Cr.P.C. statement of PW4 Ex.P6: 161 Cr.P.C. statement of PW5 Ex.P7: 161 Cr.P.C. statement of PW6 Ex.P8: 161 Cr.P.C. statement of PW7 Ex.P9: 161 Cr.P.C. statement of PW8 Ex.P10: 161 Cr.P.C. statement of PW9 Ex.P11: Scene observation Panchanama EX.P12: Arrest cum confession mahazar Ex.P13: Seizure mahazar Ex.P14: Age certificate Ex.P15: written complaint of PW1 Ex.P16: Original FIR Ex.P17: Rough sketch Ex.P18: Memo Ex.P19: Authorization proceedings Ex.P20: Wound certificate PW1 Ex.P21: Wound certificate of PWs5 and 7 Ex.P22: Potency certificate of A1 Ex.P23: RFSL report Ex.P24: Caste certificate of PW1 Ex.P25: Caste certificate of A1

MATERIAL OBJECTS MARKED

MO1: Motor cycle of Bajaj Caliber Red and yellow colour MO2: Six glass pieces MO3: Two used condoms MO4: Two unused condoms MO5: One comb MO6: Black colour TVS Suzuki motor cycle MO7: Knife

Special Judge for trial of offences under

the SCs & STs (POA) Act-Cum – V Addl.

Sessions Judge, Nellore.

SC 11 of 2012 - 1 - PRC 21 of 2011 on the file of

JMFC, Atmakur.

IN THE COURT OF SESSION: SESSIONS DIVISION:: NELLORE.

Dated this the 17th day of November, 2014

Present: -T. Anand, M.A.,L.L.B., Spl. Judge for trial of offences under the SCs and STs (POA) Act,1989 -cum-V Addl. Sessions Judge, Nellore. (FAC) VI Addl. District & Sessions Judge, S.P.S.R.Nellore District.

SESSIONS CASE No. 11 of 2012

[P.R.C. No. 21 of 2011 on the file of Judicial Magistrate of First Class, Atmakur, in Crime No.29 of 2011 of Ananthasagaram Police Station, Nellore]

1. Name of the State: Inspector of Police, Atmakur Complainant

2. Names of the Accused Shaik Kalebi Wife of Kalesha, 45 years, Muslim, Resident of Old Post Office Street, Ananthasagaram Mandal Village, SPSR Nellore District.

3. Nature of offence Charge U/ss. 302 and 201 IPC.

4. Plea of the Accused Pleaded not guilty.

5. Finding of the Judge Found not guilty

6. Sentence or Order IN THE RESULT, accused found not guilty and acquitted under Section 235(1) Cr.P.C. of the charges under Sections 302 and 201 I.P.C. The unmarked property if any shall be destroyed after lapse of appeal time. The bail bonds of accused shall stand cancelled. Sureties are discharged.

This case was committed to Sessions Court by the learned Judicial

Magistrate of I Class, Atmakur, SPSR Nellore District, as per orders in P.R.C.

No.21/2011, dated 30.12.2011 in Crime No. 29 of 2011 of Ananthasagaram

Police Station.

This Sessions case came up before me on 12.11.2014 in the presence of Smt. R. Aruna Kumari, Addl. Public Prosecutor for the complainant and of Sri P. Srinivasa Rao, Advocate for the accused, upon hearing both sides,

SC 11 of 2012 - 2 - PRC 21 of 2011 on the file of

JMFC, Atmakur.

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

J U D G M E N T

This case arising out of charge sheet filed by the Inspector of Police,

Atmakur against the accused for the offence under Sections 302 and 201 I.P.C.

in Crime No.29 of 2011 of Ananthasagaram Police Station of Atmakur Circle.

After hearing the learned Additional Public Prosecutor and the defence counsel and going through the material available on record the learned

Magistrate having come to a conclusion that the case is exclusively triable by

Court of Sessions and committed the same to the Principal District Court, Nellore under Section 209(a) Cr.P.C. The Principal District Judge, Nellore numbered it as

S.C.11 of 2012 and made over the same to this Court for disposal according to law.

