IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY FIRST DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE V.SURI APPARAO CRIMINAL APPEAL Nos.1106, 1477 & 1294 of 2007 CRIMINAL APPEAL No.1106/2007 Between: Maganti Borriah .....APPELLANT/ACCUSED No.1 AND The State of Andhra Pradesh, Rep.by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .....RESPONDENT CRIMINAL APPEAL No.1477/2007 Between: Vurati Sreenu .....APPELLANT/ACCUSED No.2 AND The State of Andhra Pradesh, Rep.by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .....RESPONDENT CRIMINAL APPEAL No.1294/2007 Between: Munagadu Ramanjaneyulu .....APPELLANT/ACCUSED No.3 AND The State of Andhra Pradesh, Rep.by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE V.SURI APPARAO CRIMINAL APPEAL Nos.1106, 1477 & 1294 of 2007 COMMON JUDGMENT: (per Hon’ble Sri Justice V.Eswaraiah) These three Criminal Appeals are filed by all three accused individually against the same judgment in SC.No.143/2006 on the file of the X Addl.District & Sessions Judge (FTC), Guntur at Narasaraopet dated 25.06.2007, where under the Sessions Court acquitted all the three accused for the charge under Sec.201 IPC. Under the same judgment, A1 was convicted for the charge under Sec.302 IPC and sentenced to suffer life imprisonment and to pay a fine of Rs.10,000/- in default to suffer simple imprisonment for two years. A1 was also convicted for the charge under Sec.376(2)(g) IPC and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/- in default to suffer simple imprisonment for one year. Under the same judgment, the Sessions Court also convicted Accused Nos.2 and 3 for the charge under Sec.302 IPC and sentenced to suffer life imprisonment and to pay fine of Rs.500/- each, in default to suffer simple imprisonment for one year each. A2 and A3 were also convicted for the charge under Sec.376(2)(g) IPC and sentenced to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.500/- each, in default to suffer simple imprisonment for one year each. Aggrieved by the same, Accused Nos.1 to 3 filed these three Criminal Appeals individually. 2. The case of the prosecution, in brief, is that the deceased Mannem Lakhmi belongs to Brahmanpalli village, Piduguralla Mandal, Guntur District and her parents PWs 2 and 3 and brother PW 1 are eking out their livelihood by doing cultivation. On 19.06.2003 their she-buffalo was found missing. On 20.06.2003 the parents of the deceased went towards Tummalacheruvu and PW 1, the brother of the deceased and deceased went towards Pinnalli tank in search of the missing she- buffalo. The parents of the deceased PWs 2 and 3 returned back in the evening, but the deceased did not return and therefore, PW 1 and other people went in search of the deceased on 20th as well as 21st of June 2003, but they could not found the deceased anywhere. On 22.06.2003 at about 2 p.m. they came to know through one Yadava boy i.e. PW 4 of Gandhinagar that the dead body of the deceased was found lying in the Pinnelli tank. PW 4 found the dead body of the deceased in rubber plants when he went there for grazing his cattle. Then PW 1, along with other villagers went and saw the dead body of the deceased in Pinnelli tank. They also observed that the deceased was found dead and her clothes were removed and she was killed by tightening with cloth around her throat. Therefore, they have strong suspicion that somebody might have killed the deceased. 3. It is the case of the prosecution that on 20.06.2003 early hours at 6 a.m. the accused who are in habit of consuming liquor were found consuming liquor. The accused having noticed the deceased Mannem Lakshmi, took advantage of her loneliness and as an opportunity, in pursuance of their evil intention, the accused one after another raped the deceased forcibly. When the deceased fell down with groaning, the accused afraid that if the deceased is alive she would inform the matter in the village, and therefore, with an intention to kill her thereby to cause disappear the evidence of rape, the accused torn the petty coat from the person of the deceased and made strangulation around the neck and thereby killed the deceased. After commission of the offence, the accused took the silver anklets from the person of the deceased and decamped. PW 1 gave report to the police. 