APHC010953342017 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI TUESDAY. THE FIFTEENTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT HONOURABLE SRI JUSTICE K SURESH REDDY AND HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL APPEAL No.1664 of 2017 Appeal under Section 374(2) of Cr.P.C, against the Judgment of conviction for life imprisonment imposed in S.C.No.152 of 2017 dated 23.10.2017 on the file of the XIII Additional District Narsaraopet, Guntur District. Between: and Sessions Judge, Noorbasha Mabu Subhani @ Mahaboob Subhani @ Subhani, S/o. Adamsaheb, aged about 22 Chilakaluripet Mandal, Guntur District. years, Dudekula, Boppudi Village ...APPELLANT/ACCUSED AND The State of Andhra Pradesh, through S.H.O. Police Station Chilakaluripet Rural rep. by its Public Prosecutor, High Court. Amaravati. ...RESPONDENT/COMPLAINANT Counsel for the Petitioner : SRI V SURYA KIRAN KUMAR Counsel for the Respondent : ADDITIONAL PUBLIC PROSECUTOR The Court made the following : APHC010953342017 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3528] TUESDAY,THE FIFTEENTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL APPEAL NO: 1664/2017 Between: 1.NOORBASHA MABU SUBHANI @ MAHABOOB SUBHANI @ SUBHANI, S/O ADAMSAHEB AGED ABOUT 22 YEARS, DUDEKULA, BOPPUDI VILLAGE, CHILAKALURIPET MANDAL, GUNTUR DISTRICT. ...APPELLANT AND 1.THE STATE OF ANDHRA PRADESH, through S.H.O., Chilakaluripet Rural Police Station, rep. by its Public Prosecutor, High Court, Hyderabad. ...RESPONDENT 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 of conviction for life imprisonment imposed in S.C.No. 152 of 2017 dt. 23-10-2017 on the file of the XIII Addl. District & Sessions Judge, Narsaraopet lA 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 enlarge the petitioners herein on bail by suspending the sentence 2 KSR,J& VS,j Cria 1664 2017 imposed in S.C.No.152 of 2017 dated 23-10-2017 on the file of the XIII Addl. District and Sessions Judge, Narsaraopet, pending disposal of the Crl.A.N0.1664 of 2017 and to pass lA NO: 1 OF 2023 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 direct the Registry to re-construct the bundle relating to Crl.A.No.1664 of 2022 along with all the Interlocutory Applications therein, by granting necessary permission for doing so, in the interest of justice, and pass Counsel for the Appellant: 1.VSURYAKIRAN KUMAR Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) The Court made the following: JUDGMENT: (Per Hon’ble Sri. Justice K. Suresh Reddy) Accused No.1 in S.C.No.152 of 2017 on the file of Court of XIII Additional District and Sessions Judge, Narasaraopet, Guntur district, is the appellant. He along with A2 was tried by the learned Additional Sessions Judge under Section 302 read with 34 IPC. 2. Substance of the charge is that on 15.10.2016 at about 09.45 p.m., A1 and A2 caused the death of one Nelli Ramanaiah (hereinafter referred to as ‘deceased’) by stabbing him with a knife and broken beer bottle, in the fields of Boppudi village Chilakaluripet mandal, thereby committed an offence punishable under Section 302 read with 34 IPC. 3 KSR,J& VS,J Crla_1664 2017 3. After completion of trial, the learned Additional Sessions Judge convicted A1 under Section 302 IPC and sentenced him to suffer imprisonment for life and also to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for a period of three (3) months. The learned Additional Sessions judge acquitted A2. 4. Case of the prosecution, briefly as emanated from the evidence of the prosecution witnesses is as follows: (i) Both the accused are residents of Boppudi village, Chilakaluripet mandal. The material prosecution witnesses are residents of Chilakaluripet. The deceased was also resident of Chilakaluripet. The deceased was working as lecturer in Narasaraopet Engineering College. In addition to the said job, the deceased was maintaining a private chits business. P.W.4, who is a friend of the deceased, introduced A1 to the deceased stating that he will join as a member in a chit worth Rs.50,000/-. A1 paid chit installments regularly and after completion of the said chit, A1 joined in another chit worth Rs.1,00,000/-. A1 said to have knocked away the said chit as highest bidder for the second installment. A1 received the price amount, but stopped paying installments to the deceased. In spite of repeated demands, A1 refused to pay the amount to the deceased. On 12.10.2016, the deceased said to have informed P.W.4 about non-payment of installments by A1. 