HON'BLE SRI JUSTICE K.SURESH REDDY AND HON'BLE SMT. JUSTICE V.SUJATHA CRIMINAL APPEAL Nos. 1311 AND 1703 OF 2017 COMMON JUDGMENT: (per Hon'ble Sri Justice K.Suresh Reddy) Aggrieved by the conviction and sentence recorded by judgment dated 20-10-2017 in Sessions Case No. 71 of 2015 on the file of the Court of learned X Additional District and Sessions Judge, Visakhapatnam at Anakapalle (for short, 'the trial Court'), accused No. 3 therein filed Criminal Appeal No. 1311 of 2017 and accused Nos. 1 and 2 therein filed Criminal Appeal No. 1703 of 2017 before this Court. 2. Since both these Criminal Appeals arise out of the same Sessions Case, they are heard together and are being disposed of by way of this common judgment. 3. The appellants-accused Nos. 1 to 3 were tried by the trial Court under the following charges: I charge was under Section 380 IPC against accused Nos. 1 and 2; II charge was under Section 457 IPC against accused Nos. 1 and 2; 2 III charge was under Section 302 IPC against accused Nos. 1 and 2; and IV charge was under Section 201 IPC against accused Nos. 1 to 3. 4. Substance of the charges is that on 16-09-2013 at about 5.30 p.m., accused Nos. 1 and 2 trespassed into the house of one Polamarasetty Rama Chandra Rao (hereinafter referred to as 'the deceased') situated at Pallapu Veedhi, Munagapaka Village and Mandal, Visakhapatnam District, and committed theft of electrical goods, silver articles and cash and in the same transaction, they caused his death by strangulating him with GI Wire around his neck and in the same process, they committed theft of M.Os.1 to 21 and shifted them in an Innova Car bearing registration No. AP 31 AS 5877 and buried the dead body in banana plantation situated on the banks of Puritigedda riverlet, near Vegi Mangunaidu of Munagapaka Village, thereby committed offences punishable under Sections 380, 457, 302 and 201 read with Section 34 IPC. 5. After completion of trial, the trial Court convicted accused Nos. 1 and 2 and sentenced them to suffer rigorous imprisonment for three years and also to pay a fine of Rs.5,000/- each, in default to suffer simple imprisonment for a period of six months, for the offence under 3 Section 457 IPC and to suffer rigorous imprisonment for three years and also to pay a fine of Rs.5,000/- each, in default to suffer simple imprisonment for a period of six months, for the offence under Section 380 IPC. The trial Court also convicted accused No. 1 for the offence under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life and also to pay a fine of Rs.10,000/-, in default to suffer simple imprisonment for a period of nine months, and accused No. 2 for the offence under Section 302 read with Section 34 IPC and sentenced him to suffer rigorous imprisonment for life and also to pay a fine of Rs.10,000/-, in default to suffer simple imprisonment for a period of nine months. The trial Court further convicted accused Nos. 1 to 3 for the offence under Section 201 IPC and sentenced them to suffer rigorous imprisonment for three years and also to pay a fine of Rs.5,000/- each, in default to suffer simple imprisonment for a period of six months. The substantive sentences imposed on accused Nos. 1 and 2 were directed to run concurrently. Out of the total fine amount of Rs.55,000/-, an amount of Rs.50,000/- was ordered to be paid to P.W.4- wife of the deceased under Section 357 (1) Cr.P.C. 6. Case of the prosecution in brief is thus: Accused Nos. 1 to 3 and the material prosecution witnesses are residents of Munagapaka Village and Mandal, Visakhapatnam District. 4 P.Ws.2, 4 and 8 are son, wife and daughter of the deceased respectively. P.W.1 is villager of Munagapaka Village. P.W.3 is friend of P.W.2. Accused No. 1 used to work as an employee in Brandix Company, accused No. 2 was eking out his livelihood by doing electrical works and accused No. 3 used to work as a Driver. It is alleged that accused No. 1 borrowed an amount of Rs.8,000/- from the deceased as hand loan agreeing to repay the same with interest. Accused No. 1 requested accused No. 2 for hand loan to repay the same to the deceased, for which the latter replied that he did some electrical works in the house of the deceased and he had to get certain amounts from the deceased. While so, on 16-09-2013 at about 3.45 a.m., P.W.2 along with P.Ws.4 and 8 and others went for pilgrimage by train to Kumbakonam. After going to pilgrimage, P.W.8-daughter of the deceased used to telephone to the deceased every day. On 17-09-2013 when P.W.8 telephoned to the deceased, it was in the switched off mode. Immediately, P.W.8 asked P.W.2 who telephoned to P.W.3, who is friend of P.W.2, at about 8 a.m. but he did not respond. On the same day between 6.30 and 7 p.m., P.W.3 telephoned to P.W.2 and the latter requested the former to go to his house. Accordingly, P.W.3 went to their house and informed that he found the door locked