IN THE HIGH COURT OF ANDHRA PRADESH AM TUESDAY .THE TWENTY NINETH DAY OF AP TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY AND THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL APPEAL NO: 1234 & 1235 OF 2017 CRIMINAL APPEAL NO: 1234 OF 2017 Appeal under Section 374(2) of Cr.P.C praying that the High Court may be pleased to allow the criminal appeal and set aside the judgment dated 22.9.2017 in SC. No. 127 of 2009 on the file of the VI Additional Sessions Judge, Krishna at Machilipatnam, Between: Padamata Nancharaiah, S/o. Narsimha Rao, R/o. D.No. 30/265-7 Mustakhanpet, Machilipatnam. ...APELLANT/ACCUSED No. 5 AND The State of AP., rep. by the Pubiic Prosecutor, High Court of Andhra Pradesh, Amaravathi. ...RESPODENT / COMPLAINANT CRIMINAL APPEAL NO: 1235 OF 2017 Appeal under Section 374(2) of Cr.P.C praying that the High Court may be pleased to allow the criminal appeal and set aside the judgment dated 22.9.2017 in SC. No. 127 of 2009 on the file of the VI Additional Sessions Judge, Krishna at Machilipatnam, Between: '5 ' 1. Bolen] dukodalu, S/o. Adiseshu, Gowda, Pedakaragraharam, Bandar , rishna District. ‘ 2. Matta" Eswara Rao, S/o. Venkateswara Rao, Gowda, Pedakaragraharam, Bandar Mandal, Krishna District. 3. Bella Eswara Mai Chinna, S/o. Venkateswara Rao, Pedakaragraharam, Bandar Mandal, Krishna District. 4. Navudu Siva Nandikesava Rao @ Rickshaw Siva @Rickshaw Puller, S/o. Krishna, Koppu Velma, Mustakhanpet, Machilipatnam. Rao @ ...PETITIONER / ACCUSED No. 1 to 4 AND The State of Andhra Pradesh, rep. by the Public Prosecutor, High Court of Andhra Pradesh, Amaravathi. ...RESPODENT / COMPLAINANT Counsel for the Appellants : SRI. K SAI MOHAN RAO (in both cases) Counsel for the Respondents: PUBLIC PROSECUTOR (in both cases) The Court made the following V APHC010856462017 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3528] TUESDAY, THE TWENTY NINETH 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: 1234/2017 Between: Padamata Nancharaiah, Machilipatnam ...APPELLANT AND The State of A.P., Rep. by its Public Prosecutor Counsel for the Appellant: 1.KSAI MOHAN RAO ...RESPONDENT Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) CRIMINAL APPEAL NO: 1235/2017 Between: Bolem Yedukodalu, Krishna District and three others ...APPELLANT(S) AND The State of A.P., Rep. by its Public Prosecutor Counsel for the Appeilant(S): 1.RAJA REDDY KONETI ...RESPONDENT 2.KSAI MOHAN RAO Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) 2 The Court made the following: COMMON JUDGMENT: {PerHon’ble Justice K.Suresh Reddy) As both these Criminal Appeals arise out of the same Sessions i.e., Sessions Case No. 127 of 2009 on the file of the learned VI Additional Sessions Judge, Krishna at Machilipatnam, they were heard together and are being disposed of by way of this common judgment. A.1 to A.4 filed Criminal Appeal No. 1235 of 2017, whereas A.5 filed Criminal Appeal No. 1234 of 2017. During pendency of the present appeal, A.4 died and the appeal filed by him is abated. The factum of the death of A.4 during pendency of the present appeal is also confirmed by the learned Additional Public Prosecutor. case A.1 & A.5 were tried by the learned Additional Sessions Judge under two charges. First charge was under Section 302 r/w 34 I PC against A.1 to A.4 and the second charge was under Section 302 r/w 201 IPC against A.5. 2. Substance of the charge is that on 16.06.2008 at about 09.00 P.M., A.1 to A.4 attacked one Motukuri Krishna Prasad (hereinafter referred to as ‘the deceased’) and hacked him with sharp edged curved knives at the vacant site of Om Navodaya Employees Cooperative Society, Machilipatnam and caused his death and in the same process, A.5 screened weapons and clothes of the accused, thereby committed offences punishable under Section 302 r/w 34 IPC and Section 201 IPC. After completion of the trial, learned Additional Sessions Judge convicted A.1 to A.4 under Section 302 r/w 34 IPC and sentenced each one of them to suffer Rigorous Imprisonment for LIFE and 3 also to pay a fine of Rs.2,000/- each, in default to suffer Simple Imprisonment ■ for a period of two months each. r Learned Additional Sessions Judge further convicted A.5 under Section 201 IPC and sentenced him to suffer Rigorous Imprisonment for a period of three years and also to pay a fine of Rs. 1,000/-, in default to suffer Simple Imprisonment for a period of one month. Case of the prosecution, briefly, is as under; 3. (a) A.1 to A.3 are residents of Pedakar Agraharam