2. The brief facts of the prosecution case are as under:-

The Inspector of Police, Atmakur filed the charge sheet against the accused in Crime No.29 of 2011 of Ananthasagaram Police Station, alleging that the deceased Shaik Hussain bee was effected with Leprosy decease and she has been residing with the accused who is her daughter. The accused was waiting for an opportunity to get rid of her mother as she was suffering with Leprosy. While so on 30.04.2011, at about 9.00 a.m., when the deceased Hussinbee was about to take her bath, the accused poured kerosene on her body and also on her clothes and ablazed her on file. Since the deceased Hussain bee is old age and suffering with the deceased, she could not raise cries and breathed her last. Then the accused with an intention to cause disappearance of the evidence of offence, packed the dead body of the decased Hussain Bee with the old clothes and threw away the dead body of the deceased Hussainbee in the well of Lw.5.(Shaik @

Naidupalli Mahaboob Basha) and then the accused left the village out of fear.

SC 11 of 2012 - 3 - PRC 21 of 2011 on the file of

JMFC, Atmakur.

On the report of Lw.1(Kulluru Raghupathi Rao) police registered a case in the above crime and investigated into and the investigation revealed that accused is liable for punishment for the offence under Section 302 and 201 I.P.C.

Hence the charge sheet.

2. The udicial Magistrate of First Class, Atmakur after observing formalities under Sections 207 and 209 Cr.P.C., committed the case to the Court of Sessions, Nellore Division under Section 209(A) Cr.P.C, as the offence under

Sections 302 and 201 I.P.C. are exclusively triable by the Court of Sessions,

Nellore.

3. After appearance of the accused before this Court, she engaged counsel and after hearing the learned Additional Public Prosecutor and defence counsel and after going through the material available on record, the accused was examined. Charge under sections 302 and 201I.P.C. are framed, read over and explained to the accused. She pleaded not guilty and claimed to be tried.

4. The prosecution has examined PWs.1 to 13 and got exhibited Exs.P1 to P18.

5. After closure of prosecution side evidence, the accused was examined under Section 313 Cr.P.C. She stated that she does not know anything about the case and she has not chosen to examine any witness on her behalf.

6. Heard the arguments of learned Additional Public Prosecutor and learned counsel for the accused.

7. Now the point for determination is:

“Whether the prosecution has proved the guilt of the accused for the charged offence under Sections 302 and 201 I.P.C. beyond all reasonable doubt”

8. POINT:

The case of the prosecution is that, the accused caused death of her own mother Shaik Hussainbee on 30.4.2011 at 9.00 a.m. at Ananthasagaram

SC 11 of 2012 - 4 - PRC 21 of 2011 on the file of

JMFC, Atmakur.

village by pouring kerosene on her body and cloths and set her ablaze due to which, the deceased died and further on the same day, in order to cause disappearance of the evidence of murder, the accused threw the dead body into the well of one Mahaboob basha to escape legal punishment.

(ii) Pw.1 was VRO of Ananthasagarm village. As per his evidence, he knows the deceased Hussainbee and the accused. On 1.5.2011, when he was proceeding to his office at about 4.00 p.m., he came to know that accused had killed her own mother deceased Hussainbee by setting her ablaze by pouring kerosene on her and litting fire. He further stated that the said Hussainbee was suffering from leprosy and for that reason, the accused could not perform the marriages of her daughter. According to him, he went to the scene of offence which in the Post Office locality and noticed the dead body of the Hussainbee in the well situated on the back side of the accused and there-after as a VRO, he lodged police complaint vide Ex.P1. He also attested Ex.P2 which is inquest panchanama on 2.5.2011 at 8.00 a.m., and one Khasim Basha and Imamuddin also attested the same. However, in the cross-examination, he stated that he did not mention in Ex.P1 that while he was proceeding to his office, he came to know that the accused has killed the deceased Hussainbee. He even went to the extent of saying that he does not now the deceased Hussainbee and how she died.

(iii) It is stated by Pw.1 that Ex.P2 was prepared not at the scene of offence but at the post office locality. He admitted that in Column No.5 of Ex.P2, it is stated that dead body was fully burnt and beyond identification. He admitted that as the dead body was fully burnt, there is no proof that the body belongs to

Hussainbee. He further stated that at the time of inquest panchanama, blood relatives of the deceased Hussainbee were not present.

(iv) Pws.2 and 3 deposed that they lifted the dead body from the well at

Saibulapalem and the dead body was in a burnt condition. They came to know that the dead body belongs to accused mother. But they do not know how the

SC 11 of 2012 - 5 - PRC 21 of 2011 on the file of

JMFC, Atmakur.

deceased Hussainbee died. They denied to have stated before the police as in

Exs.P3 and P4.

(v) Pws.4 to 6 in one voice deposed that they do not know the deceased Hussainbee and accused and they were not examined by the police.

