APHC010540412018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3570] THURSDAY, THE FIFTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA CRIMINAL APPEAL NO: 2103/2018 Between: 1. CHONGALI LOKESH, V.VELAMA REDDAYYAVALASA VILLAGE, BOBBILI MANDAL, VIZIANAGARAM DISTRICT. ...APELLANT AND 1. STATE OF AP, represented by the Public Prosecutor, High Court of Judicature at Hyderabad for the state of Telangana and the state of AP., ...RESPODENT Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to to set aside the judgment dated 05-07-2018 in POCSO.Sessions Case No. 52 of 2017 in the court of the Special Judge for Trial of cases under POCSO.Act -cum- 1st Additional District and Sessions Judge at Vizianagaram in respect of the appellant by allowing the above appeal. IA NO: 1 OF 2018 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 to suspend the sentence of imprisonment imposed in judgment dated 05-07- 2018 in POCSO.Sessions Case No. 52 of 2017 in the court of the Special Judge for trial of cases under POCSO.Act -cum- 1st Additional District and Sessions Judge at Vizianagaram by continuing the petitioner on bail, pending the above criminal appeal. 2 KSR,J & GTK,J Crl.A.No.2103 of 2018 Counsel for the Apellant: 1. T V SRI DEVI Counsel for the Respodent: 1. PUBLIC PROSECUTOR (AP) The Court made the following: 3 KSR,J & GTK,J Crl.A.No.2103 of 2018 IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI Thursday, THIS THE FIFTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX SPECIAL DIVISION BENCH PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY AND THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA CRIMINAL APPEAL NO: 2103 of 2018 JUDGMENT :- (Per the Hon’ble Sri Justice K.Suresh Reddy) Accused No.2 in POCSO S.C.No.52 of 2017 on the file of the Court of Special Judge for Trial of Cases under POCSO Act-cum-I Additional District and Sessions Judge, Vizianagaram, is the appellant. 2. The appellant/A2 along with A1 was tried by the learned Special Judge under the following charges: i) First charge was under Section 302 of IPC against A1, ii) Second charge was under Section 376 of IPC against A1, iii) Third charge was under Section 201 of IPC against A1, iv) Fourth charge was under Section 404 of IPC against A1, v) Fifth charge was under Section 354-D of IPC against A2, vi) Sixth charge was under Section 4 of Protection of Children from Sexual Offences Act, 2012 against A1 and the last charge was under Section 11 read with 12 of Protection of Children from Sexual Offences Act, 2012, against A2. 3. Substance of the charge is that on 01.09.2017 between 01:30 p.m. and 04:15 p.m., A1 committed rape on a minor girl, aged about 15 4 KSR,J & GTK,J Crl.A.No.2103 of 2018 years, by name Miriyala Indu, (hereinafter referred to as “the deceased”) and caused her death and to screen the evidence, threw the dead body in Vangapandu tank and in the same process, he misappropriated ear studs belonging to the deceased. At the same time, A2 used to follow her and contact her over mobile phone repeatedly despite the clear indication of her disinterest, thereby A1 committed offences punishable under Sections 302, 376, 201, 404 IPC and A2 committed offences punishable under Sections 354-D IPC and Sections 4 and 11 read with 12 of POCSO Act. 4. After completion of trial, the learned Special Judge, convicted the appellant/A2 under Section 354-D of IPC and sentenced him to suffer rigorous imprisonment for a period of three (3) years and also to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for a period of three (3) months. Out of fine amount of Rs.5,000/-, an amount of Rs.4,000/- was directed to be paid to the parents of the deceased i.e., PWs.1 and 2. 5. The learned Additional Sessions Judge convicted A1 and sentenced him under Section 302 IPC to undergo Rigorous Imprisonment for „Life‟ and also to pay a fine of Rs.10,000/-, in default to undergo Simple Imprisonment/- for six (6) months. Out of fine amount of Rs.10,000, an amount of Rs.9,000/- was directed to be paid to the parents of the deceased i.e. P.Ws.1 and 2. The learned Additional Sessions Judge further convicted A1 and sentenced him under Section 376 IPC to undergo Rigorous Imprisonment for ten (10) years and also to pay a fine of Rs.10,000/-, in default to undergo Simple Imprisonment/- for six (6) months. Out of fine amount of Rs.10,000, an 5 KSR,J & GTK,J Crl.A.No.2103 of 2018 amount of Rs.9,000/- was directed to be paid to the parents of the deceased i.e. P.Ws.1 and 2. The learned Additional Sessions Judge further convicted A1 and sentenced him under Section 201 IPC to undergo Rigorous