Andhra Pradesh High Court - Amravati

Kadiyala Kalesh, Hyderabad., vs The State Of Ap., Rep Pp., on 29 August, 2024

Author: K Suresh Reddy

Bench: K Suresh Reddy

                                   1
                                                                     KSR, J & SRK, J
                                                 Crl.A.No.878, 880 and 912 OF 2016



APHC010697152016
                   IN THE HIGH COURT OF ANDHRA PRADESH
                                 AT AMARAVATI             [3486]
                          (Special Original Jurisdiction)

       THURSDAY ,THE TWENTY NINETH DAY OF AUGUST
            TWO THOUSAND AND TWENTY FOUR

                               PRESENT

       THE HONOURABLE SRI JUSTICE K SURESH REDDY

    THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

                     CRIMINAL APPEAL NO: 878/2016

Between:

Kadiyala Kalesh, Hyderabad.,                            ...APELLANT

                                 AND

The State Of Ap Rep PP                           ...RESPONDENT

Counsel for the Appellant:

1. POSANI AKASH

Counsel for the Respondent:

1. PUBLIC PROSECUTOR (AP)

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

APHC010672852016 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3486] (Special Original Jurisdiction)

THURSDAY ,THE TWENTY NINETH DAY OF AUGUST TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE K SURESH REDDY

THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

CRIMINAL APPEAL NO: 880/2016

Between:

Polameti Pavan Kalya @ Babloo, Hyd & 3 Otrs., ...APELLANT(S) and Others

AND

The State Of Andhra Pradesh Rep Pp ...RESPONDENT

Counsel for the Appellant(S):

1. POSANI AKASH

Counsel for the Respondent:

1. PUBLIC PROSECUTOR (AP)

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

IN THE HIGH COURT OF ANDHRA PRADESH APHC010745662016 AT AMARAVATI [3486] (Special Original Jurisdiction)

THURSDAY ,THE TWENTY NINETH DAY OF AUGUST TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE K SURESH REDDY

THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

CRIMINAL APPEAL NO: 912/2016

Between:

B.shiva Kumar, Hyderabad & Anr., and Others ...APELLANT(S)

AND

The State Of Ap Rep Pp ...RESPONDENT

Counsel for the Appellant(S):

1. POSANI AKASH

2. Dr MAJJI SURI BABU

3. -

Counsel for the Respondent:

1. PUBLIC PROSECUTOR (AP)

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

THURSDAY, THE TWENTY NINETY DAY OF AUGUST TWO THOUSAND AND TWENTY FOUR

SPECIAL DIVISION BENCH

PRESENT THE HON'BLE SRI JUSTICE K.SURESH REDDY AND HON'BLE SRI JUSTICE K. SREENIVASA REDDY

CRIMINAL APPEAL Nos.878 of 2016, 880 of 2016 and 912 of 2016

COMMONJUDGMENT

(Per Hon'ble Sri Justice K.Suresh Reddy)

As all the three (3) Criminal Appeals arise out of the same

Sessions Case i.e. S.C.No.229 of 2011 on the file of the Family

Court cum-IX Additional District and Sessions Judge, East Godavari

District at Rajamahendravaram, they are being disposed of by way

of this common judgment.

2. Accused Nos. 1 and 2 filed Criminal Appeal No.912 of 2016,

Accused No.3 filed Criminal Appeal No.878 of 2016, Accused Nos. 4

to 7 filed Criminal Appeal No.880 of 2016 in the above Sessions

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

Case. During pendency of the Criminal Appeal No.880 of 2016, A5

died, as such the appeal against him is abated.

3. All the seven (7) accused were tried by the learned

Additional Sessions Judge under the following charges.

1) First charge was framed for the offence punishable

under Section 364 IPC against Accused Nos.1 to 6.

2) Second charge was framed for the offence punishable

under Section 302 IPC against Accused No.1.

3) Third Charge was framed under Section 302 read with

34 IPC against Accused Nos.2 to 7.

4) Fourth Charge was framed under Section 302 IPC

against Accused Nos.1 and 2.

5) Fifth Charge was framed under Section 302 read with

34 IPC against Accused Nos.3 to 7.

6) Sixth Charge was framed under Section 120-B IPC

against Accused Nos.1 to 7.

7) Seventh Charge was framed under Section 201 IPC

against Accused Nos.1 to 6.

8) Eighth Charge was framed under Section 302 r/w 109

IPC against Accused No7.

