Chekuri Raja Rao A2, Guntur Dist. vs P.P., Hyd
2022 Latest Caselaw 8625 AP

       HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
                             ****

Crl.Appeal Nos.136 & 274 OF 2015

Crl.Appeal No.136 of 2015

Between:

Chekuri Raja Rao (A2), S/o (late) Yagappa, aged 30 years, Chenchulu, Reddipalem, H/o Mellavagu Village, Bollapalli Mandal, Guntur District.

....Appellant/A2.

Versus

The State of Andhra Pradesh, Rep. By its Public Prosecutor, High Court of Judicature At Hyderabad.

....Respondent/Complainant.

*****

Crl.Appeal No.274 of 2015

Between:

Akkem Ramesh Kumar @ Babu, S/o Sowraiah, M/33 years, Chenchu, D.No.29-2563, Palnadu Road, Kalyanapuri colony, Vinukonda, Guntur District.

....Appellant/A1.

Versus

The State Represented By the Inspector of Police, Challapalli Circle, Rep. By Public Prosecutor, High Court, Hyderabad.

....Respondent/Complainant.

DATE OF JUDGMENT PRONOUNCED :                  10.11.2022
 CPK, J & BVLNC, J                           Crl.A.Nos.136 & 274 of 2015
Page 2 of 50                                                 10.11.2022




SUBMITTED FOR APPROVAL:

           HON'BLE SRI JUSTICE C.PRAVEEN KUMAR

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

1. Whether Reporters of Local Newspapers may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the fair copy of the Judgment? Yes/No

________________________ C.PRAVEEN KUMAR, J

_____________________________ B.V.L.N.CHAKRAVARTHI, J CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015 Page 3 of 50 10.11.2022

*HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND * HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

+ Crl.Appeal Nos.136 & 274 OF 2015

% 10.11.2022

+ Crl.Appeal No.136 of 2015

# Between:

Chekuri Raja Rao (A2), S/o (late) Yagappa, aged 30 years, Chenchulu, Reddipalem, H/o Mellavagu Village, Bollapalli Mandal, Guntur District.

....Appellant/A2.

Versus

The State of Andhra Pradesh, Rep. By its Public Prosecutor, High Court of Judicature At Hyderabad.

....Respondent/Complainant.

! Counsel for the Appellant       : Smt. A.Gayatri Reddy


^ Counsel for the
   Respondent                     : Public Prosecutor


+ Crl.Appeal No.274 of 2015

# Between:
Akkem Ramesh Kumar @ Babu,
S/o Sowraiah, M/33 years, Chenchu,
D.No.29-2563, Palnadu Road,
Kalyanapuri colony, Vinukonda,
Guntur District.
                                                      ....Appellant/A1.
 CPK, J & BVLNC, J                           Crl.A.Nos.136 & 274 of 2015
Page 4 of 50                                                 10.11.2022




                             Versus

The State Represented By the

Inspector of Police, Challapalli Circle, Rep. By Public Prosecutor, High Court, Hyderabad.

....Respondent/Complainant.

! Counsel for the Appellant        : Sri Challa Srinivasa Reddy


^ Counsel for the
   Respondent                      : Public Prosecutor




< Gist:


> Head Note:



? Cases referred:

1. (2020) 7 Supreme Court Cases 1

2. (2014) 10 SCC 473




This Court made the following:
 CPK, J & BVLNC, J                        Crl.A.Nos.136 & 274 of 2015
Page 5 of 50                                              10.11.2022

THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

CRIMINAL APPEAL Nos.136 & 274 of 2015

COMMON JUDGMENT: - (Per Hon'ble Sri Justice B.V.L.N.Chakravarthi)

Appellant in Criminal Appeal No.274 of 2015 is

Accused No.1 and the appellant in Criminal Appeal No.136 of

2015 is Accused No.2. The appellants along with Accused No.3

(died pending trial) were tried in Sessions Case No.280 of 2008

on the file of the learned X Additional Sessions Judge, Krishna,

Machilipatnam.

2. Originally, A2 and A3 were tried for the offences

punishable under Sections 457, 397 and 302 I.P.C., and A1 was

tried for the offences punishable under Sections 457, 397 and

302 r/w 34 I.P.C., for causing the death of Pitchuka Srinivasa

Rao (hereinafter, referred to as "the deceased") by trespassing

into his house at the time of committing robbery on the night of

03.02.2008 at 9.30 p.m.,

3. Vide judgment dated 19.01.2015, the learned X

Additional Sessions Judge, Krishna, Machilipatnam convicted

accused No.2 for the offences punishable under Sections 457, CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015 Page 6 of 50 10.11.2022

397 and 302 I.P.C., and convicted Accused No.1 for the offence

punishable under Sections 457, 397 and 302 r/w 34 IPC and

sentenced Accused No.1 to undergo rigorous imprisonment for a

period of five years and also to pay a fine of Rs.2,000/-, in

default of payment of fine, to undergo simple imprisonment for

three months for the offence u/s 457 IPC, he is further

sentenced to undergo rigorous imprisonment for a period of one

year and also to pay a fine of Rs.2,000/-, in default of payment

of fine, to undergo simple imprisonment for three months for

the offence u/s 397 IPC and he was also sentenced to undergo

life imprisonment and to pay a fine of Rs.3,000/-, in default of

payment of fine, to undergo simple imprisonment for a period of

one year for the offence u/s 302 IPC. Accused No.2 was

sentenced to undergo rigorous imprisonment for a period of five

years and also to pay a fine of Rs.2,000/-, in default of payment

of fine, to undergo simple imprisonment for three months for

the offence u/s 457 IPC, he is further sentenced to undergo

rigorous imprisonment for a period of seven years and also to

pay a fine of Rs.2,000/-, in default of payment of fine, to

undergo simple imprisonment for one year for the offence u/s

397 IPC and he was also sentenced to undergo life

imprisonment and to pay a fine of Rs.3,000/-, in default of CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015 Page 7 of 50 10.11.2022

payment of fine, to undergo simple imprisonment for a period of

one year for the offence u/s 302 IPC. Challenging the said

conviction and sentence imposed by the learned X Additional

Sessions Judge, the accused 1 and 2 preferred these two

separate Criminal Appeals under Section 374(2) Cr.P.C.,

4. The facts, as culled out from the evidence of the

prosecution witnesses, are as under:

P.W.1 is the wife of the deceased, who was a retired

Ayurvedic Medical Officer and after retirement he was practicing

at their house at Nidumolu. They both were residing in their

own house opposite to Check-post, Nidumolu. Their two

daughters and one son were in London.

On 03.02.2008 at 9.30 p.m., while P.W.1 was

watching T.V., the deceased went outside to close the door of

the compound wall and to lock the mesh of the verandah, which

was being used as waiting room of patients and a room to the

north of verandah was being used as consultation

room/examination room by the deceased.

