APHC010203092018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3547] THURSDAY, THE NINTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CRIMINAL APPEAL NO: 1508/2018 Between: Mandangi Arjun @ Varji and Others ...APELLANT(S) AND State Of Ap ...RESPODENT Counsel for the Appellant(S): 1. A RAVI SHANKAR Counsel for the Respondent: 1. PUBLIC PROSECUTOR The Court delivered the following: IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI THURSDAY, THIS THE NINETH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE SPECIAL DIVISION BENCH PRESENT HONOURABLE SRI JUSTICE K SURESH REDDY And HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CRIMINAL APPEAL No.1508 of 2018 JUDGMENT: (Per the Hon’ble Sri Justice K.Suresh Reddy) A-1 to A-3 and A-9 in Sessions Case No.98 of 2013 on the file of the Court of II Additional Sessions Judge, Parvatipuram, Vizianagaram District are the appellants. They along with A-4 to A-8 and A-10 were tried by the learned Additional Sessions Judge under the following charges: The first charge was under Section 302 r/w 34 IPC against A-1 to A-10 The second charge was under Sec.323 r/w 34 IPC against A-1 to A-10, The third charge was under Section 201 r/w 34 IPC against A-1 to A-10, The last charge was under Sec.506 (2) r/w 34 IPC against A-1 to A-10. 2. Substance of the charge is that on 25.09.2012 at about 10.00 a.m. all the accused gathered at the tamarind tree situated at the school building of Mulabinnidi village, called one Mandandi Thimmanna (hereinafter referred to as deceased), questioned him stating that he is practicing witchcraft, due to which one Mandangi Pentayya died. Saying so, all the accused in furtherance of common intention attacked the deceased causing his death. In the same process, they also beat P.W.3 with hands and threatened P.W.5 and another and in the same process, they carried the dead body to the burial ground, placed sticks on the body and set fire to the dead body to screen the evidence. Thereby the accused committed offences punishable under Sections 302, 323, 201 and 506 (2) r/w 34 IPC. 3. After completion of trial, learned Additional Sessions Judge convicted A-1 to A-3 and A-9 for the offence under Section 302 r/w 34 IPC and sentenced each one of them to suffer rigorous imprisonment for life and to pay a fine of Rs.500/- each, in default, to suffer rigorous imprisonment for six months each. Learned Additional Sessions Judge further convicted A-1 to A-3 and A-9 for the offence under Section 323 r/w 34 IPC and sentenced each one of them to suffer rigorous imprisonment for one year. Learned Additional Sessions Judge further convicted A-1 to A-3 and A-9 for the offence under Section 201 r/w 34 IPC and sentenced each one of them to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs.500/- each, in default, to suffer rigorous imprisonment for six months each. Learned Additional Sessions Judge also convicted A-1 to A-3 and A- 9 for the offence under Section 506 (2) r/w 34 IPC and sentenced each one of them to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs.500/- each, in default, to suffer rigorous imprisonment for six months each. All the substantive sentences were directed to run concurrently. Learned Additional Sessions Judge acquitted A-4 to A-8 and A-10 of all the charges. 4. Case of the prosecution, briefly, is as follows: (i) All the accused and material witnesses are residents of Mulabinnidi village, Chaparaibinnidi Panchayat. The deceased was also resident of the same village. P.W.1 is the wife and P.W.2 is the daughter of deceased respectively. P.W.3 is cousin of P.W.2. One Mandangi Pentayya, who is resident of the same village was suffering from fever and he was taken to Rayagada, where it was informed that he was suffering from ill- health due to witchcraft and there was a rumor in the village that the deceased was practicing witchcraft on the said Mandangi Pentayya. (ii) While so, on 25.09.2012 at about 10.00 a.m. all the accused along with two juveniles gathered under the tamarind tree near school building in the village. The villagers summoned the deceased and his family members asking them to attend for panchayat. Accordingly, the deceased along with P.Ws.1 to 3 attended the panchayat. All the accused questioned the deceased as to whether he practiced witchcraft against said Mandangi Pentayya, for which the deceased refused. A-1 fisted on the forehead of deceased and A-2 and A-3 beat him with sticks. The other accused also beat the deceased, who fell down. Then A-1 threw a foundation stone on the deceased, who died on the spot. When P.W.1 intervened she was pushed aside and the dead body was taken to the