1 KSR, J & VS, J Crl.A.No.832 OF 2016 APHC010680122016 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3528] MONDAY ,THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL APPEAL NO: 832/2016 Between: The State Of A.p.,rep. By Public Prosecutor, High Court, Hyd ...APELLANT AND Pala Laxmipathi Kiran Guntur Now At Ravikampadu 4 Othrs and Others ...RESPODENT(S) Counsel for the Appellant: 1. PUBLIC PROSECUTOR (AP) Counsel for the Respondent(S): 1. A RAVI SHANKAR 2. MADHU BABU ISUKAPATLA 3. N V ANANTHA KRISHNA 2 KSR, J & VS, J Crl.A.No.832 OF 2016 IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI MONDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE SPECIAL DIVISION BENCH PRESENT HON’BLE SRI JUSTICE K.SURESH REDDY AND HON’BLE SMT JUSTICE V. SUJATHA CRIMINAL APPEAL No.832 of 2016 J U D G M E N T (Per Hon’ble Sri Justice K.Suresh Reddy) Questioning the Judgment of acquittal passed by the learned II Additional District and Sessions Judge (Fast Track Court), Srikakulam in Sessions Case No.91 of 2006, dated 04.08.2009, the State through the learned Public Prosecutor filed the present Criminal Appeal against Respondents/ Accused Nos.1 to 5. 2. Case against A5 was separated vide S.C.No.3 of 2007 for want of his appearance and subsequently after securing his presence clubbed the said Sessions Case with S.C.No.91 of 2006. 3 KSR, J & VS, J Crl.A.No.832 OF 2016 3. Respondents/Accused Nos.1 to 5 were tried by the learned Additional Sessions Judge under the following charges. (i) First charge was under Section 396 IPC and in the alternative under Section 302 IPC against A1 to A5. (ii) Second charge was under Section 376 IPC against A1 to A5 and (iii) Third charge was under Section 506 (2) IPC against A1 to A5. 4. Substance of the charge is that on the intervening night of 16/17.9.2004 at midnight all the accused surrounded Ijjada Ramarao (hereinafter referred to as „the deceased‟) while sleeping on a cot in front of his house situated at Adapaka Junction, abutting NH5 road and stabbed him with knives indiscriminately causing his death and dragged the dead body into the vacant site and in the same process they entered into the house and committed rape on his wife (P.W.1) by threatening to kill her daughter Ijjada Anusha (P.W.3) on the point of knife and committed theft of cash and snatched away gold ornaments from P.W.1, thereby committed offences punishable under Section 396 IPC alternatively 302 IPC and under Sections 376 and 506 (2) IPC. 4 KSR, J & VS, J Crl.A.No.832 OF 2016 5. After completion of trial, the learned Additional Sessions Judge, acquitted all the five (5) accused/the respondents of all the charges by Judgment dated 04.8.2009 in S.C.No.91 of 2006. Aggrieved by the same, the State through the learned Public Prosecutor filed the present Criminal Appeal. 4. Case of the prosecution, briefly, is as follows: About 18 years prior to the incident, marriage took place between the deceased and P.W.1 and they were blessed with two children. About 7 years prior to the date of incident, they shifted their family to a tiled house constructed at Adapaka junction abutting NH-5 road and living there, by running tea shop. The said house is situated in an isolated place. (ii) P.W.2 is the brother of the deceased who is residing about half a kilometre away from the house of the deceased. P.W.3 is the daughter of the deceased. P.W.4 is the neighbour. (iii) On the intervening night of 16/17.9.2004, at about 1.00 A.M. in the night, the accused went into the pail of the house and surrounded the deceased who was sleeping on a cot, confined the movements of the deceased by tying his hands and legs with his lungi and stabbed the deceased with knives indiscriminately causing his death and dragged the dead body into the vacant site of 5 KSR, J & VS, J Crl.A.No.832 OF 2016 backyard. On hearing the cries, P.W.1-the wife of deceased who was sleeping inside the house came out and noticed the incident. Then three accused out of them caught hold of P.W.1 and committed rape on P.W.1. The accused opened the secret locker and took cash of Rs.15,000/- and they also snatched two tulas of gold chain from the person of P.W.1. They also threatened the daughter of P.W.1 i.e. P.W.3 at the point of knife. After committing the offence, all the accused decamped with booty. Immediately P.W.1 went to her in- laws house and informed P.W.2 about the incident at about 5.15 p.m on 17.9.2004 and then P.W.1 along with P.W.2 went to Laveru Police Station and gave a report. (iv) P.W.12-the then Sub-Inspector of Police, Laveru Police Station received Ex.P1 report from P.W.1 and registered a case in Crime No.74 of 2004 under Sections 396 and 376 IPC. He issued copies of FIRs to all the concerned. FIR is marked as Ex.P67. Immediately he went to the scene of offence along with P.Ws.1 and 2 by