APHC010862372017 IN THE HIGH COURT OF ANDHRA PRADESH (Special Original Jurisdiction) TUESDAY, TWO THOUSAND AND TWENTY FIVE THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SMT JUSTICE CRIMINAL APPEAL NO: 1342/2017 Between: A.venkata Subba Reddy The State of A.P. and another Counsel for the Appellant: 1. L J VEERA REDDY Counsel for the Respondent(S): 1. T DIWAKAR REDDY 2. PUBLIC PROSECUTOR The Court made the following: JUDGMENT: (Per Hon’ble Sri Justice K.Suresh Reddy) Questioning the judgment of the acquittal passed by the learned II Additional Sessions Judge, Kadapa at Proddatur, in S.C.No.294 of 2012 dated 30.08.2017, PW.1 filed the present appeal. 2 tried by the learned Additional Sessions Judge under three charges. First charge was under Section 302 IPC. IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) TUESDAY, THE FIRST DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL APPEAL NO: 1342/2017 ...AP AND and another ...RESPO ellant: dent(S): PUBLIC PROSECUTOR (AP) The Court made the following: (Per Hon’ble Sri Justice K.Suresh Reddy) Questioning the judgment of the acquittal passed by the learned II Additional Sessions Judge, Kadapa at Proddatur, in S.C.No.294 of 2012 dated he present appeal. 2nd respondent / accused was tried by the learned Additional Sessions Judge under three charges. First charge was under Section 302 IPC. IN THE HIGH COURT OF ANDHRA PRADESH [3528] THE HONOURABLE SRI JUSTICE K SURESH REDDY PPELLANT ...RESPONDENT(S) Questioning the judgment of the acquittal passed by the learned II Additional Sessions Judge, Kadapa at Proddatur, in S.C.No.294 of 2012 dated respondent / accused was tried by the learned Additional Sessions Judge under three charges. 2 Second charge was under Section 379 IPC alternatively under Section 411 IPC. Third charge was under Section 376 IPC. 2. Substance of the charge is that on 05.12.2011, the accused committed rape on Appakondu Eswaramma (hereinafter referred to as ‘the deceased’) near the agricultural fields situated at Chadipiralla Village, Kamalapuram Mandal and caused her death by throttling her and in the same process, he committed theft of M.O.1, thereby committed the offences punishable under Sections 302, 376 & 379 alternatively 411 IPC. 3. Case of the prosecution, briefly, is as under: (a) Accused and the material prosecution witnesses are residents of Chadipiralla Village, Kamalapuram Mandal. The deceased was also resident of same village. PW.1 is the son and PW.2 is the husband of the deceased respectively. PW.3 is the Villager. On 05.12.2011 at about 08.00 A.M., the deceased went to the fields for grazing buffaloes. But, she did not return home. PW.1 and others searched for the deceased in the surrounding places and they could not found her. On the same day at about 06.00 P.M. or 06.30 P.M., when they were searching for the deceased, they noticed the dead body of the deceased in the Jowar fields. Having noticed the dead body, PW.1 went to the police station and gave a report to the police. PW.8 Sub-Inspector of Police, Kamalapuram Police Station, received Ex.P1 from PW.1 and registered a case in Cr.No.129/2011 under Sections 302 and 379 IPC. He 3 issued copies of F.I.R. to all the concerned. Ex.P9 is the F.I.R. Having received the information, PW.9 Inspector of Police went to Chadipiralla Village at about 11.30 P.M. He also visited the scene of offence situated towards northern side of the village. He posted guards at the scene of offence, as it was late in the night. On 06.12.2011 at about 07.45 A.M., he held inquest over the dead body in the presence of PW.4 and another. Ex.P2 is the Inquest report. During the course of inquest, he recorded statements of PWs 1 to 3 and another. At the inquest, he seized M.Os 2 to 7 from the body of the deceased. He also prepared a rough sketch Ex.P10 at the scene of offence. He forwarded the dead body for Postmortem examination. PW.7 Civil Assistant Surgeon, RIMS, Kadapa, conducted Autopsy over the dead body. She opined the cause of death was due to asphyxia due to pressure over the neck by throttling. She issued preliminary Postmortem report Ex.P6. On 10.12.2011, PW.9 received Ex.P6 Postmortem report. He forwarded seized property to the F.S.L., Kurnool under a letter of advice Ex.P11 dated 13.12.2011. During