APHC010621242017

IN THE HIGH COURT OF ANDHRA PRADESH

TUESDAY ,THE SEVENTH DAY OF MAY

TWO THOUSAND AND TWENTY FOUR

THE HONOURABLE SRI JUSTICE K SURESH REDDY

THE HONOURABLE SRI JUSTICE B V L N

CRIMINAL APPEAL NO: 1177/2017

Between:

Makineni Sravanya, Guntur Dt &Anr., and Others

The State Of Ap Rep Pp

Counsel for the Appellant(S):

1. PRABHU NATH VASIREDDY

Counsel for the Respondent:

1. PUBLIC PROSECUTOR (AP)

1

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

TUESDAY ,THE SEVENTH DAY OF MAY

TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE K SURESH REDDY

THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

CRIMINAL APPEAL NO: 1177/2017

Sravanya, Guntur Dt &Anr., and Others ...APELLANT(S)

AND

The State Of Ap Rep Pp ...RESPODENT

Counsel for the Appellant(S):

PRABHU NATH VASIREDDY

Counsel for the Respondent:

PROSECUTOR (AP)

IN THE HIGH COURT OF ANDHRA PRADESH

[3474]

THE HONOURABLE SRI JUSTICE K SURESH REDDY

CHAKRAVARTHI

...APELLANT(S)

...RESPODENT

2

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

SPECIAL DIVISION BENCH

****

CRL.A.No.1177 OF 2017

Between:

1. MakineniSravanya,

W/o.Sandeep, Aged 27 years,

R/o.Flat No.511, 5

th

Floor,

Seetharama Towers, Karampudi Road,

Vinukonda, Guntur District.

2. Makineni Sandeep,

S/o.SivaSubba Rao, Aged 35 years,

R/o.Flat No.511, 5

th

Floor,

Seetharama Towers, Karampudi Road,

Vinukonda, Guntur District. …… Appellants/Accused

A N D

The State of Andhra Pradesh,

Rep. by its Public Prosecutor,

High Court at Hyderabad. …… Respondent/Complainant

DATE OF JUDGMENT PRONOUNCED : 07.05.2024

SUBMITTED FOR APPROVAL :

THE HON'BLE SRI JUSTICE K.SURESH REDDY

AND

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

3

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

__________________

K.SURESH REDDY, J.

______________________

B.V.L.N.CHAKRAVARTHI, J.

4

* THE HON'BLE SRI JUSTICE K.SURESH REDDY

AND

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

+ CRL.A.No.1177 OF 2017

% 07.05.2024

# Between:

1. MakineniSravanya,

W/o.Sandeep, Aged 27 years,

R/o.Flat No.511, 5

th

Floor,

Seetharama Towers, Karampudi Road,

Vinukonda, Guntur District.

2. Makineni Sandeep,

S/o.SivaSubba Rao, Aged 35 years,

R/o.Flat No.511, 5

th

Floor,

Seetharama Towers, Karampudi Road,

Vinukonda, Guntur District. …… Appellants/Accused

A N D

The State of Andhra Pradesh,

Rep. by its Public Prosecutor,

High Court at Hyderabad. …… Respondent/Complainant

! Counsel for the Appellants : Sri Prabhu Nath Vasireddy

^ Counsel for the

Respondent : Sri Y.Nagi Reddy,

Public Prosecutor.

< Gist:

5

> Head Note:

? Cases referred:

1. 1984 (4) SCC 116

2. 2023 (6) SCC 742

3. 2010 (10) SCC 439

This Court made the following:

6

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

(Special Original Jurisdiction)

TUESDAY, THIS THE SEVENTH DAY OF MAY

TWO THOUSAND AND TWENTY FOUR

SPECIAL DIVISION BENCH

PRESENT

THE HON’BLE SRI JUSTICE K.SURESH REDDY

AND

THE HON’BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

CRIMINAL APPEAL No.1177 OF 2017

Between:

1. MakineniSravanya,

W/o.Sandeep,Aged 27 years,

R/o.Flat No.511, 5

th

Floor,

Seetharama Towers, Karampudi Road,

Vinukonda, Guntur District.

2. Makineni Sandeep,

S/o.SivaSubba Rao, Aged 35 years,

R/o.Flat No.511, 5

th

Floor,

Seetharama Towers, Karampudi Road,

Vinukonda, Guntur District. …… Appellants/Accused

A N D

The State of Andhra Pradesh,

Rep. by its Public Prosecutor,

High Court at Hyderabad.