4. Basing on the said report given by PW 1, PW 10 registered a case in Cr.No.125/2003 for the offence under Sec.302 of IPC of Piduguralla Police Station and issued Ex.P19 FIR. PW 9 the Inspector of Police took up investigation and visited the scene of offence on 22.06.2003 in the evening hours and on 23.06.2003 he inspected the scene offence in the presence of witnesses which is at a distance of 3 kilometers north to Brahmanapalli village which was called as Pinnelli tank. The said tank was dried up. Thereafter, he conducted inquest over the dead body of the deceased in the presence of witnesses and after examining the witnesses, the dead body was sent for post mortem examination. PW 8 conducted post mortem examination and issued Ex.P9 post mortem certificate. 5. During course of investigation, on 03.08.2003 PW 9 arrested A1 and A2 in the presence of witnesses and recorded their confessional statements and seized M.O.1 silver anklets of the deceased from the house of A1 under cover of Panchanama and sent the accused for judicial custody. On 09.09.2003 A3 himself surrendered before the trial Court and he was sent for judicial custody. After receiving the report from the Regional Forensic Science Laboratory and final opinion from the Medical Officer, PW 9 filed charge sheet. 6. On appearance of the accused, the learned Sessions Judge framed the charges against all the accused under Sec.376(2)(g), 302 and 201 IPC, read over and explained to them in Telugu, for which they pleaded not guilty and claim to be tried. 7. In support of its case, the prosecution examined PWs 1 to 10 and got marked Exs.P1 to P19 and Mos.1 to 5. The accused were examined under Sec.313 Cr.p.c. and they denied the incriminating evidence adduced against them. 8. As already stated, on an analysis of both oral and documentary evidence, the learned Addl.Sessions Judge acquitted all the accused for the offence under Sec.201 IPC and convicted them for the offence under Sec.302 and 376(2)(g) IPC and sentenced them, as stated supra. Aggrieved thereby, these three criminal appeals have come up by A1 to A3 individually. 9. PW 1 is the brother of the deceased and he gave Ex.P1 report to the police. He stated that the deceased Lakshmi is his second sister and themselves and accused belong to Brahmanapalli village of Piduguralla Mandal, Guntur District. He stated that he know all the accused. On 19.06.2003 one of their she-buffalos was missed. On that day his parents searched for the same, but could not trace it. On the next day, his parents went on search of she-buffalo towards Tummalacheruvu and traced out the same. Himself and his deceased sister Lakshmi went on search for the missing she-buffalo and went towards Gandhinagar area. There they found A1 to A3 consuming liquor at Pinnelli tank. He directed his sister Lakshmi to go to the house and he was there when she crossed the accused and then he proceeded towards Gandhinagar area and returned to the house in the evening. Thereafter, his parents were also returned with the missing buffalo. But his sister Lakshmi had not returned to the house. Therefore, himself and his parents and other villagers started searching on 20.06.2003 for the deceased Lakshmi and returned after sunset. Again on the next day i.e. 21.06.2003 himself, his parents and some other villagers started searching for deceased Lakshmi, but they could find the deceased. On 22.06.2003 at about 2 p.m. PW 4- T.Subbarao informed them at their house that a dead body of a girl was found near Pinnelli tank, then they rushed there and found the dead body of Lakshmi lying in the midst of rubber plantation near Pinnelli tank. They found the cheeks of deceased Lakshmi had nail marks, inner wear worn under the Panjabi dress by the deceased Lakshmi was tied to the neck of the deceased Lakshmi. Then he submitted Ex.P1 report to Piduguralla police station which contains his signature. The police visited the scene and returned back due to sunset. On the next day at about 7 a.m. police visited the scene and conducted inquest over the dead body of the deceased Lakshmi in his presence and in the presence of his parents, grand-mother and Panchayat Secretary PW 5. The deceased Lakshmi wore red coloured nylon panjabi dress by the time of her death. She wore silver anklets when she went out of the house. But the said anklets were found missing from the dead body of the deceased. The house of A1 is opposite to their house, and A1 used to make gestures against deceased Lakshmi with an evil desire and used to wink at the deceased