burial ground by A-1 and A-9, where it was burnt by all the accused. The accused threatened P.W.1 with dire consequences, if she informs the police. After one month P.W.1 went to P.W.4, a pastor in Kurupam and informed him about the incident. She along with P.W.4 went to police station and gave report Ex.P1, scribed by P.W.6. (iii) P.W.12 Sub Inspector of Police, Elwinpeta Police Station, received Ex.P1 report from P.W.1 on 26.10.2012, registered the same as a case in Crime No.37 of 2012 under Sections 320, 201,506(2), 323 r/w 324 IPC. He issued copies of F.I.Rs to all the concerned. Ex.P12 is the F.I.R. After receiving information, P.W.11, Inspector of Police took up investigation. (iv) P.W.11 along with P.W.12 and Mandal Executive Magistrate proceeded to scene of offence. On the way, he secured the presence of mediators P.W.9 and another. He went to the scene of offence situated under the tamarind tree, opposite to MPP School, prepared an observation report Ex.P6 in the presence of mediators P.W.9 and another. He also prepared a rough sketch Ex.P9 at the scene of offence. He secured the presence of P.Ws.1 to 5 and recorded their statements. Thereafter he proceeded to the outskirts of the village near Hillock along with mediators, where the dead body was burnt. P.W.11 collected burnt ash and burnt bones under the cover of panchayatnama in the presence of P.W.9 and another. He also prepared rough sketch Ex.P10 at that place where the dead body was burnt. On 28.10.2012 on receipt of credible information, P.W.11 apprehended A-1 to A-10 and two juveniles near MPP School of the village. On the confession made by them, P.W.11 seized M.O.1 foundation stone and M.O.2, two sticks from the bushes near MPP school. The seizure panchanama was marked as Ex.P8. He arrested all the accused, who were remanded to judicial custody on the following day. (v) On 06.11.2012, P.W.11 recorded statements of P.Ws.6 and 7. On 08.11.2012, he forwarded the material objects to FSL, Hyderabad. FSL report is marked as Ex.P11. After receipt of all the documents and after completion of investigation, P.W.11 filed charge sheet. 5. In support of its case, the prosecution examined P.Ws.1 to 12, marked Exs.P1 to P13 and exhibited M.Os.1 and 2. 6. When the accused were examined under Section 313 of Cr.P.C., they denied the incriminating evidence appearing against them. On behalf of the defence, D.Ws.1 to 4 were examined. 7. Accepting the evidence of prosecution witnesses, the learned Additional Sessions Judge convicted the appellants as aforesaid. Page 7 of 11 8. Heard Sri A.Ravi Shankar, learned counsel for the appellants and Sri Marri Venkata Ramana, learned Additional Public Prosecutor for the respondent-State. 9. Learned counsel for the appellants strenuously argued that though the incident took place on 25.09.2012 P.W.1 gave report on 26.10.2012 with a delay of more than one month. He further contends that there is no corpus delicti. He also contends that there is no evidence to show that the deceased died in the said attack. He further contends that cause of death of deceased was also not known in the circumstances of the case. He contended that there is no evidence to show that the bones seized by the investigating officer at the burial ground belong to the deceased. He finally contended that except the belated version of P.Ws.1 to 3, absolutely there is no other material to connect the appellants with the alleged offence. 10. On the other hand, learned Additional Public Prosecutor opposed the appeal contending that though there is no evidence to show that the deceased was killed by the appellants, but the evidence of P.Ws.1 to 3 can be relied on. He further contends that all the accused threatened P.Ws.1 to 3 with dire consequences, if they approach the police. It is only for that reason, P.Ws.1 to 3 kept quiet without giving any report to police, as such he urged the Court to dismiss the appeal by confirming the conviction and sentence. Page 8 of 11 11. We have carefully scrutinized the entire evidence on record. 