Sri V.Venkata Seshu Babu

IN THE COURT OF I ADDITIONAL DISTRICT JUDGE, KURNOOL

Present: - Sri. V. Venkata Seshu Babu I Additional District Judge, Kurnool.

Thursday, the 29th day of March, 2018.

Original Suit No.35/2010

1. B.Krishna Murthy, S/o.Venkataiah, aged About 57 years, Hindu, Employee, Resident of H.No.86/424-P71-Doctors Colony, Kurnool.

2. B.Vijay Kumar, S/o.Venkataiah, aged about 48 years, Hindu, Employee, resident of H.No.40/3-4-7B, Ice Factory Lane, Bhagyanagar, Kurnool. …Plaintiffs

Versus

1. Smt.M.Padmalatha W/o.Dr.M.Padmanabha Raju, Aged 67 years, Hindu, Living on property, Native of Kurnool, but now residing at D.No.4459/BRIER, GLEN DRIVE (AL)-35243 (USA)

2. Dr.Sri.P.Veerabrahmam Prathikanti, S/o.Late P.Yellama Raju, aged about 72 years, Hindu, Medical Officer, resident of 2116, 18th street, San – Franscisco, CA 94107, USA.

3.Smt.B.Lakshminarasamma, W/o.Late Sri B.Venkataiah, Aged about 82 years, Hindu, living on property, Residing at D.No.40-313-A, Bhagyanagar, Kurnool Town. … Defendants

This suit coming on 23.3.2018 for final hearing before me in the presence of Sri D.Yella Reddy and Sri Abdul Kareem, Advocates for plaintiffs and of Sri M.D.Y.Rama Moorthy, and Sri M.D.V.Jogaiah Sarma,

Advocates for D1, M/s.G.Chalapathi Rao, A.Anil Kumar, M.Jaffar Hussain

Baig, Advocates for D2 and Sri M.Indra Vijaya Rao, Advocate for D3, upon hearing and perusing the material on record and having stood over for consideration, this court delivered the following:

J U D G M E N T

01.Plaintiffs 1 & 2 filed suit for declaration of title in favour of first plaintiff for Item No.1 and in favour of 2nd plaintiff for Item No.2 subject to limited rights to the D3 to enjoy the property and for 2 consequential injunction restraining the D2 & 3 from alienating the suit schedule property and for costs.

02.The brief facts of the plaint are that D1 to D3 are the children of late P.Subbamma and plaintiffs 1 & 2 are the children of D3.

Late P.Subbamma was the absolute owner of the suit schedule properties having purchased Item No.1 under Registered sale deed dt.5.9.1981 from one Smt.Shaila Bai and Item No.2 under a Registered sale deed dt.7.6.1982 from one B.Subbaiah. On 14.2.2003, late

P.Subbamma executed an unregistered Will deed in sound disposing state of mind, bequeathing Item No.1 of the suit schedule property in favour of 1st plaintiff and Item No.2 of the suit schedule property in favour of 2nd plaintiff with life interest in favour of D3 and vested the reminder to the plaintiffs as stated supra; so also, bequeathed her other self acquired properties in favour of 2nd defendant. The testator died on 14.6.2004 at Ayyalur village. As per the Will deed, D3 has been enjoying the plaint schedule properties with limited rights. As per the

Will deed Item No.1 was only a house with ground floor and as it required repairs, first plaintiff with the permission of testator, and as she intended to bequeath the same in his favour, attended repairs and also constructed two more floors. Now, third defendant is residing in the ground floor with other two brothers of the plaintiffs and first plaintiff till recently lived in the top floor. Likewise Item No.2 also required extensive repairs and so, the 2nd plaintiff repaired and reconstructed the Item No.2 by spending Rs.5 lakhs from his pocket and residing with his family. While matters stood thus, plaintiffs came to know that out of collusion between D1 to 3, the D1 filed suit for partition in O.S.5/2010 on the file of IV Additional District Judge, Kurnool 3 relating to all the suit schedule properties herein and other properties of Subbamma suppressing the Will dt.14.2.2003. The suit was referred to Lok-Adalat and compromise decree was passed on 23.2.2010, in which Item No.1 of the suit schedule property herein was allotted to D3 and Item No.2 was allotted to D2 with other properties and cash of Rs.3 lakhs was given to D1 towards her share. The plaintiffs herein are not parties to the said suit. As such plaintiffs are entitled to ignore the said suit and also no importance can be attached to the decree. It is further mentioned that 2nd defendant filed OS.595/2007 on the file of Principal

Senior Civil Judge, Kurnool against first plaintiff herein and another for

cancellation of registered sale deed in respect of the land in

Sy.No.212/B of Mamidalapadu village executed by first plaintiff. In the said suit D2 herein based his claim under the Will dt.14.2.2003 and now the plaintiffs are relying on the same Will. The photo copy of the said will was served on the first plaintiff herein in OS.595/2007. On 20.6.2009, D3 got issued legal notice through Sri Viswanatha Reddy,

Advocate, Kurnool to the plaintiffs herein and others for which suitable reply dt. 1.7.2009 was given. In the notice D3 admitted the execution of Will dated 14.2.2003 by her mother late P.Subbamma. Therefore, the execution of the said will deed is not in dispute. However, on account of the recent misunderstandings between the plaintiffs on one hand and D1 to 3 on the other, the defendants have filed OS.5/2010 and obtained a decree. D3 is claiming that she was authorized by D2 to negotiate the sale of the suit schedule properties. The third parties are visiting and making enquiries for the purchase of the same; hence, the suit.

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03.D1 filed written statement and brief averments of the same are that plaintiffs are put to strict proof of all the averments made in the plaint, except those that are admitted. The Will Deed dt.14.2.2003 is a rank forgery brought into existence after the death of

Smt.P.Subbamma. First plaintiff is playing fraud on the D2 & 3 by showing the photo copy of the created will and to her knowledge late

P.Subbamma never executed any Will. If really she wanted to execute any will deed, she would not have favoured only the plaintiffs who are earning members by ignoring other two sons of third defendant who have no source of income. The death of Subbamma on 16.6.2004 at

Ayyalur village is admitted. The D1 to 3 being the children of late

P.Subbamma alone are entitled for the properties of their mother and there is nothing wrong to file OS.5/2010 and to record the compromise therein. Plaintiffs 1 & 2 who are being the children of D3 cannot be made as parties to the partition suit, when D3 was alive. D1 has no personal knowledge about the OS.595/2007 filed by D2 herein against the first plaintiff herein. On enquiries, D1 came to know that first plaintiff misused the Power of Attorney executed by D2 in his favour and by using the same alienated the property to his own daughter and got it compromised. In the said suit, first plaintiff created the unregistered will deed dt.14.2.2003 said to have been executed by late

P.Subbamma and by using the same played fraud on the court and also on the defendants. With these pleas prayed for dismissal of the suit with costs.

04.The brief averments of the written statement D2 are that late P.Subbamma who is his mother never executed any Will deed dt.14.2.2003. The suit in OS.5/2010 is not a collusive one and plaintiffs 5 herein have no right to question the suit that ended in compromise. D2 filed OS.595/2007 on the file of Principal Senior Civil Judge, Kurnool against 1st plaintiff herein and his daughter for cancellation of

Registered sale deed, touching the land in Sy.No.212/B of

Mamidalapadu village executed by first plaintiff in favour of his daughter. Even though claim was based on the alleged will deed dt.14.2.2003, in fact there is no such will deed at all. It is nothing but a creation of plaintiffs herein made with ill intention to knock away the properties. It is ploy of first plaintiff in OS.595/2007 and he made the

D2 herein to believe about the existence of Will deed dt.14.2.2003. The first plaintiff herein got filed OS.595/2007 through D2 herein with a dishonest intention to bring into currency the alleged will. D2 has neither seen the alleged will nor in custody of it, at any point of time.

Taking advantage of the dependence of D2 on the first plaintiff herein, to up keep his properties left behind P.Subbamma, first plaintiff spun a false story of Will. When D2 questioned the first plaintiff in the creation of Registered sale deed dt.16.11.2006 in favour of his daughter and warned them with criminal action, first plaintiff agreed to cancel the document and so, OS.595/2007 was compromised. With these pleas prayed for dismissal of the suit.

05.D3 filed written statement and it is almost similar in all respects with the written statement of D1 & D2. D3 is unaware of the

OS.595/2007 and O.S.5/2010 is a rightful suit and they are entitled for

the properties of late P.Subbamma and plaintiffs herein cannot question the compromise decree dt.23.2.2010. There is no cause of action to the present suit. First plaintiff being educated person, besides government servant working as Quality Inspector in FCI played fraud on the other family members. Late P.Subbamma died intestate. First 6 defendant is settled in USA as such cash was given to her towards her share and got compromise recorded in OS.5/2010. With these pleas prayed for dismissal of the suit with costs.

06.Basing on the above pleadings, the following issues have been settled for trial:

1. Whether the plaintiff is entitled to declaration of their right over the plaintiffs 1 and 2 schedule properties as prayed for ?

2. Whether the plaintiffs are entitled to consequential permanent injunction as prayed for?

3. To what relief?

07.To prove their case, PWs.1 to 4 are examined and Exs.A1 to

A16 are marked for the plaintiffs. The evidence of PW2 was eschewed as per docket orders dt.19.1.2017. DWs.1 & 2 are examined and Exs.B1 to B4 are marked on their behalf (through PW1). The evidence of

DW3/D3 was eschewed as per docket orders dt.8.11.2017.

08.Individual Written arguments are filed by all parties.

09. ISSUE NO’S.1 & 2:

Admittedly, late P.Subbamma, wife of Yellam Raju is the mother of

D1 to 3. 1st and 2nd defendant have been residing in the United States for the last more than 2 decades. Third defendant is having four sons and two daughters. Plaintiffs 1 & 2 are the sons of D3/DW3. One of the daughters of D3 completed B.Sc., besides Nursing Course and doing job. Another daughter by name Renuka Devi is working as Health

Supervisor. DW1 discontinued 8th class and DW2 discontinued

Intermediate. Whereas PW1/1st plaintiff completed B.Sc. B.Ed. It means all the children of DW3 are literates and they can certainly read and write Telugu; whereas Pws.1, and two sisters can be imputed with the knowledge of even reading and writing English. 2nd plaintiff has got the 7 job on compassionate grounds due to the death of his father, as attender in Collectorate. It may as it be there.

10.Admittedly, plaint schedule consists of two items i.e. Item

No.1 Residential House bearing Door No.40/313-A and Item No.2

Residential House bearing Door No.40-304-7B, and both are situated at

Bhagya Nagar, Kurnool Town. It is the contention of the plaintiffs that suit schedule properties are the absolute properties of the late

P.Subbamma who is their material grand mother and under un- registered Will Deed dt.14.2.2003, she bequeathed Item No.1 in favour of first plaintiff/PW1 and Item No.2 in favour of 2nd plaintiff, with life interest in favour of D3 to enjoy the property till her death.

Admittedly, the testator late P.Subbamma died on 14.6.2004 at Ayyalur village in Nandyal Mandal. It is the contention of PW1 that, though he became absolute owner of the Item No.1 after the death of testator, but as the Item No.1 required lot of repairs on the date of execution of Will and as it was intended to bequeath in his favour, attended extensive repairs and even constructed 1st and 2nd floor by taking loans and with his personal earnings. It means even before PW1 became absolute owner of the property, renovated the Item No.1 and even constructed two floors. It is also pleaded in the plaint that like PW1, the 2nd plaintiff also reconstructed and repaired the Item No.2 with his own funds to the tune of Rs.5 lakhs and residing therein with the family.

11.Admittedly, originally unregistered Will Deed dt.14.2.2003 is not filed before the court and photo copy is only filed and marked as

Ex.A1, subject to proof and admissibility, because it is the contention of plaintiffs that original Will deed is with 2nd defendant and a notice was also even served on D2 counsel to produce the original, but it was not 8 produced on the ground that it is a fictitious Will and original never in the hands of D2.

12.It is the contention of the plaintiffs that 2nd defendant filed

OS.595/2007 against 1st plaintiff and his daughter, where under referred

Ex.A1 Will to establish his title over the subject matter of the property; that third defendant referred Ex.A1 Will deed in Ex.A4 legal notice dt.20.6.2009 demanding plaintiffs to pay rents on the Items No.1 & 2 to her, as she was having life interest to enjoy the property under the

Will; that 2nd defendant executed Registered sale deed under Ex.A13 dt.18.8.2008 in favour of M/s.Lakshmi Venkatesh, T.G.College of

Nursing, Kurnool, stating that he got the property under Ex.A1 Will deed; and that first defendant by suppressing the Will deed filed

OS.5/2010 for partition against D2 and D3 herein, relating to the

properties of late P.Subbamma and by referring the same to the Lok-

Adalat a compromise decree was passed, but it is a collusive suit and decree. It may as it be there.

13.The counsel for D3 relied upon citation reported in:

2017 (5) ALT 35 (SC)

Bharvagi Constructions and another Vs. Kothakapu Muthyam Reddy

and others.

CIVIL PROCEDURE CODE, 1908, Order 7 Rule 11(d) – Legal Services Authority Act, 1986, Section 21 – Challenge to compromise decree – Rejection of plaint – In our considered view, the aforesaid law laid down by this Court is binding on all the Courts in the country by virtue of mandate of Article 141 of the Constitution – This Court, in no uncertain terms, has laid down that challenge to the award of Lok-Adalat can be done only by filing a writ petition under Article 226 and / or Article 227 of the Constitution of India in High Court and that too on very limited grounds – In the light of clear pronouncement of the law by this 9

Court, we are of the opinion that the only remedy available to the aggrieved person ( respondents herein/plaintiffs) was to file a writ petition under Article 226 and /or 227 of the Constitution of India in the High Court for challenging the award dated 22.8.2007 passed by the Lok-Adalat – It was then for the writ Court to decide as to whether any ground was made out by the writ petitioners for quashing the award and, if so, whether those grounds are sufficient for its quashing.

In view of the above case law, it is clear that this court is not competent to decide whether OS.5/2010 is a collusive suit?

14.Coming to the knowledge of 2nd defendant about the disputed Will. I am reiterating at the cost of repetition that D1 to D3 have categorically and crystal clear terms stated in their respective written statements that the disputed Will deed was never executed by their mother late P.Subbamma at any time.

15.The plaintiffs’ counsel relied upon citation reported in:

2017 AIR (SC) 494

Ramesh Verma (D)TR. LRs. Vs. Lajesh Saxena (D) by LRs and another.

Hindu Succession – Proof of Will – A Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.

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As per the above judgment irrespective of the defendants questioning the genuineness of the Will deed, the propounder shall prove the same within the Provisions of Section 68 of Indian Succession

Act. Therefore, heavy burden casts upon the plaintiff to prove Ex.A1.

16.The counsel for D3 relied upon citation reported in :

2013 (5) ALT 204 (D.B)

Putty Aravind Kumar Vs. Putty Ashok and another

SPECIFIC RELIEF ACT, 1963, Sections 34 and 38 – Denial of declaration of title – Challenged in appeal – Appellant-plaintiff claiming title to a half share in suit schedule property under a Will stated to have been executed by his grandfather while the respondent-defendant (his father) pleaded that his father died intestate – Appellant not placed the Will relied upon by him before trial court – As to existence of such a Will, he is only relying on plaint in a suit of 1983 filed by his deceased grandmother in whose favour a life interest was created in that property – However, no reference to the Will was made by her in the body of the plaint – She claimed the suit property as absolute owner and possessor along with her son, the 2nd respondent and not as life interest holder as the appellant alleges – No other evidence referred to by him – Appellant not examined anyone acquainted with execution of Will – Appellant had not seen the Will at all – It is, therefore, understandable as to how he could plead in the plaint that vested remainder in the property was given to him and his brother-1st respondent – It is the case of the 1st respondent-defendant that their grand father died intestate, that his property was partitioned between R2 and their grandmother and that his grandmother executed a Will in his favour in respect of property fallen to her share – Appellant not taken any steps to have access to the so called Will during the life time of their grandmother – Appellant failed to establish that his grandfather, original owner of the suit schedule property, had executed any Will – On the facts of the case, it is held that he died intestate as claimed by respondents- defendants – Appellant has no other basis to seek the relief of 11 declaration of title to half share in the suit property – Frame of the suit itself is defective – If he wanted rights over half share in the suit schedule property, he ;ought to have filed a suit for partition if there was n o dispute as to character of property – Appellant not placed any other material to substantiate his claim – The so-called will not seen the light of the day for the past several decades – For the first time, he sought to place the same before this Court in appeal by filing an application under Order 41 Rule 27, PC – Application was rejected – Further, even it is assumed that the original owner of property executed a Will creating life interest in favour of his wife, her limited right enlarged into absolute right by operation of Section 14(1) of Hindu Succession Act – The dispositions made in favour of appellant and 1st respondent would not survive her death on account of her becoming the absolute owner – Appellant, therefore, not entitled to claim declaration of title in respect of half share in suit schedule property – Appeal dismissed.

I am of the view that, the above citation cannot be applied straight away, because facts in the case differ with the facts in the cited case and for the reason of plea taken by plaintiffs about the knowledge of D2& D3 regarding the disputed Will and also due to the examination of PW3 one of the attestors and Pw4 the document writer who prepared the disputed Will.

17.O.S.No.595/2007 was necessitated as the General Power of

Attorney executed by D2 in favour of Pw1, said to have been mis-used by Pw1 by alienating the property of D2, for lesser value to his own daughter Ms. Swetha . There is a reference about the disputed Will in the suit i.e. plaint in OS.595/2007. In the very first paragraph i.e. Para

No.3 of the copy of plaint in Ex.A2, there is reference about the execution of disputed Will Deed by late P.Subbamma and bequeathing the suit schedule property i.e. Ac.0.80 cents of land covered by 12

Sy.No.212-B2-B2 situated in Mamidalapadu village in favour of D2 herein. It is important to note that, trial was not commenced in the suit and it was compromised in Lok-Adalat on the very first day of appearance of defendants.

18.It is the contention of D2 that as the suit was compromised the plaint was drafted as per the instructions of PW1 herein and it is a ploy on his part to refer about the disputed Will deed in the plaint and in fact D2 has never seen the original of Ex.A1 at any time. The compromise was effected on 29.1.2008. Ex.A14 is the certified copy of the Registered sale deed dt.18.8.2008 and as per the same, the property which is subject matter of Ex.A2 was sold in favour of Lakshmi

Venkatesh, T.G.College of Physiotherapy represented by its treasurer for Rs.12,50,000/-. The deed was executed by 2 nd defendant, but not by his General Power of Attorney holder. In Ex.A14 again a reference was made relating to the disputed will deed dt.14.2.2003, bequeathing the schedule property in favour of 2nd defendant under the will. A reference was also made about the O.S.No.595/2007 including the compromise that was arrived between D2 on one hand and Pw1 herein and his daughter B.T.Swetha on the other hand. Again, it is the contention of D2 that, document under Ex.A14 was prepared at the instance of PW1 herein. It is very important to note that, when property belonged to the mother of D2 late P.Subbamma, and when D1 & D3 are alive who were also entitled to equal share in the property along with

D2, he has no right to alienate the property without the concurrence of

D1& D3. The D1& D3 are not parties to the suit OS.595/2007 including for alienation of property situated at Mamidalapadu (v) in favour of

B.T.Swetha daughter of PW1. It is for the 2nd defendant to explain under 13 what authority he sold the property under Ex.A14? For the reasons better known to 2nd defendant, he has not examined before the court to explain how and in what circumstances, the reference was made about the disputed will in Ex.A2, A3 and Ex.A14. DW1 claimed himself as the

General Power of Attorney holder of D2 and in the evidence he branded

Ex.A10 as created document. The law is very well established that, when certain facts are exclusively in the knowledge of Principal he should alone examine to depose about such facts and by giving Power of Attorney in favour of another person, who cannot have such exclusive knowledge about the certain facts, he is not competent to represent the Principal, and even if he made any statements regarding those facts which are exclusively in the knowledge of Principal, such version cannot be considered at all. Therefore, I am of the view that by examining DW2, the 2nd defendant has not discharged his burden to explain about the reference about the disputed will made in Ex.A2, A13 and A14. It may as it be there.

19. Coming to the knowledge of D3 about the disputed

Will deed: Ex.A4 is the legal notice dt.20.6.2009 given by D3 through her counsel Mr.S.Viswnatha Reddy to PW1 and another three persons claiming that she got life interest in the properties bequeathed under the will; therefore, demanded PW1 and other tenants who are three in number to pay the rentals to her. The signature of D3 is there on the third page to the notice under Ex.A4. Ex.A5 it the reply notice given by plaintiffs 1 & 2 to Ex.A4 and it is almost in the same lines of the plaint averments in the present suit. It is the contention of D3/DW3 that, she is an illiterate and does not know the outside world and Exs.A4 & A5 are created by PW1 without the knowledge of D3. The evidence affidavit of 14

D3 was filed as DW3 and due to her advanced age, Advocate commissioner was appointed to record the cross-examination, but the commissioner returned the warrant stating that DW3 was giving incoherent answers to the questions and so her evidence cannot be recorded. With the same observations as recorded by the Advocate commissioner, the evidence of DW3 was eschewed by the court as she is not competent witness to depose. No revision or appeal was preferred by plaintiff or the counsel for D3 against the order of court eschewing the evidence of DW3. It means the said order became final.

The net result is that D3/DW3 is not a competent witness to depose due to her mental condition.