securing the presence of mediators-P.Ws.6 and 10. (v) Having received the information, P.W.14-the then Inspector of Police reached the scene of offence. He recorded statement of P.W.1 under Section 161 Cr.P.C. He prepared an observation report-Ex.P30 in the presence of P.Ws. 6 and 10. He also prepared 6 KSR, J & VS, J Crl.A.No.832 OF 2016 rough sketch under Ex.P81 at the scene of offence. He seized MOs.4,5 and 8 owned by P.W.1 in the presence of P.Ws.6 and 10. He sent P.W.1 to Government Hospital, Srikakulam. He also seized blood stained blanket-MO6, 3 (three) Lungi pieces- MO7 at the scene of offence. He held inquest over the dead body of the deceased in the presence of P.Ws.6, 10 and another. Inquest report is marked as Ex.P31. He sent the dead body to the Government hospital, Srikakulam for post-mortem examination. But the doctor who conducted post-mortem examination was not examined. (vii) P.W.8 the then Civil Assistant Surgeon, Srikakulam examined P.W.1. She opined on the basis of Analyst Report-Ex.P52 that there is no evidence of recent sexual intercourse. She issued Certificates under Exs.P51 and 53. (viii) P.W.14, after inquest, recorded statements of P.Ws. 2 to 5 and others. On 01.10.2004, on credible information, P.W.14 apprehended A1 at about 3.00 P.M. near Subhadrapuram Junction on NH5 road in the presence of P.Ws.6 and 10. On interrogation, A1 admitted the commission of offence along with A2 to A5. He recovered MO3-Two (2) gold pustelu from the pant pocket of A1 and he seized the same under a cover of panchanama-Ex.P36. On the 7 KSR, J & VS, J Crl.A.No.832 OF 2016 next day, he produced A1 before the Court, who was remanded to judicial custody. He sent A1 for medical examination. (xi) P.W.9-the then Civil Assistant Surgeon conducted potency test on A1 and issued Ex.P54 opining that there is no evidence to say that he is impotent. (xii) On 02.10.2004, P.W.14 conducted Identification parade of MO3 in the presence of P.Ws. 6 and 10 and the said identification proceedings were marked as Ex.P33. (xiii) On 05.10.2004, on reliable information, P.W.14 arrested A5 in the presence of P.Ws.6 and 11 near Budumuru Thamada road junction on NH5 road. P.W.14 recovered MO2- gold chain piece from the nicker pocket of A5 under Ex.P34 Mediators report. On the next day, he produced A5 before the Court, who was remanded to judicial custody. (xiv) On the next day, P.Ws.6 and 11 conducted Test Identification Parade of MO2-gold chain piece, in which P.W.1 identified the same. Test Identification Proceedings were marked as Ex.P35. (xv) Subsequently A3 and A4 surrendered before the Court on 13.12.2004. Then P.W.14 obtained A3 and A4 for police custody. He recovered certain articles from the possession of A3 and A4, which 8 KSR, J & VS, J Crl.A.No.832 OF 2016 were subject matter in Crime No.72 of 2004 of J.R. Puram Police Station under a panchanama-Ex.P39. (xv) On 22.11.2004, P.W.14 received message that A2 was arrested in Crime No.270 of 2004 of Kurnool Police Station and later he was produced on PT warrant in this case. He recovered MO.12- Iron rod from the house of A2 at his instance under a panchanama- Ex.P82 on 03.2.2005. (xvi) In the meanwhile, on 17.9.2004, P.W.13-Finger Prints Expert, Srikakulam visited the scene of offence and developed chance prints A to H. On 06.12.2004, he received finger prints of the accused. After comparing the finger prints of the accused with the chance prints, he sent his report under Exs.P70 to 74. He opined that the said finger prints are not tallied. (xvii) P.W.14 sent the material objects to RFSL, Visakhapatnam for chemical analysis. FSL Report is marked as Ex.P89. On 02.11.2024, 30.12.2004 and 11.02.2005, Test Identification Parades were conducted by P.W.7-the then Judicial Magistrate of First Class, Narasannapeta, in which, P.W.1 identified the accused. After receipt of all the documents and after completion of investigation, P.W.14 filed charge sheet. 9 KSR, J & VS, J Crl.A.No.832 OF 2016 6. In support of its case, the prosecution examined P.Ws.1 to 14, marked Exs.P1 to P89 and exhibited M.Os.1 to 9. 7. When the accused were examined under Section 313 Cr.P.C., they denied the incriminating material found against them in the evidence of prosecution witnesses, but they did not choose to examine any witness on their behalf. However, the accused got marked Exs.D1 to D3-relevant portion of statements under Section 161 Cr.P.C. of P.Ws.1 and 4. 8. Disbelieving the evidence of the prosecution witnesses, the learned Additional Sessions Judge acquitted all the accused vide Judgment dated 04.8.2009, which is impugned in the present Criminal Appeal. 9. Heard the learned Additional Public Prosecutor as well as the learned counsel for the accused/respondents herein. We have gone through the entire material on record. 