APHC010112382018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3547] TUESDAY,THE FIFTH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CRIMINAL APPEAL NO: 532/2018 Between: 1. BEERE CHANDRASEKHAR, R/O. H.NO. 28-1024, LAKSHMI NAGAR, DHARAMAVARAM TOWN,., YSR KADAPA DISTRICT ...APELLANT AND 1. STATE OF A P, Rep. by its Public Prosecutor, High Court at Hyderabad ...RESPODENT Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to allow the Criminal Appeal by Setting Aside the Judgment 23.08.2017 passed in S.C.No. 427/2008 on the file of the Honble II Addl. District and Sessions Judge, Hindpur, Anthapur District and pass. IA NO: 1 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased To condone the delay of 114 days in filing the criminal appeal against the judgment dated. 23.08.2017 in S.C.No. 427/2008 on the file of the Honble II Addl. District and sessions judge, Hindupur, Anantapur district and pass 2 KSR, J & SRS, J Crl.A.No532 of 2018 IA NO: 2 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased To enlarge the the petitioner on bail by suspending the judgment 23.08.2017 passed II Addl. District and Sessions Judge, Hindupur, Anantapur District, pending disposal of the above Criminal appeal and pass IA NO: 1 OF 2022 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to suspend the execution of the sentence passed in S.C.No. 427 of 2008 on the file of IInd Additional District & Sessions Judge, Hindupur, judgment dated 23rd, August, 2017, and release the petitioner on bail, pending disposal of the above Crl.A.No. 532 of 2018 and to pass Counsel for the Appellant: 1. G VIJAYA SARADHI Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) The Court made the following: 3 KSR, J & SRS, J Crl.A.No532 of 2018 APHC010112382018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3547] TUESDAY,THE FIFTH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CRIMINAL APPEAL NO: 532/2018 JUDGMENT:-(Per the Hon’ble Sri Justice K.Suresh Reddy) The sole accused in Sessions Case No.427 of 2008 on the file of the Court of II Additional District and Sessions Judge, Hindupur, Ananathapur District, is the appellant. He was tried by the learned Additional Sessions Judge under the following three (3) charges. First charge was under Section 326 IPC for causing injuries to P.W.1 The second charge was under Section 342 IPC and The third charge was under Section 302 IPC. 2. Substance of the charges is that on 21.12.2007 at about 2:00 P.M., the accused demanded money from his father, namely Ramakesavulu (hereinafter referred to as ‘the deceased’), for which the latter expressed his inability. The accused grew wild and beat the deceased with a lock pad, 4 KSR, J & SRS, J Crl.A.No532 of 2018 resulting in death of the deceased. When P.W.1 intervened, the accused also hit her head on the flooring black stone, causing injuries, and when P.Ws 3 and 4 intervened, he confined them in the pooja room and left the house by locking the doors from outside, thereby committed offences punishable under Sections 326, 342 and 302 IPC. 3. After completion of trial, the learned Additional Sessions Judge convicted the accused/appellant under Section 302 IPC and sentenced him to suffer imprisonment for ‘LIFE’ and also to pay a fine of Rs.100/-, in default, to suffer rigorous imprisonment for three months. The learned Additional Sessions Judge, further convicted the accused/appellant under Section 342 IPC and sentenced him to suffer rigorous imprisonment for one year and also to pay a fine of Rs.100/-, in default to suffer simple imprisonment for three months. Both the substantive sentences were directed to run concurrently. The learned Additional Sessions Judge acquitted the appellant under Section 326 IPC. 4. Case of the prosecution, as per the evidence of the prosecution witnesses, briefly, is as follows: (i) The accused, as well as the material prosecution witnesses, are residents of Dharmavaram Town. The deceased was also a resident of the same town. The accused is none other than the son of the deceased. P.W.1 is the mother, and P.W.2 is the sister of the accused. P.Ws 3 and 4 are children 5 KSR, J & SRS, J Crl.A.No532 of 2018 of the accused. Due to differences between the accused and his wife, the latter left the matrimonial home. ii) While so, on 21.12.2007 at about 2:00 P.M., the accused demanded the deceased to give money to go to Hyderabad in connection with a petition filed by his wife in the High Court of Andhra Pradesh. The deceased expressed his inability to give money. Immediately, the accused grew wild against his parents and picked up a lock pad found in the house. The accused beat the deceased over his face and head with the said lock pad. When P.W.1 tried to interfere, he pushed her and tied her hands and legs with a yarn spring and confined her in the kitchen. When P.Ws 3 and 4, children of the accused, interfered, the accused confined them in the pooja room. Thereafter, the accused started causing injuries to the deceased. The accused also put clothes into the mouth of P.W.1 to prevent her from raising cries. Thereafter, the accused left the house by locking the doors from outside. (iii) On the next day i.e. on 