from outside and a light was switched on. When P.W.3 enquired with 5 neighbours, he came to know that the door was locked since morning. Then, P.W.3 broke open the door, entered the house and found chilli powder spread in the entire house. Meanwhile, P.Ws.9 and 10- neighbours came there and found something wrong. P.W.3 informed P.W.2 over phone that the deceased was not found in the house; that L.C.D. Television-M.O.21 was found missing; that almirah was found broke open and that found chilli powder spread in the entire house. Immediately, P.W.2 asked P.W.3 to go to police station and give a report. P.W.25-the then Sub Inspector of Police, Munagapaka Police Station, received Ex.P3-report from P.W.3 and registered a case in crime No. 101 of 2013 under the head 'Man Missing'. Ex.P34 is FIR. At about 9 p.m., P.W.2 received a phone call from police station asking him to return from pilgrimage immediately. On the same day at about 2 p.m., P.W.2 returned from pilgrimage. P.W.2 along with P.W.3 went to the house and found chilli powder spread in the entire house. On 19-09-2013 at about 10 p.m., P.W.2 went to police station and gave another report. P.W.25 registered another crime i.e. crime No. 102 of 2013 under Sections 457 and 380 IPC against unknown persons. Ex.P35 is second FIR. 6 On the telephonic message from P.W.25, P.W.24-Inspector of Police, Fingerprints Unit, CID, Visakhapatnam, visited the scene of offence along with clues team. He developed two chance fingerprints on a white colour plastic box and labelled them as 'A' and 'B'. After examination, he found chance fingerprint 'A' was unfit for comparison and chance fingerprint 'B' was fit for comparison. While such was the position, on 23-09-2013, accused No. 3 approached P.W.1, who is also resident of the same village, and confessed that accused Nos. 1 and 2 killed the deceased by strangulation and that they shifted the dead body to the fields of one Kasi Suryanarayana and buried the same. On the same day at about 10 a.m., P.W.1 went to police station along with Ex.P1-report recorded from accused No. 3 and handed over accused No. 3 to P.W.25. On the basis of Ex.P1, P.W.25 altered the Section of law from 'Man Missing' to Sections 302, 457, 380 and 201 read with Section 34 IPC. Altered FIR was marked as Ex.P36. Further investigation was taken over by P.W.26-the then Inspector of Police, Anakapalle Rural Circle. Having received telephonic information from P.W.25, P.W.26 proceeded to Munagapaka Village and recorded statement of P.W.1. When P.W.26 interrogated accused No. 3, the latter disclosed that accused Nos. 1 and 2 were trying to escape from Munagapaka Village. 7 Immediately, P.W.26 secured the presence of P.Ws.17 and 18 along with accused No. 3 and apprehended accused Nos. 1 and 2 at about 11.10 a.m. in Pudumadaka. During the course of interrogation, accused Nos. 1 and 2 said to have confessed about the commission of offence. P.W.26 arrested accused Nos. 1 and 2 in the presence of P.Ws.17 and 18 under a cover of panchanama-Ex.P37. Accused Nos. 1 and 2 said to have confessed that they buried the dead body in banana plantation situated on the banks of Puritigedda riverlet, near Vegi Mangunaidu of Munagapaka Village. On the basis of the said confession, P.W.26 secured the presence of P.W.20 for exhuming the dead body with the help of P.Ws.5 and 6 along with the accused. He handed over accused No. 3 for surveillance. On 23-09-2013, P.W.20 along with mediators- P.Ws.17 and 18 and with the help of P.Ws.5 and 6 exhumed the dead body at about 2 p.m. Exhumation proceedings were marked as Ex.P19. He got the entire proceedings photographed through P.W.19- photographer under Ex.P18. He seized M.Os.28 to 33 at the scene of offence under Ex.P19. On the same day, he prepared a rough sketch- Ex.P38 at the place where the dead body was exhumed. Immediately, he held inquest over the dead body of the deceased in the presence of P.W.16 and another. Inquest report was marked as Ex.P11. At the inquest, he recorded statements of P.Ws.1 to 6. After inquest, M.Os.34 and 35 were recovered from bushes at the instance of accused Nos. 1 8 to 3 in the presence of P.Ws.17 and 18 under a cover of panchanama- Ex.P39. Thereafter, he sent the dead body for conducting post mortem examination through Corpus Head Constable. P.W.23-the then Civil Assistant Surgeon, Anakapalle, conducted autopsy over the dead body of the deceased on 24-09-2013. He opined the cause of death was due to asphyxia-cardio respiratory failure due to strangulation. He also opined that the approximate time of death was about 100-120 hours prior to his conducting post mortem examination. Thereafter, accused No. 1 led P.W.26 to the house of P.W.7, wherefrom M.Os.1 to 21 were recovered under a cover of panchanama- Ex.P41 in the presence of P.Ws.17 and 18. He also prepared a rough sketch-Ex.P40 at the house of P.W.7. Thereafter, he went to the house of the deceased at about 8.45 p.m. and prepared a rough sketch- Ex.P42. He also re-constructed the entire crime under a cover of panchanama-Ex.P43. Thereafter, he produced accused Nos. 1 to 3 before the concerned Court and accused Nos. 1 to 3 were remanded to judicial custody. Subsequently, he examined P.Ws.9 to 15 and others and recorded their statements. He seized M.O.36-Innova Car, in which the dead body was carried to the fields. Further investigation was taken over by P.W.27-the then Inspector of Police, Anakapalle Rural Circle. 