10. P.W.1 is none other than the wife of the deceased. According to P.W.1 the alleged incident took place on the intervening night of 16/17.9.2004. In her evidence she stated that on hearing the cries, she came out of the house and found six (6) persons. She also stated that the accused stabbed the deceased with knives and caused his death. She further stated that out of six (6) persons three 10 KSR, J & VS, J Crl.A.No.832 OF 2016 (3) persons entered into the house and committed rape on her. She also stated that as her clothes were stained with semen and spermatozoa, she changed her clothes. 11. P.W.8- Civil Assistant Surgeon examined P.W.1 and gave her opinion stating that there is no evidence of recent sexual intercourse. P.W.8 examined P.W.1 on 17.9.2004 itself. She gave her opinion on the basis of FSL reports-Ex.P56 and Ex.P52. As such, the trial Court disbelieved the evidence of P.W.1 with regard to the offence under Section 376 IPC. As there is no evidence to show that P.W.1 was subjected to rape by the accused. 12. Coming to the evidence of P.W.2 who is none other the brother of the deceased, he stated in his evidence that on the morning of 17.9.2004 at about 1.00 a.m. P.W.1 along with her daughter-P.W.3 came to his house and informed the incident to him. P.W.1 also stated to P.W.2 that she could not find the deceased. At about 5.00 or 5.30 a.m., P.Ws.1 and 2 came to the scene of offence and found the dead body in the back yard. Immediately both of them went to police station and gave report-Ex.P1, whereas in Ex.P1, P.W.1 stated that she found the dead body even before arrival of P.W.2. So far as the arrest of the accused and recovery of gold 11 KSR, J & VS, J Crl.A.No.832 OF 2016 articles are concerned, the learned trial Judge in paragraphs No.25 to 28 in Judgment held as follows: “25. In the case on hand also as per the evidence available on record the offence took place in the intervening night of 16/17.9.2004 and P.W.14 the C.I of police arrested A1 on 1.10.2004, A5 on 5.10.2004 on their respective confessions leading to recovery of MOs 3 and 2 gold Mangala Sutrams and one broken gold chain piece of pustela thradu the stolen property. P.W.7 has conducted identification over A1 and A5 suspects on 02.11.2004. Thus evidently there is a gap of nearly two months from the date of occurrence and a gap of one month from the date of arrest and identification parade of A1 and A5. Evidence of P.W.14 further shows that A3 and A4 were surrendered themselves before J.M.F.C. Srikakulam on 13.12.2004 and he took them under police custody on 18.12.2004 for interrogation during which they confessed their guilt leading to recovery of M.O.1 two broken gold chain pieces, of pustelutradu stolen property in the house of A2 at Ravikampadu and thereafter he handed over them to Judicial Magistrate Fast Track (sic. First Class) Court, Srikakulam at the next day i.e. 19.12.004. As per the evidence of P.W.7 he conducted identification parade of A3 and A4 on 30.12.2004. Thus evidently there is a gap of more than 2 months in between date of occurrence and seven days from the date of interrogation under police custody and identification parade of A3 and A4. It is further evidence of P.W.14 that he took A2 for police custody on 3.2.2005 and during interrogation he confessed his guilt leading to recovery of 12 KSR, J & VS, J Crl.A.No.832 OF 2016 M.O.9 crime weapon in his house at Ravikampadu and thereafter he handed over A2 to the concerned court on the next day i.e. on 14.2.2005 (sic. 04.2.20205). As per the evidence of P.W.7 he conducted identification parade of A5 suspect on 7.2.2005. Thus evidently there is a gap of more than 4 months in between the occurrence of incident and two days gap from the date of interrogation of A5 under police custody and identification parade of A5. 26. Thus evidence available on record clearly shows that A1 to A5 were evidently kept in the police station and they were exposed to public at the time of recovery of M.O.s 1 to 3 and M.O.9 and while they were produced before the concerned court for Judicial remand and also in the sub-jail, Srikakulam during the period of their remand prior to their respective identification parades. In such event it is bounden duty of investigation agency to take all the precautions like keeping A1 to A5 under parda whenever they are exposed to public in order to rule out the chance of witnessing them by identifying witnesses. But P.W.14 the Investigation Officer is completely silent in his evidence in this aspect. Even admittedly P.W.7 the concerned Magistrate, Narasannapeta did not make any enquiry in order to elicit whether there is any possibility for P.W.1 identifying witnesses to witness A1 to A5 prior to their respective Identification parades, even after A3 and A4 stating before him that they were shown to P.W.1 identifying witness