…… Respondent/Complainant

Counsel for the Appellant(s) : Sri Prabhu Nath Vasireddy

Counsel for the Respondent(s) : Public Prosecutor

7

JUDGMENT:

(Per Hon’ble Sri Justice B.V.L.N.Chakravarthi)

1. The accused No.1 and 2 in Sessions Case No.20 of 2017 on

the file of learned XIII Additional District and Sessions Judge, Guntur

at Narasaraopet, are the appellants herein. They were tried for the

offence U/s.302 r/w.34 of Indian Penal Code, 1860 (hereinafter

referred to as ‘I.P.C’) for causing the death of Smt.Makineni Satya

Sri (hereinafter referred to as deceased) on 23.05.2016 at about

06.00 a.m. in their house at Vinukonda.

2. Vide Judgment dated 30.08.2017, the learned XIII Additional

District &Sessions Judge, Guntur at Narasaraopet, convicted the

accused No.1 and 2 for the offence U/s.302 r/w.34 of IPC and

sentenced them to undergo imprisonment for life, and to pay a fine of

Rs.1,000/- each, in default of payment of fine, to suffer simple

imprisonment for a period of one (01) month each.

3. Challenging the said conviction and sentence, the present

appeal came to be filed.

4. On 20.04.2023 the learned counsel for the appellant/A-1 filed

memo before this Court submitting that the State Government

granted remission to A-1, and as a consequence of the same, A-1

was released from the Special Prison for Women,

8

Rajamahendravaram on 15.08.2022. Consequently, the Criminal

Appeal to the extent of the 1

st

appellant/A-1 was dismissed by this

Court, and continued the appeal against the 2

nd

appellant/A-2.

5. The facts as culled out from the evidence of prosecution

witnesses are as under:

(i) P.W-1 is father of A-2; A-1 is wife of A-2; the deceased

Smt.Makineni Satya Sri is wife of P.W-1 and mother of A-2; P.W-1,

the deceased, A-1 and A-2 along with their children were staying in a

flat in Seetharama Towers (apartment) located in Karampudi Road,

Vinukonda.P.W-4 is the grandson of P.W-1 and the deceased;

P.W-4 is the son of daughter of P.W-1 and the deceased; he was

also present in the house on the date of incident; P.W-3 is son-in-law

of P.W-1 and the deceased and staying at Hyderabad.

(ii) On the date of incident i.e., on 23.05.2016P.W-1 and

the deceased along with P.W-4 were sleeping in one bed room; A-1,

A-2 and their children were sleeping in another bed room in the flat;

P.W-1 on the morning of 23.05.2016 at 05.00 a.m. went outside for

walking closing the main door; he returned to home at about 06.30

a.m.; he went inside the flat and noticed the deceased with injuries

lying on the cot in the bed room; he tried to wake up her, but in-vain;

he knocked the door of the bed room of A-1 and A-2 and informed

9

about the injuries sustained by the deceased; on hearing cries of

P.W-1 and the accused, neighbours came to the flat.

(iii) Inspector of Police, Vinukonda Town Police Station

(P.W-7) basing on Ex.P-14 report, registered Ex.P-15 FIR as case in

Cr.No.97/2016 for the offence U/s.302 r/w.34 IPC against the

accused on 23.05.2016 at 09.15 a.m.; P.W-7 submitted Ex.P-15 FIR

to the Judicial Magistrate of the First Class, Vinukonda, and copies

to all concerned; P.W-7 visited scene of offence located in flat

No.511,Seetharama Towers (apartment), Karampudi Road,

Vinukonda; P.W-7 observed the scene of offence in the presence of

Village Revenue Officer of Timmayapalem Village (P.W-6) and

another and prepared report (Ex.P-9); P.W-7 seized M.Os-1 to 10

available at the scene of offence; scene of offence was

photographed vide Ex.P-16 photos; P.W-7 prepared a rough sketch

of scene of offence (Ex.P-17); later, P.W-7 conducted inquest over

dead body of deceased in the presence of blood relatives of the

deceased and panchayatdars under the cover of an inquest report

(Ex.P-10); during inquest, P.W-7 examined P.Ws-1 to 3 and

recorded their statements; the dead body of deceased was shifted to

Community Health Centre, Vinukonda, for autopsy.