P.W.1 heard sounds from the consultation room

and her husband was shouting as „dongalu dongalu‟. Then she

rushed to the consultation room and found two culprits

pressing the neck of her husband with a towel and among them CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015 Page 8 of 50 10.11.2022

Accused No.3 was sitting on the stomach by laying her husband

on the examination table and Accused No.2 was showing a knife

to her and her husband and threatened them not to raise alarm,

otherwise they will kill them. Accused No.2 caught hold of her

„Mangala Sutram‟ chain, dragged her up to verandah and she

received injury on back of her neck. A2 attempted to remove

her gold bangles forcibly, so she removed her four bangles and

handed over to him. A2 attempted to remove her gold ring, then

she herself removed the same and handed over to him. A2

demanded money and keys of almirah, then she had shown the

keys and then A2 opened the almirah and took away the cash

from „marachembu‟. A2 also took away Sagem Company cell

phone. Thereafter, P.W.1 found missing of her ear studs,

children‟s gold rings and anklets kept in a small bag. A2 has

further taken away one Motorola cell phone and one Sony

Ericson cell phone. Later, A3 also came to the hall and both A2

and A3 tied her hands and legs towards back with two towels,

they disconnected the landline connection and another coin box

phone connection and escaped through consultation hall.

P.W.1 herself untied her hands and legs, came to

the consultation room, and found that a cloth was gagged into

the mouth of her husband and tied his both hands and there CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015 Page 9 of 50 10.11.2022

was bleeding from wound caused on front side of neck. She

removed the clothes from his mouth and then her husband said

that the culprits cut his neck and asked her to call for

ambulance. Immediately she informed the incident to her

neighbour Ramu, then 5 to 6 persons came there and

telephoned to ambulance. P.W.1 also informed about the

incident to her relative Dr. Madhava over phone. In the

meanwhile, before reaching the Ambulance, they have started to

the hospital and at Guduru Ambulance came and shifted her

husband to Government Hospital, Machilipatnam. On the same

night at 12.30 a.m., Outpost Police at Hospital recorded the

statement of P.W.1 and at 1.10 a.m., her husband died.

Basing on the statement of P.W.1, P.W.22, S.I. of

Police registered F.I.R., in Cr.No.10/2008 u/s 302 and 380 r/w

34 IPC, P.W.23 took up investigation and after completion of the

investigation, he filed charge sheet against accused 1 to 3.

5. On appearance of the accused 1 to 3, copies of the

documents as required under Section 207 Cr.P.C., were

supplied to them. As the offences are triable by a Court of

Sessions, the case was committed to the Court of the Sessions

under Section 209 Cr.P.C. Accordingly, the same was made

over to the Court of the learned X Additional Sessions Judge, CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

Krishna, Machilipatnam for trial and disposal in accordance

with law.

6. Basing on the material available on record, charges,

as referred to earlier, came to be framed, read over, and

explained the contents of the charges to the accused in Telugu,

to which they pleaded not guilty and claimed to be tried.

7. To substantiate its case, the prosecution has

examined P.Ws.1 to 25 and got marked Exs.P1 to P62 and

M.Os.1 to 17. Exs.D1 and D2 were got marked on behalf of the

accused in the evidence of P.Ws.3 and 16. After closure of the

prosecution evidence, the accused were examined under Section

313 Cr.P.C., with reference to the incriminating circumstances

appearing against them in the evidence of the prosecution

witnesses, to which they denied. No oral or documentary

evidence was adduced on behalf of the accused.

8. Relying upon the evidence on record, the learned

Sessions Judge convicted and sentenced the accused 1 and 2 as

mentioned supra. Accused No.3 died pending trial. Challenging

the same, the present appeals came to be filed by Accused 1

and 2.

CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

9. The point that arises for consideration is:

"Whether the prosecution is able to prove the guilt of the accused 1 and 2 for the offences punishable under Sections 457, 397 and 302 r/w 34 I.P.C. beyond all reasonable doubt?"

POINT: -

10. Since both the appeals arise out of the judgment in

S.C.No.280 of 2008, we feel it appropriate to decide both the

appeals by way of a common judgment.

11. Dr.Challa Srinivasa Reddy, learned Counsel

appearing for the appellant/accused No.1 contended that

learned Sessions Judge erred in believing the prosecution story

against the appellant/A1, though there is no independent oral

or documentary evidence against him and the theory of recovery

of M.Os.1 and 3 from the possession of the A1 under Ex.P31,

dt.13.03.2008 has no legs to stand in view of the evidence of

P.W.1 that on 05.03.2008 she went to Central Crime Police

Station at Machilipatnam and material objects were shown to

her and that she came to know about the arrest of the accused

in the last week of February and further the evidence of

P.Arjuna Rao (P.W.3) shows that P.W.1 told him that culprits

were arrested one month after the incident and T.Arjuna Rao CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

(P.W.4) also deposed that after one month of the incident police

asked him to come to Avanigadda Sub-Jail and after one month

of the incident he went to Police Station, Machilipatnam and at

that time two accused were in the Police Station and he was

taken to the Police Station on the ground that he consumed

toddy along with strangers and therefore, these admissions of

the material witnesses examined by the prosecution show that

the case of the prosecution that A1 was arrested on 13.03.2008

at Vinukonda is not true and correct and it probablises the

contention of the A1 that he was taken into custody by the

police in the last week of February and police planted the

material objects i.e., Cell phones as if recovered from the

accused on 13.03.2008 and they used the SIM card of the A1

and placed it in the Sony Ericson and Motorola Cell Phones

(M.Os.4 and 5) and to create evidence as if A1 used those cell

phones on 05.03.2008 soon after the alleged incident and the

call data records covered by Exs.P23, P24 and P25 and the

evidence of P.W.25, an employee of Vodafone Service Provider

does not help the case of the prosecution in any manner as they

were not supported by the required certificate under Section

65(4) (b) of the Indian Evidence Act and the investigation officer

(P.W.23) in the cross-examination stated that there is no CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

certification for Ex.P25 and he did not obtain certification as it

was not required for computer generated document and he did

not know the provision of law under which certificate is not

required on the copy generated out of the computer which was

informed by the Cellular Phone Company authorities and

further P.W.25, who is an employee of the Vodafone Company

admitted that Ex.P25 Call particulars is a photo copy and there

is no certificate under Ex.P25 call particulars of true copies and

police asked to give details only and therefore, in the light of the

judgment of the Hon‟ble Supreme Court in Arjun Panditrao

Khotkar Vs. Kailash Kushanrao Gorantyal and others

reported in 2020 (7) SCC 1, the call data records produced in

this case, which are not certified under Section 65 (B)(4) of the

Evidence Act cannot be received as evidence to prove the case of

the prosecution against the accused and the evidence of P.W.3

P.Arjuna Rao and T.Arjuna Rao/P.W.4 or Smt.M.Kumari/P.W.7

is not established anything against the accused No.1 that A1

went into the house of the deceased along with A2 and A3 on

03.02.2008 and in that view of the matter, the prosecution has

miserably failed to prove the guilt against appellant/A1, but the

trial Court without considering the above facts and CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

circumstances erroneously found the appellant/A1 guilty for the

offences punishable u/s 457, 397 and 302 r/w 34 of the I.P.C.