They denied to have stated before the police as in Exs.P5 to P7 respectively.

(vi) Pw.7 denied that inquest was conducted in his presence and in the presence of Pw.1 and one Basha on 2.5.2011. He admitted the signature as

Ex.P8 in Ex.P2. He denied that he stated in inquest report that accused poured kerosene on the deceased and set her ablaze by litting fire. In the cross examination, Pw.7 stated that at the instance of Police, he signed inquest report at Bazar Centre and he does not know the contents in Ex.P2.

(vii) Pw.8 deposed that he does not know the deceased Hussain bee and accused and how the deceased died. She denied to have stated before the police as in Ex.P9.

(viii) Pw.9 deposed that on 4.5.2011, at 8.30 a.m., he received information from Aanthasagaram police station to act as mediator. Along with him Lw.4(Kaki Penchalaiah) was also present. He identified the accused in the open court. Inspector of Police recorded the statement of accused in the presence of himself and Lw.14 (Pulikollu Bhaskar Rao) at the Police Station vide

Ex.P10. The accused also put her thumb impression on Ex.P10 having received copy of statement.

(ix) Pw.10, the then constable of Ananthasagaram Police Station deposed that Inspector of Police handed-over the dead body of the deceased to him on 2.5.2011 for Post Mortem examination and he took the dead body to

Atmakur Government Hospital. On the same day Post Mortem was conducted over the dead body and handed over the dead body to his blood relatives on the same day.

(x) Pw.11, the then Sub Inspector of Police, Ananthasagaram deposed that on 1.5.2011, he received complaint from Pw.1 at 6.00 p.m., and thereafter,

SC 11 of 2012 - 6 - PRC 21 of 2011 on the file of

JMFC, Atmakur.

he registered the same as Crime No.29 of 2011 on the same day at 18.30 hours vide Ex.P11 original F.I.R.

(xi) Pw.12 the then CI of Police Podalakur Circle deposed that as in- charge of Atmakur circle, he received Ex.P11 on 1.5.2011 from Pw.11, visited the scene of offence and posted guard at the scene of offence and on 2.5.2011, again he visited the scene of offence at 6-00 hours and observed the scene of offence, prepared rough sketch vide Ex.P12, secured mediators for scene observation report, conducted inquest in the presence of panchayatdars, examined Pws.1 to 6 and conducted inquest on 4.5.2011 in the presence of Pw.9 and Lw.14. He further deposed that Pw.1 gave statement before him vide Ex.P14 and the same was recorded in the presence of Pw.9 and Lw.14 vide Ex.P10 and thereafter arrested accused in the presence of Pws.9 and Lw.14 and sent her for judicial custody.

(xii) Pw.13 K. Venkateswara Rao, the then CI of police, Atmakur deposed that on 26.6.2011, he examined Lw.15 (Chintagunta Venkateswarlu) and recorded his statement and collected CD and photographs, vide Ex.P16. After receipt of RFSL report, handed-over the same to Medical Officer for final opinion under Ex.P17. After receipt of medical opinion, he filed the charge sheet. Ex.P18 is the Post Mortem Report marked through Pw.13.

9. As seen from the evidence on record, none of the witnesses gave evidence to the effect that accused murdered her own mother by setting her ablaze, as she was suffering from leprosy. There is no direct evidence to show that the accused killed the deceased.

10. The doctor who conducted autopsy over the dead body of the deceased was not examined in this case and the Post Mortem certificate was marked through Pw.13, as defence counsel reported no objection. As per Ex.P18, the body of the deceased was in charred condition and right hand, right foot right lower limb and right upper arm were missing. The right upper arm and fore arm

SC 11 of 2012 - 7 - PRC 21 of 2011 on the file of

JMFC, Atmakur.

are in burnt condition and it is opined that the cause of death of the deceased was due to Hypo Volemia and shock due to burns.

11. Thought the prosecution is able to prove that the deceased died due to burnt injuries, there is no evidence on record to show who had killed her and thrown the dead body into the well. Hence this point is answered holding that prosecution failed to prove the guilt of the accused beyond all reasonable doubt.

12. IN THE RESULT, accused found not guilty and acquitted under

Section 235(1) Cr.P.C. of the charges under Sections 302 and 201 I.P.C. The unmarked property if any shall be destroyed after lapse of appeal time. The bail bonds of accused shall stand cancelled. Sureties are discharged.

