«ats&«r5 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI THURSDAY, THE SIXTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY AND THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR CRIMINAL APPEAL NO: 871 OF 2017 Between: 1. Panchada Nookalathalli W/o.Rajulu,Hindu aged 42 years, Occ; Housewife R/o.Serabavaram Village Rolugunta Mandal, Visakhapatnam District, Andhra Pradesh. 2. Panchada OcciHousewife, Lakshmi, W/o.Ramana,Hindu R/o.Serabavaram Village Visakhapatnam District, Andhra Pradesh. aged 26 years, Rolugunta Mandal, 3. Panchada yerrayyamma, W/o.Rajulu,aged 52 years, Occ: Housewife R/o.Serabavaram Village, Rolugunta Mandal, Visakhapatnam District, Andhra Pradesh. ...APELLANTS/A2 TO A4 AND The State of Andhra Pradesh Rep.by Public Prosecutor High Court of Amaravati. ...RESPODENT Appeal under Section 374(2) of Cr.P.C praying that the High Court may be pleased to to present the above appeal questioning the conviction and sentence imposed through a judgment in S.C.No.123/2015 dt.04-07- 2017 on the file of the court of the X Additional District and Sessions Judge, Visakhapatnam at Anakapalli, Visakhapatnam District, AP for the following among other: Counsel for the Appellant : SRI TURAGA SAI SURYA Counsel for the Respondents : PUBLIC PROSECUTOR (AP) The Court made the following JUDGMENT : APHC010559282017 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3517] THURSDAY, THE SIXTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR CRIMINAL APPEAL No: 871/2017 Between: Panchada Nookalathalli, Visakapatnam & two others ...APPELLANT(S) AND ...RESPONDENT The State of A.P. Rep. by its Public Prosecutor Counsel for the Appellant(S): I.TURAGA SAI SURYA Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) The Court made the following: JUDGMENT: (Per Hon’ble Sri Justice K.Suresh Reddy) A.2 to A.4 in S.C.No. 123/2015 on the file of learned X Additional District & Sessions Judge, Visakhapatnam at Anakapalle are the appellants. Originally, the police filed charge sheet against A.1 to A.4. During pendency of the trial, A.1 died on 05.11.2015 and case against A.1 was abated. A.2 to A.4 were tried and convicted by the learned Additional Sessions Judge under Section 302 r/w 34 I PC and were sentenced to undergo Rigorous w 2 Imprisonment for LIFE each and also to pay a fine of Rs. 10,000/- each, in default to suffer Simple Imprisonment for a period of six months. The total fine amount of Rs.30,000/- is ordered to be paid to PW.2 under Section 357(1) Cr.P.C. after appeal time is over. Substance of the charge against the accused is that between 05.00 2. P.M. on 04.12.2008 and 8.00 A.M. on 05.12.2008, the accused killed one Vuta Sekhar (hereinafter referred to as ‘the deceased’) aged about 4 years, who is none other than son of PWs 1 & 2 and threw the dead body in Chakali Cheruvu at Sarabhavaram village within the jurisdiction of Rolugunta Police Station, thereby committed offence punishable under Section 302 r/w 34 IPC. Case of the prosecution as per the evidence of prosecution witnesses is 3. as under: (a) All the accused and the material prosecution witnesses are residents of Sarabhavaram village. The deceased was also resident of the same village. PWs 1 & 2 are parents of the deceased. PWs 3 & 4 are the elder brother and younger brother of PW.1 respectively. PW.5 is the relative of PW.1. There was a dispute between the family of PW.1 and the family of accused with regard to the vacant house site. On 01.12.2008, there was a small quarrel between the family of PW.1 and the family of accused with regard to the vacant house site. During the said quarrel, A.3 said to have bite PW.2, who received a bleeding injury. As the elders advised them not to report the matter to the police, they did not go to the Police Station and on 03.12.2008, a Panchayat was held and 3 the dispute was settled by village elder PW.12. While so, on 04.12.2008, the deceased was found playing with the grandchildren of A.1 on the road. Thereafter, the deceased boy was missing. Having received the information about missing of the boy from PW.3, PW.1 returned home and enquired with his wife PW.2. PW.2 informed PW.1 stating that at about 04.00 P.M. on said day, the deceased boy was playing with the grandchildren of A.1. PWs 1 to 4 searched for the boy in the surrounding places during night. While so, on the early morning of 05.12.2008, PW.10 and another found the dead body of the deceased in Chakali Cheruvu. Thereafter, they brought the dead body to the house of PW.1 at about 08.00 A.M. and handed over to PW.1. Then, PW.1 went to the Police Station and gave a report. PW.14 Sub-Inspector of Police, Ravikamtham Police Station received Ex.PI report