12. Smt. A.Gayatri Reddy, learned Counsel appearing

for the appellant/accused No.2 submitted that there are a lot of

contradictions and variations in the testimonies of the witnesses

examined for the prosecution and the evidence of P.W.1 shows

that she was not in a position to identify the accused 2 and 3 at

the time of incident on 03.02.2008 as the incident occurred in a

dark room and therefore, her identification of accused 2 and 3 is

doubtful and further Test Identification Parade was conducted

after long delay and the evidence of P.W.1 coupled with the

evidence of other witnesses shows that the accused were taken

into custody much prior to the date of alleged arrest on

13.03.2008 and they were shown to the witnesses prior to the

Test Identification Parade and the alleged recovery of Cell

Phones and Gold items from the possession of the accused No.2

is also proved to be false and further the evidence of P.Ws.3 and

4 is also not reliable as there are several contradictions in their

evidence, therefore their testimony regarding presence of the

accused 2 and 3 in front of the house of the deceased on

03.02.2008 i.e., on the date of incident and that they went into

the house of the deceased and came back and later they waited CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

in the shop of P.W.3 till evening watching the house of the

deceased etc., are not proved by credible evidence and further

the evidence of witnesses shows that at the time of inquest it

was opined that due to deceased and P.W.1 belong to different

castes and the relatives of P.W.1 did not relish the marriage of

P.W.1 and the deceased and further the deceased was having

disputes with the partners in connection with accounts of the

Petrol Bunk and therefore, it may be one of the reasons for the

death of the deceased and in that view of the matter the case of

the prosecution cannot be believed that the accused 2 and 3

committed murder of the deceased for the purpose of

committing robbery and therefore, the accused 2 and 3 are

falsely implicated in the case by the investigation officer to close

the case for statistical purpose by leaving the real culprits who

were responsible for murder of the deceased.

13. According to Sri S.Dushyantha Reddy, learned

Addl. Public Prosecutor, the case of the prosecution is that the

deceased was a retired Government Ayurvedic Medical Officer

and he was residing in Nidumolu village for the last one year

prior to the date of offence and P.W.1 is his wife and on

03.02.2008 the accused 2 and 3 came to Nidumolu and went to

the shop of P.Arjuna Rao (P.W.3), which is situated in front of CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

the house of the deceased at about 10.30 a.m., and introduced

themselves on the enquiry made by P.W.3 that they came to

Nidumolu to pluck black gram in the fields and they asked

about the deceased for some treatment and they visited the

house of the deceased and later returned to the shop of P.W.3

and at that time T.Arjuna Rao (P.W.4), who is a neighbor was

also present and he also enquired the accused 2 and 3, who

enquired him about toddy shop location in the village and that

P.W.4 along with the said accused persons visited the toddy

shop belonging to Smt.M.Kumari (P.W.7) and they consumed

toddy and returned to the shop of P.W.3 and then P.W.4 left the

shop for lunch and then one among the accused 2 and 3

informed P.W.3 that he is suffering from stomach pain and they

are sitting in the shop for rest and then P.W.3 also left the shop

for lunch and later returned to the shop at about 4.00 p.m., and

both the accused 2 and 3 were present in the shop and while so

at 5.00 p.m., accused No.1 came to the shop and met the

accused 2 and 3 and all the accused went to the road and had

discussions and then the accused No.1 left the place and

thereafter the accused 2 and 3 again came to the shop of P.W.3

and then he questioned them why they came back to his shop

and they told him that they would leave within a short time and CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

at about 5.30 or 6.00 p.m., P.W.3 went to the village to collect

amounts from the farmers and returned to his shop by 7.00

p.m., but he did not notice the accused 2 and 3 in the shop and

then P.W.3 locked his shop and went away to home.

14. The further case of the prosecution is that, on

03.02.2008 at about 9.30 p.m., P.W.1 and the deceased were in

the house and P.W.1 was watching Television and the deceased

went outside to close the doors of the compound wall and also

to lock the mesh door of the verandah of the house, which was

used as waiting hall for the patients, who are visiting the

deceased for treatment and all of a sudden P.W.1 heard sound

from consultation room and the deceased with a low voice was

crying as „dongalu dongalu‟ (thieves thieves) and then P.W.1

rushed to the hall anticipating that her husband might have

suffered electric shock and there she found the accused 2 and 3

pressing the neck of the deceased and one of the persons

among accused 2 and 3 sat on the stomach of the deceased,

who was laid on the patient‟s examination table and another

person threatened P.W.1 and the deceased not to raise any cries

and among them A3 was the person who was sitting on the

stomach of the deceased and A2 was the person wielding the

knife threatening the deceased and P.W.1 and then the A2 CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

suddenly came upon P.W.1 and caught hold of her Gold chain

having Mangala Sutrams, dragged her to verandah and as a

result she sustained injury on the back of her neck and he also

attempted to remove the Gold bangles from her hands and

thereupon P.W.1 herself removed the bangles and handed over

the same to the A2, which are identified as property in the case

and the accused also robbed gold ring (M.O.3) from P.W.1 under

the threat of knife and he also demanded her to give money

available in the house and keys of the almirah and that he

opened the almirah and taken away cash available in the

almirah and he also took away Sagem Company mobile phone

(M.O.3) and also some gold ornaments (M.Os.1 and 2) available

in the almirah and he also demanded P.W.1 to handover the

Motorola company mobile phone and Sony Ericson Company

mobile phone available in the house covered by M.Os.3 to 5 and

then both the accused tied the hands and legs of P.W.1 using

two towels available in the house (M.Os.6 and 7) and at that

time the accused 2 and 3 removed the landline connection in

the house and escaped with the booty.

15. The further case of the prosecution is that, later

P.W.1 could able to untie her knots of her hands and legs and

came to the examination room, where her husband was there CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

and found that he was gagged with a cloth and his both hands

were tied and also noticed that bleeding from the neck on front

side and then she removed the clothes from the mouth and then

deceased informed her that culprits cut his neck and asked her

to call for ambulance immediately and then she immediately

rushed to the outside and informed neighbours and somebody

called for the ambulance and she also informed her relative

Dr.Madhavi and as there was delay for reaching ambulance,

they started to the hospital in their car and when they reached

Chitti Guduru, Ambulance came to them and then the deceased

was shifted in the Ambulance and all of them went to the

Government Hospital, Machilipatnam at about 12.30 a.m., in

the night the police from Out-post Police Station of the hospital

recorded her statement under Ex.P2 and later her husband died

in the hospital at about 1.10 a.m., and on the next day i.e., on

04.02.2008 police conducted inquest and recorded her

statement.

