IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI CRIMINAL APPEAL No.2194 of 2018 Between: YANADI SWAMINATH @ SWAMI, YANADI BY CASTE, COOLI, TOPPATHIPALEM VILLAGE, NEAR THUMMINDAPALEM VILLAGE, CHITTOOR RURAL MANDAL, CHITTOOR DISTRICT. ...APELLANT AND THE STATE OF AP, represented by the Public Prosecutor, High Court of AP., at Hyderabad. ...RESPODENT DATE OF JUDGMENT PRONOUNCED : 04.12.2025 SUBMITTED FOR APPROVAL: THE HONOURABLE SRI JUSTICE K.SURESH REDDY THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI 1. Whether Reporters of Local Newspapers may be allowed to see the order? : Yes/No 2. Whether the copy of order may be marked to Law Reporters/Journals? : Yes/No 3. Whether their Lordships wish to see the fair copy of the order? : Yes/No ________________________ JUSTICE K.SURESH REDDY __________________________ JUSTICE SUBBA REDDY SATTI 2 * THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI + CRIMINAL APPEAL No.2194 of 2018 % 04.12.2025 CRIMINAL APPEAL No.2194 of 2018 Between: YANADI SWAMINATH @ SWAMI, YANADI BY CASTE, COOLI, TOPPATHIPALEM VILLAGE, NEAR THUMMINDAPALEM VILLAGE, CHITTOOR RURAL MANDAL, CHITTOOR DISTRICT. ...APELLANT AND THE STATE OF AP, represented by the Public Prosecutor, High Court of AP., at Hyderabad. ...RESPODENT ! Counsel for Appellant : Sri Kadiyam Neelakanteswara Rao, learned legal aid counsel ^ Counsel for Respondents : Sri Marri Venkata Ramana, Additional Public Prosecutor < Gist: > Head Note: ? Cases referred: 1) (2002) 8 SCC 45 : 2003 SCC (Cri) 201 2) (2010) 10 SCC 604 3) (2012) 6 SCC 403 This Court delivered the following: 3 IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI THURSDAY, THE FOURTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FIVE SPECIAL DIVISION BENCH PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY and THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CRIMINAL APPEAL NO: 2194 OF 2018 JUDGMENT: (Per the Hon’ble Sri Justice Subba Reddy Satti) The Sole accused in POCSO S.C.No.39 of 2017 on the file of the Court of I Additional District and Sessions Judge, Chittoor, is the appellant. He was tried by the learned I Additional District and Sessions Judge under the following two charges: First charge was under Section 376-A I.P.C, Second charge was under Section 302 I.P.C and the third charge was under Section 5 (m) (r) r/w 6 of the Protection of Children from Sexual Offences Act, 2012. 2. Substance of the charges is that on 13.10.2016 at about 9.00 p.m., after witnessing a movie in Vinayaka Theatre at Bangarupalyam along with the complainant Yandi Kuttemma, her husband, children and mother, the accused, took the sleeping Ammu (hereinafter referred to as „the deceased‟) and on the way split from them, committed rape on her and in the course of 4 such commission, inflicted injuries and caused her death, thereby committed offences under Section 376-A , 302 I.P.C and 5 (m) (r) r/w 6 of the Protection of Children from Sexual Offences Act, 2012. 3. After completion of trial, the learned I Additional District and Sessions Judge, Chittoor convicted the appellant and sentenced him to undergo Rigorous Imprisonment of ‘LIFE’ and to pay a fine of Rs.1,000/- (Rupees One thousand only), in default, to undergo six months simple imprisonment for the offence under Section 302 I.P.C. The learned I Additional District and Sessions Judge, Chittoor further imposed punishment to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs.1,000/- (Rupees One thousand only), in default, to undergo six months simple imprisonment for the offence under Section 5 (m) (r) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 for aggravated penetrative sexual assault on a Minor girl. Both the substantive sentences were directed to run concurrently. 4. The case of the prosecution, as per the evidence of the witness, in brief, is that : (i) Yanadi Kuttemma, P.W.1, along with her husband, children and mother, living at the Poultry farm of Shaik Chandulal, P.W.4, at T.Puttur Village, Thavanampalli Mandal. On 13.10.2016, at about 5.00 p.m., P.W.1, along with her family members, including the deceased, went to Vinayaka Theatre at Bangarupalem to watch a movie. On the way, the accused, a resident of Toppathipalem Village, who had earlier worked, under P.W.4, 5 joined them. After watching the movie, while returning home, all four children had fallen asleep. The husband of P.W.1 took their son Bobby, P.W.1 took her youngest son, and P.W.1‟s mother