20.It is important to note that no suit was filed basing on Ex.A4 and Ex.A5 notices by D3 for the rents. It is not at all explained whether other three tenants have given any reply for the notice. PW1 also not examined any of the three tenants to prove that they have received notice from D3, and what is their reply to the notice. It is not the case of plaintiff that ever since Ex.A4, the tenants have been paying rentals to D3 and on the other hand the rents are being collected by PW1 and 2nd plaintiff who is residing in the house i.e. Item No.2. Ex.A9 is the Blue plan relating to the Item No.1 of the suit property and it is signed by testator. The plan was approved on 18.2.1997. Ex.A10 is the permission accorded to the testator by the Municipal commissioner, Kurnool dt.

18.2.1997 to pay a fine under BRS for the unauthorised constructions in Item No.1. As per PW1 he paid the fine under BRS. Ex.A11 is the notice dt.21.6.1996 for the violations in the constructions issued to testator. Ex.A12 is another such notice. No document is forthcoming to show that PW1 mutated his name in the Municipal records in pursuance 15 of Ex.A1 Will deed. The testator died on 14.6.2004 and the present suit was filed in the year 2010. There is a long gap of six years for PW1 to mutate his name in the municipal records for Item No.1; so also for 2nd plaintiff for Item No.2. Even on today, the Items 1& 2 are standing in the name of testator. Plaintiffs not explained, for what reasons they have not mutated the names in the Municipal records for Items 1 and 2 in pursuance of the Ex.A1. Admittedly, D3 is residing along with DWs.1 & 2 separately quite un-connected to the plaintiffs and their families.

DW2 categorically stated that, once 2nd plaintiff and their family came and beat D3 and so, filed a criminal case. This is admitted by 2nd plaintiff. PW1 stated that he was giving Rs.600/- per month to DW3, but no evidence whatsoever is placed before the court to prove such payments. One has to borne in mind that, as per the disputed Will deed DW3 is entitled to enjoy the Items 1& 2 during her life and it means she entitled to receive the rentals. In the absence of any evidence that the rentals are given to DW3, an Obvious conclusion is that the Will deed has not seen the light of the day, atleast as far as DW3 is concerned. No effort was made by plaintiff to examine Mr.Viswanath Reddy who issued Ex.A4 on behalf of DW3, to show that instructions were given by DW3 for the notice and in fact she signed on Ex.A4. It was suggested to PW1 that Mr.Viswanath Reddy is his friend and by taking his services Ex.A4 is created.

21.In the cross-examination of PW1, it came into light that in pursuance of the compromise recorded under Ex.A3, the 2nd defendant has given a cheque for Rs.20 lakhs in favour of Swetha and when it was bounded, she filed C.C.842/2011 against D2 U/s.138 of N.I. Act before I

Addl.Judl.Magistrate of First Class, Kurnool. Ex.B2 is the Terms of 16 compromise dt.20.4.2012 recorded in the CC.842/2011 and it goes to show that complaint was not pressed. DW1 stated that as D2 gave criminal complaint against PW1 and his daughter B.T.Swetha for cheating him, the C.C.842/2011 was compromised. Ex.B3 is the photo of DW3 published in Prajashakthi Daily News paper in Kurnool District

Edition dt.10.4.2010, with a news item that, she was beaten by 2nd plaintiff and his family members for the sake of property. Even if it is considered as stage managed story, still the fact remains is that an attack was made by 2nd plaintiff and his family members against DW3.

It shows DW3 was hostile towards 2nd plaintiff. PW1 admitted in the cross-examination that, he filed OS.118/2011 on the file of Addl.Senior

Civil Judge, Kurnool against DWs.1 to 3 for partition of their house at

Maddur Nagar. It shows PW1 is also not in good terms with DWs.1 to 3.

In such circumstances, it is difficult to presume that PW1 has paid rentals to the DW3 for Item No.1. PW1 admitted that D2 gave complaint against him, his wife and Swetha in Cr.No.253/2011

U/sec.420 r/w 34 of IPC. Taking all these aspects into consideration, I am of the view that there is no acceptable evidence to believe that

DW3 has knowledge about the disputed Will deed.

22. Coming to the knowledge of first defendant about the disputed Will deed: No iota of evidence is placed before the court by the plaintiffs to show that first defendant was ever informed about the execution of the disputed Will deed by late P.Subbamma.

Admittedly, 1st defendant filed OS.5/2010 for partition against D2& D3 and the suit was referred to Lok-Adalat and ultimately a compromise

Award was passed. As per the said compromise, the said suit consists of four items i.e. Items 1 and 2 herein besides Ac.0.31 cents covered by 17

Sy.No.62/1A of Mamidalapadu village and another Ac.0.80 cents covered by Sy.No.212/B2-B1 of the same village. Ex.A8 is the award that was passed. As per the compromise first defendant herein received Rs.3 lakhs from D1 & 2 towards her share in the suit schedule properties; that Item No.1 therein which is item No.2 herein was allotted to the share of DW3 and the remaining items 2 to 4 are allotted to 2nd defendant. No reference was made about the disputed will in the plaint in OS.595/2007 marked as Ex.A7. Admittedly, D1 to D3 are the legal heirs of late P.Subbamma and in case of her intestate death, they are equally entitled for share in the properties left over by their mother. It is the contention by Ex.A7 that, as D2 & D3 are hectic in the creation of sham and nominal documents, she filed suit. It is the contention of plaintiffs that the suit in OS.5/2010 and the award are collusive, for the reason that, inequal distribution of properties was made and even without filing the suit also, the D1 to 3 herein can partition the properties etc,. As already stated supra in the beginning, this court is not competent to decide about the collusive nature of OS.5/2010.

Merely because the first defendant received lesser amount than compared to the value of the properties, no conclusion can be drawn that it is a collusive award. Therefore, I am of the view that first defendant is also not having any knowledge about the disputed Will deed. The mere knowledge of 2nd defendant about the Will deed cannot give any sanctity to the document, because 2nd defendant tried his level best to make wrongful gain out of it by taking undue advantage of the situation and alienated the properties without the knowledge of two sisters. It is already observed that, without the concurrence of the sisters 2nd defendant is not competent to alienate the property of his mother. Under the guise of Will, he made such attempts and 18 ultimately stated that he has no knowledge about the original of Ex.A1 and not seen the said document. It is the argument of the plaintiffs that, while recording the compromise in the criminal case all the documents of the D2 are handed over including the Will. No such specific reference is made in the compromise deed that the original of

Ex.A1 was handed over to 2nd defendant. Therefore, I am of the view that plaintiffs cannot take shelter under the terms of compromise to contend that original of Ex.A1 was given back to 2nd defendant. As far as the D1 and D3 are concerned the Will deed is a hoax. Their

knowledge is not a criteria to decide about its genuineness,

still, the non production of the original of Ex.A1, will become

fatal, when D1 & D3 have lack of knowledge about the will.

23. Coming to the Genuineness of the disputed Will deed:

Ex.A1 is the Photostat copy of the Will deed marked with subject to the admissibility and its proof. It is a computer print out on seven stamp papers each worth rupee one. The stamp papers are purchased in the name of testator from Mr.Subramanyam Setty of

Kurnool on 14.2.2003 and on the same day the Will deed was executed.

As on the date of Ex.A1, the age of testator is mentioned as 90 years.

The names of D1 to D3 are mentioned including about the children of

D3. It is also mentioned that D1& D2 are residing in the United states of America. In the first four pages the signature of testator was in

Telugu almost at the bottom of running matter. Whereas, in Page Nos.5 & 6, there was lot of gap from the body of running matter to the signature of testator. When the signatures of testator are obtained in the other pages, almost at the end of the running matter, why it was 19 not taken in pages 5 & 6 is not explained. In the last page the signatures of two witnesses are there (i) B.Satyamurthy Nagendra and

(ii) M.C.N.Babu. Beneath their signatures the name of Pw4 is mentioned as the scribe with words Bikkalam = Written by. PWs.3 &d 4 categorically stated that, when the document was with the hand writing of scribe then only the word of Bikkalam will be used to obtain the signature of the scribe, but whenever it was typed or taken computer print out, it will be mentioned as prepared by and then the signatures of the said person will be obtained. When PW4 not written the original of Ex.A1 under his hand cannot call himself as scribe of the document.

24.The place of execution is not mentioned in the document.

PW3 the 2nd attestor stated in the chief examination that PW4 noted down the instructions given by the testator and then dictated the same to first attestor Mr.B.Satyamurthy Nagendra, who typed the Will on stamp papers and after dictation first attestor handed over the deed to

PW4, who read over the contents to the testator in his presence and in the presence of first attestor, and thereafter testator accepted the contents as true and correct and signed on the Will followed by two attestors in the presence of the testator and at the time of preparation of the document, the testator was in sound state of mind. In the cross- examination PW3 stated that accidentally he went to the type institute, but not with PW4. Pw3 also stated that he does not know whether the owner of the institute is the friend of PW4? PW3 also stated that the document is prepared on a working day and normally document writers will be busy in writing documents and getting them registered in the office of sub-registrar between 10.00 am and 2.00 pm and when those 20 documents does not require any registration, such work will be attended after 2.00 pm. The original Ex.A1 was prepared in between 11.00 am and 12.00 noon as per PW3. Therefore, the presence of PW4 is to be doubted. In the cross-examination PW3 stated that by the time, he went to the institute the will deed was under preparation and it was completed within half an hour after his visit; that giving instructions by testator and dictating the matter to PW4 and typing the same went on simultaneously and no rough was prepared. It is to be observed that, as per the chief affidavit of PW3 rough draft was prepared by PW4. PW3 further stated that testator gave instructions without verifying any documents; that he does not know the first attestor; that he was not present when first attestor attested Ex.A1 and

in all probability first attestor might have signed on the

document after he left the place. It means the contention of PW3 in the chief affidavit that, both attestors signed at once, is a blatant lie.

PW3 stated after he left the institute does not know what happened to the Will deed and subsequently he never saw the document till he deposed before the court and went on to add that he has no acquaintance with the testator and has no other source to confirm her identity as Subbamma, for the reasons that, he saw her for the first time in the institute only. PW3 ultimately stated that Advocate prepared his evidence affidavit, as such does not know the contents of the same. He further stated that he is working as Assistant under

PW4. In view of the above discussion, I am of the view that the evidence of PW3 is vulnerable and not inspiring confidence of the court regarding the Ex.A1.

21

25.PW4 is considered to be a reputed document writer and engaged in the occupation since 1981 at Kurnool and at an average has been writing 3 to 4 documents per day. In the chief examination

PW4 stated that, once the wife of PW1 purchased a house at Bhagya

Nagar and so, he went there to take measurements and at that time saw the testator residing in the opposite house of PW1, as such got acquaintance with her; that in the year 2003 testator along with another woman came to his house situated at Vaddegeri, Kurnool with a request to scribe the Will; that his office was in Kallur Estate by then and testator was aged about 90 years; that on a paper has taken down the instructions given by testator to prepare the will and got typed the same with the first attestor by name Satyamurthy Nagendra; that it was typed on stamp papers brought by testator and she was in sound and disposing state of mind by then; that he read over the contents of the will deed to testator and after she admitted the same as true and correct, obtained her signatures on the Will deed; that he along with

PW3, testator and the first attestor Satyamurthy Nagendra were present by then and PW3 and the first attestor signed on the Will deed in his presence and he signed on the document in the capacity of scribe and after collecting the will deed the testator went away and he also went to his office. As per the evidence of PW3, the dictation was made by PW4 contemporaneously with the instructions given by testator and Pw4 had not prepared any draft. Now the evidence of

PW4 is contrary to the same. In the cross-examination PW4 stated that, he does not know the name of PW1’s wife that and does not even remember the name of the vendor who sold the property to the wife of

PW1; that does not remember the house door number of the wife of

PW1; that does not written any documents to the testator prior to 22

Ex.A1. In these circumstances, it is difficult to believe that PW4 remembered the testator when she approached him to scribe the document.

26.PW4 stated that previously had never shown his house to the testator and not given his address to her and she was not brought to his house by PW1; and that on her own accord testator came to his house by enquiring with public. When the testator was aged about 90 years, and when she does not know the house of PW4, it is difficult to believe that she came to his house by walk that too by asking the public about the address. When there are grand children as many as four sons to the D3, she can as well sent any of the available grand children to secure the presence of PW4 and it will be natural course for her to follow than going in search of scribe and it looks to be to be odd.

27.PW4 stated that, does not know who is the other lady came along with the testator and the testator expressed her urgency to prepare a Will deed for her and she approached him at about 10.30 am and even though expressed his intention to prepare the Will deed in the office, the testator insisted for preparation of the same in a type institute and even refused to accept the preparation of will deed under the his hand. PW4 stated that testator herself brought the stamp papers purchased on the same day and she herself chosen the type institute of one Satyamurthy situated in Nalanda complex, Kurnool which is about 1½ km from the Sub-Registrar office. He also stated that Nalanda complex is very near to his office and even invited her to his office, to draft the Will deed, but she refused. Vaddegeri is certainly far away from the Kallur estate. If Nalanda complex is nearer to Kallur estate, automatically it is also far away from Vaddegeri. PW4 23

stated that the testator brought the title deeds relating to the

properties mentioned under the Will and by going through the

documents she gave instructions for Ex.A1. As per PW3, no documents were brought by the testator. PW4 also stated that by the time of arrival of PW3 the preparation of Ex.A1 was completed. PW1 stated that first attestor is the friend of 2nd plaintiff but given no reason for his non examination. It is not at all explained by the plaintiffs when for the first time came to know about the original of Ex.A1. As per the version of PW4, first attestor is the owner of type institute, where the

Ex.A1 was prepared on a computer system. No evidence is placed

before the court to show that first attestor is the owner of the type

institute. Therefore, the version of PW4 that the testator who is of 90 years old voluntarily came to his house by searching the same and then voluntarily chosen the type institute, where the document was got prepared etc., appears to be unnatural. Pw1 and 2nd plaintiff never stated anywhere whether previously at any time the testator expressed her intention to execute the Will deed. Admittedly, PW1 and 2nd plaintiff were not present at the time of Ex.A1 because PW1 was at Nalgonda and 2nd plaintiff was not in the house. If really the testator was so particular about the preparation of the Will deed on a computer or on a type machine, she should have equally stubborn to get the document registered.

28. PW1 is a graduate in their family and he categorically stated that all the family members are dependants on him as he happened to be well literate and working in the Food Corporation of

India. PW1 deposed that testator was having equal affection on

all her children and grand children and there is no reason for

24

her not to give any share to his other two brothers i.e. DWs.1

and 2. Admittedly, DWs.1 & 2 are residing in the same house along with the Testator and DW3. So not giving a share under the Will is a suspicious circumstance. So, as already stated supra she should have equal affection towards DWs.1 & 2. PW1 deposed that he is having two daughters and one son and the daughters are married and son is studying M.Tech; that he owns a house in Doctor’s colony, Kurnool and purchased it in the year 2009 in the name of his wife by obtaining LIC

Housing Finance; that his is wife also an employee working in Regional

Eye Hospital as Health Assistant and drawing Rs.40,000/- per month that at the time of retirement he was drawing Rs.60,000/- per month; that DWs.1 & 2 are unemployees, now they are doing private jobs and

DW1 is working as courier boy and DW2 is running an auto. It means there is no fixed income for them and their earnings are petty. PW1 stated that for the purchase of Item No.1 the 2nd defendant has sent

Rs.49,500/- through bank he adjusted Rs.20,000/- towards registration expenses. As the 2nd defendant sent Rs.49,500/- for purchase of Item

No.1, naturally he will be interested in the property. There is no evidence to show that PW1 contributed Rs.20,000/- for the registration expenses of the Item No.1. PW1 stated that he has no personal knowledge about the events that took place for execution of Ex.A1; that 2nd plaintiff never informed him about his presence or absence on the date of Ex.A1; that in the year 2007 only, he came to know the will deed but occasion was not stated. Never it is pleaded in the plaint that when the testator disclosed about the execution of will deed by her and to whom. PW1 stated that 2nd plaintiff is working in the Collectorate,

Kurnool and his wife is working in APSRTC Depot-I, Kurnool. PW1 stated that he own Plot in FCI colony and his wife is having another plot in 25

Devanagar colony and his wife purchased three storied building bearing

No.40/310-A, at Bhagya Nagar, Kurnool. These all goes to show that,

PW1 is a well off person. Even though 2nd plaintiff is not as rich as PW1, but having Government job and his wife is also working in APSRTC.

When compared with the plaintiffs, DWs.1 & 2 are in lower strata of the society and almost hand to mouth state. In such circumstances not giving any share to the DWs.1 & 2 and exclusively giving items 1 & 2 to the plaintiffs without giving reaons for the same is a suspicious circumstance. When there were no disputes between D1 to D3, the testator should not have written Will deed or even if she had written any will deed, not giving anything to D1 & DW3 is another suspicious circumstance. PW1 deposed that he has no idea whether on 18.11.2005, D2 deposited 17,500 U.S.dollars in his bank account with

ICICI bank. It is about Rs.8 lakhs. Ex.B1 is the Down loaded copy of on line transfer for the said amount. After the said down loaded copy is confronted to PW1, came forward with a version that after coming down to India, D2 received the amount from the account. There is no proof to show that he gave Rs.8 lakhs to D2. Taking all these aspects into consideration, I am of the view that plaintiffs miserably failed to clarify the suspicious circumstances regarding the execution of original of

Ex.A1 Will deed. So, I am of the view that Ex.A1 is a created document by plaintiffs or in the alternative in collusion with D2. So, the points are answered against the plaintiffs.

29. ISSUE NO.3:

As the issues 1 and 2 are answered against the plaintiffs, the suit is liable for dismissal.

26

30.In the result, the suit is dismissed with costs by holding that plaintiffs are not entitled for declaration of title over the suit schedule properties; that alleged Will under Ex.A1 dt.14.2.2003 is a created one and the same is not binding on the defendants.

Dictated to the stenographer, transcribed and typed by her, corrected

and pronounced by me on this the 29 th day of March, 2018 .

I ADDITIONAL DISTRICT JUDGE,

KURNOOL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFFS: DEFENDANTS:

PW1: B.Krishna Murthy. DW1: B.Ravi Kumar.

PW2: B.Satya Murthy (eschewed) DW2: B.Hari Prasad.

PW3: M.C.Narendra Balu DW3: B.Lakshmi Narasamma.

PW4: Khasim Saheb(eschewed) 27

EXHIBITS MARKED

For Plaintiffs:

Ex.A1: Photo copy of the Unregistered will executed by P.Subbamma in favour of plaintiff and others.

Ex.A2: Certified copy of plaint in Os.595/2007 on the file of Prl.Senior

Civil Judge, Kurnool filed by D2 against plaintiff and others.

Ex.A3: Certified copy of compromise decree dt.29.1.2008 in

OS.595/2007.

Ex.A4: Original legal notice dt.20.6.2009 issued by D3 against to 1st plaintiff and others.

Ex.A5: Reply notice dt.1.7.2009 for Ex.A4.

Ex.A6: Original death certificate dt.19.12.2007 of P.Subbamma issued by Tahsildar, Nandyal.

Ex.A7: C.C. of plaint in OS.5/2010 on the file of IV ADJ, Kurnool filed by D1 against D2 and D3.

Ex.A8: Certified coy of Award passed by Lok-Adalat dt.23.2.2010 in

OS.5/2010.

Ex.A9: Blue Print of the building plan approved by the Kurnool Municipal under B.R.S. relating to House No.40-313-A.

Ex.A10: Order of regularization dt.18.2.1997 relating to Ex.A9.

Ex.A11: Notice dt.21.6.1996 by the Municipal Corporation to P.Subbamma to get building regularized under B.R.S.

Ex.A12: Another notice (Ex.A11) dt.26.10.1996 issued by Municipal Corporation.

Ex.A13: Certified copy of Registered sale deed dt.18.8.2008 executed by D2 herein in favour of Laxmi Venkatesh, T.G.College of Nursing.

Ex.A14: Certified copy of the Registered sale deed dt.18.8.2008 executed by D2 herein in favour of T.G.Laxmi Venkatesh College of Physiotherapy.

Ex.A15: Signature of D2 on the photocopy of cheque dt.2.4.2011.

Ex.A16: Signature of D2 on the photocopy of Oppanda Kararunama dt.28.1.2008.

For Defendants:-

Ex.B1: Downloaded copy of online transfer of amount by D2 i.e 17,500 U.S.dollars into the account of PW1.

Ex.B2: Terms of compromise dt.20.4.2012

Ex.B3: Photo of D3 published in Prajashakthi Daily News paper in Kurnool District Edition dt.10.4.2010.

28

Ex.B4: Photo of mother of PW1 published in the Sakshi Paper, Kurnool city Edition dt.10.4.2010.

I ADDITIONAL DISTRICT JUDGE,

KURNOOL.

1

In the Court of the Special Judge for Trial of Cases under SCs &

STs (PoA) Act –cum- VI Additional Sessions Judge, Kurnool.

Present:- Sri.V.V.Seshu Babu,

Special Judge for Trial of Cases under SCs & STs (PoA) Act

-cum- VI Additional Sessions Judge, Kurnool.

Tuesday, the 7th day of March, 2017

SESSIONS CASE No.444 of 2015

Name of the accused.1)Gajjela Sudhakar, S/o.Chinnanna, 28 years, Caste: Madiga, R/o.H.No.2-13, Bollavaram village, Kallur Mandal 2)Gajjela Surendra Kumar, S/o.late G.Dubbalanna @ Chinnanna @ Chinna Ayyanna, 33 years, H.No.1-23, Bollavaram village, Kallur Mandal, now at opposite to NCC Canteen, Shyamala Nagar, H.No.86-204-23, Kurnool 3)Gajjela Sekhar, S/o.Gajjela Chinnanna, age 30 years, Caste: Madiga, r/o.H.No.2-13, Bollavaram village, Kallur Mandal

Plea of the accused A1 to A3 pleaded not guilty.