from PW.1 and registered a case in Cr.No.45/2008 under Section 174 Cr.P.C. and issued copies of F.I.R. to all the concerned. Ex.P12 is the F.I.R. Having received the information, PW.17 Inspector of Police visited the scene of offence along with PW.14. He prepared an observation report Ex.P5 in the presence of mediators. He also prepared a rough sketch Ex.P18 at the scene of offence. He also held inquest over the dead body in the presence of PW.11 and another. Inquest report is marked as Ex.P6. During the course of inquest, he recorded statements of PWs 1, 2, 9, 10 and others. Thereafter, he sent the dead body for Postmortem examination. PW.13, Civil Assistant Surgeon, Area Hospital, Narasipatnam, conducted Autopsy over the dead body. He opined the cause of death was due to Asphyxia as a result of drowning. He 4 issued Postmortem Certificate Ex.P9 and Final opinion under Ex.P11. After receipt of the Postmortem Certificate Ex.P8, PW.15 altered the F.I.R. to Section 302 IPC. Ex.P13 is the altered F.I.R. On the basis of the altered PW.17 recorded statements of PW.12, PW.6 and others on F.I.R. 08.12.2008. He also recorded statements of PWs 7, 8, 9 & 12. On 09.12.2008, at about 02.00 P.M., he arrested A.1 to A.4 at Sarabhavaram village and were remanded to judicial custody. On 11.12.2008, he sent material objects to the Regional Forensic Science Laboratory (RFSL), Visakhapatnam.- RFSL report is marked as Ex.PIO. Thereafter, 164 Cr.P.C. statements of PWs 2, 6 and 9 were recorded by the learned Additional Judicial First Class Magistrate, Yellamanchili, who is examined as PW.16. Those 164 Cr.P.C. statements were marked as Exhibits PI5 to PI7. After completion of the investigation PW.17 filed charge sheet. In support of its case, the prosecution examined PWs 1 to 17 and marked exhibits PI to PI 8. On behalf of the defence, no oral evidence and 4. documents were marked. When the accused were examined under Section 313 Cr.P.C., they 5. denied the incriminating material appearing against them. Accepting the evidence of prosecution witnesses, the learned Additional Sessions Judge convicted the accused-appellants as aforesaid. 6. Heard Sri K.Prithviraj, learned counsel, representing Sri Turaga Sai Surya, learned counsel for the appellants, and Sri Marri Venkata Ramana, 7. 5 learned Additional Public Prosecutor representing the State. We have carefully analyzed the entire evidence on record. PWs 1 & 2 are none other than the parents of the deceased. PWs 3 & 8. 4 are none other than the brothers of PW.1. The evidence of PWs 1 to 4 disclosed that on 04.12.2008, the deceased boy was playing with the grandchildren of A.1 on the road. Thereafter, the deceased boy was missing. Though PWs 1 to 6 searched for the boy, they did not find him. As such, the evidence of PWs 1 to 4 only show that the deceased boy was missing while he was playing on the road. Coming to the evidence of PW.5, who is also relative of PW.1, he stated in his evidence that on the date of incident at about 04.00 or 05.00 P.M., he noticed the deceased playing with the grandchildren of A.1. Except stating that, nothing has been attributed to A.1 to A.4. The evidence of PWs 1 to 5 further disclosed that on the next day morning at about 08.00 A.M., they saw the dead body brought by PW.10. Thereafter, PW.1 went to Police Station and gave a report Ex.P1. Coming to the next witness i.e., P.W.6, he is the crucial witness in this case. PW.6 in his evidence stated that on the fateful day in the early morning at about 3.30 A.M. or 04.00 A.M., he was passing towards Nookalathalli road side which is situated adjacent to Chakali Cheruvu. He found A.1 to A.3 carrying the deceased. After returning to the village, he went to his Barber shop. At about 08.00 A.M. on the same day, he came to know that the deceased boy died. He also states that immediately he closed the shop and went to the house of PW.1 and saw the dead body and returned 9. 6 home. Thereafter, he kept quite. So far as PWs 7, 8 & 9 are concerned, they did not support the prosecution and they were declared as hostile. PW.10 in his evidence has stated that on 05.12.2008 morning, when he was searching for the boy, he found the dead body of the deceased in Chakali Cheruvu. Immediately, he took the dead body and handed over to PW.1. PW.11 is a Panch witness for the scene of offence and inquest report. PW.12 is the village elder, who was examined to speak about the disputes between the family of PW.1 and the family of A.1 and compromising the said dispute between both the families on 03.12.2008. But, unfortunately this witness also did not support the prosecution and he was also declared as hostile. PW.13 is the Doctor, who conducted Autopsy over the dead body and issued Postmortem certificate Ex.P9 and Final opinion Ex.PII. PW.14 is the Sub- Inspector of Police who registered the crime. PW.13 is another Sub-Inspector of Police who altered the F.I.R. PW.16 is the Additional Judicial First Class Magistrate, Yellamanchili, who recorded 164 Cr.P.C. statements of PWs 2, 6 and 9 under Exhibits PI 5 to PI 7. PW.17 is the Investigating Officer. 