took Balakrishna. At the request of P.W.1, the accused carried the deceased on his shoulder. After reaching home, P.W.1 and others found the deceased and the accused missing. P.Ws.1, 4, 5 and others searched for them but could not find them during the night. The next morning i.e., on 14.06.2016, at about 8.30 a.m., P.W.1 came to know from the villagers that somebody had killed the deceased. She rushed to the spot and identified the dead body of the deceased. P.W.1 immediately gave a report, Ex.P1. (ii) P.W.8, SI of Police, Bangarupalem, registered a case in Cr.No.154 of 2016 and issued FIR to all the concerned. FIR is marked as Ex.P12. He deputed two Police Constables to protect the scene of offence. (iii) P.W.9, SDPO, Palamaner, reached Bangarupalem Police Station at about 9.30 a.m., and visited the scene of the offence. He secured P.W.7 and another and prepared scene observation mahazar, Ex.P9. He seized one pair of chappals, MO.2 under the cover of Ex.P9. He also secured the presence of P.W.2 and others and conducted inquest over the dead body in the presence of P.W.7. He also seized frock of the deceased, MO.1. He examined P.Ws.1, 2 and others and recorded their statements at the inquest. He also examined P.Ws.4, 5 and others and recorded their statements. He prepared a rough sketch, Ex.P13 at the scene of offence. He got the scene photographed under Ex.Ps.7 and 8. He seized MO.3 at the scene of offence. 6 (iv) Thereafter, the dead body was sent for postmortem examination. P.W.3, Civil Assistant Surgeon, Bangarupalyem Community Health Centre, conducted autopsy over the dead body and issued postmortem certificate, Ex.P2. She opined that the cause of death was due to asphyxia due to external pressure over the neck. She also opined that an external and internal genitalia injury implies signs of recent vaginal penetration. She gave final opinion under Ex.P3. She also gave her opinion after perusal of FSL report Ex.P4. (v) On 14.10.2016 at about 6.30 p.m., P.W.8 informed P.W.9 that P.W.4 had brought the accused along with his report, Ex.P5, stating that the accused voluntarily confessed to the commission of the offence. P.W.9 proceeded to Bangarupalem Police Station and perused the written report Ex.P5. He secured P.W.7 and another. The accused voluntarily confessed to the offence, and thereafter, he prepared Mahzarnama, Ex.P11. He sent M.Os.1 and 3 to RFSL, Tirupathi. The RFSL report is marked as Ex.P4. After completion of investigation, he filed the charge sheet. 5. In support of its case, the prosecution examined P.Ws.1 to 9, marked Exs.P1 to 13 and exhibited M.Os.1 to 3. On behalf of the defence, Exs.D1 to 6 were marked. 6. When the accused was examined under 313 Cr.P.C. regarding the incriminating evidence appearing against him, he denied the commission of the offence. 7 7. Believing the evidence of prosecution witnesses and the material available on record, learned I Additional District and Sessions Judge, convicted the accused as aforesaid. 8. Heard Sri Kadiyam Neelakanteswara Rao, learned legal aid counsel appearing for the appellant and Sri Marri Venkata Ramana, learned Additional Public Prosecutor for the respondent-State. 9. Learned counsel for the appellant would contend that there is no direct witness to the occurrence and that the prosecution rests it‟s case on circumstantial evidence. He would further contend that the trial Court failed to consider the discrepancies in the evidence of P.Ws.1, 2 and 5. He further contended that the alleged confession said to have been made before P.W.4 is the basis of the case of the prosecution, and it being an extra-judicial confession is a very weak piece of evidence, hence the Court below ought not to have relied upon the same and thus prayed to set aside the conviction. 10. On the other hand, the learned Additional Public Prosecutor would contend that the prosecution has proved the guilt of the accused beyond reasonable doubt by examining P.Ws.1, 3, 4 and 5 and request to dismiss the appeal. 11. We have carefully scrutinised the entire evidence on record. 