22.12.2007, at about 8:00 A.M., on hearing the cries of P.Ws 3 and 4, the neighbours 5 and 6 came there and rescued P.Ws 1, 3 and 4. P.Ws 1, 3 and 4 informed the neighbours about the attack made by the accused. On the same day at about 9:00 A.M., P.W.1 went to the Police Station and gave a report. (iv) P.W.9-Inspector of Police, Dharmavaram, recorded statement of P.W.1 under Ex.P1 and registered a case in Crime No.225 of 2007 under 6 KSR, J & SRS, J Crl.A.No532 of 2018 Sections 307, 342 and 302 IPC. He issued copies of FIRs to all the concerned. Ex.P6 is FIR. P.W.9 referred P.W.1 to the hospital for treatment. P.W.9 also recorded statement of P.W.2. He visited the scene of the offence and held inquest over the body, in the presence of P.W.7 and another. The inquest report is marked as Ex.P5. He also prepared a rough sketch under Exs.P7 and P8 at the scene of the offence. After conducting inquest, P.W.9 recorded statements of P.Ws 3 and 4 and sent the body for postmortem examination. (v) One Dr. P. Anand Eswariah conducted autopsy over the dead body of the deceased. He issued a postmortem certificate-Ex.P16. He opined the cause of death was due to shock and hemorrhage. As Dr. P. Anand Eswariah expired; his signature on Ex.P16 was identified by another Doctor, P.W.10, through whom the postmortem certificate was marked. On 22.12.2007, at about 10:30 A.M., P.W.10 examined P.W.1 and issued a wound certificate-Ex.P15. vi) On 24.12.2007, at about 5:30 P.M., P.W.9 arrested the accused at Hyderabad in Saroornagar Police Station limits. He seized Ex.P10, a letter and Ex.P11, a pocket notebook, under a cover of panchanama (Ex.P9). In pursuance of the confession made by the accused, he recovered M.O.21, lock pad from the house of the accused under a panchanama Ex.P12, in the 7 KSR, J & SRS, J Crl.A.No532 of 2018 presence of P.W.8 and another. Thereafter, the accused was remanded to judicial custody. vii) P.W.9 sent the material objects to FSL, Hyderabad. FSL reports were marked as Exs.P13 and 14. After receiving all the necessary documents and after completion of investigation, P.W.9 filed charge sheet. 5. In support of its case, the prosecution examined P.Ws. 1 to 10, marked Exs.P1 to P16 and exhibited MOs 1 to 21. When the accused was examined under Section 313 of Cr.P.C., he denied the incriminating evidence appearing against him. 6. Accepting the evidence of P.Ws 3 and 4, the learned Additional Sessions Judge convicted the appellant as aforesaid. 7. Heard Sri G. Vijaya Saradhi, learned counsel for the appellant and Sri Panini Somayaji, learned Additional Public Prosecutor for the respondent- State. 8. We have carefully scrutinised the entire evidence on record. P.W.1, wife of the deceased and mother of the accused, did not support the prosecution, and she was declared as hostile. P.W.2, who is the sister of the accused and the daughter of the deceased, also did not support the prosecution, and she too was declared as hostile. P.W.s 3 and 4 are none other than the sons of the accused and grandsons of the deceased. Insofar as P.Ws.5 and 6 are 8 KSR, J & SRS, J Crl.A.No532 of 2018 concerned they are residents of the same locality and they were examined to show that they witnessed the incident, when the accused attacked the deceased and P.W.1, at about 2:00 P.M. on 21.12.2007. They were further examined to state that on the next day morning i.e. on 22.12.2007, at about 8:00 A.M., on hearing the cries of P.Ws 3 and 4, they came to the house and opened the door. But, P.Ws 5 and 6 did not state in their evidence that they saw the accused attacking the deceased. As such, the evidence of P.Ws 5 and 6 is not at all helpful to the prosecution. P.W.7 is panch witness for the inquest report (Ex.P5). P.W.8 did not support the prosecution. P.W.9 is the Investigation Officer, and P.W.10 was examined to speak about the wound certificate, Ex.P15 and post-mortem report-Ex.P16. 9. Having analysed the entire evidence on record, the only evidence available on record is the evidence of two child witnesses i.e. P.Ws 3 and 4. Admittedly, P.W.3 was aged about 10 years and P.W.4 was aged about 8 years on the date of recording their evidence. Both of them, in their evidence, have stated that when they tried to interfere while the accused was beating the deceased, the accused pushed them into pooja room and confined them by locking the door. 10. As already pointed out P.Ws 3 and 4 were aged 10 and 8 years respectively on the date of recording their evidence. P.W.3, in his evidence, has stated that P.W.1 is his maternal aunt, which fact was incorrect. P.W.1 is 9 KSR, J & SRS, J Crl.A.No532 of 2018 the grandmother of P.Ws 3 and 4, being the mother of the accused and wife of the deceased. Further, P.Ws 3 and 4, in their cross-examination, have specifically stated that right from their childhood, they were brought up by their mother and also admitted that they are staying at Muddireddipalli along with P.W.1 and others. Whereas, the deceased and P.W.1, along with the accused, were residing at Dharmavaram. The defence version is that due to disputes between the accused and his wife, they are residing separately. P.Ws 3 and 4 admitted that they along with LW3, by name Beere Lakshmi Prasanna, were residing with their mother. The further defence of the accused is that, due to disputes between himself and his wife, he was falsely implicated by setting up P.Ws 3 and 4, who were allegedly tutored by their mother to depose against the accused. Of course, the said suggestion was denied by both P.Ws 3 and 4. But, P.Ws 3 and 4 specifically admitted that they were residing along with their mother and uncle. 