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

4. During the course of evidence, the trial Court found that

insufficient charges were framed against the accused. Hence, with

the consent of prosecution as well as defence, the learned Additional

Sessions Judge framed the following additional charges.

1) Ninth charge was framed under Section 148 read with

2) Tenth charge was framed under Section 411 IPC

against Accused No.1.

5. Substance of all the charges is that on 22.02.2010 at about

9.15 P.M., Accused Nos.1 to 6 having conspired, intercepted one

Vinnakoti Sitha Rama Kalyan (hereinafter referred to as 'the

deceased') abducted him in a Tata Indica Car bearing registration

No.AP 09 TV 2294, beat him indiscriminately and strangulated him

to death and threw the dead body into shallow valley situated 15

Kilometers away from Maredumilli Village by removing the clothes of

the deceased and set fire to his clothes for causing disappearance of

the evidence, thereby committed offences punishable under

Sections 120-B, 148, 364, 302, 201 read with 34, 149 and 109 IPC.

6. After completion of trial, the learned Additional Sessions

Judge, found Accused Nos. 1 and 2 guilty for the offence punishable

under Section 302 IPC and sentenced them to undergo

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

Imprisonment for Life and also to pay fine of Rs.5000/- each, in

default to undergo Simple Imprisonment for six (6) months.

7. The learned Additional Sessions Judge, further found

Accused No.1, guilty for the offence punishable under Section 411

IPC and sentenced him to undergo Simple Imprisonment for six (6)

months and also to pay fine of Rs.1,000/-, in default to undergo

Simple Imprisonment for one month.

8. The learned Additional Sessions Judge, further found

Accused Nos.1 to 3 guilty for the offence punishable under Section

201 IPC and sentenced them to undergo Simple Imprisonment for

three (3) years and also to pay fine of Rs.1,000/- each, in default to

undergo Simple Imprisonment for three months.

9. The learned Additional Sessions Judge, further found

Accused Nos.1 to 7 guilty for the offence punishable under Sections

364 and 120-B IPC and sentenced them to undergo Rigorous

Imprisonment for Seven (7) years for each offence and also to pay

fine of Rs.1,000/- each, in default to undergo Simple Imprisonment

for five (5) months each. The learned Additional Sessions Judge

directed all the substantive sentences imposed upon the Accused

No.1 to 3, who are found guilty, shall run concurrently.

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

10. The learned Additional Sessions Judge, however found

Accused Nos.4 to 7 not guilty for the offence punishable under

Section 201 IPC. Learned Additional Sessions Judge also found

Accused No.7 not guilty for the offence punishable under Section

302 r/w 109 IPC. Further, the learned Additional Sessions Judge

found Accused Nos.2 to 7 not guilty for the offence under Section

302 r/w 34 IPC. The learned Additional Sessions Judge also found

Accused Nos.1 to 7 not guilty for the offence under Section 148 r/w

149 IPC.

11. Case of the prosecution, as per the evidence of the

prosecution witnesses, in nutshell is as follows:-

P.W.1 is the father, P.W.2 is the wife and P.W.7 is the brother-

in-law of the deceased respectively and they are residents of

Rajahmundry. The deceased was a practicing lawyer at

Rajahmundry. P.W.23 is the wife of A1. Accused No.7 is the father of

A1. Accused No.1 is a resident of Hyderabad. Accused No.1 and

P.W.23 fell in love with each other and they got married against the

wishes of their parents. The couple started living at Hyderabad and

they were blessed with a male child. Subsequently disputes arose

between the couple and on that P.W.23 initiated Criminal

Prosecution against A1 and A7 Vide Crime No.64 of 2010 of III Town

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

Police Station, Rajahmundry. Thereafter P.W.23 also filed O.P.

against A1 seeking dissolution of marriage. The deceased being

practicing advocate used to appear on behalf of P.W.23. A1

developed grouse against the deceased as he is responsible for the

matrimonial disputes between him and P.W.23. A1 decided to

eliminate the deceased. In that connection A1 sought help of his

friends A2 to A6 and his father A7. On 22.2.2010, at about 9.15

P.M., when the deceased was going towards Prakash Nagar Park on

his motorcycle, A1 to A4 came in a car bearing registration No.AP

09 TV 2294 followed by A5 and A6 in a motorcycle intercepted the

deceased and abducted him. While going in the car, the accused

administered chloroform to the deceased and A1 beat the deceased

with an iron rod. When the deceased was struggling for life, A1 put

belt around the neck of the deceased and strangulated him with a

banian, as a result the deceased died. Later all the accused took the

dead body to a forest at Maredumilli and threw the dead body by

removing his clothes into a shallow valley and then they burnt the

clothes of the deceased. Thereafter all the accused left for

Hyderabad.

