Andhra Pradesh High Court - Amravati
Dasathatti Murali vs The State Of A.P., on 8 September, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CRIMINAL APPEAL NO.337 OF 2014
JUDGMENT:(Per the Hon'ble The Acting Chief Justice C.Praveen Kumar)
1) Assailing the conviction and sentence imposed in Sessions Case No.291 of 2012 on the file of the III Additional District and Sessions Judge, Tiruipati, dated 19.03.2014, wherein the accused was convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code (for short "I.P.C.") and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default, to suffer simple imprisonment for a period of six months for the charge under Section 302 of I.P.C and to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.500/- in default, to suffer simple imprisonment for three months for the charge under Section 201 of I.P.C, the present appeal came to be filed under Section 374(2) of Cr.P.C by the appellant-accused.
2) The substance of the charge against the accused is that on 07.05.2011, in between 12.30 to 1.00 a.m., the accused caused death of the deceased - Datla Kumar, by hacking on his neck with a knife and later throwing the dead body on a railway track.
3) The facts as culled out from the evidence of prosecution witnesses are as under:-
P.W.1 is the Key man in railways, P.W.2 is the elder brother, P.W.3 is the wife and P.W.4 is the younger brother of the deceased, who were examined to speak about the circumstances, relied upon by the prosecution.
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4) P.W.3 who is the wife of the deceased, developed illicit contact with the accused since four years prior to the death of the deceased and the same was known to everybody in the village. About 15 days prior to the death of deceased, P.W.2, his parents, elder sister Prabhavathi advised P.W.3 to discontinue the illicit contact with accused, since her children are growing and asked her to take oath on the children. Accordingly, she took oath on her children stating that she would discontinue the illicit contact with the accused. Later, when the accused approached P.W.3, she refused and warned him not to approach her for any illegal act.
5) On 08.05.2011, P.W.2 came to know about dead body of the deceased on a railway track. P.W.1 - Key man in Railways, found the dead body of a male person on 08.05.2011 at about 11.00 a.m. and informed the same to P.W.5 - Station Superintendent. Then P.W.5 went to Renigunta Railway Police Station and lodged a report with P.W.12 -Sub-Inspector of Police, Renigunta Railway Police Station, who recorded the statement of P.W.5, vide Ex.P.1. Basing on which, a case in Crime No.37 of 2011 came to be registered under Section 174 of Cr.P.C. P.W.12 visited the scene of office which is on the down line railway track and KM No.77/12-10 between Renigunta and Yerpedu and found the dead body of male person, the head was separated from the trunk. He prepared a rough sketch of the scene of offence and conducted inquest over the dead body in the presence of panchayatdars, Ex.P.3 is the Inquest Report. He also examined P.Ws.2, 3 and Chennaiah and recorded their statements. Thereafter, he forwarded the dead body of the deceased to Area Hospital, Srikalahasti for post-mortem examination. He also examined P.W.1 and recorded his statement. P.W.13 - Deputy Civil Surgeon, Srikalahasti, conducted post-mortem on the dead body of the 3 HACJ & MSMJ Crl.A_337_2014 deceased and issued Ex.P.9 the post-mortem report. Later, as per the instructions of his superior officers, the case was transferred to Renigunta Urban Police. P.W.14 - the then Inspector of Police, Renigunta Urban Police Station, as per the instructions of SDPO, Renigunta, received F.I.R. in Crime No.37 of 2011 and re-registered the same as a case in Crime No.79 of 2011 and issued the re- registered F.I.R., Ex.P.10. On 20.07.2011 P.W.6 - the then Village Revenue Officer went to the police station and presented a written report along with the statement of P.W.7 wherein stated that the accused killed the deceased with a knife near Railway track near S.U.Puram and kept the body on the railway track. P.W.14 informed the same Sub-Divisional Police Officer (SDPO) and as per the instructions of SDPO, he altered the Section of law from 174 of Cr.P.C. to Section 302 of I.P.C. and submitted express F.I.R. to all concerned.