Name of the police Crime No.155/2014 of Ullindakonda Police station and Cr.No. Station, U/Ss.120-B, 302 r/w.109 IPC.

Findings of the Judge A1 is found not guilty for the charged offence U/s.302 IPC; A1 to A3 are found not guilty for the charged offence U/s.120-B IPC; A2 and A3 are found not guilty for the charged offence U/s.302 r/w.109 IPC.

Sentence or order In the result, A1 is found not guilty for the charged offence U/s.302 IPC; A1 to A3 are found not guilty for the charged offence U/s.120-B IPC; A2 and A3 are found not guilty for the charged offence U/s.302 r/w.109 IPC; and they are acquitted of the said offences, U/s.235(1) Cr.P.C. the bail bonds of A1 to A3 shall stand cancelled subject to provisions of Section 437-A Cr.P.C.

The prosecution was conducted by the Additional Public

Prosecutor, Sri.Khajana Rao, and the accused/A1 to A3 are defended by Sri.P.Yellappa, Advocate for A1 and Sri. B.M.M, advocate, Kurnool for A2 & A3.

2

This case is coming on for final hearing before me on 7-2-2017 and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

01. The Inspector of Police, Kurnool Rural circle filed charge-sheet against A1 to A3 for the offences U/Ss.120-B, 302 r/s.149 IPC in Crime No.155/2014 of Ullindakonda police station.

02. The brief averments of the charge-sheet are that on A1 and A3 are brothers and A2 is the son of their senior paternal father. One Gajjela Dubbalanna is the father of A2. A2 &

Punyavatamma are children of G.Dubbalanna through his first wife. After the death of wife, he married Venkateswaramma who is the deceased in this case. PWs.1, 2, 5 and LW6-Gajjela Sridevi are the daughters of the deceased and Gajjela Dubbalanna. A1 & A3 are residents of Bollavaram village and A3 is a resident of Kurnool.

PW1, the youngest daughter of deceased, is working as Operation

Theater Assistant in Ayushman Hospital, Venkata Ramana Colony,

Kurnool. Except the deceased, her own children as well as the step children are not residing in Bollavaram and even after the death of husband, the deceased continues to live at Bollavaram by attending labour works in the fields of one Mr. Nagabhusanam Reddy and also personally cultivating their land. A1 developed suspicion over the character of the deceased after the death of her husband and is of the view that she had illegal intimacy with Mr. Nagabhusana

Reddy and used to quarrel with her on that ground. In this connection, a Panchayat was held in the presence of PW6, LW8- 3

Gajjela Aggri Ramudu and one Mr. Rajasekhar and in the said

Panchayat, A1 manhandled the deceased and it was pacified by the elders. A1 threatened the deceased that he would see her end at any time. On 24-11-2014 at 7 PM, PW1 came down to Bollavaram from Kurnool to see the deceased and after having supper, the deceased slept in the first room and PW1 in the next room of the newly constructed house, which was without doors. During midnight at about 1 AM, having heard the cries of deceased, PW1 woke up from the sleep and saw A1 throwing boulder on the head of the deceased. Having heard the cries of the deceased, PW3 who is their neighbour, came and saw A1 escaping from the scene of offence with boulder. PWs.1 & 2 went and found the deceased with bleeding injuries on right ear and right side of chin etc., and also found her dead. PW1 informed the death of her mother to the relatives over phone by stating that A1 killed her mother on the instigation and abetment of some of their relatives. As it was late night, PW1 presented a complaint to the police on 25-11-2014 by going to the police station. Basing on the said complaint, a case was registered at 8 AM on 25-11-2014. During the course of investigation, PW21 visited the scene of offence, examined and recorded the statements of PWs.1 to 5 and LW6-G.Sridevi and conducted inquest over the dead body and also drafted the rough sketch in the presence of mediators. He also recorded the statements of other witnesses and seized the material objects from the scene of offence and also available on the dead body and forwarded them to the RFSL, Kurnool for analysis. PW21 collected 4 the cell phone particulars of mobile numbers 9959245598 and 9652617423 of A1; 949454211 and 9059585164 of A2; and 9949962185 of A3 from the Nodal Officers of the concerned mobile companies and with the help of call data, came to conclusion that

A2 & A3 conspired with A1 to do away with the life of deceased. On 11-2-2014 at 15-00 Hours, PW21 apprehended A1 to A3 and on interrogation made in the presence of mediators, A1 to A3 confessed to have committed the offence and their confessional statement was recorded in the presence of mediators and they were arrested at 17-00 Hours. In pursuance of the confession of A1, the boulder used by him in the commission of offence with blood stains, was recovered at Bollavaram village under cover of seizure panchanama. A1 to A3 were sent to the court for remand. The dead body was sent for autopsy and the doctor who conducted the same, opined that the death occurred due to head injury. As there is no incriminating material against one Gajjela Chinnanna, his name was deleted with the permission of the Superintendent of

Police, Kurnool vide proceedings dated 6-5-2015; hence, the charge-sheet against A1 to A3.

03. The case is taken on file in P.R.C.No.111/2015 by the

Judicial Magistrate of first Class, Kurnool for the offences

U/Ss.120-B, 302 r/w.109 IPC. On appearance of accused, the learned Magistrate furnished copies to them U/s.207 Cr.P.C and having gone through the record, found the case as exclusively triable by the Court of Sessions, as such committed the same to the

Principal District & Sessions Court, Kurnool.

5 04. The learned Principal District & Sessions Judge,

Kurnool took the case on file U/Ss.120-B and 302 r/2.149 IPC and made over the same to this court for the purpose of disposal according to law.

05. On appearance of A1 toA3 and having heard the

Additional Public Prosecutor as well as the counsel for A1 to A3,

Charges U/s.302 PC against A1, U/s.120-B IPC against A1 to A3 and U/s.302 r/w.109 IPC against A2 & A3, framed, read over and explained to the accused in Telugu, for which they pleaded not guilty and claimed to be tried for the same.

06. To prove the guilt of accused, the prosecution examined

PWs.1 to 21 and got marked Exs.P1 to P22 and MOs.1 to 9. The

Additional Public Prosecutor has given up LW6-Gajjela Sridevi, the

second daughter of deceased; Gajjela Aggi Ramudu who conducted the alleged Panchayat, LW12-M.Akbaruddin who said to have noticed A1 & A2 proceeding on a motor bike by armed with sticks on 22-11-2014; LW17-K.Pittala Prabhavathi, LW8-Talari

Anjaneyulu who are the witnesses at the time of Inquest and with that, the prosecution side closed.

07. A1 to A3 are examined U/s.313 Cr.P.C, for which they denied the incriminating available against them and reported defence evidence. DW1 is examined and Ex.D2 & D3 are marked through DW1 and Ex.D1 is the contradictory portion in the Sec.161

Cr.P.C Statement of PW1.

6 08. Heard the arguments of both sides.

09. Now, the points for consideration are:

1) Whether A1 murdered the deceased Venkateswaramma with an intention to kill her, by throwing bounder/MO1?

2) Whether in pursuance of the conspiracy or abetment of A2 and A3, A1 committed the murder of deceased?

3) Whether the prosecution established the guilt of accused against the charged offences?

10. PW1 is the fourth/the youngest daughter of the deceased and she is eye witness as well as defacto-complainant in the case. She categorically deposed that on the intervening night of 24/25-11-2014 at about 1 AM, she saw A1 killing her mother by throwing a boulder and running away from the scene of offence by carrying the same boulder.

10-A. PW2 is another daughter of the deceased, who is resident of Shareen Nagar, Kurnool deposed that she came to know that a Panchayat took place four months prior to the death of the deceased in which the deceased refused to stop the agricultural works in the lands of Mr. Nagabhusan Reddy and so, A1 to A3 developed grudge against the deceased; that she came to know through PW1 that, A1 killed the deceased with a boulder in their house at Bollavaram.

10-B. PW3, the eye witness to the incident for observing A1 running away with boulder from the house of deceased, deposed that he did not witness such incident and about 1½ years back at 7 7 AM, having observed gathering in front of the house of deceased; went there and found Venkateswaramma dead with a head injury.

10-C. PW4 deposed that having learnt about the death of deceased, she went and saw the dead body, but does not know who murdered the deceased.

10-D. PW5, another daughter of the deceased, deposed that two months prior to the death of the deceased, a Panchayat was conducted in their house headed by PW6, LW8-G.Aggiramudu and one Mr. Rajasekhar and in that, A1 beat the deceased; that 15 days prior to the date of death, she went to Bollavaram and went to the house of Mr. Nagabhusana Reddy to talk with his children and wife, who informed that the accused hatched a plan to do away with the of deceased and advised PW5 to inform her mother to be on guard; that on 25-1-2014 received a phone call from PW1 that

A1 killed the deceased.

10-E. PW6 deposed that he conducted a Panchayat between

A2 and the deceased, Venkateswaramma, when A2 wanted to get back the land in view of Venkateswaramma/deceased developed illegal intimacy with Mr. Nagabhushan Reddy who has be; that panchayat was conducted about 1½ years back in the house of late Dubalanna at Bollavaram; that as A2 wanted to cultivate the land by investing amount, the elders advised A2 to invest in the cultivation and it shall be done by the deceased; accordingly A2 and the deceased mutually cultivated the land for one year.

8 10-F. PW7, the wife of Mr. Nagabhusanam Reddy deposed that she does not know anything about the case and she does not know the daughters of deceased.

10-G. PW8 deposed that she does not know anything about the case. PW9 also deposed in the same lines.

10-H. PW10 deposed that A1 is his maternal uncle and he obtained a mobile phone bearing No.9959245598 of AIRTEL company in the year 2012, since then has been using the mobile number and same SIM card for himself.

10-I. PW11 deposed that she is having Aadhar Card and she also took photographs and about three years back, her husband took the SIM Card with her Aadhar Card and she does not know anything about the case.

10-J. PW12 deposed that he is having mobile number 9949962185 and obtained the SIM from AIRTEL company six or seven years back and except that does not know anything about the case.

10-K. PW13, the V.R.O of Bollavaram deposed that he was present at the time of inquest conducted over the dead body of deceased and after observing the statements of witnesses, they have opined that A1 to A3 have killed the deceased and also stated that on 11-12-2014 he acted as mediator for arrest of A1 to A3 and recovery of boulder of A1 on the main road leading from Bollavaram to Kurnool.

9 10.L. PW14, the Nodal Officer of TELENOR Company Pvt Ltd, deposed that about 2 years back UNINOR company was renamed as TELENOR and they have furnished the call data for the mobile number 9059585164 for the period from 1-10-2014 to 25-11-2014 on the request of police and the said mobile stands in the name of

A2 and they have also furnished the call list relating to the said mobile number for the period form 1-10-2014 to 25-11-2014; that on 22-11-2014 at 11:38:47 a call went for the above mobile number to another mobile number 9652617423.

10-M. PW15 is the constable who deposed that on 25-11-2014, along with PW21, went to the S.C. Colony, Bollavaram and to the dictation of PW21, wrote Ex.P10-Inquest and also scribed the statements of PWs.10 to 12 to the dictation of the

Inspector of Police.

10-N. PW16, Assistant Professor who conducted postmortem examination on the dead body of the deceased, deposed that he found 10 external injuries and the death occurred due to head injury which can be possible to sustain with a boulder/MO1; that he preserved the viscera etc., and they were sent to the RFSL and the death occurred 24 to 36 hours prior to the autopsy.

10-O. PW17 deposed that he is the Nodal Officer working in

Bharathi AIRTEL and they have furnished the call details for mobile numbers 9959245598 and 9652617423 of A1; and the mobile number 9949454211 of A2 and mobile number 9949962185 of A3 for the period from 1-10-2014 to 25-11-2014 along with customer 10 application forms and the mobile number 9949454211 was allotted in the name of one J.Prasad.

10-P. PW18, police constable deposed that on 25-12-2014 she along with the Sub Inspector and Inspector of Police went to

Bollavaram village and to the dictation of the Inspector of Police, she scribed the statements of PWs1 to 7 and other witnesses.

10-Q. PW19 deposed that he is working as constable; that on 26-12-2014, along with the Inspector of Police, went to Bollavaram and scribed the statements of PWs.7 to 9 AND Lw12-Akbaruddin to the dictation of PW21.

10-R. PW20, the Sub Inspector of Police, deposed that on 25-11-2014 at 8-00 AM while he was in the police station, PW1 came and presented written complaint under Ex.P1 and basing on the same he registered a case in Crime No.155/2014 U/s.302 IPC and submitted Express F.I.Rs to all the concerned and informed the incident and when the Inspector of Police came at 11-45 PM, accompanied him to the scene of offence and he assisted the

Inspector in the investigation.

10.S. PW21 deposed about the investigation, like recording of statements of witnesses, conducting Inquest, sending the dead body for postmortem, seizure of material objects, regarding the confessional statements of accused, obtained call data for the mobile numbers etc,.

11 11. Point No.2:

Ex.P1 is the Telugu written report submitted by PW1 on 25-11-2014 at 8 A.M to PW20. As per the same, PW1 went to the

Ullindakonda police station on 25-11-2014 and presented the complaint wherein it is categorically mentioned that she observed

A1 killing the deceased with a boulder and when he was running away from the scene of offence on seeing her; that it was witnessed by PW3 and she found along with PW3 the deceased dead with injuries at the right ear with profuse bleeding and she informed about the same over phone to the relatives and further stated that somebody were behind A1 in killing the deceased and as the incident took place in the nigh time, she came to the police station on the nest day and presented Ex.P1.

12. As per the prosecution, PW1 is the direct witness for the murder committed by A1 and PW3 is an immediate circumstantial witness, when A1 was running away from the house of deceased by carrying a boulder. It is also the contention of the prosecution that the deceased, after the death of her husband late Dubbalanna, developed illegal intimacy with one Mr. Nagabhusan Reddy and she refused to sever her illegal contacts with Mr. Nagabhusan Reddy inspite of the warning of A3 and other relatives and in a Panchayat conducted two months prior to the death, A1 quarreled for continuing illegal contacts with Mr. Nagabhusan Reddy and threatened her to do away with life.

12 13. It is a case of total denial of offence by the accused and further their contention is that PW1 was not present in the scene of offence at the time of incident; that in order to grab the properties, hatched a plan and implicated A1 to A3 in the offences, because if

A2 is sent to jail, the daughters of deceased would get the entire property. It is also the contention of defence that at the instance of

Mr.Nagabhusan Reddy, PW1 and her sisters foisted the case. With this background, one has to observe how far the prosecution is able to prove the guilt of A1 to A3 for the charged offences.

14. No direct evidence is available tn the prosecution to prove conspiracy between A1 to A3 or for the alleged abetment of

A2 & A3 with A1 to do away with the life of the deceased. PW6 was examined to establish that a Panchayat took place two months prior to the death of deceased in the house of deceased and in the said Panchayat, A1 beat the deceased when she refused the allegations with a demand to prove the same and A1 even threatened her to do away with the life at any time. It is also the contention of prosecution that PW5 attended the said Panchayat.

PW6 deposed that he conducted Panchayat about 1½ years back, and two months prior to the death of deceased; that the said

Panchayat was arranged as A2 intended to cultivate their lands which are being cultivated by Mr.Nagabhusan Reddy and so, elders advised A2 to provide finance for the cultivation and the cultivation will be done by the deceased; that accordingly the deceased and A2 mutually conducted cultivation for one year. Except that PW6 not 13 stated about A1 beating the deceased in the Panchayat or PW5 participation in the Panchayat etc. The other panchayatdar by name Gajjela Aggiramudu (LW8) was given up by the prosecution.

Another Panchayatdar by name Mr. Rajasekhar is not cited as a witness. PW6 was not declared as hostile. It means, what all stated by PW6 in the chief examination, can be accepted without any doubt. The net result is that the prosecution failed to prove that A1 beat the deceased in a Panchayat, when she refused to sever her illegal contacts with Mr. Nagabhusan Reddy etc,.

15. PW5 deposed that there are disputes between their family and A1 to A3 from their childhood onwards; that since 2012 the deceased alone attending cultivation by staying at Bollavaram as all her daughters left for studies; that A1 to A3 are having disputes with PW1 for agricultural lands; that two months from the date of incident, Panchayat was conducted in her house at

Bollavaram; that PW6, LW8-G.Aggiramudu and one Mr. Rajasekhar acted as elders for the panchayat; that she was present along with mother at the time of Panchayat; that A1 to A3 quarreled with the deceased for attending the agricultural work in the lands of Mr.

Nagabhushan Reddy and even imputed illegal contacts for her mother with Mr. Nagabhushan Reddy; that her mother denied all the allegations and further questioned them to show any proof of her unchastity and aggrieved by such reply A1 beat her mother ; that when she questioned the accused for beating her mother, A2 replied that A1 is the husband of her mother and so, he beat her 14 and thereafter she went away to Anantapur. Except the version of

PW6, no corroboration is forthcoming from any corner to prove the

Panchayat that took place two months from the date of incident and also the incident happened therein. PW5 further stated that fifteen days prior to the death of her mother, she went to

Bollavaram for holidays and went to the house of Mr. Nagabhusana

Reddy to talk with his children; that the wife of Mr. Nagabhusana

Reddy i.e, PW7 informed her that, the accused hatched a plan to kill the deceased and asked them to be on guard; that she informed the same to the deceased and went away. PW7 deposed that she does not know the deceased, including her daughters, which includes PW5 and does not know anything about the case. PWs.8 & 9 were also examined to prove that accused hatched plan to do away with the life of deceased on 22-11-2014 around 3-30 PM, both PWs.8 & 9 turned hostile and stated that they do not know anything about the case. LW12 (name of the witness is to be typed) was cited as a witness to prove that A1 & A2 went on motor cycle by holding sticks on 22-11-2014 at about 3 PM. Probably in order to establish their intention to do away with the life of deceased in pursuance of their alleged conspiracy, LW12 was cited as a witness, but he was given up. Therefore, no evidence is forthcoming about the alleged conspiracy of A1 to A3. The call data relating to the mobile numbers is filed through PWs.14 & 17.

Exs.P16 & P17 are the call data relating to the mobile number 9959245598 belong to A1 and relating to the mobile number 9949454211 of Mr. J.Prasad. Ex.P12 is the call data relating to the 15 mobile number 9059585164 which belongs to A2. It is important to note that all the call data's are documents submitted without any certification as required within the provision of Section 65B of the

Indian Evidence Act. Here, the counsel for accused relied upon a decision reported in

2017 AIAR (Crl.) 102

Harpal Singh @ Chhota .Vs. State of Punjab “11. Qua the admissibility of the call details, it is a matter of record that though PWs 24, 25, 26 and 27 have endeavoured to prove on the basis of the printed copy of the computer generated call details kept in usual ordinary course of business and stored in a hard disc of the company server, to co-relate the calls made from and to the cell phones involved including those, amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under Section 65-B(4) of the

Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under Section 65 of the Act had been complied with, in the teeth of the decision of this Court in Anvar P.V. (supra) ordaining an inflexible adherence to the enjoinments of Sections 65-B(2) and (4) of the Act, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of

Section 65B(2) had been complied with, in absence of a certificate

under Section 65B(4), the same has to be held inadmissible in

evidence (emphasis supplied by me).

In view of the above citation, the call data's as produced in this case, are inadmissible in evidence. Even if the call data is believed, the exchange of calls will not automatically establish what conversation went between them, more so, the conversation 16 relating to the elimination of the deceased. Added to the same,

PW10 stated that he obtained mobile number 9959245598 and he is using the same. Merely because A1 happened to be uncle of

PW10, no conclusion can be drawn that the said mobile phone was used by A1 for conspiracy to eliminate the deceased. PW11 stated that her husband took her Aadhar Card and photographs and obtained mobile number, but not stated anything that her husband given the same to anybody. It means, the mobile is being used by the husband of PW11. PW12 deposed that he is having mobile number 9949962185 and he took it about six years back and using the same. After going through the above evidence, I am of the view that the prosecution miserably failed to prove the guilt of A2 & A3, either for the offence of conspiracy or for abetment of A1. So, this point is answered accordingly.

16. Point No.1: Ex.P1 is said to have been given by PW1 in the police station on 25-11-2014 at 8 AM. PW20, the

Sub Inspector of Police who registered the F.I.R basing on Ex.P1, stated that he received the same in the police station, when PW1 came there and also stated that he has no information about the incident prior to Ex.P1. Bollavaram is about 15 KM from the

Ullindakonda police station. PW1 deposed that at about 8 AM on 25-11-2014, when police came to the scene of offence, presented

Ex.P1 and she scribed it. So, it is argued that Ex.P1 is a concocted document and it was leisurely prepared to suit the needs of the case. Here, the counsel for the defence argued that as per PW3, the another alleged eye witness to the incident, he came to know about 17 the same murder at about 7 AM, having observed gathering in front of the house and when she went there, came to know about the death of Venkateswaramma and in the cross-examination, stated that the daughters of deceased and other relatives were not in the house at 7 AM and after 7-30 AM, PW1, A2 and others came to the house of the deceased. So, it is the contention of defence that PW1 was not there in the house and witnessed the incident as contended by her. It is important to note that PW3 was declared as hostile and not supported the case of prosecution from any angle and he developed a distorted version in the cross-examination as well as in the chief. Therefore, it is the argument of the Special

Public Prosecutor that undue importance need not be attached to the evidence of PW3. It may as it be there.

