Andhra HC (Pre-Telangana)
26-03-2014 vs Shaik Sadik (A-5)
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.A.Nos. 184 of 2010
26-03-2014.
SHAIK SADIK (A-5)..APPELLANT/ACCUSEDNo.5
THE STATE OF A.P., REP. BY PUBLIC PROSECUTOR, HIGH COURT OF A.P., HYDERABAD...
RESPONDENT/COMPLAINANT
Counsel for the petitioner: Sri D. Sangeetha REddy
Counsel.
Counsel for the respondent: Public Prosecutor
<Gist:
>Head Note:
? CITATIONS:
THE HONBLE SRI JUSTICE L.NARASIMHA REDDY
AND
THE HONBLE SRI JUSTICE M.S.K.JAISWAL
CRIMINAL APPEAL Nos.184, 261 and 380 of 2010
COMMON JUDGMENT:(Per the Honble Sri Justice L. Narasimha Reddy) Shaik Adam Shafi of Pedakurapadu Village, Guntur District, was initially working as a cleaner, and thereafter as driver on a lorry. He was married to PW.2, by name, Shaik Johny Mukthyar. On 08.01.2009, PW.1, the Village Revenue Officer, submitted a complainant, Ex.P1, before the Station House Officer, Pedakurapadu P.S., stating that at about 4.00 p.m., a villager, PW.3 informed him that he has seen the dead body of a male person in the field of one Perecherla Nageswara Rao, and on receipt of the information, he went to the spot. Other people are said to have gathered at that place. Some of them are said to have recognized the dead body as that of Shaik Adam Shafi. The people are also said to have expressed suspicion that A3 herein, by name, Shaik Saida, was having illicit intimacy with PW.2, and that may have led to death of the deceased.
The complaint was received by the Station House Officer, and Crime No.4 of 2009 was registered by alleging offence punishable under Section 302 IPC, against A3. The police visited the scene of occurrence, prepared scene of offence panchanama, caused inquest, and sent the body for postmortem examination. The postmortem report revealed, serious injuries, around the neck of the deceased. The Doctor, who conducted autopsy, on 09.01.2009 in the noon, opined that the death of the deceased may have taken place about 36 to 48 hours, prior to the examination.
During the course of investigation, the police examined PW.6, by name, Shaik Mohammad Rafi, who is said to have informed that on 06.01.2008, he was returning from Patibandla Tiranala, and when he reached Podapadu Bus stop, he noticed A1, the deceased, Adam Shafi, and four others, and on enquiry, they informed that they were discussing about family matters.
PW.7, by name, Shaik Irfan, is said to have noticed A1 to A5, near a Brandi shop, and that he over heard them, when they were discussing plans to liquidate the deceased. A1 is said to have cautioned him, not to reveal the information, to anyone.
On completion of the investigation, PW.13 filed charge sheet, and relevant charges were framed against the accused, and on pleading not guilty, the trial was conducted, PWs.1 to 13 were examined, and Exs.P1 to P11 were filed. Mos.1 to 15 were also taken on record. Through its judgment, dated 12.11.2010, the trial Court convicted A1 to A5 for the offence punishable under Section 302 r/w 149 IPC, and sentenced them to undergo imprisonment for life, and to pay fine of Rs.1000/- each, in default, to suffer Simple Imprisonment for one month. A6 was sentenced to undergo imprisonment for life for the offence punishable under Section 302 r/w 149 IPC and Section 120-B IPC, and to pay fine of Rs.1,000/- each, indefault, to undergo Simple Imprisonment for one month.
Crl.A.No.261 of 2010 is filed by A1, Crl.A.No.380 of 2010 is filed by A2 to A4 and A6, and Crl.A.No.184 of 2010 is filed by A5.