16. The further case of the prosecution is that, the Sub-

Inspector of Police, Kuchipudi P.S., (P.W.22) received

information about the incident and he rushed to the scene of

offence on 04.02.2008 at about 3.30 p.m., and later he

registered Ex.P2 statement as Ex.P43 F.I.R., for the offences CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

punishable u/s 302 and 380 r/w 34 of the I.P.C., and took up

investigation and later P.Soma Sekhar, Inspector of Police,

Challapalli P.S., (P.W.23) conducted investigation in the case

and on 04.02.2008 Clues Team visited the scene of offence and

in the presence of mediators observed the scene of offence and

prepared Ex.P1 rough sketch and Ex.P30 scene of offence

observation report and also seized a blood stained knife

(M.O.13) and two towels (M.Os.6 and 16) and also seized a blade

(M.O.17) and a lungi cloth (M.O.11) under the cover of Ex.P30

and photographs were taken on the dead body of the deceased

with the help of Hari Krishna Prasad (P.W.13) and with the help

of panchayatdars inquest was also conducted under Ex.P29 and

dead body was sent to the hospital for post-mortem examination

and P.W.1 during examination informed about the cell phones

and other gold ornaments robbed by the offenders and he also

seized the clothes of P.W.1 under M.Os.8 to 10 and as P.W.1

stated that her husband was using Motorola and Sony Ericson

cell phones (M.Os.4 and 5), which were taken away by the

offenders, which contained BSNL SIM card with Service Number

9440326869 and 9440217950 and that the deceased was also

using Sagem Company cell phone (M.O.3) whenever the above

phones were not functioned and it was having a separate SIM CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

card and then P.W.1 was sent to hospital for medical

examination as she sustained injuries, after some time, as

immediately she could not attend for medical treatment on

account of funeral ceremonies of her husband and later he

examined the witnesses residing near the scene of offence and

recorded their statements and through Superintendent of Police

he addressed a letter to the BSNL Telephone authorities about

the Call Data Record relating to the above two numbers of BSNL

to find out the IMEI numbers of the said phone numbers and

later he received information under Exs.P23, P24 and P25 Call

Data Records indicating IMEI numbers of the said mobile

phones basing on the calls received and made from those cell

phones and then he requested BSNL, Airtel, Idea and Vodafone

authorities to provide Call Data Records if any with regard to

the above IMEI numbers and on 26.06.2008 he received

information from Vodafone Company with IMEI number with

Motorola Company mobile phone stated above was used with a

SIM card of Vodafone on 05.02.2008 by somebody and the

Vodafone Service number used on 05.02.2008 in the Motorola

phone is 9966594330 and further intimated that Sony Ericson

mobile phone with the above IMEI number was also used with

the above SIM card of Vodafone which was activated on CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

05.02.2008 and thus both the mobile phones were used with

the above service number of Vodafone on 05.02.2008 and then

he requested the Vodafone company to submit Call Data Record

relating to service number 9966594330 and the Vodafone

authorities submitted the CDRs., relating to the said SIM

intimating that the service was in the name of Akkem Sourayya,

Door No.29-2563, Kalyanapuri colony, Vinukonda, Guntur

District and then mediators and Inspector of Police, Gudivada

(P.W.21) verified the call list of Vodafone SIM card and found

that several SMS were received on 05.02.2008 and it was used

in M.Os.4 and 5 mobile phones robbed in the case and

thereupon he deputed staff to find out the said address location

in Vinukonda and P.W.21 also visited Vinukonda and on

enquiry the address was traced and therefore, on 13.03.2008 at

about 2.00 a.m., in the early hours himself and staff visited

Vinukonda village, P.W.21 has also followed them and they

reached the house of Akkem Souryya in Vinukonda village at

about 9.30 a.m., along with mediators and found two persons

aged 60 years and 30 years respectively and they revealed their

details as Akkem Sourayya and Akkem Ramesh Kumar (A1) in

the case and on enquiry Akkem Sourayya stated that the above

Vodafone No.9966594330 is in his name and it is being used by CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

his son Mr.Akkem Ramesh Kumar (A1) and then they enquired

Mr.Akkem Ramesh Kumar, who is A1 in the case and he

confessed that he was studying three years degree course in

Theology subject in Mount Zion Baptist Bible College, Nidumolu

and that he has verified M.Os.4 and 5 mobile phones on

05.02.2008 by inserting the above Vodafone SIM and on enquiry

before the mediators, he admitted that he along with the other

accused 2 and 3 sold the Golden bangles in Guntur town for

Rs.12,000/- and he detained Sagem mobile phone (M.O.3) and

M.Os.1 and 5 were given to the accused 2 and 3 and he

produced one two rows gold chain and Sagem cell phone M.Os.1

and 3 before them and then they were seized under the cover of

mediators report covered by Ex.P44 in the presence of mediators

and then he along with mediators, other police officials and the

accused No.1 went to Guntur by 4.00 p.m., and then the A1

took them to Door No.25-21-156 in Venkatappa Colony, Guntur

and there two persons i.e., A2 and A3 were present and then the

police detained them and on interrogation they disclosed about

the commission of offence in the case and police seized a Gold

ring and Sony Ericson cell phone from A2, which are available

in the house and A3 also disclosed about the commission of

offence and from his custody Motorola cell phone was recovered CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

and IMEI numbers were tallied and they were seized under the

cover of mediators report in the presence of mediators and then

all the accused were brought to the police station at Kuchipudi

and produced before the learned Magistrate for remand to

judicial custody and later the investigation officer filed

requisition before the Mobile Magistrate Court, Machilipatnam

for conducting Test Identification Parade for identification of the

offenders in the case by P.Ws.1, 3 and 4 and also took the

accused for police custody from 26.03.2008 to 28.03.3008 and

interrogated them in the presence of mediators under the cover

of Ex.P32 mediators report and then the accused disclosed that

he has thrown away the knife into the bushes situated near the

Petrol bunk at Nidumolu and A2 also disclosed that he has kept

his clothes near a place by the road side at Vijayawada R.T.C.,

bus stand, A3 disclosed that he has left the knife in the scene of

offence, which was recovered earlier and A3 further stated that

he has thrown away his clothes near APSRTC bus stand,

Vijayawada and A1 disclosed that he has been using Sagem cell

phone by putting a SIM card with Service No.9908789448 and it

is of Motorola company and it was also seized under the cover of

a mediators report and the investigation officer has also

examined the officials of the Bible College to confirm whether A1 CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