12. As seen from the evidence on record on 13.10.2016, P.W.1, along with her husband, L.W.2 and mother, L.W.3 and children four in number, went to 8 Vinayaka Theatre at Bangarupalem to watch a movie. On the way, the accused joined them. The accused, along with the deceased and others, watched the movie. Since all the children were sleeping, P.W.1 took her younger son, aged one year, her husband took their elder son named Bobby, L.W.3, mother of P.W.1, took Balakrishna, the brother‟s son of P.W.1 and carried them on their shoulders to reach the home. P.W.1 requested the accused to bring the deceased, who was sleeping. Accordingly, all of them proceeded towards the house situated at the Poultry farm of P.W.4. P.W.1 found the accused and the deceased were missing. On next day at about 8.30 a.m., they found the dead body of the deceased. 13. The prosecution examined P.W. 1, P.W. 2, and P.W. 5 to establish the last seen theory. Nothing contrary was elicited in the cross-examination of P.W.1 to disbelieve her evidence. In fact, P.W.2 and P.W.5 also testified that they saw the accused carrying the deceased on his shoulder while they were going towards the poultry farm. Thus, through P.Ws.1 and 5, the prosecution established the “last seen” circumstance. 14. When the deceased was last seen with the accused, and thereafter the corpse of the deceased was found, in a very close proximity in time, the accused must explain under Section 106 of the Evidence Act regarding the circumstances under which the death had taken place. Suppose the accused offers no explanation or gives a wrong explanation, and there is corroborative evidence, which forms a chain of circumstances leading to the only inference of the guilt of the accused, incompatible with any possible hypothesis of 9 innocence, the conviction can be based on the same. If there is any doubt or a break in the link of the chain, the benefit of doubt must be in favour of the accused. It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for proof, and the courts shall take utmost precaution in finding an accused guilty based on circumstantial evidence. The circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when, it is established by the prosecution, that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small and that the possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused being seen in the company of the deceased and the detection of the dead body would be a material consideration for the appreciation of the evidence and placing reliance on it as a circumstance against the accused. 15. Of course, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused and the deceased last seen together and the crime coming to light is after a considerable duration. There can be no fixed or straitjacket formula for the duration of the time gap, and it would depend on the evidence led by the prosecution to eliminate the possibility of any other person meeting the deceased during the intervening period. 10 16. The Apex Court in Bodhraj v. State of J&K1 considered the last seen together principle and observed as follows: “31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.” 17. As stated supra, in the case at hand, the prosecution established the last seen of the accused with the deceased and the recovery of the dead body on the next day. No explanation was forthcoming from the accused as mandated under Section 106 of the Indian Evidence Act. Minor contradictions in the evidence of P.W.1, P.W.2 and P.W.5, would not affect the substratum of the prosecution case. The prosecution connected the accused with the offence. P.W.3, who conducted the postmortem on 14.10.2016 at about 1.45 p.m., opined that the cause of death might have occurred 12 to 24 hours prior to the postmortem examination. The medical examination also shows that the approximate time of the death was around 2.00 a.m. on 14.10.2016. P.Ws.1, 1 (2002) 8 SCC 45 : 2003 SCC (Cri) 201 11 P.W.2 and P.W.5 deposed that the deceased was missing at 9.30 p.m. on 13.10.2016. 18. As per Ex.P2, postmortem certificate, the following injuries were found: “Face: subconjunctival hemorrhage seen in both eyes. Nail mark present on the right side check measuring about 7 mm. Neck: Contusion on the front of neck which is irregular covering the whole of front of neck black in colour measuring 11 cm length. A nail mark abrasion on front of neck dark brown in colour measuring 7 mm A nail mark abrasion on right side of neck dark brown in colour, Contusion 4 cmx3cm seen on right side of neck dark bluish in colour Nail mark abrasion on back of neck dark brown in colour 6 mm in length Hand: On right index finger 2 x 2 cm abrasion seen over lateral aspect 2 X 2 cm abrasion seen over the dorsum of right index finger External Genitalia: Dry blood seen over the genitalia red in colour On separation of labia majora rupture of hymen seen irregularly and inner aspect of labia majora congested.” 