6) P.W.15, who took up further investigation on 05.06.2011, examined P.Ws.1 and 5 and recorded their statements. He along with P.Ws.10 and 11 proceeded to S.U. Puram Down line railway track between Renigunta and Srikalahasthi 77/12 and 77/10, observed the scene of offence, prepared the scene of offence Panchanama under Ex.P-4. P.W.15 further proceeded to S.U. Puram and examined P.Ws.2, 3 and others and recorded their statements. On 06.06.2011, P.W.15 examined P.W.4 and recorded her statement. On 10.06.2011, he gave a questionnaire to P.W.13, to which P.W.13 answered the questionnaire stating that homicide cannot be ruled out. On 20.07.2011, P.W.15 examined P.Ws.6 and 7 and recorded their statements. Similarly, on 21.07.2011, P.W.15 examined P.Ws.8, 9 and others and recorded their statements. On 23.07.2011, the accused was produced before P.W.15 by P.W.11 who caused his 4 HACJ & MSMJ Crl.A_337_2014 arrest. Thereafter, P.W.15 examined P.W.11 and recorded his statement. On interrogation, the accused confessed that he concealed the knife in Narasaraju sugarcane garden in Krishnapuram. Basing on the confession of the accused, P.W.15 discovered M.O.2-Knife from the Narasaraju Sugarcane garden and M.O.1 -Hero Honda Motor cycle from the house of accused under the cover of seizure panchanama - Exs.P-6 and P-7 respectively. After verifying the investigation done by P.W.14, P.W.15 laid the charge- sheet against the accused before the Court of the III Additional Judicial First class Magistrate, Tirupati, which was taken on file as P.R.C.No.14 of 2012, who after complying with Section 207 Cr.P.C., committed the case to the Sessions Division under Section 209 of Cr.P.C, as the offence under Section 302 of I.P.C is exclusively triable by Court of Session. On committal, the same came to be numbered as Sessions Case No.291 of 2012.
7) Basing on the material available on record, charges under Sections 302 and 201 of I.P.C were framed against the accused, read over and explained to him, to which he pleaded not guilty and claimed to be tried.
8) To substantiate its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P-1 to P-12 and M.Os.1 and 2.
9) After the closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them, in the evidence of the prosecution witnesses, to which he denied. No oral evidence was adduced on behalf of the accused, but Ex.D-1 was marked, which is the contradiction in 161 Cr.P.C. statement of P.W.7.
10) Out of 15 witnesses examined by the prosecution, P.W. 8 did not support the prosecution case, as such he was declared hostile.
5 HACJ & MSMJ Crl.A_337_2014 Relying upon the evidence of P.Ws.1 to 7 and 9 to 15, the learned III Additional District and Sessions Judge, Tirupati, convicted the accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code (for short "I.P.C.") and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default, to suffer simple imprisonment for six months for the charge under Section 302 of I.P.C and to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for three months for the charge under Section 201 of I.P.C. Challenging the same, the present appeal is preferred.
11) Learned counsel for the appellant contended that there are no eyewitnesses to the incident and the circumstances relied upon by the prosecution, do not form chain of events, connecting the accused to the crime. He would further contend that the evidence of P.W.7 will not be of any help to the prosecution as he was examined nearly 2 ½ months after the incident. It is urged that even assuming for a moment that P.W.7 informed P.W.2 and others about the incident, no reasons are forthcoming as to why they failed to mention about the same before the police when they were examined much prior to 20.07.2011. In other words, he pleads that the belated version of P.W.7 cannot be accepted as his evidence clearly shows that he is planted for the purpose of this case. He would further contend that if the evidence of P.W.7 is omitted, there is no other material to conclude that the accused is responsible for the death of the deceased. Hence prays to allow the appeal.
12) On the other hand, learned public prosecutor would contend that the circumstances so relied upon by the prosecution do form chain of events connecting the accused with the crime. It is his case 6 HACJ & MSMJ Crl.A_337_2014 that theory of last seen by P.Ws.6 and 7, coupled with recovery of dead body are sufficient to base a conviction again the accused.
13) The point that arises for consideration is "Whether the circumstances relied upon by the prosecution form chain of events connecting the appellant- accused with the crime?"
P O I N T:
14) As seen from the record, there are no eyewitnesses to the incident. The case rests on circumstantial evidence. In a case based on circumstantial evidence, prosecution has to prove each of the circumstances relied upon by them and the circumstances so proved, should form chain of events connecting the accused with the crime. In the instant case, the circumstances relied upon by the prosecution are:-
(1) The evidence of P.W.2 to show the involvement of the accused in the incident.