was studying in their College and the Principal of the College

Dr.K.Deva Sahayam also furnished records about the same and

also data of attendance relating to the Accused No.1 and the

police also searched the clothes near RTC bus stand, but could

not find them and the above proceedings were recorded under

Exs.P33, P34 and P35, dt.27.03.2008 and Test Identification

Parade for identification of the stolen property was also

conducted with the assistance of P.W.15 and others, where

P.W.1 identified the Golden articles and mobile phones under

the cover of Ex.P36, dt.30.03.2008 and later on 04.04.2008 the

blood stained knife was sent to RFSL, Vijayawada through

Special Mobile Magistrate, Machilipatnam and the learned

Magistrate also conducted Test Identification Parade on

05.04.2008 for identification of the accused by P.Ws.1, 3 and 4

and they identified the accused 1 to 3 in the said Test

Identification Parade and Airtel authorities furnished

information that the SIM card with Service No.9908789448 is in

the name of Utluri Nageswara Rao and later on the request of

police under Ex.P45, the General Manager, BSNL, Vijayawada

has furnished information about the Service numbers

9440326869 and 9440217950 pertaining to the deceased and

later the Superintendent of Police addressed several letters CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

under Exs.P46 to P53 to the service providers of BSNL, Airtel,

Vodafone, Idea cellular companies to provide information

relating to the above Service numbers and a letter was

addressed by the Sub-Divisional Police Officer, Machilipatnam

to R.F.S.L., Vijayawada regarding examination of knife and he

also filed a memo for alteration of section of law under Ex.P56

and later Exs.P37 and P38 RFSL report and wound certificate of

P.W.1 were received and Ex.P40 post-mortem certificate of the

deceased was also received and later on conclusion of the

investigation, he laid the police report (charge sheet) for the

offence punishable u/s 457, 397 and 302 r/w 34 of the IPC

against accused No.1 and for the offence punishable u/s 457,

397 and 302 of the IPC against accused 2 and 3.

17. The above facts and circumstances are relied upon

by the prosecution to prove the charges in the case. The

prosecution to bring home the guilt of the accused 1 to 3, has

examined as many as 25 witnesses as P.Ws.1 to 25 respectively

and filed 62 documents, which were marked as Exs.P1 to P62

respectively, apart from M.Os.1 to 17. A close scrutiny of the

prosecution evidence discloses that the prosecution has been

relying on certain pieces of evidence/ circumstances to connect

the accused No.1 with the charges for the offence‟s punishable CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

u/s 457, 397 and 302 of the IPC with the aid of section 34 of

the IPC.

18. The prosecution has been relying on certain

circumstantial pieces of evidence as well as direct evidence of

the eyewitness to prove the charges for the offences punishable

u/s 457, 397 and 302 of the IPC against accused 2 and 3.

19. When coming to the facts and circumstances relied

upon by the prosecution to prove the charges against accused

No.1, the prosecution is contending that on the date of offence

i.e., on 03.02.2008 when the accused 2 and 3 were present in

the shop of P.Arjuna Rao/P.W.3, which is located in front of the

house of the deceased, A1 met the accused 2 and 3 and had

discussions with them for some time and left the place and later

when the investigation officer received information from BSNL

authorities about the IMEI numbers of Motorola mobile phone

and Sony Ericson mobile phone robbed from the house of the

deceased and then investigation officer addressed letters to the

service providers viz., BSNL, Airtel, Idea and Vodafone to

furnish information available pertaining to the Call Data

Records with them if the above IMEI numbers are found in their

records and in response to the said requisition made by the CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

police, Vodafone authorities intimated that their CDR

information shows that the above two IMEI numbers with the

mobile phones were used on 05.02.2008 with their service SIM

card bearing No.9966594330 and that service was provided to

Akkem Sourayya with his particulars available in Vinukonda of

Guntur District and then on 13.03.2008 the investigation officer

along with other officials of the police and mediators reached

Vinukonda during morning hours and went to the house of

Akkem Sourayya as per the address particulars provided by the

Vodafone authorities and there they found the accused No.1

along with his father Mr.Akkem Sourayya and then on

interrogation it was disclosed that the said SIM card of

Vodafone company with service number 9966594330 is in the

name of father of accused No.1, but it is being used by the

accused No.1 and it was activated on 05.02.2008 and then the

accused No.1 disclosed about the commission of offence in the

case and produced M.O.1 gold property stolen from P.W.1 and

also M.O.3 cell phone and later on interrogation informed that

he has been using Motorola cell phone with SIM card with

service number 9908789448 standing in the name of his

brother-in-law Utluri Nageswara Rao and the Airtel authorities

confirmed the same and therefore, it is the specific case of the CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

prosecution that they have arrested the accused No.1 on

13.03.2008 and in pursuance of the statement of the accused

No.1 they recovered M.Os.1 and 3 from his possession available

in his house at Vinukonda and later basing on his confessional

statement they reached the accused 2 and 3 in Venkatappa

Colony in Guntur and arrested them and recovered two mobile

phones from their possession apart from the other gold

ornaments and subsequently during the Test Identification

Parade conducted for the property by Village Revenue Officer

and others, P.W.1 identified the gold ornaments as well as

mobile phones as belonging to them i.e., deceased and P.W.1

and later during the Test Identification Parade conducted for the

identification of the offenders by the learned Magistrate (P.W.24)

on 05.04.2008 P.Ws.1, 3 and 4 identified the accused.

20. The contention of the accused No.1 is that, the

story of arrest and recovery of stolen property alleged by the

prosecution is a false story and he was taken into custody much

prior to the alleged date of arrest and police planted M.Os.1 and

3 as if they were recovered from his possession and the evidence

of P.Ws.1, 3 and 4 discloses the same and as such the theory of

arrest put forth by the prosecution is false and the admissions CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

of P.Ws.1, 3 and 4 in the cross-examination probablises the plea

of the accused No.1.

21. P.W.1, who is none other than the wife of the

deceased, in her chief-examination reiterated the facts about the

accused 2 and 3 committing murder of her husband in their

house and robbing the gold ornaments and cell phones from the

house on 03.02.2008 and taking her husband to the hospital

and death of her husband in the hospital etc., and as per the

version deposed by her in the chief-examination after incident

happened on 03.02.2008 police recorded her statement under

Ex.P2 in the hospital and later on 30.03.2008 Challapalli police

asked her to come and identify her property and she identified

M.Os.1 to 5 in the presence of mediators and on 05.04.2008

under Ex.P58 she identified the accused 2 and 3. In the cross-

examination she deposed that,

"I came to know about arrest of accused in the last week of February. I went to CCS P.S., Machilipatnam on 5-3-08. Material objects were shown to me. I do not know whether the accused were in the P.S. I identified MOs.1 & 2 by informing identification particulars of my gold ornaments."

She further deposed that, CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

"It is true that in Eenadu Paper dt.4-3-08 the arrest of accused was published."

22. When coming to the evidence of P.W.3, in the chief-

examination he deposed about the accused 2 and 3 coming to

his shop in the morning hours and waiting in the shop till

evening and in the middle the said accused and P.W.4 went to

Toddy shop and coming back and he also deposed that the

accused No.1 coming to his shop and discussing with A2 and

A3 etc., and he further deposed that he identified the accused 1

to 3 before the Magistrate. In the cross-examination he deposed

that,

"P.W.1 told me that culprits were arrested one month after the incident."