4 KSR,J& VS,J Cria 1664_2017 > While so, on 15.10.2016, A1 along with A2 and Child in Conflict (ii) with Law took the deceased towards cross roads stating that he will pay the installments there. While they were going on the motorcycle, P.W.1 - brother of the deceased and his wife saw the deceased going on the bike near panipuri push cart, run by P.W.13. At about 08.00 p.m., having seen the deceased going on the motorcycle, P.W.1 called him as to where he was going. The deceased got down from the motorcycle and informed P.W.1 that A1 told him that he will pay the money at cross roads and as such, he was going along with him. Thereafter, the deceased did not return. P.W.1 and other relatives searched for the deceased till 02.00 a.m. (iii) While so, on 16.10.2016, a dead body was found near Murikipudi donka near dried side canal. Having come to know about the dead body, P.W.7 - VRO of Boppudi village went to the scene of offence and found the dead body. Immediately, he telephoned to P.W.16 - S.l. of Police and informed him. At about 07.00 p.m., P.W.7 visited the Police station and informed P.W.16 about the presence of the dead body of a male person. Immediately, P.W.7, along with Police officers of Chilakaluripet rural Police station went to the scene of offence and found the dead body. Having come to know about the dead body, P.W.1 along with other relatives went to the scene of offence and identified the dead body as that of the deceased. 5 KSR,J& VS,J Crla_1664 2017 (iv) On the same day, P.W.1 went to the Police station and gave a report to the Police (Ex.P.1). P.W.16 - S.l. of Police, Chilakaluripet rural Police station received Ex.P.1 from P.W.1 at about 09.30 p.m., and registered a case in Crime No.97 of 2016, under Section 302 IPC. He issued copies of FIRs to all the concerned. Ex.P.23 is the FIR. Having received the information, P.W.17 - Inspector of Police went to Chilakaluripet rural Police station, secured the presence of P.W.1 and recorded his statement, immediately, he went to the scene of offence and found the dead body. As it was late in the night, he posted a guard and returned to the Police station. On 17.10.2016, he secured the presence of P.W.7 and another and proceeded to the scene of offence. He prepared an observation report (Ex.P.5) in the presence of P.W.7. He seized M.Os.1, 2 and 11 to 15 at the scene of offence, under Ex.P.5. He also prepared rough sketch of the scene of offence (Ex.P.24). He also got the scene photographed through P.W.9. Photographs were marked as Ex.P.11. He held inquest over the dead body, in the presence of P.W.7 and another. Inquest report is marked as Ex.P.6. During the course of inquest, he recorded statements of P.Ws.2 to 4 and others. He shifted the dead body to Community Health Centre for postmortem examination. P.W.14 - Medical Officer, CHC, Chilakaluripet conducted autopsy (V) over the dead body. He opined the cause of death was due to cut throat injury. He issued postmortem certificate (Ex.P.19). 6 KSR,J& VS,j Crla_1664_2017 ‘ Thereafter, P.W.17 recorded statements of P.Ws.5, 6, 7 and 9. On 24.10.2016, on credible information, he secured the presence of P.W.7 and another and arrested A1, A2 and Child in Conflict with Law at Purushothampatnam cross roads. He recovered M.0.3 - motorcycle and M.0.4 - cell phone from A1. On the confession made by the accused, P.W.17 recovered M.0.5 - broken beer bottle pieces and M.0.6 - knife at the scene of offence. On the further confession made by A1, M.Os.7 to 10 recovered from the house of A1. Thereafter, he arrested A1 and A2, who were remanded to judicial custody. He forwarded the material objects to RFSL, Guntur. On 