in the Police Station when they were taken into police custody by P.W.14 for interrogation and during that time their Photographs were taken by police and handed over 13 KSR, J & VS, J Crl.A.No.832 OF 2016 to P.W.1. All these circumstances particularly not taking any precautions by P.W.14 by keeping A1 to A5 under parda till their identification parade made me to come to a conclusion that it is not safe to rely on the identification evidence let in by P.Ws 1 and 7 though their evidence is corroborating with each other without any minor contradictions since prosecution has failed to rule out the possibility of P.W.1 witnessing A1 to A5 prior to their respective identification parades, relying on the principle laid down in the above cited cases. 27. Apart from the above reason, to my observation, even admittedly and evidently the special feature of the 6 dacoits like stature complexion and other characteristics related to their heights and special marks not mentioned either in Ex.A1-FIR and 161 statement of P.W.1 Evidently there is a gap of more than 2 months in between occurrence of offence and identification parades. In such event identifying A1 to A5 by P.W.1 remembering them for such a long gap is unnatural and unbelievable. More over in Ex.P1- FIR it is stated that out of 6 culprits 2 culprits were covered with masks on their mouths. But evidence of P.W.1 and P.W.7 is completely silent that A1 to A5 suspects were participated in the identification parades covering their mouths with masks, which is a material lapse. These circumstances also made me to hold that convicting A1 to A5 relying on the identification evidence of P.W.1 is not safe and thereby it can be concluded that prosecution has failed to link A1 to A5 with the murder of deceased and offence of criminal force used against P.W.3. 14 KSR, J & VS, J Crl.A.No.832 OF 2016 28. Coming to the snatching of gold pustelu thadu from the neck of P.W.1 and recovery of the same under M.O.s 1 to 3 from the dacoits is proved since the evidence of P.W.1 to that extent is corroborated by P.W.14 the investigation officer and strengthened by the relevant mediators P.Ws 6,10 and 11 who stated that they have acted as mediators while arresting respective five culprits as they confessed their respective guilts leading to recovery of M.O.s 1 to 3 stolen pustule thradu with Pustelu and M.O.9 crime weapon. But they did not identify the arrested culprits from whom the police have ceased M.O.s 1 to 3 and M.O.9. Thus their evidence is not helpful to link A1 to A5 with said recovery. P.W.1 has identified M.O.s 1 to 3 as belonged to her. I do agree P.W.1 has identified accused snatched away her gold pustelu Thadu. But as per the discussion held supra this court has not believed her identifying evidence for the reasons mentioned therein. Thus her evidence is not helpful to link A1 to A5 with recovery of M.O.s 1 to 3. Thus except sole un corroborative evidence of P.W.14 no other independent evidence is available on record to prove that M.O.s 1 to 3 the gold pustelu thadu with pustelu recovered from A1 to A5. In the absence of any corroborative evidence in that aspect it is not safe to come to a conclusion that A1 to A5 either snatched gold pustelu thradu of P.W.1 or that same is recovered from them under M.O.s 1 to 3. Thus it can be said that prosecution has failed to link A1 to A5 with M.O.s 1 to 3, the stolen property in any angle and as such even it is not proper to find them guilty for the offence punishable under Section 411 I.P.C.” 15 KSR, J & VS, J Crl.A.No.832 OF 2016 13. According to the earliest version, about six (6) persons gained entry and committed the offence. The learned trial Judge in Judgment at paragraph No.29 held as follows: “As per the discussion held supra it can be said that prosecution has established that 6 dacoits gained entry of the deceased house and murdered the deceased, and also used criminal force against P.W.3 and also snatched away gold pustelu thadu with pustelu of P.W.1 from her neck and the same was recovered under M.O.s 1 to 3. But failed to link A1 to A5 with said offences. Prosecution even failed to establish that P.W.1 was committed for rape by the said dacoits and as such question of A1 to A5 linking with the said offence does not arise. It is not out of place to discuss about the committing theft of cash of Rs.15,000/-. Evidence of P.W.1 shows that 2 dacoits out of 3 who entered inside the house forcibly opened the secret drawer of their almarah and committed theft of Rs.15,000/- cash. Even P.W.2 has stated that he has observed signs of forcible opening of said almarah. But prosecution is completely silent in that aspect as to whether investigation agency recovered the same or not and what were there efforts made by them for said recovery. Even evidence of P.W.13 finger print expert’s opinion is not helpful to strengthen the evidence of P.W.1 that said secret drawer was opened forcibly. In my considerable opinion no additional advantage be gained even if the issue of committing theft of Rs.15,000/- cash by opening secret drawer forcibly is proved since prosecution has 16 KSR, J & VS, J Crl.A.No.832 OF 2016 failed to establish the identify of A1 to A5 to link them with the alleged offences.” 