19. As per the RFSL report, Ex.P4, human semen and spermatozoa were detected on item Nos.1 and 4. Item No.1, a torn white, purple, red and green colour design polyester frock and Item No.4, a brown, cream and black colour checks design polyester lungi. Item No.4 was recovered from the possession 12 of the accused. Thus, the prosecution had established beyond all reasonable doubt that the accused committed aggravated penetrative sexual assault on the deceased. 20. The other contention of the learned counsel for the appellant is that the extra-judicial confession is a weak piece of evidence, and the same cannot be relied upon for convicting the accused. Let this court examine the same. 21. It is a settled principle in criminal jurisprudence that the court can act upon an extra-judicial confession if it is voluntary, truthful, and made when the accused is mentally composed. The confession, however, must be proved in the same manner as any other relevant fact, and its value depends entirely on the credibility of the person who claims to have heard it. The court may safely base a conviction on such a confession if the witness to whom it was made is impartial, has no hostility or ill-will towards the accused, and there is nothing on record to suggest any motive to falsely attribute the statement to the accused. Once the witness‟s testimony has been thoroughly scrutinised and found trustworthy, the extra-judicial confession can be accepted and can, by itself, sustain a conviction. Where the evidence of extra-judicial confession, on such careful evaluation, is found to be credible and acceptable, it may alone form the foundation for conviction. The requirement of corroboration is a matter of prudence and not a rigid rule of law. 13 22. In Sansar Chand Vs. State of Rajasthan2, the Hon‟ble Supreme Court accepted the admissibility of an extra-judicial confession. It held that there is no absolute rule that an extra-judicial confession can never be the basis for a conviction. However, ordinarily, an extrajudicial confession should be corroborated by some other material. 23. The Hon‟ble Supreme Court in Sahadevan vs State of Tamil Nadu3, summed up the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis for conviction of an accused: (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. 2 (2010) 10 SCC 604 3 (2012) 6 SCC 403 14 (vi) Such statement essentially has to be proved like any other fact and in accordance with law. 24. In the case at hand, the accused made the extrajudicial confession before P.W.4, who is a known person to the accused and the owner of poultry farm. P.W.4 deposed that the accused worked under him. Hence, the extrajudicial confession made by the accused need not be discarded. No suggestion was made by the accused to P.W.4 regarding any disputes while he worked in the Poultry farm. If no other circumstances connecting the accused with the crime, then the extra-judicial confession cannot form the basis for conviction. However, in the case at hand, the extrajudicial confession was made by the accused before P.W.4, under whom the accused worked, corroborated with the last seen theory. 25. The learned I Additional District and Sessions Judge considered every aspect minutely and found the accused guilty of the offence and convicted the accused as aforesaid. This Court does not find any reason to interfere with the conviction and sentence awarded by the learned I Additional District and Sessions Judge, Chittoor. 26. In the result, the Criminal Appeal is dismissed, confirming the conviction and sentence recorded by the learned I Additional District and Sessions Judge, Chittoor District, in POCSO S.C.No.39 of 2017, dated 13.06.2018 for the offences under Sec 302 IPC and Sec 5(m)(r) r/w Sec 6 of the Protection of Children from Sexual offences Act 2012. Needless to state that the period 15 already undergone by the accused shall be given set off, as per the provisions of Section 428 Cr.PC. Consequently, miscellaneous petitions, if any, pending shall stand closed. ________________________ JUSTICE K.SURESH REDDY ________________________________ JUSTICE SUBBA REDDY SATTI Date: 04.12.2025 SNI 16 179 THE HON’BLE SRI JUSTICE K.SURESH REDDY AND THE HON’BLE SRI JUSTICE SUBBA REDDY SATTI Criminal Appeal No.2194 of 2018 (Per the Hon’ble Sri Justice Subba Reddy Satti) Date: 04.12.2025 SNI