APHC010712972018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3566] WEDNESDAY, THE ELEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA CRIMINAL APPEAL NO: 2607/2018 Between: 1. G.BABU, S/O. G. GANDHI, AGED 28 YEARS, (SC) MALA, R/O. MELAPATTU HARIJANAWADA, NAGARI MANDAL, CHITTOOR DISTRICT. ...APELLANT AND 1. THE STATE OF ANDHRA PRADESH, Rep.by its Public Prosecutor, High Court of Judicature at Hyderabad. ...RESPODENT Counsel for the Appellant: 1. A GAYATRI REDDY Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) 2 Crl.A.No.2607 of 2018 IN THE HIGH COURT OF ANDHRA PRADESH:: AMARAVATI WEDNESDAY, THIS THE ELEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX SPECIAL DIVISION BENCH PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY AND THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA CRIMINAL APPEAL NO: 2607 of 2018 JUDGMENT :- (Per the Hon’ble Sri Justice K.Suresh Reddy) Accused No.1 in Sessions Case No.162 of 2014 on the file of the Court of X Additional District & Sessions Judge, Tirupati, is the appellant. The appellant/A1 along with A2 to A4 was tried by the learned X Additional District & Sessions Judge, Tirupati under the following charges. 1) First charge was under Section 302 IPC against appellant/A1. 2) Second charge was under Section 201 IPC against A1. 3) Third charge was under Section 498A IPC against A1. 4) Fourth charge was under Section 302 read with Section 109 IPC against A2 to A4. 5) Fifth charge was under Section 498A read with 109 IPC against A2 to A4. 3 Crl.A.No.2607 of 2018 6) Sixth charge was under Sections 3 and 4 of the Dowry Prohibition Act against A1 to A4. 2. Substance of the charge is that, prior to 09.06.2013, A1 to A4 demanded dowry of Rs.30,000/- and fifteen sovereigns of gold jewellery from Smt. G. Ruthamma, who is the wife of A1, and A1 used to harass her both physically and mentally, and on the intervening night of 09/10.06.2013, at about 01.00 a.m., A1 took away his five-month-old son, by name Kishore (hereinafter referred to as ‘the deceased’), and caused his death by smothering him, suspecting the fidelity of his wife, and hid the dead body by covering it with grass near the Kopeti River (Aruna Nadhi River), and thereby committed offences punishable under Sections 302, 201 and 498A read with Section 109 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act. 3. After completion of trial, learned Additional Sessions Judge, Tirupati, convicted accused No.1/appellant under Section 302 IPC and sentenced him to undergo Imprisonment for ‘LIFE’ and also to pay a fine of Rs.1,000/- (Rupees One Thousand Only), in default to suffer Simple Imprisonment for a period of three (3) months. Learned Additional Sessions Judge further convicted accused No.1/appellant under Section 201 IPC and sentenced him to undergo Rigorous Imprisonment for a period of two (2) years and to pay fine of Rs.1,000/- (Rupees One Thousand Only), in default to suffer simple imprisonment 4 Crl.A.No.2607 of 2018 for one month. Both the sentences were directed to run concurrently. Learned X Additional District & Sessions Judge, Tirupati, acquitted the appellant under Section 498A IPC and Sections 3 and 4 of the Dowry Prohibition Act. Learned X Additional District & Sessions Judge, Tirupati acquitted Accused Nos.2 to 4 of all the charges. Aggrieved by the same, appellant/A1 preferred the present Criminal Appeal. 4. Case of the prosecution, briefly, is as follows: All the accused are residents of Melapattu Harijanawada, Nagari Mandal, Chittoor District. P.W.1 is the wife of A1. A1 is the son of A2 and A3, and A4 is the sister of A1. P.W.2 is the father of P.W.1. P.Ws.3 to 7 are residents of the locality of P.W.2. (ii) Marriage of P.W.1 was performed with A1 in accordance with Christian rites and customs. At the time of marriage, the parents of P.W.1 gave her 15 sovereigns of gold jewellery. For some time, the couple led a happy matrimonial life. Subsequently, accused took away the gold jewellery given to P.W.1 and used the same for their own needs. Thereafter, the accused started harassing P.W.1 