P.W.4 deposed that on the date of incident he saw the accused 2

and 3 at the shop of P.W.3 and after one-month police asked

him to come to Avanigadda and he identified the accused in the

Sub-Jail and in the cross-examination he deposed that,

"After one month of incident I went to the Police Station, Bandar, behind the Bus station. After obtaining my signature police left me after obtaining all my particulars. Police took me to the P.S., as I consumed toddy along with stranger. That two culprits were in the P.S.,.....After one month police took me to Avanigadda for T.I.P." CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

23. The above facts and circumstances deposed by

P.Ws.1, 3 and 4 in the cross-examination show that after one

month of the incident which was occurred on 03.02.2008,

P.Ws.1, 3 and 4 visited the Police Station and found the accused

in the Police Station and in fact P.W.1 went to the extent that

she identified the property in the Police Station on 05.03.2008

and she admitted that arrest of the accused was also published

in a newspaper on 04.03.2008, which corroborates her evidence

that she went to the police station on 05.03.2008 for

identification of the property. These circumstances probablise

the contention of the accused No.1 that he was detained long

prior to the date of alleged arrest on 13.03.2008, creating a

reasonable doubt in our mind that the story of arrest and

recovery put forth by the prosecution may not be true story and

something was happened prior to the date of 13.03.2008 and

later for the best reasons known to P.W.23 it was pressed into

service on 13.03.2008 as if the accused were arrested on that

day and the material objects, including the mobile phones were

recovered from them.

24. When coming to the Call Data Records, the

prosecution is intending to rely upon the C.D.Rs., provided by

BSNL, Vodafone authorities under Exs.P23 to P25 and Ex.P62 CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

covering letter produced by P.W.25 of Vodafone company.

Admittedly, the Call Data Records available in the case were not

certified under Section 65(B)(4) of the Indian Evidence Act. The

investigation officer/P.W.23 was cross-examined on this aspect

by the defence. In the cross-examination he deposed that,

"There is no certification in the Ex.P-23 as to who issued the particulars but the witness says that he did not obtain such certification as it is not required for computer generated document. I do not know the provision of law under which the certification is not required on the copies generated out of the computer but, it is so informed by the cellular phone company. I did not record such statement from the furnisher of Ex.P-23. Ex.P-25 contained two pages and it contains certification of the furnisher on the list of calls but not on the other page."

P.W.25 is an employee from Vodafone Company, Vijayawada.

She deposed that as per the request of police under Ex.P53 their

company issued Ex.P25 CDR relating to the 9966594330, which

was said to be in the name of the father of accused No.1 to say

that this number was used in Motorola cell phone (M.O.4) and

Sony Ericson cell phone (M.O.5) by the accused No.1 on

05.02.2008 soon after the offence in the case. P.W.25 says that

the details covered by Ex.P25 C.D.R., were taken from computer

system available in their company and they have provided the CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

details on the request of police under the covering letter and in

the cross-examination she deposed that they have not certified

Ex.P25 as true copies and they issued the same on the request

of police and the defence contended that this is not copy of the

original. This shows that Ex.P25 which is a C.D.R., pertaining

to Vodafone service number said to be in the name of the father

of accused No.1. Admittedly, the prosecution did not examine

the father of the accused No.1. No reason has been assigned for

not examining the father of the accused No.1. Further, the

prosecution also did not choose to examine Utluri Nageswara

Rao to prove that Motorola service number 9908789448 is in

his name and that it was used by the accused No.1 at the

relevant point in time to support the case of the prosecution

that it was used in M.O.3 Sagem mobile phone. The Hon‟ble

Apex Court in a recent judgment in Arjun Panditrao Khotkar

Vs. Kailash Kushanrao Gorantyal and others1 held that,

"60.It may also be seen that the person who gives this certificate can be anyone out of several persons who occupy a „responsible official position‟ in relation to the operation of the relevant device, as also the person who may otherwise be in the „management of relevant activities‟ spoken of in Sub-section (4) of Section 65B. Considering that such certificate may also be given long after the electronic record has actually been produced by the computer, Section 65B(4) makes it clear that it is

(2020) 7 Supreme Court Cases 1 CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

sufficient that such person gives the requisite certificate to the "best of his knowledge and belief" (Obviously, the word "and" between knowledge and belief in Section 65B(4) must be read as "or", as a person cannot testify to the best of his knowledge and belief at the same time).

61. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly "clarified" in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.

62. In view of the above, the decision of the Madras High Court in K. Ramajyam (supra), which states that evidence aliunde can be given through a person who was in-charge of a computer device in the place of the requisite certificate under Section 65B(4) of the Evidence Act is also an incorrect statement of the law and is, accordingly, overruled."

25. In the light of the principles laid down by the

Hon‟ble Apex Court, the requirement u/s Section 65B(4) is a

condition precedent to the admissibility of evidence by way of

electronic record as held in Anvar P.V., Vs. Basheer reported in

(2014) 10 SCC 473 and any amount of oral evidence in the CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

place of such certificate cannot possibly suffice as Section 65-B

(4) is a mandatory requirement of the law and Section 65-B (4)

of the Evidence Act clearly states that secondary evidence is

admissible only if led in the manner stated and not otherwise

and to hold otherwise would render Section 65-B (4) otiose and

the Hon‟ble Supreme Court in the above judgment has observed

that the view clarified in Shafhi Mohammad Vs. State of H.P.,

reported in (2018) 2 SCC 801 case is incorrect and further

held that the decision of the Madras High Court in

K.Ramajayam Vs. State reported in 2016 Crl.L.J., 1542 that

evidence aliunde can be given through a person who was in-

charge of a computer device in the place of the requisite

certificate under Section 65-B (4) of the Evidence Act, is also

incorrect statement. In the light of the above law, the evidence

of P.W.25 will not improve the case of the prosecution in the

absence of requisite certificate under Section 65-B (4) of the

Evidence Act in respect of Ex.P25 C.D.Rs., pertaining to service

number 9966594330 said to have been used by A1 in M.Os.4

and 5 mobile phones on 05.02.2008 to rope him with the

charges in the case with the aid of Section 34 of the I.P.C.,

26. The only circumstance now remained against the

accused No.1 in the case is that P.W.3 deposed that on CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

03.02.2008 the accused No.1 came to his shop at about 5.00

p.m. and had some discussions with A2 and A3. P.W.4 did not

depose that he saw the A1 on that day when he came to the

shop of P.W.3. Hence, there is no corroboration to the evidence

of P.W.3 with regard to the allegation of A1 met A2 and A3 at his

shop and had some discussions.

27. The learned Addl. Public Prosecutor relied upon the

judgment of the Hon‟ble Apex Court in Geejaganda Somaiah

Vs. State of Karnataka reported in (2007) Supreme Court

Cases 315 in respect of the circumstantial evidence against A1.

But we are of the opinion that this judgment will not help the

case of the prosecution in the light of the above facts and

circumstances in the case on hand as the prosecution story

about arrest of the accused No.1 and alleged recovery is proved

to be doubtful in view of the evidence of P.Ws.1, 3 and 4 as the

arrest was made prior to 13.03.2008.