12. As the deceased did not turn up to the house, his father

(P.W.1) tried to contact him through mobile phone and it was found

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

switched off. He searched for the deceased throughout night, but he

could not trace him. On the next day, P.W.1 went to Prakash Nagar

Police Station and there he came to know that the motorcycle of the

deceased was handed over at police station by an unidentified

person. On enquiry, P.W.1 came to know that some persons have

abducted the deceased in a car. In view of the circumstance that A1

used to give threatening calls to the deceased, he gave report to the

police expressing suspicion against A1.

13. P.W.26-the then Inspector of Police, Prakash Nagar

Police Station, Rajahmundry on receipt of Ex.P1 report from P.W.1,

instructed G.Venkata Ramachandra Rao (L.W.33) the then Sub-

Inspector of Police, Prakash Nagar Police Station to register a case,

who in turn registered a case in Crime No.26 of 2010 for the offence

punishable under Section 365 r/w 34 IPC. The said FIR is marked as

Ex.P27. Later P.W.26- recorded statements of P.Ws 1 and 2 and

went to the scene of offence, where from the deceased was

abducted. He recorded the statements of P.Ws.4 to 7. He prepared a

rough sketch under Ex.P28 at the scene. P.W.1 furnished the mobile

numbers of A1, A7 and P.W.23. On 24.2.2010, P.W.23 appeared

before P.W.26 and he received her call data. He also collected the

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

call data of A1, A7 and the deceased. The same is marked as

Exs.P29 and P30.

14. On 24.2.2010, P.W.27-the then Inspector of Police, CCS,

Rajahmundry received a memo from the Superintendent of Police,

East Godavari, directing him to investigate and assist the

investigating officer. On 24.2.2010 evening P.W.27 along with his

staff went to Hyderabad in a private vehicle and reached there in the

early hours of 25.2.2010. On the same day, at about 10.00 P.M., he

secured the presence of mediators (P.W.16 and another). At about

4.00 AM on the next day he apprehended A2 and A3, who said to

have confessed about the offence. Immediately, P.W.27 informed

P.W.26 about the arrest of A2 and A3. P.W.27 also informed P.W.26

that the accused voluntarily confessed the commission of offence

and they would show the dead body of the deceased which was

thrown at Maredumilli forest. P.W.27 informed P.W.26 that they are

coming along with A2 and A3 to Maredumilli forest. P.W.26 informed

P.W.27 that he too will come to Maredumilli forest. P.W.27

proceeded to Chinthuru at about 1.00 P.M. By that time, P.W.26 was

also present along with P.W.1. A2 and A3 have shown the place

where the dead body was thrown. The said place is situated in

between Maredumilli and Chinthuru at milestone number 93/8.

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

P.W.1 identified the dead body. P.W.26 prepared an observation

report in the presence of mediators. Thereafter he altered FIR to

Sections 148, 302, 201, 365, 120-B, 379 and 109 r/w 149 IPC.

Altered FIR was marked as Ex.P32. He also got the scene

photographed through P.W.13. The photographs were marked as

Ex.P7. CD of scene observation report is marked as Ex.P33. He

also held inquest over the dead body in the presence of P.Ws 25

and 14. He recorded the statements of blood relatives i.e., P.W.1,

P.W.2 and P.W.7.

15. On requisition made by P.W.26, the Medical Officer,

Rampachodavaram, who was examined as P.W.20, conducted

autopsy over the dead body. He found the body in a decomposed

state. He opined the cause of death was due to asphyxia and

strangulation. He issued Post-mortem Certificate, which is marked

as Ex.P19. A2 and A3 were remanded to judicial custody. On the

instructions of Superintendent of Police, East Godavari District,

P.W.27 took up further investigation in this case from 01.3.2010. In

the course of investigation, he arrested A4 and A6 at Hyderabad and

recorded their confessional statements.