17. Admittedly, PW1 was working as Operation Theatre

Assistant in Ayushman Hospital, Venkata Ramana Colony,

Kurnool, by the date of incident and it is her version that on 24-11-2014 at 7 PM, she came down to Bollavaram to see her mother. Bollavaram is about 20 KM from Kurnool. Therefore, time of 30 to 45 minutes is sufficient to reach Bollavaram from Kurnool.

It is also the further argument of the defence that PW1 shall be considered as a chance witness, because she is not a regular resident of Bollavaram and the evidence of the chance witness shall be scrutinized with great care and caution and also argued that as the entire case relies upon the sole testimony of PW1 and as she happened to be a chance witness; besides that in view of the 18 discrepancy regarding the place at which Ex.P1 was lodged, her version cannot be believed at all.

18. It is the contention of the defence that on 24-11-2014

PW1 was present in the Ayushman Hospital itself and to establish the same, relied upon the evidence of DW1 and also Ex.D2, which is the attested copy of the attendance register of Ayushman hospital for the month of November 2014 and Ex.D3 is the relevant entry at Sl.No.12, where under the name of PW1 is mentioned and in the attendance register, her initials are there. DW1 deposed that the usual duty timings of Operation Theatre Assistant are from 9

AM to 9 PM and also stated that he is aware of the fact that PW1 stayed in the hostel, while working in the hospital and further stated that their hospital provided hostel facility to few of the staff members. In the cross-examination of the Additional Public

Prosecutor, DW1 stated that as per the letter addressed by him to the Court, PW1 attended the duties both on 24th and 25th of

November 2015 and it cannot be correct in view of the abundance of evidence with regard to the presence of PW1 on 25-11-2014 at

Bollavaram from 7-30 or 8 AM onwards. DW1 further stated that he cannot specifically state whether PW1 was in the hostel on the night of 24-11-2014? and also added that PW1 is not actually an employee, but she came to the hospital for nurse training. So, the evidence of DW1 is not specific enough to conclude that PW1 stayed in the hostel on 24-11-2014 night and she came down to

Bollavaram on 25-11-2014 only. As I already stated supra, in view 19 of the short distance between Kurnool and Bollavaram, there is every likelihood of PW1 going to the house of her mother on 24-11-2014 itself. DW1 also not specifically stated that on 24-11-2014, operations went on in their hospital in the evening/night also upto 9 PM. Therefore, the mere office timings of an Operation Theatre Assistant from 9 AM to 9 PM is not a yardstick to presume that, always the Operation Theater Assistant will stay in the hospital upto 9 PM. Depending upon the number of operations in a day, some times the time may go beyond 9 PM or the operations may not be there on a particular day or the operations may conclude at any time before 9 PM or in the evening.

The learned counsel for the defence relied upon the following citations reported in:

1996 AIR (SC) 3471

Alil Mollah .Vs. State of West Bengal “Evidence – Indian Penal Code, 1860 – Section 302/34 offence under – Conviction of – Facts only one eye witness – Before passing conviction order there must be prima facie evidence before the

Court to come to the conclusion that single eye witness is only reliable party and his evidence is corroborative with testimony with other evidence – Appeal allowed.”

It is held at Para-3 that “It is not well established that conviction can be based on the testimony of a single eye-witness provided the Court finds from the scrutiny of his evidence that he is a wholly reliable witness, where, however, the Court is of the opinion that the single eye-witness is only partly reliable, prudence requires that corroboration of testimony in material particulars should be sought before recording 20 conviction. It is in the light of these well settled principles that we shall examine the testimony of PW-3.”

1997 (1) ALT (Crl.) 423

Channala Ram Reddy

.Vs.

State of Andhra Pradesh rep., by Public Prosecutor “I am of the view that PW1 was only a chance witness and that he could not have seen the accused-appellants beating the deceased.

He might have received some injuries elsewhere just like the other injured witnesses in this case. His evidence bristles with contradictions and improbabilities and cannot be accepted.”

2017 (1) ALD (Crl.) 48 SC

Mahavir Singh .Vs. State of Madhya Pradesh “It is to be seen that although the evidence of a chance witness is acceptable in India, yet the chance witness has to reasonably explain the presence at that particular point more so when his deposition is being assailed as being tainted.”

With the help of the above citations, it is contended by the defence that PW1 is a chance witness, partisan witness and only alleged eye witness to the incident and in view of the discrepancy as pointed out regarding the lodging of Ex.P1, without corroboration her evidence cannot be taken into consideration to register a conviction.

19. The defence counsel further argued that Ex.P13 is the postmortem examination report in which PW16 stated that, he found as many as 10 external and internal injuries on the body of the deceased. PW16, after receiving the RFSL Report, gave the final opinion that the death occurred due to the head injury. PW16 21 stated in the cross-examination that the Injuries 1 to 5 & 10 as appearing in Ex.P13, are distinct injuries; whereas Injuries 7 to 9 are hemorrhages sustained in and around the brain and also stated that Injuries 1 to 5 and 10 are not possible to sustain due to a single blow, because those injuries require separate blows and also stated that if a boulder like MO1 came into

contact with the head, there cannot be any hue and cry from

the injured. As per PW1, having heard the cries of deceased, she woke up from the sleep around 1 AM on the intervening night of 24/25-11-2014 and after she woke up, found A1 running away by carrying a big boulder (MO1) from the house. It means, she had not witnessed A1 throwing the boulder at the head of PW1. It is also not her case that A1 caused other injuries which are mentioned as distinct by PW16, with any other weapon or MO1. In view of the evidence of PW16, there cannot be any hue and cry from the deceased after receipt of head injury with a boulder like MO1.

Even if for any other reason she made such cries, there is no evidence from the prosecution to show that A1 caused Injuries 1 to 5 and 10 with the boulder which are distinct in nature. The incident took place in the dead of a night, that too, in an under constructed house which has no doors and windows. The prosecution not came forward with any version that there was any electric light glowing by that time, or at-least a bed light in the room of deceased. Ex.P19 is the rough sketch of the scene of offence and it goes to show that there was an electric pole in the

South-West corner of the house of PW3; so also, that of deceased, 22 at some distance. It is not the contention of PW1 that she identified A1 under the glow of street light. It is not the contention of PW1 or prosecution that A1 talked anything while committing the offence in order to contend that PW1 identified A1 by voice.

Added to the same, the weight of MO1 will be more than 10 KG and it is difficult for anybody to run away by holding that stone. For these reasons, I am of the view that it is not safe to rely upon the uncorroborated sole testimony of PW1.

20. The Special Public Prosecutor argued that PW13, the

V.R.O, deposed that on 25-11-2014 he acted as mediator for the inquest held on the dead body of the deceased Venkateswaramma and on 11-12-2014 he was again called by the police and along with the police, went near Petrol Bunk, Kallur, where A1 to A3 were found and arrested by the police and accused have confessed to have committed the offence and at the instance of A1, went to

Bollavaram village at about 5-30 PM and seized MO.1 by the side of main road leading from Bollavaram to Kurnool and identified the stone which is marked as MO1 and stated that police seized the same under Ex.P11-Panchanama. It is also argued by the Special

Public Prosecutor that as per Ex.P22, the APFSL Report dated 17-12-2014, they have analyzed Mos.1 to 9 and detected human blood on Items 1 to 7 and 9 that include MO1 and also a blouse, saree, petty coat of the deceased, besides bed sheet, pillow and bontha, all of them are stained with blood. Mos.1 to 8 are seized at the time of inquest. As per Ex.P22, the blood group on the above 23 items was determined as B +ve. So, it is argued that MO1 also contain blood stains which are similar to that of Mos.1 to 7 and so, argued that with the help of the evidence of PW13, the guilt of A1 is proved by the prosecution. In the cross-examination, PW13 stated that on the date of inquest, he went to the scene of offence at 10

AM and by that time, except the daughter of deceased aged 20 years, no other relative was present. The said statement of PW13 is false to the core, because the Inquest was conducted from 2 PM to 4-30 PM, but not at 10 AM. Added to the same, by 10 AM, almost all the daughters of PW1 reached the scene of offence. PW13 further stated that he was called by the police over phone to directly come down to the Petrol Bunk and so, he went there and but cannot say the name of the police personnel who made the said call; that the petrol bunk is at a distance of half kilometer from the

MRO Officer and he went there on a bike; that the petrol bunk is on the Anantapur – Kurnool Highway and it is a busy road and it is a busy petrol bunk; that he has no personal acquaintance with A1 to

A3 and he failed to say whether there was any compound wall to the place, where MO1 was seized. Here, the counsel for the defence relied upon the following citations reported in

1996 Crl.L.J 3199

State of Madhya Pradesh .Vs. Surbhan “Indian Penal Code, 1860 – Section 302 – Appeal against acquittal – Trial court convicted accused for offence of murder –

Appeal – Medical Report – Showed three separate injuries –

Accused inflicted injury once based on evidence of child witness –

Order of High Court of acquittal was sustainable – Evidence – FIR –

Cannot be used as substantive evidence or corroborating a 24 statement of third party as it can be used either to corroborate or for contradiction of its maker – Appeal dismissed.”

It is held at Para-4 that “A reading of the medical evidence clearly indicates that there incised wounds were inflicted upon the deceased, one on the nape of the neck, another on the left side of mandible and third on the left side of the elbow joint. In other words, there are three separate injuries inflicted upon the deceased, by three separate blows but

PW2 does not speak of the accused having inflicted those three injuries. Prosecution case is that the accused-respondent had inflicted the injury only once and that too from behind. The accused-respondent had inflicted the injury only once and that too from behind. The single blow cannot cause three incised injuries of different dimensions at three different places.”

2009 (3) SCC (Crl.) 1039

State of M.P .Vs. Wazir Khan “In the light of evidence of doctor and eye witness it was held that the prosecution has failed to prove its case beyond reasonable doubt. Case of the prosecution that the bomb was thrown at the deceased is belied by the medical evidence and the fact that no injury by glass pieces was found on the body of the deceased. We hold that the prosecution has failed to prove its case beyond reasonable doubt.”

After taking into consideration the entire evidence available on record, I am of the view that the prosecution failed to prove the guilt of accused/A1 beyond all reasonable doubt. This point is answered accordingly.

21. In view of my findings on Points 1 and 2, the conclusion is that prosecution failed to prove the guilt of A1 to A3 for the 25 charged offences beyond all reasonable doubt, accordingly they are entitled for acquittal.

22. In the result, A1 is found not guilty for the charged offence U/s.302 IPC; A1 to A3 are found not guilty for the charged offence U/s.120-B IPC; A2 and A3 are found not guilty for the charged offence U/s.302 r/w.109 IPC; and they are acquitted of the said offences, U/s.235(1) Cr.P.C. The bail bonds of A1 to A3 shall stand cancelled subject to provisions of Section 437-A Cr.P.C.

MOs.1 to 9 shall be destroyed after expiry of appeal time.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in open Court, this the 7th day of March 2017.

Special Judge for trial of cases

under SCs & STs (PoA) Act –cum- VI Additional Sessions Judge, Kurnool

Appendix of Evidence

Witnesses Examined.

For Prosecution For Defence

PW1: Gajjela Mahadevi DW1: Dr.Sanjeeva Kumar PW2: Masipogu Pushpaleela @ Pushpavathi PW3: Parigela Sudhakar PW4: Reddypogu Shantha Kumari PW5: Gajjela Lakshmi Devi PW6: Gajjela Yellaswamy PW7: K.Lakshmi Devi PW8: Golla Parvathamma PW9: B.Padmavathi PW10: P.Chinna Madhu PW11: P.Ruthamma PW12: Nayakanti Naresh PW13: P.Chandrasekhar, V.R.O PW14: V.Jagan Mohan Rao, Nodal Officer, Telenor PW15: C.Siva Prasada Rao, Police Constable (IW) PW16: Dr.Y.K.C.Rangaiah, Asst. Professor, Forensic Medicine PW17: Muralidhara Seshadri, Nodal Officer, Airtel PW18: G.V.Kiran, Woman Police Constable PW19: B.Venugopal, Police Constable 26

PW20: T.Narendra Kumar Reddy, Sub Inspector of Police PW21: V.Sreenivasa Reddy, Inspector of Police

Exhibits Marked

For Prosecution: Ex.P1: Complaint of PW1 Ex.P2: Sec.161 Cr.P.C Statement of PW3 Ex.P3: Sec.161 Cr.P.C Statement of PW4 Ex.P4: Sec.161 Cr.P.C Statement of PW7 Ex.P5: Sec.161 Cr.P.C Statement of PW8 Ex.P6: Sec.161 Cr.P.C Statement of PW9 Ex.P7: Sec.161 Cr.P.C Statement of PW10 Ex.P8: Sec.161 Cr.P.C Statement of PW11 Ex.P9: Sec.161 Cr.P.C Statement of PW12 Ex.P10: Inquest Report Ex.P11: Seizure Panchanama Ex.P12: Call List relating to Mobile No.9059585164 Ex.P13: Postmortem Report Ex.P14: RFSL Report Ex.P15: Final Report Ex.P16: Call List relating to Mobile No.9959245598 Ex.P17: Call List relating to Mobile No.9949454211 Ex.P18: Original F.I.R Ex.P19: Rough Sketch Ex.P20: Relevant portion of Confession of A1 in Ex.P11 Ex.P21: Proceedings of the Superintendent of Police Ex.P22: RFSL Report dated 28-1-2015

For Defence: Ex.D1: Portion of Sec.161 Cr.P.C Statement of PW1 Ex.D2: Attested copy of Attendance Register Ex.D3: Relevant entry at Serial No.12 in Ex.D2

Material Objects Marked

MO1: Big Stone MO2: Blouse MO3: Blood stained Green, yellow and snuff colour Bed Sheet (Bontha) MO4: Blood stained blue colour pillow MO5: Blood stained white, black and red colour Bed Sheet MO.6: Blood stained cement flooring powder MO.7: Control powder MO.8: Blue colour saree MO.9: Violet colour petty coat

Special Judge for trial of cases

under SCs & STs (PoA) Act –cum- VI Additional Sessions Judge, Kurnool

1

In the Court of the Special Judge for Trial of Cases under SCs &

STs (PoA) Act –cum- VI Additional Sessions Judge, Kurnool.

Present:- Sri.V.V.Seshu Babu,

Special Judge for Trial of Cases under SCs & STs (PoA) Act

-cum- VI Additional Sessions Judge, Kurnool.

Tuesday, the 7th day of March, 2017

SESSIONS CASE No.444 of 2015

Name of the accused.1)Gajjela Sudhakar, S/o.Chinnanna, 28 years, Caste: Madiga, R/o.H.No.2-13, Bollavaram village, Kallur Mandal 2)Gajjela Surendra Kumar, S/o.late G.Dubbalanna @ Chinnanna @ Chinna Ayyanna, 33 years, H.No.1-23, Bollavaram village, Kallur Mandal, now at opposite to NCC Canteen, Shyamala Nagar, H.No.86-204-23, Kurnool 3)Gajjela Sekhar, S/o.Gajjela Chinnanna, age 30 years, Caste: Madiga, r/o.H.No.2-13, Bollavaram village, Kallur Mandal

Plea of the accused A1 to A3 pleaded not guilty.

Name of the police Crime No.155/2014 of Ullindakonda Police station and Cr.No. Station, U/Ss.120-B, 302 r/w.109 IPC.

Findings of the Judge A1 is found not guilty for the charged offence U/s.302 IPC; A1 to A3 are found not guilty for the charged offence U/s.120-B IPC; A2 and A3 are found not guilty for the charged offence U/s.302 r/w.109 IPC.

Sentence or order In the result, A1 is found not guilty for the charged offence U/s.302 IPC; A1 to A3 are found not guilty for the charged offence U/s.120-B IPC; A2 and A3 are found not guilty for the charged offence U/s.302 r/w.109 IPC; and they are acquitted of the said offences, U/s.235(1) Cr.P.C. the bail bonds of A1 to A3 shall stand cancelled subject to provisions of Section 437-A Cr.P.C.

The prosecution was conducted by the Additional Public

Prosecutor, Sri.Khajana Rao, and the accused/A1 to A3 are defended by Sri.P.Yellappa, Advocate for A1 and Sri. B.M.M, advocate, Kurnool for A2 & A3.

2

This case is coming on for final hearing before me on 7-2-2017 and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

01. The Inspector of Police, Kurnool Rural circle filed charge-sheet against A1 to A3 for the offences U/Ss.120-B, 302 r/s.149 IPC in Crime No.155/2014 of Ullindakonda police station.

02. The brief averments of the charge-sheet are that on A1 and A3 are brothers and A2 is the son of their senior paternal father. One Gajjela Dubbalanna is the father of A2. A2 &

Punyavatamma are children of G.Dubbalanna through his first wife. After the death of wife, he married Venkateswaramma who is the deceased in this case. PWs.1, 2, 5 and LW6-Gajjela Sridevi are the daughters of the deceased and Gajjela Dubbalanna. A1 & A3 are residents of Bollavaram village and A3 is a resident of Kurnool.

PW1, the youngest daughter of deceased, is working as Operation

Theater Assistant in Ayushman Hospital, Venkata Ramana Colony,

Kurnool. Except the deceased, her own children as well as the step children are not residing in Bollavaram and even after the death of husband, the deceased continues to live at Bollavaram by attending labour works in the fields of one Mr. Nagabhusanam Reddy and also personally cultivating their land. A1 developed suspicion over the character of the deceased after the death of her husband and is of the view that she had illegal intimacy with Mr. Nagabhusana

Reddy and used to quarrel with her on that ground. In this connection, a Panchayat was held in the presence of PW6, LW8- 3

Gajjela Aggri Ramudu and one Mr. Rajasekhar and in the said

Panchayat, A1 manhandled the deceased and it was pacified by the elders. A1 threatened the deceased that he would see her end at any time. On 24-11-2014 at 7 PM, PW1 came down to Bollavaram from Kurnool to see the deceased and after having supper, the deceased slept in the first room and PW1 in the next room of the newly constructed house, which was without doors. During midnight at about 1 AM, having heard the cries of deceased, PW1 woke up from the sleep and saw A1 throwing boulder on the head of the deceased. Having heard the cries of the deceased, PW3 who is their neighbour, came and saw A1 escaping from the scene of offence with boulder. PWs.1 & 2 went and found the deceased with bleeding injuries on right ear and right side of chin etc., and also found her dead. PW1 informed the death of her mother to the relatives over phone by stating that A1 killed her mother on the instigation and abetment of some of their relatives. As it was late night, PW1 presented a complaint to the police on 25-11-2014 by going to the police station. Basing on the said complaint, a case was registered at 8 AM on 25-11-2014. During the course of investigation, PW21 visited the scene of offence, examined and recorded the statements of PWs.1 to 5 and LW6-G.Sridevi and conducted inquest over the dead body and also drafted the rough sketch in the presence of mediators. He also recorded the statements of other witnesses and seized the material objects from the scene of offence and also available on the dead body and forwarded them to the RFSL, Kurnool for analysis. PW21 collected 4 the cell phone particulars of mobile numbers 9959245598 and 9652617423 of A1; 949454211 and 9059585164 of A2; and 9949962185 of A3 from the Nodal Officers of the concerned mobile companies and with the help of call data, came to conclusion that

A2 & A3 conspired with A1 to do away with the life of deceased. On 11-2-2014 at 15-00 Hours, PW21 apprehended A1 to A3 and on interrogation made in the presence of mediators, A1 to A3 confessed to have committed the offence and their confessional statement was recorded in the presence of mediators and they were arrested at 17-00 Hours. In pursuance of the confession of A1, the boulder used by him in the commission of offence with blood stains, was recovered at Bollavaram village under cover of seizure panchanama. A1 to A3 were sent to the court for remand. The dead body was sent for autopsy and the doctor who conducted the same, opined that the death occurred due to head injury. As there is no incriminating material against one Gajjela Chinnanna, his name was deleted with the permission of the Superintendent of

Police, Kurnool vide proceedings dated 6-5-2015; hence, the charge-sheet against A1 to A3.

03. The case is taken on file in P.R.C.No.111/2015 by the

Judicial Magistrate of first Class, Kurnool for the offences

U/Ss.120-B, 302 r/w.109 IPC. On appearance of accused, the learned Magistrate furnished copies to them U/s.207 Cr.P.C and having gone through the record, found the case as exclusively triable by the Court of Sessions, as such committed the same to the

Principal District & Sessions Court, Kurnool.

5 04. The learned Principal District & Sessions Judge,

Kurnool took the case on file U/Ss.120-B and 302 r/2.149 IPC and made over the same to this court for the purpose of disposal according to law.

05. On appearance of A1 toA3 and having heard the

Additional Public Prosecutor as well as the counsel for A1 to A3,

Charges U/s.302 PC against A1, U/s.120-B IPC against A1 to A3 and U/s.302 r/w.109 IPC against A2 & A3, framed, read over and explained to the accused in Telugu, for which they pleaded not guilty and claimed to be tried for the same.

06. To prove the guilt of accused, the prosecution examined

PWs.1 to 21 and got marked Exs.P1 to P22 and MOs.1 to 9. The

Additional Public Prosecutor has given up LW6-Gajjela Sridevi, the

second daughter of deceased; Gajjela Aggi Ramudu who conducted the alleged Panchayat, LW12-M.Akbaruddin who said to have noticed A1 & A2 proceeding on a motor bike by armed with sticks on 22-11-2014; LW17-K.Pittala Prabhavathi, LW8-Talari

Anjaneyulu who are the witnesses at the time of Inquest and with that, the prosecution side closed.