9 P.W.27 received report from fingerprint expert. After collecting all the documents and after completion of entire investigation, P.W.27 filed charge sheet. 7. In support of its case, the prosecution examined P.Ws.1 to 27 and got marked Exs.P1 to P43 apart from exhibiting M.Os.1 to 36. 8. When accused Nos. 1 to 3 were examined under Section 313 Cr.P.C., they denied the incriminating material appearing against them and reported no defence evidence. 9. Accepting the evidence of prosecution witnesses, the trial Court convicted accused Nos. 1 to 3 as afore-stated. 10. Heard Sri T.Pradyumnakumar Reddy, learned senior counsel, representing Sri V.V.L.N.Sarma, learned counsel appearing for the appellants-accused Nos. 1 and 2, Sri G.Venkata Reddy, learned counsel appearing for the appellant-accused No. 3, and learned Additional Public Prosecutor appearing for the respondent-State. 11. We have carefully analyzed and scrupulously scrutinized the entire evidence on record. 12. Admittedly, there are no eyewitnesses to the incident. The prosecution case entirely rests on circumstantial evidence. The first circumstance relied upon by the prosecution is motive on the part of 10 accused Nos. 1 and 2 to kill the deceased; the second circumstance relied upon by the prosecution is extra judicial confession said to have been made by accused No. 3 before P.W.1; the third circumstance relied upon by the prosecution is arrest of the accused and recovery of M.Os.1 to 21 and the last circumstance relied upon by the prosecution is evidence adduced through P.W.24-fingerprint expert coupled with Exs.P32 and P33-reports. 13. Coming to the first circumstance, i.e. motive on the part of accused Nos. 1 and 2 to kill the deceased, the allegation made by the prosecution is that accused No. 1 borrowed an amount of Rs.8,000/- from the deceased agreeing to repay the same with interest. Except the above said allegation, the prosecution did not place any material to show that accused No. 1 borrowed an amount of Rs.8,000/- from the deceased. P.W.2, who is none other than son of the deceased, in his cross-examination specifically stated as under: "Neither myself nor my father nor any member of our family used to lend amounts to public." The prosecution did not examine any witness to show that accused No. 1 borrowed an amount of Rs.8,000/- from the deceased. The allegation is that to evade repayment of Rs.8,000/- with interest, accused No. 1, with the help of accused No. 2, killed the deceased but the prosecution 11 did not adduce any evidence with regard to the so called motive. Except making a vague statement in inquest report, no other material has been placed by the prosecution to establish the so called motive for accused Nos. 1 and 2 to kill the deceased. As such, the prosecution miserably failed to establish motive on the part of accused Nos. 1 and 2 to kill the deceased. It is also alleged by the prosecution that the other motive for accused Nos. 1 and 2 is to commit theft of valuables in the house of the deceased i.e. M.Os.1 to 21. Even recovery of M.Os.1 to 21 has also not been established by the prosecution as P.Ws.17 and 18, mediators for arrest and recovery of M.Os.1 to 21, did not support the case of prosecution and both of them were declared hostile. Further, P.W.26-investigating officer did not even conduct test identification parade of the stolen articles-M.Os.1 to 21. P.W.26 did not even evince any interest to get M.Os.1 to 21 identified either by P.W.2 or P.W.4 or P.W.8. As such, the prosecution miserably failed in establishing motive on the part of accused Nos. 1 and 2 to kill the deceased. 14. The second circumstance relied upon the prosecution is extra judicial confession said to have been made by accused No. 3 before P.W.1. Admittedly, P.W.1 was not familiar with accused No. 3. In his cross-examination, P.W.1 stated that he did not record any statement 12 from accused No. 3 at his residence. It is only after going to police station, P.W.1 recorded statement of accused No. 3 there itself. In cross-examination, P.W.1 further stated that the police reduced the said statement into writing and not by him. P.W.1 also did not say anything as to why accused No. 3 made extra judicial confession before him. Time and again, the Hon'ble Apex Court in catena of decisions consistently held that extra judicial confession is a