(2) The evidence of P.W.7 to show that he was there along with the deceased and the accused on the date of incident and (3) The evidence of P.W.11, before whom the accused is alleged to have made an extra-judicial confession.
15) P.W.1 is Key Man in railways, working in Srikalahasthi. On 08.05.2011 at about 7:00 A.M when he started from Renigunta to check the railway line from 76/10 route post, he found a dead body of male person on the railway track near 77/12-10. He informed about the incident to P.W.5 - Station Superintendent.
16) P.W.2 is the brother, while P.W.3 is the wife of the deceased. Both of them, in their evidence deposed about the illicit contact of wife of the deceased i.e. P.W.3 with accused since four years prior to the death of the deceased. About 15 days prior to the death of the 7 HACJ & MSMJ Crl.A_337_2014 deceased, P.W.2, in-laws of P.W.3 and one Prabhavathi advised P.W.3 not to continue the illicit contact with accused, since children are grown up. P.W.3 took oath on the children to discontinue her illicit contact with the accused. Her evidence also shows that, on coming to know about the dead body of her husband on the railway track, she along with others proceeded to the place, where she found the dead body of the deceased in a position where head and trunk were separated. P.Ws. 2 and 3 were also present at the time of inquest. In the evidence of P.W.2, he states that after cremating the body of the deceased, P.W.7 informed that the accused cut the throat of deceased with knife and kept the body on the railway track. P.W.7 also informed P.W.2 that accused threatened him with dire consequences if he discloses to other. P.W.7 further disclosed that he saw the incident and went to Bangalore out of fear. However, in the cross-examination, P.W.2 admits that, on 10.05.2011, P.W.7 informed him about the incident, but says that, he did not give report to the police disclosing the same.
17) P.W.3 is the wife of the deceased. She also speaks about illicit relationship with the accused, taking oath on children to discontinue her illicit contact with the accused. Though she is not an eyewitness to the incident, she speaks only about her illicit contact with the accused and she asking the accused not to come to her for illicit contact. All the suggestions given in the cross-examination were denied by her.
18) P.W.4 is a resident of Srinivaa Udasipuram Harijanawada of Renigunta Mandal, who knows the deceased, his wife - P.W.3 and the accused. She also states that P.W.3 was having illicit contact with accused since four years prior to the death of the deceased. Two days prior to the death of the deceased, she saw accused and 8 HACJ & MSMJ Crl.A_337_2014 P.W.3 talking to each other in front of the house of P.W.3. She also spoke that P.W.3 asked the accused not to come for her hereafter and demanded the accused to leave the place. Two days later, P.W.4 came to know about the incident in question. Nothing turns out in the evidence of this witness with regard to culpability of the accused in the commission of offence.
19) P.W.5 is Station Superintendent, who lodged report and set the law into motion, after receiving information from P.W.1.
20) P.W.6 is Village Revenue Officer, who in his evidence deposed that, on 20.07.2011 at about 5:00 P.M, i.e. nearly 2 ½ months after the incident, P.W.7 came to him and informed about accused killing the deceased. He also stated that, P.W.7 told him that on 07.05.2011 during night time the accused killed the deceased with a knife near railway track near S.U. Puram and kept the body on the railway track. He recorded the statement of P.W.7 and thereafter, handed over the statement recorded by him to the police on 20.07.2011. This evidence of P.W.6 is relied upon by the prosecution as corroborative piece evidence to the evidence of P.W.7, who speaks about witnessing the incident on that night. We will discuss his evidence a little later, but from the evidence so far discussed above, it is clear that none of them have seen the incident.
21) As per the evidence of P.W.2, the information about the incident was given to him by P.W.7 on 10.05.2011. But, furnishing of such information on 10.05.2011 to P.W.2 appears to be incorrect, having regard to the admissions in the evidence of P.W.2 that, on the next day of cremation of dead body of the deceased, P.W.7 informed the same P.W.2. The death of the deceased took place on 07.05.2011, while cremation of the deceased was on 08.05.2011. Therefore, the information furnished to P.W.2 could not have been on 9 HACJ & MSMJ Crl.A_337_2014 10.05.2011. If really, P.W.7 informed P.W.2 about the manner in which the deceased died on 10.05.2011, then nothing prevented P.W.2 to inform about the same to the police. As seen from the record, section of law was never altered till P.W.7 disclosed about the incident to P.W.6, 2 ½ months after the incident.
