Andhra HC (Pre-Telangana)
Kummari Keshavulu vs State Of A.P., Rep. By Its P.P.,High ... on 18 March, 2014
Bench: L. Narasimha Reddy, M.S.K.Jaiswal
THE HONBLE SRI JUSTICE L. NARASIMHA REDDY and THE HONBLE SRI JUSTICE M.S.K.JAISWAL Crl.Appeal No. 1839 of 2009 18-03-2014 Kummari Keshavulu Appellant State of A.P., rep. by its P.P.,High Court of A.P., Hyderabad ...Respondent Counsel for the Appellant: Sri Sreenivasa Rao Velivela Counsel for respondent: Public Prosecutor <GIST: >HEAD NOTE: ?CASES REFERRED : . HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.1839 of 2009 JUDGMENT:
(Per Honble Sri Justice L.Narasimha Reddy) This appeal is filed by the sole accused in S.C.No.465 of 2005 on the file of VI-Additional Sessions Judge, Mahabubnagar. Through its judgment, dated 31-08-2009, the trial Court convicted the accused for the offence of murder and imposed punishment of imprisonment for life and fine of Rs.100/-.
2. The case, as presented by the prosecution, is as under:
The deceased (Nacharam Balaiah Goud) is an agriculturist of Bogaram village, Kosgi mandal, Mahaboobnagar district. The accused had the lands by the side of the lands of the deceased. PW-1, the wife of the deceased, filed complaint (Ex.P.1) at 7.00 a.m. on 15.01.2005, stating that there are disputes between their family and the family of the accused in the context of the cattle of the accused damaging their crops. On an earlier occasion, the Sarpanch of the village is said to have admonished the accused.
On 13.01.2005, the cattle of the accused are said to have strayed into the harvesting yard of the deceased and grazed the red-gram left over, and when PW-1 along with her husband objected, the mother of the accused is said to have scolded them in filthy language. PW-1 further stated that on 14.01.2005 her husband left the house at 2.00 p.m. to the fields and at about 4.30 p.m. one Mr. Mallesham Goud (LW-12, not examined as a witness), informed her that the accused beat her husband, thereafter hacked with an axe, and fled away. The parents of the accused are said to have instigated him to commit the offence. PW-1 further stated that LW-12 was furnished the information about the incident by PW-6. She and with other members of the family are said to have gone to the fields and found the dead body of the deceased, at a distance from the bore-well. She also stated that PWs.3, 4, 5 and 9, who are shepherds in the village informed her that they have seen the accused killing the deceased. Hence, she prayed for action against the accused.
The Police, Kosgi P.S., registered Crime No. 2 of 2005 under Sec.302 IPC against the accused, issued F.I.R., visited the place of occurrence, prepared the scene of offence panchanama, and caused inquest and post-mortem over the dead body of the deceased. Thereafter, the accused was arrested and after interrogating him and completing the investigation, the police filed the charge sheet.
3. The trial Court framed necessary charge against the accused, and on denial of the same, conducted trial. PWs.1 to 16 were examined, Exs.P.1 to P.8 were filed, and M.Os.1 to 8 were taken on record. The trial Court held the accused guilty of the offence charged. Hence, this appeal.
4. Sri Sreenivasa Rao Velivela, learned counsel for the appellant submits that there is absolutely no truth in Ex.P.1 or for that matter in the deposition of PW-1. He contends that while in Ex.P.1, PW.1 stated that PWs.3, 4, 5 and 9, the alleged eye-witnesses, have informed her about the incident, nothing of that sort was spoken to, in her evidence, much less it was supported by those witnesses. He contends that there was inordinate delay in submission of the complaint, and PW.8 who drafted the complaint stated that the complaint was prepared at 7.00 p.m., on 14.01.2005; whereas it was submitted 12 hours thereafter. He submits that the rivalry within the family of PW-1played a role in the matter and that the accused was unnecessarily implicated. He further argues that the only source of information for PW-1 about the incident was LW-12, and for the reasons best known to the prosecution, the said witness (LW-12) was not examined. The learned counsel submits that all the four alleged eye-witnesses are minors, and while recording their evidence, the trial Court has not taken the precautions that are required under law.
5. Learned Additional Public Prosecutor, on the other hand, submits that once the occurrence of the incident is proved and is not disputed by anyone, the source of information to PW-1 becomes insignificant. She further contends that though LW-12 was not examined, another person, who received the information from PWs.3, 4, 5 and 9, was examined as PW-6, and nothing objectionable was elicited from him.