12. According to the prosecution, P.Ws.1 to 3 are eye witnesses. P.W.1 is wife and P.W.2 is daughter of deceased respectively. P.W.3 is the close relative of deceased. P.Ws.1 to 3 in their evidence stated that on 25.09.2012 in between 10.00 a.m. and 12 noon, A-1 to A-10 assembled under a tamarind tree situated near MPP School building. They further stated that all the accused summoned the deceased along with family members for panchayat. After they attended the panchayat, the deceased was questioned by the accused as to why he performed witchcraft against one Mandangi Pentayya. They further stated that A-1 fisted on the forehead of deceased. A-2 and A-3 beat the deceased with sticks. Thereafter A-1 threw a foundation stone on the deceased, due to which deceased succumbed to injuries on the spot. It is further evidence of P.Ws.1 to 3 that A-1 and A-9 carried the dead body to the burial ground, where all the accused burnt the dead body. It is their further evidence that all the accused threatened P.Ws.1 to 3 with dire consequences, if they approach the police. Thereafter nothing had happened. After waiting for one month, P.W.1 approached P.W.4, who is pastor of a church in Kurupam and informed him about the incident. P.W.4 took P.W.1 to a document writer P.W.6, who prepared report Ex.P1. Thereafter P.W.4 took P.W.1 to Elwinpeta Police Station and set the criminal law into motion. P.W.12, Sub Inspector of Police, Elwinpeta Police Station registered Crime No.37 of 2012 on the basis of Ex.P1 report. Of course, P.W.6 scribe of Ex.P1 did not support the prosecution and the prosecution cross examined him. 13. Having analyzed the entire material on record, the only evidence available to the alleged incident is that of P.Ws.1 to 3. Though the incident took place on 25.09.2012, P.Ws.1 to 3 kept quiet without giving any report to the police till 26.10.2012. So far as the evidence of P.W.4 is concerned, his evidence is not at all helpful except stating that he took P.W.1 to police station and gave report Ex.P1. So far as P.Ws.5 and 6 are concerned, they did not support the prosecution and they were cross examined by the learned Public Prosecutor. P.W.7 is the staff nurse, who states that said Mandangi Pentayya came to Primary Health Centre complaining loss of appetite and fever and the Doctor prescribed medicines to him. So far as P.W.8 is concerned, he is a photographer, who took photographs Exs.P4 and P5. P.W.9 is the mediator for observation report and seizure. P.W.10 is the inquest panchayatdar. P.Ws.11 and 12 are investigating officers. 14. As such the only evidence available on record is P.Ws.1 to 3. As observed supra, though the incident took place on 25.09.2012, P.Ws.1 to 3 kept quiet till 26.10.2012. So far as the medical evidence is concerned, the same is not available on record, as the dead body was not there. P.W.11 investigating officer recovered the burnt bones from the burial ground and sent them for FSL for chemical analysis. FSL report is marked as Ex.P11. In the FSL report, it is stated that origin of item Nos.1 and 2 i.e. ash and burnt bones could not be determined. As such there is no material to show that the bones belong to human being. There is no evidence to show that the deceased was murdered in the so called incident, except the belated oral assertion of P.Ws.1 to 3. Apart from the evidence of P.Ws.1 to 3, prosecution projected P.W.5 as eye witness, but he did not support the prosecution and he was cross examined by learned Public Prosecutor. 15. On behalf of defence, D.Ws.1 to 4 were examined. D.Ws.1 and 2 in their evidence categorically stated that the deceased died due to fever. D.W.4 who is none other than brother’s son of deceased, stated that the deceased was suffering from fever since one month and he died due to fever. 16. As such the prosecution could not able to prove that the deceased died in the so called attack by the appellants. Absolutely there is no evidence to show that the appellants killed the deceased on 25.09.2012. Further, there is High School, Panchayat Office, Anganwadi Centre and Primary Health Centre in and around the scene of offence. If really, such an incident had taken place, the same ought to have come to light one way or the other. P.W.5, who is working as Home Guard, who said to have witnessed the incident also did not take any steps to inform the same to the police. 17. In view of above facts and circumstances of the case, We are of the considered opinion that the conviction and sentence imposed by the learned II Additional Sessions Judge, Parvatipuram is not sustainable. 18. In the result, the Criminal Appeal is Allowed and the conviction and sentences recorded by the learned II Additional Sessions Judge, Parvathipuram in S.C.No.98 of 2013, dated 28.07.2016 are hereby set aside. Accordingly the appellants are acquitted of the offences under Sections 302, 323, 201, 506(2) r/w 34 IPC. Fine amount, if any, paid by the appellants shall be refunded to them. The appellants are directed to be set at liberty forthwith, if they are not required in any other case or crime. Consequently, miscellaneous petitions, if any, pending shall stand closed. _______________________ JUSTICE K.SURESH REDDY _______________________________ JUSTICE SUBBA REDDY SATTI PVD