16. On 05.3.2010, P.W.27 visited Uma Sankar Lodge,

Rajahmundry and recorded the statement of P.W.9. On 18.3.2010

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

he also visited Chandralok Lodge and recorded statement of P.W.15

and seized the lodge registers, which are marked as Exs.P5, P6,

P12 and P41. He also recorded the statement of P.W.12, who was

working at then as Manager in GVR Infra Limited to show that the

accused travelled in a car from Hyderabad to Rajahmundry. P.W.27

also seized the vehicle movement register under Ex.P42. On

10.3.2010, P.W.27 recovered gear lever rod used for hitting the

deceased, at the instance of A2 and A3, in the presence of P.W.21

and another, which was marked as MO5 under Mediators' report-

Ex.P21. On 11.3.2010, he received information that the accused

No.1 had surrendered in Prakashnagar Police Station. On the same

day, at about 12.00 Noon, he arrested A1 in the presence of P.W.18

and another and recorded his confession statement. He seized MO3

wrist watch of the deceased from A1 under a Panchanama. On

19.3.2010, A5 also surrendered himself at about 12.30 P.M. P.W.27

arrested A5 in the presence of P.W.14 and another under a

mediators' report. On the confession made by A1, he seized MO18-

purse belonging to the deceased near the scene of offence under a

panchanama.

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

17. P.W.28 who is the successor of P.W.27 took up further

investigation. After receiving post-mortem report, FSL report and

after completion of investigation, he filed charge sheet.

18. In support of its case, the prosecution examined P.Ws.1

to 28 and marked Exs.P1 to P46 and exhibited M.Os.1 to 18. On

behalf of the defence, no witness was examined except marking

Exs.D1 to D17.

19. When the accused were examined under Section 313

Cr.P.C., they denied the incriminating material found against them in

the evidence of prosecution witnesses.

20. Accepting the evidence of prosecution witnesses, the

learned Additional Sessions Judge convicted the accused as

aforesaid.

21. Heard Sri Posani Venkateswarlu, learned Senior Counsel

assisted by Sri Posani Akash, learned counsel, appearing for A2 to

A7/appellants herein, Dr. Majji Suri Babu, learned counsel appearing

for A1/appellant herein and Sri Kochiri Anand Kumar, learned

Assistant Public Prosecutor appearing for the State/respondent.

22. We have carefully analysed the entire evidence on record.

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

23. The prosecution rests its case on the circumstantial

evidence as there are no eye witnesses to the case. The

circumstances relied on by the prosecution are;

1) Motive

2) The accused coming to Rajahmundry in Tata

Indica Car bearing registration No.AP 09 TV 2294

3) Accused staying in lodge

4) Accused abducting the deceased while he was

going to Prakashnagar police station.

5) Confession made by the accused leading to

recovery of body of the deceased, wrist watch of the

deceased and gear rod.

6) Identification of the dead body and medical

evidence.

24. So far as motive is concerned, the prosecution relied on

the evidence of P.Ws.1, 2, 7 and 23. As per the evidence of P.Ws.1,

2, 7 and 23, they stated that the deceased, who was an Advocate

filed Vakalat on behalf of P.W.23, whereby the accused developed

grudge against the deceased. It is admitted by all these witnesses in

their evidence, when they were confronted with Ex.D1 - Certified

Copy of Vakalat that one K. Jagadeesh Kumar was the counsel

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

appearing for P.W.23 in O.P.No.4 of 2010 on the file of Family Court-

cum-IX Additional District Judge, East Godavari District,

Rajahmundry. All these four (4) witnesses have specifically admitted

that the deceased was not the counsel for P.W.23 and it is K.

Jagadeesh Kumar who filed Vakalat on behalf of P.W.23. As such, it

can be safely held that the deceased was not the counsel for

P.W.23. Coming to the call details of A1 and the deceased, though

the prosecution filed the said call details, they do not meet the

requirements of Section 65B of the Indian Evidence Act, 1872. In

view of the above facts and circumstances of the case, the

prosecution is not able to prove the motive for A1 to kill the

deceased.

25. Coming to the next circumstance, i.e. the accused visiting

Rajahmundry in Tata Indica Car bearing registration No.AP 09 TV

2294, the prosecution relied on the evidence of P.W.12 who was

working as Manager at Tollgate to show that the said vehicle passed

through tollgate in between Khammam and

Suryapet. The evidence of P.W.12 also did not disclose that all the

accused travelled in the said car to Rajahmundry. It only shows that

the said vehicle passed in between Khammam and Suryapet, which

is not at all helpful to the prosecution.