28. In the light of the above discussion, we are of the

considered opinion that, that piece of evidence from the

testimony of P.W.3 will not establish the case of the prosecution

to rope the accused No.1 for the offences punishable u/s 457,

397 and 302 IPC with the aid of Section 34 of the I.P.C., In that CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

view of the matter, in our considered opinion the trial Court

erred in holding that the prosecution proved the guilt of the

accused No.1 beyond reasonable doubt for the offences

punishable u/s 457, 397 and 302 r/w 34 of the I.P.C., and

consequently, it is liable to be set aside.

29. When coming to the case against the accused 2 and

3, as already stated supra, the case of the prosecution is not

only based on circumstantial evidence, but also on the

eyewitness testimony to prove that the accused 2 and 3

committed the alleged overt acts as per the story of the

prosecution.

30. P.W.1 is the wife of the deceased in the case. In her

evidence she categorically deposed that on 03.02.2008 at about

9.30 p.m., while she was watching Television, her husband to

lock the doors of the compound wall gate went outside and after

some time she heard the cries of her husband from the

consultation room in raising alarm as „thieves‟ and immediately

she rushed to the said room and found A3 sitting on the

stomach of the deceased and A2 pressing the neck of the

deceased and then A2 came upon her wielding a knife and

threatened her to kill the deceased and A2 caught hold of her CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

gold chain having Mangala Sutrams and pulled her towards

verandah and in that process she suffered injuries on the back

of neck and then he threatened her with dire consequences and

robbed the gold chain, gold bangles and other gold ornaments

worn by her at that time and also took her into the house and

made her to open the almirah and robbed the cash available in

the almirah along with some other gold ornaments found in the

almirah and later tied her hands and legs with two towels

(M.Os.6 and 16) and then both the accused escaped with the

booty and then after some time she could able to untie the

towels and went to the consultation room and found that blood

was coming from the neck of the deceased and deceased

informed her that the accused cut his neck and therefore asked

her to call for the ambulance immediately and then she came

out and called the neighbours and some of them made phone

call to the ambulance, but as blood was oozing out, the

deceased was shifted through the car and on the way to the

hospital, ambulance came and then the deceased was shifted to

the Government Hospital, Machilipatnam in the ambulance and

there the deceased succumbed to the injuries at about 1.10

a.m., in the night and the out-post police came there and Head

Constable recorded the statement of P.W.1 under Ex.P2 and CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

later S.I. of Police (P.W.22) basing on Ex.P2 registered F.I.R.,

under Ex.P43 and subsequently P.W.23 conducted investigation

by visiting the scene of offence, prepared a rough sketch of the

scene of offence under Ex.P1 and the inquest was also

conducted over the dead body of the deceased under Ex.P29

and the dead body was sent for post-mortem examination vide

Ex.P40 and later the investigation officer examined the

witnesses and recorded their statements and during the course

of investigation letters were addressed to the BSNL to find out

IMEI numbers of the Motorola phone, Sony Ericson phone and

basing on the information provided by BSNL he identified IMEI

numbers and then he addressed letters to the service providers

of the BSNL, Airtel, Idea and Vodafone to provide CDRs., for

said IMEI numbers and Vodafone responded providing Ex.P25

C.D.Rs., saying that the service number 9966594330 was used

on 05.02.2008 and it belongs to one Akkem Sourayya, father of

A1, who was residing in Vinukonda and accordingly on

13.03.2008 they visited Vinukonda and went to the house of

father of the A1 and there they found father of the A1 and on

interrogation A1 confessed about the offence and seized M.Os.1

and 3 and later basing on his statement arrested A2 and A3 in

Guntur and recovered other mobile phones and gold ornaments CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

and subsequently P.W.1 identified property in Test Identification

Parade and P.Ws.1, 3 and 4 identified A1 to A3 in T.I.P.,

conducted by the Magistrate on 05.04.2008 and after

conclusion of the investigation laid police report (charge sheet)

against the accused.

31. P.W.1, who is wife of the deceased in her evidence,

without any amount of doubt, has identified the accused 2 and

3 as the thieves who came to her house on 03.02.2008 at about

9.30 p.m., and who committed the overt acts in attacking her

husband and robbing the gold ornaments as well as mobile

phones and her evidence shows that when A2 asked her by

catching hold of gold chain available in her neck, she sustained

injury. The evidence of doctor P.W.18 coupled with Ex.P39

wound certificate disclose that he examined P.W.1 on

07.02.2008 at about 2.45 p.m., and found a linear abrasion of 4

x 12 cm., on right side neck and mubril linear abrasion of ½ x

½ present on the back of neck and also found multiple

abrasions present on both legs above ankle joint and all the

injuries are simple in nature and he issued Ex.P39. Nothing

was elicited in his cross-examination or in the cross-

examination of P.W.1 to say that this evidence is not reliable, or

it was planted to create some piece of evidence. The CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

investigation officer gave a plausible explanation for delay of

examination of P.W.1 stating that she could not attend for

medical examination as her husband died in the hospital on the

night of 03.02.2008 and immediately she attended for funeral

ceremonies. Thus, this piece of medical evidence and the oral

testimony of P.W.1 supports the case of the prosecution and

probablises the case of the prosecution that these injuries were

caused on the neck of P.W.1 when A2 caught hold of her gold

chain and pulled her towards verandah and further the

abrasions on the legs above the ankle shows that due to tying of

the towel she might have sustained the above abrasions. The

evidence of P.Ws.3 and 4 further shows that the accused 2 and

3 have spent whole day on 03.02.2008 at the shop of P.W.3,

which is located in front of the house of the deceased for the

reasons best known to them and they also went into the house

of the deceased once and it was noticed by P.W.3 and his

evidence further established that the accused 2 and 3 were

present there till P.W.3 left the shop in the evening around 5.00

p.m. Therefore, the case of the prosecution probablises that the

accused 2 and 3 waited for the time of opportunity during night

time to enter the house of the deceased and after entering the

house of the deceased they have committed the overt acts, CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

which are deposed by P.W.1. Hence, the version of P.W.1 is

inspiring confidence in our minds to believe the case of the

prosecution that the accused 2 and 3 after gaining entry into

the house of P.W.1, attacked the deceased before P.W.1 went

into the consultation hall and on seeing P.W.1, A2 went to her

and caught hold of her gold chain available in the neck and

pulled her and as a result she sustained injury on the neck and

then as deposed by P.W.1 he robbed all the gold ornaments

available on her body and later took her to the almirah and

made her to open it and robbed the money and other gold

ornaments available in the almirah and later tied her hands and

legs with the aid of towels available in the house and then ran

away with the booty. No explanation is forth coming from the

accused 2 and 3 in their examination u/s 313 of Cr.P.C., as to

why they have waited in front of the house of the deceased from

the morning till late evening and why they entered into the

house of the deceased at one point in time during noon time

and further the prosecution in order to support their case also

examined one more witness P.W.16. He deposed that on

03.02.2008 two persons came to his shop and purchased knives

and two vegetable knives at about 10.00 a.m., and he identified

M.Os.13 and 14 as the said knives. It is pertinent to note down CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

that M.O.13 was recovered from the scene of offence as per the

evidence of the mediators and the investigation officer covered

by scene offence observation report Ex.P30. It was also sent to

RFSL for examination and as per RFSL reports vide Exs.P37

and 38 human blood was found on the said knives. In the

cross-examination he deposed that after one-month police came

to his shop along with accused and then he has identified them.