22) Be that as it may, the evidence of P.W.6, which is relied upon by the prosecution only shows that P.W.7 informed about the incident on 20.07.2011 i.e. after a period of 2 ½ months, and there is no reason for P.W.7 to inform the same to P.W.6 at that length of time to Village Revenue Officer.
23) At this stage, it would be useful to refer to the evidence of P.W.7, who deposed about the illicit contact between the accused and P.W.3. He states that on 07.05.2011, when he came to Ramulavari temple in their village at about 08:00 p.m., the accused also reached there. At that time, the deceased and Boppaiah were chit chatting with each other. The deceased told Boppaiah that he is having only Rs.30/- which is not sufficient to consume liquor. Then the accused gave Rs.100/- to the deceased and asked him to bring liquor. P.W.7, accused and deceased consumed liquor and after sometime P.W.7 went by the side of wall to smoke Beedi. At that time, Surendra came there and talked to accused and deceased. Thereafter, all of them came on to the road. Accused left the place asking them to come to the bridge. Then P.W.7 and deceased went to the bridge, by that time accused was present there with a motorcycle. Accused asked the deceased to come along with him. But, the deceased is said to have told him that he would come only if P.W.7 accompanies him. Then, accused, P.W.7 and deceased went towards Anjimedu Road. At that time P.W.7 told the accused that his wife is pregnant and his presence is necessary as she was alone 10 HACJ & MSMJ Crl.A_337_2014 in the house, so saying he left to his home. The accused informed that they would return, even if it is late night. All the three started towards Srikalahasthi and reached there by 10.30 p.m. The accused left the place and returned after some time with food packets along with one Eswaraiah who is son in law of Nageswar, who handed over two bottles of liquor to accused. The accused brought P.W.7 and deceased to Yerpedu on motorcycle. At Yerpedu, accused brought glasses, another quarter bottle and water packets. From there, all the three came to railway gate on motorcycle. There, accused made them to wait at the bridge stating that he would come back after keeping the motorcycle. P.W.7 and deceased did not go to the bridge out of fear. The gateman at the railway gate came there and asked them as to why they were sitting there, to which, the deceased told the gateman that he came there to switch on the motor and release water to the field. After sometime, accused came through cart way and asked the deceased to come along with him to release water to the field of Eswaraiah, which is at a distance of half kilometer. P.W.7 also accompanied both the accused and deceased and all the three took liquor and meals. After having meals, accused asked P.W.7 to wait aside, as he has to talk to deceased secretly. P.W.7 moved aside to smoke and immediately thereafter, he turned aside and saw the deceased fell down on the ground. Accused hacked the deceased with a knife. When P.W.7 questioned the accused, he threatened him showing the knife and warned him of dire consequences if he disclose. The accused caught hold of the shirt of deceased, brought his dead body on to the railway track and left it there. Thereafter, accused threatened P.W.7 to kill him if he discloses the incident to anybody. From there, accused brought P.W.7 to Anjimedu Kaluva and asked him to stay there so as to bring motor cycle. Accused 11 HACJ & MSMJ Crl.A_337_2014 brought motor cycle and thereafter, came to the tank in the village. His evidence also discloses that on the next day after the cremation of the deceased, P.W.7 informed P.W.2 about the incident. After informing P.W.2 about the incident, P.W.7, out of fear, went to Bangalore and started living there by doing coolie work. He claims to have returned to Renigunta on 20.07.2011 and met P.W.6 the Village Revenue Officer.
24) This conduct of P.W.7, in our view is unnatural. He appears to have been set-up to speak about the incident. Firstly, there is no reason for P.W.7 to disclose about the incident to P.W.6 the V.R.O. that too after 2 ½ months.
25) Secondly, from the evidence of this witness, it is very clear that he came forward as an eyewitness to the incident nearly 2 ½ months after the incident. If, really, he has informed P.W.2 about the incident, as claimed, at least P.W.2 would have informed about the same to the police when he was examined on 05.06.2011. The material on record does not disclose any such information being given by P.W.2 to the police, which is evident from the fact that Section of law was never altered from Section 174 of Cr.P.C. to Section 302 of I.P.C. even after the examination of P.W.2. Everything started moving after 2 ½ months of the incident, that too when P.W.7 was projected as an eyewitness to the incident. We are not inclined to accept the evidence of P.W.7, as he has come forward as an eyewitness to the incident at a very belated stage, coupled with the fact that his version is doubtful in nature.