10

(iv) P.W-5 Civil Assistant Surgeon, Community Health

Centre, Vinukonda, conducted autopsy on 24.05.2016 and opined

that the death was due to manual strangulation, and the approximate

time of death was between 12 to 24 hours prior to the post mortem

examination.

(v) P.W-7 during investigation examined and recorded

statements of P.W-4 and others; on 26.05.2016 on information he

arrested A-1 and A-2 at RTC Bus Stand, Vinukonda, in the presence

of P.W-6 and another and recorded their confessional statements;

basing on the fact discovered, P.W-7 seized M.Os-11 to 20 available

in flat No.511 under the cover of Ex.P-13 in the presence of P.W-6

and another and they were forwarded to RFSL, Guntur for analysis;

later, he received the report of RFSL, Hyderabad and Guntur.

(vi) After completing investigation, a charge sheet came to be

filed, which was taken on file as P.R.C.No.40/2016 on the file of

Judicial Magistrate of the First Class, Vinukonda.

6. In support of the case, the prosecution examined P.Ws-1 to

7and got marked Ex.P.1 to Ex.P.17, besides M.Os-1 to 20. After

completion of the prosecution evidence, the accused were examined

U/s.313 Code of Criminal Procedure, 1973 (hereinafter referred to as

Cr.P.C.) with reference to the incriminating circumstances appearing

11

against the accused in the evidence of prosecution witnesses. The

accused denied the same as false, but no defence evidence was

adduced.

7. Believing the evidence of the prosecution witnesses,the

learned XIII Additional District &Sessions Judge, Guntur at

Narasaraopet, convicted and sentenced accused as stated above.

8. Sri Prabhu Nath Vasireddy, learned Counsel for the

2

nd

appellant/A-2 submitted that the case of the prosecution is based

on circumstantial evidence; it was contended by the learned counsel

that the evidence of P.W-1, P.W-2 and P.W-3 did not establish the

motive; that the evidence of P.W-4 was held by the Sessions Judge

that he is unable to understand the meaning of the evidence, and

therefore, he is not a competent witness and as such, his evidence

was not recorded; that there was unexplained delay of three days in

forwarding the F.I.R. to the Court; that when the medical evidence

would show that P.W-5 found semi digested food in the abdomen of

the deceased at the time of death and that opinion of the doctor

would show that death was occurred 6 to 12 hours prior to post

mortem examination; therefore, it must be between 01.00 a.m. and

02.00 a.m. on 24.05.2016; that admittedly P.W-1 was also present in

the flat at that time and hence, fixing of A-1 and A-2 alone as adult

12

male persons present in the house is not correct; that the finding of

the trial Court basing on some information extracted from a text book

of Medical Jurisprudence is an erroneous act, as the trial Court failed

to notice that no evidence is available on record to show about the

nature of food taken by the deceased before her death, and further,

there is no evidence on record to show that the deceased was

suffering from ill-health; that the recovery relied on by the

prosecution relating to M.Os-11 to 20 i.e., blood stained clothes of

the accused also do not connect the accused with the offence; that

the RFSL report does not disclose that the blood found on M.Os-11

to 20 belongs to the deceased; that the evidence of P.W-1 would

show that the police took the accused to the police station on the

date of incident itself; therefore, the case of the prosecution that the

accused were arrested on 26.05.2016 at Bus Stand, Vinukonda, and

made confession about M.Os-11 to 20 is untrustworthy; that the

medical evidence would show that 11 bite injuries on the body of

deceased, but there is no evidence on record to connect accused

with the said bite injuries; that the learned trial judge erroneously

without any evidence held that the bite injuries were made by the

accused; that the Investigation Officer failed to take steps for DNA

examination of bite injuries to connect the accused;that the

prosecution failed to prove the motive, last seen theory and recovery

13

of M.Os-11 to 20; therefore, section 106 of Indian Evidence Act

cannot be applied to the case.

9. However, it was contended by Sri Y.Nagi Reddy, learned

Public Prosecutor for State, that the evidence on record would show

that P.W-1 went outside for walking at 06.00 a.m.; that the medical

evidence would establish that the death was occurred at about 06.00

a.m.; that accused are the only adult persons present in the house at

that time; that M.Os-11 to 20 were recovered basing on the fact

disclosed by the accused and they contained blood stains of the

deceased; that theaccused did not give any explanation as laid down

U/s.106 of Indian Evidence Act, 1872.