Imprisonment for seven (7) years and also to pay a fine of Rs.5,000/-, in default to undergo Simple Imprisonment/- for three (3) months. Out of fine amount of Rs.5,000, an amount of Rs.4,000/- was directed to be paid to the parents of the deceased i.e. P.Ws.1 and 2. The learned Additional Sessions Judge also convicted A1 and sentenced him under Section 404 IPC to undergo Rigorous Imprisonment for three (3) years and also to pay a fine of Rs.5,000/-, in default to undergo Simple Imprisonment/- for three (3) months. Out of fine amount of Rs.5,000, an amount of Rs.4,000/- was directed to be paid to the parents of the deceased i.e. P.Ws.1 and 2. All the substantive sentences were directed to be run concurrently. 6. As the present appeal is filed solely by A2, this Court is not examining the convictions or evidence adduced against A1. 7. Earlier, when the present appeal was listed for hearing on 27.11.2025, the learned Additional Public Prosecutor was requested to ascertain whether A1 had filed any appeal. Upon verification and after obtaining instructions, the learned Additional Public Prosecutor submitted on 09.12.2025 that A1 had not filed any appeal but intended to do so in due course, questioning his conviction. Despite granting sufficient time up to the present date, A1 has not filed any appeal. In view of the same, this Court is inclined to proceed with the present appeal filed by A2. 6 KSR,J & GTK,J Crl.A.No.2103 of 2018 8. Case of the prosecution, briefly, is as follows: i) Both the accused and the material prosecution witnesses are residents of Reddiyyavalasa village, Bobbili Mandal. The deceased was also resident of the same village. The deceased was studying 10th class at the time of incident. PWs.1 and 2 are the father and mother of the deceased respectively. PW3 is the relative of the deceased. PWs.6, 7, 12 and 13 are schoolmates of the deceased. The deceased used to attend her school situated at Gedelavalasa village, which is a neighbouring village. She used to go to school in the morning at about 09:00 a.m. on a cycle. She used to return for lunch at about 01:00 p.m. Again she used to go to school and return in the evening. ii) While so, on 01.09.2017, at about 09:00 a.m., the deceased went to school on a bicycle and returned home at about 01:00 p.m. for lunch. After having lunch, she again went to school but did not return thereafter. At about 05:00 p.m. on the same day, P.W.5 and L.W.6 brought the bicycle belonging to the deceased and handed it over to her parents, i.e., P.Ws.1 and 2. On enquiry by P.Ws.1 and 2, P.W.5 and L.W.6 stated that they had found the bicycle near Vangapandu tank. Thereafter, P.Ws.1 and 2, along with their relatives, started searching for the deceased. During the course of the search, P.W.4 informed them that he had seen the deceased talking with A1 at about 01:30 p.m. and that they were engaged in a heated argument. While continuing the search, at about 05:30 a.m. on 02.09.2017, the dead body of the deceased was found floating in Vangapandu Cheruvu. 7 KSR,J & GTK,J Crl.A.No.2103 of 2018 iii) At about 07:00 a.m. on the same day, P.W.1 went to the Police Station and lodged a report. P.W.27, Sub-Inspector of Police, Seethanagaram Police Station, received Ex.P1–report from P.W.1 and registered a case in Crime No.195 of 2017 under Sections 302, 201, and 376 IPC and Section 4 of the POCSO Act. He issued copies of the FIR to all the concerned. Ex.P26 is the FIR. On receipt of the said information, P.W.29, Deputy Superintendent of Police, Bobbili, took up investigation. He proceeded to the scene of offence along with P.W.21 and another. He prepared an observation report-Ex.P16 in the presence of mediators. He got the dead body retrieved from the tank. He also noticed that the jute crop belonging to Nammitammi Naidu, situated near the scene of offence, was disturbed and trampled, and observed the same in the presence of mediators. During the course of investigation, he seized M.Os.1, 2, 3, and 7 belonging to the deceased. He prepared a rough sketch- Ex.P28 at the scene of offence and also prepared second rough sketch - Ex.P29 and third rough sketch-Ex.P30. He further prepared an observation report-Ex.P16 in respect of the disturbed and trampled jute crop. He got the scene of offence photographed through P.W.23, and the photographs along with the C.D. were marked as Ex.P17. At about 09:00 a.m., he summoned P.Ws.18 and 21 and conducted inquest over the dead body. Inquest report is marked as Ex.P9. During the inquest, he recorded statements of P.Ws.1, 4, 5, and others. It was noticed that there were external injuries on the body of the deceased. Thereafter, he sent the dead body for post-mortem examination. 