07. A1 to A3 are examined U/s.313 Cr.P.C, for which they denied the incriminating available against them and reported defence evidence. DW1 is examined and Ex.D2 & D3 are marked through DW1 and Ex.D1 is the contradictory portion in the Sec.161

Cr.P.C Statement of PW1.

6 08. Heard the arguments of both sides.

09. Now, the points for consideration are:

1) Whether A1 murdered the deceased Venkateswaramma with an intention to kill her, by throwing bounder/MO1?

2) Whether in pursuance of the conspiracy or abetment of A2 and A3, A1 committed the murder of deceased?

3) Whether the prosecution established the guilt of accused against the charged offences?

10. PW1 is the fourth/the youngest daughter of the deceased and she is eye witness as well as defacto-complainant in the case. She categorically deposed that on the intervening night of 24/25-11-2014 at about 1 AM, she saw A1 killing her mother by throwing a boulder and running away from the scene of offence by carrying the same boulder.

10-A. PW2 is another daughter of the deceased, who is resident of Shareen Nagar, Kurnool deposed that she came to know that a Panchayat took place four months prior to the death of the deceased in which the deceased refused to stop the agricultural works in the lands of Mr. Nagabhusan Reddy and so, A1 to A3 developed grudge against the deceased; that she came to know through PW1 that, A1 killed the deceased with a boulder in their house at Bollavaram.

10-B. PW3, the eye witness to the incident for observing A1 running away with boulder from the house of deceased, deposed that he did not witness such incident and about 1½ years back at 7 7 AM, having observed gathering in front of the house of deceased; went there and found Venkateswaramma dead with a head injury.

10-C. PW4 deposed that having learnt about the death of deceased, she went and saw the dead body, but does not know who murdered the deceased.

10-D. PW5, another daughter of the deceased, deposed that two months prior to the death of the deceased, a Panchayat was conducted in their house headed by PW6, LW8-G.Aggiramudu and one Mr. Rajasekhar and in that, A1 beat the deceased; that 15 days prior to the date of death, she went to Bollavaram and went to the house of Mr. Nagabhusana Reddy to talk with his children and wife, who informed that the accused hatched a plan to do away with the of deceased and advised PW5 to inform her mother to be on guard; that on 25-1-2014 received a phone call from PW1 that

A1 killed the deceased.

10-E. PW6 deposed that he conducted a Panchayat between

A2 and the deceased, Venkateswaramma, when A2 wanted to get back the land in view of Venkateswaramma/deceased developed illegal intimacy with Mr. Nagabhushan Reddy who has be; that panchayat was conducted about 1½ years back in the house of late Dubalanna at Bollavaram; that as A2 wanted to cultivate the land by investing amount, the elders advised A2 to invest in the cultivation and it shall be done by the deceased; accordingly A2 and the deceased mutually cultivated the land for one year.

8 10-F. PW7, the wife of Mr. Nagabhusanam Reddy deposed that she does not know anything about the case and she does not know the daughters of deceased.

10-G. PW8 deposed that she does not know anything about the case. PW9 also deposed in the same lines.

10-H. PW10 deposed that A1 is his maternal uncle and he obtained a mobile phone bearing No.9959245598 of AIRTEL company in the year 2012, since then has been using the mobile number and same SIM card for himself.

10-I. PW11 deposed that she is having Aadhar Card and she also took photographs and about three years back, her husband took the SIM Card with her Aadhar Card and she does not know anything about the case.

10-J. PW12 deposed that he is having mobile number 9949962185 and obtained the SIM from AIRTEL company six or seven years back and except that does not know anything about the case.

10-K. PW13, the V.R.O of Bollavaram deposed that he was present at the time of inquest conducted over the dead body of deceased and after observing the statements of witnesses, they have opined that A1 to A3 have killed the deceased and also stated that on 11-12-2014 he acted as mediator for arrest of A1 to A3 and recovery of boulder of A1 on the main road leading from Bollavaram to Kurnool.

9 10.L. PW14, the Nodal Officer of TELENOR Company Pvt Ltd, deposed that about 2 years back UNINOR company was renamed as TELENOR and they have furnished the call data for the mobile number 9059585164 for the period from 1-10-2014 to 25-11-2014 on the request of police and the said mobile stands in the name of

A2 and they have also furnished the call list relating to the said mobile number for the period form 1-10-2014 to 25-11-2014; that on 22-11-2014 at 11:38:47 a call went for the above mobile number to another mobile number 9652617423.

10-M. PW15 is the constable who deposed that on 25-11-2014, along with PW21, went to the S.C. Colony, Bollavaram and to the dictation of PW21, wrote Ex.P10-Inquest and also scribed the statements of PWs.10 to 12 to the dictation of the

Inspector of Police.

10-N. PW16, Assistant Professor who conducted postmortem examination on the dead body of the deceased, deposed that he found 10 external injuries and the death occurred due to head injury which can be possible to sustain with a boulder/MO1; that he preserved the viscera etc., and they were sent to the RFSL and the death occurred 24 to 36 hours prior to the autopsy.

10-O. PW17 deposed that he is the Nodal Officer working in

Bharathi AIRTEL and they have furnished the call details for mobile numbers 9959245598 and 9652617423 of A1; and the mobile number 9949454211 of A2 and mobile number 9949962185 of A3 for the period from 1-10-2014 to 25-11-2014 along with customer 10 application forms and the mobile number 9949454211 was allotted in the name of one J.Prasad.

10-P. PW18, police constable deposed that on 25-12-2014 she along with the Sub Inspector and Inspector of Police went to

Bollavaram village and to the dictation of the Inspector of Police, she scribed the statements of PWs1 to 7 and other witnesses.

10-Q. PW19 deposed that he is working as constable; that on 26-12-2014, along with the Inspector of Police, went to Bollavaram and scribed the statements of PWs.7 to 9 AND Lw12-Akbaruddin to the dictation of PW21.

10-R. PW20, the Sub Inspector of Police, deposed that on 25-11-2014 at 8-00 AM while he was in the police station, PW1 came and presented written complaint under Ex.P1 and basing on the same he registered a case in Crime No.155/2014 U/s.302 IPC and submitted Express F.I.Rs to all the concerned and informed the incident and when the Inspector of Police came at 11-45 PM, accompanied him to the scene of offence and he assisted the

Inspector in the investigation.

10.S. PW21 deposed about the investigation, like recording of statements of witnesses, conducting Inquest, sending the dead body for postmortem, seizure of material objects, regarding the confessional statements of accused, obtained call data for the mobile numbers etc,.

11 11. Point No.2:

Ex.P1 is the Telugu written report submitted by PW1 on 25-11-2014 at 8 A.M to PW20. As per the same, PW1 went to the

Ullindakonda police station on 25-11-2014 and presented the complaint wherein it is categorically mentioned that she observed

A1 killing the deceased with a boulder and when he was running away from the scene of offence on seeing her; that it was witnessed by PW3 and she found along with PW3 the deceased dead with injuries at the right ear with profuse bleeding and she informed about the same over phone to the relatives and further stated that somebody were behind A1 in killing the deceased and as the incident took place in the nigh time, she came to the police station on the nest day and presented Ex.P1.

12. As per the prosecution, PW1 is the direct witness for the murder committed by A1 and PW3 is an immediate circumstantial witness, when A1 was running away from the house of deceased by carrying a boulder. It is also the contention of the prosecution that the deceased, after the death of her husband late Dubbalanna, developed illegal intimacy with one Mr. Nagabhusan Reddy and she refused to sever her illegal contacts with Mr. Nagabhusan Reddy inspite of the warning of A3 and other relatives and in a Panchayat conducted two months prior to the death, A1 quarreled for continuing illegal contacts with Mr. Nagabhusan Reddy and threatened her to do away with life.

12 13. It is a case of total denial of offence by the accused and further their contention is that PW1 was not present in the scene of offence at the time of incident; that in order to grab the properties, hatched a plan and implicated A1 to A3 in the offences, because if

A2 is sent to jail, the daughters of deceased would get the entire property. It is also the contention of defence that at the instance of

Mr.Nagabhusan Reddy, PW1 and her sisters foisted the case. With this background, one has to observe how far the prosecution is able to prove the guilt of A1 to A3 for the charged offences.

14. No direct evidence is available tn the prosecution to prove conspiracy between A1 to A3 or for the alleged abetment of

A2 & A3 with A1 to do away with the life of the deceased. PW6 was examined to establish that a Panchayat took place two months prior to the death of deceased in the house of deceased and in the said Panchayat, A1 beat the deceased when she refused the allegations with a demand to prove the same and A1 even threatened her to do away with the life at any time. It is also the contention of prosecution that PW5 attended the said Panchayat.

PW6 deposed that he conducted Panchayat about 1½ years back, and two months prior to the death of deceased; that the said

Panchayat was arranged as A2 intended to cultivate their lands which are being cultivated by Mr.Nagabhusan Reddy and so, elders advised A2 to provide finance for the cultivation and the cultivation will be done by the deceased; that accordingly the deceased and A2 mutually conducted cultivation for one year. Except that PW6 not 13 stated about A1 beating the deceased in the Panchayat or PW5 participation in the Panchayat etc. The other panchayatdar by name Gajjela Aggiramudu (LW8) was given up by the prosecution.

Another Panchayatdar by name Mr. Rajasekhar is not cited as a witness. PW6 was not declared as hostile. It means, what all stated by PW6 in the chief examination, can be accepted without any doubt. The net result is that the prosecution failed to prove that A1 beat the deceased in a Panchayat, when she refused to sever her illegal contacts with Mr. Nagabhusan Reddy etc,.

15. PW5 deposed that there are disputes between their family and A1 to A3 from their childhood onwards; that since 2012 the deceased alone attending cultivation by staying at Bollavaram as all her daughters left for studies; that A1 to A3 are having disputes with PW1 for agricultural lands; that two months from the date of incident, Panchayat was conducted in her house at

Bollavaram; that PW6, LW8-G.Aggiramudu and one Mr. Rajasekhar acted as elders for the panchayat; that she was present along with mother at the time of Panchayat; that A1 to A3 quarreled with the deceased for attending the agricultural work in the lands of Mr.

Nagabhushan Reddy and even imputed illegal contacts for her mother with Mr. Nagabhushan Reddy; that her mother denied all the allegations and further questioned them to show any proof of her unchastity and aggrieved by such reply A1 beat her mother ; that when she questioned the accused for beating her mother, A2 replied that A1 is the husband of her mother and so, he beat her 14 and thereafter she went away to Anantapur. Except the version of

PW6, no corroboration is forthcoming from any corner to prove the

Panchayat that took place two months from the date of incident and also the incident happened therein. PW5 further stated that fifteen days prior to the death of her mother, she went to

Bollavaram for holidays and went to the house of Mr. Nagabhusana

Reddy to talk with his children; that the wife of Mr. Nagabhusana

Reddy i.e, PW7 informed her that, the accused hatched a plan to kill the deceased and asked them to be on guard; that she informed the same to the deceased and went away. PW7 deposed that she does not know the deceased, including her daughters, which includes PW5 and does not know anything about the case. PWs.8 & 9 were also examined to prove that accused hatched plan to do away with the life of deceased on 22-11-2014 around 3-30 PM, both PWs.8 & 9 turned hostile and stated that they do not know anything about the case. LW12 (name of the witness is to be typed) was cited as a witness to prove that A1 & A2 went on motor cycle by holding sticks on 22-11-2014 at about 3 PM. Probably in order to establish their intention to do away with the life of deceased in pursuance of their alleged conspiracy, LW12 was cited as a witness, but he was given up. Therefore, no evidence is forthcoming about the alleged conspiracy of A1 to A3. The call data relating to the mobile numbers is filed through PWs.14 & 17.

Exs.P16 & P17 are the call data relating to the mobile number 9959245598 belong to A1 and relating to the mobile number 9949454211 of Mr. J.Prasad. Ex.P12 is the call data relating to the 15 mobile number 9059585164 which belongs to A2. It is important to note that all the call data's are documents submitted without any certification as required within the provision of Section 65B of the

Indian Evidence Act. Here, the counsel for accused relied upon a decision reported in

2017 AIAR (Crl.) 102

Harpal Singh @ Chhota .Vs. State of Punjab “11. Qua the admissibility of the call details, it is a matter of record that though PWs 24, 25, 26 and 27 have endeavoured to prove on the basis of the printed copy of the computer generated call details kept in usual ordinary course of business and stored in a hard disc of the company server, to co-relate the calls made from and to the cell phones involved including those, amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under Section 65-B(4) of the

Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under Section 65 of the Act had been complied with, in the teeth of the decision of this Court in Anvar P.V. (supra) ordaining an inflexible adherence to the enjoinments of Sections 65-B(2) and (4) of the Act, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of

Section 65B(2) had been complied with, in absence of a certificate

under Section 65B(4), the same has to be held inadmissible in

evidence (emphasis supplied by me).

In view of the above citation, the call data's as produced in this case, are inadmissible in evidence. Even if the call data is believed, the exchange of calls will not automatically establish what conversation went between them, more so, the conversation 16 relating to the elimination of the deceased. Added to the same,

PW10 stated that he obtained mobile number 9959245598 and he is using the same. Merely because A1 happened to be uncle of

PW10, no conclusion can be drawn that the said mobile phone was used by A1 for conspiracy to eliminate the deceased. PW11 stated that her husband took her Aadhar Card and photographs and obtained mobile number, but not stated anything that her husband given the same to anybody. It means, the mobile is being used by the husband of PW11. PW12 deposed that he is having mobile number 9949962185 and he took it about six years back and using the same. After going through the above evidence, I am of the view that the prosecution miserably failed to prove the guilt of A2 & A3, either for the offence of conspiracy or for abetment of A1. So, this point is answered accordingly.

16. Point No.1: Ex.P1 is said to have been given by PW1 in the police station on 25-11-2014 at 8 AM. PW20, the

Sub Inspector of Police who registered the F.I.R basing on Ex.P1, stated that he received the same in the police station, when PW1 came there and also stated that he has no information about the incident prior to Ex.P1. Bollavaram is about 15 KM from the

Ullindakonda police station. PW1 deposed that at about 8 AM on 25-11-2014, when police came to the scene of offence, presented

Ex.P1 and she scribed it. So, it is argued that Ex.P1 is a concocted document and it was leisurely prepared to suit the needs of the case. Here, the counsel for the defence argued that as per PW3, the another alleged eye witness to the incident, he came to know about 17 the same murder at about 7 AM, having observed gathering in front of the house and when she went there, came to know about the death of Venkateswaramma and in the cross-examination, stated that the daughters of deceased and other relatives were not in the house at 7 AM and after 7-30 AM, PW1, A2 and others came to the house of the deceased. So, it is the contention of defence that PW1 was not there in the house and witnessed the incident as contended by her. It is important to note that PW3 was declared as hostile and not supported the case of prosecution from any angle and he developed a distorted version in the cross-examination as well as in the chief. Therefore, it is the argument of the Special

Public Prosecutor that undue importance need not be attached to the evidence of PW3. It may as it be there.

17. Admittedly, PW1 was working as Operation Theatre

Assistant in Ayushman Hospital, Venkata Ramana Colony,

Kurnool, by the date of incident and it is her version that on 24-11-2014 at 7 PM, she came down to Bollavaram to see her mother. Bollavaram is about 20 KM from Kurnool. Therefore, time of 30 to 45 minutes is sufficient to reach Bollavaram from Kurnool.

It is also the further argument of the defence that PW1 shall be considered as a chance witness, because she is not a regular resident of Bollavaram and the evidence of the chance witness shall be scrutinized with great care and caution and also argued that as the entire case relies upon the sole testimony of PW1 and as she happened to be a chance witness; besides that in view of the 18 discrepancy regarding the place at which Ex.P1 was lodged, her version cannot be believed at all.

18. It is the contention of the defence that on 24-11-2014

PW1 was present in the Ayushman Hospital itself and to establish the same, relied upon the evidence of DW1 and also Ex.D2, which is the attested copy of the attendance register of Ayushman hospital for the month of November 2014 and Ex.D3 is the relevant entry at Sl.No.12, where under the name of PW1 is mentioned and in the attendance register, her initials are there. DW1 deposed that the usual duty timings of Operation Theatre Assistant are from 9

AM to 9 PM and also stated that he is aware of the fact that PW1 stayed in the hostel, while working in the hospital and further stated that their hospital provided hostel facility to few of the staff members. In the cross-examination of the Additional Public

Prosecutor, DW1 stated that as per the letter addressed by him to the Court, PW1 attended the duties both on 24th and 25th of

November 2015 and it cannot be correct in view of the abundance of evidence with regard to the presence of PW1 on 25-11-2014 at

Bollavaram from 7-30 or 8 AM onwards. DW1 further stated that he cannot specifically state whether PW1 was in the hostel on the night of 24-11-2014? and also added that PW1 is not actually an employee, but she came to the hospital for nurse training. So, the evidence of DW1 is not specific enough to conclude that PW1 stayed in the hostel on 24-11-2014 night and she came down to

Bollavaram on 25-11-2014 only. As I already stated supra, in view 19 of the short distance between Kurnool and Bollavaram, there is every likelihood of PW1 going to the house of her mother on 24-11-2014 itself. DW1 also not specifically stated that on 24-11-2014, operations went on in their hospital in the evening/night also upto 9 PM. Therefore, the mere office timings of an Operation Theatre Assistant from 9 AM to 9 PM is not a yardstick to presume that, always the Operation Theater Assistant will stay in the hospital upto 9 PM. Depending upon the number of operations in a day, some times the time may go beyond 9 PM or the operations may not be there on a particular day or the operations may conclude at any time before 9 PM or in the evening.

The learned counsel for the defence relied upon the following citations reported in:

1996 AIR (SC) 3471

Alil Mollah .Vs. State of West Bengal “Evidence – Indian Penal Code, 1860 – Section 302/34 offence under – Conviction of – Facts only one eye witness – Before passing conviction order there must be prima facie evidence before the

Court to come to the conclusion that single eye witness is only reliable party and his evidence is corroborative with testimony with other evidence – Appeal allowed.”

It is held at Para-3 that “It is not well established that conviction can be based on the testimony of a single eye-witness provided the Court finds from the scrutiny of his evidence that he is a wholly reliable witness, where, however, the Court is of the opinion that the single eye-witness is only partly reliable, prudence requires that corroboration of testimony in material particulars should be sought before recording 20 conviction. It is in the light of these well settled principles that we shall examine the testimony of PW-3.”

1997 (1) ALT (Crl.) 423

Channala Ram Reddy

.Vs.

State of Andhra Pradesh rep., by Public Prosecutor “I am of the view that PW1 was only a chance witness and that he could not have seen the accused-appellants beating the deceased.

He might have received some injuries elsewhere just like the other injured witnesses in this case. His evidence bristles with contradictions and improbabilities and cannot be accepted.”

2017 (1) ALD (Crl.) 48 SC

Mahavir Singh .Vs. State of Madhya Pradesh “It is to be seen that although the evidence of a chance witness is acceptable in India, yet the chance witness has to reasonably explain the presence at that particular point more so when his deposition is being assailed as being tainted.”

With the help of the above citations, it is contended by the defence that PW1 is a chance witness, partisan witness and only alleged eye witness to the incident and in view of the discrepancy as pointed out regarding the lodging of Ex.P1, without corroboration her evidence cannot be taken into consideration to register a conviction.

19. The defence counsel further argued that Ex.P13 is the postmortem examination report in which PW16 stated that, he found as many as 10 external and internal injuries on the body of the deceased. PW16, after receiving the RFSL Report, gave the final opinion that the death occurred due to the head injury. PW16 21 stated in the cross-examination that the Injuries 1 to 5 & 10 as appearing in Ex.P13, are distinct injuries; whereas Injuries 7 to 9 are hemorrhages sustained in and around the brain and also stated that Injuries 1 to 5 and 10 are not possible to sustain due to a single blow, because those injuries require separate blows and also stated that if a boulder like MO1 came into

contact with the head, there cannot be any hue and cry from

the injured. As per PW1, having heard the cries of deceased, she woke up from the sleep around 1 AM on the intervening night of 24/25-11-2014 and after she woke up, found A1 running away by carrying a big boulder (MO1) from the house. It means, she had not witnessed A1 throwing the boulder at the head of PW1. It is also not her case that A1 caused other injuries which are mentioned as distinct by PW16, with any other weapon or MO1. In view of the evidence of PW16, there cannot be any hue and cry from the deceased after receipt of head injury with a boulder like MO1.

Even if for any other reason she made such cries, there is no evidence from the prosecution to show that A1 caused Injuries 1 to 5 and 10 with the boulder which are distinct in nature. The incident took place in the dead of a night, that too, in an under constructed house which has no doors and windows. The prosecution not came forward with any version that there was any electric light glowing by that time, or at-least a bed light in the room of deceased. Ex.P19 is the rough sketch of the scene of offence and it goes to show that there was an electric pole in the

South-West corner of the house of PW3; so also, that of deceased, 22 at some distance. It is not the contention of PW1 that she identified A1 under the glow of street light. It is not the contention of PW1 or prosecution that A1 talked anything while committing the offence in order to contend that PW1 identified A1 by voice.

Added to the same, the weight of MO1 will be more than 10 KG and it is difficult for anybody to run away by holding that stone. For these reasons, I am of the view that it is not safe to rely upon the uncorroborated sole testimony of PW1.