10. We have carefully considered the rival submissions.

11. The case of the prosecution is based on circumstantial

evidence. Therefore, we may have to see whether the chain of

circumstances is complete and unbroken. The Hon’ble Apex Court in

the case of Sharad Birdhichand Sarda Vs. State of Maharashtra

1

held that “the Court must keep in mind five golden principles or the

panchsheel”, as held in para 153 of the judgment.

1

1984 (4) SCC 116

14

“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 with the

hypothesis of guilt and 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 proved; 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.”

12. In the case on hand, the prosecution tried to establish the guilt

of the accused through the evidence of P. Ws-1 to 7. The

prosecution sought to establish the motive and last seen theory

through the evidence of P. Ws-1 to 4.

13. P.W-1 evidence would show that on the date of incident,

P.W-1 and the deceased were sleeping in one bedroom, the

accused were sleeping in the other bedroom. P.W-1 went outside at

05.00 a.m. on 24.05.2016. He returned to home at 06.30 a.m. All the

15

inmates were sleeping at that time. He noticed the deceased with

injuries lying on the cot. He tried to wake up her, but in-vain. Then,

he informed the accused, who were sleeping in the other bedroom.

14. P.W-5, conducted autopsy at about 08.00 a.m. on 24.05.2016,

He deposed that the approximate time of death was between 12 to

24 hours prior to postmortem examination. Later, in the cross-

examination, admitted that he found semi digested food in the

abdomen of the deceased. He believed the time of death may be 6

to 12 hours prior to the postmortem examination, and that semi

digested food will be found if the death was occurred within 2 to 3

hours after consumption. P.W-1 deposed that himself and deceased

had dinner between 08.30 and 09.00 p.m. on 23.05.2016. Therefore,

the death would appear to have occurred between 01.00 a.m. to

02.00 a.m. on 24.05.2016 if the evidence of P.W-5 is taken into

consideration. Undisputedly, P.W-1 was present in the flat, sleeping

in the bedroom along with the deceased at that time. Unfortunately,

the learned trial judge, jumped to a conclusion that in view of the

opinion expressed by Dr.K.S.Narayana Reddy, in his text book of

Forensic Medicine, digestion might have delayed, ignoring that there

is no evidence to show that the deceased consumed fatty food, and

that she was suffering with illness or emotional stress at that time. In

16

that view of the matter, we are not inclined to accept the said finding

of the learned Sessions Judge, which is not based on any evidence.

The evidence of P.W-5 available on record would show that there is

every possibility of occurrence of death between 01.00 a.m. and

02.00 a.m. In those circumstances, the contention of the prosecution

that A-1 and A-2 are only adult persons present in the house, falls to

ground.

15. The Hon’ble Apex Court in the case of Chotkau Vs. State of

Uttar Pradesh

2

held that “to invoke section 106 of Evidence Act, in

the context of last seen theory, the prosecution to successfully

invoke Section 106 of the Evidence Act, they must first establish that

there was “any fact especially within the knowledge of the accused”.

This can be done by the prosecution only by proving that the victim

was last seen in the company of the accused.

16. Therefore, it is needless to point out that for the prosecution to

successfully invoke 106 of the Evidence Act, they must first establish

that there was any fact especially within the knowledge of the

appellants. This can be done by the prosecution only by proving that

the victim was last seen in the company of the appellants.

2

2023 (6) SCC 742

17

17. In the case on hand, the facts discussed above would show

that the death of deceased would have occurred between 01.00 a.m.

and 02.00 a.m. and P.W-1 i.e., husband of the deceased was also

present in the house sleeping in the bedroom along with the

deceased. In the light of above circumstances, we are not inclined to

invoke section 106 of the Indian Evidence Act, 1872.

18. When coming to the motive, nothing has been made out

through the evidence of P.Ws-1 to 4 to connect the accused with the

offence, to say that they had a motive to do away the life of the

deceased.

19. The prosecution relied on the evidence of P.W-6 and P.W-7 to

establish that M.Os-11 to 20 were recovered based on the

confession made by the accused, after their arrest on 26.05.2016.

Unfortunately, the learned trial judge failed to notice that the

evidence would show that the accused were in the custody of the

police, from the date of incident itself i.e., on 24.05.2016, creating a

doubt about recovery.