11. As seen from the material available on record, the learned trial judge has not put preliminary questions before recording their evidence. The learned trial Judge, before recording the evidence, observed as follows: “The witness is aged about 10 years. Though he is child witness, is capable to understand and she could give evidence as such I am satisfied to record her evidence.” 12. Curiously, the learned Additional Sessions Judge did not record any preliminary questions before satisfying himself, that the child witnesses were 10 KSR, J & SRS, J Crl.A.No532 of 2018 capable of understanding the things and were in a position to give evidence. No such preliminary questions have been recorded, enabling this Court to go into the correctness of the opinion of the trial Court. 13. In a similar case, the Hon’ble Supreme Court in Pradeep v. State of Haryana1, held as under: 8. It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The court must make careful scrutiny of the evidence of a child witness. The court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the court with care and caution. 9. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the 1AIR 2023 SC 3245 11 KSR, J & SRS, J Crl.A.No532 of 2018 appellate court can go into the correctness of the opinion of the trial court. 10. In the facts of the case, the preliminary examination of the minor is very sketchy. Only three questions were put to the minor on the basis of which the learned Sessions Judge came to the conclusion that the witness was capable of giving answers to each and every question. Therefore, the oath was administered to him. Following are the questions put to him: “Q. In which school you are studying? Ans. I am studying in Govt. Primary School, Barwashni. Q. What is occupation of your father? Ans. My father is a Pujari in a Mandir named Hanuman, at Gohanba. Q. Should one speak truth or false? Ans. Truth.” 14. In the case on hand, the learned Additional Sessions Judge has not recorded any preliminary questions, to enable this Court to assess whether P.Ws 3 and 4 are capable of giving evidence and understanding the things, as they are at their tender age. Except the evidence of P.Ws 3 and 4, there is no other evidence available on record. Obviously, P.Ws 3 and 4 must have been tutored by their mother to depose against the appellant. 15. As already pointed out, P.Ws 3 and 4 have been residing along with their mother at Muddireddipalli, but not at Dharmavaram, and as such, we are unable to place any reliance on the evidence of P.Ws 3 and 4. 12 KSR, J & SRS, J Crl.A.No532 of 2018 16. P.W.1, who is an injured witness in the present case, did not support the prosecution, and she was declared as hostile. Learned Additional Sessions Judge rightly acquitted the accused under Section 326 IPC as P.W.1 did not support the prosecution. 17. Having analyzed the evidence of P.Ws 3 and 4 carefully, we have no hesitation in concluding that these two witnesses are of tender age and have been tutored by their mother. As such, the evidence of P.Ws 3 and 4 does not inspire confidence of this Court. 18. Further, the Investigating Officer, P.W.9, in his cross-examination, has admitted that he has not made any investigation to find out the disputes between the appellant and his wife and where P.Ws 3 and 4 are residing or staying. The investigation is silent about the disputes between the appellant and his wife, and also about her whereabouts. 19. In view of the above facts and circumstances of the case, there is no corroboration to the evidence of P.Ws 3 and 4, who are child witnesses and as their evidence does not inspire confidence of this Court, we are inclined to allow the Criminal Appeal by setting aside the conviction and sentence recorded by the learned trial Judge. 20. In the result, the Criminal Appeal is allowed, setting aside the conviction and sentence recorded by the learned II Additional District and 13 KSR, J & SRS, J Crl.A.No532 of 2018 Sessions Judge, Hindupur, Ananthapur District in S.C.No.427 of 2008, dated 23.08.2017. Accordingly, the appellant/accused is acquitted of the offences under Sections 302 and 342 IPC. Fine amount, if any, paid by the appellant/accused shall be refunded to him. The appellant/accused is directed to be set at liberty forthwith, if he is not required in any other case or crime. Consequently, miscellaneous petitions, if any, pending shall stand closed. JUSTICE K.SURESH REDDY _______________________________ JUSTICE SUBBA REDDY SATTI Dt. 05.08.2025 IKN 14 KSR, J & SRS, J Crl.A.No532 of 2018 THE HON’BLE SRI JUSTICE K.SURESH REDDY AND THE HON’BLE SRI JUSTICE SUBBA REDDY SATTI Criminal Appeal No.532 of 2018 (per Hon’ble Sri Justice K.Suresh Reddy) Date: 05.08.2025 IKN