20. The Special Public Prosecutor argued that PW13, the

V.R.O, deposed that on 25-11-2014 he acted as mediator for the inquest held on the dead body of the deceased Venkateswaramma and on 11-12-2014 he was again called by the police and along with the police, went near Petrol Bunk, Kallur, where A1 to A3 were found and arrested by the police and accused have confessed to have committed the offence and at the instance of A1, went to

Bollavaram village at about 5-30 PM and seized MO.1 by the side of main road leading from Bollavaram to Kurnool and identified the stone which is marked as MO1 and stated that police seized the same under Ex.P11-Panchanama. It is also argued by the Special

Public Prosecutor that as per Ex.P22, the APFSL Report dated 17-12-2014, they have analyzed Mos.1 to 9 and detected human blood on Items 1 to 7 and 9 that include MO1 and also a blouse, saree, petty coat of the deceased, besides bed sheet, pillow and bontha, all of them are stained with blood. Mos.1 to 8 are seized at the time of inquest. As per Ex.P22, the blood group on the above 23 items was determined as B +ve. So, it is argued that MO1 also contain blood stains which are similar to that of Mos.1 to 7 and so, argued that with the help of the evidence of PW13, the guilt of A1 is proved by the prosecution. In the cross-examination, PW13 stated that on the date of inquest, he went to the scene of offence at 10

AM and by that time, except the daughter of deceased aged 20 years, no other relative was present. The said statement of PW13 is false to the core, because the Inquest was conducted from 2 PM to 4-30 PM, but not at 10 AM. Added to the same, by 10 AM, almost all the daughters of PW1 reached the scene of offence. PW13 further stated that he was called by the police over phone to directly come down to the Petrol Bunk and so, he went there and but cannot say the name of the police personnel who made the said call; that the petrol bunk is at a distance of half kilometer from the

MRO Officer and he went there on a bike; that the petrol bunk is on the Anantapur – Kurnool Highway and it is a busy road and it is a busy petrol bunk; that he has no personal acquaintance with A1 to

A3 and he failed to say whether there was any compound wall to the place, where MO1 was seized. Here, the counsel for the defence relied upon the following citations reported in

1996 Crl.L.J 3199

State of Madhya Pradesh .Vs. Surbhan “Indian Penal Code, 1860 – Section 302 – Appeal against acquittal – Trial court convicted accused for offence of murder –

Appeal – Medical Report – Showed three separate injuries –

Accused inflicted injury once based on evidence of child witness –

Order of High Court of acquittal was sustainable – Evidence – FIR –

Cannot be used as substantive evidence or corroborating a 24 statement of third party as it can be used either to corroborate or for contradiction of its maker – Appeal dismissed.”

It is held at Para-4 that “A reading of the medical evidence clearly indicates that there incised wounds were inflicted upon the deceased, one on the nape of the neck, another on the left side of mandible and third on the left side of the elbow joint. In other words, there are three separate injuries inflicted upon the deceased, by three separate blows but

PW2 does not speak of the accused having inflicted those three injuries. Prosecution case is that the accused-respondent had inflicted the injury only once and that too from behind. The accused-respondent had inflicted the injury only once and that too from behind. The single blow cannot cause three incised injuries of different dimensions at three different places.”

2009 (3) SCC (Crl.) 1039

State of M.P .Vs. Wazir Khan “In the light of evidence of doctor and eye witness it was held that the prosecution has failed to prove its case beyond reasonable doubt. Case of the prosecution that the bomb was thrown at the deceased is belied by the medical evidence and the fact that no injury by glass pieces was found on the body of the deceased. We hold that the prosecution has failed to prove its case beyond reasonable doubt.”

After taking into consideration the entire evidence available on record, I am of the view that the prosecution failed to prove the guilt of accused/A1 beyond all reasonable doubt. This point is answered accordingly.

21. In view of my findings on Points 1 and 2, the conclusion is that prosecution failed to prove the guilt of A1 to A3 for the 25 charged offences beyond all reasonable doubt, accordingly they are entitled for acquittal.

22. In the result, A1 is found not guilty for the charged offence U/s.302 IPC; A1 to A3 are found not guilty for the charged offence U/s.120-B IPC; A2 and A3 are found not guilty for the charged offence U/s.302 r/w.109 IPC; and they are acquitted of the said offences, U/s.235(1) Cr.P.C. The bail bonds of A1 to A3 shall stand cancelled subject to provisions of Section 437-A Cr.P.C.

MOs.1 to 9 shall be destroyed after expiry of appeal time.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in open Court, this the 7th day of March 2017.

Special Judge for trial of cases

under SCs & STs (PoA) Act –cum- VI Additional Sessions Judge, Kurnool

Appendix of Evidence

Witnesses Examined.

For Prosecution For Defence

PW1: Gajjela Mahadevi DW1: Dr.Sanjeeva Kumar PW2: Masipogu Pushpaleela @ Pushpavathi PW3: Parigela Sudhakar PW4: Reddypogu Shantha Kumari PW5: Gajjela Lakshmi Devi PW6: Gajjela Yellaswamy PW7: K.Lakshmi Devi PW8: Golla Parvathamma PW9: B.Padmavathi PW10: P.Chinna Madhu PW11: P.Ruthamma PW12: Nayakanti Naresh PW13: P.Chandrasekhar, V.R.O PW14: V.Jagan Mohan Rao, Nodal Officer, Telenor PW15: C.Siva Prasada Rao, Police Constable (IW) PW16: Dr.Y.K.C.Rangaiah, Asst. Professor, Forensic Medicine PW17: Muralidhara Seshadri, Nodal Officer, Airtel PW18: G.V.Kiran, Woman Police Constable PW19: B.Venugopal, Police Constable 26

PW20: T.Narendra Kumar Reddy, Sub Inspector of Police PW21: V.Sreenivasa Reddy, Inspector of Police

Exhibits Marked

For Prosecution: Ex.P1: Complaint of PW1 Ex.P2: Sec.161 Cr.P.C Statement of PW3 Ex.P3: Sec.161 Cr.P.C Statement of PW4 Ex.P4: Sec.161 Cr.P.C Statement of PW7 Ex.P5: Sec.161 Cr.P.C Statement of PW8 Ex.P6: Sec.161 Cr.P.C Statement of PW9 Ex.P7: Sec.161 Cr.P.C Statement of PW10 Ex.P8: Sec.161 Cr.P.C Statement of PW11 Ex.P9: Sec.161 Cr.P.C Statement of PW12 Ex.P10: Inquest Report Ex.P11: Seizure Panchanama Ex.P12: Call List relating to Mobile No.9059585164 Ex.P13: Postmortem Report Ex.P14: RFSL Report Ex.P15: Final Report Ex.P16: Call List relating to Mobile No.9959245598 Ex.P17: Call List relating to Mobile No.9949454211 Ex.P18: Original F.I.R Ex.P19: Rough Sketch Ex.P20: Relevant portion of Confession of A1 in Ex.P11 Ex.P21: Proceedings of the Superintendent of Police Ex.P22: RFSL Report dated 28-1-2015

For Defence: Ex.D1: Portion of Sec.161 Cr.P.C Statement of PW1 Ex.D2: Attested copy of Attendance Register Ex.D3: Relevant entry at Serial No.12 in Ex.D2

Material Objects Marked

MO1: Big Stone MO2: Blouse MO3: Blood stained Green, yellow and snuff colour Bed Sheet (Bontha) MO4: Blood stained blue colour pillow MO5: Blood stained white, black and red colour Bed Sheet MO.6: Blood stained cement flooring powder MO.7: Control powder MO.8: Blue colour saree MO.9: Violet colour petty coat

Special Judge for trial of cases

under SCs & STs (PoA) Act –cum- VI Additional Sessions Judge, Kurnool

IN THE COURT OF I ADDITIONAL DISTRICT JUDGE, KURNOOL

Present: - Sri. V.V.Seshu Babu I Additional District Judge, Kurnool.

Saturday, the 31st day of March, 2018

Original Suit No.25/2002

1. Smt.Rehana Begum, W/o.S.Farooq Basha, Aged 35 years, Muslim, R/o.D.No.15/199, Khadakpura Street, Kurnool.

2. Smt.Shajahan,W/o.S.Jameel Basha, aged about 38 years, Muslim, R/o.D.No.15/199, Khadakpura Street, Kurnool.

3. Shaheda Begum, W/o.K.Md.Rasool, aged about 42 years, Muslim, R/o.D.No.16/33, Peta, Khadakpura Street, Kurnool.

4. Syed Ali Akabar Basha Quadri, S/o.late Syed Fakir- Basha Quadri, Muslim, aged about 48 years, Muslim, R/o.D.No.45/24-K-58-2, Ashok Nagar, Kurnool (Died by LRs. Plaintiffs 12 to 15)

5. Syed Md.Taha Qaudri S/o.Syed Yaseen Basha Quadri, Aged 38 years, presently out of country, rep. By his father and General Power of Attorney holder Syed Yaseen Basha Quadri, S/o.Syed Ghouse Peer- Quadri, aged about 65years, Muslim, Resident of D.No.45/24-K-58-2, Ashok Nagar, Kurnool.

6. Abdul Hafeez @ Maqbool Ahmed, S/o.Abdul Gafoor, Muslim, aged 49 years, R/o.Door No.15/79, Khadakpura Street, Kurnool.

7. Syed Waheed Basha Bokhari, S/o.late Syed Jamal – Basha, aged about 31 years, Muslim, resident Of D.No.9/203, Park Road, Kurnool.

8. Syed Wajid Basha Bokhari, S/o.late Syed Jamal Basha, aged about 29 years, Muslim, resident of D.No.9/203, Park Road, Kurnool.

9. Md.Chand Basha, S/o.Shaik Hussain, aged 55 years, Muslim, R/o.D.No.6-2-78, Hatnarpeta, Gadwal Post, Mahaboob Nagar District.(Died by LRs.Plaintiffs 16 to 24).

10. Smt.Nazma Begum, W/o.Abdul Raheman, aged about 45 years, Muslim, R/o.D.No.41/293, Kothapeta, Kurnool (Died by LRs.Plaintiffs 25 & 26)

11. Zahira Banu, W/o.Md.Azeemuddin Khan, aged 40 years, Muslim, R/o.D.No.45/142-A-62, Azeemuddin Nagar, Teachers Colony, Kurnool.

12. Smt.Syed Irfana, W/o.late Syed Ali Akbar Basha Quadri, Aged about 42 years, Muslim.

13. S.Khudija, D/o. late Syed Ali Akbar Basha Quadri, 2

Aged about years, Muslim.

14. S.Ayesha, D/o. late Syed Ali Akbar Basha Quadri, Aged about years, Muslim.

15. Smt.Syeda Jani @ Hafeeza Begum, W/o.Late Fakeer Basha Quadri, aged about 80 years, Muslim.

Plfs. 12 to 15 are R/o.D.No.45/24-K-58-2, Ashok Nagar,Kurnool. (Plfs. 12 to 15 are added as LRs. Of Plf No.4 As per orders in IA.No.1251/2011 dt.8.7.2011)

16. Smt.Zaibunnissa Begu, W/o.Mohammad Chand Basha, Aged about 62 years.

17. Mohammood Pasha, aged about 43 years, Muslim.

18. Mohammad Ilyas Pasha, aged about 33 years.

19. Md.Imtiaz Pasha, aged about 30 years.

20. Smt.Zaheera Begum, aged about 39 years.

21. Smt.Shaheena Begum, aged about 37 years.

22. Smt.Hafsa Haseena Begum, aged about 35 years.

23. Smt.Rizwana Begum, aged about 32 years.

24. Smt.Ruksana Begum, aged about 28 years.

Plfs.16 is the wife, Nos.17 to 19 are sons and Nos.20 to 24 are daughters of late Mohammed Chand Basha, R/o. of H.No.6-2-78, Hatkarpeta, Gadwal, Mahaoob Nagar District and (P.16 to P.24 are added as LRs of Plft.9, As per orders in IA.1696/2011 dt.8.7.2011)

25. Abdul Raheman, S/o.late Abdul Kareem, aged About 59 years, Muslim, R/o.D.No.41/293, Kothapeta, Kurnool.

26. Smt.S.Fathima Shaheen, W/o.S.Khaja Hussain, Aged about 27 years, Muslim, R/o.D.No.41/293, Kothapeta, Kurnool. (Plf.Nos.25 is the husband, No.26 is the daughter of Plf.No.10.P.25 and P.26 are added as LRs of P.10 asper orders in IA.No.1/2013 dt.26.2.2013)

27. Md.Zubair, S/o.Abdul Hafeez @ Maqbool Ahmed, Aged about 34 years, Muslim, R/o.H.no.15/79, Khadakpura Street, Kurnool.

28. Smt.Rashi Mallika, W/o.Abdul Khader Jeelani, Aged about 35 years, Muslim, House-wife, R/o.D.No. of Mayma, Saudi Arabia.

29. Smt.Ayesha Mallika, W/o.Hakim Mohammad Fazlur, Raheman, aged about 30 years, Muslim, House wife, R/o.D.No. of Saudi Arabia. Plaint.27 is the son, Nos.28 & 29 are daughters Of Plaintiff NO.6 & Deceased Smt.Rashida Begum. (Plaintfs.27 to 29 are added as per orders in

IA.120/2017 dt.23.6.2017).

…Plaintiffs

Versus

1.The State of Andhra Pradesh, rep.by its Kurnool District Collector, Kurnool.

3

2. The Kurnool Municipal Corporation, rep. by its Commissioner, Kurnool.

3. The A.P.Tourism Corporation, rep. by its Managing Director and Chairman, Hyderabad.

4. B.Parameswara Singh, (land lord) S/o.late Laxman Singh, Major Hindu, R/o.Kothapeta, Kurnool, (Died Rep. by his L.Rs. Defts.5 to 10)

5. Smt.B.Laxmi Bai, W/o.late B.Laxman Singh, Aged 68 years, Door No.41/261, Kothapeta, Kurnool.

6. B.Surya Singh, S/o.lae B.Laxman Singh, aged 49 years, R/o.D.No.65/29, Kota, Kurnool. [

7. B.Vijaya Bhaskar Singh, S/o.B.Laxman Singh, Aged 30 years, Landlord, R/o.D.No.41/261, Kothapeta, Kurnool..

8. Smt.B.Ganga Bai, W/o.B.Bhavani Singh, aged 41 years, House wife, R/o.D.No.41/261, Kothapeta, Kurnool.

9. Smt.B.Parvathi Bai, W/o.Kiran Prathap Singh, Aged 40 years, Door No.41/261, Kothapeta, Kurnool.

10. Smt.B.Suseela Bai, W/o.Prathap Singh, aged 32 years, D.No.41/261, Kothapeta, Kurnool.

(D5 to D10 are added as LRs. Of D4, as per Orders in IA.No.2309/2007 dt.10.10.2007) … Defendants

This suit coming on 29.3.2018 for final hearing before me in the presence of Sri Md.Ishaq, Advocate for plaintiffs and Government

Pleader for D1, Sri D.Yella Reddy, Advocate for D2, Sri B.Ravikantha

Raju, Advocate for D3, Sri Yedire Srinivasulu, Advocate for Defendant

Nos.5,7 & 8, D4 died, and Defendants 6, 9, 10 having remained ex- parte and having gone through the material available on the record, this court delivered the following:

J U D G M E N T

01.The suit is filed by the plaintiffs for declaration of title and possession stating that plaintiffs 1 to 3 are absolute owners of Item

Nos.1 to 3 of plaint B schedule; plaintiffs 12 to 15 are the absolute owners of Item No.4 of plaint B schedule; plaintiffs 5, 6 and 27 to 29 together are the absolute owners of Item Nos.5 & 6 of plaint B 4 schedule; Plaintiffs 7 & 8 are the absolute owners of Item No.7 of plaint

B schedule; plaintiffs 9 to 11 are the absolute owners of Item Nos.8 to 10 plaint B schedule; that the defendants are not entitled to occupy plaint A schedule property or any part thereof and for consequential permanent injunction restraining the defendants and their men from making any constructions in the plaint A and B schedule properties and also for mandatory injunction directing the defendants to demolish the permanent constructions made in the plaint A and B schedule properties and for costs.

02.The brief facts in the plaint and amended plaint are that, one late B.Laxman Singh was the absolute owner of the plaint A schedule property to an extent of Ac.0.66 cents out of Ac.11.00 covered by Sy. No.394-C of Kallur village, having purchased the same under Registered sale deed dt.10.10.1924. Sri B.Laxman Singh died on 17.8.1975 and one of his surviving sons by name Mr.B.Parameswara

Singh got the suit schedule property to his share in the year 1976. He sold the property by dividing the same into 10 plots as mentioned in the plaint B schedule. The 2nd defendant also recognized the title of Mr.

B.Parameswara Singh vide its Resolution C.R.No.559, dt.19.9.1990. In fact Mr. B.Parameswara Singh gave proposal to exchange his land i.e.

A schedule land in favour of D2, for open space covered by

L.P.No.219/1979; however, it was not materialized. There after only, he sold the property. The Plaintiffs 1 to 6, one Smt.Rasheeda begum, wife of 6th plaintiff, late Syeda Shah Jahan mother of Plaintiff No.7, plaintiff

Nos.8, 9 to 11 are the purchasers of plot Nos.1 to 10 ( The purchases made by them is shown in Tabular form in Para No.4 of the plaint). Ever since the purchase, they have been in possession and enjoyment of the 5 extents purchased by them. After the death of Rasheeda Begum on 14.9.1996, and Syeda Shahjahan Begum on 5.5.2002, all the plaintiffs and the legal representatives of the above two have been in possession and enjoyment of the property. 6th plaintiff also succeeded half share out of 6th plaintiff’s property. Likewise two sons of Syed Shahjahan

Begum i.e. plaintiffs 7 and 8 have succeeded Item No.7. Plaint A schedule property is shown between points ABCD and plots are laid thereon shown in the plaint plan No’s.I & II. While matters stood thus, in the year 1999, D2 tried to disturb the plaintiffs’ possession over A schedule property for implementation of Drought Prone area

Programme of the Government. Then the plaintiffs have protested.

On 26.3.2002, the husband of Plaintiff No.2 by name Mr.Jameel Basha and 6th plaintiff have found that fencing was arranged on the southern side of the plaint A schedule property and construction work was going on and on enquiry with the officials of D3, it came to their knowledge that the State Government and D2 delivered possession of vacant land on the West and South of Head Water Works to an extent of Ac.5.00 including the plaint A schedule land to D3, and D3 has been making constructions. In spite of objections of the plaintiffs, still constructions are going on. Notices were issued to all the D1 to 11 dt.3.4.2002 by

Registered post with Acknowledgement Due, but the illegal activities are going. D2 has been digging the land in plaint A and B schedule properties to make permanent constructions on the Northern side.

Pending the case 4th plaintiff died on 6.2.2009, and so, his legal representatives i.e. plaintiffs 12 to 15 are added as parties to the suit.

Likewise, 9th plaintiff died on 19.3.2010 and plaintiffs 16 to 24 are added to represent his interest. 10th plaintiff died on 2.10.2012 and legal representatives are added as parties; 6th plaintiff and his wife 6

Rashida Begum who died on 14.9.1996 is survived by plaintiffs 27 to 29 and they were also added as parties to the suit; hence, the suit.

03.D2 filed written statement and it is adopted by D1.

04.The brief averments of the written statement of D2 are that plaintiffs are put to strict proof of all the averments made in the plaint except those that are admitted. Plaint plan is incorrect and it does not disclose all the features available on the ground including the physical features in plaint A & B schedule properties and their surroundings. On ground, plaint A schedule properties cannot be located. For extension of Water Works of D2, the land belonged to D.Kanthaiah & D.Kondaiah was acquired to an extent of Ac.4.83 cents, covered by Sy.No.394/A under the Land Acquisition Act in pursuance of Award No.4/77 dated 5.4.1977. The said extent was having different boundaries. D2 paid the award amount and took possession of the property and the handing over and taking over of the possession was recorded with plan. The lands situated surrounding the water works of Kurnool Municipal

Corporation, are in approved lay out. Without prejudice to the rights of the continents of D2, even if any land in Sy.No.394/C/1-A/1C i.e. plaint

A schedule land, is also under the control and possession and enjoyment of D2 since 1977 without interruption from anybody and to the knowledge of one and all including the plaintiffs. So, D2 acquired title even by adverse possession. The Chairman and Managing Director of D3 gave requisition to provide Ac.10.00 of land near Water Works for development of Tourism Department and by resolution No.213 dt.5.2.2000, D2 agreed to give Ac.5.00 instead of Ac.10.00. The

Government directed D2 to hand over, the Municipal land of Ac.10.00 around the sedimentation pond at the Water Works abutting 7

Venkataramana Colony and Ramalingeswara Colony to D3.

Accordingly, on 1.1.2001 vide proceedings in Roc.No.38/2001/G-2 Ac.5- 00 of land situated to the South and West of the Head of the Water

Works was given to D3. However, due to existence of Water pipe line

Ac.4.32 cents was handed over in front of the sedimentation pond.

Now, the site is under the control and usage of D3. The contentions of the plaintiffs are imaginary as they have never in possession and enjoyment of the property at any time. As Ac.4.32 cents was handed over to D3, as per the Government Order in G.O.Ms.No.141 M.A.

dt.12.4.2001, this court has no jurisdiction to entertain the suit. The secretary to the Government of Andhra Pradesh is necessary party to the suit. As such it is bad for non-joinder of necessary parties. There is no cause of action to the suit and Court fee that was paid is not proper and correct and with these pleas prayed for dismissal of the suit with costs.