20. Further, the learned Sessions Judge also jumped to a

conclusion that the blood stains found on the clothes of accused i.e.,

M.Os-11 to 20 belongs to the deceased. This finding of the learned

Sessions Judge is not based on any evidence. The RFSL Reports

18

(Ex.P-5 and Ex.P-6) would show that the human blood was detected

on these items. But they did not give any opinion about the blood

group of the blood found on M.Os-11 to 20. Therefore, there is no

evidence on record to show that the blood found on these clothes of

deceased is of the deceased. Further, there is no evidence to show

that M.Os-11 to 20 belongs to the accused. As already stated above,

the arrest of the accused was not trustworthy.

21. The medical evidence would show that there are 11 bite

injuries found on body of the deceased. But no steps were taken by

the Investigation Officer to send the accused for DNA examination.

The learned Sessions Judge unfortunately jumped to conclusion that

the bites found on the body of deceased are of A-1.

22. In the case on hand, undisputedly, the police station and court

are located side by side at Vinukonda. As per the evidence of P.W-7,

he registered FIR at 09.15 a.m. on 24.05.2016, whereas, it was

received by the Court at 10.30 p.m. on 25.05.2016 i.e., nearly 36

hours. No explanation was offered by the prosecution for this delay.

P.W-6 deposed that she was present at the time of scene

observation and inquest on 23.05.2016, whereas FIR was registered

on 24.05.2016. Ex.P-9 would show that she signed on 26.05.2016,

though it was recorded on 23.05.2016. All these circumstances

19

would create a reasonable doubt that the records were prepared

after deliberations, and thereafter, FIR reached the Court.

23. Where the offence alleged to have been committed is a

serious one, the prosecution must provide greater assurance that its

case has been proved beyond reasonable doubt. More serious the

offence, stricter the degree of proof required, since a higher degree

of assurance is required for conviction. The Hon’ble Supreme Court

in the case of Paramjeet Singh @ Pamma Vs. State of

Uttarakhand

3

held that “the prosecution story may be true; but

between `may be true' and `must be true' there is inevitably a long

distance to travel and the whole of this distance must be covered by

legal, reliable and unimpeachable evidence before an accused can

be convicted”.

24. It is necessary to say something about the approach adopted

by the learned Sessions Court. In a case of this nature, the Court

has to assess the evidence on the test of probability. The evidence

has to be weighed carefully before recording conviction. The

learned Sessions Judge without any evidence came to an erroneous

opinion that the prosecution proved the motive, last seen theory and

recovery. Further, he jumped to certain conclusions, without any

3

2010 (10) SCC 439

20

evidence forgetting that he has to scrutinize the evidence carefully in

a case of this nature. In the words of Hon’ble Apex Court in

Chotkau’s Case, the erroneous approach on the part of the Sessions

Court has led to the appellants being ordained to be dispatched to

the gallows.

25. In the light of above discussion, we hold that the prosecution

failed to prove the motive, last seen theory and recovery, to establish

the guilt of the accused beyond reasonable doubt.

26. In the result, the Criminal Appeal is allowed and the conviction

and sentence recorded by the learned XIII Addl.District &Sessions

Judge, Guntur at Narasaraopet, vide judgment dated 30.08.2017 in

S.C.20/2017 against the accused for the offence U/s.302 r/w.34

I.P.C. is set aside. The accused No.2 is acquitted U/s.235(1) Cr.P.C.

for the said offence. The Criminal Appeal against the 1

st

appellant /

A-1 stands disposed of as per orders dated 20.04.2023, as A-1 was

already been granted remission by the Government of Andhra

Pradesh, and released from Special Prison for Women,

Rajamahendravaram, on 15.08.2022.

27. The 2

nd

appellant/accused No.2 shall be set at liberty forthwith,

if he is not required to be detained in any other case or crime. The

21

fine amount, if any, paid by the 2

nd

appellant/accused No.2, shall be

refunded to him.

Consequently, miscellaneous petitions pending, if any, in this

Criminal Appeal shall stand closed.

________________________

JUSTICE K.SURESH REDDY

______________________________

JUSTICE B.V.L.N. CHAKRAVARTHI

L.R. Copy is to be marked

B/o. psk.

Date: 07.05.2024

psk

22

THE HON’BLE SRI JUSTICE K.SURESH REDDY

AND

THE HON’BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

Criminal Appeal No.1177 OF 2017

(Per Hon’ble Sri Justice B.V.L.N.Chakravarthi)

NOTE: Mark L.R. Copy

psk

Date: 07.05.2024

psk