and they are doing Real Estate business. A.4 and A.5 are co-brothers. A.4 is the close associate of A.1, and A.5 is the friend of A.1 to A.3. A.4 & A.5 are residents of Musthakhanpet, Machilipatnam. The deceased was also resident of Pedakar Agraharam. PWs 1 & 2 are sons of the deceased. PW.3 is the distant relative of the deceased. PW.4 is the resident of same village. About few months prior to the date of offence, the deceased purchased Ac.0.05 cents of house site from one Bolem Nancharaiah and got it under Ex.DI registered in the name of his relative PW.3. A.1 to A.3 also purchased Ac.0.09 cents of house site adjacent to said house site from one Nageswaramma, w/o. Yarlagadda Radha Krishna Murthy under a registered Sale Deed Ex.D.2. Since then there were misunderstandings between A.1 to A.3 and deceased. Thus, the deceased said to have encroached Ac.0.02 cents of house site out of Ac.0.09 cents purchased by A.1 to A.3. As the deceased encroached Ac.0.02 cents highhandedly, A.1 gave a report to the police under Ex.P23. In spite of the same, the deceased used to threaten A.1 to A.3 with dire consequences. As 4 such, A.1 to A.3 conspired to do away with the life of deceased by taking help ■ of A.4 & A.5. A.1 and A.2 approached PW.7 and asked him to prepare two heavy cutting knives (Kamma Kattulu). Accordingly, PW.7 prepared two knives marked as M.0.7 and handed over to them by collecting Rs.600/-. (b) While so, on 16.06.2008 at about 09.00 P.M., the deceased along with his son PW.1 was returning to the village from Machilipatnam. When they reached near the scene of offence, the deceased slowed down motor bike to cross the Railway track and speed breaker. The deceased and PW.1 were proceeding on Pulsor Motor bike bearing registration No.AP 16 AR 4029. After crossing the railway track, A.1 to A.3 and others attacked the deceased. PW.1 fell on the left side of the road and the deceased fell on the right side of the road. The deceased ran into the adjacent vacant site of Om Navodaya Employees Cooperative Society. All the accused chased the deceased and hacked him with knives indiscriminately. PW.1 was watching the entire incident from hiding himself behind bushes. After sometime, all the accused left the place. Thereafter, PW.1 went to the deceased and found him dead. Immediately, PW.1 telephoned to his brother PW.2 about the attack. Having received the information, PW.2 and their mother came to the scene of offence and found dead body in a pool of blood. Immediately, PW.1 went to the Police Station and gave a report. PW.14 Sub-Inspector of Police, Chilakalapudi Police Station, received Ex.P1 report from PW.1 at about 10.30 P.M. and registered a case in Cr.No. 106/2008 under Section 302 r/w 34 IPC. He issued copies of F.I.R. to all the concerned. F.I.R. is marked as Ex.P.22. PW.16 \ \ 5 Inspector of Police, Machilipatnam Rural received information from PW.14. He posted a Guard at the scene of offence. As it was late in the night, he resumed the investigation on the next day morning. He visited the scene of offence and secured presence of PW.12 and another and prepared rough sketch EX.P24. He also prepared an observation report Ex.P18. He got the scene photographed through PW.11. Photographs were marked as Ex.P7. He seized M.0.8 Pulsor Motor Cycle under Ex.P24. He also seized blood stained earth M.0.9 and controlled earth M.O.10. He also seized blood stained white towel M.0.11, chappals M.0.6 and M.0.12 and a pocket dairy M.0.5 and a Mobile phone M.0.1 at the scene of offence. He held inquest over the dead body in the presence of PW.12 and another. Inquest report is marked as Ex.P9. During the course of inquest, he recorded statements of PWs 1, 2, 4 and others. He sent the dead body to Government Hospital Machilipatnam for Postmortem examination. PW.13 Civil Assistant Surgeon, District Hospital, Machilipatnam, conducted Autopsy over the dead body on 17.06.2008 at about 02.15 P.M. He found 34 injuries on the body of the deceased. He opined the cause of death was due to massive external hemorrhage due to multiple lacerated injuries all over the body with sharp edged objects. He issued Postmortem certificate Ex.P19. (c) On 23.06.2008, on credible information, PW.16 along with PW.12 arrested A.2 to A.4 near Sharki High School situated at Noble Colony, Machilipatnam. A.2 to A.4 said to have confessed about the commission of offence. He seized M.Os 13 to 15 from the possession of A.2 under a cover \ 6 of Panchanama Ex.PIO. He seized Mobile phone M.0.18 