05.The brief averments of the written statement of D3 are almost in similar lines to that of the written statement of D2. The other allegation is that suit is filed with a malafide intention to make wrongful gain and that nobody protested, when D3 took possession of the land on 7.5.2001.

06.The brief averments of the written statement of D5 to D7 are that the plaint A schedule property fell to the share of Parameswar

Singh in 1976. It is a complete answer to all the allegations. Ever since the same, there is no relationship whatsoever, between these defendants and said Parameswar Singh. These defendants are living independently to one another. These defendants did not lay any claim over the plaint schedule A property after the death of Parameshwar 8

Singh. These defendants disclaim any right or liability with regard to the estate of the Parameshwar Singh and they are unnecessarily added as parties to the lis. Therefore, contended that they shall be compensated with exemplary costs.

07.Basing on the above pleadings, the following issues have been settled for trial:

1. Whether the plaintiffs 1 to 6 are entitled to a decree for declaration and that they are owners of Item nos.1 to 6 of plaint A schedule property?

2. Whether the plaintiffs 7 and 8 are entitled to decree for declaration and that they are owners of Item no.7 of plaint B schedule property?

3. Whether the plaintiffs 9 to 11 are entitled to a decree for declaration and that they are owners of Item Nos.8 to 10 of plaint B schedule property

4. Whether the plaintiffs are entitled to consequential direction to defendants to deliver vacant possession of A schedule property?

5. Whether plaintiffs are entitled for mandatory injunction for removal of construction in plaint A and B schedule property?

6. Whether the defendant no.2 is perfected its title to A schedule property by adverse possession?

7. Whether the plaintiffs are entitled to permanent injunction restraining the defendants and their men from making any constructions in plaint A and B schedule property?

8. Whether the court has got jurisdiction to entertain the suit?

9. To what relief?

9 08.To prove the case, PWs.1 to 8 are examined and ExsA1 to

A32 are marked for the plaintiffs. DWs.1 and 2 are examined Ex.X1 is marked and Exs.B1 to B13 are marked for the defendants.

09.Heard the arguments on both sides. Reply arguments also heard.

10.Basing on the pleadings, documents, evidence & arguments, the above issues are being decided as follows:-

11. ISSUE NOS’.1 TO 3:

As per the plaint pleadings late B.Laxman Singh purchased

Ac.11-00 of land covered by Sy.No.394-C of Kallur village and after his death on 17.8.1975, legal heirs succeeded the property and 4th defendant is one of the surviving sons and got the A schedule property towards his share in 1976. Ex.A1 is the certified copy of the Registered sale deed under which B.Laxman Singh purchased Ac.11.00. As per the schedule given in the document Ac.11-00 was out of Ac.73.56 cents in

Sy.No.394/C. It means roughly, he became owner of 1/7th of the total extent. The boundaries for Ac.11-00 are East – Government Big Tank and lands of others; South- Syed Shalipeer Saheb and another; West-

Syed Buran Syed Saheb Badsha Hussaini and North:Garakapatte

Muchhala Manyam. The name of the vendor is Syed Saheb Basha

Hussaini S/o.Syed Ajjumiah Saheb. The name of the vendor is not mentioned on any side of boundaries to the Ac.11-00 of land. It means the vendor had sold away his entire extent in the concerned survey number under Ex.A1. After going through the boundaries, the fixed boundary is only on the Eastern side, because it is a Government Big

Tank and with the help of other boundaries, it is difficult to locate the 10 property. Here, it is important to note that, Ex.A1 is of the year 1924.

It is prior to Re-settlement and Re-survey. Therefore, the location of the property in the Sy.No.394-C is an essential factor to decide the title of the plaintiffs.

12.It is important to note that, no piece of paper is filed by plaintiffs or their vendor-4th defendant to prove the possession and enjoyment of the plaint A schedule property at any point of time ever since the purchase under Ex.A1. Even though boundaries are given to the plaint A schedule, there is no other document to cross check those boundaries available on existing the land. The extent of Ex.A1 is only

Ac.11.00 out of Ac.73.56 cents. It is the contention of the plaintiffs that their vendor –D4 being one of the surviving sons of B.Laxman

Singh got the suit schedule property in the year 1976. How he got the property? is not explained and no document is forth coming to establish the same. As Ac.0.66 cents alone succeeded out of Ac.11.00 = 1100 cents, the location of the property is very much essential, because as already stated supra, no document is there to support boundaries given in A schedule property. It is the bounden duty of the plaintiffs to prove how many sub-divisions effected in Sy.No.394/C? and what are those sub-divisions and in which sub-division Ac.0.66 cents is covered by.

The plaintiffs failed to prove the correlation of the sub-divisions made to Sy.No.394/C. In the absence of such evidence, one can presume that the plaintiffs have chosen (or at least their vendor/D4), boundaries as per their whims and fancies. Ex.A21 is the plaint plan-I for the

Sy.No.394/C. Who has drawn the plaint plan-I i.e. Ex.A21?, is not explained and nobody is examined to prove the Ex.A1. The perusal of the plan No.I goes to show that, Ac.73.56 cents in Sy.No.394/C was 11 sub-divided on 13 times i.e. 13 sub-divisions are there in Sy.No.394/C.

The suit schedule property is mentioned between the points ABCD in the Ex.A21 in Yellow colour wash with extent of Ac.0.65 cents covered by Sy.No.394/C/A1C. The lands in Sy.No.394/1A2 to the extent of Ac.25.54 cents is to the East of the suit schedule property. To the

North of the same land, in Sy.No.394/B is the boundary. The land in

Sy.No.394/1A1B, is the southern boundary. It is the contention of the plaintiffs that, the suit schedule land is occupied by D2 and then it was given to D3 and it is abutting to the Head Water works on the West.

Ex.B1 is the Award dt.5.4.1977, under which Ac.4.83 cents was acquired for expansion of Water works, Kurnool and it is covered by

Sy.No.394/A,and it is not shown as boundary on any side of the plan

No.I under Ex.A21. So, with the help of Ex.A21, it is difficult to locate the plaint A schedule property to the extent of Ac.0.66 cents. Ex.A22 is the plaint plan No.II which is B schedule. As per the same, 10 plots are laid and all are equal extents and 18 feet width road is shown in between the plots 1 to 5 on one hand , 6 to 10 on the other hand. The

Municipal Water works is shown as the boundary on the East and

Municipal site as the boundaries on the West & North, besides 60 feet width road on the South . Ex.A22 plan-II is not fit into Ex.A21 plan as per their boundaries. It may as it be there.

13.Plaintiffs have purchased the suit plots from D4 and his GPA holder/Pw2 under Ex.A4. The documents are Exs.A2 to A11 and Ex.X1.

As per Ex.A2 155.55 Sq.yards was alienated. As per Ex.A3 -155.55 sq.yards was alienated. as per Ex.A4 233-1/3 Sq.yards and as per

Ex.A5 350 sq.yards and similar extent is alienated under Ex.A6. Under

Ex.A7, 233 .33 square yards was alienated and similar extent under 12

Exs.A8, A9 and A10. As per Ex.A11, 311 1/9 square yards was alienated and as per Ex.X1. Ac.0.06 cents and odd was alienated . So, different extents were alienated under the documents. In such

circumstances, the contention of plaintiff as per Ex.A22 Plan-II,

that all the 10 plots, are all with equal extents is proved to be

wrong. The documents Registered in favour of plaintiffs, goes to show the following recitals: (i) The land was previously in Kallur village and presently within the Municipal limits of Kurnool situated in 45th Ward and it is inherited by the vendor from his ancestors and it is in L.P.No.

219/79 laid by him, and plan was also approved and the plots are in the Ramalingeswara Nagar. (ii) It is further mentioned that, surprisingly the land was encroached by D2 and recently on 19.9.1990 under Council Resolution No.559/1990, D2 redelivered the land to the vendor/D4. (iii) In all the documents, plots numbers are given and they are distinct from one another. In view of the recital in the

documents that, previously the plots were in approved

L.P.No.219/79, coupled with the fact of giving plot numbers,

one can safely conclude that only approved plots were sold

under the Registered documents. Quite surprisingly, plaintiffs have developed a version that the plots are not approved. It means they are going against the recitals of their sale deeds. Therefore, their

Somersault cannot be accepted at all.

14.It is not at all mentioned in the Registered sale deeds, when the lands of plaintiffs went into the hands of D2 or when it encroached into the suit lands. Even though the date of re-delivery under Council

Resolution Number is mentioned, no documentary evidence is placed to establish the same. It is the clear cut version of the D to 3 that there 13 was no Council Resolution at all as contended by the plaintiffs and there is no redelivery of the possession at any point of time. In the case on hand the date of encroachment is an important factor to decide what will be the beginning point for the limitation to run. It assumes importance, due to the absence of any evidence regarding the redelivery of possession to D4, as mentioned in the Registered sale deeds. It means, plaintiffs are even though accepting the encroachment, failed to prove the redelivery. The burden is on the shoulders of the plaintiffs to establish same and in the absence of establishing no conclusion can be drawn that D2 redelivered the possession. A strange argument was advanced by the plaintiff counsel that, defendants cannot take advantage of the recitals in registered documents consisting of two parts and accept one, and reject the other.

I am of the view that contra is true because it is for the plaintiffs to prove on what date it was encroached by the D2 and when the redelivery of possession. If redelivery of possession is not there, the land continues to be in possession of D2. It may as it be there.

15.Ex.A31 is the Lay Out plan for the suit schedule survey

No.394/C-1-A-1C and it is mentioned as LP.219/79. A close look at the document goes to show that, the plots are laid in an extent of Ac.7-00 with 70 plots, and out of Ac.7-00, the extent of open space is 32.300

Sq.feet. Those plots were laid as per file No.9209/79-05. When there are clear cut recitals in the documents that the said plots are covered by LP.No.219/79, it is for the plaintiffs to prove, where their plots are located as per Ex.A31, since plot numbers are given, in each and every sale deed of the plaintiffs. As the extent is Ac.7-00, in which the plots were laid, and as D4 happened to be the owner for Ac.0-66 cents only, 14 he should have laid the plots along with the some others. Nothing is mentioned in Ex.A31 about the name of persons who laid the plots. A perusal of the plan goes to show that, plots, 1to 4 are on the extreme western side of the total land with 60 feet wide road on their east; to the further east plots 5 to 12 are located and abutting to them plots 10 to 20 are there. There is no 18 feet width road in between the plots 5 to 12 on one hand and 13 to 20 on the other hand. Likewise, there is no 18 feet width road in between the plots 1 to 4 are on one hand and 5 to 12 on the other hand. It means plaint plan No.II under Ex.A22 is wrong in all respects and it is an imaginary sketch. As per Ex.A31, to the east of plots 13 to 20 there is 30 feet road and to its east plots 21 to 28, 29 to 36 plots are located and to their east there is another 30 feet wide road and to its east there is open space in the North-East direction and there are plots on the South-East direction and thereafter another 30 feet road was shown. Then plots 55 to 62, 63 to 70 are shown and again a 60 feet wide road was shown; on further east there is open space and ultimately the water works reservoir was shown in

R.S.No.394/B. It means water works site is very very far away from the plots 1 to 10 as shown in Ex.A31. In other words, the plots 1 to 10 are on the extreme western side and water works is on the extreme eastern side of the layout plan No. 219/79.

16.Ex.A24 is the plan obtained by the plaintiffs under RTI. As per the said plan, the A schedule property is abutting to the Municipal

Water works land on the south-East. As already discussed supra, the location cannot be like that. Advocate commissioner was appointed in

IA.236/2004 to locate the plots in B schedule i.e., Ex.A22 with the help

of Field Measurement Book. The surveyor stated that he cannot identify 15 the properties. Objections are filed by the plaintiffs for the

Commissioner’s report. It is categorically mentioned that the plaintiffs have obtained Ex.A31 recently by paying requisite fee and with the help of the same, the plots have to be located. Here, it is important to know that as per the Registered documents the plaintiffs purchased the plots in L.P.219/79, whereas plaintiffs are contending that their plots are not approved. It is categorically admitted by plaintiffs in the cross- examination that, the plots in Ramalingeswara Nagar, near

Venkataramana colony are under approved lay outs. The plaintiffs are blowing hot and cold at the same time without any specific stand. It shows they themselves not aware of the location of their plots. The contention of the defendants that the Registered documents are created to make an attempt to somehow grab the government land or the lands of the private parties appears to be probable. In view of the oscillation attitude of the plaintiffs, the probabilities would leads to an inference that, the Registered documents are created and plaintiffs have no knowledge of the location of their plots.

17.The defendants filed documents under Exs.B1 to B14 and plaintiffs vehemently opposed the documents on the ground that they are photo copies. DW1 the City Planner, failed to explain to the court where the originals are, because on one breath stated that they are available in the office, and second breath stated that they are not available. Ac.4.83 cents was given to D2& D3, but the land was covered by Sy.No.394/A. No documents filed by defendants to show that they have acquired land covered by Suit Sy.No.394/C/1-A-1C. Here, it is important to note that the plaintiffs shall stand on their own legs to prove the case, butcannot rely on the latches of the defendants. In 16 the case on hand, the plaintiffs not only failed to prove their title, but also failed to locate the suit land i.e., A schedule property. By playing a game of pinky-ponky, has chosen the suit survey number as the place, to locate their survey numbers. Therefore, I am of the view that they are entitled for the relief of declaration of title and so, the issues are answered against the plaintiffs.

18. ISSUE NOS’.6 & 8:

As already stated supra, plaintiffs as per registered documents, admitted that their land was encroached by D2 and failed to prove on what date it is redelivered. It is the contention of defendants that. plaintiffs have no land at all and the documents are created to have speculative litigation and even if their land is existence

D2 perfected the title by adverse possession. To claim adverse possession, the person who occupied the land should have knowledge that the land belonged to a particular person. The defendants are not in position to say whether the plaintiffs have any land. It is argued for the plaintiffs that even though the defendants are permitted to take inconsistent pleadings in the written statement, but at the time to adduce evidence, shall stick on to one version. DW1 ultimately

stated that plaintiffs have no land at all. In such

circumstances, it can be presumed that the defendants have

given up the plea of adverse possession. So, there is no question of perfecting the title by adverse possession. It is the contention of the defendants that, as the Government issued G.O. transferring Ac.4.32 cents to D3, the court has no jurisdiction to question the G.O. or to decide anything against G.O. It is important to note that, property conveyed under the G.O. is no way related to the suit schedule 17 property. Therefore, this court is having jurisdiction to try the suit and at the same time, it is observed that the contention of D2 that it perfected the title by adverse possession is not sustainable in the context of circumstances prevailing in the suit. So, these issues are answered accordingly.

19. ISSUE NOS.4, 5, 7 & 9:

As the plaintiffs failed to prove their title over the suit schedule property, they have not entitled for any consequential permanent injunction; so also for mandatory injunction to remove the structures made by D3. So, these issues are answered against the plaintiffs.

20.In the result, the suit is dismissed with costs by holding that plaintiffs are not entitled for declaration of title relating to plaint B schedule plots and also not entitled for any consequential permanent injunction; that the plaintiffs are not entitled for mandatory injunction; that D2 failed to prove that it acquired title by adverse possession to the suit plots and that this court is having jurisdiction to decide the suit.

Dictated to the stenographer, transcribed and typed by her, corrected

and pronounced by me on this 31 st day of March, 2018 .

I ADDITIONAL DISTRICT JUDGE,

KURNOOL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFF:DEFENDANTS: PW1: S.Jameel BashaDW1: S.Shastry Shabnan PW2: Abdul Hafeez @ Maqbool Ahmed.DW2: K.Shayam Sundar. PW3: Shahjahan Begum. PW4: Mohammed Fazil. PW5:Syed Mohammad Tahaquadri. PW6:Shaheda Begum.

18

PW7: Syed Dada Basha Khadri. PW8: Rehana Begum

EXHIBITS MARKED

For Plaintiffs: Ex.A1/ C.C. of the registered sale deed, dt. 10.10.1924 executed in favour of B.Lakshmana Singh.

Ex.A2/Registration extract of the sale deed, dt. 18.8.1992 executed in favour of Rahena Begum (first plaintiff).

Ex.A3/Registration extract of the sale deed, dt. 18.8.1992 executed in favour of Sajaha (second plaintiff).

Ex.A4/Original registered sale deed, dt. 20.8.1994 executed in favour of Shaheda Begum (third plaintiff).

Ex.A5/Original registered sale deed, dt. 22.10.1994 executed in favour of Syed Ali Akbar Basha Khadri (fourth plaintiff).

Ex.A6/Original registered sale deed, dt. 21.10.1994 executed in favour of Syed Mohammad Taha Khadri (fifth plaintiff).

Ex.A7/Original registered sale deed, dt. 20.8.1994 executed in favour of Abdul Hafeez @ Maqbul Ahmed ( 6th plaintiff).

Ex.A8/ Original registered sale deed, dt. 26.12.1991 executed in favour of Syeda Shajaha Begum (7th plaintiff).

Ex.A9/ Original registered sale deed, dt. 26.2.1992 executed in favour of Mohammad Chand Pasha (8th plaintiff).

Ex.A10/Original registered sale deed, dt. 28.1.1992 executed in favour of Najma Begum (9th plaintiff).

Ex.A11/Original registered sale deed, dt. 26.2.1992 executed in favour of Jaheera Banu (10th plaintiff).

Ex.A12/ Office copy of legal notice, dt. 3.4.2002 issued to D1 to D4.

Ex.A13/ Four postal receipts for the Ex.A12 notices.

Ex.A14/ Returned postal cover from D4 , dt. 5.4.2002.

Ex.A15/ Death certificate of Rasheeda Begum obtained from Mee-seva, dt. 4.11.2013 and as per the same she died on 14.9.1996.

Ex.A16/Family member certificate , dt. 24.1.2015 obtained from Mee-seva giving the family members of Rasheeda Begum.

Ex.A17/Photo copy of the death certificate of Sayed Ali Akbar Basha Khadri who died on 6.2.2009.

Ex.A18/Original death certificate of Mohd. Chand Pasha who died on 19.3.2010.

Ex.A19/Original death certificate of Smt.Nazma Rehman who died on 02-10-2012. Ex.A20/Attested copy of family members certificate, dt. 3.1.2013 relates to Nazma Rehman.

19

Ex.A21/Plaint plan No.1.

Ex.A22/Rough plaint plan No.2.

Ex.A23/ Office copy of the notice, dt. 2.8.2011 given to the commissioner, Municipal Corporation, Kurnool. Ex.A24/ True copy of the plan showing the suit schedule property, dt. 23.4.2013 .

Ex.A25/Photo copy of the application made U/S.60-F of Right to Information Act, dt.25.3.2010 given by Abdul Hafeez with counterfoil of the postal order.

Ex.A26/ Postal acknowledgment made by PRO, Municipal corporation.

Ex.A27/Application dt. 12.4.2013 on right to information act addressed to PRO by Sayed Wazid Basha Bokhari with postal receipt.

Ex.A28/ Postal acknowledgment from PRO.

Ex.A29/ Photo copy of the letter, dt. 24.3.2005 addressed to the Commissioner, Municipal Corporation, Kurnool by Abdul Hafeez.

Ex.A30/ Photo copy of the receipt issued to Abdul Hafeez by the Kurnool Municipal Corporation.

Ex.A31/ Blue print of the L.P.No.219/1979.

Ex.A32/ Original Registered sale deed dt.28.1.1992 executed in favour of Smt.Salhe Neelofar byMr.B.Parameshwar Singh.

Ex.X1/ Certified copy of the Registered GPA dt.23.7.1994 executed by Parameshwar Singh @ Parnath Singh in favour of Mohammed Fazil.

For Defendants: Ex.B1/Photo copy of the award No.4/77 , dt. 5.4.1977 passed by the RDO cum LAO, Kurnool (marked with subject to proof).

Ex.B2/ Attested copy of four plans relating to the plan in Sy.No.394/A (marked with subject to proof).

Ex.B3/ Attested copy of letter addressed to the RDO, Kurnool , dt. 17.9.1977

Ex.B4/ Attested copy of the handing over and taking over of possession, dt. 28.9.1977.

Ex.B5/ Attested copy of the proposed lay out plan in Sy.No.394/C-1A/1/A of Kallur

EX.B6/Attested copy of the proposed lay out plan for sy.No.894/C-1.A, 86,87/1A,2A, 3B and 3C of Kallur village for T.P.No.57/69.

Ex.B7/ Attested copy of the proposed lay out revised plan for T.P.No.57/69 and 817/C1, dt. 11.2.75.

20

Ex.B8/ Attested copy of the resolution of the Municipality of Kurnool 213/5-2- 2000.

Ex.B9/Attested copy of the Memo No. 25848/D2/2000-1, dt. 26.12.2000 issued by the Secretary to Government for Municipal Admn.,

Ex.B10/ Attested copy of the site plan showing the proposed site for handing to A.P. Tourism Development Corporation.

Ex.B11/Attested copy of the letter addressed by the Commissioner , Municipal Corporation, Kurnool to the Prl. Secretary, Municipal Admn., Hyderabad., dt. 1.1.2001.

Ex.B12/Attested copy of the G.O.Ms.No.141-M.A., dt. 12.4.2001.

Ex.B13/ Attested copy of the proceedings of the joint collector through Roc.No.38/2000/G2, dt. 7.5.2001.

Ex.B14/ Attested copy of the receipt, dt.7.5.2001 for the handing over and taking over.

I ADDITIONAL DISTRICT JUDGE,

KURNOOL.