and demanded to bring cash and gold from her parental home. A1 used to beat P.W.1. (iii) When P.W.1 was in the fifth month of her pregnancy, she went to her parents’ house. A1 frequently visited the house of the parents of P.W.1 and used to quarrel with her. A1 demanded 10 5 Crl.A.No.2607 of 2018 sovereigns of gold from her parents, otherwise he would not allow her to return to the matrimonial home. P.W.1 gave birth to a male child (the deceased) in the month of January 2013. About four days prior to the date of incident, A1 visited the house of the parents of P.W.1 and demanded gold ornaments, for which, the parents of P.W.1 expressed their inability, stating that they would give some gold article to the deceased child. (iv) On 09.06.2013 at about 09.00 p.m., P.W.1 and A1, after taking dinner, slept in a room along with the deceased. The parents of P.W.1 slept outside the house. At about 02.00 a.m., P.W.1 woke up and found A1 and the deceased missing. Immediately, P.W.1 informed her parents and the villagers, and they searched for the deceased on 10.06.2013. As they could not find either the deceased or A1, P.W.1 went to the police station and lodged a report. (v) P.W.11, the Sub-Inspector of Police, Nindra Police Station, received Ex.P1-report from P.W.1 and registered a case in Crime No.26 of 2013 for the offences under Sections 498-A, 302, 201, and 109 IPC and Sections 3 and 4 of the Dowry Prohibition Act. He issued copies of FIR to all the concerned. FIR is marked as Ex.P10. Further investigation was taken over by P.W.12, the Inspector of Police, Nagari Police Station. (vi) While so, on the morning of 11.06.2013, P.W.3 found the dead body of the boy at the scene of offence. On receiving information 6 Crl.A.No.2607 of 2018 from P.W.3, P.Ws.1 and 2, along with other villagers, went to the scene of offence and found the dead body. P.W.12 proceeded to the scene of offence after securing the presence of mediators, P.Ws.7 and 8. He found the dead body of the deceased lying in the bushes and took photographs-Ex.P11. He prepared a rough sketch of the scene of offence-Ex.P12. He recorded statements of P.Ws.1 to 3 and other witnesses. Thereafter, he held inquest over the dead body in the presence of P.Ws.7 and 8. Inquest report is marked as Ex.P3. Subsequently, he sent the dead body for post-mortem examination. (vii) P.W.10, Civil Assistant Surgeon, Area Hospital, Nagari, conducted autopsy over the dead body of the deceased and opined the cause of death was due to “asphyxia.” He issued Post-Mortem Certificate-Ex.P7. (viii) P.W.12 recorded statements of P.Ws.4 to 6 and other witnesses. Then he went to Melapattu Harijanawada, Nagari Mandal, and found all the accused were absconding. On 13.06.2013, on receipt of credible information, he arrested A1 to A4 in the presence of mediators-P.W.9 and another under a panchanama-Ex.P4. (ix) At the instance of the accused, P.W.12 recovered M.Os.2 to 4 under panchanamas-Exs.P2 to P4. He sent the material objects to FSL. FSL report is marked as Ex.P8. (x) Thereafter, the investigation was taken over by P.W.13. After verifying the investigation conducted by P.W.12 and after 7 Crl.A.No.2607 of 2018 receiving all the relevant documents, and on completion of the investigation, P.W.13 filed charge sheet. 5. In support of its case, the prosecution examined PWs.1 to 13 and marked Exs.P1 to P14 and exhibited M.Os.1 to 4. 6. When A1 to A4 were examined under Section 313 Cr.P.C., they denied the incriminating evidence appearing against them. 7. Accepting the evidence of prosecution witnesses, the learned X Additional District and Sessions Judge, Tirupati convicted the Appellant/A1 and acquitted A2 to A4 as aforesaid. 8. Heard Smt. A.Gayatri Reddy, learned counsel for the appellant /Accused No.1 and Sri Marri Venkata Ramana, learned Additional Public Prosecutor for the respondent/State. 9. Learned counsel for the appellant strenuously contends that there are no eyewitnesses to the incident and that the prosecution case rests on circumstantial evidence. She further contends that the prosecution has not been able to prove a single circumstance connecting the appellant with the alleged offence. She also submits that there was no motive for the appellant to kill the deceased. 