10. Having analyzed the entire evidence on record, the only witness available is PW.6. As already pointed out, PW.6 in his evidence has stated that on 05.12.2008 at about 03.30 A.M. or 04.00 A.M., he was proceeding towards Nookalathalli road side situated by the side of Chakali Cheruvu. At that juncture, he noticed A.1 to A.3 carrying the deceased. Having noticed the accusing carrying the deceased boy, he did not choose to inform either to PW.1 or to his family members. He also in his evidence further disclosed that 7 he has also searched for the boy along with PWs 1 to 5. His evidence further disclosed that he is aware of the disputes between the family of PW.1 and the family of accused with regard to the house sites. But, curiously in his cross- examination, he has admitted as follows: “I did not state to our Sarpanch / Appalanaidu and village elders as well as Vuta families i.e., PW.1 to 3 about my notice carrying dead body by the accused”. PW.17 Investigating Officer in his evidence has stated that he recorded statement of PW.6 for the first time on 08.12.2008. Till 08.12.2008, PW.6 did not inform anyone about carrying the body of the deceased by A.1 to A.3 on the fateful day at the relevant point of time. If really PW.6 has noticed A.1 to A.3 carrying the dead body, he ought to have informed the same either to PW.1 or to his family members as he also searched for the boy on the previous night. But, curiously having seen the dead body at the house of PW.1 at about 08.00 A.M. on 05.12.2008, he went home. In view of the above facts and circumstances, we are not inclined to 11. place any reliance on the evidence of PW.6. The evidence of PW.6 is highly artificial and do not inspire confidence of this Court to place reliance on his version. Except the evidence of PW.6, there is no other evidence to connect the accused-appellants with the said offence. Further, according to PWs 1 to 5, a quarrel took place between the family of PW.1 and the accused on 01.12.2008. During the said quarrel, A.3 said to have bite PW.2, who received a bleeding injury. But, the prosecution did not adduce any evidence with regard to the injury received by PW.2. The village elder PW.12, who said to have conducted mediation on 03.12.2008 between the family of PW.1 and the family of accused, did not support the prosecution and as such, the prosecution is also not able to prove motive for the accused to kill the deceased. The learned trial Judge ought not to have placed reliance on the evidence of PW.6, who did not disclose to any one at least to the Village Revenue Officer about he noticing the accused carrying the deceased at about 3.30 A.M. or 04.00 A.M. on 05.12.2008 near Chakali Cheruvu. In view of the above facts and circumstances, the sentence recorded by the learned Additional Sessions Judge is not sustainable and the same is liable to be set aside. 12. conviction and In the result, this Criminal Appeal is allowed by setting aside the conviction and sentence recorded by the learned X Additional District & Sessions Judge, Visakhapatnam at Anakapalle, in S.C.No. 123/2015 vide judgment dt. 04.07.2017. Accordingly, the appellants / A.2 acquitted. to A.4 are As the appellants were already enlarged on bail by order of this Court in terms of the order of a Division Bench of the combined High Court in Batchu Ranga Rao v. State of A.P.'', they are directed to appear before the Superintendent, Central Prison, Visakhapatnam for completion of formalities. The bail bonds of the appellants shall stand cancelled. necessary [2016(3)ALT (CrI.) 505 (DB) (A.P.)] 9 As a sequel, interlocutory applications pending, if any, shall also stand closed. SD/- E.KAMESWARA RAO JOINT REGISTRAR //TRUE COPY// SEOTTON OFFICER To, 1. The X Additional District and Sessions Judge, Visakhapatnam at Anakapalli, Visakhapatnam District (With records if any ) 2. The Superintendent, Central Prison Visakhapatnam 3. OneCCto SRI. TURAGA SAI SURYA Advocate [OPUC] 4. Two CCs to the Public Prosecutor, High Court of Andhra Pradesh at Amaravathi [OUT] 5. The Section Officer, Criminal Section, High Court of A.P. at Amaravati 6. Three CD Copies SD TAC HIGH COURT DATED;06/02/2025 ORDER CRLA.No.871 of 2017 o X 2't FEB 2025 ^ . Current Section pat c ALLOWING THE CRIMINAL APPEAL