This piece of evidence will not whittle down his evidence in the

chief-examination that A2 and A3 came to his shop on

03.02.2008 and purchased M.Os.13 and 14 knives.

32. K.Rama Mohana Rao/P.W.2 is a neighbor to the

house of the deceased. As per his evidence, on 03.02.2008 at

about 10.00 p.m., P.W.1 raised cries and he woke up and then

she informed them that thieves attacked in the house and beat

her husband and at that time P.W.1 and her husband came out

and they noticed blood coming from the neck of the deceased.

N.China Babu/P.W.5 deposed that on 03.02.2008 at about 9.30

p.m., one Srikanth came to him and told that an attack was

made on the doctor by some thieves and they cut his throat and

that they all went to the residence of the doctor and called 108

ambulance and the doctor was omitting at that time and then

they tried to shift the doctor in the car and on the way to the CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

hospital, ambulance came and they shifted the doctor to the

hospital and from his evidence it is revealed that doctor received

cut injury on his throat and the doctor told him that culprits

cut his throat with some weapon. So, it is very clear that soon

after the incident the deceased informed the neighbours also

that the assailants cut his throat with a weapon. P.W.1

evidence established that the said assailants are none other

than A2 and A3. P.W.6 is another neighbor, who deposed that

on the date of incident he was informed by Srikanth that there

was an attack on the doctor and an injury was caused and

blood was coming from the neck of the doctor and he went to

the house of the doctor and P.W.1 informed him that two

thieves came to the house and cut the throat of the doctor and

then ambulance was called and in the meanwhile the doctor

was shifted in the car of the doctor and on the way to the

hospital 108 ambulance came and the doctor was shifted to the

hospital in the ambulance. Therefore, the evidence of

neighbours of P.W.1 corroborated the evidence of P.W.1 and it

also shows that the doctor was alive at that time and informed

them that two assailants attacked him and one of them cut his

throat with a weapon and the evidence of P.W.1, as already

stated supra, established that A3 was sitting on the stomach CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

and A2 was doing violence on the neck of the deceased. So, it

indicates and establishes that the overt acts of A2 and A3

caused death of doctor and the evidence of doctor/ P.W.19, who

conducted post-mortem examination corroborated by Ex.P40

post-mortem certificate shows that the cause of the death was

due to shock with edema of neck due to multiple injuries

around the neck and chest prior to 10 to 20 hours from the time

of post-mortem examination and his evidence discloses that

ante-mortem injuries were found on the neck showing incised

wounds on the neck of the deceased, supporting the case of the

prosecution that the death was caused due to cutting the neck

with a sharp weapon like M.O.13 knife.

33. The contention of the A2 and A3 that in the inquest

report it was stated that the offence might have happened due

to disputes between the partners of the Petrol Bunk or due to

love marriage of the deceased and P.W.1, which was happened

30 years ago etc., have no legs to stand and nothing was elicited

from any of the witnesses probablising the said version.

34. The decision relied upon by the learned counsel for

A2 in Musheer Khan @ Badshah Kham and another V. State

of Madhya Pradesh reported in 2010 (1) ALD (Crl.) 813 (SC) CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

will not help the case of the A2 in the light of the evidence of

P.Ws.1, 3 and 4 and neighbours which established the overt

acts of A2 and A3 in respect of the offences in the case. Motive

will not play any vital role when eyewitness‟s evidence is cogent,

convincing, and reliable leading to a conclusion that the

accused 2 and 3 have committed murder of the deceased and

robbed the property from the house by gaining wrongful entry

into the house for committing robbery and murder.

35. The learned counsel for the accused No.2 relied on

the decision of Hon‟ble Supreme Court in D.Thamodaran Vs.

Kandasamy and another reported in (2015) 16 Supreme

Court Cases 758 on the aspect of delay in lodging the FIR is

fatal to the case of the prosecution. But the facts and

circumstances in the case show that immediately after the

incident the deceased was taken to the Government Hospital,

Machilipatnam and there at about 12.30 a.m., in the night

police from Out-Post P.S., Head Constable recorded the

statement of P.W.1 under Ex.P2 and it was registered as F.I.R.,

vide Ex.P43 by the Sub-Inspector of Police/P.W.22 on receipt of

Ex.P2 statement and after visiting the scene of offence and in

that view of the matter, the contention of the defence that there

was a delay in registering the F.I.R., is not tenable and the CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

judgment of the Hon‟ble Apex Court relied upon by A2 will not

help the case of the defence.

36. In the light of the above facts and circumstances,

we have no hesitation to hold that the prosecution has proved

the guilt of the accused 2 and 3 for the offences punishable u/s

457, 397 and 302 of the I.P.C., beyond all reasonable doubt. A3

is no more, and he died pending trial of the case. In that view of

the matter, we do not find any merit in the appeal filed by the

accused No.2 and consequently the appeal fails, and the

conviction and sentence imposed by the learned Sessions Judge

for the above-mentioned offences shall be sustained.

37. In the result, we allow the appeal filed by accused

No.1 in Crl.A.No.274 of 2015 and therefore, the conviction and

sentence imposed against him by the learned Sessions Judge by

the judgment dt.19.01.2015 in S.C.No.280 of 2008 on the file of

X Addl. Sessions Court, Krishna, Machilipatnam for the offences

punishable u/s 457, 397 and 302 r/w 34 of the I.P.C., is set

aside and therefore, he shall be released forthwith, if he is not

required in any other case, and the fine amount, if any, paid by

accused No.1 shall be refunded to him, after expiry of appeal

time.

CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

The appeal filed by accused No.2 in Crl.A.No.136 of

2015 is dismissed, confirming the conviction and sentence

passed by the learned Sessions Judge by the judgment

dt.19.01.2015 in Sessions Case No.280 of 2008 on the file of X

Addl. Sessions Court, Krishna, Machilipatnam, for the offences

punishable u/s 457, 397 and 302 of I.P.C.,

_______________________________ JUSTICE C. PRAVEEN KUMAR

_________________________________ JUSTICE B.V.L.N. CHAKRAVARTHI

Date : 10.11.2022 dvsn CPK, J & BVLNC, J Crl.A.Nos.136 & 274 of 2015

10.11.2022

THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

CRIMINAL APPEAL Nos.136 & 274 of 2015

Date : 10.11.2022

dvsn