from A4 under EX.P12. On the confession made by A.2 to A.4, PW.16 along with PW.12 and another went to the railway track near Adarsh Nagar and A.4 produced three heavy cutting knives (Kamma Kattulu) from bushes. He seized M.Os 7 and 19 i.e., three knifes under a cover of Panchanama Ex.P15 in the presence of PW.12 and another. On the same day, A.2 to A.4 led PW.16 and mediators to the house bearing D.No.30/265-7 belonging to A.5. PW.16 seized M.Os 20 and 21 blood stained shirts of A.1 and A.2 under a cover of Panchanama Ex.P16. PW.16 found some injuries on the person of A.2 and A.4. He referred A.2 and A.4 to Government Hospital, where the Doctor issued Wound Certificates Exs.P20 & P21 pertaining to A.2 and A.4. Subsequently, A.1 surrendered before II Additional Judicial First Class Magistrate, Machilipatnam. PW.16 filed a Memo seeking custody of A.1. PW.16 interrogated A.1 on 01.07.2008 who confessed about the commission of offence. On the confession made by A.1, he recovered Motor cycle M.0.8 from Cycle stand of R.T.C. Depot, Gudivada under Ex.P18 in the presence of PW.12 and another. After interrogation PW.16 produced A.1 before the Court on 02.07.2008. On 06.07.2008, PW.16 recorded statement of PW.7 who said to have manufactured M.Os 7 and 19. On 08.07.2008, he recorded statements of PWs 6 and 9. All the material objects were forwarded to F.S.L., Vijayawada on 12.07.2008 under a Letter of advice Ex.P25. On 04.09.2008, PW.17 Successor of PW.16 received R.F.S.L. report Ex.P29. After receiving \ \ 7 all the documents and after completion of investigation, PW.17 filed charge ' sheet. In support of its case, the prosecution examined PWs 1 to 17, marked 4. exhibits PI to P29 and exhibited MOs 1 to 21. On behalf of the defence Exs.D.1 to D.7 were marked. 5. When the accused were examined under Section 313 Cr.P.C., they denied the incriminating material appearing against them. 6. Accepting the evidence of the prosecution witnesses, learned Additional Sessions Judge convicted the accused as aforesaid. 7. Heard Sri Posani Venkateswarlu, learned Senior Counsel representing Sri K.Sai Mohan Rao, learned counsel for A.1, A.2 and A^5, and Sri Rajareddy Koneti, learned counsel for A.3, and Sri Marri Venkata Ramana, learned Additional Public Prosecutor representing the State. 8. Sri Posani Venkateswarlu, learned Senior Counsel, contends that the prosecution could not able to prove the motive for the accused to kill the deceased. He further contends that the only eye witness available on record is PW.1, who is none other than the son of deceased. He contends that the evidence of PW.1 suffers from number of inconsistencies, contradictions and improvements from stage to stage; as such, no reliance can be placed on his evidence. 8 So far as the evidence of PW.2 is concerned, he is the brother of PW.1 and he came to know about the incident through PW.1. As such, his evidence is not helpful to the prosecution, except for the motive. PW.3, who is the relative of the deceased, is also not helpful to the prosecution. So far as PW.4 is concerned, the prosecution tried to establish motive through his evidence. Of course, PW.4 did not support the prosecution. PWs 5, 6 & 9 did not support the prosecution and they were declared as hostile. So far as the evidence of PW.7 is concerned, he manufactured the knives M.Os 7 and 19 at request of A.1 & A.2. But the evidence of PW.7 disbelieved by the trial Court. PW.8 is the Doctor who treated A.2 & A.4. PW.10 is the person who was working at Cycle stand in Gudivada RTC Bus Depot. His evidence also is not helpful to the prosecution in any manner. PW.11 is the photographer and PW.12 is the V.R.O., who is the panch witness for all the practical purposes. PW.13 is the Civil Assistant Surgeon who conducted Postmortem the dead body and issued Postmortem certificate Ex.PI 9. PW.14 is the Sub-Inspector of Police who registered the crime. PW.15 is another Sub-Inspector of Police who received report from A.1 under Ex.P23. was over PWs 16 and 17 are the Investigating Officers. 9 As such, the learned Senior Counsel contends that the only witness • available on record to the attack on the deceased is PW.1 alone. I 9. On the other hand, the learned Additional Public'Prosecutor opposed the appeal. 10. We have carefully analyzed the entire evidence on record. 