Dictated to Senior Assistant, transcribed by her, corrected and pronounced by me

in open Court, this the 17th day of November, 2014.

Sd/- T. Anand

VI Addl. District & Sessions Judge,

Nellore.

Appendix of Evidence

Witnesses Examined

for Prosecution: - Pw.1: P. Raghupathi Rao

Pw.2: M. Venkaiah Pw.3: B. Chinnaiah

Pw.4: Sk. Mahaboob Basha Pw.5: Sd.Vali Ahammed

Pw.6: M. Khadar Masthan Pw.7: Sk. Imam Mohiddin

Pw.8: M. Fakrusha Pw.9: A. Janardhan Rao Pw.10: Sk. Shahul Ahmed

Pw.11: C.V.Ramanaiah Pw.12: K. Ravi Kumar

Pw.13: K. Venkateswara Rao for Defence: - NONE –

SC 11 of 2012 - 8 - PRC 21 of 2011 on the file of

JMFC, Atmakur.

Documents marked

for Prosecution: - Ex.P1: Complaint given to police

Ex.P2: Inquest report contains the signature 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 to P7: 161 Cr.P.C. statements of Pws.4 to 6 Ex.P8: signature of Pw.7 in inquest report

Ex.P9: 161 Cr.P.C. statement of Pw.8

Ex.P10: confessional statement of Pw.8 Ex.P11: F.I.R. in Crime No.29 of 2011 of Ananthsagram Police Station.

Ex.P12: Rough sketch Ex.P13: Scene observation report Ex.P14: statement of the accused

Ex.P15: letter given by Pw.1 Ex.P16: two photos with CD

Ex.P17: RFSL Report Ex.P18: Post Mortem Certificate.

for Defence: - - NIL –

Material Objects marked

NIL

Sd/- T. Anand

VI Addl. District & Sessions Judge,

Nellore.

Copies to:-

1.The Registrar (Judl.) High Court of A.P., Hyderabad.

2.The Director of Prosecution A.P., Hyderabad.

3.The District Collector, Nellore.

4.The Superintendent of Police, Nellore.

5.The Judl. Magistrate of First Class, Atmakur

6.The Addl.Public Prosecutor., VI ADJ’s Court, Nellore

7.The Station House Officer, Ananthsagaram Police Station, Nellore.

1

IN THE COURT OF THE V ADDITIONAL DISTRICT JUDGE: NELLORE

Thursday this the 30th day of April 2015

Present: Sri T.ANAND, M.A., L.LB., V Additional District Judge, Nellore

Original SUIT No.228/2013

Thulasi Chandra Sekhar, s/o Brahmaiah Guptha, 45 years, businessman, r/o Kamakshi Nivas, behind Bezawada Gopal Reddy Statue,

Mini Bypass road, Nellore .. Plaintiff

Vs.

1) Adapala Ranganadham, s/o late Satyanarayana, 62 years, r/p Balaji Nagar, Nellore

2) Kanisetty Ram Kumar, s/o Venkata Subba Rao,

37 years, Trader, r/o Nawabpet, Nellore ... Defendants

This suit coming on 29-04-2015 for final hearing before this Court in the presence of Sri. Pothuraju Venugopal, advocate for Plaintiff and of Sri M. Leela Mohan, Advocate for 2nd defendant and 1st defendant having been called absent, set exparte and having stood over for consideration till this day this Court delivered the following:

J U D G M E N T

Suit filed for specific performance praying to direct the defendant to receive balance consideration of Rs.35,00,000/- and to execute registered sale deed conveying the plaint schedule property in favour of the plaintiff and delivered possession of the schedule property to the plaintiff or in the alternative direction to the defendant to return the advance amount of Rs.1,10,00,000/- together with subsequent interest from the date of agreement of sale dated 27-02-2013 till the date of realization against the person and property of defendant (1,29,65,333.34 ps).