Lakshmi. Though the deceased informed about the teasing of A1, but they observed silence and patience as the deceased Lakshmi’s marriage prospects would be disturbed if they make it as big issue. After his teasing became unbearable, they informed the same to Piduguralla Police Station two or three times and police called A1 an gave warning. After coming out of Piduguralla Police Station, A1 threatened them that he will see their end and as they gave report against him and so saying he went away. A1 to A3 used to consume ganga and liquor and move in the village in irresponsible manner and used to tease woken folk. 10. PW 2, the father of the deceased, corroborated the evidence of PW 1. He stated that after receiving the information through PW 4 about the dead body of the deceased at Pinnelli tank, they rushed to the scene and found the dead body of the deceased. PW 1 gave report to police. He further stated that A1 used to wink at Lakshmi and used to tease her and the deceased Lakshmi informed the same to him, but he has not made it as big issue, though A1 teased the deceased for about four times. When the teasing became unbearable, he complained the same to Piduguralla Police station and the police admonished A1. He further stated that after coming out of Piduguralla Police Station, A1 threatened that he will see their end as they complained against him. A1 to A3 used to consume liquor in the village and move in riffraff manner in the village. The women folk of their village are scared of going out of their houses because of the accused. They are scared even to go out of their houses for attending their natural calls, and A1 to A3 committed this type of atrocities in the village two or three times. In the chief examination, he stated that silver anklets were found missing from the dead body, but in the cross examination he admitted that he saw anklets of Lakshmi worn by her two or three days prior to her death. Again he saw the anklets at the time of inquest, worn by deceased Lakshmi. 11. PW 3, the mother of the deceased also corroborated with the evidence of PWs 1 and 2. She stated that on 20.06.2003 she questioned PW 1 as to where the deceased Lakshmi, then PW 1 informed her that he along with Lakshmi went in search for the missing she-buffalo and when the deceased and PW 1 reached near Pinnelli tank, they found A1 to A3 are consuming liquor and then he asked Lakshmi to go to the home. When the deceased Lakshmi has not returned home, himself and others searched for Lakshmi but could not find her till third day of her missing. On the third day PW 4 informed them that the dead body of the deceased was found lying in the rubber plantation near Pinnelli tank. She stated that all of them went to the said tank and found dead body of the deceased with nail marks on her face and chest. The bangles of the deceased were broken. The inner wear worn by the deceased was tied around her neck tightly. The silver anklets of the deceased were found missing from the dead body, and PW 1 gave report to the police. She also stated about the previous gestures and teasing made by A1 against the deceased Lakshmi. She identified the clothes worn by the deceased Lakshmi and M.O.1 silver anklets. M.O.2 is red coloured nylon panjabi dress. M.O.3 is the red coloured panty. M.O.4 is white coloured petty coat in torn condition and M.O.5 is the torn cloth piece from the petty coat of the deceased Lakshmi. 12. PW 4 is the person said to have been found the dead body of the deceased on 22.06.2003 and informed the same to PWs 1 to 3. 13. PW 5 is the Panchayat Secretary who was panch witness for Ex.P2 scene observation report and Ex.P4 inquest report. As per the physical features observed by him at the scene of offence, they came to an opinion that the deceased Lakshmi was raped prior to her death and thereafter, she was murdered by squeezing of her neck with a cloth piece. 14. PW 6 is the Auto driver and panch witness for the confessional statements made by A1 and A2, who confessed that they committed the offence of rape and murder against the deceased. M.O.1 is seized in his presence from the house of A1. He stated that nobody was present at the time of seizure of M.O.1. A1 took out M.O.1 from a window which is visible. 15. PW 7 is the photographer who took photographs of the dead body lying near Pinnalli tank and Exs.P7 and P8 are the photographs. 