10. It is further contended that the “last seen” theory projected by the prosecution through the evidence of P.W.6 cannot be relied on. She further submits that the appellant and P.W.1 were on cordial terms 8 Crl.A.No.2607 of 2018 and that there was no reason for the appellant to kill the deceased. As such, she requests this Court to allow the present appeal by setting aside the conviction and sentence recorded by the learned X Additional District & Sessions Judge, Tirupati. 11. On the other hand, learned Additional Public Prosecutor opposed the appeal, contending that the prosecution has able to prove the “last seen” theory through the evidence of P.W.6. He further contends that the prosecution has established that the appellant was in the company of the deceased-child prior to his death. He further contends that since the deceased was last seen in the company of the Accused No.1, it is for the accused to offer an explanation in terms of the provisions of Section 106 of the Indian Evidence Act. As such, the prosecution has proved the guilt of the appellant/A1 beyond reasonable doubt on the basis of circumstantial evidence coupled with the failure of the appellant to offer any explanation. As such, he requests this Court to dismiss the appeal by confirming the conviction and sentence recorded by the learned X Additional District & Sessions Judge, Tirupati. 12. We have carefully scrutinized the entire evidence on record. 13. Since there are no direct eyewitnesses in the case on hand, the prosecution rests its case on the following circumstances: 9 Crl.A.No.2607 of 2018 1) The first circumstance relied on by the prosecution is that the deceased was found in the company of the Accused No.1 on the night of 09.06.2013. 2) The second circumstance relied on by the prosecution was that the Accused No.1 along with deceased was missing within few hours thereafter. 3) The third circumstance relied on by the prosecution is the “last seen theory”. 4) The fourth circumstance relied on by the prosecution is non- explanation offered by the appellant in terms of provisions of Section 106 of the Indian Evidence Act. 14. So far as first circumstance is concerned, the prosecution relied on the evidence of P.Ws.1 and 2. P.Ws.1 and 2, along with other witnesses, specifically stated that when P.W.1 was in the fifth month of her pregnancy, she went to her parents’ house and gave birth to a male child (the deceased) in January 2013. They also stated that appellant frequently visited the house of P.W.2. Apart from P.Ws.1 and 2, other villagers P.Ws.3 and 5, also stated that appellant used to visit the house of P.W.2 and meet P.W.1. P.Ws.1 and 2, along with other witnesses, categorically stated that about four days prior to the date of incident, the appellant visited the house of P.Ws.1 and 2. They further stated that on 09.06.2013, at about 09.00 p.m., after taking dinner, 10 Crl.A.No.2607 of 2018 P.W.1, along with A1 and the deceased, slept in a room, while P.W.2 and his wife slept outside the house. At about 02.00 a.m. on 10.06.2013, P.W.1 woke up and found the appellant and the deceased missing. Immediately, P.W.1 informed her parents and villagers, who searched for the deceased on 10.06.2013. As they could not trace the appellant or the deceased, P.W.1 went to the police station on 11.06.2013 and lodged a report Ex.P1 before P.W.11. As such, the prosecution is able to prove the first circumstance i.e. the accused in the company of deceased on the intervening night of 09/10.06.2013. 