IN THE COURT OF THE FIRST ADDITIONAL DISTRICT JUDGE, KURNOOL

Present:- Sri V.V.Seshu Babu, VI Additional District and Sessions Judge, Kurnool. FAC.I Additional District and Sessions Judge, Kurnool.

Thursday, the 1st day of October, 2015

Civil Miscellaneous Appeal Nos.: 18 OF 2015 AND 22 OF 2015

C.M.A.18 OF 2015

Ms.Bhukya Himaja. ….Appellant/defendant.

v.

Gunda Laxmanaswamy. ….….Respondent

On appeal against the Orders and decreetal order passed by the learned Principal Junior Civil Judge, Dhone on 16.2.2015 in I.A.No.685/2014 in O.S.No.547/2014 between:-

Gunda Laxmanaswamy. ….Petitioner.

v. Ms.Bhukya Himaja. ….….Respondent.

C.M.A.22 OF 2015

Gunda Laxmanaswamy. ….Appellant/ Petitioner.

v. Bhukya Himaja. ….….Respondent

On appeal against the Orders and decreetal order passed by the learned Principal Junior Civil Judge, Dhone on 16.2.2015 in I.A.No.685/2014 in O.S.No.547/2014 between:-

Gunda Laxmanaswamy. ….Petitioner.

v. Ms.Bhukya Himaja. ….….Respondent

These two appeals coming on 22.9.2015 for final hearing before me in the presence of Sri Koka Srinivasa Kumar, Sri M.Premnath, 2

Sri N.Satish, Sri V.Pothanna, Advocates, Hyderabad and Sri

A.Sreenivasulu,Advocate,KurnoolfortheAppellant;

Sri V.V.Subramanyam and Sri C.Satyanarayana, Advocate for respondent in CMA.18/2015;

Sri V.V.Subramanyam and Sri C.Satyanarayana, Advocate for

Appellant and Sri Koka Srinivasa Kumar, Sri M.Premnath, Sri N.Satish,

Sri V.Pothanna, Advocates, Hyderabad and Sri A.Sreenivasulu,

Advocate, Kurnool for the respondent in CMA.22/2015;

And upon hearing the arguments and having stood over for consideration till this day, the Court delivered the following:

COMMON JUDGMENT

C.M.A.18/2015 AND C.M.A.22/2015 are preferred against the order and decretal order dated 16.2.2015 passed by the learned

Principal Junior Civil Judge, Dhone in I.A.No.685/2014 in

O.S.No.547/2014.

2. The facts leading to filing of the both the appeals in brief as stated in the petition in IA.685/2014 in OS.547/2014 are that that the petitioner filed a petition under Order 39 Rule 1 and 2 CPC seeking temporary injunction restraining the respondent/defendant and her men, agents, friends, relations or anybody claming through her, from trespassing into the petition schedule land or interfering with the possession and enjoyment of the petition schedule property. It is further stated in the petition that the petitioner is the absolute owner of the petition schedule property and being its owner, he has title, right and possession over the same. In fact, the petitioner purchased the same by registered sale deed dated 27.4.2001 from H.K.Sanjanna of

Bethamcherla, from the date of purchase the petitioner has been in 3 possession and enjoyment of the petition schedule property till today.

The then Tahasildar also issued pattadar pass book, title deed, No.3 adangal in his favour. At present, the original sale deed and pattadar pass book deposited in the bank for obtaining loan. The respondent purchased the land to the eastern side adjacent land to the petition schedule property. There are some disputes arose between the petitioner and respondent, due to which the respondent is trying to encroach into the petition schedule property without any manner of right, title etc. Further, the respondent threatening the petitioner to dispossess from the petition schedule property. In fact, the respondent have no right or title to interfere into the peaceful possession and enjoyment of the petition schedule property. The petitioner further submitted that he is a respectable person in the village and he has no evil support to defend himself. On 20.12.2014 with a view to dispossess the petitioner the respondent high handedly attempted to trespass into the petition schedule property. But with great difficulty the respondent prevented the same. Further, the petitioner submitted that he has prima facie case, balance of convenience in his favour and if the temporary injunction not granted he will be put to irreparable loss and hardship and prayed to grant temporary injunction, hence the petition.

3.On the other hand, the GPA holder of respondent filed counter and denied all the material averments made by the petition and submitted that the petitioners daughter-in-law has sold out 40 cents of vacate land which is in the middle of the petitioner’s property to the respondent. In fact, the petitioner has Ac.7.2 of land in which, 4 they established more than five slab polishing units which are adjacently located to the factory of petitioner. Therefore, the petitioner invariably uses the common road to reach his factory.

Further, he submitted that all Ac.7.2 cents is bounded by a compound wall with an entrance gate to restrict both ingress and egress. Further, the respondent submitted that at no point of time, the respondent can dream of making in trespass nor can dispossess the petitioner from the scheduled property and as a matter of fact, they had no intention of the same. Further, they contended that the entire 3rd para of the petition is mechanical copy and pasted without any coherence and reason. Further, the respondent submitted that the respondent is prosecuting her higher studies in alternative learning system at Delhi.

On the alleged date of 20.12.2014 the respondent was actually in Delhi and purchased clothes at Sarojini Market using debit card for Rs.885/-.

The respondent also withdrawn Rs.2,000/- from ATM at Pitampura,

Delhi on 21.12.2014. In support of the same, the statement issued by

Andhra Bank is enclosed along with the counter. On 22.12.2014 the respondent travelled from New Delhi to Vijayawada by a train and in support of the same a copy of IRCTC ticket statement is enclosed.

Therefore, the attempt to trespass into the petition schedule property on 20.12.2014 does not arise.

4.The respondent is the Proprietor of M/s.Rakesh Minerals exports situated in Sy.No.23/A2 of Bugganipalli village of Bethamcherla

Mandal. The establishment bearing No.is SSI No.280211201174 and it is a manufacturing activity of slab polishing. The petitioner is the father-in-law of one Rajarajeswari who is the vendor for 40 cents of 5 land in Sy.No.23/A2 of Bugganipalli village. The petitioner being the father-in-law received entire sale consideration from the respondent parents in establishing constructing and commissioning of unit under the name and style as M/s.Rakesh Minerals.

5.The respondent further submitted that the petitioner is the childhood friend and classmate of the mother of petitioner by name

Girija. After completion of schooling in the year 1970 the petitioner and the mother of respondent had no communications whatsoever in nature. Therefore, in the year 2005 both of them accidentally met along with families at Bethamcherla. In the said good times the petitioner has adjusted an amount of Rs.3,00,000/- to the respondent for her education purpose. The said amount was repaid by them in easy instalments. The said gratitude of the petitioner had a spell on respondent and were always considerate towards the petitioner.

Taking advantage of such position, the petitioner hatches a plan to meet his business and financial needs through the respondent parents.

In one occasion in the month of September, 2012 the petitioner sought the financial help from the mother of respondent expressing his financial problems. Without realizing the said amount, the respondent mother had paid another Rs.2,00,000/- on 6.9.2012 by way of fund transfer at the request of petitioner. When things stood thus the petitioner had renewed his financial requirements with the father of respondent without knowledge of mother of respondent and sought for a loan. The petitioner after collecting Rs.2,00,000/- by account transfer from the mother of petitioner, the petitioner had taken an amount of Rs.5,00,000/- from the father of respondent. The said 6 amount was paid through account payee cheque No.343736 dt.4.5.2013 of SBH Account, after realizing the said amount without knowledge of the father of the respondent, the petitioner approached the mother of respondent and requested for a loan of Rs.4,00,000/- to meet his financial requirements. Accordingly, the mother of respondent issued two cheques in favour of the SVG Raghavendra

Marbles. The petitioner requested the mother of respondent not to inform the said amounts to the father of the respondent on a promise to repay the said amount in due course. The petitioner periodically collected amount to meet his financial and business requirements to run his factory. Since, the petitioner did not have any reason to substantiate his intention to collect the amount for his business requirements, the petitioner broached an issue of selling the vacant site to an extent of 40 cents in Sy.No.23/A2 of Bugganipalli village belongs to the respondent. The petitioner went on collecting the amount from parents of respondent for various reasons. The petitioner also aware that the respondent and her parents are at intention to set up manufacturing neighbours of slab polishing business in

Sy.No.23/A2. Since, the petitioner is already in the business of slab polishing as a person who is well aware of all the intricacies of business and various sanctions and permissions that are required to start slab polishing factory took advantage of their ignorance and started dignity terms. A formal sale price as per the market value was decided as consideration for purchase of 40 cents of land in Sy.No.23/A2 of

Bugganipalli.

7 6.The respondent further submitted that, he reiterates to set up a manufacturing enterprise of slab polishing unit on 40 cents of land in Sy.No.23/A2, Bugganipalli village. Then the petitioner took various steps to bring into existence an extent of 40 cents of land and sought the financial help from her parents with an extent of Ac.1.11 cents which was pledged with APSFC. Accordingly the parents of the respondent paid an amount of Rs.5,00,000/- on 25.11.2013 through cheques bearing Nos.847833 and 847834 drawnon SBH for an amount of Rs.3,00,000/- and Rs.2,00,000/- respectively. On receiving the said amounts the APSFC have released the original sale deed standing in the name of G.Lakshmikanthamma W/o.G.Lakshmanaswamy. After collecting the said document the petitioner’s wife executed a sale deed bearing No.1450 of 2013 dt.7.2.2013 on the name of G.Rajarajeswari who is the wife of eldest son of the petitioner. Thereafter, the petitioner applied for land conversion from agriculture to non- agriculture, and after the said conversion the said G.Raja Rajeswari on the instructions of the petitioner sold 40 cents of land in Sy.No.23/A2 through a sale deed bearing No.142/2014 dt.5.2.2014 in favour of the respondent in the office of Sub Registrar, Bethamcherla.

7.The respondent further submitted that, after the registration the resopdnent and her parents started plans for establishment of SSI unit under the name and style of M/s.Rakesh Mineral exports and also the petitioner collected a cheque in the name of petitioner for an amount of

Rs.1,05,000/- on 2.6.2014 through cheque bearing No.847836 of SBH,

Vijayawada and also the petitioner collected the amounts from the 8 respondent in different dates and the totaling an amount of

Rs.36,79,934/- was collected by the petitioner from the respondent.

8.The respondent further submitted that, the petitioner expressed his desire to run the unit himself, instead of respondent and her family. But the respondent refused for the same. Thereafter, the respondent verified the account book which was submitted by the petitioner, and on perusal of the accounts there is an alarming discrepancy was reflected in the accounts and found discrepancy and misappropriation of an amount of Rs.36,79,934/-. On questioning the said conduct, the petitioner stated that he would see that they would not continue in running the said unit and would vacate the unit and handover the same to respondent, as such, the respondent decided to collect the amount from the petitioner.

9.The respondent further submitted that, the petitioner’s factory units are situated on either side of respondent’s property and on the northern side of the respondent’s property a road is situated which run although the respondent’s and petitioner’s properties, and the road leads to main road and got a gate to restrict the movement of vehicles, other than the vehicles of land owner. The petitioner taking an advantage of his access in operating the gate, the petitioner and his family are denying the respondent’s approach to her property and causing inconvenience and denying access to the property of the respondent. The petitioner submitted that the respondent trying to encroach into the petition schedule property would be a meaningless submission, as the unit was complete much before the date of filing of 9 the petition and went into production, as such, the petition is liable to be dismissed.

As per the version of the petitioner, on the eastern side the land of respondent and Lakshmikanthamma is situated, as such, the extent of land of Lakshmikanthamma is available on the Eastern side and the clumsy way of detailing the boundaries goes to the root of the case of the petitioner. The respondent further submitted that the petitioner is not liable for any relief much less the relief of temporary injunction. Hence, she prayed this court to dismiss the petition.

10. The petitioner filed re-joinder and he specifically mentioned that the unit is situated in Sy.No.22/B2 and not in Sy.No.23/A2. The respondent has purchased the land in Sy.No.23/A2 and constructing the polishing unit in Sy.No.22/B2. As the respondent is claiming S.T.

status in order to have subsidiary benefits he has shown in all the documents as Sy.No.23/A2 only. But it is only on paper. When they applied to APSFC for loan and the same is not yet cleared commissioning and starting production of unit is unbelievable and contrary their own case. The respondent further contended that, the land value as fallen and the respondent’s family wanted to get the plot and get back their sale price. Since, the petitioner not accepted for re- purchase the respondent’s family is trying to involve in the unit of the petitioner in Sy.No.22/B2 i.e. plaint schedule property. Now under the guise of investment the respondent wants to involve and interfere with the rights of the petitioner in a unit situated in Sy.No.22/B2. In fact, they do not have any right to interfere in the petition schedule 10 property. By submitting so, he prays the court to made absolute and ad-interim injunction granted earlier.

11.On the basis of above pleadings, the trial Court framed the following point for consideration:- “Whether the petitioner is entitled for the relief sought for or otherwise?” 12. No witnesses are examined on behalf of either party. On behalf of the petitioner, Exts.P1 to P5 were marked. On behalf of the respondent, Exts.R1 to R11 were marked.

13.Aggrieved by the said decree and order, the petitioner/defendant in CMA.18/2015 filed the appeal under Order 43

Rule 1(v) CPC with the following grounds:

(1)The order of the court below is contrary to law, weight of evidence and probabilities of the case.

(2) The Court below erred in vacating the Ad-interim Injunction

Orders in favour of the appellant herein.

(3) The Lower Court below ought to have given the order of status- quo when there is no consistency in the case of the respondent herein and when the case of the respondent differs from the pleadings in the

I.A. to the rejoinder.

(4) The Lower court erred in the first instance in granting ad-interim injunction when the pleadings of the respondent does not disclose any tenable facts and further erred in granting status quo even though the respondent/petitioner/plaintiff failed to show prima facie case and balance of convenience in his favour.

11 (5) The Lower Court ought to have dismissed the IA after considering the factual narrations that are mentioned in the counter.

(6) The Lower court erred in giving a finding that the respondent might be in Delhi in 22.12.2014 but her father and others were very much available. Therefore, it cannot be brushed out that no interference was caused on that alleged date of cause of action, and thus discarding the case of the appellant herein that there is no cause of action for the present case.

(7)The court below cannot give a finding that at this juncture it is very difficult for the court to ascertain whether the factory is situated in

Sy.No.22/B2 or in Sy.No.23/A2 without its physical verification without there being a full fledged trial while holding that the documentary evidence clearly shows that the polishing unit of the respondent is situated in Sy.No.23/A2, but not in Sy.No.22/B2 and grant status quo order without dismissing the IA.

With these pleas and others that will be urged at the time of arguments, requested to allow the appeal.

14.Aggrieved by the said decree and order, the petitioner/plaintiff in CMA.22/2015 filed the appeal under Order 43 Rule 1(v) CPC with the following grounds:

(1)The order of the trial Court is contrary to law, weight of evidence and probabilities of the case.

(2) The lower Court failed to take into consideration the admissions made in counter affidavit of the respondent which clearly reveals that she has no intention or rights to meddle with the plaint schedule property. Therefore, the Lower court ought to have granted the relief.

12 (3) Similarly the case of the respondent is that she has purchased the property in S.No.23/A2 and her factory is erected/existing in it. But, she is not asking for any injunction alleging interference from the appellant over the same.

(4) On the other hand the straight case of the appellant is that plaint schedule property is situated in 22/B2 and the respondent has no rights whatsoever to interfere. Here the Lower court erred that respondent is claiming that her factory is situated in Sy.No.22/B2.

When it is not the case of the respondent, the Lower court went wrong in observing that it cannot decide at present in which Survey Number the factory is situated.

(5)When it is not the case of the respondent that she erroneously set up factory in plaint schedule land in Sy.No.22/B2 maintaining status quo order is confusive and erroneous.

(6)Thus it is submitted that the Lower court on an erroneous approach on facts and law has not done justice to the party who approached the court first.

With these pleas and others that will be urged at the time of arguments, requested to allow the appeal.

15.Now the points for consideration in both the appeals are:

1. Whether the defendant raised constructions in

Sy.No.22/B2?

2. Whether the defendant is interfering with the possession and enjoyment of the plaintiff? if so, is the plaintiff is entitled for temporary injunction?

13 16.For the sake of convenience, I will address the parties as they are arrayed in the suit. Heard arguments of both sides. Written arguments filed for the plaintiff.

17.POINT NOS.1 AND 2:

In order to avoid repetition both the points are taken up together. Admittedly, plaintiff filed OS.547/2014 for permanent injunction and filed IA.685/2014 for temporary injunction pending disposal of the suit. The relief of Injunction is equitable in nature; as such the party who approached the court at first shall come with clean hands, else he/ she can be non suited. There are certain admitted facts in the case. The daughter-in-law of the Plaintiff sold away Ac.0-40 cents to the defendant out of Ac.7-20 cents. The Registered sale deed of the defendant dated 5.2.2014 goes to show that she purchased 40 cents covered by Sy.No.23/A2. Lakshmikanthamma is the wife of plaintiff. The boundaries for the 40 cents purchased by defendant are

East and South- Lakshmikanthamma , West-Plaintiff and North-

Rastha. It goes to show that except on one side the other three sides are the plaintiff and his wife.

18.It is mentioned in the pleadings by the plaintiff that the defendant purchased land adjacent to the plaintiff on the eastern side.

When the plaintiff and his wife are the neighbours to the 40 cents on the East and West, the contention of the plaintiff that the defendant purchased on the eastern side is nothing but a misleading pleading. On the other hand, defendant categorically pleaded that she purchased 40 cents in the middle of the plaintiff's property.

14 19.As per the pleadings of the defendant, the plaintiff himself assisted her in obtaining permissions and for the construction of

M/s.Rakesh Minerals Export Business, in the 40 cents purchased by her and even came forward to run the unit, but she refused for the same.

The plaintiff not filed even a scrap of paper to show that, the defendant made the constructions in Sy.No.22/B2. By making such a plea without any iota of proof, the plaintiff was successful in confusing the lower Court and in that confusion the lower Court passed the order of

Status-quo instead of dismissing the petition for injunction. All the documents filed by the defendant under EXts.R1 to R9 goes to show that the constructions were made in Sy.No.23/A2 only. Ex.P4 is the

Plan showing the proposed construction in Sy.No.22/B2 under the name and style of SVG Raghavendra Stone Exports, and plan was submitted by plaintiff. Whereas, the name of the defendant's business is M/s.Rakesh Minerals Export. Ex.P5 is the notice issued by the APSFC

dated 23.2.2012 to SVG Raghavendra Stone Export., but not to the

defendant or her business concern. So, with the aid of these two documents plaintiff cannot contend that the defendant made constructions in Sy.No.22/B2 instead of 23/A2.

20.It is pleaded in the I.A.685/2014 that, on 20.12.2014 the defendant attempted to trespass into the petition schedule property in a high handed manner with a view to dispossess him, but he prevented the same with the help of neighbours and few village elders with a great difficulty. This is the cause of action for the suit. In paragraph 18 of the order, the lower court observed that the defendant purchased 15 clothes worth 885/- on 20.12.2014 at Delhi by using debit card and also withdrawn Rs.2,000/- from the ATM at Pitampura, Delhi on 21.12.2014 and she travelled from Delhi to Vijayawada by train on 22.12.2014. However, the trial court observed that "admittedly the

suit was contested by the father of the respondent in the

capacity of GPA holder on behalf of his daughter. It may true

that the respondent might be in Delhi on 20.12.2014, but her

father and others were very much available. Therefore, it

cannot be brushed out no interference was caused on that

alleged date of cause of action".

21.It is important to note that, it is not the contention of plaintiff that the father of defendant and her men interfered with his possession and enjoyment on the date of cause of action, and on the other hand it is the specific plea that defendant only interfered with his possession. To use the debit and credit cards, whenever purchases are made the holder of the card is necessarily contribute the signatures on the bills. Whereas, for withdrawal of cash from ATM, Knowledge of

PIN number is sufficient and with that PIN number, anybody can withdraw the amount. Therefore this court is of the view that, in all the probabilities the defendant was present at New Delhi on 20.12.2014. Likewise, when her name was appeared in the Railway

Reservation tickets as the traveller from New Delhi to Vijayawada with the date of journey as 22.12.2014, her presence is difficult to believe at the suit schedule property.

16 22.Merely, because plaintiff is having five more units of Slab polishing, is not a ground for him to entitle for either temporary injunction or the order of status-quo relating to the property that was sold to the defendant, more so, when he miserably failed to prove that the defendant made the constructions of her unit in Sy.No.22/B2. I am of the view that, there is no prima facie case and balance of convenience in favour of the plaintiff. It is the defendant that will suffer irreparable injury if denied access to the property purchased by her. The APSFC issued notice to the defendant threatening legal action for not commencing the production, in spite of availing the loan.

So, both the points are answered against the plaintiff.

23.In the result, CMA 18/2015 is allowed with costs through out, setting aside the order of status-quo passed by the Principal Junior

Civil Judge, Dhone in IA.685/2014 in OS.547/2014 dated 16.2.2015.

24.In the result, CMA.22/2015 is dismissed with costs, and also vacated the orders of Status-quo passed by the Principal Junior

Civil Judge, Dhone in IA.No.685/2014 in OS.547/2014 dated

16.2.2015.

Typed to dictation to the stenographer, corrected, signed and

pronounced by me in open court, this the 1 st day of October, 2015.

VI Addl. District Judge, Kurnool FAC. I Addl. District Judge, Kurnool

Appendix of Evidence

-Nil- (on both sides)

VI ADJ, Knl, FAC. I ADJ, Knl.

Copy to the Principal Junior Civil Judge, Dhone.