16. PW 8 is the Medical Officer of the Government Hospital, Gurazala who conducted autopsy over the dead body of the deceased and found five external injuries and three internal injuries and issued Ex.P9 post mortem certificate to that effect. He received Ex.P10 as well as Ex.P11 reports from the Regional Forensic Science Laboratory, Guntur. Basing on the said reports, he gave Ex.P12 final opinion stating that the deceased died due to strangulation and that she was raped just before her death. He also conducted potency test on A1 to A3 on 05.11.2003 and issued Exs.P13 to P15 certificates finding that A1 to a3 had normal sexual character and capable to do ejaculation. Ex.P16 is the report received from the Forensic Science Laboratory, Guntur with regard to analysis of pubic hair and vegenal swabs. 17. PW 9 is the Investigating Officer. He stated that he visited the scene of offence in the presence of PWs 1 to 3 and prepared scene observation report and took photographs of the deceased through PW 7 and conducted inquest over the dead body of the deceased on 23.06.2003 at 8 a.m. During course of the inquest, the inquestdars opined that the deceased might have been killed by strangulation and also she might have been raped prior to it by some miscreants. Since the dead body was highly decomposed, he requested PW 8 to conduct post mortem examination and preserve M.Os.1 to 5 for analysis. On 03.08.2003 he arrested A1 and A2 in the presence of mediators PW 6 and another and recorded their confessional statements and recovered silver anklets of the deceased from the house of A1. He admitted that for the first time he came to know the complicity of A1 to A3 in this case on the basis of the confessional statements alone. In the initial stage he did not suspect the involvement of A1 to A3. 18. PW 10 is the Assistant Sub-Inspector of Police who received Ex.P1 and registered the case in Cr.No.125/2003 and issued Ex.P19 express FIR. He stated that he could not say who scribed Ex.P1. 19. In the instant case, in so far as the cause of the death of the deceased is concerned, as per the inquest, post mortem and medical evidence, undoubtedly the deceased died due to strangulation and rape prior to her death. The next question that arises for consideration is who caused the death of the deceased. Admittedly, the accused, the deceased and all the witnesses belong to the same village Brahmanapally. A1 was residing in front of the house of the deceased. As per the deposition of PW 1, himself and the deceased witnessed the accused consuming liquor on 20.06.2003 morning at 6 a.m. at Pinnelli tank. PW 1, as a precautionary measure, sent back his sister Lakshmi to the home and he accompanied her till she crossed A1 to A3. If that be the case, PW 1 never told about the presence of A1 to A3 consuming liquor on 20.03.2006 though his sister did not come back to the house. 20. Admittedly, Ex.P1-complaint was given two days after the incident. The death of the deceased is said to have been caused on 20.06.2003, but the dead body of the deceased Lakshmi was found only on 22.06.2003 at 2 p.m. Ex.P1-written report was given at 6.30 p.m. on 22.06.2003. But the report did not contain anything about the suspicion on A1 to A3. In fact, none of the witnesses PWs 1 to 3 stated about the suspicion against A1 to A3 to the police till the police arrested A1 to A3 on 03.08.2003 i.e. 2½ months after the incident. They never disclosed about the involvement of the accused to anybody. For the first time when they are deposing in the Court in the year 2007 they have stated about PW 1 witnessing A1 to A3 consuming liquor when PW 1 and the deceased were going in search of missing she-buffalo towards Gandhinagar area at Pinnelli tank. Even with regard to the statement made by PWs 1, 2 and 3 about teasing caused by A1 to the deceased Lakshmi, though they have stated that they have reported the matter to police when the teasing was unbearable, but PW 9 the Inspector of Police stated that for the first time he came to know about the complicity of A1 to A3 on 03.08.2003 on the basis of confessional statements and at the initial stage he has not suspected the involvement of A1 to A3, that means, nobody told the police about the suspicion on A1 to A3. 