6. The occurrence of the incident was reported by none other the wife of the deceased, by submitting Ex.P.1 - complaint. The objection raised by the learned counsel for the accused about the delay of submission of Ex.P.1 deserves some consideration. The exact time of the incident has not been stated by anyone. PW-1 is said to have received the information about the death of the deceased at 4.30 p.m., on 14.01.2005 through LW-12. The complaint, however, was submitted at 7.00 p.m. on the next day. In case there exists any circumstance that prevented PW-1 from submitting the complaint immediately, they can certainly be taken into account while examining the aspect of delay.
7. The record discloses that Ex.P.1 was drafted by PW-8. Even in the chief-examination, he stated that PW-1 came to him at 7.00 p.m., on 14.01.2005, and on her instructions, he drafted the complaint. If that is so, the complaint ought to have been submitted instantly or at least in the late hours of 14.01.2005. No explanation worth its name is forthcoming as to why it was filed 12 hours after it was drafted. The distance between the scene of offence and police station is just four kilometres. Another aspect which we noticed in this behalf is that though PW.8 stated that Ex.P.1 was drafted by him on the instructions of PW-1, he stated in cross-examination, that he did not read over the same to PW-1, before she signed it. For all practical purposes, Ex.P.1 reflects the ideas of PW.8 than that of PW-1. As though the aspects referred to above are not sufficient, the F.I.R., reached the Magistrate at 7.50 p.m., on 15.1.2005. It is difficult to accept that these lapses would not have any bearing upon the case of the prosecution.
8. Coming to merits of the case, PW-1 is not an eye-witness. The source of information to her is said to be LW-12, by name Mallesh Goud. Even from a perusal of Ex.P.1, it is evident that LW- 12 was also not the eye-witnesses to the occurrence. He said to have been furnished the information, by PW-6. This witness is the father of PW.3, a juvenile witness. PWs.3, 4, 5 and 9 are juvenile witnesses, and they are said to have seen the accused hitting the deceased with stone and thereafter hacking him with axe. All of them stated that they have reported the incident to their respective parents. However, it is only PW-6 (father of PW.3) and PW.7 (the father of PW.4) that have deposed before the Court, and the parents of PWs.5 and 9 did not figure as witnesses. Both PW.6 and PW.7 have stated that on receiving the information from their children, they have informed the matter to LW.12. However, none of them have furnished the exact time of the incident, i.e., neither PW-6 nor PW-7 stated as to at what point of time they were given the information about the incident.
9. It is important to mention that all the alleged eye-witnesses stated that they have seen the incident at 2.00 p.m., on 14.01.2005. Incidentally, PW-1 stated in Ex.P.1 that her husband left the house at 2.00 p.m. The distance between their house and the bore-well is said to be one kilometre and it would take about half an hour for a person to reach that distance by walk.
10. Though all the alleged eye-witnesses are of about 15 years of age, the trial court did not take any precautions before recording their evidence of such minors. They were treated on par with other adult witnesses. A serious procedural lapse was committed while recording their evidence.
11. PWs.6 and 7 stated that both of them have passed on the information to LW-12. Therefore, the failure of the prosecution to examine such important person i.e., LW-12, the only source of information for PW-1, is certainly fatal. Apart from that, the name of PW-6 was not mentioned in Ex.P.1 as source of information for LW-12.
12. The medical evidence on record also did not support the case of the prosecution. According to Post-mortem certificate, Ex.P.5, there were as many as nine injuries on the deceased. The alleged eye-witnesses have spoken about only one injury with stone and another through axe. The prosecution did not make any effort to explain, whether M.O.No.8 - axe, which was said to have used in committing the offence, was found to be having any stains of blood. Under these circumstances, it is difficult to sustain the Judgment of the trial Court.
13. In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C.No.465 of 2005 on the file of VI-Additional Sessions Judge, Mahabubnagar, dated 31-08-2009, against the appellant accused are set aside. The appellant - accused shall be set at liberty forthwith, unless his detention is needed in any other case. The fine amount, if any, paid by the appellant - accused shall be refunded to him. The material objects, if any, shall be destroyed after the appeal time is over. ___________________ L.Narasimha Reddy,J.
______________ M.S.K. Jaiswal,J.
Date: 18.03.2014