26) At this stage, learned Public Prosecutor would contend that the evidence of P.W.7 gets corroboration from the evidence of P.W.9. According to P.W.9, about 2 ½ months prior to his giving evidence, on one day at about 8:00 P.M, while he was at Sriramulavari Temple 12 HACJ & MSMJ Crl.A_337_2014 in the village, deceased told him that he is having only Rs.30/-, which is not sufficient to purchase liquor. At that time, accused, P.W.7 came there. Accused gave Rs.100/- to deceased to bring liquor. The deceased bought liquor and thereafter, the accused, deceased and P.W.7 moved towards the bridge, whereas, P.W.9 and Surendra left Temple.
27) Even accepting the evidence of P.W.9, that P.W.7 was there along with the accused and deceased on that night, P.W.9 never accompanied others, when all of them moved towards the bridge and then to Kalahasti and Yerpedu etc. Even P.W.7 was there along with the accused on that night, when the dead body of the deceased traced out at railway track near level crossing, it is difficult to conclude that the accused alone was responsible for the death of the deceased, more so, when P.W.7 was projected as eyewitness nearly 2 ½ months after the incident.
28) One another circumstance which is relied upon on by the prosecution is the evidence of P.W.11, who was working as Village Revenue Officer, Panguru Village, Yerpedu Mandal. His evidence is relied upon to prove the extra judicial confession made by the accused on 23.07.2011. According to him, he was one of the panch for scene of offence. His evidence is to the effect that, on 23.07.2011 at about 1.30 p.m. while he was present in Renigunta Mandal Tahsildar Office, accused came to him and confessed that he was having illicit contact with P.W.3. The accused did not say anything more than that. Basing on that statement, P.W.11 is stated to have taken the accused and handed over him to the police, before whom he is alleged to have disclosed the commission of offence leading to discovery of knife. This evidence, in our view, does not disclose that the accused confessed about commission of the offence. He only 13 HACJ & MSMJ Crl.A_337_2014 disclosed that he was having illicit contact with P.W.3. Therefore, the argument of learned Public Prosecutor that the statement of accused made before P.W.11 to be treated as a confession as to commission of offence may not be correct, more so, when such statement does not disclose the commission of the offence by the accused. The subsequent statement made before the police, confessing about the crime is inadmissible in evidence. In so far as recovery of knife is concerned, the blood stains found on the knife do not indicate that blood stains on the knife are of the deceased.
29) P.W.8 is a Gangman on Railway Level Crossing Number 42 situated near S.U.Puram. He deposed that about 2 ½ years prior to his giving evidence, on one day while he was on duty at Level Cross Number 42 from 05.00 p.m. to 07.00 a.m.; on that night he heard the voices of some persons from near the down line, then he asked them to go away. P.W.8 did not support the case of the prosecution and he was treated hostile.
30) Having regard to the above we hold that the evidence of P.W.7 cannot be relied upon as he came forward as an eyewitness nearly 2 ½ months after the incident, and that the statement of accused made before P.W.11 cannot be treated as extra-judicial confession since the accused only stated that he was having illicit contact with P.W.3 and that he has not stated anything about the incident. Further, the information furnished to P.W.2 by P.W.7 about the incident immediately after cremation is also doubtful since P.W.2 failed to disclose the same till 05.06.2011. Hence, the prosecution failed to establish the guilt of the appellant/accused beyond reasonable doubt for the offences punishable under Sections 302 and 201 of I.P.C., for which he was convicted, and as such the 14 HACJ & MSMJ Crl.A_337_2014 judgment of the trial Court cannot be sustained and the same is liable to be set aside.
31) In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellant-accused - Dasathatti Murali, for the offences punishable under Sections 302 and 201 of I.P.C, in Sessions Case No.291 of 2012 on the file of the III Additional District and Sessions Judge, Tirupati, by judgment dated 19.03.2014, are set-aside. The appellant-accused is acquitted and he shall be set at liberty forthwith, if he is not required in any other case.
Consequently, miscellaneous applications pending if any, shall also stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:08.08.2019 Ksp/sp