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

26. The next circumstance relied on by the prosecution is that

the accused stayed in different lodges. To prove that the accused

stayed in different lodges, the prosecution examined P.Ws.9, 10 and

15. P.W.9 who was working as clerk in Uma Sankar Lodge, in cross-

examination has specifically admitted that the register does not

contain the date and time of departure, collection of amounts and

that column for signatures is left blank. He also admits that no

document in proof of identity of the customers of the lodge was

attached in the register. He also specifically admitted that he cannot

identify the customers who stayed in the said lodge. He also

admitted that the customer register does not contain his signature.

The evidence of P.Ws.9, 10 and 15 is not at all helpful to the

prosecution as the registers do not contain the identity proofs and

signatures of the accused and the managers. As such, the

prosecution could not prove this circumstance also.

27. The next circumstance relied on by the prosecution is the

evidence of P.Ws 3 to 6, who are said to have witnessed the

accused kidnapping the deceased in Tata Indica Car. But all these

four (4) witnesses did not support the case of the prosecution and

they were declared hostile. As such, the prosecution failed to prove

even this circumstance of kidnap of the deceased by the accused.

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

28. The next circumstance relied on by the prosecution is the

recovery of dead body from the scene of offence at the instance of

A2 and A3. The prosecution relied on the evidence of P.Ws. 13, 14

and 25. P.W.13 is a photographer who took photographs under

Ex.P7. So far as the evidence of P.W.14 is concerned he is working

as VRO, Rajahmundry, who acted as mediator for recovery of dead

body. According to the evidence of P.Ws. 14 and 25, at the instance

of A2 and A3 who were arrested on 26.2.2010 at Hyderabad, the

dead body was recovered on the very same day. In so far as A1 is

concerned, according to the prosecution he has surrendered on

11.3.2010. As per the medical evidence, the dead body was in highly

decomposed condition. Though the dead body was recovered at the

instance of A2 and A3 the learned Additional Sessions Judge

acquitted A3 under Section 302 IPC. As per the version of the

prosecution, A2 and A3 stands on the same footing, the learned

Additional Sessions Judge having given the benefit of doubt to A3,

the same ought to have been extended to A2 also. So far as A1 is

concerned, the so called confession made by A2 and A3 cannot be

used against A1 in convicting him under Section 302 IPC. As such,

A1 and A2 are also entitled for benefit of doubt so far as recovery of

dead body is concerned. So far as the recovery of wrist watch (MO3)

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

belonging to the deceased from the accused, the same also cannot

be taken into consideration. P.W.7- who is brother-in-law of the

deceased, in his evidence, categorically stated that he identified the

dead body with the help of wrist watch on the hand of the deceased.

If it is so, the factum of seizing of wrist watch from A1 is falsified.

P.W.27 the Investigating Officer admitted in his evidence that he has

not taken any steps to get DNA test of P.W.1 and other family

members of the deceased to tally the dead body belonging to the

deceased. As such, having scrutinised the entire evidence carefully,

we have no hesitation to come to conclusion that the prosecution is

not able to prove single circumstance to connect the accused with

the alleged offences. As already pointed out, it is not the deceased

and it is one K. Jagadessh Kumar, who is appearing for P.W.23 in

O.P.No.4 of 2010 on the file of Family Court cum-IX Additional

District Judge, East Godavari District at Rajamahendravaram.

29. In this connection, it is trite that the Hon'ble Apex Court in

a catena of judgments including the decision in Sharad Birdhichand

Sarda v. State of Maharashtra 1 , has laid down five (5) golden

principles, which govern a case based only on circumstantial

evidence:

(1981) 4 SCC 116

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) The circumstances should be of a conclusive nature and tendency.

(4) They should exclude every possible hypothesis except the one to be followed, AND

(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

30) In the case on hand, the prosecution failed to prove the

motive of A1 to kill the deceased, as it is specifically elicited in the

evidence of prosecution witnesses that one K. Jagadeesh Kumar,

Advocate was the counsel for P.W.23 but not the deceased. The

prosecution further failed to establish the abduction of the deceased

by all the accused since all the four witnesses (P.Ws 3 to 6),

examined to speak about the said kidnap, have not supported the

prosecution case. Similarly the prosecution is not able to prove the

factum of recovery of wrist watch of the deceased from the

KSR, J & SRK, J Crl.A.No.878, 880 and 912 OF 2016

possession of A1. Because P.W.7 who is brother-in-law of the

deceased in his evidence clearly stated that he identified the dead

body of the deceased with the help of the said wrist watch found to

the hand of the dead body. Similarly the prosecution also failed to

establish the factum of the accused travelling from Hyderabad to

Rajahmundry and also their stay in different lodges at Rajahmundry.