8 KSR,J & GTK,J Crl.A.No.2103 of 2018 iv) PW24, Civil Assistant Surgeon, Community Health Centre, Bobbili, conducted autopsy over the dead body. He opined the cause of death was “asphyxia due to strangulation”. He issued post-mortem certificate-Ex.P22. v) On 03.09.2017, PW29 recorded statements of PWs.6 to 10 and 16. On 04.09.2017, he recorded statement of PW11 and obtained study certificate of the deceased marked as Ex.P5. He also collected attendance register pertaining to 10th class under Ex.P6. He also recorded statements of PWs.12 and 13-schoolmates of the deceased. He also recorded statement of Nodal Officer-PW26. vi) While so, on 05.09.2017, P.W.19 and another produced A1 before the police, stating that A1 made extra-judicial confession admitting the commission of the offence. Statements recorded by P.W.19 and another were marked as Exs.P10 and P11. P.W.29 secured the presence of mediators under Ex.P20 and recorded confession statement of A1. Ex.P12 is the C.D. containing the videograph of the extra-judicial confession made by A1. P.W.29 further interrogated A1 in the presence of P.W.20 and another, and the said statement was marked as Ex.P31. During the course of interrogation, when questioned about the missing ear studs, A1 confessed to the same, and the said ear studs were recovered at his instance, which were marked as M.O.6. vii) On 06.09.2017, P.W.29 recovered M.Os.4 and 5 from the tank at the instance of A1 under a panchanama, which is marked as Ex.P14. The said seizure proceedings were videographed under Ex.P33, and the seizure report was marked as Ex.P15. Thereafter, he proceeded to the houses of both the 9 KSR,J & GTK,J Crl.A.No.2103 of 2018 accused and arrested them. Both the accused were subsequently remanded to judicial custody. viii) On 07.09.2017, 08.09.2017, and 09.09.2017, P.W.29 recorded statements of the prosecution witnesses. He also collected blood samples of A1 and A2 for DNA profiling. P.W.25, the Assistant Director, Forensic Science Laboratory, Hyderabad, conducted the DNA analysis and issued report- Ex.P24. P.W.29 further sent the viscera of the deceased to the Regional Forensic Science Laboratory (RFSL) for analysis, and the RFSL reports are marked as Exs.P20 and P21. ix) P.W.28, the Civil Assistant Surgeon, Community Health Centre, Bobbili, conducted potency test on A1. He opined that there was nothing to suggest that A1 was impotent and that he was capable of performing sexual intercourse. He issued certificate-Ex.P27. On 07.10.2017, P.W.29 collected the call data records-Ex.P25 from the Nodal Officer-P.W.26. On 26.10.2017, P.W.29 received RFSL report pertaining to the clothes of A1 under Ex.P35. Subsequently, statements under Section 164 Cr.P.C. were recorded from P.Ws.4, 6, 7, 12, and 16. After receipt of all the relevant documents and after completion of investigation, P.W.29 filed the charge sheet. 9. In support of its case, the prosecution examined PWs.1 to 29, marked Exs.P1 to P38 and exhibited M.Os.1 to 9. 10. Accepting the evidence of prosecution witnesses, the learned Special Judge convicted the appellant/A2 as aforesaid. 10 KSR,J & GTK,J Crl.A.No.2103 of 2018 11. Heard Sri C.Upendra, learned counsel representing Smt.T.V.Sridevi, learned counsel for the appellant and Sri Marri Venkataramana, learned Additional Public Prosecutor for the respondent- State. 12. We have carefully scrutinized the entire evidence on record. 13. All the witnesses examined by the prosecution, including the schoolmates of the deceased, have deposed only against A1. None of the witnesses have deposed against A2. Even according to the prosecution, it is A1 who committed rape and caused the death of the deceased. There are absolutely no allegations against the appellant attracting the offences under Sections 376 and 302 IPC. According to the prosecution, the charges framed against the appellant are under Section 354-D IPC and Sections 11 read with 12 of the POCSO Act. All the material prosecution evidence, including the DNA profiling, pertains only to A1. As A1 is not before this Court, we are not inclined to examine the evidence adduced against him. Accordingly, we confine our consideration only to the case of the appellant/A2 with respect to the charges under Section 354-D IPC and Sections 11 read with 12 of the POCSO Act. 14. For better appreciation of the case, Section 354-D of IPC is extracted hereunder: “Section 354-D: Stalking: (1) Any man who- (i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or 11 KSR,J & GTK,J Crl.A.No.2103 of 2018 (ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking; Provided that such conduct shall not amount to stalking if the man who pursued it proves that- (i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or (ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or (iii) in the particular circumstances such conduct was reasonable and justified. (2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.” 