Smt A. Gayathri Reddy, learned counsel for A1, Smt C.Vasundhara Reddy, learned counsel for A5, Sri Rama Krishna Rao, learned counsel for A2 to A4 and Sri K. Saibabu, learned counsel for A6, submit that there was absolutely no evidence on record, whatever, either direct or circumstantial to prove the case of the prosecution and still the trial Court convicted all the six accused, just on the basis of imagination. They submit that in Ex.P1, just, suspicion was expressed against A3, and in her statement recorded under Section 161 Cr.P.C., PW.4, the mother of the deceased also expressed her suspicion against A3, whereas, she changed her version in her evidence. It is also their case that PW.2, the wife of the deceased, is a woman, hardly with any character, and she did not even state the name of her first husband and did not hesitate to state that she continued her illicit intimacy with A1, on the pretext of visiting her sister, even after he shifted his residence to a different place, on being admonished by elders. Learned counsel further submit the very fact that PW.5, who is a resident of Pedakurapadu village, did not mention about his alleged noticing of A1, the deceased and 4 others, at the bus stand, till he was examined by the police on 10.01.2009; shows the falter of his version, and same is the case, as with the PW.6. They submit that if the evidence of PW.5 is omitted from consideration, nothing remains even to raise suspicion, and the trial Court was not justified in convicting A1 to A6. Learned counsel further submit that PW.2 stated in her evidence that on 06.01.2009, she tried to contact her husband at 11.00 p.m., but there was no response, and any sensible person, in her place, would have become alert to follow up the matter.
Learned Public Prosecutor, on the other hand, submits that the death of the deceased, no doubt was not witnessed by any person, but at the same time, the circumstantial evidence is so strong that the offence can be proved to have been committed by A1 to A6. She contends that the discrepancy in Ex.P1, and the evidence of PW.3, as to name of the person, who had illicit intimacy with PW.2, is on account of similarity of the names, and the same cannot be factor to discredit the version of the witnesses. She further contends that PWs.5 and 6 are the independent witnesses, and they had to reveal the information about what is noticed by them, only when the police examined them, and not otherwise. Learned Public Prosecutor submits that the trial Court has examined the matter from proper perspective, and the judgment under appeal does not warrant any inference.
The first information about the death of the deceased reached the police at 4.00 p.m., on 08.01.2009. The deceased was a lorry driver, and he used to go on trips. PW.2 is the wife of the deceased. She stated that her husband left at 4.00 p.m., on 06.01.2009, and when she contacted him, on mobile phone, at 11.00 p.m., she did not get any response. In her evidence, PW.2, stated that she was married to one person earlier, whose name, she does not remember, and after her marriage with the deceased, they had a daughter, who was aged about 9 years, by the year 2009.
In her chief examination itself, she stated that she developed illicit intimacy with A1. The level of that intimacy, in her own words, is as under:
.A1 was having a sundry shop at Pedakurapadu and in that connection I developed acquaintance with A1 which ultimately lead to illegal intimacy. My husband would go to out door duty in the Lorry and would return 10 or 15 days later. I used to attend the coolie work in the land of A1. On coming to know of our relationship, the relatives of my husband beat A1 and A1 began living at Chuttungunta in Guntur. I used to meet A1 even after he shifted his residence on the pretext that I am going to my sisters house. A1 also gave amounts for constructions of the house and A1 used to be friendly and moving with my deceased husband.
Nowhere, in her evidence, PW.2 stated that the deceased had ever admonished, quarrelled or assaulted A1, for his intimacy with PW.2. She stated that the deceased has no enmity with anybody. The witness did not mention as to what steps she has taken, to locate, or find out, the whereabouts of her husband, since the night of 06.01.2009. She stated that the information about the death of the deceased was received by her relatives through the people of Pedakurapadu village, and then, herself and her relatives, reached the dead body, at 2.30 p.m., on 08.01.2009.