21. Even the teasing by A1 prior to the incident is also not proved. If really PW 1 noticed A1 to A3 consuming the liquor on 20.06.2003 and that if really he wanted to send back his sister to his house for safety measure, he would have definitely suspected the involvement of A1 to A3 when her sister was missing, by reporting the same to the police. Specifically in Ex.P1 he never doubted about the involvement of A1 to A3, but only stated that somebody might have killed his sister. PWs 1 to 3 never suspected the accused about their involvement till they were arrested on 03.08.2006. 22. Even according to the medical evidence, the right hand finger tips and left hand finger tips of the deceased were sent to the Regional Forensic Science Laboratory, but no blood was found on them. M.Os.1 and 2 were also sent for examination of bloodstains and semen. Semen was not at all detected on Items-1 to 6 and as per Ex.P16 blood was detected on torn items-1, 5 and 6. Spermatozoa was not detected on Items-1 to 6. Therefore, as per Ex.P12 final opinion the deceased died due to strangulation and she was raped just before her death. But based on the suspicious circumstantial evidence, it cannot be said that the accused have committed rape and murdered the deceased. We are of the opinion that the evidence available on record is not enough to connect the accused with occurrence. Suspicion cannot acquire status of proof, howsoever, strong it may be. Suspicion can certainly be a starting point to enable the prosecution to proceed to establish the guilt of the accused, with the help of oral and documentary evidence. When direct evidence is not available, circumstantial evidence can be taken help of. When even according to prosecution witnesses, there exists nothing beyond suspicion, that too wavering in nature, there was absolutely no basis for the trial Court in convicting the accused on suspicious circumstances. 23. We are of the opinion that PW 1 did not suspect the involvement of A1 to A3 when he gave the complaint and even within a reasonable time, but only after two years when they have deposed before the Court they have developed the story by saying that he found A1 to A3 on the day of the incident consuming liquor. Except the evidence of interested witnesses of PWs 1 to 3 none of the neighbours of PWs 1 to 3 stated about the previous conduct of A1 and their riffraff life and addiction of drinking. The police also did not register any case about the so called complaint said to have been made by the parents of the deceased Lakshmi about the teasing of A1. Even in the instant case, PW 9 did not state anything about the oral complaint of PWs 1 to 3 about teasing of A1 and the report said to have been given by the deceased. 24. In fact, the recovery of M.O.1 itself is doubtful. PW 6-Auto driver appears to have stock witness, as he himself admitted that he gave evidence in two or three cases of Piduguralla Police Station. Even according to the father of the deceased PW 2, he witnessed the anklets on the body of the deceased on the day of the inquest i.e. on 22.06.2003, even prior to the arrest of the accused. If that be so, it is not known how the said anklets were gone into the hands of A1. Even according to the panch witness, the anklets are said to have been placed in a window which is visible to every body. Therefore, we are of the opinion that the evidence of PWs 1 to 3 do not inspire any confidence, and the recovery of MO.1 is not established by the prosecution. It is settled law that admissibility of statements made by the accused in so far as they purport to contain a confession on the part of the accused cannot be proved against the accused. Therefore, we are unable to sustain the judgment of the Sessions Court, and accordingly, the conviction and sentence recorded against the accused by the Sessions Court is liable to be set aside. 25. In the result, these three criminal appeals are allowed and the conviction and sentence recorded against the appellants/A1 to A3 for the offence under Section 302 and 376(2)(g) IPC in Sessions Case No.143 of 2006 on the file of X Additional District & Sessions Judge (FTC), Guntur at Narasaraopet vide judgment dated 25.06.2007 are set aside. Accordingly, the appellants/A1 to A3 viz., Maganti Borriah, Vurati Sreenu and Munagodu Ramanjaneyulu shall be set at liberty forthwith, if they are no longer required in any other case. Further, the fine amount, if any paid, shall be refunded to them. M.Os.1 to 5 shall be destroyed after the expiry of appeal time. ________________ V.ESWARAIAH,J ___________________ V.SURI APPARAO,J Dated: 21.03.2011 Dsr