11. PW.1 in his earliest report Ex.P1 has stated that on 16.06.2008 at about 09.00 P.M., when he along with his father were going on two wheeler and when they crossed Railway track, A. 1 to A.3 and others attacked the deceased: PW.1 and the deceased fell from the motor cycle, stated in Ex.PI that the deceased ran towards right side into the land of Navodaya Society. He further stated that all the accused chased him and stabbed him with knives. He further stated that he witnessed the entire incident with the help of light at Railway gate. He further stated that after the attack the accused left the scene and thereafter he went to the deceased and found him dead. But, PW1 in his deposition has stated that after crossing the Railway gate and when the vehicle was slowed down due to speed breaker, the accused surrounded him and attacked, due to which PW.1 fell on the left side and the deceased fell on the right side of the motor bike. PW.1 further stated that he watched the entire incident hiding himself behind bushes. He further stated that when the deceased tried to get up to escape, all the accused attacked him and he identified them with the help of signal lights at the Railway track. In his evidence, he further stated that he knows A.1 to A.5, He further 10 but he did not give the names of A.4 and A.5 in Ex.P1 report. He refers to only A.1 to A.3 and others. In his evidence, PW.1 further stated that after the entire attack is over, he went to the dead body and found the deceased in a pool of blood. He also stated in his evidence that a mobile phone was found by the side of the dead body. He picked up the said mobile phone and made a phone call to his cell phone and name of B.Kondalu was displayed in his mobile phone. Thereafter, he informed his brother PW.2 about the incident from his mobile phone. Later, PW.2 and their mother came to the scene of offence and thereafter they went to the police station and gave a report Ex.P1. (a) As seen from the evidence of PW.1, there are number of variations and contradictions, improvements from the stage of Ex.PI to the stage of his deposing before the Court. Though PW.1 in his evidence has stated that he knows all the five accused, but he did not give the names of A.4 and A.5 in Ex.PI. So far as LW.8 is concerned, though he was cited as eye witness in the charge sheet, the prosecution did not choose to examine him during the course of trial. (b) So far as the other witness PW.5 is concerned, he did not support the prosecution and he was declared as hostile. As such, the evidence of PW.1 do not inspire confidence of this Court to place reliance on his evidence. Coming to the motive part, the prosecution is relying on the evidence of PWs 1 to 4. Of course, PW.4 did not support the prosecution and he was declared as hostile. So far as PWs 1 & 2 are concerned, both of them have stated that the deceased purchased Ac.0.05 cents of house site about six 12. 11 ms months prior to the date of incident in the name of PW.3 under Ex.D1. It is h- '' thereafter A.1 to A.3 purchased Ac.0.09 cents of house site under Ex.D2. Both the house sites covered under Exs.D.1 & D.2 are situated side by side. It is alleged by PWs 1 & 2 that the deceased encroached Ac.0.02 cents of land belonging to the accused and as such there were disputes between the deceased on one side and A.1 & A.2 on the other side. But, PW.3 in her evidence has categorically stated that she purchased the house site of Ac.0.05 cents on her own and she paid money to the seller. She has specifically stated in her evidence that the deceased has not purchased the said land covered under Ex.DI. Further recitals of Ex.DI indicate that it is PW.3 who purchased said Ac.0.05 cents of house site from one Yarlagadda Nageswaramma. The evidence adduced through PW.3 is contrary to the evidence of PWs 1 & 2. As such, the prosecution miserably failed in establishing the motive on the part of the accused to kill the deceased. (a) So far as the recovery of M.Os 7 and 19 weapons are concerned, the prosecution is relying on the evidence of PW.12. PW.12 in his cross- examination has stated that he is mediator in number of cases and he scribed about 100 to 150 documents and he gave evidence in the Court relating to PW.12 is the mediator for observation report. Inquest report. Arrest and Seizure report and for all Panchanamas i.e., Exs.PS to PI 8. those documents. He was taken as panch witness for all practical purposes by the Investigating Officer PW16. Further, according to the prosecution, MOs.7 and 19 are heavy cutting knives, but as per the evidence of PW.13 who conducted Postmortem, 12 no incised injury was found on the dead body. All the 34 injuries