15. Coming to the second circumstance, i.e. finding of the dead body at the scene of offence, P.W.3 stated in his evidence that on 11.06.2013, he, along with one Mr. Chetty, observed something suspicious at the scene of offence. On approaching the place, he saw the dead body of a child covered with a towel and thorny plants. Immediately, he went to the village and informed the villagers. On receiving the information, P.Ws.1 and 2, along with other villagers, went to the scene of offence and found the dead body. P.W.1 identified the dead body as that of the deceased. P.Ws.1 and 2 specifically stated in their evidence that, having received information from P.W.3, they went to the scene of offence and saw the dead body of the deceased. As such, the prosecution is able to prove the second circumstance also. 11 Crl.A.No.2607 of 2018 16. Coming to the third circumstance, i.e. the “last seen” theory, the prosecution relied on the evidence of P.W.6. P.W.6 stated in his evidence that he resides adjacent to the house of P.Ws.1 and 2. He further stated that between 01.00 a.m. and 02.00 a.m. on the fateful night, while he was feeding grass to his cattle and came out for urinal, he saw the appellant/A1 carrying the deceased baby on his shoulder and going out. P.W.6 further stated that he informed the parents of P.W.1 about witnessing A1 carrying the baby on the intervening night of 09/10.06.2013. Though P.W.6 was cross-examined, nothing adverse was elicited from his evidence. Therefore, the “last seen” theory is supported with the help of P.W.6. Further, P.W.13, the investigating officer, stated in his evidence that immediately after conclusion of the inquest, he recorded the statement of P.W.6 under Section 161 Cr.P.C., and there was no delay in examining him. As such, the prosecution is able to prove the third circumstance also. 17. Coming to the last circumstance, i.e. not offering explanation by the appellant as required under Section 106 of the Indian Evidence Act, the prosecution has able to establish that the appellant was in company of the deceased prior to his death. The time gap between the appellant being last seen with the deceased and the discovery of the body was not too much. P.Ws.1 and 2 categorically stated in their evidence that after taking dinner at about 09.00 p.m. on 09.06.2013, 12 Crl.A.No.2607 of 2018 the couple slept along with the deceased inside a room. At about 02.00 a.m. on the intervening night, P.W.1 woke up and found the appellant and the deceased missing. Immediately, they started searching for the deceased but could not find him. Further, the prosecution has able to prove the “last seen” theory with the evidence of P.W.6. As the prosecution has able to prove the deceased in the company of the Accused No.1, it is incumbent on the part of the appellant to offer explanation in terms of Section 106 of the Indian Evidence Act. Absolutely no explanation is forth coming from the appellant. This circumstance can be taken as additional circumstance in establishing guilt of the Accused No.1. 18. Having analysed the entire evidence carefully, we have no hesitation to come to a conclusion that the prosecution has been able to prove the guilt of Accused No.1 beyond reasonable doubt, and there are no grounds to interfere with the conviction and sentence recorded by the learned Additional Sessions Judge. As there is no evidence against A2 to A4, the learned trial Judge rightly acquitted them. So far as the appellant/A1 is concerned, the prosecution has been able to prove his guilt beyond reasonable doubt for the offences under Sections 302 and 201 of the Indian Penal Code. 19. In the result, the Criminal Appeal is dismissed confirming the conviction and sentence passed by the learned X Additional District & Sessions Judge, Tirupati, in Sessions Case No.162 of 2014, dated 13 Crl.A.No.2607 of 2018 03.01.2018 under Sections 302 and 201 IPC. Needless to state that the period of imprisonment already undergone by the appellant/A1 shall be given set off under Section 428 Cr.P.C. Miscellaneous petitions, if any, pending in the Criminal Appeal, shall stand closed. JUSTICE K.SURESH REDDY _____________________________________ JUSTICE A. HARI HARANADHA SARMA Dt.11.03.2026 ASR 14 Crl.A.No.2607 of 2018 THE HON’BLE SRI JUSTICE K.SURESH REDDY AND THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA JUDGMENT Criminal Appeal No.2607 of 2018 (per Hon’ble Sri Justice K.Suresh Reddy) Date: 11.03.2026 ASR