very weak piece of evidence and unless some sort of corroboration is shown, the same cannot be relied upon. In the case on hand, P.W.1 did not give any reason as to why accused No. 3 selected him, who is a stranger, to make extra judicial confession. P.W.1 also stated that he did not record statement of accused No. 3 immediately and that he dictated the statement of accused No. 3 at police station and the police recorded the said statement. Further, admittedly, accused No. 3 did not participate in killing the deceased and also burying the dead body of the deceased. As such, the so called extra judicial confession said to have been made before P.W.1 does not inspire confidence of this Court to place reliance on the same. 15. The third circumstance relied upon by the prosecution is arrest of the accused and recovery of M.Os.1 to 21. Accused Nos. 1 and 2 were said to have been apprehended on the information given by accused 13 No. 3 on 23-09-2013. On the confession made by accused Nos. 1 and 2, M.Os.1 to 21 were recovered from the house of P.W.7. Accused Nos. 1 and 2 were arrested and M.Os.1 to 21 were recovered in the presence of P.Ws.17 and 18-mediators but both P.Ws.17 and 18 did not support the case of prosecution and they were declared hostile. As such, arrest of the accused and recovery of M.Os.1 to 21 also go. Further, as already pointed out, P.W.26-investigating officer did not even take any steps to conduct test identification parade of M.Os.1 to 21 though P.Ws.2, 4 and 8 are very much available. As such, the prosecution miserably failed to establish arrest of the accused and recovery of M.Os.1 to 21 at their instance. 16. The last circumstance relied upon by the prosecution is evidence adduced through P.W.24-fingerprint expert coupled with Exs.P32 and P33-reports. P.W.24 in his evidence stated that he developed two chance prints as 'A' and 'B' at the scene of offence containing on white colour plastic box; that as chance print 'A' was not fit for comparison, he has taken chance print 'B' for comparison and that thereafter he compared the admitted fingerprints of accused Nos. 1 and 2 and issued Exs.P32 and P33-reports opining that chance print 'B' was tallying with the right ring finger impression of accused No. 1 but curiously P.W.26 in his evidence did not state anything as to how he had taken admitted 14 fingerprints of accused Nos. 1 and 2 during the course of investigation. In his cross-examination, P.W.26 specifically admitted that he had not taken specimen fingerprints of accused Nos. 1 and 2 but they were taken from the concerned police. Further, the admitted fingerprints were not taken either with permission or under an order of magistrate. Apart from that, P.W.26 did not state anything as to who collected specimen fingerprints of accused Nos. 1 and 2 during the course of investigation. Further, the plastic box, on which chance print 'B' was developed, was also not exhibited during the course of trial. As such, the prosecution also failed in establishing participation of accused Nos. 1 and 2 in the so called attack through expert evidence. 17. In the case on hand, the prosecution is not able to prove single circumstance to connect the appellants-accused Nos. 1 to 3 with the alleged offences. The prosecution miserably failed to prove the guilt of the appellants-accused Nos. 1 to 3 beyond reasonable doubt. Therefore, the judgment under appeals is liable to be set aside. 18. In the result, Criminal Appeal Nos. 1311 and 1703 of 2017 are allowed, setting aside the conviction and sentence recorded against the appellants-accused Nos. 1 to 3 by judgment dated 20-10-2017 in Sessions Case No. 71 of 2015 on the file of the Court of learned X Additional District and Sessions Judge, Visakhapatnam at Anakapalle. 15 The appellants-accused Nos. 1 to 3 are acquitted of all the charges. Bail bonds of the appellant-accused No. 3 shall stand cancelled. As the appellants-accused Nos. 1 and 2 have been enlarged on bail by this Court by order dated 12-05-2023 in I.A.Nos. 1 and 2 of 2023, in terms of the order dated 02-11-2016 passed by a Division Bench of the composite High Court for the State of Telangana and the State of Andhra Pradesh in Batchu Ranga Rao and others Vs. State of A.P., represented by its Public Prosecutor, they are directed to surrender themselves before the concerned jail authorities for completing the formalities for their release. Fine amount paid, if any, by the appellants- accused Nos. 1 to 3 shall be refunded to them. Pending miscellaneous applications, if any, shall stand disposed of in consequence. ___________________ K.SURESH REDDY, J. _____________ V.SUJATHA, J. Date: 09-04-2025, JSK 16 HON'BLE SRI JUSTICE K.SURESH REDDY AND HON'BLE SMT. JUSTICE V.SUJATHA CRIMINAL APPEAL Nos. 1311 AND 1703 OF 2017 (Common Judgment of the Division Bench delivered by Hon'ble Sri Justice K.Suresh Reddy) DATE: 09TH APRIL, 2025 JSK