Allowed

Nariboina Madhusudhan v. The State of Andhra Pradesh

Andhra Pradesh HC27 Feb 2024CRLA/613/2016

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and acquitted the appellant-accused, holding that the prosecution failed to establish guilt beyond reasonable doubt due to lack of eyewitnesses, inconsistencies in the 'last seen' theory, and insufficient corroboration from medical and recovery evidence.

What did the court decide?

Acquittal of the appellant on all charges and refund of fine amount paid.

Nariboina Madhusudhan Vs The State of… — Child Sexual Offences (POCSO) | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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WEDNESDAY ,THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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(

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HONOURABLE SRI JUSTICE K SURESH REDDY AND

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HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

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CRIMINAL APPEAL NO: 613 OF 2016

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Appeal under Section 374(2) of Cr.P.C, against the Conviction and Sentence awarded in S.C. No. 129 of 2015 on the file of the VII Additional District & Sessions Judge Gudur, SPSR Nellore District, Dated: 29th day of December, 2015.

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Between:

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RahlJSilm Masthanaiah, Aged 29 years. R/o. Chaganam^ Rajupalem Village, Sydapuram Mandal, SPSR Nellore District.

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...Appellant / Accused

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AND

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Pradesh, Rep. by its Public Prosecutor, High Court of Judicature

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...Respondent /Complainant

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Counsel for the Appellant: Sri Raja Reddy Koneti

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Counsel for the Respondent: Additional Public Prosecutor

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The Court made the following:

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HON'BLE SRI JUSTICE K.SURESH REDDY

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AND

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..'i
a

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HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

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CRIMINAL APPEAL No. 613 OF 2016

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JUDGMENT: {per Hon'ble Sri Justice K.Suresh Reddy)

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Sole accused in Sessions Case No. 129 of 2015 on the file of

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the Court of learned VII Additional District and Sessions Judge,

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Gudur (for short, 'the trial Court'), is the appellant in the present appeal. He was tried by the trial Court under the following

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charges:

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I charge was under Section 302 IPC;

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II charge was under Section 376 IPC;

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III charge was under Section 404 IPC;

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IV charge was under Section 379 IPC and

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V charge was under Section 201 IPC.

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Substance of the charge is that on 31-12-2013, the^accused caused the death of one Smt. Yamanaboina Pullamma (hereinafter

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referred to as 'the deceased') after committing rape^onherandhe

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misappropriated gold ornaments on the person of the^deceased

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and committed theft of gold ornaments and in the said process, he threw the dead body into a well situated in the nearby^fieldsand thereby committed offences punishable under Sections 302, 376, 404, 379 and 201 IPC. After completion of trial, the^trialCourt convicted the accused and sentenced him to undergo rigorous imprisonment for life and also to pay a fine of Rs.500/-,^indefault to suffer simple imprisonment for two months, for the offence under Section 302 IPC; to undergo rigorous imprisonment^forthree years and also to pay a fine of Rs.500/-, in default to suffer simple imprisonment for two months, for the offence under Section 404 IPC; to undergo rigorous imprisonment for three, years^forthe offence under Section 379 IPC and to undergo rigorous imprisonment for five years and also to pay a fine of Rs.500/-, in default to suffer simple imprisonment for two months, for the offence under Section 201 IPC and acquitted him for the offence under Section 376 IPC. All the substantive sentences were directed to run concurrently.

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Case of the prosecution as per the evidence of prosecution

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witnesses is as follows:

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The accused, the deceased and the material prosecution witnesses are residents of Chaganam Rajupalem Village of Sydapuram Mandal. All of them are eking out their livelihood^by doing agriculture. P.W.l is son and P.W.2 is younger^brotherof the deceased. P.W.l raised Green gram crop in his fields^andthe deceased used to go to the fields for watching the^{crop.Whileso,} on 30-12-2013, the deceased went to fields for protecting^thecrop from cattle and monkeys. She left the house in the^morninghours and returned home at about 1 p.m. Thereafter, the deceased^had lunch at home and left the house for fields at 2 p.m.^butshedid not return home in the evening. P.W.l and others searched^for the deceased till the night but the deceased was not^traced. On the next day morning, when P.W.l and others were in^searchof the deceased, at about 3 p.m., P.W.3 informed P.W.l^aboutthe presence of dead body of the deceased in the well of Nariboina Chinna Masthanaiah. Immediately, P.W.l and others went to^the fields of Masthanaiah, where dead body of the deceased was