24.10.2016, he recorded the statements of P.Ws.11 to 13. On 19.11.2016, P.W.15 - Principal Junior Civil Judge, Chilakaluripet conducted test identification parade. Test identification proceedings were marked Ex.P.22. After completion of investigation and after receiving all the documents, P.W.17 filed charge sheet. (Vi) were as 5. In support of its case, the prosecution examined P.Ws. 1 to 17, marked exhibits PI to P24 and exhibited M.Os.1 to 15. When A1 was examined under Section 313 Cr.P.C., he denied the incriminating material appearing against him. 6. Accepting the evidence of P.W.1, the learned Additional Sessions Judge convicted the appellant/accused as aforesaid. 7 KSR,J& VS,J Cria 1664 2017 7. Heard learned counsel for the appellant and learned Additional Public Prosecutor. We have carefully scrutinized the entire evidence on record. 8. According to the prosecution, the deceased was working as a lecturer in Narasaraopet Engineering College. Apart from the above job, the deceased was also running private chit business. According to the prosecution, the appellant is one of the member in the chit worth Rs. 1,00,000/-. It is also the further case of the prosecution that in the second month, the appellant became highest bidder and he knocked away the prize money. It is the further case of prosecution that after receiving the price money, the appellant stopped paying installments. As such, the deceased insisted the appellant for repayment of installments, it is only to avoid the payment of installments, A1 with the help of A2 and Child in Conflict with Law, killed the deceased. Though the prosecution alleges that the deceased was running chit business, no document has been produced by the prosecution to show that the deceased was running private chit business. It is only P.W.1, in Ex.P.1 and in his deposition, has stated that the deceased was running private chit business. P.W.2, who is none other than wife of the deceased, in her evidence has not stated about the deceased running private chit business. P.W.2, In her evidence has stated that the deceased was working as lecturer in Narasaraopet Engineering College. As such, the prosecution has not. placed any material to show that the deceased was running private chit business. 8 KSR,J&VS,j . Crla_1664_2017 ' ~ Admittedly, there are no direct witnesses to the alleged incident in the present case. The prosecution is relying on the circumstantial evidence to connect the appellant with the offence of murder of the deceased. The only available circumstance relied on by the prosecution is the last seen theory. To establish the said fact, P.W.1 - brother of the deceased was examined. P.W.1 in his evidence has stated as follows: 9. “...Around 8-00 pm on 15-10-2016, while myself and my wife Susmitha/LW5 were eating Panipuri at a mobile cart near Andhra Bank situated in Iron shop street, Chilakaluripet, we found that Al/Mahaboob Subhani (in short Subhani) and his friend Kalesha juvenile) and brother Ramanaiah were proceeding towards Addaroad center on a bike, being driven by Kalesha. On seeing them I called my brother. My brother got down from the bike and came to us. I offered him panipuri, but he did not accept my offer. When, I asked him as to where he was going, he told us that he was proceeding to Addaroad as A1 Subhani promised to give money there owed by him towards chit. Thereafter, my brother proceeded with A1/Subhani and Kalesha on their bike.” my P.W.1 further stated in his evidence that at about 09.45 p.m., P.W.2 received a phone call from the deceased and she could not hear the voice of her husband as there were big cries. Subsequently, she cut the call with a view to call him again, but, the call was not attended by the deceased. It is the further evidence of P.W.1 that they searched for the deceased till 02.00 on 16.10.2016. P.W.1 further stated in his evidence that as the deceased went along with A1, they went to the house of A1 to question the whereabouts of the deceased. But, the parents of A1 replied stating that A1 did not 10. a.m. come 9 KSR,J& VS,J Cria 1664 2017 