found on the body are lacerated injuries except one abrasion. PW.13 in his evidence has stated that those injuries are possible by sharp edged weapons. But, according to the prosecution, M.Os 7 and 19 are heavy cutting knives (Kamma kattulu) but PW.7 who manufactured M.Os 7 and 19 was disbelieved by the learned Additional Sessions Judge. Further, the prosecution did not put forward MOs.7 and 19 to PW.1 to identify as to whether the accused attacked the deceased with M.Os 7 and 19. As such, the recoveries of MOs.7 and 19 also cannot be relied on as the trial court disbelieved the evidence of PW.7. Further, the ocular version spoken to by PW.1 is not corroborated with the medical evidence adduced through PW.13. So far as the injuries received by A.2 and A.4 are concerned, the prosecution examined the Doctor PW.8. PW.8 in his evidence has stated that two persons approached him on 16.06.2008 between 9.00 P.M. and 11.00 P.M. and he gave first aid to them. He furnished the name of A.2 alone. In his evidence, he stated that A.2 and A.4 informed him that they received injuries in the motor accident. PW.8 in his evidence has stated that he could able to give name of A.2 alone but he could not recollect the name of another person. Of course, PW.8 did not furnish any document to show that he gave first aid to A.2 and A.4. The prosecution is relying on M.Os 13 to 15 O.P. sheets and prescriptions belong to A.2. PW.16 in his evidence has stated that on the morning of 23.06.2008, he arrested A.2 PW.16 in his evidence stated that A.2 to A.4 in the presence of PW.12. produced MOs 13 to 15 and sought to contend that after the attack they met \ \ 13 with an accident and received injuries. But, curiously having examined, PW.8 Doctor, who provided treatment to A.2 and A.4, did not choose to confront him with M.Os 13 to 15. MOs.13 to 15 were marked through PW.12 mediator for Further, though PW.8 treated them on 16.06.2008, it is highly improbable to accept that on the date of arrest i.e., on 23.06.2008, A.2 was carrying the O.P. card along with prescription in his pocket. No reliance can be placed on the recovery of M.Os 13 to 15. Of course, even if they are taken into consideration, M.Os 13 to 15 did not incriminate the accused in any the arrest. manner. In view of the above facts and circumstances, the prosecution could not 13. able to prove the motive for the accused to attack the deceased and recovery in the circumstances of the case. As such, the conviction and sentence r learned VI Additional Sessions Judge, Krishna at ( recorded by the Machilipatnam in Sessions Case No. 127 of 2009 vide judgment dated 22.09.2017 is liable to be set aside. So far as A.5 is concerned, he is convicted under Section 201 IPC. When this Court disbelieved the recovery, A.5 also entitled for acquittal. In the result, these Criminal Appeals are allowed, and the conviction and sentence recorded by the learned VI Additional Sessions Judge, Krishna at Machilipatnam in Sessions Case No. 127 of 2009 vide judgment dated 22.09.2017 is hereby set aside. A.1, A.3 and A.5 are acquitted of the charges leveled against them. 14 As A.5 was granted bail by this Court at the time of admission, his bail bonds stand cancelled. So far as A.1 to A.3 are concerned, as A.1 & A.3 were enlarged on bail by order of this Court vide I.A.No.2/2022 dated 06.12.2022 and A.2 was enlarged on bail by order of this Court vide I.A.No.4/2022 dated 02.01.2023 in terms of the order of a Division Bench of the combined High Court in Batchu Ranga Rao v. State of A.P. , they are directed to appear before the Superintendent, Central Prison concerned for completion of necessary formalities. The bail bonds of A.1 to A.3 shall stand cancelled. As a sequel, interlocutory applications pending, if any, shall also stand closed. SD/- E. KAMESWARA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To. 1. The VI Additional Sessions Judge, Krishna at Machilipatnam, The II Additional Judicial Magistrate of I Class, Machilipatnam, Krishna District. The Inspector of Police, Bandar Two Circle of Chilakalapudi Police Station, Krishna District The Superintendent, Central Jail, , Rajamahendravaram, East Godavari District One CC to Sri K Sai Mohan Rao Advocate [OPUC] Two CCs to the Public Prosecutor High Court of Andhra Pradesh [OUT] The Section Officer, VR Section, High Court of Andhra Pradesh at Amaravathi. Three CD Copies . 2. 3. 4. 5. 6. 7. 8. psr AL HIGH COURT DATED:29/04/2025 ORDER CRLA.N0.1234& 1235 of 2017 ALLOWING THE CRIMINAL APPEAL