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found floating on water in a naked condition. Thereafter,^P.W.l went to police station and gave a report to police. On 31-12-2013, P.W.12the then Sub Inspector of Police, Sydapuram Police Station, received Ex.Pi-Report from P.W.l and registered it as a case in crime No. 177 of 2013 of Sydapuram Police Station^under Section 302 IPC. At about 10 p.m. on 31-12-2013, P.W.13-the then Inspector of Police, Gudur Rural Circle, received^information and copy of FIR from P.W.12 and proceeded along with^hisstaff and P.W.12 to the scene of offence where they found^onenaked dead body of a woman floating on water. As it was late in night. P.W.13 posted a guard at the scene of offence. On the next day. P.W.13 went to the scene of offence and recorded a statement from P.W.l. Later, P.W.13 prepared Ex.PS-Observation Report in the presence of mediators. P.W.13 also seized M.Os.7^and10to 12 at the scene of offence. Thereafter, P.W.13 got the dead body lifted from the well and P.W.l and others identified the dead body. P.W.13 conducted inquest over the dead body in the presence of P.W.9 and another. Ex.P2 is Inquest Report. After compietion^of inquest, P.W.13 sent the dead body to Area Hospital, Gudur, for

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conducting post mortem examination. P.W. 10-Dr. Usha Nair, Civil Assistant Surgeon, Area Hospital, Gudur, conducted autopsy over the dead body at about 12.10 p.m. on 02-01-2014. P.W. 10 opined that the cause of death was due to asphyxia as a result of throttling. Final opinion of the post mortem report is marked as EX.P12. At the time of inquest, P.W. 13 recorded statements^of P.Ws.2, 3, 5, 6 and others. On 07-01-2014, on credible information, P.W. 13 arrested the accused at Venkatagirl^RTCBus Stand in the presence of P.W.9 and another. On interrogation,^the accused disclosed that he killed the deceased after committing rape and also committed theft of gold ornaments from the person of the body of the deceased. P.W. 13 arrested the accused^under Ex.P3-Panchanama and seized M.Os.l and 2-Gold ornaments from the possession of the accused under Ex.PG. On the confession made by the accused, P.W. 13 along with the accused^wenttothe pawn broker shop of P.W.8 and seized M.Os.3 and 4 under^Ex.P7. M.Os.3 and 4 are gold ear-studs, gold gundiu, gold kasulu and gold mangalasutram. On the confession made by the accused. P.W. 13 along with mediators went to barren lands of^Maheswara

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Raju and seized clothes of the deceased hanging to a stick under Ex.P8-Panchanama and marked them as M.Os.6 to 8 and 13. Subsequently, P.W.13 seized shirt and lungi worn by the accused at the time of commission of offence under Ex.P9 and marked them as M.Os.14 and 15. Subsequently, after completion of investigation, his successor-P.W.14 filed charge sheet after receipt of RFSL report.

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In support of its case, the prosecution examined P.Ws.l to 14 and marked Exs.Pl to P15 apart from exhibiting M.Os.l to 15. 5. The plea of the accused was one of denial. 6. Accepting the evidence of P.Ws.l to 6, 8 and 9,^the trial Court convicted the accused as stated supra.

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Sri Raja Reddy Koneti, learned counsel appearing for the appellant-accused, strenuously contends that there are absolutely no eyewitnesses to the alleged incident; that the prosecution rests mainly on the circumstantial evidence; that the prosecution relied on two circumstances, namely, (1) last seen and (2)^confessionof the accused led to recovery of M.Os.l to 4; that so far as last seen

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theory is concerned, the prosecution projected P.Ws.5^and 6 to prove the said circumstance but the evidence of P.Ws.5^and6 is suffering from inconsistencies and therefore no reliance^can be placed on their evidence; that so far as recovery of^M.Os.lto4is concerned, P.Ws.l and 2 did not give any descriptive particulars of the ornaments worn by the deceased at the time of offence;^that M.Os.l to 4 are not of much value and that no test identification parade has been conducted to identify the articles by P.Ws.l and 2 and therefore both the circumstances relied upon by the prosecution have not been established. He, therefore, prays to allow the appeal by setting aside the conviction and sentence recorded by the trial Court.

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On the other hand, learned Additional Public Prosecutor submits that the evidence of P.Ws.5 and 6 supports the prosecution version and they are independent witnesses;^thatso far as recovery is concerned, P.W.9-mediator was examined to speak to the alleged confession and recovery at the^{instanceofthe} accused and P.W.9 is also an independent witness and^thatsofar as the evidence of P.W.8-Pawn Broker, with whom the^accused

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pledged M.Os.3 and 4, is concerned, he also supports the prosecution case and he is also an independent witness^andas such, recovery at the instance of the accused can be^accepted. Finally, he prays to dismiss the appeal by confirming^{theconviction} and sentence recorded by the trial Court.