2. The plaint averments are as follows:

The defendant is the absolute owner of the plaint schedule property which is house property and the same was offered to sell to the plaintiff and plaintiff agreed to purchase the same for Rs.1,45,00,000/-. The defendant borrowed

Rs.1,10,00,000/- from the plaintiff’s firm by name Platinum products, Nellore detailed below:

Dated 11-05-2010 for a sum of Rs.20,00,000-00 (Twenty lakhs)

Dated 16-05-2010 for a sum of Rs.10,00,000-00 (Ten lakhs)

Dated 19-05-2010 for a sum of Rs.20,00,000-00 (Twenty lakhs)

Dated 05-06-2010 for a sum of Rs.5,00,000-00 (Five lakhs)

Dated 21-06-2010 for a sum of Rs.10,00,000-00 (Ten lakhs)

Dated 01-07-2010 for a sum of Rs.10,00,000-00 (Ten lakhs)

2

Dated 11-05-2010 for a sum of Rs.20,00,000-00 (Twenty lakhs)

Dated 02-07-2010 for a sum of Rs.15,00,000-00 (Fifteen lakhs)

Dated 12-08-2010 for a sum of Rs.20,00,000-00 (Twenty lakhs)

------------------------------ Total Rupees Rs.1,10,00,000-00 (Rupees one crore ten lakhs only) -------------------------------

3. The defendant requested the plaintiff to convert the borrowed amount of Rs.1,10,00,000/- as advance amount towards sale consideration of the plaint schedule property and plaintiff agreed for the same. On 27-2-2013 the defendant executed a stamped agreement of sale infavour of the plaintiff in respect of plaint schedule property. The plaintiff has to pay the balance sale consideration and obtained sale deed from defendant within 10 months i.e. from the date of agreement. The plaintiff requested the defendant for several times to receive balance amount, but the defendant postponing to receive the same on one pretext or the other. The plaintiff is always ready and willing to perform his part of contract. The plaintiff got issued lawyers notice on 22-11-2013 to the defendant calling upon him to receive balance sale consideration and to execute registered sale deed. It is alleged that the defendant is making efforts to sell away the plaint schedule property to 3rd parties for higher amount and as such the plaintiff was constrained to file the present suit.

4. The 1st defendant remained exparte and 2nd defendant filed written statement contending as follows:

The 2nd defendant admitted the ownership of 1st defendant in respect of schedule property and further admitted that 1st defendant was in possession and enjoyment of the same prior to auction sale held by the State Bank of Hyderabad,

Nellore. It is submitted that 1st defendant mortgaged the suit property and other properties to M/S, State Bank of Hyderabad, Head Office GUN FOUNDARY, Hyderabad

Branch office at Stonehousepet, Nellore long prior to 2010 and borrowed huge amounts and became indebted to the bank which is a secured creditor. The debt attracts special provisions of Securitization Act as auction sale conducted under Securitization Act is binding on 1st defendant, and it dates back to the date of creating a mortgage infavour of the bank by 1st defendant. The bank took all necessary steps under Act 54 of 2002 (Securitization) and took possession of the suit schedule property from 1st defendant and put the property to sell in public auction by giving the wide publicity by way of publication in news paper. The plaintiff and his wife participated in the public auction

3

held by the bank in respect of the schedule property at Nellore on 15-4-2015. The 2nd defendant became highest bidder having knocked down the bid for Rs.1,43,45,678/-.

The salel was confirmed infavour of 2nd defendant. The bank authorities executed registered sale deed infavour of 2nd defendant on 15.5.2014 vide doc No. 1956/2014 and also delivered vacant possession of the property. Thus 1st defendant’s title to the suit property was transferred to 2nd defendant under the provisions of Securitization Act which is Central Act. The sale deed executed by bank infavour of 2nd defendant destroys the rights over the said property except infavor of 1st defendant by the operation of provision of Securitization Act. The defendant is not aware of entering into agreement between plaintiff and 1st defendant. The suit for specific performance has become infructuous inview of the auction sale conducted by the bank. The other alternative prayer of plaintiff has to be decided on merits. The plaintiff is therefore not entitled for directions to 1st defendant to execute registered sale deed in his favour. It is therefore prayed to dismiss the suit.

5. Basing on the above pleadings the following issues are settled for trial.

1) Whether the plaintiff is entitled for ? 2)To what relief?

6. During the trial on plaintiff side PW1 was examined and Exs.A1 to A6 are marked. 2nd defendant reported no evidence.

7. ISSUE No.1:

PW1 in his evidence stated that the 1st defendant earlier borrowed

Rs.1,10,00,000/- as per the details given below-

Dated 11-05-2010 for a sum of Rs.20,00,000-00 (Twenty lakhs)

Dated 16-05-2010 for a sum of Rs.10,00,000-00 (Ten lakhs)

Dated 19-05-2010 for a sum of Rs.20,00,000-00 (Twenty lakhs)

Dated 05-06-2010 for a sum of Rs.5,00,000-00 (Five lakhs)