home for the last two days. P.W.1 further stated in the evidence that at about 06.00 p.m., on 16.10.2016, he went to the Police and gave a report along with his parents, P.W.2 and other relatives. When they were in Police station, at about 06.30 p.m., P.W.7 came there and informed that a dead body of a male person was found at Murikipadu donka near dried side canal. He further stated that, immediately, P.W.1 along with others rushed to the said scene of offence and found the dead body of the deceased with cut injury to his throat and stab injuries on the stomach and loss of two fingers of right hand and one finger of left hand. They also found two knives, three disposable glasses, three used moongdal packets and broken pieces of beer bottles by the side of the dead body. Thereafter, P.W.1 went to the Police station and informed about the presence of dead body. The Police came to the scene of offence at about 08.00 p.m., and held inquest over the dead body and got shifted the body to Community Health Centre, Chilakaluripet. According to P.W.1, on 15.10.2016, at about 08.00 p.m., he found the deceased in the company of A1 and Child in Conflict of Law. But, P.W.1 did not choose to give report to Police expressing his suspicion over the accused. Curiously, on 16.10.2016, at about 09.30 p.m., P.W.1 approached P.W.17 - Inspector of Police and gave a report (Ex.P.1) after the dead body was traced. According to P.W.17, the investigation commenced from the morning of 17.10.2016. If really P.W.1 saw the deceased going along with the appellant at about 08.00 p.m., on 15.10.2016, certainly, he ought to have given a report to Police expressing his 10 KSR,J&VS,j Crla_1664_2017 suspicion over the accused. Curiously, P.W.1 gave Ex.P.1 report for the first time at about 09.30 p.m., on 16.10.2016 as per the evidence of P.W.16. But, P.W.1 in his evidence stated that about 06.00 p.m., on 16.10.2016, he gave a report (Ex.P.1) to the Police. As such, the evidence of P.W.1 does not inspire confidence of this Court to rely on the same. 11. Another witness examined by prosecution is P.W.7, who found the dead body for the first time. P.W.7, who was working as VRO, Boppudi village, in his evidence stated that at about 06.00 p.m., on 16.10.2016, he came to know through someone that a dead body was found at Murikipudi donka near dried canal. Immediately, he rushed to the scene of offence and found the dead body. At about 07.00 p.m., P.W.7 went to the Police station and informed the Police about the presence of dead body. Immediately, P.W.7, along with the Police officials went to the place and found the dead body. P.W.7 did not state in his evidence that when he visited the Police station at about 07.00 p.m., he found P.W.1 and his relatives at the Police station. But, P.W.1, in his evidence stated that when they were in Police station at about 06.30 p.m., P.W.7 visited the Police station and informed about the presence of the dead body. Thereafter, all of them went to the scene of offence. As such, P.W.7 did not state the presence of P.W.1 and his relatives in the Police station at about 07.00 p.m. Curiously, the investigating officers (P.Ws.16 and 17) did not say anything about the visit of P.W.7 to the Police station. They did not even 11 KSR,J& VS,J Cria 1664 2017 whisper about P.W.7 informing them about the presence of the dead body. Even P.W.1, in his earliest report (Ex.P.1) did not say anything that P.W.7 saw the dead body for the first time. It is only during the course of trial P.W.7 was introduced as the person who saw the dead body for the first time. As such, no reliance can be placed on the evidence of P.W.7. Coming to the evidence of P.Ws.10 and 11, P.W.10 - private medical practitioner in his evidence stated that on 15.10.2016, he treated ‘Masthan Vali’ for his injuries to the right thigh, due to hit of iron sheet when he fell in his house. He also issued a certificate (Ex.P.12). P.W.11, who is working as an employee in the medical shop of P.W.10 stated to have issued medicine to ‘Masthan Vali’. The prosecution tries to connect this ‘Masthan Vali’ to the appellant stating that he did not disclose his real name and he stated his name as ‘Masthan Vali’ before P.W.10. But, P.Ws.10 and 11, in their evidence categorically stated that they could not identify the appellant even if he is shown to them. In the cross examination, P.W.10 stated that he 12. one gave the identity particulars of the person to whom he gave treatment. But, the prosecution did not take any steps to conduct test identification parade of the appellant to be identified by P.W.10. As such, evidence of P.Ws.10 and 11 is also not at all helpful to the prosecution. 