A serious doubt arises, as to why, PW.2 did not submit the complaint to the police, particularly, when the police station is in the Village itself. It is not as if, Ex.P1 was submitted by PW.1, before PW.2, received the information about the death of her husband. Therefore, the conduct, behaviour and character of PW.2, are blameworthy, and it is not at all safe to rely upon the evidence of such a person. In Ex.P1, suspicion was expressed by PW.1 against A3 i.e., Shaik Saida, on the ground that he had illicit intimacy with PW.2. However, PW.2 stated that her illicit intimacy is with A1, Pathan Syda. In the statement recorded from PW.4, the mother of the deceased, she named A3, but in her evidence, she stated that, PW.2 developed illicit intimacy with A1. Therefore, the complainant and the mother of the deceased were themselves not clear, who are persons, that caused the death of the deceased.
Assuming that the needle of suspicion points to A1, it is just un-understandable as to how A2 to A6 were put to trial. The basis for framing charge against A2 to A6 is said to be the information furnished by PWs.5 and 6. While the former said that he has seen A1, the deceased, and four others, at bus stand, and the latter said that he has seen A1 to A5, near a brandy shop. PW.5 did not even mention that he was acquainted with A2 to A6. At any rate, he accounted for four persons, over and above, A1. PW.6 stated that he identified A1 to A5, when he saw them near brandy shop. No one has mentioned the name of A6.
The evidence of PWs.5 and 6 cannot be believed for the simple reason that though they hail from the same Village, and knew the information about the death of the deceased, they kept silent till the police examined them on 10.01.2009. It is important to mention that PW.6 stated in his chief examination that he came to know about the incident on 08.01.2009. It is therefore obvious that they are the planted witnesses, to implicate the accused.
As regards the point of time, at which, the death of the deceased occurred, there is uncertainity, if not a serious doubt. The postmortem was conducted at 12.00 noon, on 09.01.2009. PW.11, the doctor, who conducted autopsy, opined that the death may have taken place 36 to 48 hours before the examination. The last seen theory sought to be introduced through PW.6, did not account for the occurrence of the incident, at the same time, on 06.01.2009. If, one is to believe the version of PW.2, the deceased left the Village at 6.00 p.m., for duty. However, PW.6 is said to have seen the deceased along with A1, and four others, on 06.01.2009 itself, though he did not mention the time. Once we take into account the fact, that the deceased left the house at 6.00 p.m., on 06.01.2009, we cannot believe the version of PW.6.
The motive for the accused in a criminal case, plays an important role in the matter of commission of a crime. In the instant case, if at all anyone, it should be A1, who should have the motive to kill the deceased. However, the evidence does not support this theory. The reason is that not a single witness spoke about A1, having grouse against the deceased, and vice versa. It was virtually a smooth affair between A1 and the PW.2, so much so, that without even efforts of A1, PW.2 was visiting him at Guntur, on the pretext of going to the house of her sister. The deceased appears to have acknowledged relation between the PW.2 and A1, obviously because, the latter have even giving money for construction of the house, and neither the mother nor wife of the deceased (PWs 4 and 2), made a mention about the grievance, grouse or anger of the deceased towards A1. PW.4 was so uncertain that she named A3 for A1, as the person having illegal intimacy with her daughter-in-law.
Whatever be the motive for A1 vis--vis the deceased, the entire record presented by the prosecution is silent, as to what prompted A2 to A6, to join the commission of offence. From the discussion undertaken above, it is evident that there is no direct evidence to prove the commission of offence by A1 to A6, and circumstantial evidence is weak, and highly improbable. The prosecution has also failed to establish the motive of the accused to commit the crime.
Therefore, the Criminal Appeals are allowed. The conviction and sentence ordered in S.C.No.380 of 2009 on the file of the V Additional District & Sessions Judge (Fast Track Court), Guntur, dated 12.01.2010, against the appellants-A1 to A6, are set aside. The appellants-A1 to A6 shall be set at liberty forthwith, unless their detention is needed in any other case. The fine amount, if any, paid by the appellants-A1 to A6 shall be refunded to them. ____________________________ L.NARASIMHA REDDY, J ______________________ M.S.K.JAISWAL,J Dt: 26.03.2014