Dated 21-06-2010 for a sum of Rs.10,00,000-00 (Ten lakhs)

Dated 01-07-2010 for a sum of Rs.10,00,000-00 (Ten lakhs)

Dated 11-05-2010 for a sum of Rs.20,00,000-00 (Twenty lakhs)

Dated 02-07-2010 for a sum of Rs.15,00,000-00 (Fifteen lakhs)

Dated 12-08-2010 for a sum of Rs.20,00,000-00 (Twenty lakhs)

------------------------------ Total Rupees Rs.1,10,00,000-00 (Rupees one crore ten lakhs only) -------------------------------

4

from plaintiff company and later he agreed to sell the suit property to plaintiff by requesting the plaintiff to treat the borrowed amount of Rs.1,10,00,000/- as advance under the agreement for which PW1 agreed and Ex.A1 was executed on 27-2-2013 where under it is mentioned that plaintiff received Rs.1,10,00,000/- as advance amount. It is the further case of PW1 that having entered into agreement of sale, failed to receive balance amount of rs.35,00,000/- to execute registered sale deed, though

PW1 was ready and willing to pay the amount. It is the evidence of PW1 that he sent legal notice to 1st defendant to receive the balance amount and execute sale deed in his favour. Ex.A2 is the office copy of legal notice, Ex.A3 is the letter Ex.A4 is copy of registration certificate of the plaintiffs firm. Ex.A5 is certified copy of partnership; deed,

Ex.A6 is sale deed executed infavour of 2nd defendant by State Bank of Hyderabad under

Securitization Act. It is the case of PW1 that though he is ready to perform his part of contract by keeping the amount ready, it is 1st defendant who failed to fulfill his obligation arising out of Ex.A1. 1st defendant did not contest the suit and remained exparte. 2nd defendant filed IA 262/2014 to get himself impleaded in the suit and accordingly said petition was allowed on 3-9-2014. No evidence let in by 2nd defendant.

It is the submission of 2nd defendant counsel that PW1 admitted execution of sale deed by the bank in respect of same property and as such no evidence is required to be adduced by 2nd defendant. In the cross examination PW1 had admitted that 2nd defendant has become highest bidder in the auction conducted by State Bank of

Hyderabad, Nellore under Securitization Act in respect of suit property and sale deed was executed by State Bank of Hyderabad infavour of 2nd defendant and possession also was delivered. Infact PW1 marked certified copy of sale deed executed by State Bank of

Hyderabad infavour of 2nd defendant as Ex.A6. So there is no dispute that 1st defendant mortgaged the suit property infavour of State Bank of Hyderabad, Nellore and State

Bank of Hyderabad inturn conducted auction sale under Securitization Act to recover the debts and that in the auction sale 2nd defendant became highest bidder.

8. The counsel for plaintiff submitted that the plaintiff has given up claim with regard to para 12-A relief and counsel endorsed on the plaint to the same effect that the plaintiff is only seeking refund of the advance amount of Rs.1,10,00,000/- from 1st defendant under agreement. 1st defendant remained exparte and did not contest the matter and as such it has to be held that 1st defendant received Rs.1,10,00,000/- as

5

advance under Ex.A1. Plaintiff is therefore entitled to seek refund of the amount with interest. Accordingly this issue is answered infavour of plaintiff holding that plaintiff is entitled to get refund of advance amount of Rs.1,10,00,000/-.

9. ISSUE NO.2:

In view of my findings on issue No.1 the suit is decreed with costs for an amount of Rs.1,10,00,000/- with interest at 12% p.a. on Rs.1,10,00,000//- from the date of suit till the date of decree and thereafter at 6% p.a. from the date of decree till the date of realization.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in the Open Court, this the 30th day of April 2015.

V ADDITIONAL DISTRICT JUDGE

NELLORE

APPENDIX OF EVIDENCE

WITNESSES ARE EXAMINED

For Appellant: For respondent:

PW1: Thulasi Chandra Sekhar - NONE-

DOCUMENTS MARKED

On plaintiffs side:

Ex.A1; Original agreement of sale dated 27-02-2013 Ex.A2: Office copy of legal notice dated 22-11-2013 Ex.A3: Letter head of firm showing the borrowing of amounts by the defendant from his firm - NIL - Ex.A4: Copy of registration certificate Ex.A5: CC of partnership deed Ex.A6: CC of sale deed infavour of 2nd defendant

V ADDITIONAL DISTRICT JUDGE

NELLORE