13. Having analyzed the entire evidence carefully, we have no hesitation to come to a conclusion that the prosecution miserably failed to establish the i 12 KSR,J& VS,j Crla_1664_2017 V motive, the last seen theory and receipt of injury by the appellant in the same incident. The next circumstance relied on by the prosecution is the recovery of M.Os.7 to 10 at the instance of the accused. The prosecution is trying to prove the said recovery by examining P.W.7. Even the said recovery also cannot be accepted as P.W.7 is the panch witness for observation report, inquest report, arrest of the accused, seizure of material objects and presence of the dead body. For all practical purposes, this P.W.7 was taken as panch witness. As such, the evidence of P.W.7 also cannot be taken into consideration. In view of the above facts and circumstances, the prosecution could not able to prove a single circumstance to establish its case. As already pointed out documentary evidence has been adduced by the prosecution to show that the deceased was running chit business, apart from working as lecturer in Narasaraopet Engineering college. Not even a single register has been placed on record. Even the wife of the deceased (P.W.2) did not state in her evidence that the deceased was running a private chit business. In view of the above facts and circumstances, as the prosecution could not able to establish a single circumstance, the conviction and sentence recorded by the learned Additional Sessions Judge cannot be sustained. I no In the result, the criminal appeal is allowed. The conviction and sentence recorded by the learned XIII Additional District and Sessions Judge, Narasaraopet, Guntur district in S.C.No.152 of 2017 dated 23.10.2017 is 14. 13 KSR,J& VS,J Crla_1664_2017 hereby set-aside and the accused is acquitted of the offence under Section 302 I PC. 15. As the appellant was granted bail by this Court vide 21.03.2023 in I.A.No.1 of 2022 in terms of the orders of the combined High Court of Andhra Pradesh in Batchu Rangarao & others v. State of A.P.\ the appellant is directed to surrender before the Superintendent, Central Prison, Rajahmundry and complete all the formalities as envisaged in the order of the combined High Court stated supra. Further, the fine the appellant/accused for the offence punishable under Section be refunded to him. order dated amount, if any, paid by 302 IPC shall As a sequel, interlocutory applications pending, if any, shall also stand closed. '2016(3) ALT (Crl.) 505 (DB) (A.P.) SOI- S.V.S.R. MURTHY JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To 1. The XIII Additional District and Sessions Judge, Narsaraopet District, (with records) 2. The Superintendent, Central Prison, Rajahmundry, District. 3. The Additional Judicial Magistrate of First Class District. Guntur East Godavari Chilakaluripet, Guntur 4. Noorbasha Mabu Subhani @ Mahaboob Subhani @ Subhani Adamsaheb, aged about 22 Chilakaluripet Mandal, Guntur District. 5. The Station House Officer, Chilakaluripet Rural Police Station, Guntur District. 6. One CC to Sri V Surya Kiran Kumar, Advocate [OPUC] 7. Two CCs to the Public Prosecutor, High Court of Andhra Amaravathi [OUT] 8. The Section Officer, Criminal Section. High Court of Andhra Pradesh Amaravathi 9. Two CD Copies , S/o. years, Dudekula, Boppudi Village, Pradesh, at TK TAC HIGH COURT DATED:15/07/2025 JUDGMENT CRLA No.1664 of 2017 m 0¥ n*l '0. . <jofF8rvtSec*wi)n 'Jilt#’’ yk,; ALLOWING THE CRIMINAL APPEAL