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We have gone through the entire evidence on record. Admittedly, the lands of the deceased and the accused^aresituated side by side intervened by a road. The presence of^thedeceased as well as the accused in their respective fields on the fateful day is natural. It is not the case of the prosecution that^boththe deceased as well as the accused were moving together^onthe fateful day. It is the specific case of the prosecution^thatthelands of the accused and the deceased are situated side by^sideandthe lands of P.Ws.5 and 6 are adjacent to their lands. It also came to light that the accused, the deceased, P.Ws.5 and 6^and other villagers were found in their respective fields attending to their agricultural operations. P.W.l raised Green gram crop^which is a creeper crop. It also came in the evidence that the distance between the agricultural lands of the accused and the^deceased

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and the village is only 500 meters. So, if anyone comes and commits an offence, it will be visible to the neighbouring people also as the standing crop is a creeper crop.

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As per the case of prosecution, it is alleged that after committing murder of the deceased, the body was dragged up to the well but no dragging marks were found by the prosecution. Further, the evidence of P.Ws.5 and 6 clearly shows that the accused as well as the deceased were working in their respective fields and both were not found together. Apart from the accused. neighbouring land owners were also present in their respective lands. It also came on record that even at 5 p.m.,^theaccused was found working in his land attending to agricultural^worksbut the deceased was not found at 5 p.m. Till 5.30 p.m. also, the accused and P.Ws.5 and 6 were present in their respective^fields but the deceased was not there in the fields. P.W.5 in his crossexamination admitted that there are no disputes between the family of the accused and the deceased. The evidence^ofP.Ws.5 and 6 is not at all helpful to the prosecution to come to a

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conclusion that the accused and the deceased were last seen together as they were found working in their respective^fields.

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Corning to the evidence of P.W.8-Pawn Broker, the^accused approached him and pledged M.Os.3 and 4 stating that they belong to his wife. As already discussed supra, much weight need not be given to the so called recovery of M.Os.3 and^4asthe prosecution did not give any descriptive particulars^ofM.Os.3and 4 that were worn by the deceased at the time of offence. The evidence of P.Ws.l and 2 would disclose that the police^didnot show them M.Os.l to 4 prior to producing the same before^Court. P.Ws.l and 2 did not give any descriptive particulars^ofM.Os.lto 4 either in report or in their statements. Therefore, it is not known how the investigating officer came to the conclusion^that M.Os.l^to 4 belong to the deceased. So far as the evidence of P.W.9-the then Village Revenue Officer is concerned, his evidence^isalsonot useful to the prosecution as he acted only as a panch^witnessfor seizure and arrest.

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So far as the evidence of P.W. 10-Dr. Usha Nair, Civil Assistant Surgeon, Area Hospital, Gudur, is concerned, she conducted post mortem examination on the dead body of the deceased on 02-01-2014 at 12.10 p.m. and opined that^thecause of death was due to asphyxia as a result of throttling. She further opined that the approximate time of death was more^than 48 hours prior to her conducting post mortem examination on 02-01-2014 at 12.10 p.m. As such, the death of the^deceased must have approximately taken place prior to 12.10 p.m. on

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31-12-2013. On opening stomach, P.W. 10 found only gases escape. As per the evidence of P.W.l, the deceased^wenttothe scene of offence at about 2 p.m. after taking lunch^athomebut P.W. 10 did not find any undigested food or semi digested^foodin the stomach of the deceased during her post mortem^examination. As such, there is no corroboration to the ocular version^ofthe prosecution by the medical evidence.

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Having carefully examined the case in its entirety^andforthe reasons recorded hereinbefore, the prosecution miserably^failedin establishing the guilt of the accused beyond all reasonable^doubt.

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In the result, the criminal appeal is allowed setting aside the conviction and sentence recorded by judgment dated 29-12-2015 in S.C.No. 129 of 2015 on the file of the Court of learned VII Additional District and Sessions Judge, Gudur. The appellantaccused is acquitted of all the charges. The appellant-accused shall be set at liberty if he is not required in any other case. Fine amount, if any, paid by the appellant-accused shall be refunded to

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him. Pending miscellaneous applications, if any, shall stand disposed of in consequence.

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Sd /- S.V.S.R. MURTHY JOINT REGISTRAR

//TRUE COPY//

SECTION OFFICER

To,

The VII Additional District & Sessions Judge, Gudur,^{SPSRNelloreDistrict} (With record)

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The Sessions Judge, Gudur, SPSR Nellore District

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The Additional First Class Judicial Magistrate, Gudur,^{SPSRNelloreDistrict}

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The Superintendent, Central Prison, Nellore, SPSR Nellore^District

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The Inspector of Police, Gudur Rural Circle, SPSR Nellore^District

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One CC to Sri Raja Reddy Koneti Advocate [OPUC] 7. Two CCs to the Public Prosecutor, High Court of Andhra^{PradeshatAmaravathi} [OUT]

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Three CD Copies

stu AL

HIGH COURT

DATED:28/02/2024

y( IV i I t

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JUDGMENT

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CRLA.No.613 of 2016

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ALLOWING THE CRIMINAL APPEAL

Nariboina Madhusudhan v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Nariboina Madhusudhan v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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