the course of investigation, PW.9 suspected involvement of three family members of the deceased as the accused. He filed a requisition before the Judicial Magistrate of First Class, Kamalapuram on 20.03.2012 requesting the court to permit the police to conduct Polygraphic test against the four suspected persons. On 02.04.2012, except the accused, the remaining three persons were present before the Court for Polygraphic test. Upon enquiry, PW.9 came to know through his wife that since 23.03.2012 the accused is missing and the same has been reported in 4 Kamalapuram Police Station, which was the subject matter of Cr.No.49/2012 under ‘Man Missing’. PWs 1 & 2 and another participated in the Poly graphic test on 25.04.2012 to 27.04.2012. While things stood thus, on 14.04.2012 at about 01.30 P.M., the accused approached PW.5 who is working as V.R.O. of Chadipiralla Village and confessed stating that he killed the deceased. He drafted his report Ex.P3 and took him to PW.8. On the same day at about 02.15 P.M., the accused was produced before PW.9 by PW.5 and handed over the accused to him. Immediately, PW.9 went to the police station and secured the presence of PW.6 and another and examined the accused and recorded his confession statement under Ex.P4. On the basis of the confession, PW.9 recovered M.O.1 Gold Chain under Panchanama Ex.P5, and arrested the accused who was remanded to judicial custody. On 23.04.2012, PW.9 received F.S.L. report which is marked as Exs.P8, 13 & 14. The accused was examined by the Civil Assistant Surgeon PW.10, who opined that there is nothing to suggest that the accused is not capable of performing sexual intercourse. He issued certificate Ex.P15. After receipt of F.S.L. report, PW.7 gave her final opinion stating that the deceased died due to sexual intercourse occurred prior to death and cause of death was due to asphyxia due to pressure over the neck by throttling. Final opinion is marked as Ex.P7. After collecting the entire material and after completion of investigation, PW.9 filed charge sheet. 4. In support of its case, the prosecution examined PWs 1 to 10, marked exhibits P1 to P15 and exhibited M.Os. 1 to 7. 5 5. When the accused was examined under Section 313 Cr.P.C., he denied the incriminating material appearing against him. 6. Heard Sri L.J.Veera Reddy, learned counsel for the appellant, and Sri T.Diwakar Reddy, learned counsel for 2nd respondent / accused and Sri Marri Venkata Ramana, learned Additional Public Prosecutor representing the State / respondent No.1. 7. We have perused the entire material on record. 8. Admittedly, there are no eye witnesses to the incident and the case rests on circumstantial evidence. PW.1, who is the son of the deceased, states that the deceased went to the fields in the morning of 05.12.2011 for grazing buffaloes. But she did not return. The evidence of PW.1 further disclosed that during the course of search, the dead body of the deceased was found in between 06.00 P.M. or 06.30 P.M. on the same day in the Jowar fields. PW.2, who is the husband of the deceased, was not in the village and he came to know through PW.1 about the death of the deceased. The evidence of PW.3, who is the villager, only shows that she saw the deceased in the fields in between 10.00 A.M. to 10.30 A.M. on the fateful day. As such, the evidence of PWs 1 to 3 is not at all helpful to the prosecution to prove the guilt of the accused. 9. The prosecution mainly relying on two circumstances. The first circumstance relied on by the prosecution is the so-called extra judicial confession said to have been made by the accused before PW.5. The second 6 circumstance relied on by the prosecution is the recovery of M.O.1 at the instance of the accused. Except these two circumstances, there is no other material to connect the appellant with the alleged offence. The learned Additional Sessions Judge in his judgment has dealt with the evidence of PWs 5 & 6 at paragraphs 22 and 23 which reads as under: “22. The prosecution only banks on the evidence of P.W.5 and P.W.6 in whose presence the police arrested the accused and seized the gold ornaments belonging to the deceased. PW.5 is the V.R.O. of Chadipiralla village has deposed that the accused came to him and confessed the