15. Coming to the evidence on record, the only evidence adduced against the appellant/A2 is that of P.Ws.1 and 3. The examination-in-chief of P.W.3 is extracted hereunder, as the same is brief and cryptic: “I am studying Degree and I am resident of Reddiyyavalasa village of Bobbili Mandal. I know Pws 1 & 2. Pw.1 is my elder brother by courtesy and Pw.2 is his wife. They had two daughters. I know both the accused. The deceased Indu died about seven months ago. Three months prior to her death, Pw.1 called me and asked me to verify the messages in his mobile phone. I noticed one message as “Hai” received from Mobile No,.8008618687. It belongs to A.2. I informed the same to Pw.1. He asked me to send a message to that mobile by giving a warning, not to send such messages. Accordingly I sent message to A.2 mobile from the mobile of Pw.1 bearing Mobile No.7997924589. Police examined me.” 12 KSR,J & GTK,J Crl.A.No.2103 of 2018 16. So far as PW1 is concerned, he stated in his evidence as follows: “I got a mobile number bearing No.7997924589. I came to know that A.2 used to stalk the deceased while she was going to High School and used to send messages and made phone calls to my cell phone. I used to leave my cell phone at home whenever I went to fields for work. I am not much educated and cannot read English. I saw some messages sent in English to my Mobile by A.2. I got them read over to me through Navin-Lw.4 and asked him to enquire who sent them and from what place. He enquired and informed me that it belongs to A.2. I also asked him to send message to him to warn him not to send such messages. He accordingly sent message. I also personally warned A.2 that not to move closely with my daughter, who is younger in age. My daughter was aged 15 years by then.” 17. As seen from the evidence of P.Ws.1 and 3, they have stated that they noticed a message reading “Hai” from the mobile phone allegedly belonging to A2. Except for this, the prosecution has not adduced any evidence to establish that the appellant/A2 was following the deceased. As already pointed out, insofar as the incident that occurred on 01.09.2017 is concerned, there is nothing on record to show that the appellant/A2 followed the deceased on that particular day. Further, even the schoolmates of the deceased, who were examined as P.Ws.6, 7, 12, and 13, have not attributed any overt act to the appellant/A2. All the material prosecution witnesses have deposed only against A1. As A1 is not before this Court, the evidence adduced against him has not been discussed. Except the allegation that the appellant/A2 sent a message reading “Hai” to the mobile phone of P.W.1, there is no material on record to attribute any incriminating conduct to the appellant/A2. Even the said message has not been produced before the Court, nor has any independent evidence been adduced to establish that the appellant/A2 had sent such a message. Except for the oral assertions of 13 KSR,J & GTK,J Crl.A.No.2103 of 2018 P.Ws.1 and 3, there is no evidence to substantiate the said allegation. Thus, it is evident that absolutely no cogent evidence has been adduced by the prosecution against A2. 18. In view of the above facts and circumstances, the learned Special Judge ought not to have convicted the appellant/A2. In the absence of any cogent and reliable evidence against the appellant/A2, the conviction and sentence recorded by the learned Special Judge are unsustainable and is liable to be set aside. 19. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded by the learned Special Judge for Trial of Cases under POCSO Act-cum-I Additional District and Sessions Judge, Vizianagaram, against the appellant/A2 in POCSO S.C.No.52 of 2017, dated 05.07.2018 under Section 354-D of IPC and Section 11 read with 12 of POCSO Act is hereby set aside and the appellant/A2 is acquitted of the said charges. Fine amount, if any, paid by the appellant shall be refunded to him. As the appellant was already released on bail by this Court, his bail bonds shall stand cancelled. As a sequel, Interlocutory Applications pending, if any, shall stand closed. _____________________ K.SURESH REDDY, J _______________________ TUHIN KUMAR GEDELA, J Date : 05-03-2026 BMS