14. Further, this is an appeal against an Order of acquittal. In dealing with the appeals against acquittal, though this Court has full power to re-appreciate the evidence, at the same time, it would be slow in interfering with the order of acquittal because there is a presumption under law that accused is presumed to be innocent unless contrary is proved and that presumption is further strengthened by the order of acquittal. Unless there are substantial or compelling reasons, this Court will not ordinarily disturb the findings of the trial Court. If the trial Court has given any perverse finding, then it can be a ground to interfere with the order of acquittal. Similarly, if admissible evidence has not been taken into consideration or inadmissible evidence has been looked into for the purpose of arriving at a particular finding, then also it can be said to be a compelling reason to interfere with the same. 15. It is well settled that the scope of interference with an order of acquittal in an appeal is limited. In „Vimal Singh v. Khuman Singh & anr. 1‟, the Hon‟ble Apex Court held as follows: 1 1998 (8) Supreme l 17 KSR, J & VS, J Crl.A.No.832 OF 2016 “…..Coming to the ambit of power of High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial Court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial Court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial Court has no jurisdiction to try the case or where the trial Court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue have been over looked. These are the instances where the High Court would be justified in interfering with the order of acquittal.” 16. In „C.Antony V. K.G.Raghavan Nair2’ while dealing with an order of acquittal, the power of High Court to interfere with the same, the Apex Court held thus: “Unless the findings of trial Court are perverse or contrary to the material on record, High Court cannot, in appeal, substitute its findings merely because another contrary opinion was possible on the basis of material on record.” 2 2003(1) SCC 1 18 KSR, J & VS, J Crl.A.No.832 OF 2016 17. In „State of Goa vs. Sanjay Thakran3‟, the Apex Court held as follows: “While exercising the powers in an appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality land the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decisions is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view, which would upset the judgment, delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law land ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re- appreciate the evidence to arrive at a just decision on the basis of material placed on record to fine out whether any of the accused is connected with the commission of the crime he is charged with.” 18. In „Rupesh Manger (Thapa) Vs. The State of Sikkim45‟, the Apex Court held as follows: “It is settled that the judgment of acquittal can be reversed by the Appellate Court only when there is perversity and not by taking a different view on re-appreciation of evidence. If the conclusion of the Trial Court is plausible one, merely because 3 (2007) 2 SCC (Crl.)162 4 2023 (3) ALT (Crl.) 129 (SC) 5 (2007) 2 SCC (Crl.)162 19 KSR, J & VS, J Crl.A.No.832 OF 2016 another view is possible on re-appreciation of evidence, the Appellate Court should not disturb the findings of acquittal and substitute its own findings to convict the accused.” 19. Having analysed the evidence carefully on record and in view of catena of decisions, we have no hesitation to come to the conclusion that the prosecution miserably failed in proving the guilt of the accused beyond reasonable doubt. Therefore, the judgment of acquittal passed by the learned Additional Sessions Judge does not suffer from any perversity and illegality and as such no interference is required. 20. Accordingly, the Criminal Appeal is dismissed confirming the judgment dated 04.8.2009 in Sessions Case No.91 of 2006 on the file of the Court of learned II Additional District and Sessions Judge (Fast Track Court), Srikakulam. Consequently, miscellaneous petitions, if any, pending shall stand closed. ________________________ JUSTICE K.SURESH REDDY ___________________ JUSTICE V. SUJATHA Date: 24.03.2025 GR 20 KSR, J & VS, J Crl.A.No.832 OF 2016 HON’BLE SRI JUSTICE K.SURESH REDDY AND HON’BLE SMT JUSTICE V.SUJATHA Criminal Appeal No.832 of 2016 (Per Hon’ble Sri Justice K.Suresh Reddy) Date: 24.03.2025 GR