commission of offence and in turn he recorded the extra- judicial confession statement of accused and later produced the accused before the police. Interestingly P.W.5 in his cross-examination, has admitted that he is the stock witness to the police and at the time of extra-judicial confession, there are some persons accompanied with the accused in mufty dresses and as per the dictation of the police persons, he drafted Ex.P.3. It clearly shows that in the presence of police and on their dictation, the P.W.5 have recorded the extra-judicial confession of accused. P.W.5 has given a distorted version that he signed Ex.P.3. If, however the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such as confession. It is in the evidence of P.W.5 that he is totally stranger to and had no prior acquaintance with the accused so as to repose confidence in him. Therefore, in all probability the accused would not have gone to the office of P.W.5, so as to give a statement. Hence, the evidence of P.W.5 is no way helpful to the case of prosecution. 23. When coming to the evidence of P.W.6, he deposed that in his presence accused was confessed the commission of offence to the police and basing on the disclosure statement of accused, they went to the house of accused at Chadipiralla village and the accused brought M.O.1 from his cattle shed and the same was seized by the police under cover of seizure panchanama. Surprisingly, he admitted in his cross-examination that the police did not issue any summons to him and he did not take any permission 7 from his superior officers to act as panchayatdar. He further admitted that he signed in Ex.P.4 and Ex.P.5 at police station. He also admitted that prior to 14.04.2012 he had no acquaintance with the accused. Admittedly Ex.P.4 was drafted at police station, but Ex.P.5 was drafted at the residence of the accused. Further the police failed to issue summons to the neighbours of accused house to act as mediators for the seizure panchanama is also fatal to the case of prosecution. Hence, the evidence of P.W.6 is no way helpful to the case of the prosecution.” So far as the non-appearance of the accused before the Court for polygraphic test, PW.9 Investigating Officer in his cross-examination has clearly stated as under: “It is true that the accused is available to serve the summons issued by the Magistrate court for poly graphic test.” Though the Investigating Officer admitted that the accused is available, he did not place any material to show that the accused has not co-operated for polygraphic test. Further, PW.5 is a stranger and there is nothing for the accused to make extra-judicial confession before him on 14.04.2012 though the incident took place on 05.12.2011 that is after more than four months. Further, PW.5 in his evidence has specifically admitted as follows: “It is true some of the persons accompanied with the accused in mufty dress. There are five or six persons came along with the accused. As per the dictation of the Police persons, I drafted the Ex.P3.” In view of the above admission made by PW.5 in his cross-examination, the extra-judicial confession said to have been made by the accused was disbelieved by the learned Additional Sessions Judge. So far as the recovery is concerned, the prosecution examined PW.6 V.R.O. of Kamalapuram Village. In his cross-examination, he has specifically admitted that he signed 8 on Exs.P4 and P5 Confession statement and Recovery Panchanama at the police station. As such, PW6 also disbelieved by the learned Additional Sessions Judge. Except the above two circumstances, there is no other evidence to connect the appellant with the alleged offence. 10. In view of the above facts and circumstances, there are no grounds to interfere with the judgment of acquittal recorded by the learned II Additional Sessions Judge, Kadapa at Proddatur, in S.C.No.294 of 2012 vide judgment dated 30.08.2017. In the result, this Criminal Appeal is dismissed confirming the acquittal recorded by the learned II Additional Sessions Judge, Kadapa at Proddatur, in S.C.No.294 of 2012 vide judgment dated 30.08.2017. As a sequel, interlocutory applications pending, if any, shall also stand closed. __________________ K.SURESH REDDY, J _____________ V SUJATHA, J Date: 01.04.2025 MVA